On Bad Critiques of Rape Prevelance Studies (Part I)

Michael Ezra of Harry's Place has a post up critiquing some of the literature regarding the prevalence of rape in our society. The immediate hook is some quotes by Eve Ensler at a recent talk, but the post quickly segues into an attack on the famous Mary Koss study which claimed that 1 in 4 college women surveyed have experienced rape and/or attempted rape at some point in their life. Contrary to Ezra's claim and popular belief, Koss did not originally publish this claim for Ms. Magazine, but in a peer-reviewed journal (Sexual experiences survey: A research instrument investigating sexual aggression and victimization, 50 The Journal of Consulting and Clinical Psychology 455 (1982)). Ms. Magazine helped support a national follow-up study, but that too was peer-reviewed and eventually published at 55 The Journal of Consulting and Clinical Psychology 162 (1987).

Anyway, that's the least substantive of my problems, which can be grouped into two major categories (sufficiently disjointed that I'm writing this as two separate posts). The first, which I'll focus on here, is that Ezra and his colleagues forward an unduly ossified conception of what "rape" is, when (as his own post makes clear) the contours of rape have been historical extremely variable and contested. In the subsequent post, I'll take issue with the weight Ezra puts on the fact that many of the women whom Koss claims were raped do not adopt that label to describe their own experience.

Ezra opens with a methodological objection that purports to demonstrate that Koss' questions improperly categorized as "rape" ambiguous or even clearly non-rape behaviors:

Neil Gilbert (“Realities and Mythologies of Rape” [subscription required] Society, May/June 1992 pp.4-10) commented on the questions that were included in the survey. As well as those that referred to the threat or use of “some degree of physical force,” there were the following two questions:

Have you had a man attempt sexual intercourse (get on top of you, attempt to insert his penis) when you didn’t want to by giving you alcohol or drugs, but intercourse did not occur?

Have you had sexual intercourse when you didn’t want to because a man gave you alcohol or drugs?

Gilbert declared:

Forty-four percent of all the women identified as victims of rape and attempted rape in the previous year were so labeled because they responded positively to these awkward and vaguely worded questions. What does having sex “because” a man gives you drugs or alcohol signify? A positive response does not indicate whether duress, intoxication, force, or the threat of force were present; whether the woman’s judgment or control were substantially impaired; or whether the man purposely got the woman drunk to prevent her from resisting his sexual advances. It could mean that a woman was trading sex for drugs or that a few drinks lowered the respondent’s inhibitions and she consented to an act she later regretted. Koss assumes that a positive answer signifies the respondent engaged in sexual intercourse against her will because she was intoxicated to the point of being unable to deny consent (and that the man had administered the alcohol for this purpose). While the item could have been clearly worded to denote “intentional incapacitation of the victim,” as the question stands it would require a mind reader to detect whether an affirmative response corresponds to a legal definition of rape.

This is a very bizarre objection, on a couple of levels. First, note the claim that Koss needs to tailor her questions so they match the "legal definition of rape". This implies that there is (a) a single, unified legal definition of what rape is and (b) that neither Koss, nor anyone else, has the right to contest that definition or provide a counterdefinition. The former is false, the latter ridiculous.

Rape, both legally and in terms of public conception, has had a diverse array of definitions over the years and across societies. Ezra, of course, implicitly concedes this insofar as he nutpicks a few radical feminists with exceptionally broad conceptions of rape as examples of how ridiculous the whole field is. But even putting them aside, it's obviously the case that there are and have been different legal definitions of rape. For example, there is divergence in whether the victim must physically resist the rapist for it to be rape and, if so, what degree of resistance was required (some only required any amount of resistance, other states, notably Louisiana, require that the victim resist "to the utmost"). Whether spousal rape even exists has legally been in flux, with the consensus in favor only being established towards the end of the 20th century. There remains dispute, unfortunately, as to whether consent can be withdrawn -- that is, whether rape can occur if penetrative sex begins but does not cease if one of the party's withdraws their consent mid-coitus. Hence, actions which are rape in one jurisdiction might not be in another; Ezra and Gilbert are proffering an impossible demand if they expect Koss to be able to unify these by-design divergent threads.

But even if the definition was unified, there is no reason why Koss must defer to it. Many jurisdiction's have hideous definitions of what rape is, and Koss would be quite within her rights to define rape more expansively than they do. For example, at the time of her study, not all states had abolished the exemption for marital rape (North Carolina was the last to do so, in 1993). Should Koss have included a question asking her respondents to check off if any of the potentially-rape acts were committed by their spouse? Why? I imagine Koss thinks, and I agree, that for purposes of social science research we should label such acts rape regardless of whether the state defines it so or not.

I can't access Koss' study myself, so I don't know if she forwards a specific definition of rape. My rough-and-ready definition is that rape is when a person engages in a penetrative sexual act without consent (and sexual assault is when a person engages in any sort of sexual act without consent). That's a reasonable enough definition, in my view, albeit more expansive than many state definitions (it also locates nearly all of the action at the question of "consent" -- most of the radical feminists Ezra derides claim, incorrectly in my view, that various aspects of patriarchy make meaningful consent usually or always impossible in heterosexual encounters. That claim may be wrong, but I don't think it argues against the claim that consent is the sine qua non of what is and isn't rape). It may be one pole of the debate (the other being, as one wag noted, rape being only "forcibly raping a baby who wasn't too much of a slut."), but it's one I'm willing to defend, in contrast to the "middle ground" which adds in requirements of physical coercion, unmarriedness, virginity, or what-have-you.

Ironically, the specific objection Ezra and Gilbert raise "that the man had administered the alcohol for this purpose [of rendering the woman incapable of granting consent]" corresponds to no legal definition of rape that I'm aware of -- at least, of those for whom intercourse with a woman too intoxicated to give consent would count as rape. If a woman is in a position where she is incapable of granting consent due to intoxication, not only does it not matter if the man intended for her to get that way, it doesn't matter if he played any role whatsoever in intoxicating her -- a man who randomly stumbles across a woman too intoxicated to consent and sleeps with her anyway strikes me as a very easy case for conviction, and I think it would be in most jurisdictions.

Finally, with respect to the "legalization" of this discussion, it's also worth noting that it's perfectly consistent to have different standards for what rape is from the perspective of answering "was this woman raped" and "should we impose criminal liability on the accused"? Mistake-of-fact defenses, where we believe both that the woman did not consent to sexual activity, but the man reasonably believed that she did, are an example where many people would be willing to simultaneously say that the woman was raped but that the man shouldn't be punished. Not everyone, and not always (we don't admit a mistake-of-fact defense in statutory rape cases, for instance, and there are some who would extend that to all rape prosecutions and would suggest that sexual partners always be sure to gain active consent before any encounter), but the distinction itself is coherent. Law -- criminal and civil -- isn't capable of correcting or even encompassing every wrong, but that doesn't mean law ought exhaust our moral vocabulary.

Anyway, assuming Koss' definition of rape roughly tracks my own, and is intended not to focus on the perpetrators (how many men should we punish as rapists?) but on the victims (how many women have experienced what is properly termed rape?), the challenged questions seem perfectly appropriate. Koss seems invested in the notion that sex is only legitimate when all parties involved wish to have sex -- hardly a morally shocking claim or indicative of academic malpractice. By contrast, Ezra and Gilbert both falsely posit a legal unity to the definition of rape (one whose contours are vague but seems, in important respects, far narrower than that extant in many if not most legal jurisdictions), then demand that it colonize the entire field such that no researcher or advocate can ever challenge it. That's a bad critique.

UPDATE: Part II is now available here.