For the last couple of years, any discussion on sexual assault has required a discussion of the way colleges handle the issue, and the national consensus has been that they don’t handle it particularly well. There are dozens of universities currently under investigation by the Department of Education for their sexual assault policies. It is within this context that Harvard University, one of those schools under investigation, unveiled its new sexual misconduct policies.

The new policies have received significant backlash from parts of the Harvard community, particularly a group of Harvard Law professors. An open letter was released by the professors decrying the new policies.

They have many complaints with the policies, but overall they argue that the new policies are far too expansive and stack the deck against the accused. They claim that the policies do not allow due process or fairness. They are also concerned that only one office will be evaluating the complaints, and that that office cannot be guaranteed to be impartial because in addition to “trying” the cases, they are the ones who investigate the cases. Mainly they are worried about the fact the policies seemed to them, to be one-sided, saying:

Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

The law professors also note the fact that many parts of the Harvard community were not consulted in the drafting of the new policies — including the faculty of the law school.

Concern has also been brought up over the fact that the policies changed the burden that needs to be met. There are varying degrees of burdens — “beyond a reasonable doubt” is the one we’re probably all the most familiar with from hearing it in the courtroom. There are lower burdens though, and Harvard’s sexual misconduct policies used to be based on one of them: “clear and persuasive.” The new rules have shifted the policies to an even lower burden: “preponderance of the evidence.” What preponderance means is really just more likely than not — more likely than not that someone broke a particular sexual misconduct policy.

To say I have incredibly mixed feelings about the entire thing would be an understatement. On one hand, I’m the kind of person who likes to believe in justice. Everyone does deserve a fair trial, no matter how heinous the crime or convincing the evidence.

That being said, the way in which sexual assault has been handled at some of our nation’s universities has been reprehensible at best. Policies do need to be changed, we’re all on the same page here. The real question that needs to be answered now is how?

On the other side of the country, California thinks maybe it has the answer. The state just instituted a new series of policies for its public schools that have been summed up under the phrase “yes means yes.” The law states:

Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.

This law has certainly received less backlash than Harvard’s, although some are still worried that it’s too harsh on those accused of sexual misconduct. The disconnect puts us in an interesting position — what’s too far and what’s not far enough? I don’t think there’s a perfect answer to that yet. There’s a whole treasure trove of imperfect answers out there: the policies and actions of the schools that are under investigation.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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