More on George Will and Rape

After George Will entered the discussion about campus rape, he encountered a substantial backlash. I was part of the chorus of those criticizing Will. This week, the St. Louis Dispatch decided to drop his column. In my response to Will, I focused on the implicit nature of Will’s argument which allowed any reader to project his or her personal biases about rape onto Will without Will being accountable for his actual viewpoint. That technique has a bit of history in rape trials that I briefly discussed. More people have since joined the discussion defending Will.

David Bernstein at Volokh Conspiracy, while recognizing some possible shortcomings of Will’s article, makes two problematic defenses of Will. Bernstein defends Will’s argument that colleges and universities teach students to value or covet status as a victim as being beyond reasonable debate by misunderstanding the idea of “checking your privilege.” Bernstein writes:

I don’t think that’s reasonably debatable, as it’s exactly what the apparently common trope, “check your privilege” is about; students seen as “privileged” by dint of skin color, sex, wealth, etc., should shut up and let the more authentic and wise voices of members of societies’ victim classes proliferate.

Immediately illustrating the need for people to “check” their privilege, he assumes the story of a Princeton student and Bernstein’s own experience at Yale Law School are indicative of schools across the country to support his contention. Checking your privilege is a principle of humility. We all carry biases and have blindspots based upon various privileged aspects of our lives. Checking your privilege means taking a step back to make sure that you don’t make rash generalizations derived from your privileged position or background. Bernstein does exactly that by assuming that Princeton and Yale are at all typical of higher education institutions. I would guess that a great many of us who attended and/or work at other institutions have had very different experiences than Bernstein and the Princeton student.

Relatedly, Bernstein also feels that a charitable and fair reading of Will does not support the conclusion that Will “suggested that sexual assault victims on college campuses enjoy a privileged status.” I’m a strong believer in the principle of charity in reading texts. However, as I previously argued, Will’s failure to be explicit about the relevance and meaning of his rape story makes charity difficult. While Bernstein includes part of Will’s column to rebut the claim used by the St. Louis Dispatch in dropping Will’s column, I think he leaves out an important portion of the relevant text. Will wrote:

[Students] are learning that when they say campus victimizations are ubiquitous (“micro-aggressions,” often not discernible to the untutored eye, are everywhere), and that when they make victimhood a coveted status that confers privileges, victims proliferate. And academia’s progressivism has rendered it intellectually defenseless now that progressivism’s achievement, the regulatory state, has decided it is academia’s turn to be broken to government’s saddle.

Consider the supposed campus epidemic of rape, a.k.a. “sexual assault.”

That text is then followed by his general discussion of sexual assault on campus. I think a reasonable reader would conclude that Will views the “supposed epidemic of rape” as an example of his conclusion that universities are encouraging students to covet victim status. Indeed, it is that conclusion which frames his entire article as he blames progressivism for that culture. Bernstein’s reading would indicate that the five paragraphs (out of ten total) that Will allocates to the discussion of campus rape is tangential to Will’s main argument. For Will to ask readers to “[consider]” what he sees as the proliferation of “sexual assault” victims, he has to be arguing that the coveted status of being a rape victim is the motivator for is argument to even be coherent. I think the weight of the argument supports the opposite contention, but readers are free to view Will’s article for themselves.

Bernstein also criticizes the process of adjudicating rape cases on campus which is entirely fair (and something I agree with). However, by relying on Will and a Daily Caller article, I think he mischaracterizes the actual federal policy in place now. And while I think a better, universal process is needed, there is a reasonable justification for using a preponderance of evidence standard: the cases and penalties are not criminal in nature.

In my original post, I also contended that the rape allegation as described by Will was rape under existing criminal law (assuming no force requirement applied). It is on that last point that I want to expand in light of some responses my post received.

Will’s story, which he deemed to not constitute sexual assault for ambiguous reasons, is as follows:

Herewith, a Philadelphia magazine report about Swarthmore College, where in 2013 a student “was in her room with a guy with whom she’d been hooking up for three months”:

“They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. ‘I basically said, “No, I don’t want to have sex with you.” And then he said, “OK, that’s fine” and stopped. . . . And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.’”

Six weeks later, the woman reported that she had been raped.

My post received a bit of push back from Brett Bellmore (at CO in the comments) and Scott Greenfeld, who is a criminal defense attorney and author of the Simple Justice blog. Greenfeld strongly endorsed Bellmore’s comments here and added this statement about the nature of rape:

Definition matters to me. I don’t mean to be uncharitable, but rape (forget legal definition, and substitute any cognizable definition) isn’t something to be decided the next day, or a week later or in the secret imagination of a person who never said no but has an excuse that makes perfect sense to her, or based on absurd rules (any intoxication negates consent) that only apply one way…. The sides aren’t legal definition versus whatever any woman says it is at any given moment. Making up ad hoc claims can’t be sufficient for rape or sexual assault, despite the feminist fashion trend of the words being untethered from any meaningful definition. You don’t seem to share my concern for definitions, which I see as being as politicized a view as Will’s. As for Brett’s comments, they deal with the facts presented, but raise very real questions that are material and relevant, but not politically popular to consider because they don’t support the ideology. He gave what I consider a very clear, cogent explanation, which you were/are unable to see. Again, I attribute your inability to recognize, if not agree with, his points political myopia. If we’re ever to know anything about rape and sexual assault, then we have to have clear, meaningful and viable definitions. There are no such definitions anymore, and while the words are thrown about wildly, and do enormous harm to real people, these words have become meaningless. It’s an unacceptable situation.

I find Greenfeld’s response to be inapposite to my contention because I am arguing in terms of the statutory definitions of rape. If we focus on the events as described by Will, I think the fact pattern fits within modern rape statutes. That conclusion is not based upon what Greenfeld terms a “neo-feminist” view. It is black letter law. The act requirement of non-consent and a sex act are met through evidence of a “no” and penetration. The mens rea for non-consent and the sex act are similarly met absent the introduction of other contradictory statements. As I noted in the comments to my post, “If other facts were presented (such as non-verbal communication after the ‘no’) then the case could go the other way.” But Will chose the example to prove his point downplaying the concerns about sexual assault on college campuses. It makes little sense to introduce more hypothetical facts if Will himself didn’t find them necessary to support his conclusion

The only substantive law arguments that I have been able to gather from Greenfeld and Bellmore are either 1) there is a presumption of consent (which Bellmore openly supports in this case); or 2) there is a resistance requirement. The first point isn’t supported by any modern case law that I know of, but would be interested in reading any such cases that exist. The second point is only true in terms of the law on the books if the incident occurred in Alabama, where “earnest resistance” still must be shown as part of the force requirement. If either wants to argue that the delay of a “few minutes” renders the original “no” invalid, they are welcome to say so. I would find such a conclusion to be troubling, but at least the terms of the discussion would be set.

As it stands, I think there primary objections to Will’s story being considered rape are based not on substantive law, but on credibility or possible additional facts. On those points, I don’t expect any agreement. However, in applying the law as codified, I would expect to find common ground. The discussion of the six week delay and other questions about the victim’s story raised by Bellmore and Greenfeld are issues of credibility. Although I am still uncertain about the warrant for the conclusion that a six week delay undermines credibility, the overall points in this area are irrelevant to my claim that Will’s story describes a rape under existing substantive criminal law. I do think Bellmore and Greenfeld’s overall take on Will’s story reflects a widespread conventional wisdom. However, that perspective is, in my opinion, at odds with the law on the books.

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12 Responses

  1. Brett Bellmore says:

    “The only substantive law arguments that I have been able to gather from Greenfeld and Bellmore are either 1) there is a presumption of consent (which Bellmore openly supports in this case); or 2) there is a resistance requirement. ”

    I don’t think there’s a general presumption of consent. but that’s not to say that a presumption of consent between two particular people isn’t generated by a record of past consent.

    Again, we’ve got two people who disagree about what happened. You have to look to more than what they’re saying, to surrounding circumstances, to establish who is more credible. You can’t just say, “In every case where a woman alleges rape, we will simply assume she’s telling the truth, and that the man is lying in denying it.” That’s not a neutral principle of justice, it’s not symmetric.

    And asking that you get out of bed or bother to say no a second time isn’t much of a resistance requirement. More of a “clarity” requirement, actually.

  2. David Bernstein says:


    (1) “Check your privilege” is an ad hominem argument to get the other side to shut up. It’s not a statement of a humility. A statement of humility would be “let ME check MY privilege,” which would indeed be appropriate any time anyone who is lucky enough in life to be attending Princeton or Yale Law School feels the need to tell SOMEONE ELSE to check their privilege.

    (2) I have no particular stake in whether the standard is preponderance or something a bit higher. I do have a problem with the federal government imposing preponderance on all universities despite knowing that some of them already tilt the process against the accused, plus imposing not allowing the complainant to have either counsel or to cross-examine the complainant, plus imposing punishing students when the complaining student hasn’t even filed a formal complaint and there has been no investigation, plus making it implicit that the government may punish universities if their tribunals don’t reach the “right” result. If the government did something like this directly, it would clearly be a violation of due process; if the government imposes it on universities, it imposes violations of due process. Indeed, this goes beyond violations of due process into show trial territory. It’s not really cricket for you to write your post as if I only mentioned the preponderance issue, when I mentioned others as well, and linked to further explanation.

    (3) Will clearly doesn’t think there is an *actual* epidemic of sexual assault on campus, he says the Obama Administration is putting out bogus statistics to make it seem as if there is one. I think we agree on that. The culture of victimization, according to Will, helps explain why ambiguous or dubious claims of assault become poster children for “obvious” cases of assault that universities must punish. But I take it Will’s point is something like universities opened a Pandora’s Box in encouraging a culture of victimization, but they assumed that it wouldn’t get out of hand. But then the federal government came and ordered them to, in essence, treat allegations by alleged victims as proven facts, and justifyied this by using bogus statistics. Having encouraged the culture of victimization that promotes this sort of thing, universities had no way to defend themselves. I don’t see how you can read the piece, with the background knowledge that Will is a libertarian these days, and not see how it’s not an attack on rape victims, not an attack on the accuser in the anecdote he relies on (who he seems to think are partially victims themselves of the hookup culture–he hasn’t lost his cultural conservatism), but an attack first on the universities for creating and abetting the victim culture, and then on the government’s newly imposed rules.

    Finally, I’m not qualified to speak to the issues of the proper definition of sexual assault, nor do I take a position on this, but I thought it’s worth calling to your attention that some commenters on Volokh point out that what you describe as her initial “no” the accuser describe as “basically” saying no, which adds some ambiguity as to what she actually said.

  3. David Bernstein says:

    Just to clarify my previous comment, the federal rules don’t ban counsel at university hearing, but most universities do. So the government knows that in effect the accused won’t have counsel, and also won’t be allowed to examine the most important witness himself. Instead, the government suggests letting a third party (!) examine the complaining, and then only after censoring any question the third party thinks might be too upsetting or otherwise inapprorpriate.

  4. shg says:


    You quote my reply to a comment you left at SJ rather than the content of my post. To say it’s inapposite to the contention in your post is somewhat confusing, as it wasn’t addressed to your post, but your subsequent comment.

    But if I understand your position on definition here, where you are now relying on the legal definitions of rape which you expressly disclaimed in your comment, it raises a different question. Are you contending that the woman, having uttered “no,” is unable to change her mind, whether verbally or through non-verbal communication? Is it not possible for the man, by attempting to persuade her to have sex, post her verbal no, to have consensual sex based on what transpired following her initial “no”?

    You contend that what happened in Will\’s Swarthmore example would constitute the crime of rape in all but one jurisdiction. I sincerely doubt it would pass muster in any jurisdiction, not because of a requirement that the woman resist, but because her post “no” conduct constituted non-verbal consent to sex, and that no law anywhere deprives a woman of the ability to change her mind after an initial refusal, to make the decision to engage in consensual sex after having first refused, and that her conduct in Will’s example would be overwhelmingly sufficient to demonstrate non-verbal consent such that it failed to satisfy the requirements of criminal rape.

    Do you liken a woman’s “no” to a criminal suspect’s invocation of right to counsel, where once invoked it cannot be uninvoked in the absence of a lawyer? Or is a woman permitted to change her mind, and a man permitted to try to persaude her to do so? If so, is there a basis for your view?

  5. Defense counsel says:

    In the context of criminal law, there is very much a presumption of consent in every rape case in every case — it’s called the presumption of innocence.

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  7. Paul Horwitz says:

    Corey (and David), with respect, I’m surprised that both of you seem to suggest that there is some definite meaning of the phrase “check your privilege,” such that it is productive to say what it “means” or to accuse someone of “misunderstanding” it. As far as I can tell from recent discussions, it is a more contested term than that. I’m not sure how much either of your general arguments turn on this, so I don’t want to make a big deal of it; but I was surprised by the certitude that both of you displayed as to “the” meaning of a phrase that has occasioned such debate–over its meaning as well as its application, I think–in recent weeks. (And, precisely because I didn’t think it was necessary to either of your arguments, I was surprised that either of you bothered in the first place to assert that it has a clear meaning.)

  8. David Bernstein says:

    I can cite “objective” sources ranging from the urban dictionary to, of all places, The Guardian The trajectory here is the same as with “p.c.” in the 80s. The hard left makes up a censorious phrase to limit the acceptable range of discussion, and then, when it starts to attract negative attention, they deny that is what they were doing.

    But it’s really a tangential issue. If the phrase “check your privilege” didn’t exist, the culture of victimhood on elite university campuses would still be not reasonably debatable by anyone who’s paying attention. Even on one of my pet issues, Israel advocacy, I’ve seen numerous quotes from student Israel advocates criticizing false, vicious, and/or anti-Semitic propaganda put forth by the likes of SJP because “it hurts my feelings” or “makes me feel unsafe.” How about pointing out the false, vicious, and/or anti-Semitic nature of the propaganda in a comprehensive, reasoned way? Apparently, these students have been taught that they way to win an argument is to attract sympathy for themselves as victims, not to actually win an argument through reason.

  9. Corey Yung says:

    Hi David and Paul

    Regarding “check your privilege,” I cannot speak to usages I haven’t heard. My original post had a discussion of my encounters with the concept and discussions of privilege generally, but I removed it because the post was already far too lengthy. In hindsight, I probably should have kept it. As someone who attended two state schools, teaches at one now, and formally taught at an independent law school, I could count the number of faculty or student mentions of “privilege” on one hand. I have never used the phrase “check your privilege” and have only encountered it on feminist blogs that I regularly read. In those situations, I have seen a pretty consistent usage, but I’m more than willing to admit that my personal silo is blind to other discussions of the phrase and concept. Nonetheless, I do think it is a valuable principle (however it is referred to). Whether the problem is culture cognition or ignorance due to privilege, examining privilege is an essential step, in my opinion.

    Concerning the rape stats, I’m not sure I agree that the Obama administration has put out “bogus” statistics. The commonly used CDC number about the rate of rape in colleges is based upon “good data” if you account for what it is measuring. The CDC was concerned with public health issues and not the legal definition of rape. As a result, it used a broader concept of rape than the law allows for. Rape is an extremely difficult topic to survey because direct questions using the term “rape” produce unreliable results. Indirect questioning can overcome reliability issues, but some people feel the resultant data is invalid because “rape” isn’t being measured anymore. I disagree with the last contention, but believe any good researcher has to discuss the issue in the context of her study.

    I would also say that the particular conclusion that Will is drawing, based upon your reading, that (female) students are overidentifying “rape” is probably not supported by data. The project I am working on right now regarding rape data concerns a strange divergence in rape data. Survey data is showing a much sharper decline in rape than reported incident data. Indeed, the present NCVS (survey) data is in complete contradiction with the UCR (incident) data because, when adjusting for an apples-to-apples comparison, surveys are showing a lower rate of rape than incident data. In reality, the survey data should show a rate twice that of the incident data because of measured underreporting in the surveys. Putting that data into a larger context, I’ve concluded that women, particularly young women are running away from the idea of being “rape victims” even in cases where they reported incidents to police. In other words, when it comes to rape, there doesn’t seem to be any growing culture of victimization.

  10. Corey Yung says:

    Hi Scott,

    If I confused your comment and post, I apologize. As I had far too many tabs open when I wrote my post, I can only plea confusion.

    I definitely believe a woman can change her mind. Every jurisdiction agrees with that (although the Maryland Court of Special Appeals rendered a contrary decision a few years ago before being reversed). However, the goal of my first post was to criticize George Will’s examination of rape on campuses and he chose that particular example among a potentially infinite universe of stories or hypotheticals. Also, because Will doesn’t make it explicit, I wasn’t sure which reason(s) he felt made the story not fit his definition of rape. If the victim changed her mind after the “no” then the case is clearly not rape. In engaging Will, though, it only seems to make sense to use the story as he wrote it. There is no mention of a changing of mind.

    To put it this way, if Will said that the story was the defendant’s and not the victim’s, would you think he raped her? If he didn’t think there was any signal that she changed her mind, I think that is “rape” under the modern definition of the concept. Of course, in the real world that is unlikely because alleged victims and rapists almost never tell the same story. But in discussing in problems with Will’s discussion, I wanted to focus only on the facts he presented.

  11. David Bernstein says:

    “when it comes to rape, there doesn’t seem to be any growing culture of victimization.” I’m not privy to the data, but your point is consistent with, my suggestion that the following would be reasonable criticisms of Will’s column. (1) rather than encouraging faux victimhood, the attention that sexual assault on campus is getting with a federal push is encouraging real victims to come forward and universities to be more conscientious in their responses–occasional anecdotes about possibly overzealous campus investigations needs to be balanced against that greater good and (2) the link between the general university victimhood culture and any specific woman claiming sexual assault, accurately or not, is speculative at best.

    Personally, while I do think the culture of victimhood at elite universities is a real thing, I am not convinced that it is the primary explanation for sexual assault claims of dubious merit, especially because I think the culture in question is based on claiming membership in a victimized group, not being an individual victim; I’m also not sure that Will was claiming it is the primary explanation, as opposed to simply claiming that it’s made universities helpless when the federal government gets involved in claims of victimhood. What I am convinced is that many people misread Will to say lots of things that would indeed be outrageous if he said them, such as women think it’s good to be a sexual assault victim because then they get the privilege of victim status.

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