What Is Harvard's Consent Policy?
Harvard's new (as of July 2014) university-wide policy on sexual harassment and sexual assault replaces consent language with "welcomeness" language:
"Sexual harassment is unwelcome conduct of a sexual nature, including unwelcome sexual advances,
requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature,
when: (1) submission to or rejection of such conduct is made either explicitly or implicitly a condition
of an individual’s employment or academic standing or is used as the basis for employment decisions
or for academic evaluation, grades, or advancement (quid pro quo); or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or
benefit from the University’s education or work programs or activities (hostile environment).
Quid pro quo sexual harassment can occur whether a person resists and suffers the threatened harm, or
the person submits and avoids the threatened harm. Both situations could constitute discrimination on
the basis of sex.
A hostile environment can be created by persistent or pervasive conduct or by a single severe episode.
The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a
hostile environment. Sexual violence, including rape, sexual assault, and domestic and dating violence,
is a form of sexual harassment...
Conduct is unwelcome if a person (1) did not request or invite it and (2) regarded the unrequested or
uninvited conduct as undesirable or offensive. That a person welcomes some sexual contact does not
necessarily mean that person welcomes other sexual contact. Similarly, that a person willingly
participates in conduct on one occasion does not necessarily mean that the same conduct is welcome
on a subsequent occasion...
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 [perpetrator'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 Harvard Handbook for Students, which applies to the College, still contains a vague, negative-consent definition:
“Rape includes any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury. Unwillingness may be expressed verbally or physically. Rape may also include intercourse with a person who is incapable of expressing unwillingness or is prevented from resisting, as a result of conditions including, but not limited to, those caused by the intake of alcohol or drugs. Rape includes not only unwilling or forced vaginal intercourse, but also the sexual penetration of any bodily orifice with a body part or other object.”
Note that OSAPR has a more expansive explanation of consent on its website, but that this is not reflected in the statement of official policy and therefore does not bind the Ad Board.
How Does Harvard's Consent Policy Compare?
Check out current Yale Undergraduate Regulations (we think the comparison speaks for itself):
“Sexual misconduct incorporates a range of behaviors including rape, sexual assault (which includes any kind of nonconsensual sexual contact), sexual harassment, intimate partner violence, stalking, voyeurism, and any other conduct of a sexual nature that is nonconsensual, or has the purpose or effect of threatening, intimidating, or coercing a person.
Sexual activity requires consent, which is defined as positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter. Consent cannot be inferred from the absence of a "no"; a clear "yes," verbal or otherwise, is necessary. Consent to some sexual acts does not imply consent to others, nor does past consent to a given act imply present or future consent. Consent must be ongoing throughout a sexual encounter and can be revoked at any time.
Consent cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity. Engaging in sexual activity with a person whom you know—or reasonably should know—to be incapacitated constitutes sexual misconduct.
Consent can only be accurately gauged through direct communication about the decision to engage in sexual activity. Presumptions based upon contextual factors (such as clothing, alcohol consumption, or dancing) are unwarranted, and should not be considered as evidence for consent. Although consent does not need to be verbal, verbal communication is the most reliable form of asking for and gauging consent, and you are thus urged to seek consent in verbal form. Talking with sexual partners about desires and limits may seem awkward, but serves as the basis for positive sexual experiences shaped by mutual willingness and respect.”
Yale’s OSAPR equivalent also expands upon their already far-more-extensive-than-ours official policy.
So Ideally, What Is Consent?
Current discussion surrounding consent usually boils down to “yes means yes, no means no.” Although clearly a step forward from the attitude that “it all means yes,” these superficial catchphrases can obscure the complicated (and controversial) interplay between individual sexual agency and kyriarchy. Below are some excerpts from our favorite treatment of consent over at radtransfem:
When under duress, there’s no such thing as a simple “yes” or “no”; the very idea of a statement ‘meaning’ one of those things becomes questionable when an answer may have as much (or more) to do with the power factors at play than with what a person really wants to communicate.
“No Means No” claims to give the no-sayer all the power, but what it actually gives them is all the responsibility. Responsibility isn’t necessarily a bad thing, but responsibility without power plain sucks. The only responsibility given to the person hearing a “no” is whether they respect it, and as feminists know, rapists are often let off the hook for betraying even that responsibility.
How can we embrace the understanding that “yes can mean no” without feeling that our own experiences of good sex – if we have those experiences – are being called into question? And how can we defend our own experience without the means of our self-defense being turned around and used out of context by a patriarchy determined to close ranks behind every instance of sexism and abuse? One answer might be to insist on both radical and agency feminist models of consent being firmly kept in context and to maintain loudly that in the general case, “yes means maybe means no” even as in the individual case, “this yes means yes”.
Some marginalizations are invisible. People’s life experiences differ, so that even though they may be marginalized under one or more systems of domination, they may be more or less marginalized, or some of the tactics opened up by that system of domination may be more or less effective. All of this means that, a lot of the time, a partner receiving a “yes” can’t know for sure the degree of pressure which is being brought to bear upon the person giving the “yes”. They may have a rough idea, based on their relative knowledge of systems of oppression, but through ignorance, carelessness or culpable disinterest they may be missing vital information.
From outside the experience of the person asked for consent – for example, as a person asking for consent in good faith, or as a bystander – we can understand that the strength of the relationship of this “yes” to a genuine “yes” is in inverse proportion to the severity of the anticipated consequences of a “no”. In the best possible world, there are no consequences for saying “no”, and every “yes” is free. In this world (under patriarchy and other systems of domination) the consequences always exist and we must address them as best we can.
If you genuinely feel no pressure on your consent, I’m happy for you. That’s pretty awesome and pretty rare. Perhaps you and your partner exist in a situation in which neither of you have the potential to dominate each other’s ability to consent. Perhaps you do have that potential, but it’s never come up. Perhaps it’s come up and [they’ve] expertly defused it. Perhaps it’s come up, you haven’t realized, and it’s in play but hasn’t hurt you yet. Do you know the difference?
- “No means no” is an non-negotiable line; no feminist theory allows an undermining of “no means no”
- As well as being a bottom-line, “no means no” is also a resistance against assumed-default-consent in women, a feature of patriarchy
- Even if you respect a verbal “no,” you’re not really respecting it if you don’t create and nurture opportunities for your sex partners to give a “no” at any time before and during sex
- Ambiguous sexual requests can help both parties save face, but they can also be used against women who say “no” – be aware of how this functions, don’t do it yourself, and call it out in simple, clear ways when you observe it – try not to get trapped by the surface logic of the situation
- Sexual refusal can be implicit as well as explicit; implicit is actually much more common
- In situations involving alcohol, concentrate less on legal definitions of rape and more on how willing you are to maybe rape someone (the answer to this should be “I am not”)
- It’s long past time we thought of women as people who have their own sexual desire and agency, not just as sexual gatekeepers
- While we do that, we should remember that society does treat women as sexual gatekeepers and punishes them for stepping outside that role – blame society, not women who remain in the role
- Perpetrators can rape down more power gradients than just men raping women
- This should never be used to minimize or erase the historical and ongoing global reality of male rape against women
- Consent is never 100%; there are always pressures working against it, and so you can never know for sure that another person is consenting
- Saying that consent is not 100% is not the same as saying you, personally, have no agency or ability to consent; whatever your circumstances, you make the best-seeming possible choice at the time
- Somebody trying to understand another’s level of consent must not cherry-pick a feminism which allows them to interpret it as “yes”, when the truth may be “maybe”
- If you would like to have sex which is as close as possible to consensual, work on identifying and reducing power differentials between parties and removing negative consequences for non-consent
- Sexual consent over power dynamics (such as parent-child) is nonnegotiable, over others (such as sexism) it’s such that anybody soliciting consent should be regarded with suspicion and potentially resisted unless they make significant and visibly effective efforts to defuse their personal power