Willful Offense

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211 Responses

  1. Avatar James Hanley says:

    Zic,

    I was working on a paragraph by paragraph fisking, and I found it just too exhausting. Will’s train of thought jumps around so much in this essay, because he’s stringing together so many tropes and catch phrases (he even gets in an entirely non-substantive dig at Biden), and his understanding of the debate that’s going on at colleges and universities is so lacking in any indication of actual knowledge about it.

    You’ve said many of the things I would have said, so I applaud you. 😉 No, more seriously, you said many things that are correct and needed to be said here, and I applaud that.

    I did write another post, digging into just two sections of Will’s column. I’ll put that up later today, and I hope it doesn’t appear I’m trying to override your post. I see mine as complementary to yours.Report

    • Avatar zic in reply to James Hanley says:

      I’d be grateful if you did.

      And I want to be clear, I did this very quickly; it is ‘opinion.’ It’s my opinion, informed by the facts of my lived experience, my discussions with other women (and men, too) on the topic, and my reading. It is a fact that this is my opinion, and like all women, I reserve the right to change it. Men ought have that right, too; particularly when presented with good evidence and argument that suggests an alternative opinion might more accurate.Report

    • Avatar zic in reply to James Hanley says:

      @james-hanley

      I hope you’ll dig into the difference in process between criminal defense rules and school-expulsion rules; I know there are significant differences, but I felt not up to the task without more effort than I was willing to put into this. I think you already have that knowledge at hand due to the nature of your work. Thank you, in advance.Report

      • Avatar James Hanley in reply to zic says:

        Sorry, I didn’t do this. It would require some more thinking, but I do think there’s something there. I did have to smile at Mr. Will’s (that’s for you, Kaz!) reference to “ad hoc” collegiate proceedings. That really is a school-by-school thing, and some–many I’d argue–have very well developed judicial proceedings for dealing with student misbehavior. Rapes aren’t the only things they have to deal with, vandalism and fighting being common actions as well.Report

      • Avatar Kazzy in reply to zic says:

        @james-hanley

        Does the school have a legal duty to report rape accusations to the authorities? I’ll say they have a moral duty and I would assume an ethical duty but the legal duty is one I don’t know about. I know that I am a mandated reporter and such have certain legal obligations to report abuse of my students, but they are children. How does this change when dealing with adults? And what of students who have not yet turned 18? I had a few friends who didn’t turn 18 until a few weeks/month into their freshman year.Report

      • Avatar James Hanley in reply to zic says:

        That’s not my department, so I don’t really know. I doubt it.Report

      • Avatar Mike Schilling in reply to zic says:

        I would think that the situation is quite different when the victim is an adult who is capable of reporting an offense to the authorities and whose wishes about whether to do so should be honored. In loco parentis does not apply when the “children” in question are adults.

        But, really, I’m guessing.Report

      • Avatar Kazzy in reply to zic says:

        That makes sense, @mike-schilling . I just wonder about the optics of an institution with X number of rapes/sexual assaults, a small percentage of which were reported to authorities.Report

      • Avatar Kim in reply to zic says:

        Kazzy,
        regardless of whether they have a legal duty, they have officers of the peace in charge of intimidating and otherwise preventing people from making rape charges.Report

      • Avatar zic in reply to zic says:

        @Kim is actually right here; though I’d paint that more broadly; all too often, law enforcement works to convince women not to file charges — this is a very basic consideration women make when they decide to report. It’s the very first layer of, “What did you do?” And I should also note that when a woman does report and law enforcement works to discredit her and talk her into withdrawing charges, that actual rape becomes a ‘false rape’ accusation. You can read one woman’s example here; trigger warning in this, and it’s not on the rape, it’s on her treatment after she was raped: http://freethoughtblogs.com/almostdiamonds/2013/08/23/i-am-a-false-rape-allegation-statistic/Report

    • Avatar Barry in reply to James Hanley says:

      James Hanley: “I was working on a paragraph by paragraph fisking, and I found it just too exhausting. Will’s train of thought jumps around so much in this essay, because he’s stringing together so many tropes and catch phrases (he even gets in an entirely non-substantive dig at Biden), and his understanding of the debate that’s going on at colleges and universities is so lacking in any indication of actual knowledge about it.”

      This. I was working on it also, but it sounds like an arrogant a-hole who’s ignorant, proud, and has spent decades blathering from a ‘pulpit’ without ever having to explain himself. While drinking a lot.

      Or, in other words, pretty much any pundit who’s had a column for twenty years or more.Report

    • Avatar Mike Schilling in reply to James Hanley says:

      Will’s train of thought jumps around so much in this essay, because he’s stringing together so many tropes and catch phrases […], and his understanding of the debate that’s going on at colleges and universities is so lacking in any indication of actual knowledge about it.

      But, other than that, what did you think?Report

  2. Avatar Saul Degraw says:

    Very good post Zic.

    What this whole debate seems to be about is to the extent that political polarization has taken over the country. Or as others mentioned in Tim’s original column, this is Cleek’s Law in action.

    The whole debate over this has just become another example of Team Blue v. Team Red and as far as I can tell the conservatives are only going on about this because Obama suggested it and their image of campus feminism and activism comes from PCU (which came out sometime during the first Clinton admin and when I was in high school.)

    There should be things that both sides can agree on and this should be one issue because conservatives seemingly love prosecutors.Report

    • Avatar Kim in reply to Saul Degraw says:

      It offends certain subconscious bits of the conservative psyche that their rape paradise might be brought to an end.

      As you can see in the piece, an actual, honest to god “clear as day” rape was dismissed because it wasn’t forcible.

      You see? George Will thinks he might be that guy, getting away scot free with raping someone. Only, weeks later, to get kicked out of school.

      In a conservative’s mind, it is perfectly okay to treat a woman as a sex object, when she asks you not to.

      But, oh no, it is of course impossible that men might be treated like sex objects — why else do they object so stridently to male homosexuals? (Lesbians are fine, because they aren’t “breaking the primacy of the male gaze”).Report

      • Avatar morat20 in reply to Kim says:

        It’s more (on the getting away with raping someone thing) of a view that “oh, things get a little out of hand and a good kid’s life is ruined”.

        The male’s life, that is.

        I think in the end, this whole use of the word “forcible” is basically a dodge because “boys will be boys” and “sometimes they can’t control themselves” and basically “stuff happens, but let’s not be hasty here” in terms of consequences for the male. That’s why all the focus on false rape claims, because a lot of what they consider ‘false rape claims’ is factually true claims that they don’t feel is rape.

        It’s…date rape isn’t rape, written large, you know? “There wasn’t a knife, I didn’t threaten to hurt her, I just [coerced her/got her drunk/invaded her personal space/kept insisting/waited until she passed out/ignored the word no] but I never [pulled a gun or knife/ripped her clothes off/physically held her down] she never [screamed/begged/cried/fought]” so that’s not rape.

        That’s just a mistake. An accident. A miscommunication. Not my fault. We can’t PUNISH people for these accidents, you know?

        That’s the vibe. The concept. The notion in the back of their minds. Not just conservatives — lots of men. (Conservatives are just, by and large, a little more friendly to that notion at the moment).

        And it all circles back to the notion that once a man is horny, there’s really nothing to do but let it happen. And you can’t call it rape if you got him all horny, with your boobs and your dress and talking to him? He didn’t FORCE you, you know what you did, he couldn’t control it once his dick was hard, and how can you ruin his life for one teeny mistake that really didn’t hurt you. Sex is fun. Right? So stop being a b*tch.Report

      • Avatar Saul Degraw in reply to Kim says:

        @morat20

        And when there are real false accusations/convictions like the Central Park Five, we see conservatives fight tooth and nail against the idea that the police/prosecution got it wrong.IIRC Donald Trump basically tried to call for a lynch mob against the Central Park Five.Report

      • Avatar zic in reply to Kim says:

        @saul-degraw there also seems to be some common ground between conservative use of ‘false accusation’ and ‘voter fraud.’

        While both are crimes, and should be rightfully prosecuted to the full extant of the law, there’s some effort to shape the justice system to the rare crime at the expense of the much more common crimes of sexual assault/rape and voter disenfranchisement.Report

      • Avatar Patrick in reply to Kim says:

        That’s just a mistake. An accident. A miscommunication. Not my fault. We can’t PUNISH people for these accidents, you know?

        Like I said on the last thread, how people think of rape is usually tied into their idea of punishment.

        Deeply.

        Somebody beats the crap out of someone else and violates their person? Everybody’s pretty okay with throwing that person in jail for 10-20 (except Jaybird). People will make jokes about how they’ll be raped and that’s just desserts (which is disturbing, but hey, that’s people).

        Some kid (who himself might be drunk) who does what the guy did in the example given in the Will column? Well, he’s done a bad thing, but he’s not beating the crap out of someone else, we all know how the criminal justice system can overreach, do we really want that kid to go do jail for 10-20 years?

        When you can’t really reconcile how someone ought to be punished for a transgression with a set of fairly objective criteria without picking up a whole bunch of people with differing degrees of badness, you’re going to have a problem calling that transgression by a unified term.

        I don’t know that this necessarily is tied to patriarchy as a root cause. It’s a proximate cause of perpetuating it, sure. But for the most part I don’t see this half as much as a “boys will be boys” thing (although of course it is for many people) as it is a “kids will be kids” thing.

        People between the age of 0 and 25 are going to make a lot of really stupid decisions. For the most part, everyone who’s over 40 recognizes this. The right amount of moral opprobrium, legal consequence, and social shunning over those stupid decisions is something we can’t come to a consensus on when it comes to consensual sex between two physically-mature-enough-to-participate humans. How do we expect people to come to anywhere near a consensus for stuff that’s more complicated than that?Report

      • Avatar morat20 in reply to Kim says:

        Patrick:

        What you just said, boiled down, is that most men don’t take rape seriously as a crime unless there’s violence involved. (In short, rape is only a crime if ANOTHER crime — beatings, threats of death, etc — is involved).

        That’s kind of the problem.

        If, by and large, men boys or whatever can’t figure out that forcing sex when it’s unwanted is a crime based on it’s obvious moral wrongness and status in the law, then society is going to have to come down on it like a ton of bricks. Because if they can’t take rape seriously as a crime, they can certainly take ‘jail time’ seriously until they learn.Report

      • Avatar Kim in reply to Kim says:

        Patrick,
        I’m perfectly okay with giving that idiot 10-20. I recognize that serial rapists are pretty damn good at choosing their victims. And this guy sounds like one of those. It took her weeks to gin up the courage to speak up about it.

        I do think there ought to be some form of “sharing court” where people who have been hurt can “talk it out” with their victimizers. Because, sometimes, rape is 100% legal. Sometimes, torture is 100% legal.Report

      • Avatar zic in reply to Kim says:

        @patrick

        There’s something else here, too: one of the reasons it may have taken the Swathmore student weeks to report is she knew him. Most rapes are not stranger rapes, they’re acquaintance rapes.

        I think this goes a long way to explaining why they’re not reported, or reported far after the fact; the woman is potentially reporting (and ruining the life of) someone she knows, not some frightening stranger. It’s someone who may have the same classes, the same group of friends, they may eat in the same cafeteria. I think the long-term consequences of this casual contact after-the-rape is very much at the root of the access-to-education problem women face here, and that needs to be recognized clearly.

        Having been stalked, I suspect it’s got some similar aspects — every chance encounter retriggers PTSD; puts you right back in that moment. That’s a tremendous burden, and ‘just kids’ doesn’t cut it for an explanation of brushing it off, because most of the traumatic sexual assaults women experience happen before they are 25.Report

      • Avatar Patrick in reply to Kim says:

        @morat20

        I think you’re confusing my observation about how people treat their feelings regarding rape with my own feelings regarding rape.

        Just for the record, I’m just observing.

        What you just said, boiled down, is that most men don’t take rape seriously as a crime unless there’s violence involved.

        Judging from my facebook feed, and the number of conservative women who shared Will’s column and some… ah, counter “arguments” to the idea that he was out of line… I don’t think this is a question of just men not taking rape seriously unless there is violence involved.

        I think a lot of people don’t take the position that this qualifies as rape. And some not insignificant number of them are women. Because their response to this column is very much on the “if I don’t want to have sex with you, I’m going to elbow you in the face if you don’t take ‘no’ for a ‘no’.” side.

        That’s kind of the problem.

        Yes, that’s what I was saying. That is exactly the problem.

        Look, if a substantial portion of the populace says, “this particular act of this guy killing that other guy, that wasn’t murder, that was manslaughter because of reasons” and your response is “Murder is murder and any taking of another persons’ life is murder“, you’re probably not going to get anywhere with those people. At all.

        They probably still think manslaughter is a problem, though, right? Telling them that they don’t think manslaughter is murder is them making light of manslaughter is not going to be an argument that they take very seriously.

        Because they don’t think it’s murder, even if it is wrong.

        @kim

        I’m perfectly okay with giving that idiot 10-20. I recognize that serial rapists are pretty damn good at choosing their victims. And this guy sounds like one of those.

        Hey, fair enough. Although, from a moral judgment standpoint, I don’t know how kosher it is to convict a guy for crimes he may or may not have committed because he sounds like a creepy creep who probably has committed other crimes. You say that on a jury panel and you’ll get a nice “Thanks for serving, have a nice day, you may return to the jury room”.

        That’s not really my point, though. My point is that a good number of people don’t put this crime in the same bucket as that other crime, because to them the crimes are not the same.

        You can keep insisting that they should be in the same bucket, but that just makes it harder for those people to agree that the big bucket should be treated in any particular way.

        One big side note here, which is relevant:

        Women are I think beyond any doubt underserved by the legal system when it comes to this sort of thing. I totally and completely agree with this. They have (probably as a class) had a fairly uniform experience of not having a positive interaction with the legal system when it comes to this sort of thing.

        The flip side to this is that most men have had some sort of direct, personal, negative interaction with the legal system or they’ve had a very small Bacon number between themselves and “somebody getting screwed by the cops”.

        Jesus, if you’re black or minority it’s practically universal.

        My brother has been drawn down on by a cop for reaching into his glove box to get the registration that the officer asked him to get. One of my better friends from high school had to take six years out of his life and pay buckets of attorney’s fees to get removed from a sexual predator list because he once got drunk and peed on a bush on Isla Vista. Pull your wang out in public? Sexual predator, for certain. Overzealous judge or DA? Probably.

        I understand that women feel that the legal system does not come to their aid, often enough, particularly in this area. They deserve to feel that way, because it’s demonstrably true.

        I also understand that men, generally, don’t trust the police, in most areas. The possibility that you might be sentenced to 20 years in prison because you had sex with a girl and two weeks later she said it wasn’t consensual? I know perfectly Puritan guys who would never consider having sex with someone if they weren’t married and didn’t pray together first who would be uncomfortable with that as a legal possibility. Overzealous DA and judge? Probably would be required, yes. Bad jury? Sure.

        This is where the pushback comes from, I think.Report

      • Avatar morat20 in reply to Kim says:

        Judging from my facebook feed, and the number of conservative women who shared Will’s column and some… ah, counter “arguments” to the idea that he was out of line… I don’t think this is a question of just men not taking rape seriously unless there is violence involved.

        I suspect that if you’re going to draw large conclusions from a Team Red versus Team Blue kerfuffle over an op-ed, you’re not going to get good results.Report

      • Avatar Kim in reply to Kim says:

        Patrick,
        I’d wager I have more experience at profiling rapists than you do. It’s not a factor of “Is he a creepy creep”.

        It’s “does his behavior match that of other serial rapists, and is he behaving in a way that suggests he will do the same thing over again?”

        I’m starting to really think that we ought to be teaching kids how serial rapists work. Because that woman who thinks she can elbow her way out of trouble? Might find herself unable to move, unable to speak… It’s real easy to think you’ll perform ideally in a crisis. Most people don’t.Report

      • Avatar Patrick in reply to Kim says:

        @morat20

        I suspect that if you’re going to draw large conclusions from a Team Red versus Team Blue kerfuffle over an op-ed, you’re not going to get good results.

        (sigh). Yes, this is probably a cogent observation, generally, but try digging into the substance of the comment anyway, eh?

        @kim

        I’d wager I have more experience at profiling rapists than you do.

        Not trying to have a on-upsmanship war, here, Kim, I have no particular reason to doubt you on this score… but generally speaking, that doesn’t detract from the observation that if you claimed any sort of experience in profiling serial rapists you’d probably get some strong commentary from a judge about using your personal experience in the jury room, and you’d still get excused. Just noting.

        In any event, that doesn’t generalize because you’re not sitting on every jury for every one of these trials.

        I’m starting to really think that we ought to be teaching kids how serial rapists work.

        Oh, absolutely.

        Because that woman who thinks she can elbow her way out of trouble? Might find herself unable to move, unable to speak…

        Well, if she’s the sort that actually can elbow her way out of trouble? She probably won’t get harassed in the first place, as rapists (serial or otherwise) are pretty good at selecting victims so that they don’t get “elbow to the face” folks on the other end of their predations.

        This of course creates a feedback loop, sure.

        It’s real easy to think you’ll perform ideally in a crisis. Most people don’t.

        Hey, no argument there. That’s one of my mantras after all.

        That doesn’t detract from the fact that many, many people base their ideas on what constitutes badness and to what degree based more-than-partially on how they think they’ll respond to it, right?Report

      • Avatar Mark Thompson in reply to Kim says:

        So, this is a question I’ve been pondering for awhile, and this subthread seems as good a place as any to ask it: is it possible that lighter punishments for acquaintance rape would help to reduce its incidence, or at the very least increase the likelihood of it being reported?

        It seems likely to me that, in the acquaintance rape situation, one of the major deterrents to a victim reporting the rape is the fear that the attacker’s life will be ruined for what she may perceive as more an error in judgment on his part than as something premeditated; indeed, as self-blame is a huge part of the impact of rape, it seems to me very possible that the desire to avoid ruining her attacker’s life, particularly in the immediate aftermath, can be very strong. A system where acquaintance rape was treated as something of a lesser offense might help to overcome this fear and encourage reporting.

        Additionally, the low likelihood of reporting combined with the massive punishments we generally impose for rape seems to make it easy for an attacker to rationalize his behavior and to rationalize disregard for the adage of “no means no.”

        But I’m entirely out of my element here, so please talk to me like I’m stupid.Report

      • Avatar zic in reply to Kim says:

        @mark-thompson

        That’s an interesting notion.

        I’ve struggled to look at other changes that might offer a path; drunk driving strikes me as a potential, with a series of penalties, from relatively minor to full-on loss of license (varies by state).

        But, and this is really key, I’m not sure that there’s a great amount of confused “I’m not sure if she consented” sex going on, either. Someone would have to show me real, actual numbers supporting this theory, because we know that there’s a whole lot of unreported raping going on.

        I think most men know if they’ve been given consent, and I suspect there’s some rampant disregard for her wishes, and a lot of men who coerce sex may think it wasn’t rape because she didn’t, in the end, fight tooth and nail, she gave in without resistance.

        But I say this based on my own lived experiences, too, and fully recognize I may be quite biased in my view.Report

      • Avatar Kim in reply to Kim says:

        Mark,
        Shame and Guilt are two weapons that serial rapists use against their victims.
        “Ruining someone’s life” is something that campus cops (and other law enforcement) use to do their job.

        I don’t think “fear of ruining HIS life” is preventing many women from coming forward. I think fear of ruining MY OWN life is preventing many women from coming forward.

        Acquaintance rape can be “daddy does daughter” or “pastor does young innocent parishioner.” Often, the person with the power (and credibility) is the guy. Sometimes it’s even “john rapes prostitute.”

        I think we should have an Entirely Different, and parallel, “legal” system for Legal Rapes… where women can explain to these stupid shits exactly what they’re doing (and compel the guys to at least sit down and listen to someone sobbing at them.)Report

      • Avatar Kim in reply to Kim says:

        zic,
        I venture to say that in “the scene” and other places like that, there are tons of people who get too wasted/drunk to actually give informed consent. It’s important to be pretty clear that’s generally not who we’re talking about — by the statistics, the 4% (or more) of guys who are serial rapists are committing most of the offenses.Report

      • Avatar zic in reply to Kim says:

        @kim

        Statistically, I think recent global research suggest a very high proportion of men have, at some point, raped a woman. So I question the notion of a small proportion of serial rapists, though I know other research supports that, too. I don’t think we really understand the problem from the rapists perspective yet, and I suspect the cultural mores and views on women have a lot to do with who the rapists actually are in each society.

        I agree that most non-reporting is because women don’t want to ruin their own lives; but I think there is some consideration in non-reporting for not ruining his, mostly manifesting in how rape reports are handled. Steubanville is a good example; the community didn’t want to ruin these young men’s lives. This is what women internalize and translate into not ruining their own lives, it’s a complex feedback loop, but there’s a lot of protecting a ‘boys will be boys’ mistake in that loop.Report

      • Avatar zic in reply to Kim says:

        @kim a correction, a UN study found 1-in-4 respondents had committed rape, which is why I said a ‘high proportion,’ but the study was not global, it was conducted in Asia; so I somewhat modify my response.

        Source: http://thinkprogress.org/health/2013/09/10/2597861/united-nations-rape-study-asia/Report

      • Avatar Kim in reply to Kim says:

        zic,
        Your link suggests 16% of men have raped four or more women, while 4% have raped ten or more. Both of these seem to support the idea of a somewhat small proportion of serial rapists.Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @zic

        I’m kinda on board with @mark-thompson here, in that this is something that should be handled by degrees.

        This is kind of hard to talk about without coming across like an apologist asshole, but the acquaintance rape you mention above does seem to have a measure of mixed or confused signals that have to be weighed in the context. It’s still wrong, and it is a legitimate governmental interest to be involved and act, but there is a difference between forcible rape & compliant rape*. One clearly denotes a sociopathic mind that needs to be dealt with severely, the other is potentially a person who is perhaps inexperienced or suffering from poor judgement & in need correction, but is not necessarily irredeemable & should not be marked for life from a singular offense.

        AFAIK, the law is incapable of doing a good job of measuring the difference between the person who uses a gun or knife to force sex, the person who takes advantage of the person incapable of giving consent, and the person who decided to see if their partner was serious about that no, or just playing around & never got a more definitive answer.

        *Rape where the parties are known to each other, are nominally well acquainted or in a sexual relationship, and the incident in question involved no clear consent, but also no force.Report

      • Avatar Kim in reply to Kim says:

        MRS,
        you misunderstand which of them the sociopath is. I can describe him to you if you’d like… there are several profiles for serial rapists…

        Forcible rapes, rapes in which the women are permanently maimed to the point where their excretory systems cease to function normally, generally happen in wartime, as a form of psychological attack.

        Can we fix the sociopath? Sometimes. It generally helps when they don’t write Self Help books on How To Rape People and Get Away With It.Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @kim

        That is not what I am talking about & you know it.Report

      • Avatar morat20 in reply to Kim says:

        One clearly denotes a sociopathic mind that needs to be dealt with severely, the other is potentially a person who is perhaps inexperienced or suffering from poor judgement & in need correction, but is not necessarily irredeemable & should not be marked for life from a singular offense.
        In my personal, anecdotal experience…

        That date rapist? Knows exactly what he’s doing. he’s getting the sex he wants, and is doing everything SHORT of holding her down to get it. Making sure she gets extra strength drinks (screwdrivers are a common vector — one that’s harder, especially for irregular drinkers, to determine strength of at a sip) to consistently going with non-verbal threats and intimidation. (A guy that is 8 inches taller than you and hundred pounds heavier than you right inside your personal space, being very..insistent..is intimidating, I have now doubt).

        And they’re very, very good with mind games. Once they’re done, they make sure the girl is confused over what happened — was she giving signals? Asking for it? Maybe he’s right, maybe she lead him on, maybe it was HER mistake.

        These men don’t consider it rape. They consider it ‘playing the game’ and what the girl did wasn’t “refusing consent” but playing “hard to get”.

        Which is why people hair splitting consent aren’t helping get rid of date rape — you’re helping condone it.

        it’s not hard. No means no. End of story. If she happens to, for some reason, be really saying “no means keep trying, I want to see if you really want it” well –at worst you missed out on sex, and at best you didn’t rape a girl! GOOD CALL NOT PUSHING IT.

        Date rapists known damn well what they’re doing. They’re getting sex from a girl that really didn’t want to have sex with them. No harm, no foul, right?Report

      • Avatar Kim in reply to Kim says:

        MRS,
        as much as I’m allowed to change the subject (you are too!), zic was the one who brought up international shit.

        It’s not really that hard to study rapists, ya know? A good deal of it is online.

        Occasionally, good kids fuck up. But that’s the FREAKING EXCEPTION, and there’s a damn good reason for that. You see? Good kids know that if they continue to be freaking good kids, they’re going to wind up getting sex, sooner or later. You don’t need to be awesome to get sex, just “not that guy.”

        Other kids? “bad” apples? They know there’s no chance in hell that they’ll be getting the Hawt Girl (it’d kill their ego to date a fatty, ya know?). And so they devise tricks, learn who to rape, learn how to rape. And they get good at it — because if they don’t, they go to jail. So it pays to learn, and learn quick.

        Have you seen Kids (that NYC quasi-documentary)?Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @morat20

        Great, now prove that every case of date/acquaintance rape is exactly what you say it is, and not something more confused & difficult to parse the facts of?

        I’m not saying you are wrong, I am quite certain there are people like that out there, who are every bit the sociopath. But I’ve been in sexual relationships where my partner was prone to be wishy-washy at times with regard to her mood for sex (going from a firm no, to the eager removal of clothing 30 minutes later after some foreplay, with nary a word exchanged).

        Was that rape? If I am to believe Zic, some women will go so far as to fake orgasm. Perhaps my girlfriend at the time just wanted to get me to “stop badgering her for sex” (I didn’t think I was, but perception is part of this), or perhaps she changed her mind & decided she was game after all.

        Should I have gotten written consent before hand?

        Failure to acknowledge that there is a whole lot of grey area in sexual relationships helps to foster resistance to a meaningful discourse. It isn’t always a bright line of they said no, so now you must go take a cold shower and sleep on the couch.

        Hell, I’ve had times where I wasn’t in the mood for sex, my partner was, and I let them have their way just so the needling would stop & I could get some sleep. By the definitions I’ve seen bandied about, I was raped. Or perhaps I just did a cost-benefit analysis & decided I’d get to sleep sooner if I just let her have her fun.Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @kim

        Occasionally, good kids fuck up. But that’s the FREAKING EXCEPTION, and there’s a damn good reason for that

        Prove it.

        Prove that all kids are getting adequate educations with regard to the dynamics of a sexual relationship such that they are always certain of the bright line that divides rape from poor communication.

        Because the reality is that the law really only has two ways to handle sexual assault, and that is nothing, or the million-pound shit hammer that mars a person for life. And I gotta tell you, if I am going to vote for the million-pound shit hammer, I want to make damn certain it’s the right call. Of course, it would be nice if I maybe had a 100 lbs SH to wield, or a 1000 lbs one, such that I could make an impression on a first offense that was questionably bad, but still had the shadow of doubt regarding malicious intent.Report

      • Avatar Kim in reply to Kim says:

        MRS,
        I’m not asking for explicit written consent beforehand.
        I’m asking that if she wants “I’m tearing your clothes off” to be “informed consent” that she simply say so in writing, beforehand. That way you needn’t worry, and neither need she worry about it being rape.

        Was it rape? Well, that’s your decision, bucko — you’re the survivor. It certainly sounded like someone was emotionally manipulating/abusing you (although it might have been unintentional, if you weren’t particularly clear about your desires).

        Bottom line on a lot of this is the concept of tort. Have you been harmed? And if so, by how much? You may indeed consider “having sex when you really aren’t into it” just part of “how a relationship works”… That’s fair.

        Yes, there’s a ton of gray bullshit in this world. Where we can, we should strive to minimize or eliminate it, because vague gray bullshit hurts people.Report

      • Avatar morat20 in reply to Kim says:

        Great, now prove that every case of date/acquaintance rape is exactly what you say it is, and not something more confused & difficult to parse the facts of

        You realize that’s why courts exist, right? To continue using theft — theft and borrowing are both taking other people’s stuff. WHY you might loan someone something may range from trivial “I don’t mind” or “I want to help” to “If it’ll shut you up” to even criminal “So he won’t beat me”, but courts can parse all these grey areas.

        And yet with rape, apparently, everything falls apart. The law on theft is pretty freaking black and white, yet I am not arrested or charged when I borrow my in-law’s mower — even if they’re not home to ask! It’s amazing that this black and white law applies to a world of such greys, right?

        The law is black and white — and it darn well should be. Your body is yours. Nobody gets to stick a damn thing in it without permission. That is, in fact, the core of the laws on rape, yes? Nobody is “owed” sex to anyone else? Nobody has legal claim on sex with another person?

        Consent rules all? Yes?

        Then you should be darn careful, when having sex with someone, to make sure they’re consenting. Just as you’re darn careful, when going through life, not to pick up someone else’s property and make off with it.

        I note that we manage this black and white situation with theft (despite the existence of the grey area of borrowing, gifting, loaning, etc) quite easily, and the courts — and citizens — manage it with aplomb.

        But not rape. Not sex. A cynical person might suspect that the reason is that many people don’t like the fact that express consent is required. Perhaps because it might lead to uncomfortable labels.

        I don’t have a freakin’ problem with it. You know why? I’ve lived my life with one happy rule: I don’t have sex with people unless they’re good with it, and by “good” I mean “I didn’t get them drunk, didn’t harass them, and didn’t have to hard sell them into the sack”. I was a horny teenager to, and a pushy one like all the rest, but I got that the word “no” meant “no” — and more importantly I got the importance of the word “yes”.Report

      • Avatar morat20 in reply to Kim says:

        And I gotta tell you, if I am going to vote for the million-pound shit hammer, I want to make damn certain it’s the right call. Of course, it would be nice if I maybe had a 100 lbs SH to wield, or a 1000 lbs one, such that I could make an impression on a first offense that was questionably bad, but still had the shadow of doubt regarding malicious intent.
        If only there were some legal graduations between types of rape and sexual assault, or some judicial or prosecutor leeway.

        Oh wait, there are. Oops.

        And hey, maybe we need more. But we should probably do that, instead of telling rape victims “Oh, suck it up buttercup. Wouldn’t want to ruin a boy’s life, right?”Report

      • Avatar Kim in reply to Kim says:

        MRS,
        I have, on numerous occasions, called for a sort of “truth and reconciliation” type meetingplace where men and women can explain to one another where “miscommunications” happened… particularly traumatic ones.

        I find this a lot more acceptable than trying to get the law to be flexible. Because, rape is rape — and it’s possible to have both people be unable to give consent while consummating something (which, um, might make a really fun pair of lawsuits, if we lived in a fair society where both folks would be given equal presumption of initiating the act.)Report

      • Avatar Kim in reply to Kim says:

        MRS,
        the internet is full of rape videos. you’ll forgive me if I don’t bother linking to ones which would be considered child pornography.Report

      • Avatar Patrick in reply to Kim says:

        @morat20

        The law on theft is pretty freaking black and white, yet I am not arrested or charged when I borrow my in-law’s mower — even if they’re not home to ask! It’s amazing that this black and white law applies to a world of such greys, right?

        I have to say, if you borrowed my mower without asking, I’d be kinda pissed about that. That’s just me.

        But!

        It seems like you feel like you have a presumptive right to borrow certain persons lawn mowers in some cases and not others, in spite of the fact that you don’t have express consent to borrow it every time.

        So if we’re going to treat sex crime like property crime (bad idea, IMO, but you’re the one coming up with the analogy here), how is it that you’re not committing theft every time you borrow my lawnmower without asking first?Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @morat20

        Yes, because courts are such excellent tools for figuring out the truth of he said/she said cases. And the process is easy, straightforward, and unlikely to cause you to file for bankruptcy & have your name & reputation dragged through the mud.

        The problem with your theft analogy, as Patrick explained, is that there is a thing in play that can be tracked, and sometimes a medium of exchange. Sex is not such a clear cut case, which is why it’s tricky to parse.

        Now I agree, people should be darn careful with regard to sex & consent, & as my son matures, you can be damn certain that is something I will impress upon him often the moment I see him looking longingly at a girl or guy. But I also know not everyone gets that education, or any education in the matters of sex & consent, or worse, some grow up in an environment where the message is skewed the other way.

        Now if you are correct that the courts can parse the grey areas of consent with some degree of accuracy, then they should also be able to parse a degree of malicious intent and they should be able to leverage penalties commensurate with that, so as to encourage redemption/rehabilitation.

        Of course, if they can’t, then we need to fall back on base principles, such as innocent until PROVEN guilty, and that it is better that a guilty man go free than an innocent person be jailed.Report

      • Avatar morat20 in reply to Kim says:

        So if we’re going to treat sex crime like property crime (bad idea, IMO, but you’re the one coming up with the analogy here), how is it that you’re not committing theft every time you borrow my lawnmower without asking first?

        Who says I’m not? 🙂

        But more seriously, I can borrow my father-in-law’s mower without asking and his neighbor cannot because my father in law is fine with me doing that, but not fine with his neighbor doing it.

        I have consent to do such things. It’s not in writing, it’s not even verbal — it’s the consent of long practice and non-verbal communication, and yet I am not charged with theft and we don’t end up in court. Mostly because I made darn sure he was okay with my borrowing it, and he made sure I understood that as long as it showed back up within a day or so, he was fine with me taking it. And indeed, if I took it and didn’t give it back he’d darn well file charges.

        Despite a black and white law, we don’t end up confusing courts. He could, in fact, press charges. He would if his neighbor did the same thing. Context matters.

        When it comes to rape, the problem is the default context — the social setup — is basically set up to screw women. Everything from the initial act to the investigation seems to be the equivalent of “Well, you let your son-in-law borrow it, so maybe you let your neighbor borrow it to. Are you sure he REALLY stole it?”

        In short, we — as a society — seem to act like the lawnmower is up for grabs for anyone who wants to mow their lawn, and the owner has to guard it ferociously — and any lapse is often considered the fault of the owner and the a lot of hairsplitting over was it “really theft”.

        I’m not talking at the trial, where such things should be adjudicated — and are, for theft, as defenses such as ‘He told me I could borrow it’ do crop up.

        it’s only rape that seems to be like we start questioning whether or not it really happened from the initial report and don’t stop, treating any attempt to treat a rape victim like a victim of theft or assault as some sort of weird strange idea.Report

      • Avatar Mark Thompson in reply to Kim says:

        FWIW, this has gotten quite far afield from my suggestion, which was primarily motivated by a belief that attaching comparatively light (but still meaningful) punishments for certain forms of acquaintance rape would encourage more women to report rapes and, in so doing, would discourage rapes from actually occurring. If someone senses that something is illegal, or at least morally wrong, but knows to a virtual certainty that no consequences will arise from their actions – and indeed that the victim probably won’t say anything to anyone so there won’t even be much social risk – they’re probably more likely to go ahead with those actions. But if they know there’s a high chance that significant, albeit far less severe, consequences will follow, they perhaps will be a lot more interested in making sure they have consent. In other words, my suspicion – and it is nothing more than that – is that men use the extreme unlikelihood of getting reported for their actions as a way of convincing themselves that what they are doing is totally acceptable and thus worth doing.

        Regardless, my concern here is not really with the relatively rare case of someone accused of rape in a situation where consent was truly ambiguous, but instead with making it easier for victims to report and thereby get men to take the issue of consent more seriously.Report

      • Avatar morat20 in reply to Kim says:

        Now if you are correct that the courts can parse the grey areas of consent with some degree of accuracy, then they should also be able to parse a degree of malicious intent and they should be able to leverage penalties commensurate with that, so as to encourage redemption/rehabilitation.

        Of course, if they can’t, then we need to fall back on base principles, such as innocent until PROVEN guilty, and that it is better that a guilty man go free than an innocent person be jailed.

        Just to be clear: Your point is date rape, as opposed to violent rape, boils down to ‘he said, she said’ which you feel no court can parse, therefore date rape shouldn’t be prosecuted?Report

      • Avatar James Hanley in reply to Kim says:

        it’s the consent of long practice and non-verbal communication,

        Dude, I think you just terminated your rape/property analogy with extreme vengeance.Report

      • Avatar Mad Rocket Scientist in reply to Kim says:

        @morat20

        Hrmmm, that isn’t precisely what I meant to say, but I can see where you get that.

        My point is ultimately in line with Mark’s, in that acquaintance rape can often have a great deal of grey area to the question of consent. Not always, but often enough that in the interests of justice, we would do well to have a range of lesser charges & penalties that recognizes the difficulty of that grey area.

        No, for your theft analogy. By the common definition of rape seen in this post, if you were to borrow your in-law’s mower, you should be required to gain explicit consent to take the mower EVERY SINGLE TIME, and if your in-law’s called you in the middle of mowing your yard & told you to return the mower, you are obligated to stop mowing, pack it all up, & return it immediately (hopefully you heard the phone ring).

        For instance take the case Mr. Will used, of the couple that was in a sexual relationship that was coming to a close. They had 3 months of (from the sounds of it) agreeable sex, and then she said no. He decided to be a dick & see if she was serious, and she decided to not press the point home and make that no more clear.

        Back to your mower. Say your in-law told you you could not borrow the mower today, and in response you whined & needled and complained that you had to mow the lawn because the BBQ was tomorrow, etc., & his response was, “whatever…”. Was that consent? Did he change his mind & decide that in light of your need you could borrow it again? Now the smart person would double check, just to be sure, but maybe you aren’t so smart, or maybe you are in a hurry, or maybe you are just a dick, but you borrow the mower anyway.

        Do you deserve to face felony theft charges because your in-law decided to press the issue with the police? Or perhaps a misdemeanor charge is more appropriate, something that will hurt, but not brand you for life & put you on a “Dishonest Borrower” list, where you can’t hold down a job & have to live under a bridge because it’s the only place not near a Rent-A-Center.Report

      • Avatar zic in reply to Kim says:

        @mad-rocket-scientist I’m just playing devils advocate here; it is not necessarily reflective of my settled thoughts, just my thoughts in motion:

        Do you deserve to face felony theft charges because your in-law decided to press the issue with the police? Or perhaps a misdemeanor charge is more appropriate, something that will hurt, but not brand you for life & put you on a “Dishonest Borrower” list, where you can’t hold down a job & have to live under a bridge because it’s the only place not near a Rent-A-Center.

        First, we do get the difference between borrowing a lawn mower and use of a woman’s body for self-gratification; gratification that could also result in consequences for her that include a sexually-transmitted disease or unwanted pregnancy, right? Just to make sure you are not walking too far off the reservation in your comparison between borrowed lawn mowers and borrowed vaginas? There is some higher standard of infraction that would invoke a felony conviction and sex-offender registration (and I am on record here as being opposed to the way sex offender registries are used, and would, without serious reform, have registries banned).

        I realize that the lawn-mower theft is good for an parallel standard of why differing standards might be useful, and I’m whole-heartedly willing to entertain the notion. My reservation is that most women who don’t report do so for a host of complicated and intertwined reasons; they often feel some responsibility that they did this to themselves; they understand that if they report they’ll be exposed to some serious slut shaming, it may provoke extreme responses from protective family members, including threats against the woman for impure behavior and threats against the rapist for despoiling her, as well as concern for not ruining her life. This is an extremely fraught decision with multiple concerns.

        The big issue I have with the differing standards is that there is so much abuse of women who’ve been raped by the justice system. I freely grant that things have improved, and the increased incidence of reporting is evidence of that improvement. But there is still so much questioning of her, she goes on trail, too. She has to face him in that court room. She will be cross examined by his attorneys, and her sexual history laid bare in public.

        So I think that there’s some level of misplaced concern, some desire to protect innocent men within the justice system that is improperly balanced with the actual experiences of raped women. Both matter. But bluntly, it pisses me off that we’re spending so much time talking about his innocence within the justice system and very little effort addressing her re-victimization at the hands of the system. Because it’s not her lawn mower a rapist borrowed, it’s her body that he violated.Report

      • Avatar morat20 in reply to Kim says:

        MRS,

        My point is simple: If I wasn’t 100% certain I was allowed to borrower the mower (oh, and to answer James: I was told I could borrow it when I needed it and I’m careful to watch for any indication he’s changed his mind.) I wouldn’t borrow it.

        Which is, frankly, how you should approach sex. If you’re not 100% convinced she’s into it, you shouldn’t. End of story.

        If you’re not certain, be cautious.

        But date rape? There’s rarely anything close to certainty. And the playbook is often booze and intimidation and persistence. Trying to turn “no” into “yes”. Which to some is I guess how dating goes.

        To me? It’s flirting with rape. And if you don’t like that label applied to yourself, you should probably work out a way to date women that doesn’t need them to be drunk or worn down first.Report

      • Avatar James Hanley in reply to Kim says:

        So the defendant takes the stand: “I was 100% sure she was into it.”

        He might not even be lying, particularly if he’s a bit narcissistic.Report

  3. Avatar zic says:

    On Tim Kowal’s post, he responds to @barry:

    The problem he attempts to draw attention to is that the data appear over-inflated, and he offers some observations and opinions on the possible causes and effects. Rape and sexual assault are terrible things, but they are not the subject of Will’s piece. The subject is how accusations of them are processed and reported.

    Again, I ask for legal explanation of the difference between being expelled from school for violating school rules based on preponderance of evidence and being convicted of rape based on evidence beyond a reasonable doubt. I understand that these are different standards; Tim seems to be defending the higher standard of conviction for a school’s conduct of behavior violations.

    As to how rape and sexual assaults are processed; for legal prosecution, it’s up to prosecutors, and it’s been long documented that if the victim is less than sympathetic they often will not prosecute:

    . In sexual assault cases, the victim’s character, behavior, and credibility may play an especially important role in charging decisions. In these types of cases, little physical evidence may be present to connect the suspect to the crime, and typically eyewitnesses who can corroborate the victim’s testimony may not be available. The likelihood of conviction depends primarily on the victim’s ability to articulate what happened and to convince a judge or jury that a sexual assault occurred. Thus, prosecutors’ assessments of convictability and their charging decisions rest on predictions regarding the way the victim’s background, character, and behavior may be interpreted and evaluated by other decision makers and potential jurors. Frohmann (1997, p. 535) notes that this “downstream orientation” leads prosecutors to rely on stereotypes about “genuine victims” and appropriate behavior. Victims whose backgrounds and behavior conform to these stereotypes will be taken more seriously, and their allegations will be treated more seriously than victims whose backgrounds and behavior differ from these stereotypes.

    Source: https://www.ncjrs.gov/pdffiles1/nij/199720.pdf

    In fact, Will did just this very thing in his column with his retelling of the rape of a woman at Swathmore College. Again, I’ll point out the brohaha over Hilary Clinton’s defense of a rapist in 1975 where she did just this — bring the victim’s credibility into question. This is such an old trope, such an expected way of being treated by the justice system that women do not report for fear of being psychologically raped by the justice system. In fact multiple studies indicate that rape is the most underreported crime there is, no matter the country.

    But yes, let’s worry about justice for the men, let’s worry that they are treated fairly by the system. Because if we did, many, many more men would go to jail for the crime of rape.Report

    • Avatar Barry in reply to zic says:

      Thanks, Zic! I really didn’t understand what Tim was getting at in his reply.Report

    • Avatar Lyle in reply to zic says:

      The difference between the schools proceedings and a criminal proceeding is simple the school can not put you in jail/prison, the criminal courts can. Civil proceedings can cost you money (see lawsuits) but can’t put you in jail except in contempt of court cases later on. The essence of a criminal proceeding is that it can cost you your liberty or (potentially) your life, while all a civil proceeding can do is cost you money. Expulsion from a community (i.e. college) is basically civil in nature since you can’t be put in prison for the offense. This is not to say that criminal proceedings can’t assess fines, but the essence is that that a criminal proceeding can cause loss of liberty or life.
      IMHO the solution would be that if charged with rape a person is suspended from college pending the outcome of the criminal proceedure, No inquiry or judicial proceeding needed, they are just declared persona non grata in the campus community. If aquitted they are let back in on the next semester.Report

      • Avatar Road Scholar in reply to Lyle says:

        This sounds about right to me. On one end of the spectrum you have the criminal justice system with judges and lawyers and rules of evidence and thresholds for guilt culminating in the whole correctional system. On the other end you have a restaurant kicking out an unruly customer on the manager’s say-so.

        The university is a community of sorts but it isn’t an actual government akin to a municipality. Campus cops are basically like mall cops I would assume, just private security. They can’t really arrest you but they can detain you and call real cops?

        So it seems to me that the university disciplinary system is legally more like mall cops than the real criminal justice system. In which case “preponderance of evidence” is a perfectly defensible standard given that you don’t actually have anything like a legal right to be a student there in the first place. Although now, having said that, I suppose that distinction may be a bit murky in the case of public universities.Report

      • NobAkimoto NobAkimoto in reply to Lyle says:

        I dunno about elsewhere, but on basically every state university I can think of, the campus police departments are actually full fledged PDs and have the same authority as that city’s municipal PD.Report

      • Avatar Kim in reply to Lyle says:

        Road,
        campus cops are a bit more than mall cops. They’re licensed police officers, and capable of diving into the line of fire if someone starts shooting up a building. I /think/ they can arrest people, but would then need to turn them over to city police.

        They also have the job of shutting down as many campus complaints as possible, including rapes. Because it may look bad to see X number of thefts on campus, but it looks REALLY bad to see x number of rapes.Report

      • Avatar James Hanley in reply to Lyle says:

        @road-scholar

        At my school, which is private, campus security is more along the mall cop line (although the top guy has full police training, and iirc has served as a police officer). But at state universities, the campus police normally are fully police officers, every bit as much as the municipal or state police. Some campuses–god forbid–even have SWAT teams.Report

    • Avatar Road Scholar in reply to zic says:

      @zic : It occurs to me that a university is an institution of learning with a mission of preparing the student for full participation in civil society. As such, the experience of a disciplinary action that has consequences that are serious in terms of time, money, and reputation, yet leaves no lasting legal record, is seriously educational. IOW, it’s doing the kid a favor while acting to protect the female student population. Sounds like a win-win to me and also an appropriate venue for applying a somewhat less formal standard of evidence.Report

      • I think Emily Bazelon and Daniel Drezner have it about right for assault cases. Raise the standard of proof and review the process in order to raise the penalty to expected expulsion (and punish schools that go too light on penalties).Report

      • Avatar greginak in reply to Road Scholar says:

        I thought the Bazelon piece was really good when i read it last week. I think in criminal matters the CJ system should do whatever its going to do before Uni procedings. It will make for a fairer trial if their is to be a trial and , if guilty, will settle the deal at the highest level of proof.Report

      • Avatar James Hanley in reply to Road Scholar says:

        @greginak

        I get where you’re coming from, but given how lengthy criminal trials can be, that would tie the school’s hands in dealing with serious misbehavior by their students. It could prevent them from expelling a student who committed rape, or even suspending them and requiring them to stay off campus until the conclusion of the trial. I think schools need more internal control than that. The issue, really, is whether the judge lets a school’s disciplinary action into evidence. That’s a legal question that may already have an appeals court answer that all (or most) of us here are ignorant of.Report

  4. Avatar j r says:

    This is sort of a precious retelling, because it invokes one of the oldest sexual tropes of all: once a man has had a woman, he has the right to have her again – consent one time is consent for all time. But guess what? No means no.

    I disagree that this is about the “right to have her again.” And outside of a minority of reactionaries, I am not sure there are so many people who believe that a past sexual relationship imparts some sort of ongoing right to sexual access. The people who question the narrative of the campus rape epidemic do not do so out the idea that men have some sort of entitlement to women. They do so out of concerns over due process. If you want to argue that these due process concerns are biased towards male concerns and insufficiently mindful of the victims of sexual assault, that’s fine, but you should get the argument right.

    What Will is trying to get at (though poorly) is how we decide what does and what does not constitute rape. I don’t know whether this was an instance of rape or not, because I wasn’t there and the only thing I know about what happened is from a few sentences in an op-ed. I have, however, always had a problem with the “no means no” slogan. It is just not particularly accurate.

    I am fine with the idea that “no ought to mean no” or “no should be taken as no,” but no just does not always mean no. As I said above, I don’t know what happened in this case and I will refrain from speculating. But again, the question about whether some particular scenario meets the legal definition of rape. We have no idea whether she “lost her beer money” or, to extend the metaphor, she willingly spent her beer money because she wanted some beer.

    There is a certain paradox that the feminist perspective is going to have to deal with if it wants its perspective to triumph. On the one hand, I assume that you want women to have every bit of sexual freedom as men have. On the other hand, when there is a conflicting account of some encounter, you want us to default on the side of the woman, because she “lost her beer money,” which really just enforces the traditional idea that men always want sex and women are always playing defense. You cannot have it both ways.Report

    • Avatar zic in reply to j r says:

      I can see this as legitimate.

      Except the preponderance of experience out there suggests prior sexual activity with a rapists is used to discredit the woman. Not too long ago, prior sexual activity with anyone was used to discredit her. And before that, her husband had a right to rape her. The particular story Will picked relies on that history to invoke that history.

      But remember: this is my opinion, and it’s truth because it’s my opinion. I welcome your differing opinion, and were the history not so weighted to different end, I might agree with it, @j-r .Report

      • Avatar ScarletNumbers in reply to zic says:

        Except the preponderance of experience out there suggests prior sexual activity with a rapists is used to discredit the woman.

        As it should.Report

      • Avatar zic in reply to zic says:

        @scarletnumbers

        Why?

        (Or this goes to prove the point I was making to JR.)Report

      • Avatar ScarletNumbers in reply to zic says:

        @zic

        Because, absent actual evidence, a defense of “she had consented before” would sway me.

        Now, if there was evidence to the contrary, then prior consent wouldn’t matter as much.Report

      • Avatar zic in reply to zic says:

        @pinky that’s pretty sick. Some of the worst rape stories I’ve heard have been from women trying to sever ties with old boyfriends/husbands; men who felt they already had consent, because, you know, she’s their property.Report

      • Avatar zic in reply to zic says:

        @pinky I whole heartedly apologize; this response was totally not intended for you, please forgive me.

        It is for @scarletnumbersReport

      • Avatar ScarletNumbers in reply to zic says:

        @zic

        that’s pretty sick.

        You seem to be emotionally invested in this issue.Report

      • Avatar zic in reply to zic says:

        @scarletnumbers

        I am emotionally invested. I am a woman. I have been raped. Nearly every woman I know has experienced some sort of sexual assault, and far too many are survivors of rape.

        So yes. I am emotionally invested. I have good reason to be, and every right to speak based on my lived experience. The misogyny of ’emotional woman’ doesn’t really work, you know? It’s misogyny.Report

      • Avatar James Hanley in reply to zic says:

        Scarlet, you’d better be real careful about where you’re going with this.Report

      • Avatar ScarletNumbers in reply to zic says:

        @james-hanley

        Or what?Report

      • Avatar zic in reply to zic says:

        @scarletnumbers

        You’ve gone from:

        1) consent, once given, indicates it was given for other times;
        2) women don’t need to be listened to because they’re emotional;
        3) Or what posturing.

        Do you realize how funny and sad that is? Is that really how you want to be thought of?Report

      • Avatar James Hanley in reply to zic says:

        You can pursue this discussion reasonably, even if you say things I and others disagree with. But if you move toward sneering at a survivor’s emotional investment I will disappear your comments. I have no authority to do so, but I have the ability to do so and the willingness to take the heat. Or maybe someone else will beat me to it.Report

      • Avatar Kim in reply to zic says:

        Scarlet,
        What sort of evidence is needed for absence of consent?
        If someone fucks you while you’re asleep, you by definition are not consenting.
        What if I have a video recorder?
        What if I simply say no?

        These are all evidence that I do not consent.

        While some people may attempt to scratch out a person’s eyes during sex (as part of the experience), I think most reasonable people would accord such as evidence as well.Report

      • Avatar Patrick in reply to zic says:

        @kim

        What sort of evidence is needed for absence of consent?

        And that’s the question.

        What sort of evidence is needed for absence of consent?

        Not for the guy or gal involved. Somebody says, “No”, I’m perfectly willing myself to accept that as absence of consent.

        But as a adjudicator – you, later. Somebody comes to you and says, “There was absence of consent”. What evidence is sufficient to establish absence of consent?Report

      • Avatar Kim in reply to zic says:

        Patrick,
        I have previously suggested using closed circuit television within frat houses (and other high-risk places), in order to establish consent or lack thereof. Will this be perfect? No, of course not.

        But it’s at least trying.Report

      • Avatar morat20 in reply to zic says:

        Patrick:
        Why absence of consent? Why aren’t we looking for evidence OF consent?

        If I take your wallet, the court’s not going to take “Well, Patrick didn’t say I couldn’t take it” as a defense.

        Sure, lots of things will still come down to he said/she said. But I think asking the accused “Did she say yes” is a heck of lot better than asking the victim “Well, did you say no?”

        Because the presumption should be that you don’t GET to have sex with someone else unless they explicitly allow it. There should be no grey area. If she’s not saying “Yeah, let’s screw” then you shouldn’t be making assumptions.Report

      • Avatar Kim in reply to zic says:

        morat20,
        because it’s a he said/she said situation, and the courts are biased in favor of not sending the defendant to jail.

        Were I queen, I’d consider allowing women to have microphones and recorders, on at all times, for just such circumstances.Report

      • Avatar Patrick in reply to zic says:

        Why absence of consent? Why aren’t we looking for evidence OF consent?

        Because absence of consent is what makes it a crime.

        Also… uh.

        Okay, let’s say for a minute, let me jump on your bandwagon here and by Executive Authority Invested in Alternate Universe Pat re-write our legal code uniformly.

        Bam.

        It is now illegal, upon penalty of 10-20 years in prison, to engage in sexual activity without the express consent of your partner.

        I got you that far.

        Now you define what constitutes “express consent” for me. You write the rest of the law.Report

      • Avatar Patrick in reply to zic says:

        PS -> do keep in mind that I’m going to have jurisdictions that try minors as adults, under your law.

        I’m going to enforce the shit out of it. Alternate Universe Pat is a stickler that way.Report

      • Avatar Patrick in reply to zic says:

        Keep in mind, the 5th still applies.

        Oh, crap, wait…Report

      • Avatar Kim in reply to zic says:

        Patrick,
        At minimum, an expressed asked question before penetration (and possibly before mounting). If not using a condom, a secondary question before ejaculating.

        Also, in order for consent to be given, it must be informed consent (use the standard medical definition, it’ll do.).

        Either or both of the above can be overridden by a signed and notarized written contract signed the night of (which would lay out alternative means of consent, but could not give consent itself — as a side effect, this would help for mute people).Report

      • Avatar ScarletNumbers in reply to zic says:

        @zic June 23, 2014 at 6:38 pm

        I am emotionally invested.

        Well at least you admit you are emotionally invested, just like I said you were.

        You have also used the words “sick” and “misogyny” to describe me and/or my opinions, while I have not insulted you at any time.

        Also, men can and do get emtionally invested in issues, so I don’t think the term should be linked to misogyny.Report

      • Avatar morat20 in reply to zic says:

        Patrick,

        I think my point was badly communicated.

        The presumption, regarding my property, is you can’t take it without my permission, yes? It’s theft, otherwise.

        If it comes down to court and the thief says “Well yeah, he had it in his back pocket and I took it, but he didn’t say I couldn’t have it” — is that a viable defense?

        What about “Well, I picked it up a few times and he told me to drop it, and then he was drinking a bit and arguing with a friend, so I picked it up then and I thought he saw me, but he didn’t say no” — is that a viable defense?

        Do theft cases routinely break down into arguments over whether the accused thief and purported victim clearly communicated “no” enough? Is there not a presumption that my property is mine, and that you need express permission to take it?

        Do the courts break down in hair-splitting over ‘express permission’?

        Why is sex different? I borrow stuff from my friends all the time — sometimes without even needing to explicitly ask — and yet I’m not accused of theft. We manage, quite nicely, without rampant problems of miscommunication becoming theft cases.

        So why is it, with rape, we keep asking if the accuser said “no” often enough? Or the right way? Because that makes it seem like the accused rapist had the legal presumption of sex, which could only be stopped by a “no”.

        You can’t steal my wallet, even if I didn’t expressly tell you “Don’t take my wallet”. It’s still theft. But apparently you can have sex with me, as long as I didn’t say no — or at least, that seems a common defense.

        That seems..backwards.Report

      • Avatar Jaybird in reply to zic says:

        “Need a notary at 2AM? No problem! Call Night Notary! We’ll show up with the paperwork and a breathalyzer test that can be used in a court of law to determine that you either were drunk when you signed our forms or that you weren’t! Competitive rates! Se habla Espanol!”Report

      • Avatar Patrick in reply to zic says:

        Geeze, @kim, you’re missing the point.

        At minimum, an expressed asked question before penetration

        Okay.

        Two cops show up at my door. Someone has sworn out a criminal complaint against me saying that I raped her on the night of June 1st.

        I say, “I asked her, and she said yes.”

        Now what? What do the cops do? Do they arrest me? Does the DA prosecute?

        Can you demand that I give up my fifth amendment right against self-incrimination and put me on the stand and demand that I answer that question under oath? (protip: no)

        If not, then what?Report

      • Avatar Kim in reply to zic says:

        Jay,
        I was kinda figuring most bartenders would become notary publics. and yes, they’d probably have some sort of test for “are you sober enough to not be stupid.”Report

      • Avatar Jaybird in reply to zic says:

        I was kinda figuring most bartenders would become notary publics.

        That might add another couple of days to bartending school but that’s a price I’m willing to let other people pay.

        Mostly because, hey, sometimes you need a notary at 10PM and the only place open is The Rusty Trumpet.

        and yes, they’d probably have some sort of test for “are you sober enough to not be stupid.”

        Without an established baseline for the stupidity of the person being tested, I can’t imagine a meaningful test that could be administered by a notary behind a bar at 2AM that would withstand scrutiny if, the next day, charges were filed.Report

      • Avatar Kim in reply to zic says:

        Jay,
        my serious answer was above, using the standard medical definition of informed consent. ;-PReport

      • Avatar morat20 in reply to zic says:

        Um, Patrick?

        Everything would proceed as normal. Seriously, you’re acting like I’m rewriting the Constitution here — when I’m treating “rape” the same as “theft”. (If I didn’t say “yes you can have my wallet”, you taking my wallet is a crime).

        All this would do is remove the presumption that consent is granted. “She didn’t say no” is no longer a valid defense. And she “said no” means just that — “no”.

        Does the DA prosecute? If he thinks he has a case, just as he does now. Do you have to take the stand? Of course not — what on earth makes you think you’d have to?

        Good lord, this isn’t rocket science — sex with someone passed out is rape because they cannot POSSIBLY give consent, yes? The courts manage that, do they not? I mean, is not the law even RIGHT NOW that it’s rape if there’s not consent? That’s the definition of rape? “Sex without consent”.

        Do you think ANY sex without consent is anything other than rape? No?

        Great. So what’s the substantive difference between “Consent means affirmative consent” — which I believe should be the standard — and “Consent means you didn’t say no” which seems to be the standard in practice?Report

      • Avatar Patrick in reply to zic says:

        If it comes down to court and the thief says “Well yeah, he had it in his back pocket and I took it, but he didn’t say I couldn’t have it” — is that a viable defense?

        Ask a jury. I think most people will look at this particular example in this way.

        Dude A says Dude B stole his wallet. Dude B has Dude A’s wallet. I dunno, but I can’t imagine anybody giving that mofo their wallet just ’cause. Dude B is guilty.

        Person A says Person B had sex with them without consent. Person B says sex was consensual.

        Absent the requirement for a notarized document to qualify as express consent, what do you do?

        We’re notably missing a wallet, here, which is the thing that makes the first case stupidly easy and the second one actually hard.

        Yes, you can put the accuser on the stand. You can’t put the defendant on the stand unless he wants to be there. Are you suggesting we change that rule?

        Are you suggesting that we just assume that any accusation of non-consensual sex should be accepted as sufficient evidence?

        What’s your actual operationalization of your idea, here?Report

      • Avatar Patrick in reply to zic says:

        All this would do is remove the presumption that consent is granted. “She didn’t say no” is no longer a valid defense. And she “said no” means just that — “no”.

        I don’t think you can really remove presumptions with the wave of a legal wand.

        When the judge says “the defendant is entitled to a presumption of innocence”, and then (s)he turns around and says, “being that this is a charge of rape, you must not presume that the defendant had the consent of the alleged victim”, isn’t that… sort of… contradictory?

        I mean, that doesn’t seem contradictory to you? Prejudicial to the defendant?

        The alleged victim takes the stand and says, “He didn’t ask.” or “I said no”. The defendant chooses not to take the stand. I have no physical evidence, at all, to help me guess if the defendant forced themselves upon the alleged victim or not.

        I have the testimony of a witness, which must overcome my presumption of innocence of the defendant.

        What you’re suggesting is that we change the law cosmetically, but practically speaking the investigation, arrest, arraignment, trial, and conviction process will go pretty much as it goes now?

        Okay.

        Do you expect this change to do anything other than change what people say when the cops arrive at the door? Do you expect anything other than embedding a huge amount of slut shaming (even more than what we have now) when the sole determiner of whether or not consent was acquired is whether or not the jury believes the sole witness called to the stand?Report

      • Avatar Kim in reply to zic says:

        Patrick,
        in the event of theft, having someone else’s property on your person is evidence.
        in the event of rape, having had sex with someone is evidence.

        But we don’t consider both of these to be given the same amount of weight, in terms of determining wrongdoing, do we? In fact, the “had sex” part of rape is given nearly ZERO weight in determining “rape guilt.”

        I suspect this is because it’s easy to profile a thief, and most people couldn’t profile a rapist if I paid them.Report

      • Avatar morat20 in reply to zic says:

        What’s your actual operationalization of your idea, here?
        I see you’re problem. You’re just jumping way the heck to the end. I’m talking basics here.

        Pretty simple — when establishing whether a rape occurred (at the investigatory level or when proving a case) — you determine whether the victim gave affirmative consent or not.

        Not all this BS about “Did you say no” or “Did you lead him on” — “Did you say yes to sex” or “Did you agree to have sex with him”.

        Lacking a “yes” is the same as being told “No”. That’s it.

        Everything STILL has to be proven in court, everything STILL proceeds as normal. It’s just that “Not having a yes” is legally the same as “Being told no”.

        In other words, on EVER step of the process the default presumption stops being “Did you tell him no” and is instead “Did you tell him yes”.

        because right now, in many ways, the default presumption is that sex is something you PREVENT from having (“by saying no”) than something you consent to having (“by saying yes”). It’d be like if, in practice, anyone could just take my property and I’d have to prove to everyone from the first responders to the judge that I really, really, REALLY didn’t want him to take my wallet rather than the presumption being “It’s my bloody wallet, he should ask if he wants to borrow it”.Report

      • Avatar Patrick in reply to zic says:

        Oh.

        Okay, well, yeah… I mean, if you’re talking about this in the cultural norms sense, I totally agree.

        Sex should always be something for which you seek mutual, express consent.

        On board.

        100%.

        No disagreement.

        I’d go far enough to say it’s a moral obligation.

        I think we just talked past each other for a half hour.Report

      • Avatar morat20 in reply to zic says:

        Patrick,

        Yeah, I think so. I don’t see any reason that law or police or courts — in their ordinary, everyday process of establishing or proving a crime, couldn’t use “Did she say yes” instead of “Did she say no” as a basis when trying to establish or prove rape.

        Given inability to consent is considered rape, LACK of consent should be sufficient — rather than the common “Sufficient dissent” standard that seems to be the go-to for practically everyone.Report

      • Avatar James Hanley in reply to zic says:

        @morat20

        Respectfully, sometimes you’re saying “consent” and other times you’re saying “said yes” (explicit consent). Trying to follow you here, are you saying that anytime there was not an explicit “yes,” that there was not consent?Report

      • Avatar zic in reply to zic says:

        @morat20 & @patrick

        I very much like the reframing to, “DId she say yes?”

        I would follow with, “After she said yes, did she withdraw consent in any way, and say ‘no,’ or ‘stop?’ or some other method of assessing if she withdrew consent.Report

      • Avatar morat20 in reply to zic says:

        Respectfully, sometimes you’re saying “consent” and other times you’re saying “said yes” (explicit consent). Trying to follow you here, are you saying that anytime there was not an explicit “yes,” that there was not consent?
        As a matter of practice and reality, I don’t think consent has to be verbal or formal — no “I consent to have sex, please take me”.

        But it should be clear enough to understand — there’s a million ways to indicate consent in sex, so it’d come down to reasonableness and courts if there was a dispute.

        Consent isn’t the same as “want” — and coerced consent isn’t, for that matter.

        But as a practical matter, before police or courts or a prosecutor’s office, the default should be “Did you say or indicate you wished to have sex with him” and if the answer is no, treat it as rape. (Which means investigation, not tossing someone into a cell).

        But the repeated insistence, whether it’s custom or law, that the accuser must FIRST prove to everyone that she said “No” enough times needs to stop.

        Because “No” is the default, should be the default. And one of our problems with rape — date rape in specific — is that too many people think “yes” is the default.Report

    • Avatar Kim in reply to j r says:

      jr,
      Anyone who doesn’t consent is being raped — male or woman or goat.

      In the case of the charmingly amusing anecdote, he was possibly torturing her through sleep deprivation (don’t tell me this doesn’t happen. The Internet Has Video.).

      Yeah, you weren’t there. But what George Will is describing, if we take the victim’s word for it (and I do, unless there’s a real reason not to)… happens every day. (Again, the Internet Has Video).

      You sound as if you’re approving George’s calling (implying) of that anecdote “not rape”… I’m going to assume that’s not what you’re saying, as that would disappoint me greatly.Report

    • Avatar greginak in reply to j r says:

      JR- Where is the siding with women in a case with a conflciting account part? I’m not seeing that. I agree there are issues with uni’s having a lesser standard of justice. i don’t like that part. But that doesn’t imply women are suddenly the truth tellers and men presumed guilty. That is the hysterical overreaction mostly. The criminal law is still the law and there has always been, and always will, be a real problem in prosecuting rape. There isn’t often much physical evidence of rape or in molestation of kids. That is the world and not much we can do about it. I’ve seen lots of cases in my work where it was likely some domestic violence, child abuse or sexual assault had occurred. But there was no evidence so it boiled down to conflicting stories which are rarely prosecuted and most people, including me, would be leary of convicting someone on.

      No means no seems simple enough to me. Or how about unless its a Yes its some degree of sexual assault.Report

    • Avatar Van_Owen in reply to j r says:

      @j-r

      I have, however, always had a problem with the “no means no” slogan. It is just not particularly accurate.

      I am fine with the idea that “no ought to mean no” or “no should be taken as no,” but no just does not always mean no.

      In my experience, “no means no” is given to people as a guideline on how they should interpret others behavior. What is the distinction you’re drawing between “no means no” and “no should be taken as no?” In context both phrases mean that when someone says no, respond as if they said no.

      I’m not saying that no one has ever said no insincerely during a sexual encounter. Louis CK does a bit on this that I used to find somewhat absurd and in quite poor taste, talking about a woman who kept pulling away from him during their sexual encounter and then later told him she was disappointed he had not forced himself over her objections. It sounded ridiculous to me at the time. Later on, I did encounter a situation similar enough to that, in which a sexual partner wanted to engage in a sort of rough play without actively communicating that intention before hand. I was, as CK is in his bit, astonished that anyone would expect their resistance to be taken as anything other than that, but such is the broad variety of humanity.

      However, the existence of people or situations for whom and in which no does not always mean know does not change the necessity of teaching that “no means no.” I’d much rather someone who needs to work on making themselves understood miss out on a lay than encourage anyone to take their own judgement of what someone “really wants” over what that someone is actually saying.

      When choosing heuristics, we must be cognizant not only of the chances of a false conclusion, but also the consequences.Report

    • Avatar Pinky in reply to j r says:

      Greg – “But that doesn’t imply women are suddenly the truth tellers and men presumed guilty.” As I understand it, colleges are encouraged to bypass the legal system with hearings of their own, which don’t conform to the standards of criminal courts. If that’s the case, then Will’s point is fair.Report

      • Avatar greginak in reply to Pinky says:

        Colleges have separate procedures however they aren’t criminal proceedings that will send someone to jail. They are Uni disciplinary matters similar to what a Uni would do if a frat dumped a ton of fizzies in a swimming pool. It’s a lesser standard of evidence but also a lesser risk (no jail involved). For criminal matters like rape or assault i’d prefer to let the criminal justice system handle it first and base most if not all Uni discipline off of that. But Uni’s already can hold hearings and discipline for Uni related matters, there is nothing new about that. It seems reasonable for a Uni to look into some parts of an alleged sexual assault to determine if their security measures are appropriate, if dorm assignments need to be changed, Greek policies are at issue, etc.Report

      • Avatar James Hanley in reply to Pinky says:

        That’s not bypasding the legal sysyem, Pinky. It’s a separate issue from the legal system. Schools have rules, and when students break them they have an internal judicial process for dealing with the violations. Students may be determined to not have violated the rules, or they may be found guilty of the violation and be assessed penalties ranging from probation to expulsion.

        The legal process occurs outside the school, and they cannot bypass it if an alleged victim decides to go to the police.

        The only way a school can de facto bypass the legal system is if they pressure a student not to report a sexual assault. In that case, Will’s general argument is undermined, not supported.Report

      • Avatar Murali in reply to Pinky says:

        Colleges are sufficiently expensive that the threat of revoking scholarships etc can jeopardising to one’s future career in such a way as to be coercive. Universities have sufficient power over their students that we should be careful in permitting them to punish as they please.Report

      • Avatar Gabriel Conroy in reply to Pinky says:

        @murali

        No doubt that’s true, and we should insist on due process so that universities may not “punish as they please.” I don’t think it follows that they must observe the same standard as in criminal cases, though. My only reservation is something that Kolohe (I think) raised in Mr. Kowal’s post, about whether expulsion from a university based on a lesser standard of evidence could be used against the defendant in a criminal trial (I hope I’m not misrepresenting what he said). My own answer is that it shouldn’t but if it does, that’s an insufficiency in our criminal law and is not necessarily a criticism of a university’s standard.

        “Thoreau” at Qualified Offerings goes over (in my opinion pretty well) why colleges might reasonably adopt a lesser standard than reasonable doubt: http://highclearing.com/index.php/archives/2014/05/24/17817 (See particularly his point No. 4.)Report

      • NobAkimoto NobAkimoto in reply to Pinky says:

        Since when did conservatives believe it was wrong for private entities to set their own rules about people who are involved with them?

        I mean, seriously, evidently it’s okay to fire women for everything up to being “too attractive” for a boss, but it’s wrong for a school to use a preponderance of evidence standard to expel a potential rapist.Report

      • Avatar James Hanley in reply to Pinky says:

        +1, @nobakimotoReport

      • Avatar Will Truman in reply to Pinky says:

        There are actually a couple of things that make this sort of different.

        First, a lot of the entities we’re talking about are public entities.

        Second, both public and private entities are setting to the preponderance of evidence standard because the OCR told them to.

        (There’s also the issue that employers and schools having the right to do something does not mean that they can’t be criticized for doing so, in the case of private schools who didn’t need OCR encouragement.)Report

      • Avatar Kim in reply to Pinky says:

        Gab,
        just noting that I’m not so upset about that being used as evidence in a criminal case. Because a serial rapist may rack up 10 or 20 complaints, none of which are criminally actionable, but which may together wind up having the school dismiss the guy.Report

      • Avatar Pinky in reply to Pinky says:

        -1 Nob. I mean, if we’re doing the number thing, let’s do it. Nob’s comment was so far off-point that it’s a non sequitur, the only connection being a sort of “war on women” implication. Unfair.Report

      • Avatar Patrick in reply to Pinky says:

        I will go on record here, as an employee of an institution of higher learning, and say that on-campus disciplinary boards are – fairly commonly across all universities – a fucking joke by any standard of audit rigor.

        As a security countermeasure, they’re crap, plain and simple.

        And one can make the argument that they very much ought to be, as typically most infractions at a college or university, even when blatantly out of line, are a matter of kids becoming adults and testing rules and boundaries, and thus it’s part of the learning process.

        This makes them uniquely poor to handle transgressive crimes against historically disadvantaged groups, and even worse to handle actual criminal issues, however.Report

    • Avatar j r in reply to j r says:

      @zic,

      I agree that there are lots of men out there who believe that they have some sort of entitlement to women’t attention and more. However, most of those men are not writing op-eds. I do not pretend that misogyny exists. I only wish to speak up on behalf of separating the intellectual argument for due process from that which is often called rape apology.

      Honestly, I don’t know in which category Will belongs, because his piece is largely incoherent. It is a rambling exercise in status signaling. That being said, however, it is not wrong to worry that actions ostensibly taken to combat rape and sexual assault will end up helping neither, but instead be used as a means of asserting political and social power by progressives.

      @kim,

      You sound as if you’re approving George’s calling (implying) of that anecdote “not rape”…

      I don’t approve or disapprove of calling it anything. In fact, I actively disapprove of trying to pass judgments on situations about which I have no direct knowledge. This is the reason we have courts of law. There is no wisdom of crowds when it comes to adjudicating criminal justice cases. The appropriate term for that is the mob.

      @greginak and @van_owen

      As I said, I have no problem with the idea that no ought to be taken as a no. My problem is that the politically correct way to talk about consent oftentimes does not match up to the reality of how men and women communicate in romantic encounters (I say men and women because I don’t have direct experience with same-sex relationships, but I imagine that some of the same issues occur). How often is consent given through an explicit verbal affirmative statement? And are you ready to call every case in which an explicit verbal yes was not given a rape?

      And this is about more than just being worried about false rape claims or political correctness taking over campuses. This is about what are and what are not good, viable solutions to the problems that we have. My problem with political correctness is not that I feel threatened by it. My problem is that it is ostensibly aimed at making some set of improvements in how people relate to each other, but often just ends up being an exercise in political and ideological power. And in reality, political and ideological methods are rarely any good at solving real problems. Mostly they just allow us all to signal that we care while the problem persists.Report

      • Avatar Kim in reply to j r says:

        jr,
        I think that there are a few good approaches to this:
        1) If you’re not going to use explicit verbal agreement, figure that out beforehand. Talk about what someone wants “no” to be (this is especially necessary for abuse victims, because they may not be able to communicate well in the moment).

        2) It generally doesn’t do any harm to wait a bit, and it’s not going to “disrupt the mood” (if anything, more petting/foreplay will improve it). Catching someone by surprise is a tool used by rapists (they’re not alone in that), but it may also be a factor in a lot of miscommunication.

        3) If someone was harmed, then there’s tort, and possibly criminal penalties. That’s the real boundary for “you didn’t SAY yes”.

        4) One solution to the problems that we have is Men stepping up to the plate. Keeping an eye out for the serial rapists, and disabusing them of the notion that what they’re doing is without consequence. If five or ten women aren’t happy after you’ve had sex with them, you might want to figure out why that is.Report

      • Avatar zic in reply to j r says:

        @j-r

        I realize that there’s some probability some men will be unfairly tarred with this brush.

        But.

        Women have been unfairly tarred with this brush for centuries. The norm is that men has long been that men can harass, it’s what they do, and it’s a woman’s job to keep herself pure. The norm was that if a woman is raped, she must have done something to bring it on herself, and as Francis so nicely pointed out (I don’t remember if it was on this post or another,) it took having women as lawyers, in law enforcement, as judges to help redefine ‘reasonable man’ to ‘reasonable woman.’ That this change happened ought be proof that ‘reasonable man’ standards were, in fact, unreasonable when it comes to the physical safety of women.

        So what was reasonable, we discover, really isn’t. That’s the arc of social justice. Slavery was once reasonable.

        The change in ‘reasonable’ will discomfort the people being asked to change, there is no doubt. It’s probably confusing for people who grew up and were acclimated by the old standards to figure out the new standards. But that does not absolve them of responsibility to do so, either.

        The whole reason women have agitated for better handling of campus safety is because they are unsafe; there is ample evidence of their reports being neglected, ignored, and responses protracted. There is evidence that some serial rapists were allowed to remain on campus and continue raping. And it was the women who had to leave the school, through no fault of their own, or sit in class with a man who raped them.

        So you’re suggesting that some man might be denied an education at some particular university because of this new rule. And my response is that this is already happening to women, they may not be getting expelled, but their safety in the school environment is so threatened that they cannot be successful students. This is, remember, why Title IX applies to the discussion.

        Why do you think it okay for women to be discriminated against in pursuit of an education because of fear of protecting men potentially guilty of sexual assault? And which do you think is the status quo to be overcome with a better, more comprehensive understanding of ‘reasonable person,’ one that includes the perspective of women instead of just men?

        I’m very sorry that men have been discomforted with having to learn to treat women as people instead of sex objects, to treat them as equals instead of prey. But I’m only sorry (and more then a little disappointed) that they’re discomforted; not that they have to learn what reasonable actually means.Report

      • Avatar Kazzy in reply to j r says:

        @zic

        Wouldn’t it just be easier to say that these men who may be wrongly caught up in this process probably should have thought about that BEFORE they got themselves into such a situation?

        I mean, that’s what we said/say to rape victims…Report

      • Avatar morat20 in reply to j r says:

        Maybe you shouldn’t have been at that party, sir, drinking like that and flirting with everyone. Maybe your judgement wasn’t the best, hmm? Are you sure you’re innocent, and not just regretting what you did the night before?Report

      • Avatar Kazzy in reply to j r says:

        “Maybe if you hadn’t gotten that tribal tattoo, we wouldn’t be so inclined to think you were an ass.”Report

      • Avatar Van_Owen in reply to j r says:

        @j-r

        As long as we haven’t even achieved a widespread acceptance of “no means no” as a paradigm, I think that jumping at the possible consequences of broad legal implementation of affirmative consent is premature.

        In the case above, the case the George Will apparently contests being a “sexual assault,” we have A beginning to take off B’s clothes, B saying no, A stating that he accepted that, and then proceeding to remove B’s clothes after a few minutes lull, with no further conversation. So apparently, to George Will, no doesn’t mean no. You note repeatedly that you lack sufficient knowledge to pass judgement on this incident. That’s fair, but I do think we can discuss it in the context of the George Will article, using the information he chose to convey himself. Presumably he shared the information upon which he built his conclusions, which is what we are discussing.

        This isn’t a case in which “an explicit verbal yes was not given.” This is a case in which an explicit verbal no was given and then ignored. It would be one thing for A to try to discuss, persuade, flirt (though this behavior can certainly veer quite easily into inappropriate pressuring). Responding to someone saying no by pausing and then wordlessly removing their and your clothes is an entirely different matter. This isn’t a case in which the merits of an explicit affirmative consent model (beneficial as I may consider that to be) seems to be relevant, so I am not sure why you are steering the discussion in that direction.

        If someone tells you to stop doing something, I don’t think its unreasonable to expect you to not do that thing unless and until they tell you otherwise.Report

      • Avatar zic in reply to j r says:

        @kazzy I appreciate the irony.

        Given that we’re not discussing strangers, but people who know one another, I’d also wonder why we don’t discuss his obvious mistake at fraternizing with women. . .Report

      • Avatar j r in reply to j r says:

        There is a bit of a disconnect here, because we are coming at this from different perspectives. I get that you want to raise the social status of women and I’m not opposed to that. And I am all about taking positive steps to cut down on the number of rapes and sexual assaults that happen. I just don’t believe that the former is related to the latter in the way that you believe it is.

        If you want to talk about policy alternatives, I’m all ears. But if you want to have status competitions, I become less interested. We don’t have to choose between allowing women to be victimized en masse and discomforting men. More to the point, discomforting men isn’t going to get you where you want to be.Report

      • Avatar Kim in reply to j r says:

        jr,
        I don’t consider this about “discomforting men”. I consider this about making contractual terms explicit — because otherwise it’s an emotional minefield.

        Love to hear any suggestions you’ve got, particularly since you seem to think some of mine might be ineffectual.Report

      • Avatar Kazzy in reply to j r says:

        @j-r

        Who is proposing that we discomfort men? What are they proposing be done to discomfort men?Report

      • Avatar j r in reply to j r says:

        That was a response to this statement from Kazzy:

        I’m very sorry that men have been discomforted with having to learn to treat women as people instead of sex objects, to treat them as equals instead of prey. But I’m only sorry (and more then a little disappointed) that they’re discomforted; not that they have to learn what reasonable actually means.

        Report

      • Avatar morat20 in reply to j r says:

        J R,
        I think you misread that as discomforting being the goal rather than a possible side effect.

        The point was that men needed to treat women as equals instead of sexual prey to fix the problem, even IF that discomforted men.Report

      • Avatar j r in reply to j r says:

        I think you misread that as discomforting being the goal rather than a possible side effect.

        I understand it. I just disagree with it. The whole point of my comments is that a significant portion of what is being done in the name of preventing rape and sexual assault is really about exercising political and ideological power and about status games.

        More to the point, if we really want to stop rape and sexual assault, we ought to lose the emphasis on ideology and instead start speaking more honestly about sexual encounters occur as opposed to how we would like them to occur.Report

      • Avatar zic in reply to j r says:

        @j-r

        More to the point, if we really want to stop rape and sexual assault, we ought to lose the emphasis on ideology and instead start speaking more honestly about sexual encounters occur as opposed to how we would like them to occur.

        I nearly split my sides laughing at this. Because that’s the whole point of Mr. Will’s “proliferation,” argument. Women start actually talking about what occurs, and it’s not about what actually happens, it’s about victims coming out of the wood work, and that’s obviously a problem.

        I have tried very hard to talk about what actually happens; from a women’s perspective. Since I am not a man, I can only imagine and try to empathize.

        But don’t feed me crap that this is ‘political’ and ‘ideology,’ it’s not, and I do not speak of it as if it were. But to continue decreasing the amount of sexual violence women experience, we have to access the political system and the legal system.

        I want men to be aware of how harmful their harassment and abuse of women is, and I want them to clearly internalize that it is unacceptable. That’s not politics or ideology for the sake of team red/team blue, that’s a battle for women’s civil rights, and I won’t surrender any ground because someone suggests this is ‘just politics,’ with some underlying reason that because it’s just politics, it’s not worth the effort of serious public debate. That’s just as bad as Scarletnumbers trying to dismiss me because I’m ’emotionally involved.’Report

      • Avatar morat20 in reply to j r says:

        More to the point, if we really want to stop rape and sexual assault, we ought to lose the emphasis on ideology and instead start speaking more honestly about sexual encounters occur as opposed to how we would like them to occur.
        When women do, men start getting upset and suddenly it becomes about false crimes.

        Men in general don’t want to HEAR that a woman doesn’t owe you her body. That she’s not a foregone conclusion. That “no” means “no” and not “get me drunk first” and that “Yes” is a critical word.

        They get discomforted and start yelling about feminism, in my experience.

        And why wouldn’t they? What they’ve got is pretty cushy. They can exploit the heck out of any grey areas, content that the system will discourage women from daring to complain.Report

      • Avatar j r in reply to j r says:

        But don’t feed me crap that this is ‘political’ and ‘ideology,’ it’s not, and I do not speak of it as if it were. But to continue decreasing the amount of sexual violence women experience, we have to access the political system and the legal system.

        I will not go so far as to call it a direct contradiction, but there is some tension between the first sentence and the second. And this is after you made a whole comment about raising the status of women and discomforting men.

        I don’t have a problem emphasizing with the victims or potential victims of sexual assault. I do, however, chafe when people start talking about rape as something that men do to women as oppose to something that perpetrators do to victims. As a man, I feel no discomfort whatsoever at the idea that men shouldn’t force themselves onto women. And that is why I find the whole status games angle so vexing.Report

      • Avatar morat20 in reply to j r says:

        I do, however, chafe when people start talking about rape as something that men do to women as oppose to something that perpetrators do to victims
        Ah yes. “men get raped too”.

        I’ve never yet read a conversation about rape that didn’t ultimately devolve to a man petulantly complaining that women don’t talk about men being raped to. (Domestic violence discussions have the same problem).

        Yes, men do. What’s your point? Oh wait, you don’t have one other than it hurts your feelings apparently? You can’t focus on the plight of female rape victims because they don’t think about the men enough?Report

      • Avatar j r in reply to j r says:

        Men in general don’t want to HEAR that a woman doesn’t owe you her body.

        Thanks for giving me the perfect example of the sort of thing that I am talking about.

        If that really describes the men that you know, I suggest that you make better friends.Report

      • Avatar j r in reply to j r says:

        Yes, men do. What’s your point? Oh wait, you don’t have one other than it hurts your feelings apparently? You can’t focus on the plight of female rape victims because they don’t think about the men enough?

        No. You have actually completely misunderstood my point. This has nothing to do with male victims.

        Rape is something that one individual perpetrator (more often than not male) does to an individual victim. It is not something that one group does to the other. Assigning collective responsibility based on broad demographic characteristics is about the most illiberal and unjustifiable things that you can do.Report

      • Avatar morat20 in reply to j r says:

        Thanks for giving me the perfect example of the sort of thing that I am talking about.

        If that really describes the men that you know, I suggest that you make better friends.

        *eyeroll*. Talk about sticking to a playbook.

        George Will being a perfect example, right up top. I’m afraid George Will ain’t no friend of mine. You’re another example — as you just said, it “chafes” you that women speaking about rape don’t spend enough time talking about men who are raped.

        Can’t talk about women being raped, not without talking about all those raped men. Nevermind that we were talking specifically of female rape victims, college rape statistics, and then date rape.Report

      • Avatar morat20 in reply to j r says:

        Rape is something that one individual perpetrator (more often than not male) does to an individual victim. It is not something that one group does to the other. Assigning collective responsibility based on broad demographic characteristics is about the most illiberal and unjustifiable things that you can do.

        So there’s a 50/50 split, gender wise, on non-prison rapes? Wait there’s not? You mean women are, by and large, MUCH more likely to be raped than men? Considerably more?

        Wow. That seems to indicate there is, in fact, a demographic problem. Something to do with gender or society.

        But I guess we can’t talk about that. Reality is illiberal and unjustifiable.Report

      • Avatar zic in reply to j r says:

        @j-r

        I think you better go back and read my original post again, because I did address quite specifically why I think the standard of consent matters instead of bodily response — because bodily response means that women’s rape of men would be dismissed.

        You are strawmanning me, and it would be nice if, instead of picking apart my arguments for loopholes through which rapists can slip, you actually engaged the argument that 1) too much rape happens; 2) the system punishes the person reporting the rape, 3) rapists get away with it most of the time, and 4) in the college environment, this makes it difficult for rape victims to be successful.Report

      • Avatar j r in reply to j r says:

        @morat20,

        But I guess we can’t talk about that. Reality is illiberal and unjustifiable.

        I’ve spent some time looking at the Steve Sailor/race realist part of the internet and it is worth noting that I have seen those folks employ the exact same line of reasoning while arguing in favor of racial supremacy and railing against political correctness.

        I am not sure that there is much of a reason to continue this conversation. I’ve said all that I wanted to say. I am opposed (outside of perhaps a few specific scenarios) to the idea of collective responsibility for individual actions. Some people will agree with me and some won’t. I am fine with that.

        @zic,

        I am not sure what you mean by looking for loopholes. I am pointing out the parts of your argument with which I disagree. I question some of the narrative of the college rape epidemic, partly on empirical grounds and partly on conceptual grounds. I think that we would be best to treat rape as a criminal matter and not a political/ideological one. And I don’t think that increasing the involvement of college administrators in adjudicating criminal matters is a particularly good idea, both for due process reasons and because I do not think that it will be particularly effective. Beyond that, I don’t have much more to add, at least not in a comment. It would require more thoughtfulness than I can muster right now.

        And as you said above, these are my opinions. I am open to the possibility that I am absolutely wrong on one or all of my beliefs.Report

      • Avatar zic in reply to j r says:

        @j-r to give you serious benefit of the doubt, I have to ask: how do we make the justice system more fair to women who have been raped? They are still put on trial, it is the defendant’s right to question them and degrade them in any way possible. This is the whole what she wore, what she drank, who she’d previously slept with. Seriously — if you accuse someone of raping you, you’re entire sexual history is put on public display.

        So I will consider what you say in a much better light if you address fairness in the justice system, which currently is a travesty, and that travesty is why so few rapes are reported. As I’ve said elsewhere on this thread, that reporting is increasing is sign of progress. But off the top of my head, unreported rapes are still estimated at about 2/3 of all rapes, false rape accusations are about 8%, and embedded in the false rape accusations are some percentage of withdrawn complaints because of the horrors of the process for the victim.

        I simply am astounded that there’s so much concern about his rights (which I will, and I think you know that I will, defend) and so little concern expressed about the ongoing violation of women’s rights after they accuse someone. You’ve gotta take that on if you really want me to take you seriously.Report

      • Avatar Mad Rocket Scientist in reply to j r says:

        @zic

        Re: Justice system.

        I think the lawyers here can provide some light, but it seems to me that many cases, the judge hearing the case is the one who decides on what is legitimate evidence & questioning, so it falls to them to allow or deny what kinds of questions a defense attorney can use.

        If a judge feels that the manner of dress, or sexual history, or etc. is somehow relevant to the case, then I think you’ll see those questions. So the course of action is to work to convince the judiciary that such things are not relevant to the question of consent, and asking such questions is inappropriate/prejudicial (is that the term?).

        Perhaps this is a where @morat20 suggestion of reframing the question would be useful. Here I can see the value of asking “Did she clearly say/indicate yes?” as opposed to “DId she clearly say/indicate no?”.

        How that is introduced & pushed into the legal system is beyond me, I just help people model complex fluid systems with higher order mathematics.Report

      • Avatar Don Zeko in reply to j r says:

        @mad-rocket-scientist At the trial level, the judge rules on whether or not the proffered testimony abides by the relevant rules of evidence, either the Federal Rules or the rules of the particular state (which are mostly very similar to the Federal Rules). This ruling can be appealed, but it is generally difficult to get the trial judge’s ruling overturned.

        Anyway, in the federal rules, there is a specific rule, FRE 412, which bars the admission of evidence of the victim’s prior sexual activity or sexual predisposition. However, there are several exceptions to the general prohibition, and all of this is in tension with a general assumption that due process requires the rules of evidence to allow a criminal defendant to put on a case.Report

      • Avatar Kim in reply to j r says:

        jr and morat20,
        I’ve been known to raise holy hell about people talking about this as if only women get raped. And, morat20, please be aware that by the old definition, without a penis entering a body cavity, it isn’t rape. When you look at youth studies about “sexual abuse” you find boys and girls at much closer parity (girls still having more, but I question the reporting of boys.)

        jr,
        No, it’s not collective responsibility — unless you’re at a party, and you’re letting someone fuck the girl who’s passed out (or otherwise incapable of giving consent) in front of everyone else. In which case you and everyone else conscious and present (and videotaping, because the internet), ought to be liable for assisting in rape.

        I can talk cogently about different cultures having different patterns of how they abuse women. When we start saying shit like, “Men have a hard time acknowledging that women are people” — I can pull out some fucking personality profiles. This ain’t everyone, sure as hell. But it’s enough of ’em — and they sure don’t like what us liberals want [and no, reality ain’t liberal. women are different from men, and “races” are different from each other, but not graded by freakin’ skintone, because that was idiotic from the beginning. Just because we can see it, doesn’t mean it’s at all relevant.]Report

      • Avatar Mad Rocket Scientist in reply to j r says:

        @don-zeko

        Thank youReport

  5. Avatar Barry says:

    jr: “What Will is trying to get at (though poorly) is how we decide what does and what does not constitute rape. ”

    I don’t see it as that; I see it as dismissing the idea.

    And George Will is a nationally syndicated columnist, with staff and editors. ‘trying to get at poorly’ is not an excuse that applies.Report

    • Avatar Philip H. in reply to Barry says:

      Considering how many times Mr. Will has been caught mis-construing climate data and quotes from actual climate scientists in his former vein quest to discredit said scientists, not so much. And when that issue last blew up the, Washington Post’s Ombudsman ran a piece in which he said flat out that columnists of Mr. Will’s “caliber” were NOT generally fact checked or edited by the paper, but published as submitted.

      So, you can believe that he doesn’t do stuff poorly, but the record of his syndicating newspaper provides evidence to the contrary.Report

      • NobAkimoto NobAkimoto in reply to Philip H. says:

        WaPo ombudsman has to be the easiest job in the world. I mean George Will and Jennifer Rubin continually feed you red meat of extremely offensive things you can keep talking about week after week.Report

      • Avatar James Hanley in reply to Philip H. says:

        columnists of Mr. Will’s “caliber” were NOT generally fact checked or edited by the paper, but published as submitted.

        Absolutely. George Will has status, and frankly he’s earned it over the years. The problem is that kind of status can go to one’s head, so that you believe you don’t need fact checkers because you’re simply always right. That’s likely to happen to nearly anyone, particularly those who believe in their own smarts enough to go into the opinionating business in the first place. And as along as one segment of your readership is vocally praising you, it’s easy to tune out the naysayers, to accuse them–as Mr. Will did in this case–of being people who don’t read and think.Report

      • Avatar Barry in reply to Philip H. says:

        I’m aware of the fact that the man’s dishonest. What I meant was that people can’t excuse him for communicating his thoughts and ideas poorly, because that’s his job.Report

      • Avatar Philip H in reply to Philip H. says:

        Oh @barry , sure they can excuse him – It seems to happen to all sorts of “professional” communicators all the time. It most often seems to happen when the poor writing coincides with the ideology of the reader/excuser in question.Report

  6. Avatar Road Scholar says:

    @zic , let me just say, great post as always. I feel I’ve learned a great deal from you (and veronica as well) and your perspective here is extremely valuable. I’m learning to shut up, read, and learn. Thank-you.Report

  7. Concerning “microaggressions.” I believe that term is meant to refer to the small things that are done every day, but are difficult to identify or call out, or that are so common that it wears on one. I don’t think Mr. Will is necessarily calling sexual assault a microaggression. He seems to be claiming that other persons’ notions that microaggressions make him skeptical.

    Of course, he also says that sexual assault (or “sexual assault,” as he puts it) makes him skeptical. And his writing through so much of that column is, to put it charitably, unclear and confused, I can excuse anyone who believes he’s calling sexual assault a “microaggression.”

    I almost didn’t bring this up because it’s really a quibble and I agree with pretty much everything else in this OP and in James’s OP. I do think the idea of microaggressions is an interesting one to discuss on its own (but perhaps not in this particular thread).Report

    • Avatar Kazzy in reply to Gabriel Conroy says:

      I’ve gone to some workshops on micro aggressions. I’ll see if I can dig up my notes and write a post.Report

    • Avatar zic in reply to Gabriel Conroy says:

      Huh. I’ll go read the link, but before I do, I thought he was referring to the thousands of paper cuts — the catcalls, etc., that don’t do real harm alone but, can, be damaging in aggregate.Report

    • Avatar Kim in reply to Gabriel Conroy says:

      I think the notion of a simple assault fits well into this (along with “people’s criteria vary”) — someone may not want to be touched, or even sit close to a guy. A guy can unknowingly offend (while flirting or simply studying together)… this is not to say these are legally actionable, or any such nonsense.

      But it is to say, “don’t be a jackass. if someone asks you to stop, stop”Report

    • Avatar zic in reply to Gabriel Conroy says:

      @gabriel-conroy

      I think the whole notion of microagressions goes to the overall climate of a campus (or office, or any other place people gather regularly). If there’s a group of males on a campus who normally walk around doing small, harassing things, as a woman, the overall atmosphere can eventually become one you enter with heightened focus on where the next microagression will appear; your focus shifts from going about your daily activity to going about your daily activity distracted; it’s very much on a par with constant bullying. (Think, for example, of what we hear happens to women out on the streets in Egypt or India.) There may be no physical assault, but the overall environment turns hostile for some people, and their ability to do the things they’re there to do is dampened.

      To me, one of the underlying premises of this discussion is absolutely the Title IX discussion — if this is enough to interfere with women being successful in school, it’s a problem. A lot of people express concern about the alleged rapists ability to get an education; but the same right of access to education exists for the alleged victim, be it rape or an overabundance of migroagressions. It creates a hostile and unsafe environment where the student cannot focus.

      I suspect that it’s much more common for women to withdraw from school because they it’s a hostile environment then it is for harassers on campus to be expelled. So the infringement of right-of-access to education is falling on victims, who have not done anything wrong. This is rather appalling, no?Report

    • Avatar veronica d in reply to Gabriel Conroy says:

      It’s simple. “Microaggressions” are all the little things, on their own not worth pointing out, but that collectively wear you down.

      It’s every time someone calls me “sir” (when I’m wearing a skirt), the funny looks, the barely suppressed laughter, the crude comments, day after day after day, every single day.

      It’s even smaller things, the way people are awkward around me when we first meet. I’m starting a new job, and Monday was my first day working with my new team. Here’s the thing: they don’t quite know what to make of me. So I drop little comments, little half-jokes about being transsexual, mostly to let them know it’s not a big deal and we can acknowledge it and I’m willing to talk about it. So we’ll get that out of the way and in a few weeks it will be no big deal. I’ll just be Veronica, tall girl.

      But I still have to do all that. You don’t.

      This weekend I went to a trans women’s picnic. It was really amazing. We could just be girls, unedited, unconstrained, and totally natural. I almost never get to do that.Report

      • Avatar Chris in reply to veronica d says:

        It’s even smaller things, the way people are awkward around me when we first meet. I’m starting a new job, and Monday was my first day working with my new team. Here’s the thing: they don’t quite know what to make of me.

        Is this microaggression or just the sort of awkwardness that usually come with a new person being added to an existing group, exacerbated by something noticeably “different” about you. It’s the sort of thing that pretty much any member of a relatively small minority will experience, and it is undoubtedly more uncomfortable than the usual new-person awkwardness, but it’s not microagression.

        On the other hand, anyone who has ever worked in an office has likely seen microaggression toward women. Little jokes at their expense, singling them out, making comments that highlight their gender or that are specifically gender based (I remember, many many years ago, working with a guy who’d frequently say to the few women we worked with, “Your roots are showing” when they got something wrong). Sometimes it reminds me of little boys pulling a girls pony tail in school to get her attention, but in this case it’s grown ass men who should know better, in a work environment, just being mildly jerkish over and over again.Report

      • Avatar Murali in reply to veronica d says:

        @veronica-d
        I don’t get the urge to laugh at trans folk. Singapore is an extremely conservative and rather homophobic place. Transfolk are usually not that visible, but where I have met them, while I have met people who get the gender pronoun wrong (and some who insist on doing so), I have not met anyone who laughs at transfolk (whether or not they “pass”) or insults them to their face or cat calls etc. Is it a cultural thing or something?Report

      • Avatar Stillwater in reply to veronica d says:

        Murali,

        I’m inclined to say it’s cultural. We American’s live in a pretty fucked up, backwards assed, society. It’s like juvenility has been elevated to high culture, or something. At least for us white people.

        Maybe I’m jaded…Report

      • Avatar veronica d in reply to veronica d says:

        @chris — Right, those are microaggressions toward women.

        On the trans stuff, I have a basis of comparison. I’ve begun new jobs back when I lived in boy drag. I’ve started new jobs as a trans woman. I feel a difference.

        But more, I’ve been among groups of cis women and groups of trans women. There is something that is different between the two situations, a kind of ease when I am among my own. We can be just girls, and I don’t know how to explain, but it’s like this enormous weight is (however briefly) removed.Report

      • Avatar Stillwater in reply to veronica d says:

        Sometimes it reminds me of little boys pulling a girls pony tail in school to get her attention, but in this case it’s grown ass men who should know better, in a work environment, just being mildly jerkish over and over again.

        Chis beat me to it!!Report

      • Avatar veronica d in reply to veronica d says:

        @murali — This should tell you all you need to know:

        http://www.vice.com/en_ca/read/this-american-bro-an-ethological-studyReport

      • Avatar veronica d in reply to veronica d says:

        @chris — Also, I notice the new folks relax perceptibly when I make an offhanded joke about being trans. It’s like, I point out the elephant in the room and now they can relax.

        I think it’s this: I’ve given a name to what they see, “transsexual” — a thing they can kinda-sorta understand. Like, “Hi, I’m trans and I write software and I like to laugh and be happy and we can just be friends and have a three dimensional relationship like normal people.”

        When I do this, they seem relieved.Report

      • Avatar Stillwater in reply to veronica d says:

        When I do this, they seem relieved.

        Exactly. What the hell is wrong with our culture that saying something so effing trivial and obvious actually changes people’s behavior? It’s like folks in our society can’t think for themselves with any maturity. We’re a culture of emotional adolescents.Report

      • Avatar Mike Schilling in reply to veronica d says:

        It’s like juvenility has been elevated to high culture, or something

        Just for fun, how many of the last 10 films you saw were about comic book characters?Report

      • Avatar veronica d in reply to veronica d says:

        [warning: posting while drunk]

        So tonight I wander outside of a club in Central Square, Cambridge, and two dudely dudebros are wandering past, you know, the sort of guys with lots of muscles. Anyway, I exit the door onto the sidewalk pretty much inches from them as they pass. One look at me, and I get a “What the fuck?”

        Now, okay, these dudes are big and dudely, but actually I’m bigger than them. And I used to kickbox. So, like, being intimidated is not my style. I say, “Whaddaya mean what the fuck? What the fuck to you?”

        (Or something like that. I forget my exact words.)

        They walk on and one of them shouts, “No offense.”

        Yeah, they said that. No offense. Right.

        I laugh and say, “Right, no offense. Like I’m not gonna be offended.”

        They ramble on something or another, about dudes who look like girls. Some shit like that.

        I shout out, “Behold the American Douchebag!”

        Evidently there had been some kind of hiphop show in the club next door, and a whole fuckton of hiphop dudes (meaning big black guys) saw this and started laughing.

        Which, whatever. I guess the tranny wins a point. Or something.

        I went back inside and danced more. I love my crazy queer life.Report

      • Avatar Kim in reply to veronica d says:

        v,
        It might be just that openly acknowledging something makes it easier.
        For people who aren’t schooled in visual analysis of others (me, for one!), I might be looking at you, and wondering — “did she used to be a guy? She seems awfully tall for a girl… Is that an adam’s apple?” [I’d imagine people who are going less out of their way to project a gender also generate some confusion… I have on occasions asked people if they’re male or female. Yes, I was a tactless teen.]

        And then there’s the whole “we want to ask, we’re curious, we’re actually interested…” (which may be compounded with an “is she in the closet?” vibe — which may seem weird, but…)Report

  8. Avatar Saul Degraw says:

    @mark-thompson

    Re: Lowering the sentencing

    IIRC the reason domestic battery is frequently a misdemeanor instead of a felony is that it is easier to get the victims of domestic violence to file for misdemeanor charges instead of felony charges. I admit to knowing about this in a round about way because of Heller and McDonald. There is a circuit split about whether misdemeanor domestic battery convictions should have felony prohibitions on post-sentence gun ownership but we touched upon the logic behind keeping it a misdemeanor in my Advanced Con Law class.

    I think there would be a lot of outrage at suggesting this as an idea on a policy level.Report

  9. Avatar Kim says:

    For all those talking about a girl playing hard to get? That lady might just be a rape victim.
    In which case, she might try and rip your eyeballs out of your sockets.

    … this is not made up, I promise.

    If you suspect the other person might be capable of committing violence while in the throes of passion, it probably pays to get consent in writing — for both your sakes.Report

  10. Avatar Barry says:

    James Hanley: “Absolutely. George Will has status, and frankly he’s earned it over the years. ”

    I agree, but in a bad way. He’s been stinkingly dishonest since at least 1980, when he helped prep Reagan for a debates using stolen materials, and then went on TV to claim victory, without admitting that he was on the debate prep team.Report

  11. Avatar Kazzy says:

    @patrick

    I want to explore @morat20 ‘s analogy between rape and theft a bit more because it is something I’ve thought about (at least in terms of presumptions made)…

    Three scenarios…

    Scenario #1
    Mary calls the police.
    The police arrive on scene and find Mary and Tom, Tom in possession of Mary’s wallet. Mary says Tom stole it. Tom says Mary gave it to him. How do the police respond? My assumption is that they arrest Tom for theft and he is likely found guilty.

    Scenario #2
    Mary calls the police.
    The police arrive on scene and find Mary and Tom, Mary with a black eye and Tom with scraped knuckles. Mary says Tom hit her. Tom says Mary told him to hit her. How do the police respond? My assumption is that they arrest Tom for assault/battery and he is likely found guilty.

    Scenario #3
    Mary calls the police.
    The police arrive on scene and find Mary and Tom, Mary with some vaginal trauma consistent with sexual assault and Tom’s semen inside her (DNA tests are remarkably speedy). Mary says that Tom raped her. Tom says that Mary wanted sex and wanted it hard (hence the trauma). How do the police respond? My assumption is they probably do not arrest Tom on the spot but maybe at a later date; he is likely found not guilty.

    First, are my assumptions reasonable? If so, why the difference between Scenario #3 and the Scenarios #1 and 2? Is it because we assume Mary is more likely to have consented to rough sex than to giving up her wallet or being punched in the face and this is sufficient to offer reasonable doubt? If so, is that a fair assumption to make? Maybe we should stop assuming the Marys of the world want sex from the Toms of the world, just as we assume the Marys of the world don’t want to be punched in the face by the Toms of the world.Report

    • Avatar switters in reply to Kazzy says:

      I’ve been trying to come up with more analogous scenarios, but I keep failing. So instead, I’ll critique yours.

      Scenario 1 is troubling to me because the reason the cops would arrest Tom is because he has Mary’s thing, he has still not returned it, and she clearly wants it back. When the party who owns the property wants it and the party who allegedly stole it still has it, it is pretty easy to infer no consent exists. I mean its right there. If Mary had her wallet back when the cop showed up, but claimed Tom had taken it from her and only returned it after she called the cops, and there was no other evidence that anything had happened, and oh by the way the two had been friends and/or lovers in the past, I don’t think the cops would do anything. They’d probably say stop wasting their time. AND FOR THE RECORD, I do not think the preceding is analogous to rape, and do not recommend treating accusations of rape that way either, I’m just pointing out the reason I find scenario 1 a bad analogy.

      Scenario 2. If consensual sex was as rare as consensual beating was, I think women (and men) claiming sex occurred without consent would get more of a benefit of the doubt regarding that claim. Likewise, if consensual beating was as common as consensual sex, I think Tom’s (or a women’s making the same claim) claim that there was consent would be given more due, in particular, whether we like or not, if the cops knew the complaining party had in fact consented to beatings many many times in the past.

      I was just anesthetized for surgery recently. No way did I give specific and informed consent to most of the stuff that was done after I went under. For all the regular stuff the Doc did, if I claimed I did not consent, my guess is the arbiter of fact would look at what similar docs would do in similar surgeries, and assume I consented to that stuff. Things the doc did way off the beaten path, even if he claimed I gave consent, would receive much more scrutiny. And I think this would be the case regardless of what any paper I had signed said, even if in small print, it gave the doctor the right to, for example, remove my armpit hair for his personal collection.

      I think you’re assumption in Scenario three is wrong. I think Tom would be arrested on the spot. And I think he would be convicted.Report

      • Avatar Glyph in reply to switters says:

        I’ll split the difference with @switters on scenario #3 and say that Tom would likely be arrested on the spot (at least, if we’re not talking university campus police) but obtaining a conviction is iffy, largely depending on the prior relationship of Mary and Tom.Report

      • Avatar Kim in reply to switters says:

        Doctors have a whole different list of medical ethics for “what to do when the patient can’t give informed consent”… these apply while you’re anesthethized.Report

      • Avatar switters in reply to switters says:

        to clarify, I think its more likely than not that he would be arrested and convicted, if the only information we have is the information provided by Kazzy, but I wouldn’t put conviction at much greater than “more likely than not”.

        Otherwise, I agree with Glyph, a lot of other stuff would impact the likelihood of a conviction.Report

      • Avatar Kazzy in reply to switters says:

        Thanks, @switters . But let’s swap out the wallet for, say, a basketball. “This was a gift!” Tom insists. There is no contract indicating as much. We’ve got a he said, she said. Mary can’t even necessarily prove ownership, though Tom does not dispute it beyond stating that Mary originally owned it in order to gift it to him.Report

      • Avatar switters in reply to switters says:

        If all we have is a basketball that no one can prove ownership of, Tom has possession, admits it used to be Mary’s, but claims she gave it to him, and she claims she did not, that he took it, I think a cop would point to the civil courts and say work it out there. But I’m pretty certain there would be no arrest and, and on the off chance there was, absent the discovery of more evidence I’d bet no DA would prosecute the case.Report

    • Avatar j r in reply to Kazzy says:

      First, are my assumptions reasonable?

      I am not sure. If someone makes a rape accusation and the physical evidence supports it, the cops are at least going to bring that person in for a very aggressive questioning. And if that is the case, the rest of your reasoning doesn’t really hold. And arresting someone and charging someone are two different things. Cops will often arrest someone to remove that person from an ongoing situation or just because they can. Lots of those people are later released with minor or no charges. When the police are investigating a serious crime, they don’t always just go out and arrest the main suspect. They build a case first.

      Also, I question the assertion that we assume that the Marys of the world want sex from the Toms of the world. The entire way that we talk about sex reinforces the idea that women are picky about with whom they choose to have sex. The idea that there is some sort of societal assumption that men are continuously entitled to sex from any and all women seems fallacious to me.Report

      • Avatar Kim in reply to j r says:

        jr,
        Missing the fact that many, many, many rape tests are not even processed (and that in Wasila, I believe, the victim was asked to pay for her own rape test). Alaska’s got problems with rape, yo.

        WHY do men think it is a GOOD IDEA to videotape themselves raping passed out girls? (Even More So: When they’re his daughter’s age).Report

      • Avatar Kazzy in reply to j r says:

        @j-r

        Good point about arrests and convictions. However, a bruised vagina and Mary alleging rape probably wouldn’t lead to a conviction if Tom was steadfast in his story and there was no other evidence either way. If I’m right about that, then it would mean that the case for rape didn’t withstand reasonable doubt. Why would we reasonably doubt Mary about her consenting to sex but not about consenting to being punched? It has to have SOMETHING to do with how we view sex, no?Report

      • Avatar switters in reply to j r says:

        @kazzy – I tried to address this above. ITs much more reasonable to doubt the claim of a puncher that the person punched consented to being punched than it is to doubt a person who had sex claim that the person they had sex with consented. Because people consent to having sex more often than they consent to being punched in the face. I don’t think its the way we treat sex, I think its the way we treat things that people either often or dont often consent to.Report

      • Avatar Kazzy in reply to j r says:

        That makes sense, @switters . I should be clear that I’m asking these questions in a more ponderous way than a gotcha way. I appreciate your perspective, both here and above (and I think I agree with you about how the basketball situation would be handled).

        The slight pushback (less towards you, more towards society) is that there probably is sufficient difference between “frequency of consent for face punching” and “frequency of consent for sex” to treat them differently, HOWEVER, there is probably a gap that exists between “assumed frequency of consent for sex” and “actual frequency of consent for sex”. This gap probably varies from person to person and might be non-existent for some, but we probably collectively overstate the frequency of consensual sexual contact (expanding beyond simply intercourse at this point) which is why so many stats on rape and sexual assault seem unbelievable.

        None of that is probably sufficient to shift reasonable doubt, but we’d probably be well-served as a society to better understand and appreciate what consensual sex actually is.

        Again, thanks for your thoughtful perspective on a highly charged topic. Not sure if I’ve seen you ’round these parts before, but I hope to see more of you.Report

      • Avatar switters in reply to j r says:

        Thank you @kazzy. Given the sensitivity of the subject, I should have been more clear that I too am sympathetic to the plight of women with respect to this issue. So my point was limited to critiquing the particular argument (analogizing theft, difference between assuming consent or not). I think we are, as a society, slowly headed in the right direction (too slowy I agree), but I also don’t think we’ll ever get as far some would like. Mostly because, with sex involved or not, men, women, black, white, our system, by design, places a heavier burden on the party alleging the crime (or is supposed to at least), and these types of crimes too often depend on he said/she said.

        And while I do agree about their being a difference between assumed and actual frequency of consent, I think some probably underestimate that difference and some probably overestimate it. And some of each of those groups do it in good faith, and others do not.

        Been around for years. Usually just lurk. thanks for chattingReport

  12. Avatar Mad Rocket Scientist says:

    @zic

    Moving down here because that thread was getting long.

    Yes, I get there is a yawning chasm between borrowing a mower & borrowing a vagina. That chasm is what causes trouble with the analogy in the first place.

    My reservation is that most women who don’t report do so for a host of complicated and intertwined reasons; they often feel some responsibility that they did this to themselves; they understand that if they report they’ll be exposed to some serious slut shaming, it may provoke extreme responses from protective family members, including threats against the woman for impure behavior and threats against the rapist for despoiling her, as well as concern for not ruining her life. This is an extremely fraught decision with multiple concerns.

    Exactly! I want women to report sexual assault if they feel that they may have been victims. If, as Mark suggests, part of the reluctance to do so is fear of causing undue harm (not every victim is hell bent on vengeance & punishment toward the offender, perhaps because she does harbor some sense of responsibility), or if as you suggest, fear of massive reprisal, then a better, more just range of infractions & penalties is probably in order. Would there be so much backlash toward a woman if the possible penalties were not massively life destroying? Would victims be more willing to come forward if that was the case?

    @morat20

    Can you please stop acting as if every such case involves the caricature of a sex mad rapist just trying to figure out a way to get laid without consent or getting caught. I’ve acknowledged that such people exist, but I can not imagine every such case involves such a person. It’s easy for us, as older men, to keep a handle on our hormones, as well as for us to recognize exactly where & when a guy should have stopped & taken a cold shower when we hear such stories. But I’ve read enough such grey stories to be able to see where my young, inexperienced self would possibly have missed the stop signs, especially if alcohol was involved. As Zic says, not every case involves fighting, or screaming “No”, or sobbing. Some involve compliance, or even active participation, just to hurry things along & get it over with.

    That doesn’t mean it wasn’t wrong, nor should reports & investigations not be held, charges filed, etc. But neither does it mean that every such case should involve felony rape or sexual assault. As a matter of fact, if there was a better minor range (severe misdemeanors?), perhaps more such cases would result in charges, as DAs found themselves with violations they could more readily prove, or plea out with.Report

    • Avatar morat20 in reply to Mad Rocket Scientist says:

      Can you please stop acting as if every such case involves the caricature of a sex mad rapist just trying to figure out a way to get laid without consent or getting caught. I’ve acknowledged that such people exist, but I can not imagine every such case involves such a person. It’s easy for us, as older men, to keep a handle on our hormones, as well as for us to recognize exactly where & when a guy should have stopped & taken a cold shower when we hear such stories. But I’ve read enough such grey stories to be able to see where my young, inexperienced self would possibly have missed the stop signs, especially if alcohol was involved
      No, for the simple reason that you’re excusing rape.

      Seriously. “Teenagers, can’t quite not rape” is pretty much how that reads. An indulgent attitude, a “mistakes can happen” sort of thing? It’s harmful, not helpful — because really, if young teenagers are basically just one mistake away from date rape, then giving them bright lines is what you want to do.

      Not make it fuzzier and help make excuses.

      Which is why I’m being insistent, even if it makes people uncomfortable. Even if it makes you — especially if it makes you — look back and think “Wow, there were some really iffy situations in my own life”. Because each of those “iffy” situations are places where you could — or perhaps even did — seriously damage someone.

      I’ve known men — good and decent men, now — who did such things. When they were young and stupid. And every freakin’ one of them would have benefited from a society that made it crystal clear that they weren’t owed what was in her pants, that “No” meant “No” and not “keep pushing”.

      Especially where alcohol was involved. It’s really easy for you — and me, as a man — to wave it away and say people live and learn. To say kids are dumb. We’re not the ones who were at risk, were we? We’re not the ones who really had to live with that dumb mistake, not like she did.

      We, effectively, got off scott free. While they cluster and trade stories and sorrows and emotional damage while we continue the cycle, perpetuate a society wherein it’s really okay because, you know, kids. And horny men, I guess.

      There already ARE grades to sexual assault. There IS court leeway. Women don’t report it not out of a desire to ruin lives, but because the system is antagonistic to them and because society starts with blaming them.

      And we — you and me, men in general — should be first in freakin’ line to say “No more.”Report

      • Avatar morat20 in reply to morat20 says:

        I think I’m gonna bow out with that. I find myself getting…upset, with this topic. My admiration to the woman actually deal with this sort of thing, and have the strength to talk about it.Report

      • Avatar Mad Rocket Scientist in reply to morat20 says:

        @morat20

        No, for the simple reason that you’re excusing rape.

        Bullshit.

        I’m not excusing it. I’m not saying people should get off scott free. I am saying that that bright line you envision everyone should always be aware of & respect is fuzzier in reality than we’d like it to be and the law should reflect that by a matter of degrees.

        If you feel as though the law is capable of reflecting that, then that is all you had to say. Instead you went on rant that essentially made 1st degree violent rape equivalent with two drunk young adults having sex with questionable consent. That is what I was pushing back against.

        I mean sure, if every person who is accused of & charged with rape is a predatory monster, then I guess we can be OK with a system that is harsh. Such people would never feel personally devastated that they hurt another human, and thus are not deserving of our sympathy, as they are incapable of any notion of empathy, and have no thought toward redemption or recompense.

        Too bad that is not always the case. I wonder how often such remorse makes a difference to the end result of a person so charged, given how eager everyone is to appear tough on sex offenders?

        There are certainly people who deserve justice that is punitive retribution. Vengeance, if you will. But there are also people who can be rehabilitated & redeemed. Lately, I don’t think our courts, or our society, can be bothered to try & tell the difference.Report

      • Avatar Kim in reply to morat20 says:

        MRS,
        Have you ever met a good man who was a rapist as a child/teen? Because, um, you left enough wiggle room that I’m pretty sure that’s what morat20 heard you say. And they do exist.

        I’m all for having a seperate, non-legal system for “god, you idiots!” drunken sex. Because there’s a lot to be learned, and a lot of teaching opportunities there.

        But reducing the legal penalties isn’t going to help MOST rape victims. It might help most drunken idiots. But if 14% of men are serial rapists (see zic’s link), are we really doing them any favors by reducing the penalties??Report

      • Avatar Mad Rocket Scientist in reply to morat20 says:

        @kim

        See my comment belowReport

    • Avatar zic in reply to Mad Rocket Scientist says:

      @mad-rocket-scientist

      I had to think about this a bit.

      Exactly! I want women to report sexual assault if they feel that they may have been victims. If, as Mark suggests, part of the reluctance to do so is fear of causing undue harm (not every victim is hell bent on vengeance & punishment toward the offender, perhaps because she does harbor some sense of responsibility), or if as you suggest, fear of massive reprisal, then a better, more just range of infractions & penalties is probably in order.

      I think @mark-thompson may be missing the mark just a bit here. Reasons for not reporting could include not wanting to muck the rapists life up too much; but I suspect that’s just a small part of it. Rather, fear of harsh reprisal is likely based on 1) fear of disappointing family (this is really a predicament for women who come from more fundamental families, where her purity is of the highest value; remember); 2) fear of damaging the fabric of her social network, particularly in a college environment where they victim and rapist may have overlapping social circles, and 3) once again, fear of what will happen with law enforcement and the justice system; and those three things may weight differently for each woman, depending on her circumstances. While I think not mucking up his life might hold some small sway, it’s more in terms of how mucking up his life will, in turn, muck up hers.

      And please notice how these considerations did not seem to come into play for him, he didn’t seem to weight he costs of coercing sex or damaging his social network; I don’t know what to think of that.Report

      • Avatar Kim in reply to zic says:

        For many serial rapists, they’re already on the fringes of social networks in the first place. “Good guys” (the decent chaps, who do everything right) can expect to get consensual sex from someone at some point — they are not in general rapists.
        Rapists are either in social networks that condone rape, or they’re “that guy” who hangs around at parties, and you can’t quite find enough reason to get rid of.Report

      • Avatar Mark Thompson in reply to zic says:

        @zic For what it’s worth, I think MRS is misconstruing my comments, which are more aimed at your factor number 2, combined with the effects of the shame imposed by the rape in the first place, which I assume cause the woman to blame herself rather than the attacker, particularly when that attacker is part of the social network you’re referring to in number 2. I’m not at all concerned with the notion that the attacker is confused about whether consent is present – I don’t think that confusion happens enough to be worthwhile.

        As I’ve thought about this a bit more, the system I have in mind might even go so far as to give the victim the authority to direct the prosecutor to pursue lesser charges over greater charges. Ideally, such lesser charges could also be prosecuted in family court, with the privacy protections that affords, which I suspect would significantly reduce the problems with your number 3 and, to a much lesser extent, number 1.Report

      • Avatar Mad Rocket Scientist in reply to zic says:

        @mark-thompson

        I think we are on the same page, but I’m not doing a good job of explaining my position.

        IANAL, but from my perusal of the definitions of sexual assault, it seems to lump into two categories, either felony rape, or misdemeanor unwanted contact. If this is common across the states & federal statutes, then I can see why it is difficult to prosecute cases where the question of consent is fuzzy, because the shadow of a doubt is pretty solidly in play. It’s essentially forcing DAs to overcharge.

        Therefore, instead of lowering the burden of proof for the prosecution of such crimes (never a good idea, as any system that makes it easy to convict a guilty party also makes it easy to convict an innocent party, and we should not tolerate the conviction of the innocent, no matter how heinous the crime), we should have a level of indictment that has a lower burden of proof, and the commensurate lower level of penalty (low level felony/high level misdemeanor).

        It may not be the justice the parties deserve, but it would be better than no justice at all. More successful convictions, even at lower levels, would have the added effect of improving our data on rape, as well as creating more opportunities for court ordered therapy for the offender, which could work toward reducing repeat offenses, and possibly working against the idea that consent can be a fuzzy thing, instead of the bright line we want.

        I think @morat20 suggestion of changing the rape question is a good one, even if it places more of a burden on the defendant, as it has the potential to change the way the courts, and eventually people, think about rape & consent.

        @zic

        I didn’t read the whole paper, but I did read the conclusion. That is encouraging.Report

  13. Avatar zic says:

    @mark-thompson for the sake of unthreading your suggestion of differing consequences:

    I still have some concerns here, considering the problems women still face in the justice system. That said, I also think it’s an interesting question.

    I found this study done by the Hawaii DOJ in 2002:
    http://www.hawaii.edu/hivandaids/Attitudes%20To%20Date%20Rape%20and%20Relationship%20Rape%20%20%20%20A%20Qualitative%20Study.pdf

    I’ve only skimmed it, but this far, it’s the best platform I’ve found for thinking the conundrum through; I’ll read it with care later; I thought you might find it useful and interesting, so I wanted to share it.Report

  14. Avatar Kim says:

    From zic’s last link:
    “In fact,
    several detectives said that one of the best forensic devices that they had, particularly in
    college communities and among older victims, was the credit card. Sometimes a victim who
    claims to only have had one or two drinks will be found to have signed for as many as 10 or
    12 identical mixed drinks on her credit card. This does not mean that she was not raped; in
    fact, it could make her extremely vulnerable to a sexual predator.”

    Why aren’t we prosecuting these men for theft? I should say that the bartender is either complicit — or at least ought to be aware of how many drinks the lady has had.Report

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