Limited Improvement

TWO WEEKS AGO, the Undergraduate Council asked Harvard to take only a small step forward on the issue of acquaintance rape. unfortunately, a giant lead is needed.

The council approved a definition of rape as any sexual act that occurs "despite the expressed unwillingness of the victim"--thereby requiring a physical or verbal expression of dissent.

Council members left in a "grey area" those cases in which the initiator "fails to elicit consent resulting in the physical or psychological harm of the victim." They dubbed this new category of sexual crime "sexual negligence"--those cases in which the alleged victim expressed neither consent nor lack of consent.

In a limited sense, this would be an improvement on the Ad Board's current non-policy policy. Now the Ad Board decides cases without this sort of student input and in fact has no set of established producers for dealing with acquaintance rape. We praise the U.C. for beginning a constructive dialogue about sexual misconduct.

But by creating the new category, the council is addressing the most difficult problem of these cases--fairly adjudicating them--in the wrong way.

THE COUNCIL members who suggested the change recognized that silence does not indicate consent. Separation of these cases opens a door for insensitive judges (in this case, Harvard Ad Board members) to interpret the standard more broadly--perhaps even to excuse the crime due to lack of dissent.

In addition, the council recommended that disciplinary action for perpetrators of "sexual negligence" be less severe than for perpetrators of rape--when the unwillingness of the alleged victim was expressed.

But how is it less a crime to force sex on someone who finds it physically or psychologically difficult to say no than it is to force sex on someone who does express unwillingness? Why should victims too traumatized to shout or fight back treated differently from those who are able to do so?

Of course, in some cases those who bring charges of acquaintance rape are intentionally or unintentionally distorting what can be murky facts. But the answer should not be to adopt a standard unfair to those victims who have been raped but who could not express their anger, fear, shame or unwillingness.

The Date Rape Task Force was right to adopt a definition of rape as any sexual act "that occurs without the expressed consent of the person....." This makes it incumbent on initiators of sex to obtain a specific "yes" or "no".

STILL, PROBLEMS remain with judging these cases. The parties involved may have legitimate dispute over whether consent or dissent or neither was expressed.

If so, how is the community to decide who is right? The U.C.'s answer was this new category, designed to provide guidelines for the Ad Board's closed decision. But no new category can prevent bad adjudication. The category itself, aside from being poorly reasoned, could also be, as suggested above, poorly applied.

So what is the answer? the first step--and it is only a beginning--should be hearings open to the press.

We have heard horror stories from alleged victims grilled for hours by Ad Board members---only to have their cases dismissed on faulty reasoning. Surely this discourages victims from coming forward.

Similarly, alleged perpetrators often face a Star Chamber-type trial in which no public review permitted. The Public should have a look at the facts of such cases.

Some argue that such openness would discourage victims from coming forward, unwilling to share their private horror with the public. The press, accordingly, should be responsible enough not to print the names and "sexual background" of such victims.

And, as the Date Rape Task Force recommended, the University should provide more information about current (and, hopefully, expanded) counseling for victims of sexual misconduct.

But, as we've said before, protecting alleged victims and perpetrators from closed-door and sometimes unfair and overly grueling trials must take precedence. This goes for all disciplinary cases, not just those involving alleged acquaintance rape.

Others have argued that Harvard should not judge such crimes at all--that all complaints of sexual misconduct should be referred to the legal authorities in Cambridge.

Clearly this would be "fair" in some sense, as Harvard's victims would have to face the same procedures as all others in the city.

But the Harvard community has a responsibility to decide for itself whether certain members of the community must leave. And we should not trust the Cambridge legal system to make that decision for us--especially given the reluctance of victims to take their cases to authorities widely perceived as unsympathetic to cases of rape.

What proponents of ending Harvard's role in acquaintance rape cases fail to acknowledge is that Harvard is free to adopt behavioral standards stricter than those written in criminal law.

Furthermore, Harvard cannot simply refer all cases of sexual misconduct to the courts. A Cambridge jury's decision that no rape occurred would not preclude a violation of Harvard's standards for behavior. The court may find nothing wrong with they consider "mild" sexual misconduct---Harvard should punish all such misconduct.

IN SHORT, the answers to the problems of deciding complex sexual misconduct cases do not lie in simple reformulations of board definitions. True reform is called for--reform the council is unwilling to recommend, Nonetheless, the Ad Board cannot continue to face disciplinary matters without public scrutiny. Too much is at stake for their decisions to be completely closed ones.