Saturday, March 12, 2011

Meets Expectations

I read this brief blurb on Mitch Daniels' "doubling down" on the cultural war truce, and thought it was particularly shoddy piece of political prognostication. Whether or not Daniels is sufficiently socially conservative to win a GOP nomination, it's hardly the case that his dead-eyed focus on fiscal issues has no purchase in a GOP primary. But more broadly, the piece was written as a string of beltway cliches/conventional wisdom of dubious accuracy ("Much as Obama insists that international consensus trumps all other foreign policy concerns ..." Oh please.) written as if they were droplets of wisdom only a Seasoned Washington Post Reporter can tell you -- it just screamed hack.

And that was before I spotted the byline: Jennifer Rubin. I had thought it was just some smarmy WaPo analyst. Jennifer Rubin I already perceived as an idiot who wrote one of the more nakedly anti-Semitic hit pieces to appear in a mainstream publication in recent years. It's nicely validating that I still had this shudder of "I'm dealing with a moron" even before I saw it was written by someone I already detested.

Friday, March 11, 2011

Clearing the Box Roundup

Another day, another day I should have spent taking (or least studying for) finals.

* * *

Marc Lynch gives a good rundown of how the terrain has changed with respect to the Arab revolutions.

I meant to post this in the last roundup, but it slipped through -- Latoya Peterson on being the token Black woman in feminist circles.

Conservatives mock Keith Ellison for his heartfelt testimony about a Muslim first-responder who died on 9/11.

Most late-term abortions are the result either of late-appearing health problems, or lack of access to abortion services earlier during the pregnancy.

Jewish groups split on the Peter King Muslim radicalization hearings: The AJC lauded them, while they were subjected to harsh criticism by the ADL and the Religious Action Center of Reform Judaism.

Dana Milbank calls the King hearings a "red scare".

Maryland Fails to do the Right Thing

In an apparent concession that they didn't have the necessary votes on the floor, the Maryland House of Delegates recommitted the bill which would legalize gay marriage, dashing hopes that this year we'd join civilized society in extended equal marriage rights to all couples.

Apparently, there is some murmers that this is merely a stalling action to try and rustle up more votes, but the majority consensus is that the bill is dead for the year. Governor Martin O'Malley (D), who had pledged to sign the bill into law, has expressed his disappointment.

Maryland Gay Marriage Vote Coming Up

They still don't quite have the votes, apparently. A possible "friendly amendment" which would broaden the religious exemption to the bill may swing the balance, but it would require sending the bill back to the State Senate.

Do the right thing, Maryland.

Just Don't

Black elementary school student forced to be a "slave" in a school slave auction (Via).
A history teacher at Chapelfield Elementary School apparently held a mock slave auction as a means of explaining the history of slavery to students. The class was divided into two sections: “Slaves” and “Masters”. There were only two African-American students in the classroom—one was assigned to be a “Master” and the other student, Nikko Burton, was told to be a “Slave”.

The 10 year-old was disciplined after he refused to participate in the re-enactment which involved pocking, prodding, and public humiliation.

I ended up being a slave,” Nikko told 10TVNews. “At first I didn’t care, but after people were bidding on people it kind of made me a little mad and stuff.”

The teacher told the students that they needed to touch the “Slaves” to see if they were worth being purchased.

“The masters go to touch people and do all sorts of stuff,” Nikko said. “They got to look in your mouth and feel your legs and stuff and see if you’re strong and stuff.”

Every once in awhile, I read a story like this (and by "like this", I mean literally a story where a Black student is forced to reenact being a slave) and I wonder -- how can a teacher be so dumb. And then it happens again.

Incidentally, I'm guessing that the Ohio state curricular requirements do require students to learn about slavery, but they don't require a mock auction.

Thursday, March 10, 2011

Not Finals Roundup

Jill's on vacation, and I'm not studying. Or blogging. Or doing anything remotely productive. I did walk to Chipotle.

* * *

Four soldiers who died while the media was drooling over Charlie Sheen.

The Islamic radicalization hearings that could have been held, if the committee was chaired by someone serious about Homeland Security, rather than a terrorist sympathizer looking to project.

T-Paw plays footsie with birthers. It's becoming a necessity in the GOP primary -- a majority of likely Republican primary voters don't believe Obama was born in the USA (and another 21% aren't sure).

T.A. Frank on Zuhdi Jasser.

That the New York Times won't call waterboarding torture -- at least, when the US is the one doing it -- is nothing more than cowardice in the face of ginned-up controversy.

Just Like Health Care

I thought I wrote a post making this point earlier, but now it looks like I never actually hit "publish" (here it is, in case you're interested). Anyway, I too share Matt Yglesias' point that there is something admirably savvy in the Wisconsin GOP slamming through its union busting bill without regard for procedural niceties or the growing political backlash they're facing. This is what I wrote in the other post:
I'd be interested to see if Democrats play the same game [as the GOP did on health care reform]. If you have momentum, don't let the GOP off the hook. Characterize everything as renewed union-busting, the kissing cousin of the radical Scott Walker proposals (how do we know they're extreme? Because real, heartland Americans are protesting them!). No compromises, no mercy -- just hammer it home, day after day: Republicans want to hurt teachers, police officers, and firemen. They want only the middle class to sacrifice while the fatcats get tax breaks. On and on -- a drum beat of progressive fury that does to the GOP what the Tea Party did to us.

Of course, there were many voices within the Democratic Party during the health care debate that understood precisely what was happening, and urged Democrats to actually take a maximalist position. After all, if you're going to get blamed for it anyway, you might as well get some of the sweet with the bitter -- a genuinely ambitious, single-payer health care system. And one wonders if Republicans are keen enough to adopt this strategy -- if they're going to get raked over the coals regardless, they might as well please their corporate clients and blow up the unions.

I think that's precisely the dynamic we're seeing, up to and including the GOP's relatively greater savvy in taking the sweet with the bitter.

Of course, now the action turns to the recall election, where Wisconsin Democrats are hyper-energized. I think this could be a turning point for liberal fortunes in America. But I also think that, from a GOP anti-union perspective, they were right to pass this law. It's tougher to pass legislation than it is to undo it, and the reason you want legislative majorities is to pass legislation. When you get an opportunity, take it.

UPDATE: That being said, and again like with health care, it would have been wiser for Republicans to do this right away, rather than dither around about it. If you're going to go maximalist, you might as well do it right away. If you're not willing to compromise, then there's no point in waiting and letting the public mood sour on you.

Wednesday, March 09, 2011

The GOPs Anti-Muslim Turn

A CNN article begins with a Muslim Republican wondering how his Party went from the one gaining a majority of Muslims votes to one falling over itself to attack Muslims of all stripes. Rep. Peter King (R-NY), ironically perhaps the only member of Congress to have openly declared his support for a terrorist organization, is leading a federal witch hunt of supposed domestic Islamic radicalization -- despite the fact that his core argument (that Muslims haven't been cooperating with American law enforcement) is disputed by, well, all major branches of American law enforcement. And Tennessee is considering a law that more or less criminalizes being Muslim (reading the bill text, incidentally, it is clear that it criminalizes both belief and conduct).

It's sickening. It's the sort of thing that humiliates me as an American.

Tuesday, March 08, 2011

The Green Peril

Obama celebrates St. Patrick's Day. Obama's got Irish roots: his great-great-great grandfather reportedly left Ireland for New York in 1850.

And Adam Serwer proceeds to knock it out of the park with a post entitled "Obama's Irish Anti-Colonialism":
I would love to know more. What I know is troubling enough. And one thing that I do know is his having grown up raised by his Irish-American mother, his view of the Brits, for example, is very different than the average American. When he gave the bust back to the Brits--the bust of Winston Churchill--it was a great insult to the British. But then if you think about it, his perspective as growing up in Dublin with an Irish mother and grandfather, their view of the Irish Republican Army is very different than ours because he probably grew up hearing that the British were a bunch of imperialists who persecuted his grandfather.

I have said many times, publicly, that I do think Obama has a different worldview and I think it is, in part, molded out of a very different experience. Most of us grew up going to Boy Scout meetings and, you know, our communities were filled with Rotary Clubs, not pubs serving cream stout. Again, I am not saying he's not a citizen, I've never said that, I've said the opposite. I've never said he's a Catholic. I wish people would ask, though, does this president have a different worldview than any other president in the history of the United States?

Ta-Nehisi Coates has a good post up where he was taken to task by his readers for being insufficiently harsh on Governor Huckabee. As absurd as the whole "Kenyan anti-Colonialism" meme is even on its face, it only gets more so when one digs in. Aside from the basic point that America was founded on anti-British anti-colonialism, the folks involved in the Mau Mau rebellion were of a different (and rival) tribe to that belonged to by Obama's grandfather. It's difficult to figure out how Obama -- raised by his White mother in (mostly) Hawaii, was supposed to have inherited a worldview from the African father he barely met on a conflict his family was never involved in on a continent he had scarcely even seen except via some uncritical lumping together of all things dark.

And Serwer's parody is so brilliant precisely because it lays the racial qualities of this whole discourse out so starkly. In modern America (in admittedly some shift from the 1960 election), it is patently absurd to think that just because someone is of Irish descent, they have some radical anti-colonial worldview. And, to the extent we think about Ireland's struggles throwing off anti-colonialism, we're generally positive towards it, whereas when Kenyans do it it's symbolic of the collapse of civilization as we know it.

Not a Typo

If I had to pick the perfect name for a Republican agricultural commissioner, it would obviously be "Richie Farmer" (R-KY). But potential GOP KY attorney general nominee Todd P'Pool? How is that not a typographical error?

Monday, March 07, 2011

Dreams of Palin

I had a dream a few weeks ago, where Sarah Palin won the Republican presidential nomination, then proceeded to get trounced by Obama in the general. Obama won all fifty states, then broke out snickering in the section of his victory speech where he tried to congratulate his opponent "on a well-fought campaign."

Obviously, that's not going to happen -- even if the GOP does nominate Palin, Obama won't run the table. But how well will he do? Palin consistnetly underperforms the rest of the GOP field in head-to-head matchups against the President. A recent batch of polls has Obama up 4 against "generic Republican" in Pennsylvania, and up 7 against Mitt Romney, but thrashing Palin by 28. In Wisconsin, it's a similar story: Mike Huckabee is the closest GOP contender (down 7), while Palin trails by 19.

It makes me wonder what the floor really is. Obviously we have the 27% crazification factor, but seriously -- what states are in play in a hypothetical Palin campaign? It makes me want to see polls of Idaho, Utah, and Alabama -- just for my own sense of curiosity.

Meanwhile, I'm also genuinely curious as to whether Palin will run or not. I actually think she has no shot at a GOP nomination -- it seems it is beginning to penetrate even amongst the base that she's toxic. And Palin doesn't exactly strike me as the sort to handle defeat magnanimously -- I can definitely see her as the type who would prefer not to even contest the nomination rather than face the stigma of being humiliated in crushing defeat. On the other hand, she's not exactly self-aware, so maybe she doesn't realize just how precarious her standing is? I don't know.

Sunday, March 06, 2011

Frivolity

You can sanction litigants for making frivolous legal claims. I wonder: Assuming Tennessee passes its patently unconstitutional proposed ban on Shariah law, would that extend to any state defense of the law in court?

I mean, talk about your slam-dunks under the First Amendment. This baby not only is sect-discriminatory (a major constitutional no-no), but it directly criminalizes religious belief. You couldn't come up with an easier case if you tried. Indeed, you couldn't have a Free Exercise clause that didn't strike down this law.

Thursday, March 03, 2011

Marlyand Gay Marriage Bill Teeters on the Edge

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.

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:
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.
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:
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".

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."

Saturday, February 26, 2011

Traveling

Going to Florida, then Maryland on family business. Be back Tuesday. Probably will blog little, if at all. Behave yourselves until then.

Thursday, February 24, 2011

Gay Marriage Bill Passes Maryland Senate

The final tally was 25 ayes to 21 nays. The bill now moves to the state Assembly, which had traditionally been considered more friendly to gay marriage than the Senate. But according to the WaPo, equal rights supporters are still counting votes, and are not 100% confident of passage ("confident but not overconfident", is how the majority leader puts it).