A spate of mostly dumb articles, like this one by Kathleen Bogle: “The Missing Key to Fighting Sexual Assault on Campus,” have been wending their way through the blagosphere; most argue or seem to argue that universities need to act much more like police.* Bogle writes, for example, that “The key is [for colleges?] to make clear exactly when it is a crime to have sex with a person who is too intoxicated to be capable of giving meaningful consent.” But Bogle also writes, in a more pragmatic vein:
most cases of drunken sex will be—and, probably, should be—beyond the reach of the law. Young women need to know this. They need to know that the law treats sex after drinking as assault only in extreme circumstances.
Bogle, like most writers on this topic, ignores an obvious contradiction between current criminal law and what changes these writers want to see universities do: drunkenness is not a defense against any criminal act. No matter how drunk you get, if you kill someone you will be eligible to be charged with manslaughter or murder. If you can legally be said to have the mental state necessary to be accountable for the ultimate, irreversible crime, you presumably legally have the mental state necessary to accountable to consent to sex.
Few writers mention this.** More writers—though still too few—point out other questions: what if both parties are blotto drunk? Do they then legally rape each other? Do both get charged? Will they be in the real world? When discussing matters in the abstract these issues might seem like unimportant edge cases but moving from idea to implementation will make them very serious.
There aren’t good, intellectually coherent administrative solutions. Megan McArdle is right: “Rape on Campus Belongs in the Courts.” Courts have centuries of practice in attempting to balance the need for justice with rights for fair trials. If a serious crime has been committed, university administrators are the wrong place to go: they’re supposed to handle academic and administrative matters, not horrific crimes—for which they don’t have the infrastructure or legal authority. If universities do set up kangaroo courts, one will wrongly sanction someone and that someone will sue the university and wins in real court with real rules. Criminal and civil rules are fucked up in various ways, but they are at least reasonably consistent and reasonably public.
Moreover, Bogle and others like her forget their own ideological preconceptions. I would like to make some of mine explicit, as they are stated by Camille Paglia in the first pages of Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson:
Sexuality and eroticism are the intricate intersection of nature and culture. Feminists grossly oversimplify the problem of sex when they reduce it to a matter of social convention: readjust society, eliminate sexual inequality, purify sex roles, and happiness and harmony will reign. Here feminists, like all liberal movements of the past two hundred years, is heir to Rousseau. [. . .]
This book takes the point of view of Sade, the most unread major writer in Western literature. [. . .] For Sade, getting back to nature (the Romantic imperative that still permeates our nature culture from sex counseling to cereal commercials) would be to give free reign to violence and lust. I agree. Society is not the criminal but the force which keeps crime in check.
Drinking weakens the power of social force, the social contract, and the super-ego—which is why people do it. The dangers are real and well-known. Yet we don’t want to acknowledge the darkness. Slate writer Emily Yoffe emphasized those dangers in 2013, and the current bout of jabber isn’t really moving past that. We as a society should be pointing out the perils of too much drinking. We also shouldn’t kid ourselves about why we like to drink: to turn off our super-egos. To live in the moment instead of the future. To take the risks and do the things we’d like to do sober. We try to banish the knowledge of darkness that lurks in the soul, only to see that darkness reflected and reëmerge in novels, movies, TV, music. Paglia is the rare critic who will name and describe the darkness. For that she is castigated.
The other underlying reality is that women are less inclined to want to have sex with a large number of random strangers than men, for reasons grounded in evolutionary biology. This is not a problem that affects both sexes equally, despite the gender-blind way that modern laws are supposed to be written. Relatively few men appear to be sexually assaulted by drunk women. But a lot of the essay-writing set either knows nothing about evolutionary biology or doesn’t want to acknowledge it, so some of the real mechanisms underlying these articles remain buried, until annoying gadflies like me bring them up.
EDIT 2016: For some historical context, which is largely missing from the discussions that have flared up in the media, see “A Sex Scandal from 1960s Yale Is a Window Into a World With No Internet.” The Internet has made many things better, but certainly not all of them, and it seems to empower some of campus’s loudest, angriest neurotics.
* I wrote about another instance in “If you want to understand frats, talk to the women who party at them (paging Caitlin Flanagan).”
** Hypocrisy in the law, however, is not an impediment to instituting it anyway. In Harmful to Minors: The Perils of Protecting Children from Sex, Judith Levine writes: “One striking pair of contradictory trends: as we raise the age of consent for sex, we lower the age at which a wrongdoing child may be tried and sentenced as an adult criminal. Both, needless to say, are ‘in the best interests’ of the child and society.” Teenagers—usually black males—are adults when they commit crimes and “children”—usually white teenagers—when they have sex. This demonstrates more about culture and economics than anything inherent about people in the age range 13 – 17.
Laurie Schaffner makes a similar observation in an essay collection about regulating sexuality, “[…] in certain jurisdictions, young people may not purchase alcohol until their twenty-first birthday, or may be vulnerable plaintiffs in a statutory rape case at 17 years of age, yet may be sentenced to death for crimes committed at age 15 [….]”
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