Letters to the Editor (This is a revised edition of a letter The Salient submitted earlier on September 26.) Dear Editor: Sexual freedom and privacy rights are under assault at Harvard. The Spring 1992 Harvard Date Rape Task Force Report, awaiting approval by the Faculty Council, advocates a radical redefinition of rape that classifies most consensual sex between a couple as rape by the male. 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. So unusually repressive is the proposed definition that it has already drawn condemnation in the national media. A July Washington Post editorial by Cathy White, a self-described feminist, cited it as evidence of the increasing fanaticism of many radical feminists. In the best interests of Harvard, the Faculty Council should reject the proposed definition and speak out against the bigotry and sexual intolerance it reflects. 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 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 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, 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 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. An explicit "yes" is not the ideal in sex. The most mutuallyªdesired 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 through active mutual participation. 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 interest 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. 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 state-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 Massachusetts' highest 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 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. 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. Citing the often inadequate safeguards in campus disciplinary procedures, students expelled for allegedly committing rape sue colleges more frequently than any other type of disciplined student. 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 am willing to pay the first $1000 in attorney's fees incurred by any such student who sues. The Faculty Council should promote 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, Hans Bader, 2L