Letters to the Editor
The Salient

Dear Editor:

Politically correct colleges restrict free speech and sexual freedom
in ways that even Jesse Helms and Jerry Falwell wouldn't dare.
Expression of politically-incorrect views on issues of sexuality and
gender can now be punished as "sexual harassment" on many
campuses and certain varieties of consensual sex are now defined by a
few colleges as "date rape."

    The Spring 1992 report of the Harvard College Date Rape
Task Force embodies the politics of sexual repression.  Its
radical definition of "date rape", which classifies most consensual
sex between a couple as rape by the male, will be the most
far-reaching restriction of consensual sex by any secular private
college in America if it is adopted by the Faculty Council later this
Fall.

    The Task Force "date rape" definition is so repressive that
it has already been condemned as fanaticism in a July Washington
Post editorial by Cathy White, a self-described feminist.  In the
best interests of Harvard, the Faculty Council should reject
the proposed definition and speak out against the bigotry and
sexual intolerance its framers displayed in writing it.

    The Task-Force defines 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" is
defined narrowly by Task Force members like co-chair Dean 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 that Viggiani says may be
violated if the complainant is under any influence of alcohol, even
if she is not legally intoxicated.  If a couple shares a glass of
wine and then has sex together, 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.

     Adoption of the Task Force definition would likely
violate students' rights under the Massachusetts Civil Rights Act,
both because it violates privacy rights by restricting the ways in
which students may make love and because it enforces sex
discrimination by punishing males for consensual sexual relations
engaged in jointly by the couple.  Since the definition classifies as
rapists men who are legally innocent of rape, its application
in disciplinary proceedings may also be defamatory, if a
rape conviction is placed on the records of a student whose only
offense was to engage in consensual sex that occurred without an
explicit "yes."

     Requiring an explicit "yes" to demonstrate consent is
legally unprecedented and sexually repressive and unfair.  Sex is
often the climax of a long progression of steadily escalating
intimacy in which each partner alternately initiates and acquiesces
in deeper intimacies, not a sudden act that requires prior
discussion.  Moreover, men and women involved in sexual relationships
learn the intimate preferences of their partners.  As a result, they
know without discussion when their partner desires sex, and can
often tell in advance from context whether their partner will welcome
a particular sexual act.  For example, the former girlfriend of
a hallmate of mine would sometimes awaken him through
oral stimulation, evincing her desire for intercourse, which
generally ensued between them without discussion.

     But if consent were arbitrarily redefined to require an request
for sex followed by an explicit "yes", people in sexual relationships
might be threatened with disciplinary proceedings during the acrimony
of break-up, allowing a distraught ex-lover to accuse her partner of
"date rape" for consensual sex that occurred without an explicit
"yes."

     A Crimson editorial in May justified the proposed
definition's explicit "yes" requirement by making the absurd and
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.  I have read extensively on rape law and the dynamics of
rape while at the Law School, including more than 50 rape shield and
other rape cases, and have encountered plenty of examples of women
saying "no", but not a single real-life example in which a woman
claimed she was unable to say "no" absent prior physical
intimidation.

     Not only should an explicit "yes" not be required by Harvard, it
should not even be recommended.  The most mutually-wanted of sex acts
are those in which both partners are so obviously eager for sexual
relations that each partner would find it redundant and absurd to ask
the other for explicit permission.  Instead of one party
propositioning the other, both partners signify their consent more
powerfully by their mutual participation in lovemaking.

     By contrast, grudgingly consensual sex acts, like those between
a prostitute and her clients, are almost always preceded by explicit
discussion and verbal agreement, because one party wants sex, while
the other merely puts up with it to obtain money or other benefits.
A verbal request followed by an explicit "yes" often reflects an
imbalance in sexual desire between partners, not the ideal in which
both partners deeply want it.  Rather than disrupting the rhythms of
a couple's lovemaking by requiring explicit discussion, Harvard
should recognize that an explicit "yes" is not the ideal.

     When I told my summer housemate, a Virginia Beach
court reporter, about the Task Force definition, she was amazed.
She could not think of anything more awkward than being asked
pointªblank for sex by a would-be partner, as the Task Force requires
of men if they are to avoid violating the policy.  The vast
majority of American women and men would undoubtedly share her
disapproval of the proposed definition.

     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.  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."
 
     Under this law, 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.  Similarly, another court held in 1989
that students had privacy rights that Northeastern University had
to respect, allowing Northeastern to test student athletes for
drugs only because it had a governmentally-recognized
"compelling interest" in drug-free athletics that Northeastern had no
other way of achieving.

     Privacy rights have protected private, consensual
sexual relationships against any restrictions since 1974, when
the Massachusetts Supreme Judicial Court overturned the sodomy laws
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 United States
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 acquiescence.  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.  The Massachusetts courts
have been very hostile in recent years to 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 has no right to
define violators of its policies as committers of "rape" for engaging
in behavior which does not constitute rape either in law or in
common usage.  Statements on a innocent student's scholastic records
that he is guilty of "rape" would constitute libel; public
accusations would be slander.

     Legal digests show that no type of disciplined student
is statistically more likely to sue a private college than a
student convicted by administrators of rape.  If Harvard expels a
student for engaging in consensual sex, merely because one partner
failed to say "yes", Harvard will likely become embroiled in a
lawsuit.  To ensure a court challenge to the definition, I will offer
to pay the first $1000 in attorney's fees incurred by any student
who brings a lawsuit after being punished by Harvard for engaging
in consensual sex.

     The Faculty Council should promote sexual equality and
protect students' rights to engage in consensual sex free from
intimidation by rejecting the Task Force's proposed rape definition.

    Instead, Harvard College should define rape as it is defined
in Massachusetts law, sex accompanied by force or threat of
bodily injury, and define sexual assault to include any sexual
contact a perpetrator knows is unwanted by the victim.

    To ensure fair hearing for accused students, Harvard must
also act quickly and decisively to remove from the Administrative
Board Task Force members such as Dean Viggiani.  Viggiani's role
in drafting a "date rape" definition that is discriminatory,
sexually repressive, and potentially illegal is incompatible with
the qualifications for service on a body that was created to
guarantee due process for students regardless of sex.

Sincerely,
(Feel free to edit liberally to meet space limitations).

Hans Bader, 2L (493-9075)