The Crime of Regret

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

25 thoughts on “The Crime of Regret

  1. Larry

    This article got my wife and I wondering how the debate would be affected if the two drunken participants were both male or both female. How would gender politics view the situation then. What if two brawny NFL football players got drunk one night, ended up having sex and one woke up the next morning full of regret and insisting he wasn’t gay and he had not consented. How does one have any hope in hell of conforming to the rules if the rules can be retroactively warped. As a lawyer this scares the hel out of me. Thanks for provoking much thought.

    1. SHG Post author

      A very interesting question. I would assume from the gender politics side, there would be no interest since there is no inherently evil party on the other side. But from the perspective of boys are guilty no matter what, it would present a conundrum.

  2. Pingback: Don’t rape — a response to Scott Greenfield | The Law Office of Charles Thomas

  3. onlymom

    Not really SHG.

    They could just pull out the system used in domestic disputes. First one to call the police is the vic!

  4. Victim

    A lawyer named Charles Thomas responded to you. His message is clear and simple: don’t rape. Why don’t you get it? I was the victim of rape. If your daughter was raped, you would never feel that rape was so unimportant.

    1. SHG Post author

      Yes, “don’t rape” is very clear and simple. I’m pretty sure that no relatively sane person has ever suggested otherwise. Unfortunately, as much appeal as it may hold for the vapid, it does nothing to define the conduct that constitutes “rape,” which is the point of this post. Consensual sex is not transmuted into the crime of rape the day after because the woman changed her mind.

      If my daughter was raped, I would likely be at serious risk of murder. But that’s if she was raped. If she changed her mind the next day, then she wasn’t raped. Choices by women they later come to regret are not the bases for crimes. If that makes you think ill of me, I’ll just have to live with it.

  5. Rebecca

    I think the fundamental issue I see here is that Taranto is trying to solve a problem that doesn’t really exist. The problem of women waking up and regretting drunken sex and crying rape, pressing charges and going through the whole process seems to be more a problem in people’s imaginations than a true justice issue. Most studies that I’m aware of prove that the opposite issue exists: women don’t press charges when rape definitely happened. Until the pendulum starts swinging the other way, it seems like tilting at windmills to be concerned about the epidemic of women crying rape because of regret until it actually becomes an issue.

    1. SHG Post author

      I would certainly hope you’re right, and that this is primarily a paper problem than a real one. I read Taranto as challenging laws/rules such as Stanford’s which would allow post hoc decisions to create a crime where there was none. I didn’t read him as claiming an epidemic exists, nor am I aware of anything to suggest it exists, but the time to question is before people are prosecuted and convicted, not afterward.

    2. Michael

      You’re creating a false dichotomy. The fact that a lot of rape victims don’t press charges is unrelated to the fact that a lot of rape charges are false. There are two different sets of women involved. Think about it.

      Here’s a pretty good writeup on it:

      [Ed. Note: Link deleted per rules. However, it should be noted that the basis for the statistics is neither better nor worse than those being used to prove the opposite. There are no reliable stats either way.]

      There’s a tldr at the bottom if you don’t want to read the whole thing. Note that the actual number of false accusations is far higher than what he says – he’s only talking about the *proven* false accusations. It’s pretty scary.

  6. AlphaCentauri

    The penetration issue seems to be more of the driver of the hysteria about rape than gender is. When there is a case of a cop inserting a finger or other object into a man’s rectum, or a priest raping a boy rather than a girl, watch how fast males feel hysteria is warranted.

    Our culture sees “getting fucked” as being thoroughly degraded by someone more powerful. Women who are raped, through no fault of their own, are ashamed in a way that a man who is the victim of a robbery (or even one who is seduced and robbed by a prostitute) is not. A woman who became pregnant as a result of rape and who decided to carry the child and give it up for adoption would be the subject of gossip even by people who claim to be “pro-life.”

    When we stop viewing receptive intercourse as shameful, we will be able to legally distinguish the grey areas of intercourse between people of diminished capacity.

  7. Mirriam Seddiq

    I’m with AlphaCenturi. Having grown up in a culture of Honor Killings, this idea that my sex (meaning my ability to have intercourse) is the greatest gift known to mankind is what defines this “rape culture” It almost feels like we are going backward. We lecture our boys on “make sure she says YES at the top of her lungs, or get it in writing” but what do we tell our women. And no, no one is saying rape is ok. Obviously. But neither is murder. Or robbery. I’m just really sick of everyone making the biggest deal of out being able to overpower me and have sex with me and being so worried about my damned virtue. If it wasn’t such a big deal it wouldn’t be such a big deal.

  8. Kweefy

    “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.”

    Absolutely, brilliant analogy.

  9. Mya

    Making a public rape accusation is a high-cost endeavor. The rape victim gets her life and reputation scrutinized and raked over the coals; she misses work; it’s costly; and she has to see her alleged rapist every day. Why would a woman subject herself to that to make a false accusation? I’m not saying it’s never happened in the history of the world, but this article is suggesting it happens all the time. Which is utterly ridiculous.

    This entire article suggests that a lot of women are either too stupid to know the difference between regretting sex after the fact and actually being raped, or so morally bankrupt that the chances are high that they will ruin an innocent man’s life based on their regret. Both are deeply misogynistic.

    It’s disheartening that there are thousands (maybe millions) of men (and maybe women) walking around who hold these opinions about women.

    Then there’s this:

    “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.”

    It’s that line about being “absolved of all personal responsibility for her choices” that really gets to me. Getting raped is not a “choice.” It’s about having all your sexual agency, all your control over your own body, taken from you. The reason the man is more guilty for rape than the woman in a case where the woman is raped is because she is the victim who does not want sex, and he is the one forcing sex on her. They are not forcing sex on each other just because they are drunk. Culpability for rape is not equal.

    The writer of this article really needs to get a clue.

    1. SHG Post author

      Perhaps if you tried reading it again, this time without wearing whatever is blinding you from words and ideas that don’t conform to the feminist agenda, you would have a far easier time comprehending it. Almost nothing you’ve written is accurate on any level, but it’s the feminist orthodoxy, and that’s good enough for you.

      I suspect you reflect a tiny minority view, both of men and women, who think people with your perspective need to get a clue. But then, that not only makes you right, but a martyr to the cause, so you need not ponder why the rest of the world just doesn’t get it. Everyone who doesn’t see things your way is a misogynist, because there can be no other way but yours.

    2. Boshin

      Reversing some of your comment is just as absurd:

      This entire article suggests that a lot of *men* are either too stupid to know the difference between *affirmative consent* and *compelled consent* or so morally bankrupt that the chances are high that they will ruin an innocent *woman’s* life by *forcing himself on her against her will*. Both are deeply *misandric*.

      It’s disheartening that there are thousands (maybe millions) of *women* (and maybe *men*) walking around who hold these opinions about *men*.

      See how nutty that is?

      OF COURSE there are men in the world who are that stupid and that morally bankrupt. The idea that women aren’t just as likely to be terrible, petty, immoral people is ridiculous.

      Maybe they’re impulsive, and shoot off a falsehood and get stuck in the lie. Maybe they don’t go through the whole lengthy court proceedings and just get a bit of ambiguous character assassination out there before dropping things.

      Even if under-reported rapes are much greater problem that false accusations, why create new rules that incentivize that behavior? Why expand the conduct that fits within the definition of rape instead of encouraging more reporting of what most people can agree is deplorable behavior?

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  11. Scott Jacobs

    By the Stanford policy’s wording, it would seem that a frat boy who has woken up next to someone “coyote ugly” could file charges against the woman for rape, since he was too drunk the night before to consent…

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  13. Cody

    “I invite thoughtful comments, but please keep it civil and respectful. There are rules here. ” Your essay was loaded like a gun with statements meant to offend, honey.

    1. SHG Post author

      Honey? That sort of sexist speech is unwelcome and hurtful. Oh wait, you’re trying to tell me that because my views don’t comport with your blind feminist faith, they are wrong and offensive. Well, yes then, you are absolutely correct.

      Why is it zealous advocates of any particular persuasion are shocked and offended to learn that the world doesn’t revolve around them? I would call you “sweetie,” but that’s not something I do.

      Edit: Sorry, it occurs to me that I didn’t respond to your “civility” point. That applies to commenters who visit my blawg, like you. I trust reading comprehension doesn’t violate any tenet of your beliefs.

  14. Irma Gerd

    The Stanford policy quoted in this article is from 2009. The current policy does not resemble this one, and it is in keeping with California law so far as I know. Interestingly, FIRE only has the outdated policy on their blog, and I have not been able to locate this version of the Stanford policy anywhere other than on the FIRE site. I also have not been able to find any evidence of the change being made.

    1. SHG Post author

      It’s good to know that Stanford recognized the error of its policy and changed it. That’s how it should be.

  15. Irma Gerd

    Here is the current Stanford policy:

    3. What Is Sexual Assault?

    Sexual assault is the actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished (1) against a person’s will by means of force (express or implied), violence, duress, menace, fear or fraud, or (2) when a person is incapacitated or unaware of the nature of the act, due to unconsciousness, sleep and/or intoxicating substances.

    4. What Is Consent?

    Consent is informed, freely given, and mutually understood. Consent requires an affirmative act or statement by each participant. If coercion, intimidation, threats and/or physical force are used, there is no consent. If a person is mentally or physically incapacitated or impaired so that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes conditions due to alcohol or drug consumption or being asleep or unconscious. Whether one has taken advantage of a position of influence over another may be a factor in determining consent.
    [Ed. Note: Link allowed despite rules.]

    1. SHG Post author

      It’s better, but still an awful lot of vague, meaningless language in there, and still rife with the same issue of “impaired” by alcohol or drugs that leaves the male at risk while removing responsibility from the female. Better, but not sound.

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