The National Review and the Politicization of Rape

Corey Yung

Corey Rayburn Yung is an Associate Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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12 Responses

  1. Griff says:

    This is a very minor quibble, but that RAINN stat seems unnecessarily misleading. Even taking their numbers totally at face value, the analysis shows that only 3% of rapes lead to a prison sentence, not that only 3% of rapists ever wind up in prison.

  2. Brett Bellmore says:

    “This contention, under the most charitable interpretation, is only true if we focus on the small handful of rapists who are prosecuted, convicted, and harshly sentenced. The reality is far different when looking at the entire universe of rape complaints.”

    Are we are expected to assume that all complaints are valid? Is this the usual demand that we’re not taking rape seriously enough, so long as we require the cases to actually be proven beyond a reasonable doubt, instead of just assuming that any woman who cries rape is doing so honestly and accurately?

    Then there’s the usual question in campus rape cases: Bob and Sue both get drunk, they have sex, drunkenness means that it wasn’t legally voluntary, so a rape has taken place. But Bob and Sue were BOTH drunk.

    Are we going to prosecute both of them for rape? And, if not, explain why the proper alternative to both isn’t neither.

  3. Corey Yung says:

    Hi Griff,

    That’s a fair point. My colloquial wording could create the impression that the rapists never go to prison for any other reason which is an unknown. I’ll edit the post to make it clearer.

    Hi Brett,

    In general, I think it is fair to say that 2 to 10% of rape complaints are false (with most studies pointing toward the low end). However, we have no information if college students are different in that regard. One of the reasons I have been posting about campus rape in other recent posts is to highlight how bad the Clery Act data is. My hope is that before the end of this year, I will be able to present a clearer picture of what is happening regarding sexual violence on college campuses. In particular, I’m hoping to provide information about the role of campus police in gatekeeping or embellishing complaints. I don’t think we can say with any certainty that the scenario you describe is a “typical” one because our data is so deficient.

    As for your hypothetical, it is a question that I pose to my Criminal Law and Sex Crimes classes every time I teach. The answer I give is that, under existing law, the prosecutor can prosecute both, neither, or either party. Prosecuting both is a rarity, but is analogous to punishing both parties in a drunken bar fight. Prosecuting neither strikes me as the worse option if the prosecutor is confident that some crime occurred. Prosecuting one party can be dangerous if it is based upon gendered assumptions. Unfortunately, discriminatory enforcement claims under Equal Protection are almost impossible to win and provide little check on prosecutors always choosing to prosecute one gender in such cases.

    One other issue that few people actually realize regarding your hypothetical is that rape with non-consent due to excessive voluntary intoxication is not prosecutable in about half of the jurisdictions in this country. Even in jurisdictions recognizing those cases as rape, the degree of intoxication necessary for the prosecution is quite high and difficult to prove beyond a reasonable doubt well after the fact.

    • Griff says:

      That wasn’t exactly the quibble I was making (though it’s also true). All I meant was that 3% of rapes is not the same thing as 3% of rapists, unless every rape is committed by a different person. Studies suggest that the average rapist actually may commit something on the order of six rapes (that number comes from this piece: http://www.slate.com/blogs/xx_factor/2014/05/01/campus_sexual_assault_statistics_so_many_victims_but_not_as_many_predators.html ). So if that number is right, 3% of rapes would probably account for somewhere between 10% and 20% of rapists. Still not a great conviction rate, but I suspect it’s more comparable to other serious non-homicide crimes than 3% is.

      • Corey Yung says:

        Hi Griff,

        You absolutely right about that. Estimates vary wildly as to how many rapists are repeat offenders pre-arrest. I think the best studies actually indicate that over 90% of rapists commit more than one rape before being caught. And because most rapists do not attack the same victim multiple times, there are likely significantly less rapists than rape victims. I think my edit addressed this point even though I didn’t intend it to. I’m sorry for the confusion on my end about what you were trying to say.

  4. AYY says:

    Sorry Professor, but you haven’t rebutted Charen’s point. Her point is that when there is a conviction for rape, it’s heavily punished. Saying that only a small number of alleged rapists are actually punished doesn’t rebut it. Some rapists escape punishment because they can’t be identified. Some alleged rapists aren’t punished because the prosecution can’t prove that what they did was rape.
    Same thing with the Delgado quote. What the law might be in any particular jurisdiction doesn’t tell us whether the classification is counterproductive.
    Your response to Charen’s criticism of the left also misses the point. Her point is that the cultural left has adopted an ideology that men should not be chivalrous or protective of women, and therefore they are more likely to assume consent in an ambiguous situation than they would have if the culture had retained a more traditional attitude. Sowell seems to be making more or less the same point. Then again they could be saying that there are too many on the Left who see men as oppressors and potential rapists so why be overly fastidious about silly technicalities like whether the men actually committed rape.
    When the President says we need to do more about rape, our response should be “It’s wonderful that you can take the time from dealing with Russia, the Obamacare problems, Benghazi, the economy, the Taliban, the IRS scandal, and the Donald Sterling incident, but rape is a state law issue Mr. President, and there are state laws against it. Your OCR has issued a Dear Colleague letter and colleges are getting sued right and left, so maybe the feds should let the states handle the problem.”
    Yes rape is a horrible crime. No one is denying that. But short of better day to day police work, there’s probably not much that anyone can do. One rape is too many. One false rape claim is also too many.
    The question though is whether the campus sexual assault problem is being used as a tool by the left to cater to feminist pressure groups, to expand federal control over colleges and to divert attention away from the Administration’s domestic and foreign policy failures. I’ll leave it to others to draw their own conclusions.

    • Tacodave says:

      Boom goes the dynamite!

    • Corey Yung says:

      Hi AYY,

      There are two major problems with Charen’s quoted point: 1) her contention lacks context because few rapists are punished for each complaint made against them; 2) even among those punished, many don’t receive the harshest punishment authorized. As to the first point, Charen’s comment is simply misleading without context. A greater percentage of murderers are caught and punished than rapists. And certainty of punishment matters just as much as severity. Regarding the second point, many jurisdictions punish the few rapists that are prosecuted far less than other criminals. In Arizona, for example, an average defendant will receive a far longer sentence for child pornography possession than rape of either a child or adult. Numerous drug and weapons crimes receive higher sentences than rape on average. It simply isn’t the case that rape is punished most harshly after murder.

      Concerning the protective, chivalrous male that the “left” is somehow destroying, history tells a different story. During the time when such values were central to America’s beliefs (if there was such a time), there was no indication that rape was less prevalent. And among more “right-wing” communities today, rape seems at least as common as in liberal bastions by the best data available.

      And if you truly believe that the President’s time is better spent on investigating Benghazi, the IRS scandal, or Donald Sterling’s racist speech (?) rather than on improving rape policy, I think our worldviews are likely incommensurable. It is particularly strange that you say that the problem is being taken care of through numerous lawsuits and it is a state matter. The lawsuits regarding campus rape are almost exclusively being brought through federal law because states rarely offer a remedy against higher education institutions. And President Obama should, in my opinion, be doing far more to offset the continuing state failures to effectively decrease sexual violence.

      • Brett Bellmore says:

        “And if you truly believe that the President’s time is better spent on investigating Benghazi, the IRS scandal, or Donald Sterling’s racist speech (?) rather than on improving rape policy, I think our worldviews are likely incommensurable.”

        I’m an engineer, hired to design tools. If the bathroom at work were filthy, you might think I ought to clean it, but we have somebody else who has THAT job, I have my own to do. If I’m scrubbing the toilet, I’m not updating prints or designing the latest tool. To say that the President ought to be concerning himself with a long list of matters rather than working on rape policy, is not to say that rape policy isn’t important.

        It’s to point out that somebody else has THAT job. And that he really needs to let them do it, and concern himself with the things that are HIS job. Because state prosecutors aren’t going to be handling foreign policy while he’s taking on their responsibilities, are they? No, they are not.

  5. One More Date-Rape Accused Fights Back in Court – Sues Drew U, Accuser
    Men Have Legal Precedent to Fight Accusers, Unfair Proceedings, and Bias in Hearings

    As he had predicted, a Pennsylvania court ruling that a student accused of date rape could sue his college, its employees, and his accuser, based on allegations that the charge was unfounded, and the procedure unfair and biased, seems to have spurred similar law suits – at both Columbia and Drew- in what could become a torrent, says law professor John Banzhaf.

    With so much attention focused on the alleged failures of many universities to forcefully prosecute male students accused of date rape or sexual assault, it’s interesting to see that the other side of the coin – the problem of universities whose judicial proceedings are unfair to the accused, and/or are overzealous because of pressure from female students, the federal government, or otherwise – is now receiving some legal attention, says Banzhaf, who has won over 100 sex discrimination actions.

    This recent lawsuit involves a Drew University student who is suing his university and two of his classmates, claiming that his academic career was ruined by false date rape allegations, and by Drew University’s apparent bias against males in such proceedings.

    The student says the female accuser claimed that their sexual encounter wasn’t consensual out of fear that her former boyfriend would not get back together with her, that the complainant had told a friend that the sex was consensual but later asked the friend to lie about the conversation, and that the mother of the accuser also tried to coerce the friend. The male student also claims that the University did not follow its own procedures for dealing with such situations.

    The University, the complainant, and her former boyfriend all “refused to cooperate” with police, no complaint was ever filed, and the police dropped their investigation. Nevertheless, the school allegedly barred the male from most campus buildings, even though it had earlier sent him an email saying he was “not responsible” for the allegations made by the two students.

    The Drew episode, like the Columbia event, is a classic ‘he said, she said’ case, notes Banzhaf, where she claims she didn’t consent to the sex, and he claims that she did.

    The Columbia plaintiff claims in this federal suit that the university tried to make an example out of his case, and succumbed to pressure from student activists in finding him guilty.

    For example, he noted that some 23 students reportedly have filed federal complaints against Columbia University for allegedly failing to protect women from sexual assaults, and almost 100 faculty members sent a letter asking for a strengthening of the university’s sexual assault policies.

    The male student at Columbia claims that the female student waited 5 months, during which there were no allegations of any wrongdoing, to finally file a complaint against him.

    Indeed, he also said that a few days after the incident, the complainant sent a text message to the him expressing concern about the “social impact” if their sexual activity became known to their mutual friends.

    She subsequently allegedly expressed additional doubts about possible repercussions several weeks later – all apparently suggesting that the sex was consensual rather than rape.

    His complaint alleges that he was “deprived of the most basic due process and equal protection rights and was discriminated against on the basis of his male sex. . . . In essence, there was a rush to judgment, pandering to the political climate on campus and pressure from wom[e]n’s groups, with little thought, if any, given the actual specifics.”

    The Pennsylvania ruling gave those wrongly found guilty in a campus tribunal a powerful new weapon – they can sue the university, the employees who participated in the proceedings, and even the accused herself in federal court for substantial monetary damages and other remedies, notes Prof. Banzhaf, who was twice called a “radical feminist” for successfully challenging all-male clubs.

    After a school tribunal at Saint Joseph’s University in Pennsylvania found a male student to have committed sexual assault arising out of an incident of allegedly consensual sexual intercourse, he went on the offensive and took legal action, says Banzhaf.

    The Pennsylvania federal court held that he was entitled to sue the private university under the state’s Unfair Trade Practices and Consumer Protection Law, and that he could also sue the university, university employees, and the female complainant for defamation (slander), with the court holding that their accusatory statements about him were not legally privileged.

    Interestingly, the court said that he could also sue the female complainant for intentionally interfering with his contractual relations with the school; an important ruling, suggests Banzhaf, because for such an intentional tort the male student can seek much higher punitive damages in addition to general damages.

    Also, the court ruled that the mere fact that the school tribunal found that the male student had committed the wrongful act complained of was not conclusive as to his guilt or innocence, and did not shield the female complainant from this type of legal liability.

    Several additional claims by the plaintiff were not accepted by the Pennsylvania federal court on the basis of the complaint which had been filed, but the court said that the male student was not precluded from bringing up these claims again, provided they were more properly pleaded.

    These legal claims included, said Banzhaf: breach of contract, violation of Title IX (discrimination against him by the school on the basis of his gender), negligence, making public statements which place him in a false light, and intentional infliction of emotional distress (which might also warrant punitive damages).

    “Female university students in ‘he said, she said’ rape and sexual assault cases, who were dissatisfied with the way the school handled the situation, are increasingly seeking legal remedies. But now men who feel that the pendulum has swung too far, or that they were not treated fairly in school judicial proceedings, suddenly also have powerful legal weapons on their side.”

    Also, says Banzhaf, it is likely that some attorneys will take these cases on a contingency fee basis, so that both rich and poor students can go after the universities, their faculty and staff, and any women who improperly accuse them.

    Female students, knowing that they may have to repeat their allegations under oath in open court, may think more carefully before bringing any unfounded charges, he predicts.

  6. Brett Bellmore says:

    “A greater percentage of murderers are caught and punished than rapists.”

    And this is entirely to be expected, it unavoidable short of instituting a system of kangaroo courts.

    Look, very few people volunteer to get their throats cut, or a bullet through the brain. So, when you discover that someone has been beaten to death with a tire iron, barring a serious basis for thinking it was self-defense, you can be quite confident that a murder has been committed, and if you can identify the person who did it, convicting them will be fairly straightforward.

    Many, many people volunteer to have sex. That sex has taken place is no proof AT ALL that rape has taken place. You have to establish that it was involuntary.

    Now, if you’ve got defensive wounds, or a context which argues strongly against consent, (Sex taking place in a dark alley with a stranger, say.) you’re probably good to go. But, absent these things, it comes down to “he said, she said”, and somebody’s unsupported allegation is an awfully flimsy basis on which to convict someone of a major felony.

    This is why the push to “do something about rape” usually involves lowering the burden to convict relative to other crimes, establishing an assumption that allegations of rape are true, and so forth. Treating rape utterly unlike other crimes. Instituting those kangaroo courts.

    Yeah, I can see that getting rid of the safeguards against wrongly convicting somebody would be convenient. But men are not going to agree to the feminist demand that they be permitted to jail any man who they afterwards regret having had sex with. Just not going to happen.

    So, think of something else. Oh, hey, here’s an idea: Don’t get drunk at parties and have sex. Or is that too complicated?

  7. Brett Bellmore says:

    Let me add that a culture of promiscuity really does make prosecuting rape more difficult, because the more casual people are about having sex, the less you can simply presume that any given instance of it wasn’t voluntary. If people go to parties and voluntarily have sex with somebody they’ve just met, the fact that you didn’t previously know the person who had sex with you ceases to be conclusive evidence that you didn’t consent to it.

    Rather like, if people actually did spontaneously hand their wallets over to strangers on a frequent basis, you couldn’t prove somebody was a pickpocket by simply demonstrating that they had your wallet. You can only presume something was involuntary if it’s something people don’t frequently do of their free will. Things that people will do voluntarily have to be presumed to have been done voluntarily, absent evidence to the contrary.