October 13, 2014

"Accused College Rapists Have Rights, Too/The victims deserve justice. The men deserve due process."

Title and subtitle to an article in The New Republic by Judith Shulevitz.

I'm not bothering to read that article because the proposition that the accused have rights is so well-established in the law that it's like an article titled "The Sun Also Rises/Not to Mention the Moon." I don't need instruction on why I shouldn't think something I can't remember ever thinking.

I just want to talk about that title "Accused College Rapists Have Rights, Too/The victims deserve justice. The men deserve due process."

Note the egregious lack of parallelism between "The victims" and "The men." The word that should go with "victims" is "perpetrators" or "criminals" or "villains" or "rapists," and part of the due process that "The men deserve" is a presumption of innocence.

And why "men"? Crimes are defined in a gender-neutral fashion, and women too can commit sexual assaults, including rape, especially as rape is more expansively defined. Both the accused and the accuser enter a system bound by the requirements of process and equality.

The beginning of the title also undercuts the author's premise: "Accused College Rapists." Those accused of rape are not accurately termed "accused rapists." They are persons accused of rape. We don't yet know whether they are rapists. And it's not good shorthand. Notice that decently written articles about murders don't say "X is an accused murderer." They say "X is accused of murder." There's a difference!

"We're gonna give you a fair trial, followed by a first class hanging" is a laugh line, and if we don't see why, we are truly lost.

ADDED: A passage from Mark Twain's "Roughing It":

"Gentlemen, I'm not stubborn and I'm not unreasonable. I'm always willing to do just as near right as I can. How long will it take?"

"Probably only a little while."

"And can I take him up the shore and hang him as soon as you are done?"

"If he is proven guilty he shall be hanged without unnecessary delay."

"If he's proven guilty. Great Neptune, ain't he guilty? This beats my time. Why you all know he's guilty.... Well, all right. You go on and try him and I'll go down and overhaul his conscience and prepare him to go — like enough he needs it, and I don't want to send him off without a show for hereafter."

This was another obstacle. They finally convinced him that it was necessary to have the accused in court. Then they said they would send a guard to bring him.

"No, sir, I prefer to fetch him myself — he don't get out of my hands. Besides, I've got to go to the ship to get a rope, anyway."

The court assembled with due ceremony, empaneled a jury, and presently Capt. Ned entered, leading the prisoner with one hand and carrying a Bible and a rope in the other....

55 comments:

SMGalbraith said...

You're being goofy, Althouse. Just silly. What about transgender rape? Is that your next complaint?

The predominant problem on campuses is men raping women not women raping men or same sex rape.

This problem may be - I think it is - a smaller one then the feminists claim it is.

But it is the problem, the main one we're concerned about and to complain that not all combinations of sexes are mentioned everywhere it just silly. No other word for it.

The solutions being offered are egregious and unacceptable.

Achilles said...

Progressives use the word fair a lot. Usually when trying to implement some policy that is the opposite of fair. The difference between fascist and progressive is semantic these days.

campy said...

All men are rapists, and that's all they are.

Ralph Hyatt said...

I always thought that quote was from "Judge Roy Bean."

Which, I see, is not available to stream on Netflix.

virgil xenophon said...

"Scratch a Russian and you'll find a Tartar"---Old saying

"Scratch a Progressive and you'll find a Robespierre" ---New saying..

Michael K said...

"as rape is more expansively defined. "

This the equivalent for Three Felonies a Day in civil society. Men cannot know what will be called rape and women think that second thoughts after sex are actionable.

"The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. "

The same applies to college sexual behavior, especially for men. You can't even write about it in Forbes .

"Forbes magazine has sacked a contributor over an online column arguing that drunk party girls were the "gravest threats" to the livelihood of fraternities, the Daily News has learned.

The column by contributor and MIT-grad Bill Frezza titled "Drunk Female Guests Are the Gravest Threat To Fraternities," hit the web at 2:23 p.m. Tuesday, according to a cached version still available online.

It was yanked down almost immediately, according to Jezebel.

"Mr. Frezza’s post was removed from Forbes.com almost immediately after he published it," Forbes spokesperson Mia Carbonell told the Daily News. "Mr. Frezza is no longer a contributor to Forbes.com."

I hope enough parents sue the shit out of universities the way the parents did with Duke over the lacrosse team case.

Rounds said...

Problem is that ALL of your alternate terms:
"perpetrators"
"criminals"
"villains"
"rapists"
have an assumption of guilt.
Should not the more appropriate term to be used be simply:
"accused"

Alexander said...

Well the thing you have to appreciate is that all the men did something wrong to some woman at some point, so who cares?

Also, no reason we can't simply redefine 'man' as "human being with either a penis or a rape accusation, or both." We're pretty big on redefining things these days.

Anyway, the men should just be grateful to finally get in print. It's always "X people, including Y women and children." When it's a group of men, it's always "X crew members were killed" or "Y workers were injured". So really, Progress!

Bob Boyd said...

Also from the same link:

"All I did was kiss the girl."

David said...

And why "men"? Crimes are defined in a gender-neutral fashion, and women too can commit sexual assaults, including rape, especially as rape is more expansively defined.

That's the theory. The practice is that the college rape stormtroopers are directing all the propaganda and prosecution at men. So in that sense the headline is more accurate that your idealized version.

Birkel said...

Why are all those bicycles constantly forcing all those fish to ride them?

Unknown said...

Agree with Rounds; as to the use of "men" vice "accused" I'm guessing (or projecting) that one does not use the same word twice within two sentences unless there is a progression, while the 2nd sentence diverges. There do not appear to be many accurate synonyms for "accused" in this context.

Unknown said...

The "passage" to Twain appears to be like the northwest passage (goes to Gutenberg Project) vice a paragraph or 2.

Mark O said...

It is an insidious form of double jeopardy in which the protections of the Constitution are dulled and the outcome tilted steeply toward finding a violation.

This is Title IX?

Ann Althouse said...

"The "passage" to Twain appears to be like the northwest passage (goes to Gutenberg Project) vice a paragraph or 2."

I changed the link to get you right to Chapter L.

(Yes, it's "Chapter L"… the Roman numeral.)

rhhardin said...

News reports after a crime always say that the suspect got away.

rhhardin said...

The moon rises more slowly than the sun. It's a whole day late after a month.

Lucid said...

The article points out that the colleges are being forced to pursue these practices through the U.S. Department of Education’s Office for Civil Rights (OCR).

I don't believe there's a law that called for this. It seems to be just an overreach by the bureaucracy, acting like mafia don where there are always strings attached to taking his money.

On the other hand, it's leading students to consider options to the traditional colleges with their leftist slant. This situation hopefully solve itself in a few years.

rhhardin said...

Men no longer care how rape is defined, just as whites no longer care how racism is defined.

The word is dead.

Chuck said...

Althouse, setting aside all of your niffnawing over terms and rhetoric, can we just get you to own up to the fact that the Obama Department of Education Office of Civil Rights has politicized higher education in a way heretofore unseen? There is very little about the extent of the recent controversies that is cultural, or concerned with any sort of sociological news. It is all about Democrats pandering for female votes with a federal-funding cudgel.

You voted for the guy. Discuss.

Anonymous said...

"Accused College Rapists Have Rights, Too/The victims deserve justice. The men deserve due process."

"College Students Accused Of Rape Have Rights, Too/The accusers deserve justice. The accused deserve due process."

tim in vermont said...

Well, the Magna Carta will be 800 years old next year!

Time for something new!

MadisonMan said...

It seems to be just an overreach by the bureaucracy

Bureaucracies will always overreach. This is because the worker in the bureaucracy have to find work to justify their paycheck and benefits.

tim in vermont said...

What rhardin said.

I have always forsworn "rape rape." But apparently, due to an early incident with some pot brownies and a bottle of wine, I am a rapist. Just not a "rapist rapist," which is fine with me.

tim in vermont said...
This comment has been removed by the author.
William said...

Black people in America aren't particularly bothered by the endurance of chattel slavery in Mauretania. Feminists in America aren't particularly bothered by the rapes and beatings of under aged girls in Rotherham.

Jupiter said...

William said...
Black people in America aren't particularly bothered by the endurance of chattel slavery in Mauretania. Feminists in America aren't particularly bothered by the rapes and beatings of under aged girls in Rotherham.

And neither feminists nor Muslims are bothered by the slave markets in Northern Iraq, where young women whose families have been murdered by Muslims are sold as sex slaves to Muslim men.

HoodlumDoodlum said...

SMGalbraith said..The predominant problem on campuses is men raping women not women raping men or same sex rape.

The solutions being offered are egregious and unacceptable


Who says that's the predominant problem? The authorities expanded the definion of rape and sexual assualt. Using the new definions there is an epidemic of unpunished sexual assualts committed by women. Is that not a problem? It seems like you're taking the understandable step of ignoring the actual rules because you find the result absurd. But this you cannot do! The concept of "rule of law" does not allow you to arbitrarily decide when to follow the rule and when to ignore it. Basic intellectual honesty requires you to either change the rules/definitions or follow their plain meaning and acknowledge the consequences thereof.

Relatedly, which solutions specifically do you find egregious and unacceptable? Please clearly define the problem and then list the proposed solutions you find unacceptable.

Rob said...

Darn right women commit rape too. Remember, someone who's drunk is unable to give consent. Accordingly, all those women who had sex with drunken frat boys were rapists.

Real American said...

how about the dichotomy between "victim" and "accused"? "Victim" presumes that the (yeah, usually a female) was actually a victim of something (other than her own poor decision-making.) If you're going to go with "accused" then you need to go with "accuser." Otherwise, the sense of fairness by using "accused" goes away.

broomhandle said...

"Men no longer care how rape is defined, just as whites no longer care how racism is defined"

Exactly. I feel bad for the victims of the witch-finders but their sacrifice will not be in vain. Liberalism is beating itself to death with a rubber chicken.

damikesc said...

Why a presumption of innocence? It's a little scary to hear a law professor bemoan that pesky presumption of innocence thing.

Are you aware that, given the college definition of rape, men and women are "rapists" at fairly close numbers?

The predominant problem on campuses is men raping women not women raping men or same sex rape.

The predominant problem is that binge drinking leads to people making poor decisions and poor decisions aren't actually crimes.

Read up on these cases. In no rational world is what happened "rape".

You don't have concerns that colleges claim higher rape rates than any city in the US?

Lawyers could make killings suing universities out of existence due to rampant violations of Title IX. Even the government telling them to do so doesn't actually excuse it.

mikee said...

I have a daughter attending university. If the "1 in 5" claim about rape were true, two things would also happen:

1. She'd have noticed it.

2. I'd follow her around campus with a shotgun.

The Big Lie technique only works when the lie cannot be confirmed as false.

Brando said...

I give the author credit for honesty in acknowledging that this latest push is really going to mean more men railroaded (if you think a lot of women are going to jail over this then you're fooling yourself) and also for sticking up for the accused in what is sadly a minority opinion among the hysterical who are driving this debate for the Left.

Todd said...

mikee said...
I have a daughter attending university. If the "1 in 5" claim about rape were true, two things would also happen:

1. She'd have noticed it.

2. I'd follow her around campus with a shotgun.

The Big Lie technique only works when the lie cannot be confirmed as false.

10/13/14, 12:33 PM


I'll do you one better! All women attending college that are 21 or older, should apply for concealed carry permits and then sue the college to allow them to carry on campus. Based on the "1 in 5" stat, how could any college refuse? They are clearly NOT protecting these women!

Michael K said...

"I have a daughter attending university. If the "1 in 5" claim about rape were true, two things would also happen:

1. She'd have noticed it."

Mine graduated last year. No evidence of anything but too much drunkenness. She did call the cops when a guy she knew was beating up his (live-in) girlfriend. They were not students but friends from work. She was working as a waitress and going to school full-time.

Peter said...

"Bureaucracies will always overreach. This is because the worker in the bureaucracy have to find work to justify their paycheck and benefits."

Bureaucracies also overreach because they focus single-mindedly on a narrowly defined mission. Unintended collateral damage is almost inevitable if/when the metrics used to determine how well the bureaucracy is doing (and the rewards for those working within it) consider only the mission and not the damage.

In this case, a problem has been defined as "college men rape women," and thus denying the accused due process and lowering standards of evidence and proof may very well catch at least a few more men who are, in fact, guilty. Mission accomplished!

The mission is defined as "protecting women," not "protecting the rights of the accused!" Therefore any costs to the accused need not be considered.

Ann Althouse said...

"Althouse, setting aside all of your niffnawing over terms and rhetoric, can we just get you to own up to the fact that the Obama Department of Education Office of Civil Rights has politicized higher education in a way heretofore unseen? There is very little about the extent of the recent controversies that is cultural, or concerned with any sort of sociological news. It is all about Democrats pandering for female votes with a federal-funding cudgel. You voted for the guy. Discuss."

The word "niffnaw" is not in the OED, however, it seems related to "niff-naff," which is:

Chiefly Sc., Eng. regional (north.), and Irish English (north.).

intr. To trifle, mess around; to act aimlessly or foolishly.

1728 A. Ramsay There's my Thumb iii, in Poems II. 124 Oh my dear Lassie, it is but Daffin To had thy Woer up ay niff naffin.

1815 J. Ruickbie Poems 97 Some toil'd for meal, an' some for maut, While some were just niff-naffin'.

1894 R. O. Heslop Northumberland Words at Niffnaff, He niffnaffed on at the job.

1945 C. H. Ward-Jackson R.A.F. Slang made Easy 45 Niff-naff, don't, stop fussing and get cracking.

1953 M. Traynor Eng. Dial. Donegal 197 Niff-naff,..to trifle; to potter about; to act foolishly or aimlessly. Nyiff-nyaffin' about the house.

campy said...

"Althouse, [...] can we just get you to own up ..."

I guess that's a "no."

Gabriel said...

Ann, your citation of Twain is out of context.

In the full passage, the murdere is acknowledged by all to be guilty, and the "due process" is just an excuse to let him off without punishment, because the murder victim was black and the murderer's peers did not think the murderer should be punished.

Only the captain wants to see justice done, and is willing to violate the fake due process to do it.

Gabriel said...

The missing context:

A week after this, while Noakes was carousing with a sailor crowd on shore, at noonday, Capt. Ned's colored mate came along, and Noakes tried to pick a quarrel with him. The negro evaded the trap, and tried to get away. Noakes followed him up; the negro began to run; Noakes fired on him with a revolver and killed him. Half a dozen sea-captains witnessed the whole affair. Noakes retreated to the small after-cabin of his ship, with two other bullies, and gave out that death would be the portion of any man that intruded there...

The court assembled with due ceremony, empaneled a jury, and presently Capt. Ned entered, leading the prisoner with one hand and carrying a Bible and a rope in the other. He seated himself by the side of his captive and told the court to "up anchor and make sail." Then he turned a searching eye on the jury, and detected Noakes's friends, the two bullies.

He strode over and said to them confidentially:

"You're here to interfere, you see. Now you vote right, do you hear?--or else there'll be a double-barreled inquest here when this trial's off, and your remainders will go home in a couple of baskets."

The caution was not without fruit. The jury was a unit--the verdict. "Guilty."


Why did the captains--who witnessed the murder--put the murderer's buddies on the jury? Because "due process" was a sham.

Saint Croix said...

Here's a crime hypothetical.

Mike and Jane are having sex. Both are intoxicated. Both are enjoying themselves.

Suddenly Jane reaches around Mike and sticks her finger up his rectum.

Mike freaks out. He jumps out of bed. "What the hell are you doing?" he shouts. "Oh my God, you assaulted me."

Mike goes to the police and files a complaint. The officers take his statement. "I did not consent to that. She inserted her digit into my orifice. She assaulted me." Mike is visibly upset. He is pacing back and forth. The officers conclude that his anger is genuine.

The officers question Jane. She, too, is upset. "This is crazy. He wanted to have sex with me. It was his apartment. I thought he would like it. My old boyfriend liked it. As soon as he complained, I stopped."

The officers ask her if she obtained consent first. "Well, he consented to sex. We both consented to sex. We were naked and having sex. This is just a miscommunication. I don't know why he's so angry. I mean, this is absurd."

The officers get specific. "Did you ask him before you put your finger up his rectum?"

Jane refuses to answer this. She asks for a lawyer.

The traditional rape statute defined the crime like this. "Rape is when a man forces a woman to engage in sexual relations against her will."

Two years ago the legislature approved a new sexual assault statute to replace the old definition. Under the new law, rape is defined as "any sexual act without the consent of the other party."

Betty Ross, the D.A., just finished prosecuting a 23-year-old female teacher for statutory rape for having sex with a 17-year-old boy. She is determined to apply this new rape statute fairly to both genders. Since there was not consent, she prosecutes Jane for the crime of rape in the first degree, punishable by 40 years in prison.

You are on the jury. How do you vote? And why do you vote that way?

Michael said...

St Croix

I would vote to indict the prosecutor, to convict the woman, exonerate the man and award him a one year exemption from prostate exams.

damikesc said...

Thing is, things like California's rules for college, make a defense against rape impossible. Nobody acts the way the law requires you to act.

Ann Althouse said...

"In the full passage, the murdere is acknowledged by all to be guilty, and the "due process" is just an excuse to let him off without punishment, because the murder victim was black and the murderer's peers did not think the murderer should be punished."

I linked to the whole passage, and I invite all to read it. It is much more complicated that the part I put up.

Saint Croix said...

What crime do you think Jane committed? And if she's a criminal why are you indicting the prosecutor?

Prostate exam is funny.

Michael said...

St. Croix: woman guilty of the new definition of rape. prosecutor guilty of being an asshole and prosecuting a stupid new law based on a bogus definition.

Saint Croix said...

I would vote to acquit. Jury nullification. No way in hell would I send her to prison.

Douglas said...

Michael K said: "I hope enough parents sue the shit out of universities the way the parents did with Duke over the lacrosse team case." Alas, the universities seem to have made the rational decision that it's better to lose a few cases to male students who were railroaded by campus kangaroo courts than it would be to lose federal funding.

Saint Croix said...

I probably wouldn't convict that teacher either.

If feminism really wants to protect the males, you might start by prosecuting the women who make false rape claims. That's a serious problem.

Joe said...

The solution for men is simple; tell the woman that if the two of you are going to have sex she must agreed to film the encounter ON CAMERA.

Bob said...

"You are on the jury. How do you vote? And why do you vote that way?"

First, I want to know if Jane tried to wash her hands of the whole matter and was thus guilty of Obstruction of Justice for destroying evidence.

Achilles said...

Michael said...
"St. Croix: woman guilty of the new definition of rape. prosecutor guilty of being an asshole and prosecuting a stupid new law based on a bogus definition."

If the law can't be enforced evenly then it should be removed. Prosecutorial discretion leads to favoritism and a general lack of justice. Corzine is not going to jail but Madoff is. David Gregory is not going to jail while several veterans passing through with AR mags did.

Saint Croix said...

First, I want to know if Jane tried to wash her hands of the whole matter and was thus guilty of Obstruction of Justice for destroying evidence.

LOL Bob.

Saint Croix said...

If the law can't be enforced evenly then it should be removed.

Juries won't convict on stuff like this and prosecutors know it, which is why they don't even try to prosecute date rape stuff when there's no evidence of violent assault. People who are alleging rape are doing so in university kangaroo "courts".

Feminism--which dominates the universities--has had a lot of real world success in re-defining rape into a crime of non-violence. My hypo is based on this Washington Post story.

The big problem is not stripping gender out of our rape statutes. Feminists are right on that. Even though the overwhelming number of rapists are men, we should not say so in our criminal laws.

The big problem is stripping out the word "force." Jed Rubenfeld, a Yale law professor, caused a shitstorm among feminists by publishing this law review article. Here is the New Republic on the shitstorm.

I think Rubenfeld makes some excellent points. Defining rape as a non-violent crime is a huge mistake. It's causing a lot of anguish in both men and women, who are largely innocent men and women (albeit drunk men and women). There can be a huge number of misunderstandings if rape is simply "I didn't want to do that." In my opinion feminism has had way too little regard for the false claim of rape, or what it's like to be falsely accused of the crime. And removing "force" from legal definitions while you announce that rape is a "crime of violence" is simply dishonest.