Turning A Bad Choice Into A Quasi-Criminal Event

Based upon the text messages, it all seemed rather flirtatious.  A few days later, after she discussed matters with her friends at Yale, the tone changed.

“Let’s just start with objective fact: you raped me,” she e-mailed the male student in May. “You are a rapist.”

And indeed, he did, provided one “defines” rape the way the United States Department of Education, Office for Civil Rights, would have it.  In the Yale case, the young man prevailed, presumably based upon the facts: the text messages, that they both undressed themselves, that they had sex again in the morning, after she could make no claim of drunken incapacity and the 13 months it took her to formally claim she was raped.

She made a curious claim in response to the morning sex:

The woman remembered the incident differently: “She woke up feeling terrible that she had become so inebriated and had sex despite not wanting to. . . . When he initiated sex that morning, the female student said she did not resist because she felt refusal would be too emotionally exhausting.”

Her supporters found this not only perfectly reasonable, but note that “did not resist” is hardly enthusiastic approval. Yes means yes.   In her Washington Post editorial, Ruth Marcus notes that the outcome could easily have gone the other way:

And at what a traumatic cost. To a young woman who sincerely believes she has been raped but seems, at least from afar, to have been pushed by the prevailing culture into viewing a bad choice as a quasi-criminal event. To a young man who lived under the shadow of accusation and expulsion.

Marcus offers the only mature advice possible, for anyone who isn’t blindly tied to a side:

Today, no parent of girls should send them off to college without a lecture: Be careful; avoid being pressured into unwanted activity; speak up if something unacceptable occurs. And don’t drink so damn much.

[E]very parent of boys should deliver an analogous warning: Protect yourself. Be sure your partner is willing. The consequences of misjudgment can be life-shattering.

This is a cautionary tale about a still-evolving, still-uneasy balance in dealing with sexual assault on campus. The Yale episode demonstrates: Parents of boys should be every bit as nervous as parents of girls about what can happen to the not-quite-adults they send off to college.

Of course, such advice is rejected by those who cry “victim-blaming” and “slut-shaming,” because women are entitled to suffer no consequences for their choices and conduct.  All is answered by their rules of engagement, they contend.  Except, as explained in this analysis by David Walsh of the new Harvard policy which generated opposition from 28 former and current law professors, the rules are internally inconsistent.

The types of conduct that “may violate this Policy” include “Sexual advances, whether or not they involve physical touching.” The authors of the policy then tie themselves up in knots. “Conduct is unwelcome if a person (1) did not request or invite it and (2) regarded the unrequested or uninvited conduct as undesirable or offensive.” Although this is presumably not the intent of the policy, these provisions, if enforced, would effectively preclude new sexual relationships from ever occurring on the campus in Cambridge.

First of all, if an “advance,” one form of conduct under scrutiny here, has been requested or invited, it is no longer truly an “advance.” It is already a response to the other party’s conduct, whose request or invitation (verbal or nonverbal), in fact, is the initial advance. And how is the inviting or requesting party, or whomever the initiator is, to know if his or her invitation or request, or “advance,” is “welcome”? I doubt that anyone, including the authors of the policy, has the slightest idea, but the latter helpfully suggest that “Whether conduct is unwelcome is determined based on the totality of the circumstances, including various objective and subjective factors.”

The theory, thus, fails to pass logical scrutiny, if it was to be applied as written.  But the unwritten piece of the puzzle, or perhaps better described as the hidden landmine on the campus grounds, is that this is directed to males.  While lip service is given to the parity of its application, the reality is that it circumscribes how males must conduct themselves in making an “advance” on females.  Because this isn’t about preventing rape or sexual abuse, but protecting females from males.

For any parent who has a child going off to college, the message is conflicted.  It shouldn’t be.  When the rules serve as landmines for conduct that is defined after the fact or based upon vague, extrinsic conduct that conflates bad choices with quasi-criminal events, eventually a landmine is going to explode.  Someone’s child will be hurt, perhaps devastatingly so.

Even where, as in the Yale case, it ultimately results in exoneration, the pressure of being under accusation and prosecution is no way to go through college. Untenable rules lead to untenable situations, despite the appeals to emotion used to justify them.

It’s unfortunate the some people find taking responsibility for their actions “emotionally exhausting,” but life can be that way sometimes.  It’s still better than creating rules that even Kafka couldn’t imagine.

9 thoughts on “Turning A Bad Choice Into A Quasi-Criminal Event

  1. Bob

    Found this paragraph by Walsh striking: “Obama’s sexual assault publicity stunt is directed in particular at shoring up support for the Democrats among those liberal and “left” layers of the upper middle class mesmerized by questions of personal identity. These layers, who are as indifferent to the conditions of the broad mass of the population as the White House itself and who support the administration’s imperialist interventions abroad, are being rallied on issues of gender, sexual orientation and race.”

    And from a real socialist web site at that.

    1. SHG Post author

      Yeah, well, I found the insertion of politics in the piece a bit disturbing all around, particularly given the nature of the site. That said, many see Obama as right of Reagan, but since I deliberately steer clear of politics, I won’t mention it. So let’s leave it at that.

  2. Peter Gerdes

    I don’t think the fact that these laws (when passed as laws) seem to be among the first (at least high profile) genuine attempts to revive the practice of writing facially neutral laws with the deliberate *intent* and *understanding* that they are to be practically deployed in a blatantly discriminatory fashion.

    I mean things like rape shield laws and the like dealt with genuine problems that did affect one gender far more than another but there was no genuine intention they not be applied equally to the much more rare similarly situated male accuser. Yes, we still have a lot of laws that embody an implicit discriminatory understanding (like many statutory rape laws that cover consensual sex by those of the same age or across the boundary of a single birthday) but to my knowledge there has been no visible expansion of the implicit expectation of gender discrimination in enforcement of those laws and perhaps some curtailing.

    I take it the understanding of those who pass things like the yes means yes law is categorically that your standard sexual encounter in which the male only indicates his desire to have sex through body language is not to count as sexually assault by the woman for lack of affirmative consent (if the law claims that penile thrusting is itself affirmative consent it is open gender discrimination). Thus they are deliberately supporting resuming the practice of a tacit understanding that “sure these laws say everyone but they are really about male action and maybe some really extreme homosexual conduct.”

    While more abstract the substantial retreat from that practice was one of the great advances in the 20th century. We even started to recoil from it in drug cases and no longer think it’s ok to tacitly understand that you don’t send the kid with the bright college future away for the bag of weed but do to “lowlifes” to be unjust.

      1. Anne Krone

        Hey at least that word salad was spelled correctly, does not use egregious capitalization, and has paragraph breaks. This is an example of quality trolling. Very few blogs get such high quality trolls, you should be honored 😉

      2. Troutwaxer

        I think there are ideas buried someplace in that gigantic world salad, but they’re expressed so verbosely that it’s difficult to decode them. Perhaps Peter would like to refine his thinking a little and try again, this time without the “excess dressing” of unnecessary verbiage?

        1. SHG Post author

          There are ideas in there. Nothing particularly new or remarkable, and (from what I can tell) more repetitive and tangential.

          Gerdes is a relative new commenter here, and has demonstrated a remarkable gift for going a bit off on non-legal tangents at enormous, brutal length. I don’t think he checks back to his old comments, however, as my admonitions as to focus and brevity have been wasted. I’ve trashed a few of his comments because they are so monumentally long, boring and pointless that I refused to read them.

  3. The Real Peterman

    How come I never meet any of these women who, for whatever reason, just can not bring themselves to say “no” to a man?

    ” she felt refusal would be too emotionally exhausting.”

    Oh, well that’s a good reason to expel a man from college!

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