Author: Corey Yung


Is there a Sexual Assault Crisis on College Campuses? Yes and No.

No matter what position you take in discussing rape and sexual assault policy, you can point to some statistic(s) to support your argument. That is largely due to the low quality and/or limited utility of a lot of data about sexual violence. If you do not have any interest in the truth, you can simply pick the statistic you prefer over the ones contrary to your narrative. If, on the other hand, you want a better sense of what is actually happening, you have to put the pieces of data in their proper context. Take, for example, the rate of sexual assault at large universities in the Figure below (based upon Clery Act reports) compared with the rate of forcible rape anywhere in the United States (based upon Uniform Crime Reports).

Figure 1

Taken at face value, you might conclude that sexual assault at large universities has rapidly increased since 2009 and forcible rape has been on a steady decline since 2001. Yet, I think the stronger evidence is that both of those claims are false. The reason that the data is likely misleading is that it relies on reports from institutions under different sets of incentives. As I wrote in my study about the UCR data, police have, based upon my analysis, increasingly been undercounting rape, in part, to meet unrealistic public pressure to continually, repeatedly decrease crime rates. As a result, there has likely been little to no decline (and a possible increase) in the rate of rape since rape rates began falling in the early 90’s.

Why wouldn’t universities have the same incentives to limit reporting of sexual assault incidents to assuage fears of potential applicants, avoid Title IX suits, and maintain a positive public image? I think the best answer is that they still have all of those reasons to undercount, but during the last couple of years another concern has trumped those incentives for a certain segment of large universities. The year 2011 is particularly important because that is when the Jerry Sandusky scandal broke. The figure below shows what happened to sexual assault reports at Penn State.

Penn State

Since 2010, according to Penn State’s Clery Act submissions, sexual assault has increased by an unbelievable 1389%. Is that because sexual assault has been increasing on campus? Almost certainly not. As part of the fallout from the Sandusky scandal and the issuance of the Freeh report, Penn State had its lax Clery Act compliance exposed. Similar spikes have happened at other large universities which account for entire increase during the last two reporting cycles. Big 10 schools, of which Penn State is one, have had the change in their collective rates of rape outpace the national average increase by nearly three times. What seems to be happening since 2011 (when the largest increase in sexual assault occurred) is that increased reporting at some schools has led to a significant spike in reported crimes. Other factors during that time frame such as increased Clery Act audits and Title IX lawsuits might have played a role as well.

So, based upon that assessment, is there a sexual assault crisis on campuses? It depends. If by “crisis” you mean an escalating problem based upon increasing rates of sexual assault, then I don’t think so. However, if by “crisis” you mean a serious ongoing problem with significant ramifications, then the best evidence supports that conclusion.




Why Campus Sexual Assault Tribunals are Needed

Since the Obama administration increased its focus on campus sexual assault in January 2014, there has been a steady flow of articles criticizing university sexual assault proceedings. Authors have decried innocent men being railroaded through a system with limited procedural protections and a low burden of proof. Based upon those sources, one would think that prosecution, expulsion, and punishment of innocent men was the norm. Meanwhile, case after case surfaces where the university either failed to act or acted in a woefully inadequate manner.

Consider the case of Yale. After numerous findings of wrongdoing in Title IX and Clery Act audit investigations were made, Yale had the opportunity to start fresh in handling complaints of sexual violence on campus. The critics of campus tribunals cite schools like Yale as embodying the liberal politically correct ethos they associate with rigged campus tribunals. So what happened after the federal regulators left Yale? Yale has issued three semi-annual reports covering the period of January 1, 2013 to June 30, 2014 during which I count 20 resolved complaints of sexual assault (non-consensual sex) between Yale students. In 10 cases, the university found inadequate evidence or the victim decided not to pursue the complaint further. In the other 10, the university assessed some sanction/punishment as follows: 3 received a 2-semester suspension, 2 received a 1-semester suspension, 3 received a written reprimand, and 2 were expelled. Yale should be applauded for making their handling of cases transparent so that this analysis is even possible. Most schools offer little information beyond what the Clery Act requires. In the end, the numbers at Yale are hardly consistent with an off-the-rails tribunal system.

Meanwhile, at Columbia, Emma Sulkowicz is facing the far more common scenario. Most victims are left on campus with their rapist. Emma has decided to protest Columbia’s indifference to her rape complaint by turning it into her senior honors visual arts project. She will be carrying her dorm mattress with her everywhere she goes until her alleged rapist is kicked off campus.

At my home institution, the University of Kansas, the Huffington Post is reporting today that the university decided that community service was too punitive for a student who “would later admit to campus police that he continued to have sex with the woman even after she said ‘no,’ ‘stop’ and ‘I can’t do this.'” Instead, he received a ban from university housing and probation.

We live in a world where police and prosecutors do not regularly pursue rape complaints and convictions are a rarity. If an attempted murderer was left on campus with his or her intended victim, we would be horrified. If a student brutally assaulted another, we would want the university to take action to protect the victim. Even in the non-criminal cases of sexual harassment at universities, defendants are separated from victims without waiting for a civil suit to be completed in the plaintiff’s favor. As a matter of simple humanity, universities need to protect rape victims by having a mechanism to remove/punish rapists.

Does this mean universities have designed effective and fair sexual assault tribunals? Absolutely not. I have been critical of the uneven protections and ad hoc processes often used. However, simply letting the criminal justice system resolve the matter, as many have proposed, is unrealistic and wrong. We should treat alleged rapists on campus as we would alleged murderers, brawlers, burglars, and other violent criminals. That means an internal university process needs to assess the available evidence to protect victims of sexual assault.


Targeted Rankings Marketing (a/k/a the Law Porn Avalanche)?

I was lucky enough to be granted tenure by KU over the Summer. That makes me the most recently tenured faculty member at my school and part of a key demographic in the rankings world. As it happens, over the last two weeks, my mailings have probably increased ten-fold with law porn. Are we now in a world where law schools specifically target potential rankings voters (Deans and the most recently tenured faculty members) for mountains of law school updates and brochures? Assuming I am experiencing targeted marketing, and not the subject to some cruel joke, where do law schools get the list of newly tenured faculty? From AALS? US News? Or is some poor employee toiling away at each institution scanning every law school’s webpage for subtle changes?


What is the Largest University in the United States?

You are probably surprised to learn that, if you look at crime data gathered by the Department of Education under the Clery Act, the largest 4-year higher education institution is Liberty University. For those not familiar with Liberty, it was founded in 1971 in Lynchburg, Virginia by Jerry Falwell. According to the school’s 2012 submission to the Department of Education, it had 74,372 students. It seems that Liberty has a booming business in online education and counts students enrolled through that program in its student body. A slightly lower number of students, 12,600, are actually in residence. According to the school’s website, there are now 90,000 online students making it the only 4-year college or university with over 100,000 students. I have to say that I am troubled by the nice, round numbers of students in both categories on the website. Are those just estimates and Liberty does not know its precise enrollment? Or is it really committed to all student totals being evenly divisible by 100?

Liberty’s inclusion of online students as part of Clery Act crime reporting obligations has the effect of substantially decreasing reported crime rates on campus. That seems to frustrate the intention of the law as crimes by online students are not tracked. It also makes it difficult for researchers to properly assess the real rates of reported on-campus crime. One might think that Liberty would be a little more careful in its submissions after running into problems during a Clery Act audit. In 2013, the Department of Education stated its intention to fine Liberty for $165,000 because of numerous violations in prior reporting activity. Of course, in reviewing the past Clery Act audits, I did not see one school penalized for failing to accurately count its student body. But there is always a first.


Tony Stewart, Kevin Ward, Jr., and Murder

As many of you have probably read by now, NASCAR driver Tony Stewart is reported to have killed Kevin Ward, Jr. during a dirt track race in New York. If you are curious to see what happened, Deadspin has the video posted here. In the lap previous to Ward’s death, it appeared that Stewart’s car made contact with Ward’s causing Ward’s car to collide with the track wall. Ward exited his vehicle and and walked toward the inside of the track making angry gestures (presumably at Stewart). The racers were under a caution flag after the collision between Stewart and Ward. As Stewart’s car approached Ward, Ward appeared to shout and wave his arms in an angry manner. Stewart’s vehicle appeared to fishtail and strike Ward. Ward was caught in a rear tire of Stewart’s car and was flung a significant distance. Ward’s body laid still on the track and he was later pronounced dead.

Not surprisingly, such an event has triggered strong emotional responses on Twitter and throughout the Web. Many have declared this case an obvious murder. Others have said that Stewart committed vehicular manslaughter. Others have put the blame squarely on Ward for walking into dangerous traffic on a dirt track. I thought it was worth shedding a little light on the topic based upon what the actual law is and the common mistakes observers are making about that law.

Unless Stewart states that he meant to kill Ward (which there is no indication he will do), the likely only viable theory of murder under New York law is murder in the 2nd degree which is defined as:

“Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person…”

Some who witnessed the event and/or the video have stated that Stewart appeared to accelerate in an effort to either bump Ward or spray dirt at him. It is possible that such conduct could rise to the level of “depraved indifference” or at least get to the jury on that question. Other videos or statements might contradict that theory.

Unless I am misreading NY law, I don’t think vehicular manslaughter is an option for the state (unless Stewart was intoxicated). I’m happy to hear from NY criminal law experts in the comments if I am mistaken. That would mean that the general manslaughter provisions would have to be used. First degree would require:

“1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or 2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.”

If the state could prove that Stewart meant to physically hit but not kill Stewart, “1.” could apply. If Stewart actually meant to kill Ward, but was under an extreme emotional disturbance (e.g. rage due to race and prior accident), then “2.” could be a viable outcome.

Second degree manslaughter is fairly straight-forward in New York:

“He recklessly causes the death of another person…”

Although “recklessly” appears as the mens rea requirement for both 2nd degree murder and 2nd degree manslaughter, the type of recklessness required to prove murder (“depraved indifference”) is tougher for the prosecutor to show.

There is also a possible negligent homicide charge which is defined as:

“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”

Commentators who believe Ward’s “recklessness” or “negligence” make Stewart innocent of wrongdoing will likely disappointed in how criminal law works in this area. The thought processes of the Ward are irrelevant to whether Stewart would be guilty of murder or manslaughter. The conduct and thoughts of Ward are only meaningful under criminal law insofar as Stewart understood them and took action as a result. So, if Ward made it impossible for Stewart to avoid him (which there is no indication of), then the causation element of murder or manslaughter wouldn’t be met. Similarly, if Ward provoked Stewart in a way that was legally sufficient to trigger an extreme emotional disturbance (again, there is no evidence of this that I have seen), then Stewart should not be convicted of murder. It is a common mistake for 1L’s to focus on the victim’s actions and thoughts in analyzing negligence/reckless fact patterns in Criminal Law and so it is not at all surprising to see such confusion in public discourse. In such cases, it is even theoretically possible for a defendant to be guilty of murder or manslaughter, but not the tort of wrongful death (despite the difference in burden of proof) because tort law more directly includes the conduct of the victim in determining wrongdoing. Criminal law, on the other hand, puts the focus squarely on the acts and thoughts of the defendant.


Teaching with Bad Court Opinions

In teaching Criminal Law, I like to use one or two cases a semester where the court opinion seems to fundamentally misunderstand a legal concept that we are discussing. I think doing so accomplishes two ends: 1) it provides a clear illustration of a common mistake students make so that they can better avoid it; and 2) shows that, particularly in criminal law, there is a high need for good lawyers and judges. I was curious if anyone else teaches using opinions that are not just flawed, but almost certainly wrong. As an example, this is an excerpt from a case (Pennsylvania v. Collins, 810 A.2d 698 (Pa. Super. Ct., 2002)) I used in teaching summer starters last month about the voluntary act requirement.

The evidence at the trial established that, on March 17, 2001, Collins agreed to pick up her friend, Megan Neff, and drive to McDonald’s to purchase a milkshake for Collins’s mother. On her way to Neff’s house, Collins stopped at a mini-market, where she encountered several acquaintances. They invited her to a party in a nearby neighborhood and Collins accepted the invitation. While at the party, Collins drank something that “tasted like fruit punch.” Fifteen minutes later, she left the party and went to Neff’s residence. Collins arrived at Neff’s house and complained that she was suffering from a headache. As the two proceeded to McDonald’s, Neff observed that Collins was not engaged in conversation. Without explanation, Collins drove past the McDonald’s and straight through five or six stop signs without stopping. Neff began to yell at Collins telling her to stop the vehicle, but Collins gave no indication that she heard Neff. Collins turned the vehicle and began to swerve into oncoming traffic. Shortly thereafter, Collins applied the brake and Neff steered the car off the road. At that point, Collins appeared to lose consciousness. When the police arrived, Collins was slumped over the steering wheel of the car. As ambulance attendants took Collins out of the vehicle, she regained consciousness and began to scream and lash out at the attendants. At the hospital, Collins’s urine sample tested positive for phencyclidine or PCP.

The Commonwealth charged Collins with Driving Under the Influence of a Controlled Substance (phencyclidine or PCP) and Failure to Comply With Duties at a Stop Sign. At the conclusion of the trial, the jury found Collins guilty of driving under the influence of a controlled substance…. Collins appealed… Collins [] asserts that the trial court should have required the Commonwealth to prove that she voluntarily ingested the controlled substance. We disagree. Section 3731 states, in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
(2) While under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a)(2). Therefore, in order to sustain a conviction under Section 3731(a)(2), the Commonwealth had to prove beyond a reasonable doubt that Collins was: (1) driving, operating or physically controlling the movement of a vehicle and (2) that while operating the vehicle, Collins was under the influence of a controlled substance to such a degree as to render her incapable of driving safely.
Collins’s arguments would require this Court to engraft an additional element–namely voluntariness–into the DUI statutory scheme. However, the statute does not make use of the terms “intentionally,” “knowingly” or “willfully.” Therefore, the Commonwealth was not required to prove that Collins’s intoxication was intentional or voluntary…. Collins also contends that the trial court’s jury instructions violated Section 301 of the Pennsylvania Crimes Code. We find this argument to be unpersuasive. Section 301 states, in pertinent part:

§ 301. Requirement of voluntary act
(a). General rule.–A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
18 Pa.C.S. § 301….

Moreover, as discussed above, the statutory language found in 75 Pa.C.S. Section 3731(a)(2) omits any reference to culpability. We interpret this omission to mean that the legislature intended Driving Under the Influence to be a strict or absolute liability offense. Therefore, we conclude that the trial court’s jury instructions did not violate the voluntary act requirement of Section 301.

In my experience, students sometimes conflate mens rea and the voluntary act requirement in cases involving intoxication (rather than separating the analysis of intoxication into actus reus and mens rea). I think the Collins case can show how that conflation happens and why it is a mistake. The Collins court dismisses the universal voluntary act requirement in Pennsylvania because the court believed the statute to be strict liability. That’s a non sequitur. And so a woman who involuntarily ingested PCP was convicted for driving under the influence of the PCP that she didn’t voluntarily consume. The case also provides a nice contrast with State v. Martin which I believe most (?) Criminal Law casebooks include in the voluntary act section. I welcome any thoughts on the using the Collins case and “bad” opinions in general as teaching tools.


The Strange Doctrinal Legacy of Lawrence v. Texas

I’m currently working on a project concerning the doctrinal legacy of Lawrence v. Texas and continue to be amazed at the varied ways judges have read Justice Kennedy’s majority opinion. The Supreme Court’s opinions in the case have been cited over 700 times, but only rarely in an expansive manner. Justice Scalia’s parade of horribles, articulated in his dissent, has not been realized (particularly in regard to criminal laws). Laws criminalizing prostitution, public indecency, adultery, adult incest (even without blood relation), fornication, bigamy, bestiality, obscenity, and drug use have all survived Lawrence challenges.

However, in a few unanticipated areas Lawrence has had a notable effect. In one instance, Smithkline Beecham Corp. v. Abbot Laboratories (9th Cir. 2014), Judge Reinhardt on the Ninth Circuit cited Lawrence, along with other Supreme Court opinions regarding sexual orientation, in a Batson challenge case.  Reinhardt concluded that “heightened scrutiny applies to classifications based on sexual orientation and that Batson applies to strikes on that basis.” As a result, the court held that the decision to exclude a juror on the basis of sexual orientation violated Batson and ordered a new trial.

A stranger application, in my opinion, arose from a defamation lawsuit in Massachusetts. The First Circuit did not resolve the issue but described the district court holding in the case as follows:  “… the court held that imputing homosexuality cannot be considered defamatory per se…” Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005); Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004). The district court’s holding was particularly unusual because it did not need to reach the issue at all. The district court held, and the First Circuit agreed, that the plaintiffs had simply failed to state a defamation claim.

What strikes me as remarkable after reviewing all the cases that have cited Lawrence is that the majority opinion has primarily had effects in areas of law far outside of what was anticipated. Indeed, anti-sodomy laws, like the one at issue in Lawrence, are still enforced in several states (primarily in cases involving prostitution crimes and minors). So, does that mean that commentators were just really bad at predicting the effect of the new Lawrence doctrine? Or did Scalia’s dissent serve its function by encouraging courts to read Lawrence narrowly in the areas of law with which he was concerned?


Everyone Likes Affirmative Consent, Until They Don’t

David Bernstein at Volokh Conspiracy points to and agrees with an article by Cathy Young at regarding a proposed rule in California to require “affirmative consent” before sexual contact at universities in the state. Such a rule was made most famous over two decades ago when Antioch College adopted a code requiring affirmative consent for every level of intimate contact. Bernstein and Young are not fans of the proposal because, in part, they believe that the use of an “affirmative consent” standard is overexpansive.

Every semester that I teach my Sex Crimes seminar, we discuss the Antioch College rule, Michelle Anderson’s article advocating a similar rule, and affirmative consent in general. I think the pattern of my class discussion is informative regarding the arguments that Young and Bernstein make. Initially, every student is hostile to the Antioch approach (which is broader than the California proposal). They generally come to agree that the rule is at odds with romance and spontaneity in the bedroom. Indeed, the idea of someone forming several oral contracts for each intimate encounter sounds like a “turn-off” to most of my students.

When I add a few wrinkles, however, the students become big fans of affirmative consent. I ask if they would be comfortable if a date started tying them up and spanking them with a leather whip without getting affirmative consent? Would they be okay if someone initiated anal sex without asking?

So, why do they support affirmative consent in those situations, but not in the case of heterosexual vaginal sex? The answer seems to be based upon each student’s norms and conception of deviance. For atypical (subjectively defined) sex acts, students want an affirmative consent model. For “normal” acts based upon a cultural narrative of what is “supposed to happen,” negative consent is sufficient

Does it follow, then, that affirmative consent should be required in all instances? No. The point of the exercise is to illustrate why many sexual encounters might be considered sexual assault by one person (based upon his his or her norms about consent), but not by the other. The more deviant or intimate the act based upon general societal norms, the more likelihood that at least one participant wants affirmative consent. If we are to use consent as the primary element in rape statutes, we should view the discussion of affirmative vs. negative consent as an either/or proposition. Instead, a widely-applicable consent rule needs to recognize that a universal affirmative or negative consent rule is firmly at odds with our sexual culture.

It has been my experience in teaching Criminal Law and Sex Crimes that students, even more so than other areas of law, tend to believe that their norms about consent are both typical and reasonable. And yet, when they start discussing those norms, they discover that their beliefs vary in substantial ways from other students. And it isn’t just law students. Later this year, I will be publishing an article-length response to Jed Rubenfeld’s Yale Law Journal piece retheorizing rape law. Although I was dismayed and shocked by a lot of his contentions, there was one footnote by Rubenfeld illustrating his view of a sexual norm that truly surprised me. Rubenfeld wrote:

But really: is it so clear that all unconscious sex should be criminal? Among well-settled couples, long used to sharing the same bed, sexual contact of various kinds with a sleeping person is common. No one thinks all such touchings are criminal. Doesn’t this undermine the idea of an ipso facto rule against sexual contact with the unconscious?

If Rubenfeld were a rape trial fact-finder or legislator, his view of consent with unconscious persons would be very different than mine affecting the case outcome or proposed legislation. We could define that difference based upon affirmative and negative consent (with an unconscious person unable to give affirmative consent), but I think that is unhelpful. From my perspective, the reason that the acts described by Rubenfeld (“sexual contact with the unconscious”) are problematic are orthogonal to consent. And the debate about affirmative and negative consent models often distracts us from other alternative formulations of rape law.


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.


Plea Bargaining, Reliance, and Sex Offender Restrictions

Judges often refer to a plea deal as subject to the rules of contract law. However, when judges make that statement, they usually backtrack and realize how poorly contract law operates in the criminal domain. The role of the judge as a third party to the deal as well as a lack of normal consideration are particularly difficult to square with typical contract rules. The ongoing struggle in plea deals involving sex offenders is particularly illustrative of how plea bargaining sometimes operates in an environment of anarchy.

Doug Berman points to a Second Circuit opinion today that demonstrates how the concept of reliance is essentially meaningless in a world where legislative enactments apply to classes of, and not individual, defendants. In the case, a defendant pled guilty to a misdemeanor charge of attempted possession of a sexual performance of a child. At the time of his plea, the law required 10 years of registration for his sex offender status and allowed for a petition to remove his name from the sex offender registry afterward. The defendant complied with his registration requirements for the entire decade and then petitioned to have his name removed from the registry. However, in the intervening time period, the legislature extended the time frame for registration for his class of sex offenders to 20 years and removed the procedure for the defendant to have his name taken of the registry. The Second Circuit saw no constitutional or other problem and denied any relief to the sex offender. I wanted to draw attention to one particular section the opinion:

Doe also argues that he was deprived of due process when, as he asserted in his complaint, despite the sentencing court’s promise to him, the Legislature amended the law to abolish the petition for relief from registration. We are no more persuaded by this second argument than we were by the first. There is no serious dispute that the New York State Legislature provided constitutionally adequate process simply by enacting [the SORA amendments], publishing [them], and . . . affording those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those

Although prosecutors often deliver such promises to defendants, this case was particularly interesting because the sentencing judge further assured the defendant that he would be able to petition to have his name removed. However, the Second Circuit was unpersuaded because it construed the relevant due process right as one of notice related to subsequent legislation. As long as the defendant received notice of the subsequent amendments, there is no constitutional violation under the Second Circuit view (which is universal among courts as far as I know).

Using contract law, we might expect a different outcome. After all, in Santobello v. New York, the Supreme Court found that a prosecutor was in breach of a plea deal by violating a term of the plea contract (by recommending a sentence despite a promise not do so). Thus, we might think that defendants can rely on parties to plea deals (prosecutors and judges). However, many sex offenders have accepted plea deals because of statements made by prosecutors and judges based upon statements that ended up not being true. Sometimes prosecutors have assured defendants that they will not have to register because they are pleading guilty to a nonsexual offense. However, federal registration and some state registration requirements have been subsequently held to apply non-categorically meaning that the underlying facts of the case control the obligation to register. In other cases, like the Second Circuit one from today, prosecutors and judges have made accurate statements of law at the time that are rendered false through subsequent legislative action. And yet the reliance of defendants on such statements and promises have been ignored by courts across the country. In all cases, though, sex offenders are being denied any relief because cases like Santobello are interpreted as only applying to actions related to the sentence by the judge and not so-called collateral restrictions made by the legislature. This might just be the common exception-making that goes on when cases involve sex offenders. However, I think the problem is even more fundamental. The Supreme Court’s deconstitutionalization of plea bargaining and the difficulty in applying contract rules consistently has left the process unrestrained in certain contexts. The case today illustrates that a defendant who is considering a deal for a case involving sex crimes should make no assumptions about the status of sex offender requirements based upon present law. General principles of reliance and fairness simply have no role under current doctrine when collateral restrictions are involved.