Sunday, November 16, 2014

He says we're 'Mishandling Rape.' I agree.

As a postscript to our incendiary discussion of the alleged sexual-assault crisis on America's college campuses, I thought I'd recommend this insightful and (to my read) eminently fair-minded piece from today's New York Times by Yale law professor Jed Rubenfeld. Make no mistake, I agree with Rubenfeld (as well as with women and/or those who presume to speak for women) that even one rape is unacceptable, and also that there are far too many guys, especially in scholastic sports programs and from affluent backgrounds, who feel "entitled." But naturally I tend to perk at the professor's broadside against the overkill character of today's countermeasures, and the blunderbuss-style impact such countermeasures are apt to have on all men...including the millions who'd never dream of raping a woman in the classic (violent) sense...and who'd be aghast to be informed that they had (technically) done so, under the convoluted (i.e. nonsensical) terms of said countermeasures.

Here are two passages that are central to the author's point, and also to mine:

"Now consider that one large survey showed that around 40 percent of undergraduates, both men and women, had sex while under the influence of alcohol. Are all these students rape victims? And what if both parties were under the influence? Asked this question, a Duke University dean answered, 'Assuming it is a male and female, it is the responsibility in the case of the male to gain consent.' This answer shows more ideology than logic."
[No kidding! Both parties have been drinking, yet only the male is required to proceed responsibly and with caution?]
"...students need to be told clearly that if they are voluntarily under the influence (but not incapacitated), they remain responsible for their sexual choices. Moreover, sexual assault on campus should mean what it means in the outside world and in courts of law. Otherwise, the concept of sexual assault is trivialized, casting doubt on students courageous enough to report an assault."
Read the piece and see what you think.


Dimension Skipper said...

Very interesting short piece on the subject of underage sexual consent...

Criminal Law Says Minors Can't Consent — But Some Civil Courts Disagree
By NPR Staff, November 16, 2014

Under criminal law in California, the age of consent is 18 years old. But in a civil case, Foshay says, there have been two rulings that say minors can consent to sex.

"So you can be a victim in the criminal case, but you can actually be found at fault in the civil case," she says.

When Foshay asked Wyatt whether a 14-year-old has the maturity to make a decision about sex, he said children "make decisions all the time."

"Making the decision whether or not to cross the street when traffic is coming, that takes a certain level of maturity," he said. "And that's a much more dangerous decision than deciding, 'Hey, I want to have sex with my teacher.'"

Wyatt has since issued an apology for what he called his "insensitive" comments, and LA Unified announced they're removing him from other legal matters before the school district because of his comments to Foshay. The district's statement read, in part: "Respect and empathy must be at the core of how we approach these cases, and Mr. Wyatt's remarks did not reflect that commitment."

Drobac says that in California, this disparity between civil and criminal consent came about when the state legislature changed the law and took sex with a minor out of the forcible rape statute. The intent was to establish separate penalties for the two crimes.

"But what happened was ... the California Supreme Court interpret that as the legislature saying, 'Well, juveniles may be able to consent in certain circumstances,'" she says.

"There's no basement on this," Drobac says. "You could take a 9-year-old and say that a 9-year-old could consent, under this reading of the change of law in California."

Steve Salerno said...

And let's not forget that juvenile cases are remanded to adult criminal court all the time. So evidently if you're 15, you're not old enough to decide to have sex, but you're old enough to decide to commit a crime that could send you away for life.

In fact, CA has the distinction of being one of two states (the other being PA, where I now live) that attempted to try a 10-year-old for an adult.

And while I'm on the subject, the majority of cases of statutory rape revolve around female victims, whereas the majority of criminal cases where juveniles are tried as adults involve young one could plausibly argue that there is institutional sexism in the very fabric of the justice system.