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.