Few things cause fear and loathing in academia more than the words, “sexual assault.” The definition of rape and sexual assault has undergone a monster shift in the past generation, with the explanation of “rape culture” to justify its near-total divorce from anything remotely resembling doctrinal adherence. Rape happens whenever a woman says it happens, and if you disagree, you are a misogynist and a rape apologist.
James Taranto challenged the feminist orthodoxy in his Wall Street Journal column, and was immediately attacked for doing so. No doubt he expected as much. After offering the requisite anecdotes, Taranto taps a New York Times article by Michael Winerip which ultimately makes the point the genre of rape and sexual assault stemming from a drunk boy and drunk girl could be avoided if others intervened before things went too far.
It’s a “sensible” point, given the fluctuating definition of rape which includes post hoc regret. Specifically excluded from this discussion is rape by force and sex with a person who is so intoxicated that they are incapable of consent, even though the latter isn’t always as easy to determine as some would have it. Which in part gives rise to the problem:
Winerip notes that between 2005 and 2010, “more than 60 percent of claims involving sexual violence handled by United Educators”–an insurance company owned by member schools–“involved young women who were so drunk they had no clear memory of the assault.” We know from Sgt. Cournoyer that the accused young men typically are drinking to excess, too. What is called the problem of “sexual assault” on campus is in large part a problem of reckless alcohol consumption, by men and women alike. (Based on our reporting, the same is true in the military, at least in the enlisted and company-grade officer ranks.)
Which points to a limitation of the drunk-driving analogy. If two drunk drivers are in a collision, one doesn’t determine fault on the basis of demographic details such as each driver’s sex. But when two drunken college students “collide,” the male one is almost always presumed to be at fault. His diminished capacity owing to alcohol is not a mitigating factor, but her diminished capacity is an aggravating factor for him.
It strikes me that that avoids the thrust of the problem: “rape culture” holds that men rape women, and therefore men, and only men, are culpable. In the extreme, feminist nutjobs contend that all sex is rape by men. Less extreme is the view that consensual sex can occur, but is subject to post-coital regret. If the woman decides afterward that it wasn’t a great idea, then what would have appeared to be consensual sex at the time becomes rape after the fact.
Taranto notes the intellectual hypocrisy of this view:
One might argue, as City Journal’s Heather Mac Donald does, that there are reasons to hold men in particular to high standards of behavior:
A return to an ethic where manhood consisted of treating women with special courtesy would be a victory for civilization, not just for college co-eds. The chivalric ideal recognizes two ineluctable truths: men and women are different, and the sexual battlefield is tilted in favor of males. On average, males are less emotionally affected by casual sex; if given the opportunity for a series of one-off sexual encounters with no further consequences, they will tend to seize it and never look back. . . . The less that a culture signals that men have a special duty toward the fairer sex, the more likely it is that the allegedly no-strings-attached couplings that have replaced courtship will produce doubts, anguish, and recriminations on the part of the female partner and unrestrained boorishness on the part of the male.
But as MacDonald notes, contemporary feminists “embrace the Victorian conceit of delicate female vulnerability while leaving out the sexual modesty that once accompanied it.” That they do this in the name of equality is downright Orwellian.
The gender politics of rape culture is more than I can tolerate, so I leave it to young men and women to decide whether this is really how they want their lives to be ruled. But when boys are prosecuted, criminally or by college tribunal, for rape or sexual assault because they were half a pair of kids who drank some alcohol and then engaged in conduct that the other of the pair decided wasn’t her best idea the next day, it can’t be ignored.
FIRE raises the Stanford University (which, it’s important to note, bears the true name of Leland Stanford Junior University) official definition of “consent” to make the point:
Stanford’s definition of consent to sex imposes a concept that is foreign to most people’s idea of adult consent and inconsistent with California state law. Stanford policy states that sexual assault occurs “when a person is incapable of giving consent. A person is legally incapable of giving consent . . . if intoxicated by drugs and/or alcohol.” In other words, any sexual activity while intoxicated to any degree constitutes sexual assault. This is true even if the activity was explicitly agreed to by a person capable of making rational, reasoned decisions, and even if the partners are in an ongoing relationship or marriage.
Of course, the problem only arises the next day, since a college girl who wakes up happy with the person sleeping next to her had a wonderful night. A college girl who is less than pleased with her choice has the option of shrugging it off or accusing the boy of rape. The college boy has no options at all.
For the purpose of societal condemnation, a legal definition of what is sufficiently culpable to toss a boy from college or put him in prison can be left to debate, even if it means that those who don’t embrace feminist orthodoxy are subject to being called mean names. For the purpose of criminal or academic prosecution, it cannot. There must be a line that provides notice to a college boy that by crossing over it, he will be a criminal.
If people really want that line to be defined as sex with a girl who has had any alcohol or drugs, that she is such a delicate flower that she is absolved of all personal responsibility for her choices, that she gets to make the decision twice, once before hand and again the next day, after the fact, then pass a law to provide the requisite notice to college boys and spell out what they must not do.
But be wary that not all college girls will be happy when boys run from them like the plague because they had a drink at a party. And some, perhaps most, won’t like the dynamic this insanity will impose on the relationship between the genders that has survived long enough to get us to this point in human history, even though many have had occasional regrets.
H/T Walter Olson at Overlawyered