Harvard's Sexual Misconduct Policy

Harvard has a new and more victim-friendly sexual misconduct policy as of this fall, and 28 professors in the law school have complained about it (out of a total of 110).  It sounds to me as if they have some legitimate worries but I'm puzzled by one of the complaints.
The faculty members, including emeritus professor Alan Dershowitz, said the policy should be retracted because it denies the accused access to legal counsel, knowledge of the accusations against them and the right to question witnesses, potentially exposing them to “unfair and inappropriate discipline.” It also holds one party more culpable when both are impaired by alcohol or drug use.
What's the problem with holding one party more culpable when both are impaired--provided that one was the sexual aggressor?   A lot of people seem to find that unfair, but is it really?

A long time ago when I lived in Boston I was on a jury in a manslaughter trial.  The drunk defendant (along with a group of friends) had chased the victim into a subway station shouting racial epithets and threats. The victim, also drunk and evidently fearing for his life, decided to walk home along the tracks (above ground). He was killed by an oncoming train that he might have heard if he hadn't been drunk.

Though this was 30 years ago, I still vividly remember what the prosecutor said about intoxication.  About the defendant: you can't hide behind alcohol.  If you committed a criminal act, the fact that you were drunk is not exculpatory.  About the victim:  you take your victims as you find them.  The victim may have heard the train if he hadn't been drunk, but the defendant cannot use that as a defense.  These two rules made sense to me and to all the other members of the jury.  We convicted the defendant, and later realized this was a retrial: another jury had previously convicted the defendant too.  The prosecution's instructions about alcohol were persuasive to all 24 jury members.

Now transpose into a sexual scenario.  A drunk man forces himself on a woman, who doesn't resist effectively because she's drunk.  It's surely the same: the man can't hide behind alcohol; he takes his victim as he finds her.  So I have no idea why Prof. Dershowitz & Co. find any problem with holding "one party more culpable when both are impaired by alcohol or drug use."  Would they really want the defendant in the manslaughter case to be acquitted because the victim was also drunk?

Maybe to the average person (but surely not the law professors) it may appear as if there's an asymmetry here--we're holding the man to higher standards. But no, that's not true.  We're holding the man responsible for criminal acts he performed while drunk.  The woman performed no such criminal acts.  She only made it easier for the man to perform his criminal acts.  There's no inconsistency in saying his inebriation doesn't excuse him and then saying her inebriation doesn't excuse him either. 

Of course, not every case where both parties are drunk is a case of rape.  If both actively participate in sex acts, with one no more the aggressor than the other, then it wouldn't make sense to see the man as guilty of non-consensual sex and not the woman.  But in cases where women file complaints, usually there's an allegation of aggression on the man's part. That's why one party is responsible and the other isn't, even though both are drunk.

People seem to want to find fault with both parties and surely we can do that.  If drinking makes you less in control of yourself, you shouldn't do it in a setting where self-control is important.  Men are foolish to get totally drunk at college parties and so are women.  The men because they're liable to commit acts they're going to be accountable for.  The women because they become defenseless against those acts (or maybe even, in very rare case, commit them).   If you're drunk, you shouldn't drive a car, even if the person you hit may be drunk too.  If you're drunk, you shouldn't ride a bicycle, making yourself defenseless.   Being foolishly defenseless obviously doesn't mean being to blame. 

Surely it would be completely backward to revise the way we handle double-drunk cases, holding both parties somehow "accountable" even though one killed the other, raped the other, maimed the other, and so on.  If the law professors aren't for that across the board (surely not), why are they for that in campus sexual assault cases? 

p.s.  Maybe I'm not understanding the professors' point--I couldn't find more about the Harvard policy on sexual assault and alcohol, or more about the law professors' objection, despite some energetic googling. If they're not saying men can't be accountable when women are also drunk, I'd love to know what they are saying.


Faust said...

"What's the problem with holding one party more culpable when both are impaired--provided that one was the sexual aggressor?"

This seems question begging to me. Isn't the entire question whether or not a particular person WAS a "sexual aggressor?" Isn't at least part of the issue how we define whether or not an "act of sexual aggression" was committed?

You posit a scenario where a woman doesn't "resist effectively" because she's drunk. What does THAT mean? What does it mean to "resist effectively?" What if she does not "resist" at all but does not give explicit consent? Is the man still a "sexual aggressor?"

I can't find the actual policy online (was it never published?) but an old article here:


highlights the issue.

To wit:

"The new policy, however, does not include one change that advocates have pushed for at Harvard. Some have called on the university to implement an “affirmative consent standard,” which generally means that sex would be considered consensual only if both parties actively agree to it. Harvard instead said it will adopt a standard of “unwelcome conduct of a sexual nature,” which means “essentially, conduct is unwelcome if a person did not request or invite it and regarded the conduct as undesirable or offensive.”

I find this paragraph indecipherable. The part about an "affirmative consent standard" is clear. If you don't get specific consent, then you are in violation of the standard, and could then presumably be classed as a "sexual aggressor."

However the second part gets hopelessly vague. Apparently a standard is adopted under which "conduct is unwelcome if a a person did not request or invite it and regarded the conduct as undesirable or offensive."

It seems to me that simply a REQUEST for sex (or coffee in an elevator say...) could fall under this definition.

So if THIS is what the policy is saying I can see why there may be an issue here.

In any case to the point of your post: how sexual aggression is defined is precisely what is at issue and as a consequence needs to be settled before your questions can be answered.

Here is a scenario:

Consent is required in order to initiate sex.

Any permission given while intoxicated is not to be considered a valid form of consent.

Therefore ANY sex with an intoxicated person should be regarded as an act of sexual aggression.

I don't know if the policy goes that far. But that would definitely meet the criteria of one party being held "more culpable" in an inappropriate way.

s. wallerstein said...

I don't quite understand the phrase "more culpable".

"More" than what or than who?

Does it mean that a drunken aggressor is more culpable than a non-drunken one, as a drunken driver might be considered more culpable than a non-drunken one in case of an accident?

That might make sense or maybe not. I'm not sure.

However, I'm still unclear about the meaning of "more culpable".

Faust said...

"More culpable" means (probably) "more responsible."

I take Jean to be asking something like "why wouldn't they be more responsible if they were the perpetrators of the act? Alcohol does not relieve you of responsibility with regard to the performance of bad actions."

But then the question moves the how the thresholds for judging those actions are defined.

Jean said...

Who is the aggressor comes into it because I would think if two people wind up in bed in a drunken way with no explicit discussion of who wants what, each could be held accountable for assaulting the other because of the absence of consent, but that's out of the question surely. We can't define assault in such a way that both parties could be guilty! To eliminate that possibility Harvard apparently labels one the guilty party when one (and only one) found the situation offensive or unwelcome, but that seems odd to me--it makes the misconduct turn not on what someone did but on how someone else felt about it. That leaves me thinking in a cases of genuine assault there must be...well...assault! One party has used some degree of force. The fact that they were both drunk doesn't exculpate the aggressor (which is my main point).

Re: not resisting effectively, I'm just talking about the perception that that the person who was forced may have been able to escape the situation if it weren't for the inebriation. I bring that up only to say it's immaterial, just as in the manslaughter case.

Perhaps the article I quoted and linked to doesn't do justice to the professors' point. They may not be denying that there can be sexual misconduct even when both parties are drunk. They are saying Harvard hasn't adequately defined the conditions under which this can happen. Will now follow your link. Thanks for that.

Faust said...

I do agree with your general point - inebriation is not a defense in all kinds of situations. If I run over someone while drunk driving, the fact that they were drunk is irrelevant.

I very much want to read the ACTUAL policy. Without that we are speculating on what these professors are reacting to. It does not appear to be available.

If I am being charitable I imagine they might be responding to something like this -

Let us say there are two individuals. At a party they both get drunk. There is some form of intercourse. However, neither one of them remembers it - it is just that there is some kind of evidence that it occurred. One of the parties decides that they are unhappy about this and accuses the other of rape. But:

Neither one remembers any of the events (verified by brainscan - there are no memories in there).

So the situation is black box. We don't know if consent was given or not. Assume there is no evidence of violence - only of sexual penetration of some kind by some means.

How do you adjudicate this case?

Is the accused more culpable BECAUSE they are accused?

Jean Kazez said...

Yes, I'd like to see the policy too. I have the feeling it was not well described in the passage I quoted. I agree with your point about that case, so if that's their point as well, objection withdrawn!

Faust said...

Here is another article:


The article records the concerns of Janet Halley

"The school, she argues, relies too much on what a victim says is a violation, and too little on what a "reasonable person might say," as federal law requires.

"When you drop the reasonable person requirement, then you're saying, 'No, it's just if the person wakes up the next morning and says [the contact] was unwelcome, we'll entertain a complaint about that.' And that squanders the moral authority of sexual harassment law," Halley says."

So again the suggestion the simply the complaint itself functions in a special way. In this context "reasonable person" sounds like a legal term of art. Therefore dropping it would have some specific weight or shift in process.

Janet Halley is also the author of "Split Decisions: How and Why to Take a Break from Feminism"

I leave the significance of that up to debate.

Jean Kazez said...

Aha! Things gradually becoming more clear. Provocative title, would like to have a look at that. I'm often surprised by what goes down in the name of feminism, especially considering I am a dyed in the wool feminist.

Alan Cooper said...

"if two people wind up in bed in a drunken way with no explicit discussion of who wants what, each could be held accountable for assaulting the other because of the absence of consent, but that's out of the question surely"

Even welcomed sex with someone incapable of informed consent is often considered rape. The only defence might be being unable to comprehend the nature of the crime due to a permanent state of mental incompetence, or to being in a state of temporary insanity oneself at the time of the offense (where presumably the temporary insanity defense requires that the insanity not have been wilfully induced by the perpetrator).

Drunkenness is normally considered a wilfully induced state and so not a defense for any crime - with the burden of proof of any claim to the contrary seeming to lie with the defendant (for some reason that I don't really understand). So I see no escape from the fact that two drunken people who have sex (with or without mutual enthusiasm) are both guilty of rape. And the fact that often no one is prosecuted does not alter the fact of actual guilt - at least as the law now stands in places where sex with the mentally incompetent is classed as rape.

Jean Kazez said...

Alan, I was thinking it was self-evident that two people couldn't be guilty of raping each other, but maybe you are right. What you say makes a lot of sense.

s. wallerstein said...

Maybe I'm missing something, but it's hard to see how two people can rape each other.

If I want to have sex with another person enough to rape them, then I seem to somehow consent to having sex with them, and if I consent to sex with someone, I can't be raped.

That is, a rapist consents to having sex with their victim and if the rapist then becomes the victim of their victim, then it seems that there was no rape at all.

I can imagine cases in which both parties forced the other to have sex in a form that the other did not want to participate in, but that isn't necessarily rape, is it?

Actually, that's a real question. What if in a consensual relation, one or both parties force the other to have sex in a form that one or both don't want? Is that considered rape? I have no idea.

Jean Kazez said...

I think what Alan is pointing out is that rape due to non-consent will occur when a person is mentally incompetent to consent, and both parties might be incompetent to consent. Technically, they would have raped each other, but it's another story whether anyone would prosecute. Presumably not. I take it that in a case where two people have been drinking and nothing at all makes the situation asymmetrical, they may technically have raped each other but nobody ought to prosecute. Something's got to make one, not the other, the exploiter, for it to make sense to prosecute. I'm pretty sure that makes sense.... But then again, someone might want to set me straight! I guess two people who have raped each other might both be a danger to others and that could be a reason to prosecute. What happens when two people have a fight and they both injure each other? Can they both be prosecuted for assault? I'm really not sure how these things work in the real world.

s. wallerstein said...

In Chile two or more people who have a fight can be prosecuted for "riƱa", which translates as "brawling".

A fight is a bit different than rape because we suppose that sex is normally a good thing that happens between two people giving each other pleasure, while fighting normally isn't seen as good.

In any case, life was simpler back in the good days in which rape was a man forcing a woman or another man to have sex with penetration against their will.

Alexander R Pruss said...

It doesn't seem that hard to come up with a hypothetical case where two people rape each other and each deserves prosecution. Suppose there is a pill that causes a person to immediately engage in sexual acts with the nearest person in the room. Then A slips such a pill into B's drink without B's knowledge and B slips such a pill into A's drink with A's knowledge. Lo and behold, each has raped the other.

And this is a predatory activity that should be criminally punished. It's a mere accident that the other person happened to be committing rape at the same time (cf. "you take your victims as you find them").

(One might cavil that this isn't rape, but only attempted rape, because each actually wants to have sexual relations with the other. However, desire does not entail consent. Moreover, we can suppose that the pill that A gets makes A perform a sexual act of a sort that A doesn't want to, and mutatis mutandis for the pill that B gets.)

Something similar could happen in cases of drunkenness. Take two people who do not know that the other would be willing to have sexual relations with them and who each plan: "I will get them drunk and then will have sex with them when they are too drunk to know what they're doing." And then each executes the plan.

This is a case of rape not essentially different from the two-pill case. It sounds to me like predatory behavior of a sort that in principle should be criminalized, though there may be evidential problems.