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Author: Corey Yung

3

Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
****
(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.

5

The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?

8

Everyone Likes Affirmative Consent, Until They Don’t

David Bernstein at Volokh Conspiracy points to and agrees with an article by Cathy Young at Reason.com regarding a proposed rule in California to require “affirmative consent” before sexual contact at universities in the state. Such a rule was made most famous over two decades ago when Antioch College adopted a code requiring affirmative consent for every level of intimate contact. Bernstein and Young are not fans of the proposal because, in part, they believe that the use of an “affirmative consent” standard is overexpansive.

Every semester that I teach my Sex Crimes seminar, we discuss the Antioch College rule, Michelle Anderson’s article advocating a similar rule, and affirmative consent in general. I think the pattern of my class discussion is informative regarding the arguments that Young and Bernstein make. Initially, every student is hostile to the Antioch approach (which is broader than the California proposal). They generally come to agree that the rule is at odds with romance and spontaneity in the bedroom. Indeed, the idea of someone forming several oral contracts for each intimate encounter sounds like a “turn-off” to most of my students.

When I add a few wrinkles, however, the students become big fans of affirmative consent. I ask if they would be comfortable if a date started tying them up and spanking them with a leather whip without getting affirmative consent? Would they be okay if someone initiated anal sex without asking?

So, why do they support affirmative consent in those situations, but not in the case of heterosexual vaginal sex? The answer seems to be based upon each student’s norms and conception of deviance. For atypical (subjectively defined) sex acts, students want an affirmative consent model. For “normal” acts based upon a cultural narrative of what is “supposed to happen,” negative consent is sufficient

Does it follow, then, that affirmative consent should be required in all instances? No. The point of the exercise is to illustrate why many sexual encounters might be considered sexual assault by one person (based upon his his or her norms about consent), but not by the other. The more deviant or intimate the act based upon general societal norms, the more likelihood that at least one participant wants affirmative consent. If we are to use consent as the primary element in rape statutes, we should view the discussion of affirmative vs. negative consent as an either/or proposition. Instead, a widely-applicable consent rule needs to recognize that a universal affirmative or negative consent rule is firmly at odds with our sexual culture.

It has been my experience in teaching Criminal Law and Sex Crimes that students, even more so than other areas of law, tend to believe that their norms about consent are both typical and reasonable. And yet, when they start discussing those norms, they discover that their beliefs vary in substantial ways from other students. And it isn’t just law students. Later this year, I will be publishing an article-length response to Jed Rubenfeld’s Yale Law Journal piece retheorizing rape law. Although I was dismayed and shocked by a lot of his contentions, there was one footnote by Rubenfeld illustrating his view of a sexual norm that truly surprised me. Rubenfeld wrote:

But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?

If Rubenfeld were a rape trial fact-finder or legislator, his view of consent with unconscious persons would be very different than mine affecting the case outcome or proposed legislation. We could define that difference based upon affirmative and negative consent (with an unconscious person unable to give affirmative consent), but I think that is unhelpful. From my perspective, the reason that the acts described by Rubenfeld (“sexual contact with the unconscious”) are problematic are orthogonal to consent. And the debate about affirmative and negative consent models often distracts us from other alternative formulations of rape law.

12

More on George Will and Rape

After George Will entered the discussion about campus rape, he encountered a substantial backlash. I was part of the chorus of those criticizing Will. This week, the St. Louis Dispatch decided to drop his column. In my response to Will, I focused on the implicit nature of Will’s argument which allowed any reader to project his or her personal biases about rape onto Will without Will being accountable for his actual viewpoint. That technique has a bit of history in rape trials that I briefly discussed. More people have since joined the discussion defending Will.

David Bernstein at Volokh Conspiracy, while recognizing some possible shortcomings of Will’s article, makes two problematic defenses of Will. Bernstein defends Will’s argument that colleges and universities teach students to value or covet status as a victim as being beyond reasonable debate by misunderstanding the idea of “checking your privilege.” Bernstein writes:

I don’t think that’s reasonably debatable, as it’s exactly what the apparently common trope, “check your privilege” is about; students seen as “privileged” by dint of skin color, sex, wealth, etc., should shut up and let the more authentic and wise voices of members of societies’ victim classes proliferate.

Immediately illustrating the need for people to “check” their privilege, he assumes the story of a Princeton student and Bernstein’s own experience at Yale Law School are indicative of schools across the country to support his contention. Checking your privilege is a principle of humility. We all carry biases and have blindspots based upon various privileged aspects of our lives. Checking your privilege means taking a step back to make sure that you don’t make rash generalizations derived from your privileged position or background. Bernstein does exactly that by assuming that Princeton and Yale are at all typical of higher education institutions. I would guess that a great many of us who attended and/or work at other institutions have had very different experiences than Bernstein and the Princeton student.

Relatedly, Bernstein also feels that a charitable and fair reading of Will does not support the conclusion that Will “suggested that sexual assault victims on college campuses enjoy a privileged status.” I’m a strong believer in the principle of charity in reading texts. However, as I previously argued, Will’s failure to be explicit about the relevance and meaning of his rape story makes charity difficult. While Bernstein includes part of Will’s column to rebut the claim used by the St. Louis Dispatch in dropping Will’s column, I think he leaves out an important portion of the relevant text. Will wrote:

[Students] are learning that when they say campus victimizations are ubiquitous (“micro-aggressions,” often not discernible to the untutored eye, are everywhere), and that when they make victimhood a coveted status that confers privileges, victims proliferate. And academia’s progressivism has rendered it intellectually defenseless now that progressivism’s achievement, the regulatory state, has decided it is academia’s turn to be broken to government’s saddle.

Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.”

That text is then followed by his general discussion of sexual assault on campus. I think a reasonable reader would conclude that Will views the “supposed epidemic of rape” as an example of his conclusion that universities are encouraging students to covet victim status. Indeed, it is that conclusion which frames his entire article as he blames progressivism for that culture. Bernstein’s reading would indicate that the five paragraphs (out of ten total) that Will allocates to the discussion of campus rape is tangential to Will’s main argument. For Will to ask readers to “[consider]” what he sees as the proliferation of “sexual assault” victims, he has to be arguing that the coveted status of being a rape victim is the motivator for is argument to even be coherent. I think the weight of the argument supports the opposite contention, but readers are free to view Will’s article for themselves.

Bernstein also criticizes the process of adjudicating rape cases on campus which is entirely fair (and something I agree with). However, by relying on Will and a Daily Caller article, I think he mischaracterizes the actual federal policy in place now. And while I think a better, universal process is needed, there is a reasonable justification for using a preponderance of evidence standard: the cases and penalties are not criminal in nature.

In my original post, I also contended that the rape allegation as described by Will was rape under existing criminal law (assuming no force requirement applied). It is on that last point that I want to expand in light of some responses my post received.

Will’s story, which he deemed to not constitute sexual assault for ambiguous reasons, is as follows:

Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

Six weeks later, the woman reported that she had been raped.

My post received a bit of push back from Brett Bellmore (at CO in the comments) and Scott Greenfeld, who is a criminal defense attorney and author of the Simple Justice blog. Greenfeld strongly endorsed Bellmore’s comments here and added this statement about the nature of rape:

Definition matters to me. I don’t mean to be uncharitable, but rape (forget legal definition, and substitute any cognizable definition) isn’t something to be decided the next day, or a week later or in the secret imagination of a person who never said no but has an excuse that makes perfect sense to her, or based on absurd rules (any intoxication negates consent) that only apply one way…. The sides aren’t legal definition versus whatever any woman says it is at any given moment. Making up ad hoc claims can’t be sufficient for rape or sexual assault, despite the feminist fashion trend of the words being untethered from any meaningful definition. You don’t seem to share my concern for definitions, which I see as being as politicized a view as Will’s. As for Brett’s comments, they deal with the facts presented, but raise very real questions that are material and relevant, but not politically popular to consider because they don’t support the ideology. He gave what I consider a very clear, cogent explanation, which you were/are unable to see. Again, I attribute your inability to recognize, if not agree with, his points political myopia. If we’re ever to know anything about rape and sexual assault, then we have to have clear, meaningful and viable definitions. There are no such definitions anymore, and while the words are thrown about wildly, and do enormous harm to real people, these words have become meaningless. It’s an unacceptable situation.

I find Greenfeld’s response to be inapposite to my contention because I am arguing in terms of the statutory definitions of rape. If we focus on the events as described by Will, I think the fact pattern fits within modern rape statutes. That conclusion is not based upon what Greenfeld terms a “neo-feminist” view. It is black letter law. The act requirement of non-consent and a sex act are met through evidence of a “no” and penetration. The mens rea for non-consent and the sex act are similarly met absent the introduction of other contradictory statements. As I noted in the comments to my post, “If other facts were presented (such as non-verbal communication after the ‘no’) then the case could go the other way.” But Will chose the example to prove his point downplaying the concerns about sexual assault on college campuses. It makes little sense to introduce more hypothetical facts if Will himself didn’t find them necessary to support his conclusion

The only substantive law arguments that I have been able to gather from Greenfeld and Bellmore are either 1) there is a presumption of consent (which Bellmore openly supports in this case); or 2) there is a resistance requirement. The first point isn’t supported by any modern case law that I know of, but would be interested in reading any such cases that exist. The second point is only true in terms of the law on the books if the incident occurred in Alabama, where “earnest resistance” still must be shown as part of the force requirement. If either wants to argue that the delay of a “few minutes” renders the original “no” invalid, they are welcome to say so. I would find such a conclusion to be troubling, but at least the terms of the discussion would be set.

As it stands, I think there primary objections to Will’s story being considered rape are based not on substantive law, but on credibility or possible additional facts. On those points, I don’t expect any agreement. However, in applying the law as codified, I would expect to find common ground. The discussion of the six week delay and other questions about the victim’s story raised by Bellmore and Greenfeld are issues of credibility. Although I am still uncertain about the warrant for the conclusion that a six week delay undermines credibility, the overall points in this area are irrelevant to my claim that Will’s story describes a rape under existing substantive criminal law. I do think Bellmore and Greenfeld’s overall take on Will’s story reflects a widespread conventional wisdom. However, that perspective is, in my opinion, at odds with the law on the books.

1

Plea Bargaining, Reliance, and Sex Offender Restrictions

Judges often refer to a plea deal as subject to the rules of contract law. However, when judges make that statement, they usually backtrack and realize how poorly contract law operates in the criminal domain. The role of the judge as a third party to the deal as well as a lack of normal consideration are particularly difficult to square with typical contract rules. The ongoing struggle in plea deals involving sex offenders is particularly illustrative of how plea bargaining sometimes operates in an environment of anarchy.

Doug Berman points to a Second Circuit opinion today that demonstrates how the concept of reliance is essentially meaningless in a world where legislative enactments apply to classes of, and not individual, defendants. In the case, a defendant pled guilty to a misdemeanor charge of attempted possession of a sexual performance of a child. At the time of his plea, the law required 10 years of registration for his sex offender status and allowed for a petition to remove his name from the sex offender registry afterward. The defendant complied with his registration requirements for the entire decade and then petitioned to have his name removed from the registry. However, in the intervening time period, the legislature extended the time frame for registration for his class of sex offenders to 20 years and removed the procedure for the defendant to have his name taken of the registry. The Second Circuit saw no constitutional or other problem and denied any relief to the sex offender. I wanted to draw attention to one particular section the opinion:

Doe also argues that he was deprived of due process when, as he asserted in his complaint, despite the sentencing court’s promise to him, the Legislature amended the law to abolish the petition for relief from registration. We are no more persuaded by this second argument than we were by the first. There is no serious dispute that the New York State Legislature provided constitutionally adequate process simply by enacting [the SORA amendments], publishing [them], and . . . affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those
requirements.

Although prosecutors often deliver such promises to defendants, this case was particularly interesting because the sentencing judge further assured the defendant that he would be able to petition to have his name removed. However, the Second Circuit was unpersuaded because it construed the relevant due process right as one of notice related to subsequent legislation. As long as the defendant received notice of the subsequent amendments, there is no constitutional violation under the Second Circuit view (which is universal among courts as far as I know).

Using contract law, we might expect a different outcome. After all, in Santobello v. New York, the Supreme Court found that a prosecutor was in breach of a plea deal by violating a term of the plea contract (by recommending a sentence despite a promise not do so). Thus, we might think that defendants can rely on parties to plea deals (prosecutors and judges). However, many sex offenders have accepted plea deals because of statements made by prosecutors and judges based upon statements that ended up not being true. Sometimes prosecutors have assured defendants that they will not have to register because they are pleading guilty to a nonsexual offense. However, federal registration and some state registration requirements have been subsequently held to apply non-categorically meaning that the underlying facts of the case control the obligation to register. In other cases, like the Second Circuit one from today, prosecutors and judges have made accurate statements of law at the time that are rendered false through subsequent legislative action. And yet the reliance of defendants on such statements and promises have been ignored by courts across the country. In all cases, though, sex offenders are being denied any relief because cases like Santobello are interpreted as only applying to actions related to the sentence by the judge and not so-called collateral restrictions made by the legislature. This might just be the common exception-making that goes on when cases involve sex offenders. However, I think the problem is even more fundamental. The Supreme Court’s deconstitutionalization of plea bargaining and the difficulty in applying contract rules consistently has left the process unrestrained in certain contexts. The case today illustrates that a defendant who is considering a deal for a case involving sex crimes should make no assumptions about the status of sex offender requirements based upon present law. General principles of reliance and fairness simply have no role under current doctrine when collateral restrictions are involved.

8

George Will and more Politicization of Rape

George Will joins the chorus of conservative authors writing about rape on college campuses. As with other recent articles, Will’s piece downplays the problem of rape on campuses. He writes:

Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.” Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

Six weeks later, the woman reported that she had been raped. Now the Obama administration is riding to the rescue of “sexual assault” victims. It vows to excavate equities from the ambiguities of the hookup culture, this cocktail of hormones, alcohol and the faux sophistication of today’s prolonged adolescence of especially privileged young adults.

Will’s decisions to surround “sexual assault” with quotation marks and emphasize the passage of six weeks before the victim reported the rape belies a disbelief that substantially colors his judgment. Will leaves it to the reader to guess why he doesn’t view the alleged events as rape. I find that omission to be notable. As is often true in rape trials, certain arguments work better when implied than when explicitly stated. The most famous example is perhaps Roy Black’s extensive cross-examination of the alleged victim in the William Kennedy Smith case. Black went through a series of questions about the decision of the alleged victim to wear her underwear after she had said she was raped. He was especially indignant when she testified that she even wore her “panties” when she went to see her mother. If Black actually stated explicitly that “there was no rape because the alleged victim wore the same underwear afterward,” it would have sounded ludicrous. However, the questioning about the panties and on several other topics served to make the jury believe the alleged victim was not acting like a “real” victim. Will seems to be playing the same rhetorical game. Was the Swarthmore incident not rape because the alleged rapist previously had sex with the alleged victim? Did “no” mean something besides “no?” Is sleeping next to someone automatically consent to penetration (even with an explicit “no” acknowledged)? Does a six week delay indicate a lack of credibility? Will doesn’t say because his argument would sound hollow if made explicit. Instead, he joins Roy Black in playing on the biases of the reader/listener without being accountable for potentially ugly implications of his arguments.

Will also has some questionable interpretations of relevant statistics:

The administration’s crucial and contradictory statistics are validated the usual way, by official repetition; Joe Biden has been heard from. The statistics are: One in five women is sexually assaulted while in college, and only 12 percent of assaults are reported. Simple arithmetic demonstrates that if the 12 percent reporting rate is correct, the 20 percent assault rate is preposterous. Mark Perry of the American Enterprise Institute notes, for example, that in the four years 2009 to 2012 there were 98 reported sexual assaults at Ohio State. That would be 12 percent of 817 total out of a female student population of approximately 28,000, for a sexual assault rate of approximately 2.9 percent — too high but nowhere near 20 percent.

Beyond Will’s untested assumption that Ohio State is representative, he fails to consider other possible explanations for the reporting gap. Indeed, one of the central reasons why schools are being investigated for Title IX violations is that rape reports to campus police are not being counted in final tabulations sent to the federal government. Will simply assumes his conclusion by finding the survey data to be not credible. He presumes that any inconsistency between the two statistics indicates the 1/5 number is wrong because of his own worldview. Yet he gives no reason to prefer Ohio State’s self-reported numbers to that survey data.

Will’s involvement, as well that of the AEI, is notable. With recent media attention, it seems that rape has become a political football. And that fact is a disservice to victims and innocent defendants alike.

12

The National Review and the Politicization of Rape

Perhaps triggered by the Obama administration’s call to action regarding campus rape, the National Review Online has published a series of fact-deficient articles about rape in America. Mona Charen, A.J. Delgado, and Thomas Sowell collectively substantially downplay the seriousness of sexual violence while engaging in extensive victim blaming. All three pieces are marked by overheated rhetoric, including Sowell’s surely record number of uses of the word “lynch” in an article not about race or actual lynching. However, I want to look past the rhetoric to discuss the substantively problematic statements made in the three articles. In particular, these stood out to me:

  • “Of course the culture must teach men not to rape. Western culture has been doing so for thousands of years. Next to murder, rape is the most harshly punished crime.” – Charen

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. Even among the number that are reported to the police, prosecution is rare, conviction is rarer, and lengthy incarceration is the outlier event. RAINN estimates that just 3 out of 100 alleged rapists see a day in prison for the rape which they are accused (edited as noted in the comments).

  • “Is it not counterproductive to lump victims of violent rape in with victims of ‘sexual assault’?” – Delgado

This rhetorical question illustrates a misunderstanding of modern rape law and the debate on campuses about rape law enforcement. In many jurisdictions, there is no separate crime of rape. Instead, there are just degrees of sexual assault. Delgado could properly argue that there is an important distinction between groping (low-degree sexual assault) and rape (high-degree sexual assault), but she doesn’t identify anyone actually lumping them together.

  • “Violent-crime statistics — including sex crimes — have been declining for two decades. Did all the bad guys suddenly decide to enroll in universities? No one can explain it, other than to claim that rapes must have been underreported in the past (a claim that is, conveniently, impossible to disprove).” – Delgado

As my recent study indicates, declining rape rates in America are more indicative of police practices than genuine decreases in sexual assault. In fact, the evidence strongly points to a rise in rape over the last twenty years. However, campus rape specifically is simply understudied and poorly understood. There isn’t good evidence either way about rates of reporting, conviction, rates, or incidents on college and university campuses.

  • “After all, for every legitimate, actual rape claim there may be another that was not: a girl who cried rape.” – Delgado

Even with the implied caveat of the words “may be,” this claim is simply wrong. Delgado largely bases this claim on an anecdote about a college friend and some cherry-picked incidents. The plural of anecdote is, of course, not data. In fact, studies of false accusations for rape have generally shown a false reporting rate of 2 to 10%. In the context of other crimes, particularly theft, this rate of false reporting is not unusual and generally indicates, compared to other crimes, false reports of rape are low.

  • “The young women who find themselves in a rough world of sexual insensitivity and sometimes even brutality are looking in all the wrong places to lay blame. They should look left; to the cultural left, that is, including the feminists.” – Charen
  • “But those who are whipping up the lynch-mob mentality have shown far less interest in stopping rape than in politicizing it. Many of the politically correct crusaders are the same people who have pushed for unisex living arrangements on campus, including unisex bathrooms, and who have put condom machines in dormitories and turned freshman orientation programs into a venue for sexual ‘liberation’ propaganda.” – Sowell

Both Charen and Sowell want to blame some monolithic “left” for rape on campuses. The strangeness of this claim is particularly questionable from Sowell as he is simultaneously decrying the politicization of rape. At the core, both claims seemingly rely on the premises that liberalism teaches promiscuity and promiscuity leads to rape. Ignoring the first premise, the second one is entirely unsubstantiated. There is simply no good evidence that a persons decision to have multiple sex partners over any period of time makes them more likely to be a rape victim. Indeed, the belief of Sowell and Charen is a common rape myth and why every American jurisdiction has a rape shield law.

I respond to the National Review articles not because I believe the authors will change their views. Rather, I think the politicization of rape embodied in the three recent articles is a serious obstacle to successfully decreasing sexual violence in America. Rape is not a political football to be played with. As I always talk about with my Sex Crimes seminar students, there is nothing about rape (with the possible exception of its relevance to debates about abortion) that necessitates it being a Left-Right issue. Generally speaking, the right-wing has been more supportive of hard-on-crime policies and the left-wing has been more considered with gender issues (where rape has historically fit). And so, there should be a natural overlap within which reasonable discussion can occur.

When the President says we need to do more about rape, the proper responses should be, “what should we do?” and “how can I help?” It says much about our ugly politics that blaming the “left” is considered a reasonable response. Rape is a horrible crime and rape victims are real people. Casting them aside to score political points is simply unacceptable.

Sowell’s larger point illustrates the potential upside of non-partisan debate about rape. Sowell points to the dangers of campus adjudication of rape complaints. On this issue, reasonable minds can disagree. Campus tribunals are often poorly designed, susceptible to undue influence, and inconsistent. Further, university penalization of those found guilty through campus proceedings is all over the map in terms of severity. On the other hand, the criminal justice system moves far too slow and often not at all in rape prosecutions. That means on-campus victims are often left dealing with their rapists without some alternative to the criminal justice system. The current system fails everyone and clearly needs improvement. Rather than politicizing the issue, Sowell could have offered any litany of suggestions on how to harmonize, improve, or speed up the criminal and campus justice systems.

Not too long ago, conservative Senator Sam Brownback and liberal Senator Paul Wellstone co-sponsored the first major federal legislation specifically focused on human trafficking, the Trafficking Victims Protection Act. The natural overlap between the hard-on-crime approach of Brownback and Wellstone’s concern for women’s and children’s issues led to cooperation that seems almost unfathomable in today’s toxic political climate. Hopefully, the recent efforts to turn rape into an issue of partisanship will abate and similar federal and state laws can emerge to address the ongoing and serious problem of sexual violence in America.

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Crime Statistics at Big Universities

I have continued my efforts to make sense out of the Clery Act crime data and made a couple more interesting discoveries. In trying to limit noise and floor effects in the data, I’ve been focusing on large 4-year schools with dorms. After eliminating secondary campuses and mislabeled schools, I found 54 universities with at least 30,000 students fitting the other criteria. Even at those big schools, most of the tracked crimes rarely occur. For example, from 2008 to 2012, for any of those 54 schools, there was 1 murder (Virginia Tech, 2009) and 2 manslaughters (Florida State, 2011; Michigan State, 2012). Even data for the tracked crimes of aggravated assault, arson, car theft, non-forcible rape, and robbery at the 54 biggest campuses in the country are so infrequent that any incidents are difficult, if not impossible, to differentiate from noise. That leaves only two Clery Act crimes that are reported to occur with a high enough frequency such that we might hope to learn something comparative about on-campus crime: forcible rape and burglary.

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More Oddities in College Campus Rape Data

Following up on my post from yesterday, I keep coming across more strange data regarding campus rape from the Department of Education. Importantly, higher education institutions provide this data because of statutory obligation. And yet, it seems hard to believe that most institutions are taking their legal obligations seriously. However, not all of the data for schools is unbelievably low. Consider these odd reports:

Michigan State University College of Law, 1,024 students, 49 rapes from 2010 to 2012

Michigan State University Main Campus, 48,783 students, 49 rapes from 2010 to 2012

I’m guessing that the law school is getting blamed for all of the main campus rapes which are being double counted. Otherwise, the College of Law (which is physically located on the main campus) is one of the most unsafe places for sexual violence in the United States. The odd Michigan State data also highlight a general Big 10 pattern of seemingly higher reporting levels. Big 10 schools report far more rapes than other schools (with only the Ivy League institutions coming close in total counts). In 2012, these were the totals from each Big 10 Conference school with overall ranking (after the jump):

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College Campus Rape Statistics

This post is meant to be  informative, but also includes a request for help. As much as I have criticized the data supplied by many police departments to the FBI, the numbers provided by colleges and universities seem more problematic. The media spotlight has turned onto campus rape in the wake of the bungled Jameis Winston investigation and Obama administration’s call to action. However, based upon the government’s data, the magnitude and nature of the problem of sexual violence at institutions of higher learning cannot be reliably determined.

The Department of Education data concerning over 11,000 higher education institutions in the country appears to be garbage. In 2012, for example, the individual school data only lists 45 non-forcible campus rapes nationwide. In contrast, there were 3,943 forcible campus rapes in the Department of Education data. We would expect non-forcible rapes to be far higher than forcible rape, especially on college campuses. And both rates are far below the national average and contrary to survey data about the rate of sexual assault on college campuses. Because it appears that elite and large state universities are reporting more forcible rapes, at least one author has tried to blame this on liberalism in academia. The far more likely explanation seems to be that the data is just worthless and/or most schools simply aren’t reporting rapes at all as required by law. Interestingly, the school facing the greatest scrutiny in 2012 in the aftermath of the revelations about Jerry Sandusky, Penn State, reports 56 forcible rapes, 22 more than the next highest school (and at least twice as many as all but 2 other schools). In contrast, in 2010, before the Sandusky investigation, Penn State reported only 4 forcible campus rapes based upon the Department of Education data. Almost 10,000 institutions are reported to have had 0 campus rapes in 2012. That’s simply unbelievable.

As I am hoping to research this topic a lot more in the coming months, I was hoping to contact someone about my concerns. However, I know no one in the Department of Education and the Department of Education website hosting the data provides no contact information that I can find to those actually responsible for collecting and organizing the data. If anyone can point me in the right direction or has some insight into the data, I would greatly appreciate help.