Tag Archives: sexual assault

Party Loyalty & Sexual Harassment

The toppling of Harvey Weinstein has set off what might turn out to be a revolution: women (and men) are coming forward to report acts of harassment or assault by powerful men. It, however, remains to be seen whether this is a storm that shall pass or an actual revolution resulting in enduring change.

The accusations have been bipartisan is nature; that is, powerful men on the left and the right have been accused of inappropriate and even evil behavior. On the right, the most infamous case involving a politician is that of Roy Moore. Moore has been accused of various sexual misdeeds including engaging in sexual activity with a 14 year old girl. On the left, the most famous case involving a politician is that of Al Franken. Franken has been accused of inappropriately touching a woman’s buttocks during a photograph in 2010 and Leeann Tweeden accused him of kissing and groping her. There is, of course, photographic evidence of Franken groping Tweeden through her body armor while she was asleep. I am focusing on cases that are current as of this writing; but I am sure that everyone has their favorite (or most despised) examples from the past and want to ask, for example, “what about Bill Clinton.” Since the discussion that follows deals with general principles, it can be applied to past (and future) cases. I am using Moore and Franken as the examples for the practical reasons that they are well known and are members of the two major parties. I am not suggesting that their cases are morally equivalent: if both men are guilty, Moore would clearly have committed far greater moral offenses (and crimes). This assumes that there have been no new revelations about Franken, of course.

Moore is, as of this writing, running for a senate seat in Alabama. He upset the Republican establishment by beating Luther Strange in the primary and has been running hard on an anti-establishment position. Until the allegations surfaced, victory for Moore over his Democratic opponent was certain. Now that the allegations have surfaced, his victory is merely almost certain. While many of his supporters have denied the allegations, some have said they would support him even if they were true (including a rather odd defense that brought in Mary and Joseph). Pragmatic supporters have argued that that even if the allegations are true, Moore is still preferable to having the Democrat elected. This would seem to entail that some Republicans regard being a Democrat as morally worse than being a pedophile.

Franken, as of this writing, is still in the senate. He has called for an ethics investigation of himself. Unlike Moore, he has not denied the allegations and has apologized. While some liberals support Franken, others have been calling for him to resign. There is, of course, the argument that Democrats should support him because he is a Democrat and not risk Franken being replaced by a Republican. These two cases nicely illustrate the moral issue: should voters stick with party over principle? This, of course, assumes that the actions of the accused violate the principles of the voters.

There are, of course, pragmatic reasons for backing one’s party even in the face of terrible offenses. Regarding Franken and Moore, the balance of power in the senate is razor thin and sticking with them or rejecting them would have a significant impact. However, this is not a moral reason to take this approach.

One obvious moral approach is that of utilitarianism—the moral view that actions are right or wrong based on their consequences for those who matter. One way to make a utilitarian moral argument in favor of party loyalty is to show that what your party would do is better for those that matter and that what the other party would do would be worse. For example, a Republican could argue that getting their tax plan through by having Moore in the senate would offset and moral concerns about the accusations against Moore. The Democrats could argue that keeping Franken in the senate and voting against the Republican tax plan would offset any moral concerns about his behavior. This would, of course, need to factor in the harm of supporting a person who has been accused of misdeeds, such as how doing so would send the message that such behavior need not have consequences and that it is acceptable if the person doing it has the right sort of position of power.

A utilitarian argument could also be made against choosing party over principles by showing that the harms of such support would outweigh the benefits. While the obvious approach would be to show that the harms of tolerating such behavior outweighs other factors, there is also a more pragmatic approach that supporting such people could do harm to the party in the longer term, despite there being the potential for a short-term advantage.

Another approach to the moral matter would be to focus on what factors are relevant to a person doing a job. If an elected office is looked at it terms of a job and what matters is competence, then the moral failings of the politician would only be relevant if they impacted this competence. For example, Clinton is widely regarded as a competent and successful president, yet his moral track record is problematic when it comes to sex.

To use an analogy, one should pick their dentist, roofer or plumber based on their competence, not based on whether they had an affair. Naturally, moral failing relevant to the job would matter—so if you knew that a plumber cheated their customers or that a dentist molested patients while they were unconscious, then these would be relevant to making your decision. Likewise for politicians—even if Moore and Franken did what they are accused of, it could be argued that it has no relevance to their competence as senators. Even if all that counts as competence is reliably voting along party lines. This could, of course, be countered by arguing that it would impact their job performance—if, for example, they were groping staff members or the public.

There is also the approach, often taken by conservatives in the past, that character matters. Value voters, at least in the past, often made the argument that a person with serious moral problems was thus unfit for office. Hillary Clinton, for example, was subject to this sort of criticism. As might be imagined, people tend to be less worried about the virtues and vices of their person—folks on the left and the right routinely make excuses for those on their side.

For virtue theorists like Aristotle and Confucius, such vices would be rather problematic—a good leader must be a person of virtue. Part of the reason is a matter of ethics—bad people are, well, bad. Part of it is also practical as well—a leader who is corrupted by too much vice would be a poor leader. The counter to this is obvious enough: the effectiveness of a leader, it can be argued, is like the effectiveness of a professional football player—it has nothing to do with virtue. Naturally, Aristotle, Plato and Confucius would disagree with this. My own view is that a person could be quite competent as a leader in terms of the relevant skills and still be a bad person; but being a bad person they would do bad things and this would tend to be bad for the people. There is, of course, the question about what level of vice should be tolerated—after all, none of us are angels and we all have moral flaws. That, however, is a subject for another essay.

 

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Arguments for Bathroom Bills

American news is awash with tales of the battle of the bathroom bills. In response to a growing general acceptance of LGBT rights, some states have passed laws requiring a person to use the bathroom (and similar facilities, such as locker rooms) for the sex on their birth certificate. These laws have been met with a negative response from much of the business community, making for a rare conflict between Republicans and business interests. The federal government has also taken a stance on this matter, asserting that states that have such laws are in violation of federal law. The Obama administration has warned these states that their violation could cost them federal funds.

Being a veteran runner, I am generally fine with people using whatever bathroom they wish to use, provided that they do not otherwise engage in immoral or criminal activity. Almost anyone who has been at a major race probably has a similar view out of pure practicality. Also, like any mature adult, I go to the bathroom to do my business and as long as everyone else is minding their business, I could care less who is in the next stall. Or urinal. Obviously, I do hold that assault, rape, harassment, stalking, and so on should not be allowed: but all these misdeeds are covered by existing law.

Being a philosopher does require that I give fair consideration to opposing arguments and that that be given the merit they earn through the quality of the reasoning and the plausibility of the premises. As such, I will consider a few arguments in favor of bathroom bills.

One of the most compelling arguments is the one from harm. The gist of the argument is that allowing people to use facilities based on their gender identity will allow rapists, molesters, pedophiles and peepers easy access to women and girls, thus putting them in danger. The bathroom bills, it is claimed, will protect women and girls from this danger.

Since I also accept the principle of harm, I accept the basic reasoning conditionally: if the law did protect women and girls from harm (and did not inflict a greater harm), then it would be a sensible law. The main problem with the argument lies in the claim that the bills will protect women and girls from harm. Many states and localities have prohibited discrimination in public facilities and there has not been an increase in sexual assault or rape. As such, the claim that the bills are needed to protect the public seems to be untrue. The imposition of law should, as a matter of principle, be aimed at addressing a significant harm.

This is not to deny that a person could pretend to be transgender so as to engage in an attack. However, such a determined attacker would presumably attack elsewhere (it is not as if attacks can only occur in public facilities) or could disguise himself as a woman (the law does not magically prevent that). There seems to be an unwarranted fear that bathrooms are ideal places for attacks, which does not seem true. That said, if it turns out that allowing people to use facilities based on their gender identity does lead to a significant harm in regards to increasing sexual assaults and other harms, then the bathroom bills would need to be reconsidered.

A second argument that has been advanced is the privacy argument. The gist of it is that allowing people in facilities based on their gender identification would violate the privacy of other people. One common example of this is the concern expressed on the behalf of school girls in locker rooms: the fear that a transgender classmate might be in the locker room with them.

While our culture does endeavor to condition people to be ashamed of their nakedness and to be terrified that someone of the opposite sex might see them naked, the matter of privacy needs to be discussed a bit here.

On the face of it, gender restricted locker rooms are not actually private. While I am not familiar with the locker room for girls and women, the men’s locker room in my high school had a group shower and an open area for lockers. So, every guy in the locker room could see every other guy while they were naked. I recall many of my fellows (who professed to be straight) checking out the penis sizes of everyone else. Some boys found this lack of privacy too much to take and would simply put their normal clothes on over their gym clothes without showering. Or they would try to cover up as much as possible. As such, the concern about privacy is not about privacy in the general sense. In space, everyone can hear your scream. In the locker room, everyone can see your junk.

As such, the concern about privacy in locker rooms in regards to the bathroom bills must be about something other than privacy in the usual sense. The most reasonable interpretation is privacy from members of the opposite sex: that is, girls not being seen by boys and vice versa. This could, I suppose, be called “gender privacy.”

Those favoring transgender rights would point out that allowing people to use facilities based on gender identity would not result in boys seeing girls or vice versa. It would just be the usual girls seeing girls and boys seeing boys. Since the main worry is transgender girls in girls’ locker rooms, I will focus on that. However, the same discussion could be made for transgender boys.

The obvious reply to this would be to assert that gender identification is not a real thing: a person’s gender is set by biological sex. So, a transgender girl would, in fact, be a boy and hence should not be allowed in the girls’ locker room. This is presumably, based on the assumption that a transgender girl is still sexually attracted to girls because he is really still a boy. There seem to be three possibilities here.

The first is that transgender girls really are boys and are sexually attracted to girls (that is, they are just faking) and this grounds the claim that a transgender girl would violate the privacy of biological girls. This would seem to entail that lesbian girls would also violate the privacy of biological girls and since about 10% of the population is gay, then any locker room with ten or more girls probably has some privacy violation occurring. As such, those concerned with privacy would presumably need to address this as well. The worry that a “hidden homosexual” might be violating privacy could be addressed by having private changing rooms and closed shower stalls—however, this would be quite costly and most public schools and facilities would not have the budget for this. As such, a more economical solution might be needed: no nakedness in locker rooms at all to ensure that privacy is not being violated. People could wear bathing suits while showering and then wear them under their clothes the rest of the day. Sure, it would be uncomfortable—but that is a small price to pay for privacy.

The second is that transgender girls are not sexually attracted to girls and hence do not violate their privacy: they are just girls like other girls. It could be objected that what matters is the biology: a biological boy seeing a biological girl in the locker room violates her privacy. Arguing for this requires showing how the biology matters in terms of privacy—that being seen non-sexually by biological girls is no privacy violation but being seen non-sexually by a biological boy who is just going about their business is a privacy violation. That is, if the person looking does not care about what is being seen, then how is it a privacy violation? The answer would need to differentiate based on biology, which could perhaps be done.

The third is that transgender girls are just girls. In which case, there is no privacy violation since it is just girls seeing girls.

While the harm and privacy arguments do have some appeal, they do not seem to stand up well under scrutiny. However, they might be other arguments for the bathroom bills worth considering.

 

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Sex, Power, Professors & Students

In February of 2015 Laura Kipnis’ essay “Sexual Paranoia Strikes Academe” was published in the Chronicle of Higher Education. Though perhaps potentially controversial in content, the essay was a rational and balanced consideration of the subject of campus codes regarding relationships between students and professors. In response to this essay, Kipnis was subjected to what she rightly calls a Title IX Inquisition.

While I will not be addressing the specifics of Kipnis’ essays, reading them caused me to consider the topic of university regulation of relations between professors and students. While the legal issues are certainly interesting, my main concern as a philosopher lies in the domain of ethics.

I will begin by getting the easy stuff out of the way. Since universities have an obligation to provide a safe environment conducive to learning, universities should have rules that forbid professors from sexually harassing students or pressuring them. Since universities also have an obligation to ensure that grades are assigned based on merit, they should also have rules that forbid exchanging goods or services (in this case, sexual services) in return for better grades. Crimes such as sexual assault and rape should be handled by the police—though universities should certainly have rules governing the employment of professors who are convicted of assaulting or raping anyone. Of course, since the professor would most likely be in prison, this would probably make continued employment rather difficult.

Somewhat less easy is the issue of whether or not universities should forbid consenting relationships between professors and students when the student is enrolled in the professor’s class or otherwise professionally under the professor (such as being an advisee, TA, or RA). There is certainly a legitimate concern about fairness. After all, if a student is sexually involved with a professor, then the student might have an unfair advantage relative to other students. I consider this to be distinct from the exchange of a grade for sexual favors—rather, this is a matter of such things as positive bias in favor of the student that results in special treatment. For example, that a professor might grade her boyfriend’s paper much easier than those of other students.

While sexual relations can lead to bias, these are not the only relations that can have this effect. A professor who is friends with a student or related to a student can be subject to bias in favor of that student (as distinct from pure nepotism in which grades are simply handed out based on the relationship). So, if the principle justifying  forbidding a professor from having a student in his class he has a relation with is based on the potential for bias, then students who are friends, relatives or otherwise comparably connected to the professor would also need to forbidden.

It can be argued that there is a relevant difference between sexual relations and non-sexual relations that would justify forbidding a professor from dating a student in her class, while still allowing her to have a friend or relative as a student. Alternatively, a university could simply place a general ban on professors having students with whom they have a potentially biasing relationship—be it sexual, platonic, or a family relationship. As a general policy, this does have some appeal on the grounds of fairness. It can, however, be countered on the grounds that a professional should be able to control her bias in regards to friends and family. This, of course, opens the door to the claim that a professional should also be able to control his bias in regards to a sexual relationship. However, many people would certainly be skeptical about that—and I recall from my own graduate school days the comments students would make about students who were sexual involved with their professor or TA. Put in polite terms, they expressed their skepticism about the fairness of the grading.

My considered view is a conditional one: if a professor can maintain her objectivity, then the unfairness argument would have no weight. However, there is the legitimate concern that some (or even many) professors could not maintain such objectivity, thus making such a general rule forbidding relationships justifiable. After all, rules limiting behavior are not crafted with the best people in mind, but those that are less than the best.

The fairness argument could not, of course, be used to justify forbidding professors from dating students who are not and will not be in their classes (or otherwise under them in a professional capacity). So, for example, if an engineering professor were to date an English Literature major who will never take any of the classes she teaches, then there would seem to be no basis in regards to fairness for forbidding this relationship. Since harassment and coercive relationships should be forbidden, there would thus seem to be no grounds for forbidding such a consensual relationship between two adults. However, there are those who argue that there are grounds for a general forbiddance.

There are, of course, practical reasons to have a general forbiddance of relationships between students and professors even when there is no coercion, no harassment, and no unfairness and so on. One reason is that relationships generally fail and often fail in dramatic ways—it could be problematic for a university to have such a dramatic failure play out on campus. Another reason is that such relationships can be a legal powder keg in terms of potential lawsuits against a university—as such, university administrators probably feel that their money and brand should be protected by forbidding any such relationships.

From a moral perspective, the concern is whether there are moral grounds for forbidding such relationships (other than, of course, a utilitarian argument about the potential for brand damage).

One stock argument is that there is always a power disparity between professors and students and this entails that all relationships are potentially coercive. Even if most professors would not consciously coerce a student, rules (as noted above) are not made for the best people. As such, the blanket ban on relationships is necessary to prevent any possibility of coercive relationships between students and professors.

It might be objected that a rule against coercive relationships would suffice and that if the professor has no professional relationship with the student, then they should be treated as adults. After all, the professor would seem to have no power at all over the student and coercion via professional position would not be a possibility. So, they should be free to have a relationship despite the worries of the “nanny” university.

It could be countered that a professor always has power over a student in virtue of being a professor—even when the professor has no professional relationship to the student. While a professor might have some “power” in regards to being older (usually), having some status, having more income (usually), and so on, these do not seem to be distinct from the “power” anyone could have over anyone else. That is, there seems to be nothing specific to being a professor that would give the professor power over the student that would make the relationship automatically coercive. As such, there would seem to be no grounds for forbidding the relationship.

It could be objected that students are vulnerable to the power of professors and lack the autonomy needed to resist this power. As such, the university must act in a paternalistic way and forbid all relationships—so as to protect the guileless, naïve and completely powerless students from the cunning, powerful predatory professors. This would be analogous to the laws that protect minors from adults—the minors cannot give informed consent. If college students are similarly vulnerable to professors, then the same sort of rule applies. Of course, if students are so vulnerable, then there should certainly be a reconsideration of the age of consent—increasing it to 23 might suffice. Then again, many students take six years to graduate, so perhaps it should be 24. There are also graduate students, so perhaps it should be extended to 30. Or even more—after all, a student could go to school at almost any age.

Unless it is assumed that students are powerless victims and professors are powerful predators, then a blanket ban on relationships seems morally unwarranted—at least on the grounds of forbidding relationships because of an assumption of coercion. However, there are other moral grounds for such rules—for example, a case can be made that dating students would be a violation of professionalism (on par with dating co-workers or clients). While the effect would be the same, the justification does seem to matter.

 

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The Failure of Rolling Stone


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In November, 2014 the Rolling Stone magazine received worldwide attention for a story on the brutal gang rape of a student at the University of Virginia. The story had a significant impact not only on the University of Virginia but also on the broader community.

Some accepted the story as true—after all, it was a horrifying example of the rape culture that had become part of a general media narrative. Others had doubts about the story—some for ideological reasons and some for what turned out to be legitimate reasons. It turns out that the story is largely (or even entirely) untrue and Rolling Stone issued an apology to its readers.

In preparing and printing this story about the rape of a woman nicknamed Jackie, the relevant people at the Rolling Stone failed both professionally and morally. In investigating the story, the Rolling Stone did not contact the men alleged to be involved in the attack. This seems rather contrary to what should be a principle of good journalism, namely that of seeking information regarding all the relevant parties rather than simply using the account of one side. Also, given the information found by other news sources, such as the Washington Post, it appears that the magazine should have been more thorough in its investigation. After all, there is a professional and moral duty to engage in a proper investigation before publishing a story with rather serious potential consequences. When people believed the story was true, there were rather serious consequences. Now that the credibility of the story seems to have been damaged or even destroyed, there are also serious consequences and these will be discussed below.

To be fair, I am obligated to offer some defense for the Rolling Stone. First, as the managing editor Will Dana noted, the magazine was honoring Jackie’s request that they not contact the men she had accused of raping her. According to Dana, they wished to be sensitive to the shame and humiliation women often feel after being victims of sexual assault and Jackie said she feared retaliation from the men.

While the professed motivations seem laudable on part of the magazine, it is not clear how a more thorough investigation would have shamed and humiliated Jackie. It might be claimed that to even investigate the accused would be to engage in wrongful doubting of the victim. The obvious reply is that a thorough investigation is not an expression of doubt, but good journalistic practice. While an alleged victim should be given due respect, this respect does not entail that a journalist should abandon due diligence. But, to be fair to the journalists, there is no doubt considerable political and social pressure to avoid even the appearance of skepticism in such cases.

Second, the managing editor claims that Jackie’s story held up to considerable scrutiny and it is only recently that the problems in the story were found. This allows for a reasonable defense: even a thorough and proper investigation can turn out to have gotten things wrong, as revealed by later investigation.

The main problem with this defense is that the reason why the story seems to have held up is that the Rolling Stone operated within limits set by Jackie: she requested that they not contact the accused and told them that her friend would not speak with the magazine. It turned out that her friend was quite willing to speak with the Washington Post and that his story differs from her account in many key ways. As such, it would seem that the magazine cannot claim this defense. Rather, it can only claim that it decided to seemingly put its trust in Jackie and to allow her to decide the scope of their investigation. This is, obviously enough, not a good approach to investigative journalism.

Third, a defense can be made regarding the discrepancies. As has been well-established, eye-witness reports are unreliable and a person’s memories of an event tend to be rather inaccurate. As such, it would hardly be surprising for Jackie’s account to differ from the accounts of other and have some inconsistencies. This is, of course, a lesson from basic critical thinking.

However, there are limits to how far these facts excuse inconsistencies and factual errors. While there is not an exact line (such as six minor errors and one major error), there are reasonable boundaries to the extent to which these things can be fairly chalked up to these human failings. Looking at the details laid out in the apology and other accounts, the discrepancies between Jackie’s story and the accounts of witnesses and other information (such as the dates for parties at the fraternity) seem to have crossed that boundary. As such, it is rather difficult to chalk up the problems to this sort of cause.

The evidence does suggest that something did happen to Jackie, but the evidence does not seem to support the story told by the Rolling Stone. In defense of Jackie, it could be claimed that she was encouraged to embellish her story or that she felt obligated to tell the sort of story that she believed they were looking for. There are, of course, psychological pressures to do such things.

While the folks at Rolling Stone have contributed one more example of how not to conduct a proper journalistic investigation (and given me an example to use in my classes), there are some serious consequences to this incident.

One consequence is the harm done to the University of Virginia and those accused in the story. While it might be claimed that if the fraternity was not guilty of this specific crime, some fraternity is guilty of something similar, that is hardly just reporting.

A second consequence is that the revelations regarding the story will be taken as evidence that women, in general, lie about sexual assault. It can also be taken as evidence that the alleged problem of sexual assault is also a lie. When people point out that most reports of such assaults are not false, doubters can point to this article and inquire why that claim should be believed. By allowing this story to be published without proper investigation, the magazine has thus fueled such doubts.

A third consequence is that these revelations will also be taken as evidence that the media is eager to serve the “feminist agenda” and push the narrative of the rape culture. After all, one might claim, the magazine saw the story as too good to check and put forth a story in accord with the feminist narrative—a story that turned out to not be true.

This can be taken as evidence that the alleged problem of sexual assault is a fabrication, the result of feminists pushing a narrative on a media that is either a co-conspirator or spineless and eager to cash in on whatever grabs the public’s attention.

Obviously, the failure of the Rolling Stone does not prove that women generally lie about sexual assault or that it is not a problem. But, revelations of what seems to be, at best, sloppy journalism do certainly contribute to doubts.

 

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Should Fraternities Be banned?

Members of a fraternity displaying their new h...

Members of a fraternity displaying their new heart brands. (Photo credit: Wikipedia)

Having been in academics quite some time, I am familiar with an unfortunate pattern involving the Greek system on American campuses. Something awful will happen involving a fraternity or sorority, such as a gang rape or hazing death. Then there will be a backlash and a surge in calls for banning fraternities (and sometimes sororities). This will be followed by some administrative action, such as hiring well-paid consultants to address the image problem and creating some new bureaucratic post on campus. Academics will write a few highly theoretical articles about the Greek system. The media will cover the event, squeezing it for the blood and pain that the news cycle feeds upon.  At the end of a specific event is the return to “normalcy” which terminates with the next terrible incident that grabs the attention of the media.

The latest cycle has been started by a Rolling Stone article about a gang rape at UVA. As with other awful incidents, events are playing out following the usual script: media coverage, calls for action, theoretical academic papers being crafted in the hopes of advancing careers, and so on. It must be noted that many people are acting in good faith: they want things to change for the better. As in past incidents, there is a call to ban fraternities from campuses.

The main moral argument for banning fraternities is utilitarian: the existence of fraternities is claimed to create more harm than good, thus making their removal morally correct. In terms of the harms, the catalog is hardly surprising and certainly matches the usual intuitions about campus life in general and fraternities in particular.

First, while college students are generally heavy drinkers, members of fraternities are significantly more likely to engage in heavy and binge drinking (75%) than the general college population of men (49%). This heavier drinking also entails that fraternity members suffer more from the negative effects of heavy drinking (such as injuries and academic problems). In addition to alcohol, fraternity members also abuse drugs (prescription and otherwise) at higher rates than non-fraternity members. Sorority members are also more likely to engage in heavy and binge drinking than their non-Greek counterparts.

Second, fraternity members are much more likely than non-fraternity members to commit sexual assault. It must, however, be noted that most fraternity men never commit sexual assault. While there is some disagreement about the causes, this is typically linked to the greater abuse of alcohol, group psychology and fraternity culture. Sorority members are more likely to be sexually assaulted than their non-Greek counterparts. This is also linked to alcohol abuse and cultural factors.

Third, there is hazing. On average, about one person is killed per year due to a hazing incident. Others are injured or otherwise harmed. Most fraternities officially ban hazing, but it obviously does occur. Obviously, hazing is not confined to fraternities—my own Florida A&M University lost a student, Robert Champion, to band hazing in 2011. While sororities apparently engage in hazing, fraternities are the ones that make the news the most often.

These harms power the argument for banning fraternities (and sororities) on the basis of the claim that getting rid of them will reduce the harms in question. To be specific, if fraternities cause their members to abuse alcohol, commit sexual assault and haze more than they would otherwise, then getting rid of them would reduce (but obviously not eliminate) these problems.

One response to this argument is to argue that banning fraternities would not have the desired effect. The reasoning behind this response is that fraternities merely collect together people who would behave badly on their own anyway and hence a ban would not have a significant impact. This does have some appeal in that non-fraternity members do binge drink, do commit sexual assault and do engage in hazing.

This response can be countered by arguing that a fraternity does not just collect together people who would behave badly on their own, the social dynamics and culture of the fraternity plays a causal role in this bad behavior. That is, the group dynamics changes individual behavior and a man who is in a fraternity is more likely to behave badly because of that membership. Given the studies of group dynamics, this does have considerable appeal: people do generally behave differently in groups and most are easily swayed by cultural factors and peer pressure.

Another response to the argument for banning fraternities is to admit that fraternities do cause some problems, but to counter by arguing that the good they create outweighs the harms. In defense of fraternities, people typically point to some of the following benefits.

First, fraternities often engage in charity work and community service—they do good things for the campus and general community. While I was not in a fraternity in college, many of my friends were and they certainly did many good things. As a faculty member and a member of the community, I also see the good works done by fraternity members.

Second, fraternities provide opportunities for leadership, brotherhood and the forging of social connections that often prove incredibly useful later in life. Fraternities have a well-established history of producing leaders in various fields, such as business and politics.

These benefits do have their appeal and it must be noted that some fraternities are include upstanding and outstanding men who do good on campus and go on to do good after they graduate. These positive factors should not be simply ignored or dismissed.

That said, as with any utilitarian calculation, the positive factors must be weighed against the negative factors. In this case, the question is whether the positive aspects of having fraternities on campus outweighs the negative aspects. There is also the closely related question of whether banning them would create more good than harm.

This is partially a matter of facts—the statistics about drinking, sexual assault and so on are factually matters and should thus be addressed by the usual rational means of assessment. However, it is obviously also a matter of value in regards to how much weight is placed on each positive and each negative factor. To use a somewhat dramatic example, this would involve questions about how many sexual assaults are offset by fraternity contributions to networking, leadership development and campus service. While some would be inclined to take the view that the number would be zero, it must be noted that we routinely tolerate horrible consequences in return for positive consequences. For example, tens of thousands of people die each year due to automobile accidents, yet we still tolerate driving. So, weighing the horrible against the positive is, sadly, a matter of how things are done. And, for utilitarian calculations, how they should be done. The obvious practical problem is that people disagree in these evaluations and such disagreements need to be settled in order to make a decision. Obviously enough, defenders of the fraternity system would contend the positives outweigh the negative. Detractors would claim the reverse.

Naturally, there are alternative moral approaches to utilitarianism. For example, one might take the view that to weigh the benefits of fraternities against the fact that fraternity men are significantly more likely to engage in sexual assault is a moral travesty. The fraternities should be shut down, it might be argued, because sexual assault is to be prevented. While this does have some appeal, the same reasoning could be pushed to the entire university system: since sexual assault occurs on campus and eliminating campuses would eliminate sexual assault on campus, campuses should be eliminated. This can, obviously enough, also be countered.

My own view is somewhat mixed. Given the harms associated with fraternities, there is clearly a moral case for eliminating them. That said, there are some positive aspects to the fraternity system that can support a moral case for preserving them, presumably with some extensive reforms.

In any case, this cycle spins on. If it follows past patterns, people will soon forget about the UVA case and matters will go back to “normal.” Then some new horror will emerge involving a fraternity and it will start again.

 

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Defining Rape IV: Men as Victims of Women

Women on Top: How Real Life Has Changed Women'...

(Photo credit: Wikipedia)

In my previous essay, I ended by noting that while college men are the victims of sexual assault by college women, this matter is rarely mentioned. It certainly does not get the attention of the mainstream media. Perhaps because this would run afoul of the current media narrative regarding the rape epidemic on campus.

Of course, it might be claimed that men cannot, in general, be victims of women. One common view is that men are not at all picky about sex and a man would be fine with a woman taking advantage of him while he was drunk or unconscious. Or, somewhat less extreme is the view that while a man might not be fine with it, he would not be too put out by it. He might feel some embarrassment if the woman was unattractive or might be angry if she gave him a STD, but he (some might claim) would not be psychologically harmed in the way a woman would be harmed. The gist is that men are psychologically incapable of being raped by woman—that is, a man would always consent or, at the very least, would not be very bothered by the sex.

Even if this were true (which it is not), the fact that a victim of a crime is not as upset as other victims might be would not seem to make it less of a crime. To use an analogy, if Sally is a stoic and is not very upset when her car is stolen, this does not make it any less of a theft than if she was distraught over the loss. As such, even if men are not as bother by women, this would not entail that men are not or cannot be victims. In any case, as will be shown, men are generally not cool with being assaulted by women—despite the bravado and stereotypes.

Another approach is to argue that men and women are fundamentally different so that women cannot (in general) rape men. Some people think that a man cannot become erect if he does not wish to do so and hence it is impossible for a man to have heterosexual intercourse without his consent. However, this view is on par with claiming that men have an ability to “shut down” an erection when it is a case of “legitimate” rape. This is, unfortunately, no more true than the claim that a woman can shut down a pregnancy when she is the victim of a “legitimate rape.”

Yet another counter is to claim that while women could sexual victimize men, it does not happen that often—if at all. This would, if true, be wonderful. Sadly, it is not true.

While it is rarely discussed and never seems to grab headlines, college men are subject to sexual victimization by college women and are emotionally harmed by it.  While men are often presented as happy to have sex with anyone at any time, this is not true and men can be as hurt by sexual victimization as women. So, to claim that a man wants to be raped by a woman is just as awful as claiming that a woman wants to be raped by a man. While it might be true of some, it is certainly not true of most.

In a mostly ignored study, 51.2% of college males reported being sexually victimized (ranging from unwanted sexual contact, to sexual coercion to rape). Naturally, given that sexual violence is often unreported and men are extremely likely not to admit to being assaulted by a woman, the number of cases could be quite large. But, of course, it is not possible to make an estimate since this would require claiming to know what is unknown. This does not, of course, stop some people from making estimates about unreported assaults on women.

Interestingly, being “made to penetrate” is not legally classified as a form of rape. Thus, by this definition, a woman forcing a man to have sex with her is not rape. But if a man commits the same act with an unwilling woman, it is rape. This seems to allow sexual victimization of men by women to be dismissed as less serious than the victimization of women by men, all by definition. To use an analogy, this would be like saying that when a man steals from a woman, it is theft. When a woman steals from a man, it is involuntary lending.

While men are generally not subject to being forcibly raped by women, women do pursue other tactics that mirror those of male rapists including selecting victims who are impaired or unconscious. If having sex with a woman by these means is rape, then having sex with a man by these means should also be rape.

It might also be claimed that women are not inclined to sexual violence. While the stereotypes cast men as victimizer and women as victims, the terrible truth is that sexual violence is equal opportunity. As the National Geographic reported, a study determined that males and females commit roughly the same amount of sexual violence by the time they reach the age of 18. This is certainly consistent with the claim that college men are subject to sexual assault by women. As such, evil does not discriminate based on sex.

At this point I might be accused of having nefarious motivations or of playing the old “victim switch” tactic to get men off the hook. However, my goals are merely to insist on a consistent standard when it comes to sexual assault and to call attention to an important truth: sexual victimization is an equal opportunity crime. I am not asserting that we should dismiss or ignore the assaults on women. Rather, I am saying that we should not be blinded to the fact that men are victims as well. If the campus rape epidemic is going to be stopped, we cannot be concerned with just the victims who are women and just the victimizers who are men.

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Defining Rape III: Intoxication

A half-drunk glass of beer

A half-drunk glass of beer (Photo credit: Wikipedia)

Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

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Defining Rape II: Consent

George Will

George Will (Photo credit: Keith Allison)

In my previous essay, I presented some groundwork and stage setting for the discussion to follow. In this essay I will take a look at the matter of consent.

Intuitively, what makes some activities wrong (and often criminal) is the lack of consent on the part of the victim. Theft, for example, is taking property without the rightful owner’s consent. Kidnapping, as another example, is taking or transporting a person without consent. These misdeeds are similar to rape in regards to the lack of consent. In the case of rape, the activity is sexual in nature (to be deliberately vague) and occurs without the consent of the victim. While these simple definitions have appeal, the matter of sorting out what counts as consent and what constitutes acting without consent is rather more complex. To focus the discussion I will use a recent and controversial example.

Conservative intellectual George Will triggered a bit of a firestorm among liberal columnists and bloggers with his June 6 column about the alleged epidemic of campus rape. The claim that triggered the most outrage was his assertion that “when they make victimhood a coveted status that confers privileges, victims proliferate.”

Some of those attacking Will interpreted him as asserting that women want to be actual victims—that is, that women want to be raped. While some awful people do believe just that, this reading might not be Will’s actual position. Another interpretation, which seems supported by the rest of his column, is that some women will embrace a very broad definition of “rape” and interpret their experiences to match that definition. The motivation, at least as it seems to Will, is to gain a “coveted status” that “confers privileges.” My concern here is not with whether or not Will is correct in this matter. Rather, I want to examine what he takes as an example of how one becomes a member of this “privileged” class of rape victims.

Will uses an example taken from a report about Swarthmore College. In 2013, a woman was in her room with a man “with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

As Will notes, six weeks later the woman reported that she had been raped. Will seems to hold that the woman was not actually raped and that she decided to join the “privileged” class of victims by redefining her experience as rape. Others might claim that she had been “brainwashed” by feminist ideology or political correctness to regard her experience as rape. Setting aside the matter of motivation, there is an important question of whether the incident was or was not rape. Those embracing what some would regard as the ideology of leftist feminism would presumably regard it as rape. As Will shows, those embracing a specific form of conservative ideology presumably consider it to not be rape. Obviously, the adherents of the ideologies will regard their view as self-evident and the view of the other as not only in error but driven by vile and wicked motivations. Since I am not a prisoner of either ideology, I can examine the matter more objectively, looking for merits and flaws in the various accounts.

On the face of it, it is easy enough to contend that the incident is a case of rape. While the man did not threaten the woman or use force to have sex with her, he did engage in a sexual act after she had basically said that she did not want to have sex with him. Sex without consent is rape and thus she was raped.

To use an analogy, suppose for a few months I had allowed a friend to take money from my wallet, but then we decided (or so I think) that this money taking will no longer be part of our relationship. She reaches for my wallet and I basically say “No, I don’t want to give you money.” She stops, but then returns to my wallet and takes my money. She has, obviously enough, committed an act of theft: she has taken my property without my consent.

While this view has considerable merit, it is also worth considering an alternative. One obvious complication of the matter is that consent is a matter of communication and communication can be problematic. This creates the practical (and moral) problem of sorting out when consent has been given, when it has not been given, and when a person should know the difference.

In the specific case under discussion, the two parties had been having consensual sex (“hooking up”) for three months. On the face of it, once a relationship is established then it is not unreasonable to accept an assumption of consent. To use an analogy, I keep beer and snacks on hand for my Sunday Pathfinder game. My longstanding friends do not need to explicitly ask permission to get the beer or snacks, since there is a reasonable assumption that they have standing permission to do so. I would, in fact, have an obligation to tell them if certain beer or snacks were off limit—which would then obligate them to not take the specified beer or snacks.

In the case at hand, let it be assumed that the woman changed the relationship from “hooking up” to friends without benefits. This would legitimately remove the assumption of consent (unless otherwise informed). As such, the man could no longer assume that she was consenting unless he was told otherwise.

The woman also notes that she “basically” told him she didn’t want to have sex with him—which would clearly show a lack of consent. The man should have left it at that and not tried again.

However, a devil’s advocate might make certain claims. The first is that the brains of young people are different from adult brains, especially in areas of judgment and impulse control. The second is that the desire for sex is extremely strong and even the prospect of sex impedes rational judgment. The third is that people in general and young people in particular are bad at communication. The fourth is that communication is not merely a matter words—that consent or lack thereof can also be conveyed by actions. Such a devil’s advocate might allege, in his devilish way, that the young man, driven by basic biological desires and impeded judgment, decided to make another attempt at sex and wrongly interpreted, perhaps due to his immature brain and lack of communication skills, her lack of action as consent. That is, he honestly believed that he had consent and had not raped her. She might have also shared this belief for six weeks.

The obvious reply is that none of the devil’s advocate’s claims matter: what matters is that the woman said that she did not want to have sex and then the man had sex “with” her. Thus, it was sex without consent and hence the man is guilty of rape. While this view does have great appeal, it might be worth considering the following analogy.

Suppose I have a nice truck and that my friend Sally really likes driving around in nice trucks. She also prefers to not drive alone. After we have been friends a while, I agree to let her drive my truck and also agree to go with her on her drives. This goes on for three months and I find that I have gotten tired of this aspect of the relationship and tell her so. As far as I can tell, she agrees.

Then I invite her to come over and sit in my truck. After a while, she reaches for the keys in my pocket and I say “no, I am not letting you drive and I am not riding with you.” Rebuffed, she pulls her hand back. But, a few minutes later she is digging around in my pocket for the key. I do nothing. She takes the key and puts it in the ignition. I say and do nothing. She starts the truck and takes me along for the ride.  I am tired, so I just sit back and let her drive. When she gets back, I take the key out of the ignition. Six weeks later I call the police and accuse her of kidnapping me and stealing my truck.

This situation does seem parallel to the original situation. After all, theft is taking property without consent and kidnaping is transporting a person without consent. If the woman did not consent in the original situation, then I did not consent in the analogical situation. If the man was a rapist, then Sally was a thief and a kidnapper. However, I suspect that people would react to my claim that Sally kidnapped me and stole my truck by saying that I should have at the very least said something when she reached for the keys a second time—by letting her simply take them and drive away with me without even another word would seem to show that I consented to the trip. After all, her reaching for the key and so on could be seen as requests for consent—I could have easily replied by saying “no.” Of course, it could be countered that this view is wrong: Sally is now a kidnapper and truck thief because of my original statement which withheld consent.  After all, it might be argued, saying “no” once suffices—and until an explicit, verbal “yes” is given the original “no” is in place.

Naturally, some might want to reject the truck analogy while holding that the original case was one of rape. One obvious avenue of reply is to argue that sexual assault is a special matter and thus it is not analogous to the truck scenario. As such, the man is a rapist but Sally is not a kidnapper and thief.  I might even be accused of trivializing rape by presenting such an analogy. In regards to the first reply, the challenge is to spell out what breaks the analogy—what is the difference that renders the comparison untenable? In regards to the second, it is a mere ad homimen.

The example considered in this essay did not explicitly involve drinking—however, many sexual assaults on campus do. In the next essay the moral impact of intoxication will be considered.

 

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Defining Rape I: Definitions

A picture of a dictionary viewed with a lens o...

A picture of a dictionary viewed with a lens on top of it, at the word “Internet” (Photo credit: Wikipedia)

One of the basic lessons of philosophy dating back to at least Socrates is that terms need to be properly defined. Oversimplifying things a bit, a good definition needs to avoid being too narrow and also avoid being too broad. A definition that is too narrow leaves out things that the term should include. One that is too broad allows in too much. A handy analogy for this is the firewall that your computer should have: if it doing its job properly, it lets in what should be allowed into your computer while keeping attacks out. An example of a definition that is too narrow would be to define “art” as “any product of the visual arts, such as painting and sculpture.” This is too narrow because it leaves out what is manifestly art, such as movies and literature. As an example of a definition that is too broad, defining “art” as “that which creates an emotional effect” would be defective since it would consider such things as being punch in the face or winning the lottery as art. A perfect definition would thus be like perfect security: all that belongs is allowed in and all that does not is excluded.

While people have a general understanding of the meaning of “rape”, the usual view covers what my colleague Jean Kazez calls “classic” rape—an attack that involves the clear use of force, threat or coercion. As she notes, another sort of rape is what is called “date” rape—a form of assault that, on college campuses, often involves intoxication rather than overt violence.

In many cases the victims of sexual assault do not classify the assault as rape. According to Cathy Young, “three quarters of the female students who were classified as victims of sexual assault by incapacitation did not believe they had been raped; even when only incidents involving penetration were counted, nearly two-thirds did not call it rape. Two-thirds did not report the incident to the authorities because they didn’t think it was serious enough.”

In some cases, a victim does change her mind (sometimes after quite some time) and re-classify the incident as rape. For example, a woman who eventually reported being raped twice by a friend explained her delay on the grounds that it took her a while to “to identify what happened as an assault.”

The fact that a victim changed her mind does not, obviously, invalidate her claim that she was raped. However, there is the legitimate concern about what is and is not rape—that is, what is a good definition of an extremely vile thing. After all, when people claim there is an epidemic of campus rapes, they point to statistics claiming that 1 in 5 women will be sexually assaulted in college. This statistic is horrifying, but it is still reasonable to consider what it actually means. Jean Kazez has looked at the numbers in some detail here.

One obvious problem with inquiring into the statistics and examining the definition of “rape” is that the definition has become an ideological matter for some. For some on the left, “rape” is very broadly construed and to raise even rational concerns about the broadness of the definition is to invite accusations of ignorant insensitivity (at best) and charges of misogyny. For some on the right, “rape” is very narrowly defined (including the infamous notion of “legitimate” rape) and to consider expanding the definition is to invite accusations of being politically correct or, in the case of women, being a radical feminist or feminazi.

As the ideological territory is staked out and fortified, the potential for rational discussion is proportionally decreased. In fact, to even suggest that there is a matter to be rationally discussed (with the potential for dispute and disagreement) might be greeted with hostility by some. After all, when a view becomes part of a person’s ideological identity, the person tends to believe that there is nothing left to discuss and any attempt at criticism is both automatically in error and a personal attack.

However, the very fact that there are such distinct ideological fortresses indicates a clear need for rational discussion of this matter and I will endeavor to do so in the following essays.

 

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Colleges, Rape & Justice

Justice

Justice (Photo credit: donsutherland1)

A thoughtful and well-reasoned article on the college rape crisis by Michelle Goldberg was recently published by the Nation. Reading through the article caused me to reflect on the various issues, most especially the matter of the role of colleges in handling sexual assault and rape cases.

When a student is alleged to have assaulted or raped another student, the purported victim can report the matter to the police or bring the matter to the attention of the college (or both). For legal (and moral) reasons, colleges should not ignore such reports and so a college has to take some action.

While colleges vary, it is common practice for colleges to handle allegations of sexual assault and rape internally in a manner rather similar to academic misconduct hearings: a hearing is held with a panel composed of faculty members and administrators. Since the panel is not a court of law, it (presumably) does not have the authority to impose criminal or civil penalties as an actual court could. Rather, the panel typically decides whether or not the accused student should be subject to disciplinary action, with the highest penalty usually being expulsion. As might be imagined, there are some obvious problems with this approach.

The first is a practical problem: while many schools do have their own police forces, faculty and administrators are generally not trained to properly investigate and judge such matters. To use myself as an example, while I can teach classes, serve on committees and so on, the skills needed to conduct a detailed and proper forensic investigation of an alleged assault/rape is not in my professional toolkit. I am a philosophy professor, not a detective or CSI professional. I would, if I was assigned to such a panel, do my best—just as a detective somehow assigned to teach my class would presumably do her best.

There seem to be two main solutions to this problem. One, which seems the most sensible, would be for colleges to cede authority over these crimes to the actual legal system. That is, the role of the college would be to assist the purported victim in reporting the alleged crime to the police. Naturally, the college can also have an important role in providing support to the purported victim. There is, however, the concern that such crimes are not always properly addressed by the authorities.

The other would be for the college to ensure that those handling the incidents would be properly trained professionals. This could be done by hiring such professionals or by training existing faculty and administrators in how to handle such cases. This would run into the practical concern regarding cost (schools would, in effect, have to support their own “CSI” staff and detectives).

The second is also a practical problem with a moral component. A college has a vested interest in protecting its reputation and protecting itself legally and financially. In a practical sense, this leads to a conflict of interest that can influence the rulings of a panel. In a moral sense, this can lead to justice not being done in regards to finding the truth and ensuring that wrongdoers are punished and the innocents are not.

As before, there seem to be two solutions to the problem. One is to remove the handling of such cases from colleges. The other is to take steps to ensure that such internal panels act for the sake of justice rather than trying to protect the reputation of the college. I would say that the former option is the better choice.

The third is a moral problem with two aspects. One aspect is that purported victims sometimes report that a college’s handling of the situation is yet another violation—a traumatic and harmful experience rather than a professionally conducted act of justice. Obviously enough, subjecting someone to such an awful experience is morally incorrect. The second aspect is that alleged perpetrators sometimes report that the college’s handling of the situation is a kangaroo court devoid of due process. If such charges are true, they would certainly be cases of wrongdoing.

Once again, there would seem to be two solutions. One is to have such cases handled by the actual legal system. There is, however, the problem that it is not uncommon for purported victims to report poor handling of such cases—which is yet another matter of moral concern and a very serious problem. Some have even argued that colleges should continue to handle such cases because the actual legal system has failed the purported victims so badly. That is, colleges might be bad at this, but they are sometimes better than the legal system. This certainly points to a clear need to address the legal system—there is little sense in handing off the handling of such cases to a system that is no better.

The second is to rework the college system to try to ensure that the purported victims are treated with proper respect while also ensuring that the alleged perpetrators are given a fair hearing in accord with due process. This, needless to say, would prove challenging—but it is a challenge that must be met if colleges are to continue in this role. If the legal system is doing a poor job, then it would be even more important for colleges to revamp their systems.

The third problem is also a moral problem with legal aspects as well. As many critics of the current system have noted, there is the moral and legal concern with the basis for the college’s authority to handle such cases. As the usual example goes, colleges do not handle cases in which a student murders another student—that is a matter for the police. By analogy, the same should apply to sexual assault and rape—those are actual crimes. While a college does have academic authority over students as well as a degree of disciplinary authority, a college would certainly seem to lack the legal and moral sovereignty needed to claim authority over serious crimes (even if it had the resource and competence to run its own legal system). As such, it would seem that a college would overreach its authority in attempting to handle criminal cases such as sexual assault and rape. That said, there can still be a legitimate role for colleges to play in such matters.

While a college certainly should not have the authority to impose criminal (or even civil) punishments on students (that is, a college should not be able to maintain jails or conduct executions), a college does have some legitimate authority over students. To be specific, a college has a (hopefully) clearly defined sphere of authority based on the agreement between the student and the institution, as spelled out in the rules and policies of the college. The college does also have the legitimate authority to impose certain penalties within a fairly limited sphere. The outer limit of these penalties is, of course, expulsion from the university.

Such authority is intended to allow colleges to have some degree of control over student behavior—after all, without the capacity to punish, authority does not amount to much. There is also presumably the purpose of maintaining a safe and non-threatening learning environment. This is what justifies punishing students who disrupt this environment. In some cases, maintaining this environment can require expelling students.

Because of this legitimate function, a college can justly claim the right to hold a hearing for a student accused of sexual assault or rape. However, this should not be in place of a criminal trial. Rather, it should be in addition to the criminal trial. The purpose of the college hearing would be to determine whether the alleged perpetrator should be, in addition to whatever punishment imposed by the legal system, subject to discipline by the college.

While it might be tempting to insist that an alleged perpetrator who is found innocent by a court of law should also be exempt from college discipline, it must be remembered that the requirements of a criminal court are supposed to be very rigorous, with an assumption of innocence and a standard of proof set at beyond a reasonable doubt.

It can be argued that the standard of proof for a college disciplinary hearing should be lower than that of a criminal court (as civil courts have a lower standard of proof). After all, the standard should be higher when a person might spend years in jail as opposed to being disciplined by a college. For example, an incident might be such that it seems reasonable to believe that something wrong occurred, yet the evidence is simply not enough to establish proof beyond a reasonable doubt. In such a case, an alleged perpetrator might avoid jail yet perhaps be justly expelled from college.

If this view is accepted, then there are the practical and moral problems of determining the standards of evidence and the appropriate punishments. At this time, many colleges accept a very weak standard—that of “more likely than not.” That is, if the panel members (who are, as noted above, usually not trained in such matters) believe that it is more likely that the alleged perpetrator committed the misdeed than did not, then the person is guilty. As might be imagined, some critics of this standard regard it as far too weak and in stark contrast with the usual principle that it is better for the guilty to go unpunished than for the innocent to be unjustly punished.

In regards to the punishments, there is also considerable controversy. It could be argued that even the worst punishment that a college can offer (most likely expulsion) would still not be enough. While this might be true, it would not be a good reason to grant colleges more power to punish—after all, if the punishments were sufficiently severe, then the standards would need to be equally high. It can also be contended that some punishments, such as expulsion, would be too harsh given the weak standard.

It must be noted that sorting out the standard and the punishments is distinct from the issue of whether or not a college has legitimate authority to discipline students accused of sexual assault or rape. I certainly hold that a college has the authority to impose disciplinary action even on a student found not guilty by a criminal court—much as a civil court can impose a penalty on someone found not guilty by a criminal court. However, I have not given sufficient thought to the standard to be used and the punishments that would be just. It might be the case that the punishment should be linked to the standard—that is, the weaker the standard, the weaker the punishment.

It can also be argued that there is behavior that is not covered by the law but can be justly covered by a college’s policies. For example, cheating on tests is usually not a criminal offense, but it does provide grounds for discipline in a college setting. Likewise, some sexual or sex-related behavior might not be considered criminal, yet still be legitimately regarded as problematic enough to warrant discipline from a college. That is, the behavior is perhaps not technically illegal, but not tolerable behavior for a student. To use an analogy, some colleges have dress-codes that forbid attire that would not violate the usual laws relating to public indecency.

To close, my considered position is that colleges should obviously not be handling criminal cases—these should be turned over to the police and the actual legal system. However, colleges can legitimately hold hearings on allegations of sexual assault or rape and subject students to disciplinary action up to and including expulsion. There are, however, important practical and moral considerations that must be addressed and these include:

  • Ensuring the competence and impartiality of the college panel members conducting the investigation and hearing.
  • Ensuring that the standard of proof adopted (such as “more likely than not”) is just.
  • Ensuring that the punishments are just.
  • Ensuring that the applications of the standards and punishments are just.
  • Ensuring that both the alleged perpetrator and purported victim are treated with respect and get due process.

If these considerations can be properly addressed, then such a system can be legitimately regarded as just—at least within the specific context.

 

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