David R. Henderson  

Obama on the Symmetry of Rape

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At his press conference two days ago, President Obama said:

If you give a woman, or a man, for that matter, without his or her knowledge, a drug and then have sex with that person without consent, that's rape, and I think this country, any civilized country, should have no tolerance for rape.

I'm glad he said it.

If you haven't followed the news about U.S. colleges lately, you might not know that Obama's Department of Education's Office of Civil Rights, with its Dear Colleague Letters, is steadily making colleges into hellholes for young men. A young man can be accused of rape, and not get the standard legal protections, if a woman who had alcohol voluntarily had sex with him and then, later, regretted it. I've often wondered why a man could not use the same logic: I drank too and, therefore, I couldn't consent.

Obama opened up a little window here, admitting that it is somewhat symmetric.


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COMMENTS (27 to date)
Richard writes:

I think this is a good example of feminists adopting a double standard when it's convenient. I think there are obvious "asymmetries" here. Most men would care a lot less than most women if they got drunk and had a sexual encounter they regretted.

Obama's statement, however, is so obvious that it's funny to hear liberals cheer him on. If you give a person a drug without their knowledge AND have sex with them without their consent it's rape. Who argues against that? But that's not what's happening on college campuses. These are situations where women are choosing to get drunk and then giving consent while in a hazed condition. Why doesn't someone ask Obama whether that is "rape"?

David R. Henderson writes:

@Richard,
Good question.
My answer: baby steps.

Sieben writes:

I really don't understand why rape is such a big issue. I mean, I *do* understand it's a hot-button topic that SJWs can use to signal their group affiliation while excluding imaginary pro-rapists. But from an objective social or legal standpoint, it's just really lackluster.

I do not have an obligation to make sure you are unconditionally safe. That would be absurd and no one actually believes this. If a criminal breaks through your window while you're studying, then you have my sympathy. But if you put yourself in a dangerous environment, I don't see how you can make that anyone else's problem.

Zeke writes:

@Richard:

It is the Motte-and-Bailey topic. The debate is over whether voluntary alcohol consumption followed by intercourse is rape. It seems most people do not think that is rape (I would agree). However, some groups push for definitions of rape, which would include the above as rape. They often speak about interactions that occurred due to alcohol as rape.

Yet, when this alcohol-as-rape is publicized, the SJW retreats from the fringe argument and claims that he or she just wants to punish date rapists who clandestinely incapacitate their victims against the victim's will or knowledge. How could anyone be against that? Anyone would be against that is a rape apologists! So, the attackers retreat and the SJW leaves the protected battlements and returns to the valuable fields.

Now, I am not saying that is what President Obama is doing here. I don't know. But it is a tactic that is sadly used too often.

Lack of consistent and precise definitions leads to poor policy discussions.

David R. Henderson writes:

Zeke,
All good points. I’m pretty sure that’s not what Obama is doing here, given that the question he was responding to was about Bill Cosby. The value added, the delta, if you will, was the recognition that it’s symmetric. Thus my response to Richard.

Richard writes:

I agree with Zeke. I watched his statement, and the gender symmetry point came in as an afterthought. It certainly wasn't what he wanted to emphasize.

Imagine I said "Look, if you take a gun and shoot someone in the head, that's murder. And a civilized society abhors murder." That implies

1) There are people in the world who don't think that's murder
2) You're taking the side of those who want the more expansive definition of murder

Thus, I think Obama was placing himself on the side of those who want a more expansive definition of rape.

Dustin writes:

That colleges have anything to do with criminal activity is completely bizarre to me. On account of an accusation, a college should do nothing more than advise a student file a report with legal authorities and perhaps provide some counseling.

Booting someone from higher education - for an alleged or convicted crime - is an entirely counterproductive response that is only likely to lead to future criminal activity.

Zeke writes:

@Dustin:

I agree that it is bizarre that colleges engage in adjudicatory processes. But I don't find it bizarre that a college would want to expel someone who was convicted of a heinous crime under the beyond a reasonable doubt standard. The first is outside the expertise of the college; the second seems like common sense. What am I missing?

John Hayes writes:

Dustin,

Dual prosecution can occur, but most accusations have insufficient evidence. A rape kit can determine with high probability that two people had sex but unless the victim has marks of beatings/restraint (hard) or a blood test containing some drug (very hard) it's difficult to prove intention beyond a reasonable doubt. This is a general problem with thought crimes (like hate crimes).

The college has a civil responsibility to be "safe" just like any workplace, shop or stadium. A stadium or bar will remove and potentially ban people for unruliness. Title IX generally serves to protect colleges and universities from civil torts, just like a corporate sexual harassment policy. So it shouldn't be viewed as an adjudication process, it's an institutional protection process that seeks to minimize liability by sanctioning the less sympathetic party.


DH, agreed baby steps ...

Rich Berger writes:

David-

I had to wade through a pile of prevarication to reach the statement you quoted and I do not believe it means much. The WH has been firmly behind the lie that one in five women will be sexually assaulted in college:

"We know the numbers: one in five of every one of those young women who is dropped off for that first day of school, before they finish school, will be assaulted, will be assaulted in her college years.”

–Vice President Biden, remarks on the release of a White House report on sexual assault, April 29, 2014

“It is estimated that 1 in 5 women on college campuses has been sexually assaulted during their time there — 1 in 5.”

–President Obama, remarks at White House, Jan. 22, 2014

And why did a question come up about Bill Cosby at a conference on the Iran capitulation? We have a great press.

David R. Henderson writes:

@Rich Berger,
I think you missed the point. I point out something good Obama said and you, correctly, point to bad things he or his Administration said. I already beat you to it in the above post by pointing out bad things his Administration is doing The delta, the value added, is what I said it is.
And why did a question come up about Bill Cosby at a conference on the Iran capitulation? We have a great press.
I get your sarcasm, and you won’t find me defending the White House press. By and large, they suck. Which actually makes the Cosby question refreshing. Even with a cowed press, Obama is afraid to have press conferences. Someone had the guts to ask him a tough question to put him on the spot re the Medal of Freedom to Cosby. When a President has that few press conferences, you use the few opportunities you can.

TMC writes:

David,

I think the cosby question was still a softball. Obama responds with an answer that 99.9% of Americans would agree with. It was a diversion from the poor deal he got from the Iranians.

TMC writes:

As Instapundit said it: Liberals think "Women are obviously too fragile to handle college."

Dustin writes:

Zeke

Punishment of criminal behavior should be limited to the penal system. Extrajudicial punishment of convicts leads to devastating and lasting life outcomes (increased inequality, reduced wages, reduced skills, reduced social mobility, reincarceration, etc...). Even criminals should have the opportunity to escape their past, and education is often the way to do so. However, convictions are too often a de facto life sentence.

I could compromise with permitting the expulsion of a student on the basis of criminal conviction if only the exploration of an applicant's criminal record is not permitted, such that said convict has a fair opportunity to reintegrate into society via higher education at the same or a different college.

Note - I am not a convict :)

An interesting read on the impact of incarceration:
http://scholar.harvard.edu/brucewestern/files/western_asr.pdf

GabbyD writes:

"I've often wondered why a man could not use the same logic: I drank too and, therefore, I couldn't consent."

this is odd logic.

obama said is some gave you a drug... not when you take it to use on yourself. presumably, you know you are endangering others if u give a drug to another without telling them.

the same cannot be true if u drank it, as you know full well the effects of alcohol on yourself, and you are aware that you are drinking alcohol.

never mind the implication of your writing on drunk driving -- i.e. since you were drunk you should be excused from the grave consequences of drunk driving.

Damien writes:

Dustin: I agree that ex-convicts should be allowed to go to college.

But colleges can also take action when there is credible evidence that a current student has acted inappropriately or illegally, and that their continued association with the school is harmful to the learning environment and/or the well-being of other students. This also includes actions that are not illegal or would never result in a conviction: for example, it's probably not illegal to repeatedly cheat on tests, but you could still get expelled for it.

When something *is* a crime, it still makes sense to distinguish between the legal and the disciplinary process. There could be not enough evidence to sustain a conviction, but more than enough to warrant some kind of disciplinary action. The criminal justice system sets a high bar because you could potentially spend decades in prison. A school can only kick you out, which is clearly much milder. If you can be made to pay millions in a civil lawsuit that will use preponderance of the evidence as its burden of proof, it's not unreasonable to use the same standard for expulsions.

Schools must decide who is most credible between the alleged victim and alleged perpetrator (vs determining that the alleged perpetrator is guilty beyond a reasonable doubt). If you think the victim is more credible and more likely to be right, then you can't really ask them to see their attacker every day on campus. In practice, you'd be expelling them since no-one would accept to be subjected to this for several years. Of course, you'd need to have properly trained people handling these internal investigations.

Brian writes:

"My answer: baby steps."

David,

I agree that an admission of symmetry is good. But I disagree that this amounts to baby steps. First, "steps" implies that progress has been made. This would either require that Mr. Obama DO something, or that his statement represent a shift in his perspective. There's no evidence that he intends to act on this symmetry, and talk is cheap. Similarly, there's no reason to believe that an acknowledgement of symmetry represents a change in his understanding. He has always known (how could one not?) that rape can go the other way. So I don't see any progress here.

Tom West writes:

is steadily making colleges into hellholes for young men.

If the concept of *not* having sex when your partner is intoxicated and thus incapable of informed consent is making life a hellhole, you have a lot less respect for young men than I do.

If men really were incapable of that level of self-control, then I would think, yes, "Men are obviously too immature to handle college."

The more obvious reality is that there are gender asymmetries in sexual relations that mean no matter how it's structured, someone is going to get the short end of the stick. Now that women comprise a majority of students, it's no surprise that universities are doing what any sensible business does - catering to the needs of the changing customer base.

David R. Henderson writes:

@Tom West,
If the concept of *not* having sex when your partner is intoxicated and thus incapable of informed consent is making life a hellhole, you have a lot less respect for young men than I do.
You’re really saying that people who are intoxicated are incapable of informed consent?
Also, my point about “hellhole” doesn’t relate mainly to the alcohol issue anyway. Do some searches on OCR’s “Dear Colleague” letters.

Kevin C. writes:

But it's not symmetric; men and women are different.

Tom West writes:

Realistically, being intoxicated makes the whole consent business pretty blurry.

Even legally, the whole "capacity to contract" thing means that life-changing deals that are signed while drunk may be rolled back by the courts. (I bought a house??!?)

Generalizing horribly, to me it seems that universities will have interpretations of consent that either allow women's lives to be harmed or allow men's lives to be harmed. I don't see universities should be obligated to use an interpretation that favors predators rather than false accusers.

David, I did google OCR’s “Dear Colleague” letters, and most seemed related to race rather than male/female relations. Were you referring to the Title IX letters?

Tom West writes:

But if you put yourself in a dangerous environment, I don't see how you can make that anyone else's problem.

I'd agree - if you define a dangerous environment one where you choose to have sex with someone who is intoxicated.

Or how about "going outside"? Street gangs are natural, you shouldn't have been walking.

Or "walking while black in the white part of town"?

Or "walking without a male relative as escort"?

Let's face it, "dangerous environment" is completely arbitrary. It's short hand for I want laws that favor me and I don't have to worry about anyone else.

We've changed the definition of "dangerous environment" hundreds of times before. The current definition isn't sacred. At some point in the near future, "being drunk at a party" won't be part of that definition.

Brett J. Gall writes:

David,

You might be interested to know that sex-based differences were reinforced via federal regulations for almost a century. This has changed somewhat since the 2010's. You can learn more about changes to the definition of forcible rape a few years back:


“Forcible rape” had been defined by the UCR SRS as “the carnal knowledge of a female, forcibly and against her will.” That definition, unchanged since 1927, was outdated and narrow. It only included forcible male penile penetration of a female vagina.

The new definition is: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

For the first time ever, the new definition includes any gender of victim and perpetrator, not just women being raped by men. It also recognizes that rape with an object can be as traumatic as penile/vaginal rape. This definition also includes instances in which the victim is unable to give consent because of temporary or permanent mental or physical incapacity.

Note the effect on reported rapes under federal reporting:


Because the new definition is more inclusive, reported crimes of rape are likely to increase. This does not mean that rape has increased, but simply that it is more accurately reported.

Finally, I hazily recall during my undergraduate years at a university in Washington, D.C. that all incoming students were informed during their undergraduate orientation that if a woman had consumed a single drink, she was unable to provide consent. On the other hand, if a man had consumed a single drink, he was able to provide consent. I believe that we were told this was only applicable in the District of Columbia, but I am not 100% sure that is accurate, that the policy actually existed, etc.

David Henderson Author Profile Page writes:

@Tom West,
Here’s an example of what I’m talking about:
http://reason.com/blog/2015/07/20/student-expelled-for-rape-has-evidence-h

Hazel Meade writes:

I think the key problem is the use of the word "incapacitated" when it comes to alcohol or drugs.

"Incapacitated" can mean anything from "unconscious" to "impaired judgement".
Obviously, everyone agrees that an unconscious person can't consent. The debate is over whether a person with impaired judgement due to alcohol or drugs and legally consent and whether that standard is symmetric for both men and women.

The campus feminists seems to believe that it is ONLY women who are unable to consent to sex when drunk. Drunk men are expected to exercise judgement and restraint. Drunk women are considered victims if they consent and later regret it. In a currently prominent case at Amherst, we have a college woman who performed oral sex on a drunk man. He claims to have been so drunk he can't recollect what happened. She claims she tried to stop and he held her head - thus rape. But if the standard was symmetric, then she raped him because he was too drunk to consent to sex.

Hazel Meade writes:

http://www.merriam-webster.com/dictionary/incapacitate

1

: to make legally incapable or ineligible

Side comment ... the MW definition about makes it literally tautological that an incapacitated person can't consent. So yeah, that opens up all sorts of room for people to use various connotations of "incapacitated" to mean whatever they want it to mean at any given instant.

Tom West writes:

Indeed, it's an obvious miscarriage of justice, but I'm not certain how it's more hellhole-making than the myriad other miscarriages of justice that pervade any institution making decisions.

I suspect that the miscarriages are getting more "even-handed" (if one can stomach talking about them in such a fashion), in that the victims now more often include white males.

I'm happy to see *all* such miscarriages reduced.

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