George Will and Sexual Assault

I am a college professor, and a year from now the first of my three daughters will be preparing to head off to college. So naturally I have some thoughts on George Will’s comments about sexual assault, and I’m pretty critical of them. I’m not anti-George Will, but he would have done well to set this column aside and given it considerably more thought.

We’ve hashed out the issue of “coveting” victim status, so let’s set that aside, and focus on two other issues. One is the alleged proliferation of victims, and the other is his claim that including unwanted touching in our definition of sexual assault is “overbroad.”

About proliferating victims Will wrote,

Colleges and universities … are learning … that when they make victimhood a coveted status that confers privileges, victims proliferate.

From a micoeconomic point of view, we know that when we make something more desirable, and/or easier to attain, more people will try to attain it. That gives us two variables to look at: desirability and ease of attainment. Let’s look at desirability first, a concept which seems central to Will’s thesis because he says women “covet” victim status.

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The Desirability of Sexual Assault Victim Status

What exactly is desirable in victim status? What kind of status is it anyway? It’s not the status of being a star athlete, or the status of acing thermodynamics–nobody praises you for being a victim, nobody envies or emulates you. Tim Kowal suggests that it’s about legal status, that it “is undeniably a legally advantaged status for purposes of prosecuting her case.” Of course that means a guy who is attacked and hit in the genitals with a baseball bat is “legally advantaged for purposes of prosecuting” a case against his aggressor, which may have some abstract legal truthiness, but I can’t imagine that Tim could conceive of coveting that status any more than I do. All jokes aside, that approach means all crime victims have that “legally advantaged status,” but we don’t speak of any of them “coveting” that status. We understand that nobody desires to be a victim, except in the case of sexual assault, where–uniquely, it appears–we think women are coveting that status.

That’s a big claim to make, an extraordinary claim requiring extraordinary evidence, but Will treats it as an obvious truth, something that doesn’t need an explanatory or justificatory argument.

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The Ease of Attaining Sexual Assault Victim Status

The other variable in the proliferation of people attaining something is ease of attainment. Will also touches on this, with his claim that including “unwanted touching” as a form of sexual assault makes the definition of sexual assault overbroad. There is a general logic to this, that conceivably could apply. To see it better, let’s move away from the heavily weighted topic of sexual assault, and consider the crime of theft.

Assume our definition of theft includes only taking something from someone by force. That imposes certain limits on the number of actual victims. Suppose we then extend the definition to include taking something from someone through fraud. That will necessarily expand the pool of victims, by making it easier to legally qualify as a victim of theft.

But have we really expanded the pool of victims, or just the pool of people legally defined as “victims of theft”? That is, did the first definition improperly overlook a large subset of people who actually are victims, but just weren’t defined as such by that imperfect institution of human law?

Of course could–in theory, at least–readily extend the definition of theft beyond what most people would see as reasonable. You could be defined as a victim of theft because you found a problem I hadn’t told you about in that car that I sold to you as a “certified POS, with only god know what kind of problems.”

The question then, is to which of these cases is a broader definition of sexual assault more analogous? Will seems to suggest the latter, that we’ve gotten too loose in our definitions. But he doesn’t provide actual evidence for this–he doesn’t provide evidence that those who are subjected to unwanted sexual situations that fall short of forcible rape aren’t in fact victimized.

This is where the “lived experience” that Veronica Dire emphasizes and Tim Kowal dismisses is relevant. It’s easy to tell, objectively, if someone’s been physically injured, but for psychological or emotional injuries, objective evidence is much harder. But that doesn’t mean those injuries don’t occur–the lack of objective evidence does not mean that some person has not hurt another person.

Undoubtedly this is a very difficult issue for the legal system to grapple with. We can’t just accept any and every individual claim of psychological/emotional harm, but we do have to at least take seriously the “average” claims of a large number of people who’ve experienced particular actions against them. And what evidence does Will have to set against that? He gives us none, even though an elderly male telling younger women, “no, you haven’t actually been assaulted” is a claim that demands justification. It demands justification not because it’s about men, women and sexual assault, but as a general rule that “any X telling a group of Ys that the actions of Xes have not hurt Ys requires a compelling justification of the claim.”

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Is the Inclusion of Unwanted Touching an Overbroad Definition of Sexual Assault?

Will writes critically of

capacious definitions of sexual assault that can include not only forcible sexual penetration but also nonconsensual touching.

Let’s pause to note something. Will is an excellent writer, and I think a very cautious one. Nowhere does he explicitly say that nonconsensual touching is not in fact sexual assault. And the term “capacious” is clinical and not inherently normative. But his essay as a whole is critical of expanding the pool of people classified as victims, so I don’t think there is a plausible reading of this clinical phrase that doesn’t conclude Will is critical of the capaciousness of the definition.

But it seems to me, although I am not a lawyer, that Will is quite ignorant of the legal meaning of the term assault. The online legal dictionary of Cornell University’s Legal Information Institute defines assault as follows:

1. Intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. No intent to cause physical injury needs to exist, and no physical injury needs to result. So defined in tort law and the criminal statutes of some states.

Several elements of that definition stand out as critically relevant. One is the note that this is how assault is defined in tort law, that is, it is a common law definition of assault. That means it’s not a new-fangled definition, but one that has roots going back centuries. (The common law does evolve, and does develop new-fangled definitions now and then, but this definition of assault is of long-standing.)

Another important element is that neither physical injury nor even actual physical contact is required, just an “apprehension of imminent…contact.”

Third, the apprehended contact does not have to be physically harmful, but merely “offensive.”

If anything, the term “sexual assault” is not overly capacious here, but the inclusion of the term “sexual” is not strictly necessary to recognize that “nonconsensual touching” can be the crime of assault.

But Will’s concern seems to be that we’re watering down the “real” sexual assaults; rape. And here the U.S. Code rebuts his claim. 10 U.S. Code § 920 – Art. 120 concerns “rape and sexual assault generally.” Notice that the very title distinguishes between sexual assault generally and rape as a specific type of sexual assault. The distinction is spelled out specifically, with part A defining rape and part B defining sexual assault more generally. And the code explicitly includes a definition of “sexual contact” as

Sexual contact.— The term “sexual contact” means—
(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

From this we see that it is simple to have a capacious definition of sexual assault while still distinguishing rape as a distinct kind of sexual assault.
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Conclusion
Unwanted sexual touching is well within the bounds of the definition of assault. If the common law did not include sexual touching in its application of the assault tort, it seems more plausible that it was because of the generalized lack of recognition of women’s autonomy than because it was a logical exception.

Distinctions are what the law does, and there is no doubt that George Will knows that. Just as we distinguish between assault and battery, with battery being effectively a specific type of assault, and so generally punished more severely than simple assault, we can readily distinguish between sexual assault and rape, with rape being a specific type of sexual assault and punished more severely than “simple” sexual assault such as nonconsensual touching.

In his post-essay defense, he said his critics were the product of the internet’s reduction of barriers to enter into political debate so that “you don’t have to know how to read, write, or think.” We can’t deny that Will knows how to write. But it seems evident that in this case he did not read carefully, and failed to think very seriously at all.