A Harvard Law School professor fears the school’s new sexual misconduct policy may unfairly punish students who have sex after “a few drinks.”
Harvard law professor Elizabeth Bartholet has been an outspoken critic of changes made last year to the university’s sexual harassment policy, writing in a letter to The Wall Street Journal’s Law Blog last week that the updated policy fails to protect students wrongfully accused of rape. In a statement sent to Business Insider, Bartholet outlined what she believes is another issue with Harvard’s policy, which states that sexual conduct is “deemed unwelcome” when a student is “so impaired or incapacitated as to be incapable of requesting or inviting the conduct.”
According to Bartholet, this policy is potentially problematic as it “specifically covers impairment not just incapacitation, covering the situation where students would simply have had a few drinks.”
“This means that students who engage in sexual touching or sexual intercourse while having a few drinks are all at risk of being held guilty of the very serious charges of sexual assault and rape, regardless of their understanding at the time that they mutually consented to such activity,” she writes.
The issue of a student’s ability to give consent while intoxicated has become increasingly visible in the discussion surrounding campus sexual assault. Even if consent is perceived to be given voluntarily at the time, it can be determined to be invalid depending on a complainant’s level of impairment.
Most colleges have language in their sexual assault policies about a student’s inability to consent to sex while incapacitated, although not every school makes the distinction between “impairment” and “incapacitation” that Harvard does. Typically, incapacitation is understood to be a level of impairment that prevents a person from being aware of the potential consequences of their actions.
In a statement, Bartholet writes that Harvard’s sexual harassment policy omits “entirely all issues of substance” and is “guilty of gross overreach.” Check out her full statement below:
They omit entirely all issues of substance. The Harvard University SH Policy is guilty of gross overreach. For example, in cases of sexual contact while mutually impaired (by alcohol or drugs), the HU Policy puts students at serious risk of being found guilty of serious misconduct (sexual assault or rape). The Policy specifically covers impairment not just incapacitation, covering the situation where students would simply have had a few drinks. There is no requirement of wrongful intent on the part of the accused. Nor is there any requirement that the complainant’s claims regarding unwelcomeness or impact on the educational environment be judged by an objective reasonableness standard. This means that students who engage in sexual touching or sexual intercourse while having a few drinks are all at risk of being held guilty of the very serious charges of sexual assault and rape, regardless of their understanding at the time that they mutually consented to such activity. This is inconsistent with the standards established in the courts, including the U.S. Supreme Court, which have attempted to appropriately balance the importance of protecting against sexual misconduct with the importance of individual autonomy in personal relationships, fairness to the accused, and other values.
Here is the section of Harvard University’s sexual harassment policy that deals with a student’s ability to consent:
In addition, when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct, conduct of a sexual nature is deemed unwelcome, provided that the Respondent knew or reasonably should have known of the person’s impairment or incapacity. The person may be impaired or incapacitated as a result of drugs or alcohol or for some other reason, such as sleep or unconsciousness. A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.
The definition of incapacitation can be controversial because it is often subjective and dependent on a college’s investigation, as well as what adjudicators believe reveals a student’s inability to understand their own actions. It also may become tricky in cases involving two impaired students.
Last year, Business Insider detailed a sexual assault case at Occidental College involving two highly intoxicated freshmen students. While the school determined that the female Jane Doe had been incapacitated during sex, the male John Doe — who was expelled and has since filed a lawsuit against the school — contends that although she was impaired, she was still aware of her actions.
According to one witness statement from another Occidental student, “Jane Doe’s demeanor did not appear as if she knew what was going on, but her text messages and her physically going to John’s room seem to indicate that Jane Doe had some idea of where she was, of what was taking place, and of what would happen if she went to John’s room.”
Among John Doe’s evidence is a text message from Jane Doe asking if he had a condom and the fact that she was able to direct herself to his dorm room from her own. While acknowledging John’s points, the college found that because Jane couldn’t remember having sex and made decisions that night she said she normally would not have — such as removing her shirt in public — the female student was incapacitated and unable to give valid consent.
Also up for question is John Doe’s own responsibility for the alleged sexual assault. Although an adjudicator’s report stated that his “level of intoxication so impaired the Respondent’s ability to assess the Complainant’s incapacitation that he did not have actual knowledge of the Complainant’s incapacitation,” the college still found that John should have recognised Jane’s incapacitation, as he would have if he were sober.
Like Harvard, Occidental’s sexual assault policy includes language that basically states that intoxication does not remove a student’s responsibility to obtain valid consent from their partner, even if they are unable to understand that the other student may be too intoxicated to reliably give consent. Although John Doe’s judgement was determined to have been impaired, the policy required him to evaluate Jane Doe’s ability to consent with the same judgment he would have employed had he been sober.
It should also be noted how Occidental’s policy is different than Harvard. The California college only lists “incapacitated” as reason for invalid consent, unlike the Ivy, which now has two separate terms — “impaired or incapacitated” — to judge students by.
We have reached out to Harvard for comment about their policy and whether it may have the effect of punishing students for drunk sex. We will update with any comment.
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