George Will and the Price of Ignorance

Posted in: Criminal Law

George Will published quite the column this week in the Washington Post, where he belittled a Swarthmore rape victim, implied that college women are responsible for their rapes, and charged “progressivism” with making rape a “coveted status.” He has and will receive all that he is due from victims, their families, and their advocates, but at base, his column reeks of ignorance, and for that the Washington Post should apologize.

Mr. Will is known for his natty bowties and glasses, his conservative views on government, and his mild, patrician manner. He is a devoted student of baseball. Unfortunately, he is no student of the long-studied and widely reported phenomenon of rape. Nor does he need to be—unless he is going to write about it.

Rape is not just a campus problem; it is a nationwide problem. According to RAINN, there are on average just shy of a quarter million (age 12 or older) rapes and sexual assaults each year in this nation. Will’s thoughtless jibes at college victims thus likely went well beyond his intended targets.

Even before the Boston Globe’s 2001 coverage of the Boston Archdiocese’s cover up of child sex abuse directed our attention to the ways in which institutions devalue reports of rape by employees, there was a burgeoning body of literature on the effects of rape, the difficulties victims face coming forward, and the ways in which the legal system had re-vicitimized rape victims. That body of knowledge, along with the gutsy voices of the victims, is changing the way rape is handled and educating the public on the truth. Here are three examples.

The System Too Often Grants the Rapist “Coveted Status” by Failing to Understand the Neurobiological Effects on the Rape Victim

First, blaming the victim is no longer acceptable. There was a time when a rape victim would not report a rape because the justice system would put her on trial for her sexual history, instead of focusing on whether she had given consent to the specific acts. The current state of the law makes it harder to put the victim on trial in a rape case. The aggressor is the one facing the judge and jury.

While there is widespread agreement on this principle among those knowledgeable about rape facts, the system is still not very successful in identifying and punishing the aggressors. George Will apparently does not know or understand the powerful and often determinative role that gatekeepers play in the system. Case attrition is a major problem in sexual assault cases: while 40 percent of cases are reported to the police, only ten percent are referred to prosecutors and lead to an arrest, eight percent are prosecuted, four percent are convicted, and three percent serve jail time. Thus, only three percent even serve a single day in jail. On these statistics, Will has assigned “coveted status” to the wrong person in the rapist-victim scenario.

What is behind these sad statistics? Science, specifically neurobiology. Due to the neurological and hormonal effects that violent trauma has on a person, sexual assault victims recall events in a way that is not strictly chronological, with memory tying events to senses like smell, for example. Sexual assault can even result in what is called “tonic immobility,” i.e. rape-induced freezing. Due to their inability to recall and describe events in a traditional linear narrative, or their apparent lack of “fighting back,” victims face police and district attorneys (and columnists) who do not believe them. Like Will, these skeptics are vocal about their disbelief, tell victims what happened was not serious enough, or ask victims what they were wearing or how much they had to drink, thus actively discouraging victims from reporting, let alone pressing charges. Police readily admit this as well—they find the stories disjointed and victim behavior to be unlike how a person “should” act if they are telling the truth under traditional interrogation techniques. Victims often justifiably feel like the system is protecting the rapist, and ignoring them.

For victims these encounters are an example of “secondary victimization,” which causes severe trauma a second time over the same set of events. Most victims say their first interaction with police was traumatic and left them unlikely to continue the reporting process. Thus, the police can merely write “complainant refused to prosecute” and the case is closed.

Training gatekeepers and the public to understand the neurobiology and recognize the way sexual assault victims actually process their experience is a must. Some forward-thinking jurisdictions are already working to implement these reforms, including streamlining the process, including victim advocates in discussions, as well as implementing various gate-keeper training programs and outreach. It would be a good idea for George Will to sit in on one of those training sessions before he decides to opine on the topic again.

Consent Is Required for Sex Not to Be Rape

Second, consent is required. “Marital rape” was once a non-sequitor. No more. The assumption was that if a couple was married, consent to sex was a given. Domestic abuse studies and cases have taught us, however, that for every act of sex, there should be consent, and when the woman says “no,” and the man goes forward anyway, that is a crime—even when they are married. Of course, if they are not married, there can be no assumption of consent, even in the absence of violent force. The woman must consent for the sex not to be rape.

Focusing on the victim’s level of physical resistance as if it were evidence of the perpetrator’s crime is something unheard of in other areas of criminal law. If the woman said “no,” she should be found to have resisted, so the defense of consent should go out the window. Yet many courts do allow a mistake of fact as a defense regarding consent and do not hold that “no means no.” Imagine if prosecutors had to prove that every victim had acted in self-defense as part of proving that the perpetrator committed the crime in order to get a conviction! Until recent legislative reforms that removed the force requirement from rape statutes, this was in fact what happened in most rape trials—“resistance to the utmost” was the standard required to find that force was used, and thus that rape was committed. Not even the “stand your ground” laws go so far as to require that a victim engage in acts of self-defense to prove the crime against the perpetrator, yet the reasoning of many gatekeepers—including judges—and commentators such as Will, imposes such a duty on victims if they are to be “believed” later.

Such reasoning as to sexual assault is outdated, irrational, and often rooted in long-held misogynist perspectives. Consent—or the absence of it—is what should matter here, legally and morally. Mr. Will’s attack on the Swarthmore student who said “no,” but whose attacker still helped himself to her vagina, flies in the face of this now-settled set of principles.

Rape Victims Justifiably Struggle to “Get Over It”

Third, one does not just “get over it.” Will seems to think that the suffering of rape victims is just a bunch of liberal whining. Not so. Rape victims, child or adult, liberal or conservative, are subjected to bodily and psychological invasion. The barriers we confidently assume protect us are transgressed. Will’s column makes abundantly clear that he has never had to doubt his ability to protect his most private parts. Good for him.

For those who are raped, that sense of inviolability has been shattered. That has real consequences for physical and mental health. They aren’t “playing” the victim in an elaborate political game of progressivism vs. conservatism. They are, in fact, scientifically speaking, victims, and the wages are steep, as they are more prone to depression, suicide, substance abuse, and PTSD.

If Will had done his homework before venting his political spleen, he might well have learned that college rape victims often graduate later, suffer a downturn in grades and prospects due to the scientifically documented negative effects, while their perpetrators move on. According to the World Health Organization, victims of sexual assault are three times more likely to suffer from depression; six times more likely to suffer from post-traumatic stress disorder; 13 times more likely to abuse alcohol; 26 times more likely to abuse drugs; and four times more likely to contemplate suicide.

In fact, the Obama Administration’s college studies Will doesn’t like had one very chilling statistic: many of the men who had raped women on campus likely had six or more victims. That’s right—we are dealing with serial rapists, so that one woman’s (or man’s) misery often spreads to others when the system fails to stop the rapist the first time. Further, even when not serial rapists, rapists are likely to be serial criminals—with nearly half going on to commit more crimes within three years—so that the under-prosecution of rapes likely leads to more crime overall.

The coveted status Mr. Will should seek is to be well educated on his chosen topic before he sits down at the computer to write. I have no doubt that he would have closely studied the stats had the topic been baseball. With organizations like NOW calling for his removal, the price of his ignorance may and should extend beyond the ire of the victims he carelessly hurt to his standing as a journalist.

Posted in: Criminal Law

Tags: Legal

  • Jones

    If two intoxicated adults have sex has a crime occurred?

    • Jld33

      Jones, yes, if anyone is to drunk to know what’s going on its rape, whether it be a man or woman. If both people are equally wasted, no. However this is a typical misconception as to what is behind most rapes on campuses. Most rapists are predators who have multiple vicitms. An average of six actually, which means some have many more. They may very well target drunk women, but they are not the guy who had a tipsy hookup and is accused by a regretful woman. The vast majority of woman understand that regret is not rape. And the cops don’t even touch those cases if someone doesn’t remember giving consent…. In most cases there is definite force used or the woman was completely out of it there was no doubt as to the fact that he is victimizing someone. And yet, since the woman usually know their attacker, it if difficult to get anyone to give a damn. So they keep getting away with and keep doing it….

    • froxgirl

      How besides the point can you get? No consent means no. N-O. N-O matter how you try to justify it.

  • David Schmidt

    As an attorney, you should know that the suspects are innocent until proven guilty beyond a reasonable doubt. Therefore simply because there is an allegation, does NOT mean there is a conviction. Having practiced in the criminal law area for several years, there is a huge gap between allegations and realities. Unfortunately, instead of focusing on reality you want to focus on the hype of the allegations. By doing this, you do a disservice to the true victims of sexual assault.

    • froxgirl

      Sure, you’ve practiced in the criminal law arena for several years, so you mansplain to us all that this professor is doing a disservice to the “true” victims. As opposed to the “false” victims? Who is lying about being raped? What are you saying here? I say innocent until it is proven there was no consent: how’s that?

      • David Schmidt

        The reality is that there are always two sides to a story. The suspect may say she consented. If he does, and they have had a sexual relationship for three months, do you really think a jury of 12 people will find that he raped her?
        Furthermore, the “victim’s” story changes. I know first hand of numerous cases in which a woman calls the police claiming man assaults her only to show up later and tell the judge that the officer’s report is full of lies. Of course the officer only took down what the woman told him.
        She said, he said cases are extremely difficult to prove beyond a REASONABLE DOUBT.

        • Clams Cuticle

          I know that these comments are so old but I can’t leave without adding my shock at your ignorance. The article is about when the legal system fails. In other words, this article leaves room for the possibility of incorrect outcomes. You preclude the possibility entirely by arguing that rape is what the legal system says is rape. A good lawyer would recognize this as circular. Additionally, for every “case” of false reporting that you claim to have heard of, I have a friend who was sexually assaulted, harassed, touched inappropriately, or raped without being believed by an administrator or police officer. This article points out that injuries are not provided recourse with the current legal system and that commentary like Will’s makes it harder to resolve that issue. In response to her evidence-based article, you decided to publicly state that women who do not bring or win their cases must be wrong to believe they were injured because the legal system has not told them that they were raped? Because of your personal experience in criminal law and the things you’ve heard about women? And then you had the brilliant idea of putting “reasonable doubt” in all caps as though that would make your point all the more noteworthy. Haha you’re so busted.

          • David Schmidt

            So based upon your logic, accusations are truth. Thankfully, we don’t live an a country with such a legal system. Germany tried in during the 30’s and early 40s. Stalinist Russia did also. I wouldn’t want to live under those regimes.
            Rape is a legal term that the legislature in each state defines. Because we live in a country where the law controls not opinions, it doesn’t matter what you think, it matters what can be proved in court to convince 12 people of the guilt of the defendant. And please remember the criminal defendant is innocent under proven guilty.