Analysis: Harvard Uses Previous Policies for Some Sexual Assault Investigations

When Harvard rolled out a new policy defining sexual harassment in September 2014, it took a largely unprecedented step. For the first time, the University defined sexual harassment the same way at each of Harvard’s schools, replacing definitions that were, in some cases, as many as 20 years old.

A new office—the Office for Sexual and Gender-Based Dispute Resolution—began investigating formal complaints from each of Harvard’s schools and enforcing the newly centralized policy. But for students, faculty, or staff who filed complaints about conduct that occurred before September 2014—when the new policy went into effect— the investigative office uses the previous, school-specific policies to define sexual harassment and sexual assault.

“ODR applies the School or unit policy that was in effect when the incident occurred but uses the procedures that are currently in effect,” Mia Karvonides, the University’s Title IX officer, wrote in an email. “The policy in effect at the time the alleged incident occurred is the one the Respondent was on notice of.”

Since it opened in September 2014, ODR has received 34 formal complaints, 13 of which investigated conduct that occurred before September 2014, according to Karvonides. In an email Tuesday, Karvonides declined to detail how many of those cases ODR investigated using old policies, writing that such data would require “complex analysis of case files.”

Karvonides added that the different policy standards have not affected the results of any investigations.

“We have not had an outcome that would be different under an old school-level policy versus the new policy,” Karvonides wrote Tuesday.

Harvard currently defines sexual harassment, a term that includes sexual assault, as “unwelcome conduct of a sexual nature” that “is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities.”

Previously, each of Harvard’s schools could craft their own policies defining sexual assault. The previous Faculty of Arts and Sciences policy, adopted in 1993, provided definitions for sexual misconduct that included the categories of rape, indecent assault and battery, and “persistent unwanted sexual contact or conduct.”

The FAS policy defined rape as “any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury.” Before September 2014, the College’s Administrative Board, rather than a central office, investigated complaints of sexual harassment and sexual assault between students at the College.

Harvard overhauled its sexual assault policies and procedures in 2014. That April, the Department of Education launched an investigation into Harvard’s compliance with Title IX, and a few months later, in July 2014, Harvard unveiled its new policy and procedures that more closely conformed with federal guidelines.

Although the new policy is in effect, students can only be held liable for school policies that existed when the conduct occurred, a practice that is common when federal legislation changes.

Still, Jessica R. Fournier ’17, a member of Our Harvard Can Do Better, a student activist group that focuses on Title IX compliance and sexual assault prevention, said the continued application of the old policies is troubling.

“That old policy that Harvard says is in the past is still being implemented in some cases, and I don’t think that’s something that students know,” Fournier said. “I certainly don’t think it’s something that they tell students, and I think students should know about that.”

A federal investigation into the College’s Title IX compliance remains ongoing.