As The Definitions of Rape Slide Down The Slippery Slope (Update)

It’s not like I didn’t tell you so. I’ve been harping on definitions, much to the chagrin of those who get headaches from all that legal mumbo jumbo, for the nouvelle crimes that have become ubiquitous.  Many have wondered why so much real estate here has been dedicated to questions about how sex on college campuses has become untethered from any meaningful definition.  This is why.

With an effort also underway by the American Law Institute to reconsider when an assault becomes rape, some legal experts predict that changes to criminal laws in many states may not be far off.

Indeed, with academics throwing around words like “rape” and “sexual assault” as if they were humpty dumpty, they are bringing up baby in a world where these words have come to mean whatever individuals choose them to mean.  Who cares if they are all fuzzy around the edges, defined post hoc, limited only by the feelings of their victims?  What about the victims?!?

When the issue arises in the context of campus discipline, many tend to shrug it off.  After all, it’s not really a criminal proceeding, but just some kangaroo court, or perhaps an inquisition, by a bunch of amateurs who have no clue what they’re doing.  The worst of it is that someone will be expelled from college.  That doesn’t strike some people as a big deal. At least not in comparison to the suffering endured by the victims of rape and sexual assault.

For those of us not indoctrinated into the new conceptions of rape and sexual assault, we envision forcible rape, a man with a gun to the head of a woman, pushing her into a dark alley where he forces himself onto her.  At best, we imagine a woman passed out, unaware that the man she was drinking with earlier removed her clothing and forced himself on her.

But to others, force is only the extreme.  Rape is now the word used to describe sex when a woman has had a few drinks, falls somewhere along the buzzed spectrum and decides the next day that she didn’t really want to do it, even though she was an enthusiastic participant the night before.

Or rape is the word used to describe the woman who is persuaded by a man to engage in sex, or the woman who agrees to sex, not because she wants it but because she secretly feels she has no choice.  And then there is sexual assault where no touching occurs at all, from “stare rape” to the undesired “hey baby” on the street.

The question isn’t whether these behaviors are good, bad or otherwise, but whether they are, or should be, crimes.  And by crime, I include college disciplinary rules, as any determination that carries a penalty is one that cannot be swept under the rug as insignificant.

We have some basic notions of what is required of a rule, the violation of which carries a penalty.  The most fundamental of these notions is that it provide notice of the conduct prohibited, so that a person will know that by engaging in that conduct, he violates the prohibition.  The reasoning is straightforward:  we cannot expect a person to recognize that certain conduct is wrong if that conduct is not defined.

Few lawyers or judges (I hesitate to suggest the same of lawprofs, as I have no clue what they think) would find this proposition controversial, and yet the criminal law hasn’t always adhered well to the proposition of notice. Take, for example, when drunk driving was redefined by Blood Alcohol Contend of, first .10, then .08 and now .05. How would one know what one’s BAC is without blood testing?  And yet, people are criminally culpable for the conduct of drinking and driving, itself lawful, when they cross into this arbitrary medical neverland.

One of the great lies of the discussion about sexual assault and rape is that one in five college women is a victim. This lie gets repeated ad nauseum, to the point where it’s not questioned.  And yet, it’s a lie, not because women don’t believe it, but because that number is derived by a monumentally flawed survey from a statistical perspective.

But there is an additional flaw that statistical critics missed: the conduct at issue was undefined.  It was a rape because the respondent decided it was a rape. It was a sexual assault because, well, it was. Terms like “unwanted” focused the respondents on how they felt about the conduct rather than whether they communicated to the male involved that it was unwanted.  It further assumed that sexual contact where alcohol or drugs was involved was inherently nonconsensual. No, within the scheme of unwanted conduct, the language may be gender neutral, but the reality is that two buzzed kids means a male rapist and a female victim.

One of the leading legal scholars on this issue, Corey Rayburn Yung, has been taken to task here for his efforts to portray his scholarship as empirical when he refuses to define the terms of rape and sexual assault.  When Yung ripped George Will a new one for infusing his politics into the argument, I responded with a pot calling the kettle black post.

It’s not that Yung isn’t as entitled as any other academic to let his bias guide his research, but that he can’t jump on the pedestal of empiricism when he’s just as bad as those he attacks.  And there is Yung, quoted in the New York Times article:

The differing definitions can obscure how often rapes and sexual assaults are reported to authorities, said Corey Rayburn Yung, a law professor at the University of Kansas. Mr. Yung published a study in March that found that more than 796,000 rapes were not included in the F.B.I.’s tally between 1995 and 2012, partly because of the way the police handled cases in which the person who was assaulted did not meet the department’s definition of a rape victim.

So the omitted 796,000 were rapes, because why?  And this is the foundation for changes in the law that will create a crime out of the victims’ feelings, leaving the perpetrators of rape without the slightest clue that they have done something wrong.  And college students will not only take no issue with this, but embrace it, as the way things ought to be because that’s what we’ve allowed them to be taught.

Update:  Someone was kind enough to provide me with a copy of the current draft of the ALI Model Penal Code for sexual assault and rape.  Surprise, affirmative consent is in there:

4. Criminal liability in the absence of affirmative consent. Section 213.4 addresses the much-debated situation involving neither express protests nor affirmative permission —a situation, for example, in which one party proceeds to commit an act of sexual penetration while the other party remains silent and passive. Section 213.4 endorses the position that an affirmative expression of consent, either by words or conduct, is always an appropriate prerequisite to sexual intercourse, and that the failure to obtain such consent should be punishable under Article 213. As originally presented to the Advisers, to the Members Consultative Group, and to the Council, the draft treated that offense as a felony of the fourth degree. Subsequent reflection, in light of the numerous comments received on this issue, has led to modification of that judgment. The current draft maintains the view that such misconduct should be considered a serious offense, but in light of the existing ambiguity of social norms in this regard and the extremely serious consequences invariably associated with any conviction for a felony sexual offense, the current draft takes the position that the offense is appropriately graded as a misdemeanor.

Boom. Bear in mind, this is a draft.

24 thoughts on “As The Definitions of Rape Slide Down The Slippery Slope (Update)

  1. blindguy

    It used to be that words meant something. That’s why we have dictionaries and definitions. I daresay that most jurisdictions have definitions within their statutes letting people know what the designated bad behavior is. A lot of people out there, many of them lawprofs, are just not wordsmiths and much of what they say is not supported by “rigorous” thought. Having an agenda is not a substitute for critical thinking.

      1. Fubar

        If I recall correctly, that nursery rhyme was from the black death. Interesting what has staying power.

        [ I hope that your comment was an ironic or sarcastic comparison of the false “Ring Around the Rosie” urban legend to the “great lie[s] of the discussion about sexual assault and rape is that one in five college women is a victim.”

        If I have misunderstood your comment, I blame the incapacity of brief printed words to sufficiently convey authorial intent. That’s my story and I’m sticking to it.

        The nursery rhyme “Ring Around the Rosie” has nothing whatever to do with “the black death”, or any other ancient plague.

        To quote the prolific and decidedly credible debunkers of urban legends, Barbara and David Mikkelson, who note with considerable sarcasm:

        … the earliest print appearance of “Ring Around the Rosie” did not occur until the publication of Kate Greenaway’s Mother Goose or The Old Nursery Rhymes in 1881. …

        Children were apparently reciting this plague-inspired nursery rhyme for over six hundred years before someone finally figured out what they were talking about, as the first known mention of a plague interpretation of “Ring Around the Rosie” didn’t show up until James Leasor published The Plague and the Fire in 1961.

        In brief comments on the intarwebz one can usually be certain what words were written, but often uncertain of what they actually mean.

        1. SHG Post author

          I found the Snopes explanation unsatisfying, so I’m sticking with the plague story because it’s way cooler, and it doesn’t matter much either way. Plus, then it’s irony, which is better than the alternative.

          1. PaulaMarie Susi

            Irony always wins.
            Btw, asking as a woman, WTF is passively resisting? As for affirmative consent, usually “omg, yes” should suffice, no?
            Only being passively snarky.

  2. lawninja

    A much easier way of refuting this study is simply by pointing out the sheer percentage of exonerations which are rape crimes. That statistic would be a bit more compelling to me. But hey, maybe it’s just my chauvinist, unenlightened, oversexed ego that doesn’t take kindly to locking up folks who probably (we’re pretty sure) are guilty.

  3. GEJC

    I apologize in advance for hijacking with a war story but I’m defending one of these right now and it’s been a nightmarish bizarro world of presumption against my client. Female texts my client, they go on a date, she invites him back, they lay down on some blankets and fool around. She goes to the bathroom, changes, and they fool around some more. He spends the night and takes off the next morning. Two days later she tells her boyfriend it was not consensual and three days later reports it to the campus rape inquisition squad who sticks a pacifier in her mouth and helps her declare him a rape witch. At the prelim the officer testified that she was “passively resisting” (whatever that is) and was too afraid to tell him to stop, or leave, or scream, or call the police. Of course they wouldn’t continue the disciplinary hearing until after the prelim when I could, you know, actually cross someone. At the hearing I knew there was no point when the eminent legal scholar campus recreation guy was in charge of the hearing. I could not cross her and neither could my client. We were permitted to submit questions to be asked and of the thirty submitted they only chose to ask one. He was summarily booted from the university without the real right to counsel, to confront her accusations, or to put on a proper defense. The ability to cry rape on a regrettable sexual decision is so complete on campuses that I’d suggest young men just stay chaste for those four years at this point. No amount of evidence moved the board. No number of different stories, inconsistencies within those stories, or suspicious reporting circumstances made a difference. An accusation was all it took.

    Anyway, George Will could have written an insightful piece that exposed a real problem and addressed it soberly. Instead he tried to tie college rape hysteria to all of liberaldom and sh*t the bed. It’s a shame because it’s something that needs to be addressed.

    1. SHG Post author

      It’s a shame because it’s something that needs to be addressed.

      Well, there are some people addressing it without any relation to a political agenda. Which could explain why you told your war story here.

      At the prelim the officer testified that she was “passively resisting” (whatever that is) and was too afraid to tell him to stop, or leave, or scream, or call the police.

      Ah, the secret “no.” All appeared to be yes, because she was “too afraid” to say no, so the man committed rape. Slightly short of notice.

    2. Keith Lynch

      Coincidentally, yesterday’s (Sunday’s) Washington Post has a “news”
      story — really more of an editorial — complaining that when the man
      accused of abducting Heather Graham had been accused of rape years
      ago in college, he was able to drop out and enroll in another college.
      The writer thinks the first college should have told the second about
      the accusation, i.e. that any man accused of rape at any college must
      never be allowed to attend any college ever again.

  4. Anne-Marie Krone

    If they keep redefining the word rape to mean anything that hurts a womyn’s feels, they’re going to have to invent a new word to describe forcible sexual assault with penetration.

  5. blindguy

    Absent affirmative consent it seems that a person has a real window to decide whether he/she was raped. That does not even cover the situation where there is affirmative consent and one party decides to lie about it the next day.

  6. Joe

    I find the burden shifting nature of this troubling. It appears that a defendant would be put in the position of proving that affirmative consent was given in order to defend himself. If he cannot do so, or even if he simply remains silent on the issue, then that element would be met for the state, no? Or am I missing something (certainly always possible)? This is troubling enough when it comes to college disciplinary proceedings, but it’s much larger problem when it comes to actual criminal statutes.

    1. SHG Post author

      The “no means no” burden shift is worse than the affirmative consent burden shift; it’s harder to prove a negative (that she didn’t say “no”) than a positive (that she said yes). Either way, it shifts the burden on the accused to testify to refute the accuser’s claim.

  7. Ryan

    assuming under Lawrence v. Texas recognized a protected right for consenting adults to have sex, wouldn’t these rape laws that redefine rape to meaningless abstractions impermissibly burden this protected right.
    i.e if no one knows what rape is, or can tell how one is not a rapist, the net effect would be to deter protected conduct.

  8. noah

    Women can just as easily regret a sexual encounter with another woman, as can a man (with either men or women). When these alternate scenarios come up before a disciplinary board, then we’ll see whether they mean what they say about lack of affirmative consent. Anything less would be quite sexist.

    1. SHG Post author

      All true. I wonder if it will happen. I wonder what identitarian group will scream about it if it does. I wonder what side they’ll be on.

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