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Harvard Proposed a New Definition of Consent. Some Advocates Say its Wording is Flawed.

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When Harvard released a set of proposed changes to its sexual harassment, non-discrimination, and anti-bullying policies two weeks ago, a new definition of consent was one of the key changes.

The new policies, if adopted by the University’s highest governing board, would define consent as an “active, mutual agreement” — a stark departure from the University’s current policies, which require only “agreement, assent, approval, or permission” through words or actions.

But two weeks into an open comment period in which affiliates are invited to give feedback on the proposed policies, some have taken issue with the word “active” in the new definition.

The proposed changes are the product of a set of working groups convened by University Provost Alan M. Garber ’76 in January 2021 that sought to assess Harvard’s interim Title IX and sexual misconduct policies and draft new anti-bullying and non-discrimination procedures.

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Some student advocates on campus welcomed the proposal as a step in the right direction but said the school should adopt a standard of “affirmative” — not “active” — consent.

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Our Harvard Can Do Better, an anti-sexual assault advocacy organization, said in a statement the “language within the definition is unclear and troublesome.”

“Our concern is that ‘active,’ while it may make intuitive sense to people for a model of healthy sexual interaction, does not have as clear a definition as affirmative,” William M. Sutton ’23, an organizer for Our Harvard Can Do Better, wrote in a follow-up email. “Specifically, we’re concerned about the term’s reversibility. ‘Not affirmative’ means communicating ‘no’ through words or actions, while the meaning of ‘not active/inactive’ is less clear.”

But Brett A. Sokolow, the president of the Association of Title IX Administrators, said the wording change would make little substantive difference. The dispute over “active” and “affirmative” consent, he said, creates “a false juxtaposition.”

“If you already have a consent-based policy — and you just revised the consent-based policy — then your consent-based policy is already affirmative,” he said.

“I don’t object to it, but I just don’t think it’s necessary, because [affirmative] is a modifier that already is baked in,” Sokolow added.

The proposed definition of consent also includes a new provision stating that “consent is not voluntary if it is obtained by coercion,” defining coercion as conduct “that would reasonably place a person in fear of immediate harm, and that is employed to compel someone to engage in sexual activity.”

Max G. Ehrenfreund, a History of Science Ph.D. candidate who served as a member of the working group on interim Title IX and other sexual misconduct policies, said the coercion definition is “too narrowly defined.”

“Forms of sexual misconduct that obviously violate the spirit of this policy would have to be regarded as acceptable by the University,” he said.

Ehrenfreund also took issue with the proposed definition of quid pro quo harassment, which only encompasses Harvard employees as currently written. The policy, he said, would not apply to students who may hold leadership positions in extracurricular organizations, but are not employed by the University.

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Some affiliates also criticized the draft policies on discrimination and bullying for being too constrained.

Researcher Kelsey M. Tyssowski, a member of the anti-bullying working group, said she hoped to see the policies elaborate more on informal conflict resolution given that many affiliates who allege misconduct do not file formal complaints.

Bailey A. Plaman, a Chemical Biology graduate student who serves as a co-chair of the graduate student union’s Feminist Working Group, said she was “disappointed” to see the anti-bullying and non-discrimination policies modeled off of Harvard’s interim Title IX policies, which are required to meet federal regulations. The union has long argued Harvard’s policies for sexual harassment and misconduct are opaque and ineffective.

Harvard put in place interim Title IX policies in August 2020 after the Trump administration rewrote federal guidelines. The Biden administration has signaled that it will soon roll back the Trump-era changes, leaving individual schools’ policies in flux.

“A lot of the reasons the policies are the way they are, at least Harvard argues, is because of Title IX law — but anti-bullying and non-discrimination are not subject to Title IX,” Plaman said.

Harvard affiliates will be able to comment on the proposed policies through September.

“The University welcomes robust dialogue and conversation around all aspects of these proposed policies to continue to shape how they are finalized,” University spokesperson Jonathan L. Swain said in a statement.

—Staff writer Cara J. Chang can be reached at cara.chang@thecrimson.com. Follow her on Twitter @CaraChang20.

—Staff writer Isabella B. Cho can be reached at isabella.cho@thecrimson.com. Follow her on Twitter @izbcho.

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