According to the handbook, absence of positive consent is not enough to show sexual assault took place, Ellison says.

“Unwillingness may be expressed verbally or physically,” the handbook reads. The policy adds that sexual activity with a person “incapable of expressing unwillingness”—due to the influence of alcohol or drugs, for example—is also considered sexual misconduct.

However, Pforzheimer House Resident Dean Lisa Boes—who, like all resident deans, sits on the Ad Board—says that this policy is not as inclusive as it should be to encompass the broad spectrum of circumstances surrounding sexual misconduct.

Boes contrasts Harvard’s policy with that of Brandeis University, which defines sexual misconduct as any activity occuring without the “explicit” and “clearly communicated” consent of both parties involved, which shifts the burden of proof to the accused rather than the complainant.

In addition, the Brandeis policy states that evidence of drug and/or alcohol consumption “may raise a presumption of physical and/or mental incapacity,” further broadening the definition of sexual assault.

At Harvard, Boes says, the Ad Board often engages in discussions as to whether or not the accuser was incapable of providing consent due to alcohol consumption—which plays a role in almost every sexual assault at Harvard, according to Ellison.

Boes says that in her experience, the Ad Board often takes examples of the victim being able to carry out a task, such as sending a text message, as evidence that he or she was capable of providing consent.

“I personally believe this is a low standard of conduct for Harvard students,” Boes says. “I think Harvard can do better.”

Howell says she, too, feels that the board’s decision is sometimes restricted by the rules of the Faculty.

“There are moments when what the board is forced to do by Faculty rules feels incommensurate with the outcome I would like to see,” she says.

While some Ad Board members question the Harvard’s definition of sexual assault, Ellison says there has been no formal inquiry into changing the College’s definition of sexual assault.

“There has been discussion at the Board and, I believe, among some members of the faculty, concerning the definition, but I am uncertain if that will end up in a reexamination of the policy,” he wrote in an e-mail.

THE RIGHTS OF THE ACCUSED

While some Ad Board members and other administrators worry that sanctions are not always given when they are warranted, some attorneys involved with the process and Faculty members say they are concerned that students accused of sexual assault are not being treated fairly.

Harvey Silverglate, a lawyer who has been employed by dozens of students going before the Ad Board since 1969, is a strident opponent of the process, going so far as to call it an “evil system.”