That there’s an epidemic of rape and sexual assault on campus is a given, because the White House says so, as do the advocates to end this plague, despite the absence of evidence except their anecdotes. Perhaps they’re right, but it’s hard to say because the meaning of words used to describe offending conduct have become untethered from any definition.
Not to let lack of definitions or proof of a problem get in the way, the government is forcing the issue by ramming guidelines down the throats of colleges and universities to cure the problem that may or may not exist. Colleges don’t appear to be resisting. And these changes in the view of sexual assault and rape appear to be filtering through to criminal law.
Two profs, Kathleen Bogle, teaching sociology and criminal justice (whatever that is) at LaSalle, and Anne Coughlin, a lawprof at UVA, apparently recognized the confusion wrought by an excess of passion and a dearth of reason and decided to fix the problem. Their post at Slate is entitled The Missing Key to Fighting Sexual Assault on Campus, with the subtitle, Universities must make clear when having sex with a drunk person is a crime.
Finally, someone realizes that vague, overly-emotional, facile, hyperbolic accusations fail to establish either a cognizable or a doctrinally justified line.
If colleges are to reduce the incidence of campus sexual assault, they must have guidelines about when it is a crime to have sex with a person who is drunk. These rules need to be clear to students and to police or administrators who investigate these allegations and decide whether to impose punishment.
Absolutely. Without clarity, there can be no rules, no matter how many people spew simplistic mantras about “just don’t rape.”
Here’s the proper legal framework: Sex with someone who is too drunk to consent is a crime even if the perpetrator uses no violence whatsoever to force his way. It is a crime even if the survivor does not physically resist or verbally object. It is a crime even if she is not passed out but is conscious before and during the encounter. It is a crime even if she was not drugged or forced or tricked into drinking by the perpetrator but got drunk on her own.
Whoa, wait a sec. How does this become the “proper legal framework”? Because you say so? Not only is this posed in the negative, and thus meaningless, but what’s with the use of the feminine pronouns? And since when does sex with a person who is “not passed out but is conscious before and during the encounter” become a crime? Isn’t that, well, the way it happens most of the time?
How intoxicated is too intoxicated to consent? After all, many people have sex under the influence of alcohol. The tipsy hookup may be the norm on college campuses. If the perpetrator didn’t use physical violence and the victim didn’t resist him, how can we be sure that the drunken sex was not consensual?
Okay, back down from the soapbox. So yes, that’s the question. And the answer is?
[T]he question is whether, under all the circumstances apparent to the perpetrator, a reasonable person would know that the victim was too intoxicated to give a meaningful consent. Under that standard, the prosecution may win a conviction only by proving that the victim’s intoxication was extreme and verifiable. She has to be way past buzzed or tipsy. She has to be very drunk.
Now I take issue with calling someone a perpetrator before defining a crime, but maybe I’m a bit sensitive about such things. So the proof is based on the reasonable perpetrator’s perspective of “too intoxicated to give a meaningful consent”? There appear to be two significant problems here, the first being that if the crime is based on what’s apparent to the “perpetrator,” it can only be proven by the testimony of the perp. And, of course, the perp can’t be compelled to give testimony against herself (see what I did there?).
The second problem is that by saying “too intoxicated,” you’ve said nothing. You can’t define a term by using the term, or adding the word “too” in front of it.
The cases and the literature on rape give examples. For example, a person who is falling-down drunk, too intoxicated to walk. Or unable to talk clearly or coherently. Or too uncoordinated to undress herself. Or sick drunk, slumped over a toilet vomiting or urinating on herself.
And so we’re back to examples to overcome the complete inability to provide a definition? Even so, there is a huge difference between someone “slumped over a toilet vomiting or urinating on herself” and “unable to talk clearly or coherently.” I know a lot of folks who can’t do that sober on their best day, but more to the point, is the occasionally slurred word the equivalent of puking their guts out?
As for “too uncoordinated to undress himself,” there are stories that when two youngsters commence “tipsy sex,” undressing each other is part of the ritual. Is there a new rule that each party must undress themselves? And what if they are not wearing difficult to remove clothing?
But nowhere in these examples does any recognition appear that if one party is drunk, the other party may be as well. This may not only alter their reasonable perception, but impose a duty that neither party to sex may be in any condition to fulfill. Does a drunk person have the capacity to recognize that another drunk person is slurring his words? If they are sharing a toilet bowl for unpleasant purposes, who gets to puke first?
Colleges also must have guidelines for dealing with cases in which both parties were drunk. Here, men are likely to object that they are being disadvantaged by a double standard that lets drunk women, but not drunk men, off the hook for having sex. But this objection rests on a fundamental misapprehension about the role that intoxication plays in attributing criminal responsibility. free card.
Wait another sec. They start with addressing the “both drunk” problem, but conclude that men are culpable because…men?
Instead, for rape as for other crimes, an offender is guilty if he commits an act that’s an extreme departure from the standard of care followed by reasonable people in the community. The crucial point is that this standard of care is based on the perspective of a sober “reasonable person,” not a drunk one.
Ah. So the problem is that women cannot be held to a reasonable person standard because they’re women. That seems a rather sexist and offensive posture, but more importantly, makes absolutely no sense at all. To call it sophistry is too kind. This is the total absence of any pretense at logic, wrapped in a pretty pink bow.
But what if drunken men are the victims of predatory women?
There is one more objection that we often hear: What if the man says that he was so drunk that he also was incapable of consenting? Could it be that she raped him or that they raped each other? It is not clear how plausible this scenario really is. If both people are too drunk to walk or are vomiting all over the place, it seems likely that sex just won’t happen.
Wait yet another sec. So if a man is drunk, the woman is by definition vomiting all over the place too?
While a new study reports that men say they’ve been raped at a surprisingly high rate and that women are sometimes the perpetrators, men tend not to bring sexual assault complaints. If men do start coming forward, the authorities should evaluate their accusations under the same standards applied to cases involving female complainants.
So they’ve got nothing? The double-drunk problem is dismissed as either implausible or whatever?
That the “solution” begins from the premise that rape and sexual assault are rampant, before there is a definition of what they are, reflects a fundamental dishonesty toward the subject. But here, two putative scholars who are presumptively not writing while shit-faced drunk offer “the proper legal framework” to an untenable problem that is not only utterly baseless, but wholly irrational.
And yet, with Slate as their soapbox, a great many people will now be certain they know the law, they know what distinguishes a crime against women, because scholars say so. Coughlin and Bogle should be ashamed of themselves for publishing this tripe, but more significantly, for making people stupider. The need for clarity is manifest, and they’ve made it worse.
I can’t wait to hear more rational scholars rip them to shreds for having disgraced the Academy.
Update: At The Atlantic, Mary Adkins writes about the disconnect between the legal definition of rape, as she pointedly notes she was taught at Yale Law School, and her feelings of what rape should mean. She explains how and why women may choose not to resist, not say no, while not wanting to engage in sex in order to maintain internalized control over their victimhood.
In order to avoid victimhood and maintain simple, victimless personhood, women can be extraordinarily, stunningly rational; we can rationalize away acts of violation simply because we don’t want them to have been real. Perhaps if I decide it didn’t happen, it didn’t; perhaps if I decide it doesn’t matter to me, it doesn’t. But other times, victimhood is thrust upon us.
Notwithstanding her confusion about the relative meaning of rational and rationalization, she suggests that the crime of rape should be defined as that thing a woman feels inside, without regard to what she says or does, or what the other person (who is, she explains, stronger and inherently more powerful) perceives.
Her feelings are understandable, and her rationale (not rationalization) makes sense. But she offers no solution to her problem. Does she contend that the legal definition of the crime of rape is “any act where, in the mind of a woman, a rape occurred, without regard to anything else whatsoever”? Maybe she does. Maybe that’s the best she can do. But for every reason that exists as to what is required of a criminal law, it fails.
Adkins is entitled to her feelings. She is not entitled to create crimes based of her innermost feelings, no matter how strongly she feels about it. And if there is any value to a Yale Law education, she should understand just how ludicrous her position is.