Enacted by lawmakers after extensive debate, Massachusetts'
definitions of rape and sexual assault safeguard the right to be free
from sexual violence, while protecting sexual freedom and privacy
rights.

Dear Faculty Council member:

The rape definition most suitable for student life at Harvard is found
in Massachusetts law.  Enacted by lawmakers after extensive debate,
Massachusetts' definitions of rape and sexual assault safeguard the
right to be free from sexual violence, while protecting sexual
freedom and privacy rights from the infringement that would result
from applying the Date Rape Task Force's vastly over-inclusive and
sexually-discriminatory rape definition.

Massachusetts law defines rape in relevant part as "Sexual
intercourse...by a person with another person who is compelled to
submit by force and against his will or by threat of bodily injury."
Annotated Laws of Massachusetts, chapter 277, section 39.  "Indecent
assault and battery," banned in chapter 265, section 13H, is defined
by Massachusetts courts to include any sexual contact the perpetrator
knows is unwanted.  See Commonwealth v. Mosby (1991).

Massachusetts law on rape and sexual assault proscribes roughly the
same conduct as the rape definitions proposed by the Civil Liberties
Union at Harvard and the Undergraduate Council, although
Massachusetts classifies as indecent assault and battery some conduct
which is defined as rape by the UC and the CLUH.  Unlike the
definition of the Date Rape Task Force, Massachusetts law does
not restrict partners' right to engage in consensual sex.

The Date Rape Task Force Report classifies most consensual sex between
a couple as rape by the male, since most sex acts between willing
partners do not meet the Task Force's requirements of "expressed
consent" and "reasoned consent."  If adopted, the Task Force's date
rape definition will be the most far-reaching restriction of
consensual sex imposed by any secular university in America.

The Task Force deems any sexual act engaged in by a couple as rape
unless it occurs after an explicit "yes" on the part of the woman,
even though most happily-married couples have often made love
together without explicitly discussing beforehand whether to have
sex.  Rape, according to the Task Force report, includes "any act of
sexual intercourse which occurs without the expressed consent" of the
complainant.  "Expressed consent" has been defined narrowly by Task
Force members like co-chair Janet Viggiani to mean a "yes" following
a verbal request.
  
The definition also classifies as rape any lovemaking that occurs
without "reasoned consent," a requirement Viggiani says may be
violated if the complainant is under any influence of alcohol, even
if she is not legally intoxicated.  Thus, if a couple shares a glass
of wine and then has sex, the male can be defined by the Task Force
as a rapist.  The proposed rape definition applies not only to
vaginal intercourse but also to oral sex and any other act involving
penetration, no matter how slight.

Adopting the Task Force definition would likely violate students'
rights under the Massachusetts Civil Rights Act, both because it
enforces sex discrimination by punishing males for consensual sex
engaged in jointly by the couple and because it may violate privacy
rights by restricting the ways in which students may make love.
Since the definition classifies as rapists men who are legally
innocent of rape, its application in disciplinary proceedings may
also be defamatory, in placing a rape conviction on the records of a
student whose only offense was to engage in consensual sex not
preceded by an explicit "yes."

An explicit "yes" is unnecessary to demonstrate consent.  Sex is often
the climax of a long progression of steadily escalating intimacy in
which each partner plays an active role, not a sudden act that calls
for prior discussion.  Moreover, men and women in sexual
relationships learn their partners' preferences, enabling them to
tell from context what their partners want.

An explicit "yes" requirement threatens people in sexual relationships
with disciplinary action should they experience an acrimonious
break-up, permitting distraught ex-lovers to accuse their partners of
"date rape" for consensual sex that occurred in the heat of passion
without the formality of an explicit "yes."

A Crimson editorial in May justified the explicit "yes" requirement
by making the rather sexist claim that "women are psychologically
incapable of  saying no" to sex.  But women and men say no to sex
everyday, and few people are more articulate about expressing their
feelings than Harvard students.

An explicit "yes" is not the ideal in sex.  The most mutually-desired
sex happens when both partners are so obviously eager for sexual
relations that each would find it redundant and absurd to ask the
other for explicit permission.  Instead of one party propositioning
the other, both partners demonstrate their enthusiastic consent more
powerfully through active participation in lovemaking.

By contrast, grudgingly consensual sex acts, like those between
a prostitute and her clients, are preceded by explicit discussion and
agreement, because one party wants sex, while the other consents only
to obtain money or other benefits.  A verbal request followed by a
"yes" may reflect an imbalance in sexual desire between the partners
rather than deep mutual desire.

The proposed definition probably violates the privacy rights
guaranteed students by the Massachusetts Civil Rights Act.  The MCRA
is an unusually broad civil rights law which applies civil liberties
guarantees like freedom of speech and privacy not only to the
government but also to private institutions.  In Massachusetts
General Laws, chapter 12, sections 11H and 11I, the MCRA says that an
institution such as a university may not interfere, or attempt to
interfere, with the exercise of rights secured by the Constitution or
the Massachusetts Declaration of Rights through "threats,
intimidation, or coercion."
 
Among these secured rights are freedom of speech and the right to
privacy.  Under the MCRA, a court in 1986 ordered Boston University
administrators to stop removing divestment banners hung by BU
students, saying that BU could not restrict the free speech rights of
its students.  Abramowitz v. Trustees of Boston University.  Privacy
rights are similarly applicable against universities.  See Bally v.
Northeastern University (1989).

Privacy rights have protected private, consensual sexual
relationships against any restrictions in Massachusetts since 1974,
when the sodomy laws were invalidated on the basis of privacy rights
found in the Massachusetts Declaration of Rights.  Prior to 1974,
vindictive ex-lovers and police had periodically prosecuted partners
for engaging in oral or anal sex.

Massachusetts courts recognize as consensual many sexual unions which
occur without any explicit "yes."  Nowhere in the U.S. does consent
require an explicit "yes"; most states recognize all sex that occurs
without violence or expressions of unwillingness as presumptively
consensual.  Consent has traditionally included not only verbal and
non-verbal expressions of willingness but also passive assent.
Therefore, the Task Force definition infringes on students' freedom
to engage in sexual acts which are understood as consensual by
Massachusetts law.

The definition may also be illegal because of its sex discrimination.
Task Force member Naomi Hamburg told me that if a man and woman make
love together silently, the man is guilty of "rape" under the Task
Force definition, because he is the one whose body achieves the
physical "penetration" referred to later in the rape definition.
Presumably, the man would be deemed guilty of "rape" even if the act
resulting in penetration were initiated by his partner, for example,
if she performed oral sex on him.

In defining the male, rather than the initiator of the act, as
the offender, and in punishing the male for perfectly legal acts to
which there was mutual consent, the Task Force definition may violate
Massachusetts laws banning sex discrimination in the programs and
procedures of colleges and universities.  In recent years,
Massachusetts courts have overturned laws which place
different responsibilities on the sexes.

If the Administrative Board applies it to men who engage in consensual
sex, the proposed rape definition will prompt lawsuits against
Harvard for defamation.  Harvard may not have the right to define
violators of its policies as committers of "rape" if they engage in
behavior which does not constitute rape either in law or in common
usage.  Statements on an innocent student's scholastic records
that he is guilty of "rape" could constitute libel.

To promote sexual equality and preserve privacy rights, I urge the
Faculty Council to adopt definitions modelled on Massachusetts law
and to reject the definition proposed by the Date Rape Task Force.


Hans Bader, 2L