In a long article about controversies about rape at Swarthmore College, Simon van Zuylen-Wood writes,
The second central remnant of the school’s Quaker legacy — the “peaceful resolution of conflicts” — resides not in the student body, but in the administration. “From the very smallest scale to the largest scale, the college does have a long history of finding a way through that won’t leave half the people in any room feeling like they lost,” says Swarthmore history professor Tim Burke. “It means, for one, we tend to defer difficult decisions.”
My remarks.
1. I do not think that the Quaker tradition has anything to do with it. The passivity of college administrators is everywhere. They are passive when it comes to alcohol abuse. (I wish I had saved the email sent to parents by the President of Muhlenberg several years ago, with its helpless hand-wringing over the fact that more than a dozen students had been hospitalized with alcohol poisoning during the first semester. I wrote back saying that I could make a few suggestions to the admission office that would probably suffice to solve the problem.) They are passive when it comes to students exercising a heckler’s veto of speakers. They are passive when it comes to anti-semitism.
2. The article made me wonder how there came to be an overlap between “casual sex about which I felt ambivalent” and “rape.” It seems to me that one ought to be able to draw a reasonably clear line between the two.
3. Colleges seem to want to be separate jurisdictions in which ordinary laws do not apply. They do not want their students to be arrested and prosecuted for vandalism, violations of drug laws, or rape. Instead, they prefer their own judicial processes.
4. How does this issue play out along the three axes? Suppose that along the oppressor-oppressed axis you think women are oppressed with regard to sex. In that case, it might seem reasonable to believe that women are entitled to casual sex and also to later claim that casual sex about which they felt ambivalent was rape. Along the freedom vs. coercion axis, I think you would support colleges that want to apply their own laws and judicial processes, and let students and parents choose colleges knowing what the rules are.
But it turns out that my views on the issue are more along the civilization vs. barbarism axis.
–I think that what is missing from college is the concept of punishment. I think you have to decide whether students are adults or children, and punish accordingly. If you treat students as adults, then you put them through the legal system. If you treat them as children, then you limit their privileges.
–If students are exempt from adult law enforcement, then colleges should reinstate what used to be called “parietal rules.” No sex, no drinking, no drugs. On the other hand, if students are adults, then they ought to face adult consequences.
–If I were a school administrator, I would put students into the “adult” category, and I would tell students and parents to expect that treatment. I would only have a campus judicial process for academic issues, not for issues involving alcohol or sex. That means allowing local police to patrol campus and enforce laws. If drunk students are arrested for disorderly conduct and vandalism, so be it. If students face the same risk of drug prosecution that someone faces off campus, so be it. If they can be charged with rape and convicted in court, so be it. I certainly would not discourage victims from pressing charges. On that note, Heather MacDonald writes,
But the main reason “survivors” don’t demand to bring their cases to criminal court is that they know that what they have experienced is something far more complex and compromised than criminal sexual assault, almost invariably involving mixed signals, ambiguity, and a large degree of voluntary behavior on their part.
That is certainly the impression that I took away from the Swarthmore article. If I were an administrator, I would not try to set up the college as the official arbiter of such cases.
–When a sexual advance becomes too persistent or aggressive, I would encourage the victim to be very assertive, to the point of screaming “rape” rather than giving in. You are entitled to your body and your personal space, and that deserves priority over protecting the other person’s feelings.
–Colleges go out of their way to make condoms available (e.g., resident assistants must keep them in a candy jar for students to be able to access) and to ensure that students know how to use them. I would say do the same thing with rape whistles.
UPDATE: Megan McArdle has similar thoughts:
If students are adults, and the college is not supposed to be in charge of their sex lives, then the correct place to adjudicate sexual crimes is in the courts, not the campus judiciary system.
It is weird that we haven’t puzzled out rape yet.
Civil rights law compels college administrations to deal with rape. I don’t know how these rules arose but it might be because the criminal justice system handles rape so badly. Even if a victim of date rape goes to the police (most don’t), the rapist probably won’t be punished.
The criminal justice system does not handle rape badly at all. However, sexual assault cases typically diverge into two major categories: 1. Those where the lack of consent is extremely clear and obvious, and where there is no challenge for prosecutors to prove its absent beyond a reasonable doubt, and 2. Those where it isn’t clear, and it is a major and arguable point of contention and there is some reasonable doubt, and where it is very hard for a prosecutor to meet the burden of proof.
The criminal justice system vigorously pursues almost every category-1 case they learn of, and approaches them with truly admirable dedication and professionalism.
Category-2 cases are different. There is a significant possibility of the prosecutor’s version of Type-1 and Type-2 errors. Type-1 errors are when you convict an innocent person. There is good evidence from the Innocence Project that this happens often in rape convictions. Type-2 errors are when you let a guilty person go free even after a lengthy and expensive trial, because there is no way to overcome reasonable doubt, which, of course, takes scarce resources away from other important prosecutions.
It is perfectly reasonable for a district attorney to use their training and experience and judgment to determine that a specific complaint, based on its particular characteristics, bears an unreasonable risk of either of these types of errors.
The fact that the appropriate decision about that risk is often ‘too high’ does not reflect at all on the competence or sympathy or effectiveness of the criminal justice system. It is a reflection of the nature and state of sexual relations in our time and culture, and the fact that sexual assault is a unique sort of crime in which the question of consent is often both paramount and difficult to resolve because of the inherently limited forms of evidence – almost always purely testimonial – that can be obtained which bear on that precise question.
Handle, I think the Innocence Project is using DNA evidence to exonerate men who were convicted of raping a stranger, where the question is not consent but whether this is the guy who committed the crime. That does not really support your point. I have no doubt that false convictions for rape, where the sex was actually consensual, do happen, but I don’t see how these convictions could be upset based on newly found evidence, unless the accuser recants. The problem with the star chamber review by college administrators of campus sexual conduct is that women inclined to make false accusations probably would be more likely to do so in a non-judicial setting, where a false accuser does not risk a perjury prosecution, may be allowed anonymity, and the guy just faces getting kicked out of school (and having his life prospects ruined), not prison.
Not quite.
1. What the false, stranger-rape convictions of the Innocence Project demonstrate is not just the limited reliability of victim witnesses identifying the subject visually, but related psychological phenomena such whole prickly issue of reconstructed, fragmentary memories, and the replacement of fuzziness and doubt with persuasive certainty. One of the problems with perjury is what do you do when the witness sincerely believes an adamantly insists on something which is not true. If one has never seen the shockingly confused and disbelieving face of a complainant witness confronted with newly discovered video evidence (usually from some stranger’s smartphone) that what she asserts is impossible, then it’s hard to grasp how powerful and disturbing this form of self-delusion can be. Often times a prosecutrix isn’t making what she perceives to be a ‘false accusation’ but which is, nevertheless, not an accurate reflection of the way in which events transpired on the night in question. There is also what you might call ‘subconsciously motivated protective narrative self-delusion’. When an individual has acted in an embarrassing fashion that often give rise to plenty of severe personal and social consequences, the mental impulse to escape the pressure not just by ‘crying rape’ but actually sincerely believing it, even if it never happened it quite intense
This happens even to perfectly sober women, but when you add large quantities of alcohol and/or drugs to the mix, a fragmentary memory, and a strong motive to fabricate, then you’ve got a recipe for a testimonial nightmare.
These results are true, but they are taboo, so ‘controversial’, and this line of argument has been deems admissible in court. That doesn’t mean, however, it is inaccurate. One thing the Innocence Project should have taught us what that victim-witness recollection testimony alone is demonstrably unreliable and should be presumed to be inadequate to surmount the burden of proof unless the prosecution can provide extremely strong additional indicia of reliability. Alas, no one learned that true lesson, despite all the exonerations.
2. As far as fears of perjury go, there are two problems. The first is that, in my experience, when prosecutors learn that a victim’s testimony is unreliable and suspicious, they simply dismiss the case 99% of the time, and don’t pursue any perjury investigations or hearings. The perjury has to be so extreme and egregious to motivate a DA to do anything about it, but for normal prudential reasons, and also because of certain obvious political risks. But second, related to the above-mentioned psychological phenomena, a great deal of witness disinformation is not genuine intentional ‘perjury’ because it lacks the requisite mens rea. A woman who gave consent at the time in an extremely intoxicated, but not incapacitate state, can really come to believe in the clear light of Sunday morning, especially if she’s got a husband, that she was indeed taken advantage and had intercourse contrary to the desire of her self-agency.
Even if one obtains evidence later on regarding her inaccuracy, a prosecutor must still prove she was intentionally lying, instead of misremembering, and this is almost impossible, because all of a sudden it is a acceptable to bring in a trauma-psychiatrist expert witness who will assure the jury that they must excuse such false memories because they are a natural consequence of the stress from the encounter. Defendants can rarely use the same argument on their own behalf to undermine the reliability of the complainant’s testimony, which is too bad.
I’ve mentioned ‘new video evidence’ and the reality is that a lot of the kids are surreptitiously recording themselves in flagrante delicto with a strategically placed smartphone or webcam on an open notebook computer. And these videos – technically illegal, but we are all still waiting for Ms. Stiviano’s indictment are we not? – are starting to pop up in real cases which suddenly go away and, unfortunately, don’t produce much of a paper trail for empirical analysis of law or other forms of Social Science. Here’s Roxanne Jones on CNN warning young men to get a ‘yes text before sex’.
I would never give a client advice to do anything illegal, but at the same time, one has to wonder what one would rather have on his record: a violation of the Maryland All-Party-Consent Recordation Act, or a rape conviction. And most likely the privacy law conviction will never happen, because the complainant would have to participate willingly (not likely), and also would have to take the fifth amendment during testimony when asked whether the incident in the video to which she is clearly a consensual party – now being put into the record and shown to the jury – is the one in which, under oath, she claimed involved a lack of consent. Also, how can we prove we didn’t leave the webcam on accidentally, or as a dorm-room security program one ‘forgot’ to turn off, and the defendant just happened to discover later that through sheer fortune it happens to have exonerating material on it?
This all probably sounds pretty awful and terrifying, and I agree 100%. All I can say is that many, many young men are starting to share this technique online and, like everything these days, it is spreading and can be expected to go viral. If I had to guess, sexual assault statistics are going to ‘improve’ dramatically by the end of the decade, and college administrators and government officials will try to take the credit, when actually, the makers of the little digital cameras will have true responsibility.
I did not mean that a false rape complainant is at all likely to be prosecuted for perjury, just that the theoretical possibility of such a consequence, among other factors, makes false rape accusations in the criminal justice system less likely than in the less intimidating (and now positively encouraging) academic disciplinary system.
I still don’t think the Innocence Project is particularly relevant, since in those cases the issue generally is the identity of the person who committed the rape, not whether any rape was committed at all. The reliability of identity testimony is always in question when the victim does not know the perpetrator; it is not an issue limited to sex crimes.
I very much agree with your description of the typical psychological dynamics of the “date rape” accuser. I think that meshes quite well my view, expressed elsewhere in this thread, that the hysteria over rape on campus results from unacknowledged ambivalence about young women’s exercise of sexual freedom.
Not to be too cynical, but a college is selling an expensive product. Many customers/students have certain expectations of the “college experience.” If they tighten up the rules, enforce standards, or make it clear you can be arrested for having too much “college experience”, the marketability of the college will drop.
Does this have anything to do with administrator ambivalence and desire to have their own tribunals?
I don’t think that’s cynical at all. Part of the business model of most American colleges is assuring students that the college will not enforce parietal rules AND the students will be “exempt from adult law enforcement.” Free as an adult but with the (relative) lack of consequences of a child. To quote Hannah Montana, “you get the best of both worlds.”
If colleges took your advice, they would see a hit, maybe a substantial hit, in their bottom line.
I would say the blurring of what is and isn’t rape in the public perception happened for three reasons:
1. The justification for outlawing rape specifically, as opposed to treating rapes like any other assault, shifted from a reputational sort of thing (deprived victim, her father, and whomever else has a claim to it of her “honor”) to a psychic thing (rape feels especially bad). When that happened, other people could begin to say “Hey, this thing that happened to me feels equally bad! It should be treated the same!”
2. Bolstering point 1, the actual definition of rape has changed over the last few decades to encompass way more conduct than it did under the common law (ie no need for utmost physical resistance, spouses can rape each other, etc), and the rules of evidence have been changed to make rape easier to prove (ie, slut shaming is no longer a valid tactic for the defense in a lot of jurisdiction. In texas, for example, you can only bring up the victim’s past sexual behavior if you are doing so to rebut evidence (ie, “Of course the exam showed she had had sex, she had sex with paul that morning” is ok, “She has gone home and had sex with dozens of men after fraternity parties, what are the chances this time it wasn’t voluntary” is not ok). So we very much live in a world where people can say “Hey, we’ve “expanded” the definition of rape before and most people think it was a pretty good idea. Why stop there?”
3. I think a lot of people operate their personal morality by a subjective rather than an objective standard. Imagine a scenario where sex is “coerced” by social pressure or whatever. If the alleged victim knew in her heart that “yes” meant “no,” and if the alleged rapist knew that “yes” meant “no,” many people feel that the “yes” was a “no.” After all, all the relevant parties thought it was. The fact that, to an objective observer, “yes” generally means “yes” doesn’t enter into it.
But obviously many jurisdictions use an objective standard when assessing consent, and there are many arguments that they should. Unfortunately, laymen aren’t adept at thinking about how moral judgments should differ from legal judgments.
Here’s a thought: What we are seeing in this hysteria over “campus rape,” encouraged by our benevolently creepy masters and mistresses in the education and legal bureaucracy, is the unspoken ambivalence of young women, and affluent society generally, about young women’s exercise of sexual freedom on the same terms as young men. In spite of all the feminist rhetoric, young women really do not feel the same as men do about having numerous meaningless hook-ups. Nor, under the surface, do the older leftists who have presided over the destruction of the old sexual morality (and associated double standard). This ambivalence is being expressed through after-the-fact accusations of “assault” and “rape” following a sexual encounter that a young woman regrets in hindsight. (NB: I am NOT saying that actual rapes and assaults never happen on campus.) I have difficulty making sense, in any other way, of the Department of “Justice” seeking to have colleges penalize only men for sexual encounters in which each partner was intoxicated, had knowingly and voluntarily gotten himself or herself into that state, and the sex was entirely consensual.
Again, I completely agree that “no” should always mean “no.” I just think that a “no” stated after-the-fact should not be given retroactive effect. Women should have the same freedom as men, and should take responsibility for their exercise of it.
With regard to your last paragraph:
First, who is to teach students how to use a condom?
Second, students don’t know how to use a rape whistle?
On a more serious level, you make it out to be far less complex than it oftentimes is.
Example 1: I take a woman out to a frat party and we imbibe a little. Later that night while we’re alone and making out, I put my hand in certain places and she rebuffs my advance. I try again, only to be rebuffed again. Eventually, I force myself on top of her and restrain her from leaving while I perform intercourse.
Example 2: I take a woman out to a frat party and we imbibe a little. Later than night while we’re alone and making out, I put my hand in certain places and I’m rebuffed. I try again, only to rebuffed again. The persistent little bastard that I am (and most guys in this situation who do this are), I try a third and fourth time, to which she finally acquiesces and we have intercourse. The next morning, after she is sober, she expresses her regret in having intercourse.
Are both of these examples of rape? Does she blow her rape whistle in both circumstances? Depending on the situation and the person, strong limits are not always placed on a male who is persistent in his desire. Is it his fault or her decision if they have intercourse and the situation is more like the latter example?
I was certainly reminded of this Douthat op-ed by your comments.
It’s simple public choice theory:
For admins, whatever the outrage of day may be, it will always be handled in a way that increases administrative body counts, salaries, and discretion.
Advocates seek to maximize psychological rewards, not bureaucratic ones, but are otherwise the same.
As long as most tuition payers have the Cargo Cult mentality (“belief that various ritualistic acts will lead to a bestowing of material wealth”) about education the ratcheting cycle will continue.
Part of the reason for rape inflation is that you can’t say anything against it. So there is less pushback as people apply “rape” to new situations, and then those new situations become the norm. Then people apply “rape” to even more situations.
Arnold, when I was a student at Swarthmore (2006-2010), we all got rape whistles during orientation.
The story you tell about voluntary behavior/mixed signals makes sense for some of the cases cited in the swarthmore article, but definitely not for those in the Times piece about Columbia (http://www.nytimes.com/2014/05/04/us/fight-against-sex-crimes-holds-colleges-to-account.html) – and I also think most advocates would argue that they would prefer to go through their universities because they think the criminal system is systematically biased towards perpetrators over victims.