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.