April 21, 2006

posted by Michelle Anderson

Apart from the interesting social psychology experiments you cite, are there examples in the context of criminal litgation in which the alcohol consumption by an accused rapist worked as a defense or by a victim as consent? The reason I ask is my (perhaps overly naive)expectation that jurors and judges weigh the issues they face with more gravity than do experimental subjects.

Certainly, the actual presence of a "date-rape drug" in lab analyses could be of interest. Should we say the same about unsourced speculation? This will be a filthy enough case on the facts. Building on such guesses seems a little over the top.

I know that this blog is primarily interested in the legal aspects of this case ...

But I think the news coverage of this event is missing the point. Racism ... inebriation ... whatever.

Why was this party even happening in the first place? What is wrong with our society that allows our athletes, our "heros," to act in such a disgusting fashion? I find the whole event disgusting regardless of whether anyone was raped and wouldn't mind seeing everyone at that party kicked off the team and academically censured. Consensual has nothing to do with it.

Our society needs to smack our athletes upside the head, and smack them hard. The sense of arrogance and entitlement in young athletes has gotten completely out of hand.

I agree that it's an interesting case, and there are some interesting questions raised. I just want to make sure that unjustified conclusions aren't drawn.

The male attacker was held less responsible for the rape when he was intoxicated than when he was sober. By contrast, the female victim was held more responsible when she was intoxicated than when she was sober.

“When portrayed as moderately or highly intoxicated, the victim was assigned significantly more responsibility/blame and the perpetrator significantly less.” It noted, “At the same time, perpetrators were held less responsible and blamed less when portrayed as moderately or highly intoxicated.”

The second language is more gender-neutral, and I think that's the best conclusion that can be drawn. You don't mention whether in the first experiment people were asked to read a story about a female student sexually assaulting a male student when one or the other was intoxicated. If not, then the words "male attacker" and "female victim" give undue stress to the sex of the characters rather than their attacker/victim roles. Maybe if the experiment also included a story with the sexes reversed the correlation would be to the roles rather than the sexes.

To be more succinct: All we can safely say from what you've posted is that people tend to assign less blame to an inebriated attacker and more responsibility to an inebriated victim. Asserting a sexual correlation to the responses based on the information is unjustified and needlessly inflammatory.

I don't see it as a double standard. Rape is a criminal offense in which only one of the parties is on trial, not a tort in which we're allocating blame between the two parties. When either party in an alleged rape has been drinking, it's more likely memories are faulty or that the situation was genuinely ambiguous or confusing. It's a peculiar view of sex to think there is a fixed quantity of blame to be allocated for a sexual encounter. The author's decision to equate the acquittal of a male rape suspect with blaming a female rape victim is mistaken.

This is a very interesting study and topic. I would like to point out that when more alcohol is involved, the question is generally regarding consent rather than force. It is easier to believe a sober victim did not consent and was forced, than it is to believe an intoxicated victim did not consent. I have heard the story from both side a hundred times, and when force is not in question it is very difficult to assign blame. A very drunk victim is more likely to have consented to sex and not remember it in the morning than a semi-drunk victim. Likewise for the suspect; if a very intoxicated suspect sleeps with a very intoxicated victim and the victim cries rape afterwards, it can be very difficult to accurately assign blame. Which brings us to FXKLM's point that determined levels of innocence (or lesser degrees of guilt) on the part of the suspect do not mean that the victim is being blamed. It means that lack of consent is harder to prove. Let us all remember that even in sexual assault cases, we are innocent until PROVEN guilty. Investigations that are reliant on memory and consent are very difficult to prove when alcohol is involved.

Michelle,

The male attacker was held less responsible for the rape when he was intoxicated than when he was sober. By contrast, the female victim was held more responsible when she was intoxicated than when she was sober.

Very interesting results, and unfortunate. This suggests that the single worst case for the victim is where both parties have been drinking. (As long as the victim is not more impaired than the attacker).

Add alcohol to the equation, and a lot of our ideas about consent don't work so well, which makes a lot of sense. I like your own negotiation model, which seems to deal with this problem nicely. On the victim side, there are very real limits on what one can negotiate while intoxicated. Probably more importantly, the concept of negotiation removes the "I was drunk and didn't realize that she wasn't consenting" aspect, which seems to be even more disturbing. A drunk person in a contract case has no defense of "I was too drunk to realize that negotiation hadn't taken place."

As someone reading the local coverage of this case in the Raleigh/Durham/Chapel Hill area, I can tell you that the story is not thus far going down the all-too-well-worn "boys will be boys" path. Something closer to the opposite is true: the story has brought to light that this team has been out of control for a long, long time, that a stunning percentage of the team's membership has been cited for alcohol-related offenses, and that abusive and rude behavior has been their style. The coach has been fired, presumably for failing to guide his players' behavior in the right direction. The general sense on campus and in town is one of outrage and dismay at the team's drunken and abusive ways.

(This is not to say that at an eventual trial, the defense won't attempt to exploit the "boys will be boys" idea, of course.)

To Seth: while this case is symptomatic of a host of psychological issues (which is true of any rape) I think the more appropriate targets of "smacking" are the school administrations and athletic sponsors. While I am a staunch believer in personal responsibility and accountability, as a former Division I athlete I can say with confidence that schools will turn the other cheek when confronted with allegations of wrongdoing on the part of their star athletes. I think what Duke has done in response to this incident (firing the coach, suspending the accused) is a bold step. I am curious, however, how much of this is due to the wide media coverage of this event.

I don't think anything would have been done about the coach if it was Duke's basketball team.

If it were Duke's men's basketball team, Coach K. would never have allowed the team to get this far out of control, regarding parties, alcohol abuse and hiring dancers.

Congratulations on your new job!

Just want to remind everyone here, the defendants have been accused, not convicted. The standard in the US is not "innocent until indicted".

I have a question for all of you, especially after hearing everyone's take on the duke incident. What if a girl is highly intoxicated and passed out on her bed from consumtion and is raped. Is it possible to prove rape if she was sleeping when it happened? How will people believe her and not think that she must have gave consent thinking she doesnt remember? especially when she had just layed down with a boy and right before passing out she had said no and pushed away.