It looks like the vote will be close, as a few pledged supporters are now wavering. Nobody seems to know exactly what's changed -- Sam Arora, for instance, pledged his support for the bill (even promised to cosponsor) while he was running, but now has gone mute.
We're so close. A loss at this stage would be devastating.
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Thursday, March 03, 2011
Wednesday, March 02, 2011
On Bad Critiques of Rape Prevelance Studies (Part II)
Earlier, I flagged an article at Harry's Place regarding what the author, Michael Ezra, claimed were bad studies about the prevalence of rape. I didn't focus on Eve Ensler's contributions (though AAB discusses that some here), but on the older Mary Koss study finding that 1 in 3 women surveyed had been victims of rape or attempted rape in their lifetime.
In yesterday's post, I critiqued part of Ezra's argument that Koss' study did not accurately track the true definition of rape. My argument was that (a) the author was positing a single, unified (generally legal) definition of rape that does not exist, (b) that many of the specific alleged shortcomings identified by Ezra themselves do not track any modern definition of rape (e.g., that, in a case where a woman is too intoxicated to consent, the man must have been the person to ply her with alcohol or drugs and done so for the purpose of inhibiting her ability to consent), and (c) that even to the extent that Koss' definition doesn't track all legal variants, it's perfectly permissible for her to advocate her own definition of what rape is and measure accordingly.
In today's post, I want to turn to a very different argument Ezra made: the claim that many of the women surveyed whose experiences were coded as "rape" do not, themselves, characterize what happened to them that way. Again, quoting Gilbert, Ezra writes:
There is obviously something to the notion that we should respect how women characterize their own experience, and should be appropriately skittish about labeling something rape when the alleged victim rejects that terminology. I recognize that, and thus consider this a more substantial critique than the claim of dissonance between Koss' definition and the (mythically-united) legal one.
Nonetheless, there are important limits to this proposition. For starters, to the extent we have some "easy cases" of when something is rape (i.e., ones in which there is considerable overlapping consensus that the event in question is rape), I think we are fair to give the act that label even if the victim herself wouldn't. Imagine the following spousal rape hypothetical, where the victim describes what happened in the following manner:
But when asked whether her husband raped her, the woman responds:
This is a pretty clear-cut spousal rape case. And assuming we do have a consensus that the marital rape exemption is bogus, I think we're right to label the act rape irrespective of the victim's self-description.
But obviously, many cases are hardly that clear-cut, and the problem is less a (mistaken) definition of what rape "is", and more about how people interpret ambiguous facts about (for example) what constitutes consent.
In discussions of rape, I think as a society we still have yet to fully emerge from Matthew Hale's famous claim that "rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho' never so innocent." I am exceptionally dubious that this was ever true, much less true now. The instinct seems related to a larger claim about the supposed ease of claiming victimhood. When something bad happens to you, the easiest thing to do is blame someone else, rather than own up to personal responsibility. In the public discourse about rape, this is operationalized as the belief that women who have sexual experiences that they consented to do but later regret retroactively label those experiences "rape". The assumption, following from Hale, is that (compared to the difficulty of admitting one simply made a bad decision), "rape is an accusation easily to be made". It's a cheap out for avoiding personal responsibility.
The idea that crying victim is common resonates with us because I think everybody knows somebody who we feel behaves this way: always blaming the world for his ails, never looking to himself. But what we forget is that we don't like those people. If the supposed benefits of crying victim is gaining public sympathy and avoiding stigma as the sort of person who makes stupid decisions, it tends to fail utterly. And I think that, if we're honest with ourselves, we'd admit that our distaste for this sort of behavior is strong enough that even in factually ambiguous situations, we're loathe to have much sympathy for the complainer. Bad things happen to everyone, but we take our lumps, and we focus on the things we could have done to avoid the harm so it doesn't happen again, rather than passively bemoan the cruel world which besot us with such travails.
In short, for most people and in most cases I think the conventional wisdom has it precisely backwards. There are massive harms associated with claiming to be a victim (both in terms of internal self-evaluation and interpersonal treatment); the path of least resistance is "lumping it", of characterizing the event as an unfortunate happenstance, perhaps, but certainly not rape. There's a good analogy to discrimination claims, which labor under a similar presumption of frivolous victim-claiming. There, too, the research seems to indicate that frivolous complaints are less of a problem than a systematic hesitation -- on the part of both potential victims and fact-finders -- to label anything discrimination. The net result is that we underestimate the degree to which people with legitimate complaints choose not to view them that way, and consequently overestimate the degree to which the claims that are made are just sour grapes:
There is a significant analogue in rape cases, which incorporate many similar concerns. As in discrimination cases, the prevailing narrative about rape accusations being "easily made" means that many woman undoubtedly have internalized the belief that the only sort of person who makes a rape claim (at least, outside certain exceptionally outrageous fact patterns) is the slut who can't own up to the consequences of her own choices. Consciously refusing to define the event as rape enables one to reestablish agency over the situation, maintaining control of the future process as well as preserving a self-image as a person in control of their own destiny.
There are other reasons why potential rape victims have a strong incentive not to view the relevant act as rape but rather, attributable to their own choices. In prior work on the subject, I've made reference to the Just World theory, a cognitive bias by which persons systematically try to interpret events so as to confirm a belief that the world is fair and just. One prominent manifestation of this bias is that, when presented with injustice that an observer is unable to prevent, the observer is far more likely to blame the victim. For example, researchers ran an experiment where a "learner" was given harsh electric shocks for giving wrong answers to academic questions. The research subjects both observed this happening, but one group was made simply to watch, while the other was given the option to end the shocks at any time. The latter set nearly invariably elected to do so and then described the shocking as immoral. The former group (which was unable to stop the shocks) was far more likely to consider the victim to be to blame for her maltreatment.
Why does this phenomenom exist, and what relevance does it have to rape? One of the reasons we believe in a just world is because we want to believe that if we behave correctly, good things will happen to us (or at the very least, bad things won't). Hence, when something bad does happen, it makes sense for us to (if at all possible) interpret it as our own fault. Why? Because if it stems from something we did wrong, then it's something we can fix (from a rationalist perspective, it makes good sense for us to overestimate how much our own actions influence our destiny). The alternative, that it doesn't matter, that you can do everything right and still be raped, is too scary to contemplate. So we shut out that interpretation, and replace it with one in which I did something bad. And if I'm to blame, then I wasn't raped, for rape is something that occurs to the blameless.
I've read many accounts by women who have, belatedly, determined that they were subject to rape but -- in the confused aftermath -- had slept with their rapist again. It is very consistent with this claim of cognitive rationalization by which the event is sanitized in their own mind, restoring their own sense of control and agency. It's part of the process of normalization, of reassuring oneself that nothing bad happened, nothing out of the ordinary happened, that there's no reason not to have sex with this person again. By choosing to have sex with the man the second time, one retroactively affirms that one chose it the first time, and by doing that, one extracts oneself from the status of passive, helpless victim, and back into the realm of a controlled, active agent.
So to sum up, there are many reasons why we should expect women who have been subjected to acts legitimately termed "rape" to not label their experience that way. First, there may simply be disagreement over what counts as rape, as in the case of people who believe that marriage creates irrevocable blanket consent to sex, and we can thus simply claim that some conclusions are wrong no matter who is promulgating them. Second, identifying oneself as a rape victim clashes with important aspects of most people's self-identity -- in the popular lexicon, it forces them to admit that they are vulnerable and that they weren't in control, and then forces them to exacerbate that lack of control by placing their experience into the public eye and open themselves to judgment. Third, people are well aware of the fact that most people don't like those who complain about anything, and thus have a strong incentive to not come off as a whiner, even when they have a very real and legitimate grievance. Fourth, reinterpreting the events in question as being one's own fault is cognitively more soothing than the alternative -- a brutal, capricious world where bad things happen to good people and you can be a perfectly good citizen and still be raped.
For those reasons, I think there is ample room for divergence between our measurement of how prevalent rape is, and how individual victims characterize their own experience.
In yesterday's post, I critiqued part of Ezra's argument that Koss' study did not accurately track the true definition of rape. My argument was that (a) the author was positing a single, unified (generally legal) definition of rape that does not exist, (b) that many of the specific alleged shortcomings identified by Ezra themselves do not track any modern definition of rape (e.g., that, in a case where a woman is too intoxicated to consent, the man must have been the person to ply her with alcohol or drugs and done so for the purpose of inhibiting her ability to consent), and (c) that even to the extent that Koss' definition doesn't track all legal variants, it's perfectly permissible for her to advocate her own definition of what rape is and measure accordingly.
In today's post, I want to turn to a very different argument Ezra made: the claim that many of the women surveyed whose experiences were coded as "rape" do not, themselves, characterize what happened to them that way. Again, quoting Gilbert, Ezra writes:
When asked directly, 73 percent of the students whom Koss categorized as victims of rape did not think that they had been raped. This discrepancy is underscored by the subsequent behavior of a high proportion of identified victims, forty-two percent of whom had sex again with the man who supposedly raped them. Of those categorized as victims of attempted rape, 35 percent later had sex with their purported offender.
There is obviously something to the notion that we should respect how women characterize their own experience, and should be appropriately skittish about labeling something rape when the alleged victim rejects that terminology. I recognize that, and thus consider this a more substantial critique than the claim of dissonance between Koss' definition and the (mythically-united) legal one.
Nonetheless, there are important limits to this proposition. For starters, to the extent we have some "easy cases" of when something is rape (i.e., ones in which there is considerable overlapping consensus that the event in question is rape), I think we are fair to give the act that label even if the victim herself wouldn't. Imagine the following spousal rape hypothetical, where the victim describes what happened in the following manner:
I was in bed with my husband, about to fall asleep, when he climbed on top of me and tried to enter me. I told him I didn't want to have sex and tried to push him off, but he ignored me and kept thrusting.
But when asked whether her husband raped her, the woman responds:
Oh, no. I wish he hadn't done it -- I wish he had listened when I told him no, and I hate when he forces himself on me -- but ultimately, we're married, and it's his prerogative to have sex with me at his discretion.
This is a pretty clear-cut spousal rape case. And assuming we do have a consensus that the marital rape exemption is bogus, I think we're right to label the act rape irrespective of the victim's self-description.
But obviously, many cases are hardly that clear-cut, and the problem is less a (mistaken) definition of what rape "is", and more about how people interpret ambiguous facts about (for example) what constitutes consent.
In discussions of rape, I think as a society we still have yet to fully emerge from Matthew Hale's famous claim that "rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho' never so innocent." I am exceptionally dubious that this was ever true, much less true now. The instinct seems related to a larger claim about the supposed ease of claiming victimhood. When something bad happens to you, the easiest thing to do is blame someone else, rather than own up to personal responsibility. In the public discourse about rape, this is operationalized as the belief that women who have sexual experiences that they consented to do but later regret retroactively label those experiences "rape". The assumption, following from Hale, is that (compared to the difficulty of admitting one simply made a bad decision), "rape is an accusation easily to be made". It's a cheap out for avoiding personal responsibility.
The idea that crying victim is common resonates with us because I think everybody knows somebody who we feel behaves this way: always blaming the world for his ails, never looking to himself. But what we forget is that we don't like those people. If the supposed benefits of crying victim is gaining public sympathy and avoiding stigma as the sort of person who makes stupid decisions, it tends to fail utterly. And I think that, if we're honest with ourselves, we'd admit that our distaste for this sort of behavior is strong enough that even in factually ambiguous situations, we're loathe to have much sympathy for the complainer. Bad things happen to everyone, but we take our lumps, and we focus on the things we could have done to avoid the harm so it doesn't happen again, rather than passively bemoan the cruel world which besot us with such travails.
In short, for most people and in most cases I think the conventional wisdom has it precisely backwards. There are massive harms associated with claiming to be a victim (both in terms of internal self-evaluation and interpersonal treatment); the path of least resistance is "lumping it", of characterizing the event as an unfortunate happenstance, perhaps, but certainly not rape. There's a good analogy to discrimination claims, which labor under a similar presumption of frivolous victim-claiming. There, too, the research seems to indicate that frivolous complaints are less of a problem than a systematic hesitation -- on the part of both potential victims and fact-finders -- to label anything discrimination. The net result is that we underestimate the degree to which people with legitimate complaints choose not to view them that way, and consequently overestimate the degree to which the claims that are made are just sour grapes:
[A]ccording to one study, two-thirds of white women and members of minorities who report they have experienced discrimination on the job refrain from complaining to any third party, including legal officials, despite their rights under the laws against discrimination. Kristin Bumiller’s study of discrimination victims who do not sue concludes that they perceive the high costs of complaining and the real benefits [of] ‘lumping it,’ or absorbing the injury without complaint. Her interviews show that complaining through the civil rights laws means accepting the role of victim, which is itself demeaning and also ‘transforms the conflict into an internal contest to reconcile a positive self-image with the image of oneself as a powerless and defeated victim.’ In addition, complaining forces the individual into a visible role and, paradoxically, demands the differential treatment of public attention and dispute because of allegations of differential treatment. A new label, ‘troublemaker,’ also carries negative consequences for the individual. And besides risking a painful reconstruction of the discrimination event before an agency or court, the potential complainant may fear that the process will be unavailing. Other people may fail to confirm the story, or the legal system will prove unresponsive; meanwhile, the individual loses control over the incident and the process. There are special costs involved in hoping and then losing, costs that may even be more painful than never hoping at all.
Besides avoiding the negative consequences of complaining, people may discover direct benefits from enduring discrimination without complaint. Members of minority groups, especially minority women, come to expect discrimination as inevitable and may find an opportunity to exercise strength and pride in surviving without confrontation. The very act of submission may be an expression of autonomy and dignity precisely because it is a chosen response. Similarly, in her study of a religious Baptist town in Georgia, anthropologist Carol Greenhouse found women who tended to internalize conflicts within their families, coming to terms with such conflicts by refining their own roles and by focusing on their spiritual identities. Although this solution may work for some, it suggests complex reasons why people refrain from using the avenues of relief that law makes available. Most important, individual decisions to swallow injury fail to alter sources of hurt or discrimination, leaving those who cause harm undisturbed." (Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell UP: 1991), 92-93)
There is a significant analogue in rape cases, which incorporate many similar concerns. As in discrimination cases, the prevailing narrative about rape accusations being "easily made" means that many woman undoubtedly have internalized the belief that the only sort of person who makes a rape claim (at least, outside certain exceptionally outrageous fact patterns) is the slut who can't own up to the consequences of her own choices. Consciously refusing to define the event as rape enables one to reestablish agency over the situation, maintaining control of the future process as well as preserving a self-image as a person in control of their own destiny.
There are other reasons why potential rape victims have a strong incentive not to view the relevant act as rape but rather, attributable to their own choices. In prior work on the subject, I've made reference to the Just World theory, a cognitive bias by which persons systematically try to interpret events so as to confirm a belief that the world is fair and just. One prominent manifestation of this bias is that, when presented with injustice that an observer is unable to prevent, the observer is far more likely to blame the victim. For example, researchers ran an experiment where a "learner" was given harsh electric shocks for giving wrong answers to academic questions. The research subjects both observed this happening, but one group was made simply to watch, while the other was given the option to end the shocks at any time. The latter set nearly invariably elected to do so and then described the shocking as immoral. The former group (which was unable to stop the shocks) was far more likely to consider the victim to be to blame for her maltreatment.
Why does this phenomenom exist, and what relevance does it have to rape? One of the reasons we believe in a just world is because we want to believe that if we behave correctly, good things will happen to us (or at the very least, bad things won't). Hence, when something bad does happen, it makes sense for us to (if at all possible) interpret it as our own fault. Why? Because if it stems from something we did wrong, then it's something we can fix (from a rationalist perspective, it makes good sense for us to overestimate how much our own actions influence our destiny). The alternative, that it doesn't matter, that you can do everything right and still be raped, is too scary to contemplate. So we shut out that interpretation, and replace it with one in which I did something bad. And if I'm to blame, then I wasn't raped, for rape is something that occurs to the blameless.
I've read many accounts by women who have, belatedly, determined that they were subject to rape but -- in the confused aftermath -- had slept with their rapist again. It is very consistent with this claim of cognitive rationalization by which the event is sanitized in their own mind, restoring their own sense of control and agency. It's part of the process of normalization, of reassuring oneself that nothing bad happened, nothing out of the ordinary happened, that there's no reason not to have sex with this person again. By choosing to have sex with the man the second time, one retroactively affirms that one chose it the first time, and by doing that, one extracts oneself from the status of passive, helpless victim, and back into the realm of a controlled, active agent.
So to sum up, there are many reasons why we should expect women who have been subjected to acts legitimately termed "rape" to not label their experience that way. First, there may simply be disagreement over what counts as rape, as in the case of people who believe that marriage creates irrevocable blanket consent to sex, and we can thus simply claim that some conclusions are wrong no matter who is promulgating them. Second, identifying oneself as a rape victim clashes with important aspects of most people's self-identity -- in the popular lexicon, it forces them to admit that they are vulnerable and that they weren't in control, and then forces them to exacerbate that lack of control by placing their experience into the public eye and open themselves to judgment. Third, people are well aware of the fact that most people don't like those who complain about anything, and thus have a strong incentive to not come off as a whiner, even when they have a very real and legitimate grievance. Fourth, reinterpreting the events in question as being one's own fault is cognitively more soothing than the alternative -- a brutal, capricious world where bad things happen to good people and you can be a perfectly good citizen and still be raped.
For those reasons, I think there is ample room for divergence between our measurement of how prevalent rape is, and how individual victims characterize their own experience.
Huckabee Plays Footsie with the Birthers
Former Arkansas Governor Mike Huckabee (R) (in what a spokesperson now is claiming was simply a misstatement) claimed that President Obama grew up in Kenya and expressed, at the very least, ambivalence regarding his place of birth.
Kevin Drum gives Huckabee credit for the best birther-dodge he's seen -- playing off the image of the Clinton's as ruthless smear-merchants as a reason why he's "not as confident" about the birth certificate being a legitimate issue. Unfortunately, the interviewer's follow-up managed to destroy that, as he plays off the emergent-theme of the Obama campaign as Chicago-style mafiosos as well: "The Clintons probably - there was probably a lot on the Clintons that the Obamas could have said, 'yeah, you do that, we'll come back with this.'" In any event, "I'm not as confident" is hardly the resounding rejection of birtherism that we ought to expect from any serious political figure.
Meanwhile, Jon Chait wonders why Obama's supposed "Kenyan anti-colonialism" is supposed to be a bad thing, given that the Tea Party is metaphorically inspired by ... resistance to British colonialism.
The only reason I'm not as confident that there's something about the birth certificate, Steve, is because I know the Clintons [inaudible] and believe me, they have lots of investigators out on him, and I'm convinced if there was anything that they could have found on that, they would have found it, and I promise they would have used it.
Kevin Drum gives Huckabee credit for the best birther-dodge he's seen -- playing off the image of the Clinton's as ruthless smear-merchants as a reason why he's "not as confident" about the birth certificate being a legitimate issue. Unfortunately, the interviewer's follow-up managed to destroy that, as he plays off the emergent-theme of the Obama campaign as Chicago-style mafiosos as well: "The Clintons probably - there was probably a lot on the Clintons that the Obamas could have said, 'yeah, you do that, we'll come back with this.'" In any event, "I'm not as confident" is hardly the resounding rejection of birtherism that we ought to expect from any serious political figure.
Meanwhile, Jon Chait wonders why Obama's supposed "Kenyan anti-colonialism" is supposed to be a bad thing, given that the Tea Party is metaphorically inspired by ... resistance to British colonialism.
Tuesday, March 01, 2011
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:
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.
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.
Being Better = Cheating
Shorter Newsreal:
Obama's proposal to let states offer alternative health care plans so long as they "can cover as many people as affordably and comprehensively as the Affordable Care Act does, without increasing the deficit" is a trick, because (unlike single-payer, which meets this requirement handily) every GOP health plan covers fewer people at greater cost. This demonstrates, not that Republicans don't have a serious agenda with respect to health care, nor that single-payer is a good idea, but that Obama is "cheating".
Obama's proposal to let states offer alternative health care plans so long as they "can cover as many people as affordably and comprehensively as the Affordable Care Act does, without increasing the deficit" is a trick, because (unlike single-payer, which meets this requirement handily) every GOP health plan covers fewer people at greater cost. This demonstrates, not that Republicans don't have a serious agenda with respect to health care, nor that single-payer is a good idea, but that Obama is "cheating".
Back in Chicago
I just got back in this afternoon. It was an exhausting weekend -- Chicago to Florida to DC and back in the space of four days. And yet, in the immortal words of Faithless, "I can't get no sleep."