Monday, December 08, 2014

A Time for All Reasons

I've mentioned before the essay I once taught, an essay about how we define "rape."  It gave no answer, but gave examples of rape from the "stranger in the bushes" assault everyone would immediately agree was non-consensual sexual intercourse, to the college students who got drunk, slept together, and later she "withdrew" her consent and he was denounced on the campus (although never charged legally) as a "rapist."

That latter example was meant to be extreme, a situation almost at the opposite end of the spectrum from the stranger in the bushes.  Per this article by Emily Yoffe at Slate, it is that latter example that is threatening to become the norm.

Granted that's a tricky thing to say, given that the article carefully details why most college campus rape studies don't lead to the conclusion rape at college is now epidemic and every woman there faces a 1 in 5 chance of being raped.  Still, she cites two cases, in detail, where women sleep with men and later, often much, much later, decide the encounter was non-consensual and that, in fact, they were raped.  It's not an allegation that will stand up in court (for one thing the physical evidence of a sexual encounter is long gone; for another, good luck convincing a jury that you were a drunk college girl and not in the least responsible for taking your clothes off and only deciding days later it wasn't such a good idea).  But it is an allegation that ruins the lives of college students, especially the alleged rapists, who often find they have to leave school and can't enroll anywhere else, because the allegation follows them and no college wants to deal with that again.

And given the lawsuits colleges can face, from both the alleged victims and the alleged rapists, who can blame the colleges?

This seems to be the curious result of the idea all persons should have sexual freedom when they get to college.  One of the stories Ms. Yoffe details involves a co-ed dorm, a concept absolutely alien to campus life when I was in college in the 70's, and alien precisely because the colleges then acted in loco parentis, and kept boys from having free and easy access to girls (well, in some dorms, and of course only somewhat).  Now the colleges have to protect the sensibilities of women:  the alleged rapist in one story has to leave his dorm, and in fact is accused of "retaliatory behavior" because he is seen, later, near the dorm (where the alleged victim still resides).  Any sex that occurs on college campuses is apparently subject to endless review and reconsideration, and anyone who sleeps with someone is entitled to decide it was non-consensual anytime later, although of course only women are entitled to make this claim.  Men, apparently, are incapable of having regrets; women are incapable of deciding when they should have sex.

That's the upshot, anyway.  A man who decides he didn't really consent to sleep with a friend is either a wimp (you want to be the guy telling all your male friends you shouldn't have slept with someone when you had the chance?), or a liar (in one case Yoffe details a professor who becomes involved in the investigation of the event considers "disingenuous" the efforts of the man to express regrets that he slept with a friend and took her virginity).  Women are free to have sex whenever and wherever they want to ("Slut shaming" is the worst thing you can do to a woman), but also free to decide all sex is rape and all consent is revokable retroactively without limit.

Interestingly, part of this problem is attributed to the Department of Education, which under Title IX has insisted schools use a "preponderance of the evidence" standard, rather than the stricter (and once more common) "clear and convincing evidence" standard (both still lower than the criminal standard of "beyond a reasonable doubt"), and argued this is still a safe standard because no college student investigated under the lower standard faces imprisonment, so no real harm is done.  Of course, that's the favored argument of those who say we should convict alleged rapists of heinous crimes in the press and on the internet:  it's not like we can throw them in jail, after all.

But we can make sure college students never get to go to college.  Justice!

No; punishment.  Which is the other side of this article, and a trickier one still to discuss.  One of the cases Yoffe investigates and discusses in detail involves not only a denial of due process, but a denial of any process at all.  It calls to mind my experience representing people in a setting where there is no legal process:  it's an experience akin to Alice's in the court of the Queen.  It also calls to mind the famous speech of Thomas More from "A Man for All Seasons," the one about giving even the devil his due, because if you destroy all the laws of the land in order to get to the devil, and then the devil turns on you, where is the law to protect you?

One of the consequences of the "free love" movement is, indeed, that we don't know what we're doing anymore.  As I said before, we need to be able to draw a line on this question of consent, otherwise all sex is rape, or only "forcible sex" is rape.

And then we're down to arguing about how much force was used.....


  1. Rmj, for ages, rapes were not reported, because women knew nothing would be done, at best, or that they would be publicly shamed, or worse, and nothing would be done. Now women are now speaking out about force. Perhaps, only perhaps, the pendulum may have swung too far toward blaming men for their actions when no force was involved. If that is the case, perhaps at some time in the future, the pendulum may come to rest at a place you see as fair.

    Why not give society a chance to reach an equilibrium, in light of the aeons of past injustice? Are there really that many men having their lives ruined because of false accusations? It seems to me that women still pay a high price for accusations, even those that are true, and I don't see a lot of women receiving great benefit from false accusations. What am I missing?

  2. How many innocent men must pay? In what coin?

  3. I'm not seeing as many innocent men paying as you seem to see, but perhaps we look in different places. Innocents often pay, and few notice.The stories in the article in Slate are anecdotal, and the article seems as scare-mongering for men being falsely accused of rape on college campuses as the stories that overplay the danger for women of being raped on college campuses.

    You and I mostly agree, and I wonder at your series of posts on innocent men accused of rape. Perhaps, it's because I'm a woman, or perhaps it's because I don't have a background in the law that we see different things differently. Or perhaps it's because I don't read Slate.

  4. Actually, at least one story in Slate is from legal pleadings; which are not testimony or evidence, but aren't necessarily anecdotes, either. And a few stories of innocent men accused of rape does not diminish the seriousness of the crime.

    It means a process needs to be in place to evaluate such claims. Granted, the criminal justice system doesn't do a good job of that, but the solution is to correct the criminal justice system (I remember this discussion taking place in the '70's, but apparently the effort just petered out, because the current discussion acts like that history never existed).

    The problems detailed in the Slate article mostly point out the failure of universities to provide a process that ensures fairness. I'm not surprised they don't, actually: truly fair process (not even "due process," just a fair one to all concerned) is extremely complicated and difficult, and takes people dedicated to just that job.

    We call them "courts."

    University professors and administrators are poor substitutes for judges and prosecuting attorneys and police investigators. That's largely my point: we are setting up kangaroo courts to get convictions and, in many cases involving colleges, to regulate sexual practices we, as a society, gave up regulating 40 years ago (again, in the '70's. Ah, yes, I remember it well....).

    The rape statistics bruited about call to mind gang-rapes (like the RS UVA article) and acts of shocking brutality. How many of those rape cases, however, are like the one in the Yoffe article: a girl invites herself into the boy's dorm room for the night, gets into bed with him, starts kissing him, asks him if he has a condom, and then engages in sex, only to wake up the next morning and decide maybe that wasn't so smart?

    In my college life, the girl in the dorm room would have been a violation. But it was a co-ed dorm, so now that's okay; well, until Mom finds her diary and reads about her sex and drug life in college (also what happened in that story). The charge of rape came up in the summer, months after the night of passion.

    So when we hear "rape" is epidemic on college campuses, we have to ask what "rape" we're talking about. Not to excuse the guilty, but to be sure we don't blame the innocent.