George Will and more Politicization of Rape

Corey Yung

Corey Rayburn Yung is a Professor at the University of Kansas School of Law. His scholarship primarily focuses on sexual violence, substantive criminal law, and judicial decision-making. Yung’s academic writings have been cited by state and federal courts, including the Supreme Court of the United States. Before Yung began his professorial career, he served as an associate for Shearman & Sterling in New York and clerked for the Honorable Michael J. Melloy of the United States Court of Appeals for the Eighth Circuit.

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8 Responses

  1. Brett Bellmore says:

    “Does a six week delay indicate a lack of credibility?”

    Yes, actually, and this doesn’t sound the least bit “hollow” to most people.

    Look, when the only basis for the “no” is one person’s unsupported word, you have to look at more than the “no”. Did the pair have voluntary sex in the past. Did the woman behave afterwards as though she’d been raped. These things are relevant.

    Whether you wait six weeks to level the accusation is probative, whether or not you like it. In fact, these things were not left unstated because they were more persuasive that way, they were left unstated because most people already understand them.

    Naturally, if you start out with the assumption that, if a woman says she’s been raped, she’s been raped, all this due process and inquiring into the facts seems pointless. You already “know” the truth, you don’t need to investigate anything, or reason about the facts.

    But, the assumption that the woman is always telling the truth is more persuasive if left unstated, no?

  2. Corey Yung says:

    Hi Brett,

    Because Will’s argument is implied, it’s difficult to say if he really believes the allegation is not credible or if he just doesn’t think the alleged conduct constitutes rape. By putting “sexual assault” in quotes, my inclination is to believe Will doesn’t think the described event is rape or sexual assault. If that’s the case, I can disagree with him regardless of the actual credibility of the allegations. But, as I said, he is hardly being clear. Ultimately, there is nothing in Will’s piece or the article he links to that indicates there was a dispute of facts. Will, to me, is implying that, even assuming the facts as described, there was no rape. On that point, I vehemently disagree.

    If the issue really is the passage of 6 weeks, then I wonder why it is relevant. When rape victims go immediately to the police, they are sometimes described as “too emotional” or seeking “revenge.” Wouldn’t a delay indicate a more thoughtful decision to report a crime? Or is 6 weeks too long? Would the same lack of credibility be assumed if the crime were theft or assault? Why does the delay serve to make the allegation less believable?

    As for the prior sexual contact between the alleged rapist and alleged victim, there are ways it is both relevant and irrelevant, in my opinion. A prior relationship gives substantial information about communication between two persons. It also gives us information about a possible sexual rapport. For example, if the alleged victim regularly said “no” in a joking manner and the alleged rapist thought that is what happened on this particular night, that fact would relevant to whether he was mistaken as to consent. However, if prior sexual history is merely used to create an inference of consent in the discussed situation, that is dangerous and counter-intuitive. Why would we think that a person who acknowledges consenting on prior occasions is lying the one time she says that she was raped? It is very dangerous to allow ex-girlfriends, ex-boyfriends, and ex-spouses to have presumed consent under criminal law because of a prior relationship.

    In the end, if Will really wanted to say he disbelieved the allegation, he could have said so. If, however, he contends that the described events are not “rape,” then I find that problematic. He picked a strange example if all he wanted to argue was that some rape allegations, particularly those with a reporting delay, are not credible.

    I don’t think every rape complaint is “true” and I do believe there are differing “honest” accounts to the same events in many cases. I simply think that as an example, the story from Swarthmore, if true, was rape.

  3. Brett Bellmore says:

    I think there are several issues here.

    1. The only basis we have for believing the allegation, IS the allegation. All the circumstantial evidence (Mentioned in the account, anyway.) is perfectly consistent with no rape having taken place. We’re going to convict people of serious crimes on the basis of unsupported allegations?

    The prior sexual relations DID create a presumption of consent, just as “Didn’t know him until they met in the alley” creates a presumption of no consent. So does the not immediately reporting it.

    2. All acts exist on a continuum. Sex exists on a continuum from voluntary to rape. THIS incident, even if the account is accurate, is awfully close to the transition point. And yet, we’re supposed to treat it as just as serious as an act as unambiguous rape?

    3. Believing her, she knew of a rapist at large, and didn’t bother warning anybody for six weeks? We’re supposed to treat this as a serious crime, even though SHE didn’t?

    We can’t have a system where you can have sex, and six weeks later decide it was rape, and the guy gets nailed for a major felony on your bare word. That’s insupportable. That’s half the population being given a license to jail the other half.

    4. It was, if we believe her, a “prior” relationship by a matter of minutes. “Prior” to nobody else’s knowledge. Possibly not even prior to the guy’s knowledge. Like nobody has ever changed their mind. She broke up with him and then climbed into bed with him? Said no, and then let him have sex with her?

    Doesn’t she have any responsibility to make things clear on her end? Saying “no” a second time was too much trouble? Not getting into the bed, or even getting back out of it, an impossible demand?

    What conservatives are complaining about is a demand that, essentially, women be given power without responsibility, the power to jail men, and no requirement that they behave prudently or responsibly, or even in a manner consistent with the claim they’re making.

  4. Brian says:

    I agree this incident can seem close to that “transition point”, especially since She says, “No,” He stops, and a little while later He tries again. From His perspective, how is He supposed to know She didn’t change Her Mind, since She didn’t say, “No,” again. “But She didn’t give consent to the second attempt,” One might argue, which then goes to a question of “was such second-attempt sex typical of Their relationship, whether pre-dating or not” because, if it were, He would have a hard time distinguishing between continued non-consent from said change of Mind.

    Meanwhile I definitely sympathize with the concern of giving “license to one half the population to jail the other” while also sympathizing with the fear of being harmed by resisting a rape. Perhaps a sort of “standard signs of consent” is in order, just as “No” is the standard sign of refusal?

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  6. What is it about “panties”? One pedigree of this curious obsession is well-addressed in the 1959 film, Anatomy of a Murder:

    “Mary does attend the trial when the issue of Laura Manion’s panties is raised (panties she claimed she was wearing on the night of her rape and Quill’s murder, panties she claims were torn off her during the violent act of rape). These panties were not found in the crime scenes where she alleges the rape took place. Mary, unaware of any details of the case, voluntarily returns to the courtroom to testify that she found the panties in the inn’s laundry room. Biegler suggests Quill may have dropped the panties down the laundry chute located (next to his room) to avoid suspicion. Dancer tries to establish that Pilant’s answers are founded on her jealousy. When Dancer’s asserts (forcibly in court) that Quill was Pilant’s lover and that Pilant lied to cover this (incriminating) fact, Pilant shocks the court (and Dancer, who was unaware of the facts of record discovered by Parnell) by stating that Quill was actually Mary’s father.”

    The subject of “the panties” is a provocative source of titillation and awkward humor in the courtroom…. See:

  7. Corey Yung says:

    Hi Brett,

    1. The way the story is reported by both Will and the original source is that the events are as described. You are assuming the alleged rapist has a different account. While possible, it seems strange to contemplate all of the different stories that could be true rather than discussing the facts as presented.

    2. I agree that rape to consent is a continuum and that this case is close to the line under current law. However, with the facts as described, in jurisdictions without a force requirement, I think it falls in the category of “rape.” If other facts were presented (such as non-verbal communication after the “no”) then the case could go the other way.

    3. Yes, a report six weeks after the fact should be treated as credible to warrant further investigation. You still haven’t offered any evidence that delayed reports are less reliable. In is entirely against a victim’s interest to wait that long because evidence is lost and the case is unlikely to move forward. Yet, traumatized victims often struggle to come forward sooner. Students on campus are often reluctant because they have little faith in receiving justice and they fear retribution for making a rape complaint.

    4. It’s possible that she changed her mind. However, there is nothing in Will’s account to suggest that happened. You are injecting possibilities into the discussion that lack any connection to what we know. As for saying “no” a second time. Does a mugging victim have to say “no” multiple times to a hostile beggar/robber? Does someone threatened with assault have to repeatedly make clear that he doesn’t want to be punched in the face? It seems entirely reasonable to me that until that “no” is revoked, consent shouldn’t be presumed. It is the presumption of consent that is at the source of a great number of non-stranger rapes.

    As for the crime of rape giving women the ability to put all men in jail, that makes it no different than any other statute. And it isn’t just women and men. Anyone of use could accuse another person of assault, aggravated assault, theft, robbery, terroristic threats, or any number of crimes. And that doesn’t happen. Why do you think this is different? And the simple fact is that reality makes that concern seem silly. Even out of reported rapes, only about 10% of alleged rapists will see a day in prison.

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