University Committee Considers Adopting Affirmative Consent Standard for Title IX Policy

A University-wide committee tasked with reviewing Harvard’s Title IX policy has discussed adoption of the “affirmative consent” standard—a standard the University has consistently rejected—in conversations about re-wording the policy.

The committee, chaired by Biology professor and former Dean of the College Donald H. Pfister, began working in January 2016 to evaluate the policy Harvard uses to define sexual harassment and assault and determine whether to revise it. At its meetings, the committee has addressed perceptions of the policy, examined adjudication procedures, and “had a discussion on affirmative consent,” Pfister said.

“I think a number of us know that that word—consent—is an important part of how students are thinking about this issue,” Pfister said.

Affirmative consent is a standard that requires all parties to affirmatively agree to engage in sexual activity. A number of universities have adopted the requirement—considered the highest standard of proof—as part of their Title IX policies, including all California universities and those in the State Universities of New York system.

“I think it’s fair to say that the idea of consent or affirmative consent is the background culture students are aware of and recognize,” Pfister said.

The current policy, which Harvard adopted in 2014 as its first University-wide Title IX policy, uses the “unwelcome conduct” standard and does not include the word “consent” in its definition of harassment or assault. The policy defines conduct as unwelcome if one party “did not request or invite it” and “regarded the unrequested or uninvited conduct as undesirable or offensive.”

After Harvard unveiled the policy in 2014, undergraduates criticized the University for not involving students in its formulation and called on the University to adopt the affirmative consent standard. Students have also raised concerns that the language of the policy creates confusion about its meaning, Pfister said.

Harvard convened the Title IX review committee in the fall of 2015 to examine the policy’s implementation and potentially recommend changes. Its membership consists of faculty and staff from across Harvard’s schools, as well as two undergraduates and two graduate students.

Over the past year, committee members have met with members of the student group Our Harvard Can Do Better, Title IX coordinators, resident deans, counselors, and representatives from the Office of Sexual Assault Prevention and Response. They have also read several sexual assault cases provided by former Title IX Officer Mia Karvonides and studies policies at peer institutions, Pfister said.

Pfister said the committee’s work has focused largely on students and ensuring the language of the policy is clear. “We’ve been very student-oriented on the committee,” Pfister said.

The committee will eventually issue recommendations to the University, although Pfister said he is unsure when that will occur and what form those proposals might take. Pfister declined to comment on whether the committee has specifically considered amending the policy to include affirmative consent.

As the committee works to review the policy—and potentially change it—schools across the University have implemented a number of sexual assault prevention trainings in response to recommendations issued by a University-wide task force last March. A re-wording of the policy would require these trainings to be updated to reflect the new language.

Pfister emphasized that the committee’s work will continue even after it delivers its initial recommendations.

“In a way we’re feeling we’re kind of watch dogs, looking at and continuing to think about these issues,” he said.

—Staff writer Claire E. Parker can be reached at claireparkerdc@gmail.com. Follow her on Twitter @ClaireParkerDC.