Rape, Doubt and Prudence

I’m going to wade again into the turbulent and tricky waters of campus sexual violence. My alma mater, Amherst College, got a lot of press when a student’s harrowing account of date rape went viral three years ago. Some statistics suggest that as many as 1 in 5 female college students will be sexually assaulted during their college years. More recently, when I wrote about the disinviting of a rap artist whose misogynist lyrics offended many at Trinity College, an acquaintance who teaches there reproached me for failing to grasp the “campus rape culture” that colleges suffer under today. What is going on?

The case causing the most recent uproar concerns the conviction of Brock Turner, a 20-year-old member of the swim team at Stanford, on three counts of felony sexual assault. (A local newspaper article gives links to relevant statements and documents.) Turner was arrested after two Swedish grad students found him lying on top of an unconscious and partly unclothed woman in an area behind a dumpster near a campus fraternity. The two, seeing Turner “thrusting” on top of the motionless woman, intervened and then held him until police arrived. As was revealed in the subsequent investigation and trial, Turner and the woman had met – for the first time -- that night at a party at which both drank heavily. The woman, not herself a Stanford student but a recent college graduate visiting her younger sister, had a blood-alcohol level three times the legal limit and remembered nothing when she awoke hours later. Turner had a level twice the legal limit. A jury convicted him of assault with intent to rape an intoxicated woman and sexually penetrating an intoxicated and unconscious person with a foreign object (his finger).

Two factors have boosted the case’s prominence. One is the leniency of the sentence the judge handed out -- just six months in prison, far less than the possible 14-year maximum. The second is a 7-page letter read in court by the victim. Her statement gained wide sympathy and attention – a CNN anchor read its 7000-word entirety on air – and is worth reading (here) for its eloquent anguish and searing, focused indignation. Its righteous anger contrasted sharply with the judge’s statement at sentencing, which cited Brock Turner’s remorse, argued that his drunkenness reduced his “moral culpability,” asserted that “a prison sentence would have a severe impact on him,” and predicted that “he will not be a danger to others.”

Further inflammation came via a statement by Turner’s father. It is perhaps the most ill-judged document in the history of apologias. Describing how his son suffered in the ordeal of the trial, the father laments that his son “will never be his happy-go-lucky self” again, citing his listlessness and even his loss of appetite (“I was always excited to get him a big ribeye steak to grill or to get his favorite snack for him.”) Such suffering, the father boorishly concludes, “is a steep price to pay for twenty minutes of action.” His statement, and his son’s actions and refusal to acknowledge guilt, have been viewed as a textbook case of upper-middle-class white privilege, and the prevailing take on the judge’s decision – himself not only a white male, but also a former Stanford athlete -- is that he, implicated in the same privilege, acted with grotesque and unwarranted leniency. (Would he have doled out the same generous sentence if the defendant standing before him were a black man?) Since his ruling, a popular effort to unseat him has arisen, led by a Stanford law professor.

The victim’s letter is a moving attestation of helplessness in the aftermath of sexual violation, including the intrusive forensic medical procedures victims are subject to. But it doesn’t say much of anything about what actually happened between her and Brock Turner. Along those lines, all she writes is that “I let my guard down, and drank liquor too fast, not factoring in that my tolerance had significantly lowered since college. The next thing I remember I was in a gurney in a hallway.”  That blank space of time creates investigative and prosecutorial challenges, given the statement made by Turner. Primitively written (one can’t help noting just how much sway athletic ability has in lowering the admissions standards of an elite university), replete with grubby scenarios described in coarse terms, it insists that what happened fell far short of rape. In Turner’s version of events, the two flirted, kissing and dancing intimately, after which the woman agreed to go back to his room with him. On the way back, he said, they drunkenly stumbled and fell, then started to make out while lying on the ground. The fumbling foreplay that followed, Turner claims in the statement, were actions that he believed the entire context of the evening made consensual, even though she was at the point of passing out from drunkenness – and he himself, in his account, was not far behind.

If Turner’s account is true, then his actions were boorish, opportunistic, ugly, lamentable, and wrong, but arguably not criminal. The jury didn’t believe his account – nor, after reading it and the victim’s, am I inclined to either. The judge, however, seemed to, and thus his leniency.

I don't share the judge’s sympathy for Brock Turner. That said, is it crystal clear to me that what happened was a crime meriting years of imprisonment? No, it’s not crystal clear – the evidence is incomplete. And yet insisting on the importance of evidence, in the context of campus sexual violence, is tricky. In trying to parse any particular campus sexual assault, being a stickler for the specifics of what happened risks being seen as retraumatizing the victim. Yet how else do we decide on the meaning of an incident?

“I don’t remember,” the victim asks in her statement, “so how do I prove I didn’t like it?” And: “I was not only told that I was assaulted, I was told that because I couldn’t remember, I technically could not prove it was unwanted.... It is the saddest type of confusion to be told I was assaulted and nearly raped, blatantly out in the open, but we don’t know if it counts as assault yet.” This confusion, she writes, “damaged me, almost broke me.”

This is moving, and demands our sympathy. But isn’t the awkward truth that in this kind of case, all the things she can’t remember actually matter? They determine the meaning of the incident.

The complicating fact is that any sampling of campus sexual violations will almost certainly range across a spectrum. Some are rapes of the most brazen kind, like the recent case at Vanderbilt, where a football player egged on three teammates to sexually assault an unconscious woman in his dorm room, passing out condoms and recording the rape on video. But others occupy a vexing zone of ambiguity, in which alcohol, partying, youthful promiscuity and nervous ambivalence all blur the picture – and leave prosecutors reluctant to wade in. Journalist Jon Krakauer’s book, Missoula, delves into four cases of sexual assault at the University of Montana. In Krakauer’s view, our criminal-justice system fails victims of such assaults, beginning with police who misconstrue the presumption of innocence in sexual assault cases as an investigative norm rather than a jurisprudential one (it would be strange, Krakauer points out, if police answered a call about a robbery and attempted to cast doubt on whether it had happened), and ending with an adversarial trial system in which zealous defense lawyers do their best to diminish the credibility of the accuser, an effort that almost inescapably re-traumatizes victims.

And yet our willingness to incarcerate someone depends, in the end, on surmounting reasonable doubt. And there’s a great deal of ambiguity in many of these cases. The centerpiece of Missoula is a contested sexual encounter between a woman and the football team’s star quarterback. The agreed-on facts include the woman’s prior statement to him that she “would totally do you anytime,” her invitation to him to come up to her room, and her eager entry there into a sexual encounter; where the testimony of the two differs is in her subsequent claim to have changed her mind in the middle of the encounter -- after which, she charges, he forced himself on her. The University, acting on a “preponderance of the evidence” standard, expels the young man; but when the case goes to trial, the higher probative threshold of the “reasonable doubt” standard results in a verdict of not guilty. Krakauer views this outcome as a failure of the system, while to my mind the facts of the case reflect precisely that -- reasonable doubt. 

In all of these agonizing cases and the commentary that surrounds them, I feel strongly that people are underemphasizing the catalytic role played by a campus culture of excessive drinking and sexual promiscuity -- the avidity among students, indeed the pervasive social pressure, for ingesting massive amounts of booze and then chasing the casual sexual hook-up. It has been my experience that if you press this cautionary point, you risk being seen as blaming the victim (i.e., "If you hadn't put yourself in harm's way, this wouldn't have happened.")  I understand that – at least, I hope I do. Getting drunk and dancing at a party does not make you complicit in your own rape. But a lot of these cases fall into a confusing twilight zone of ambiguous actions and ambivalent decisions; and there has to be a way of sounding a cautionary note about that zone without blaming the victim. In the current social setup on campuses, young people are engaging each other in circumstances that constitute a kind of mutual moral hazard, with far too many distressing and damaging results.

After I wrote about the events at Trinity College, a friend chastised me for treating campus sexual violence too abstractly, as a “merely” intellectual issue, when in fact it is about the fates of real people. Well, I’m a parent of a daughter who, not too many years hence, will likely be going to some college or other. That’s about as real as real can get to me.

We can't protect our children, especially once they’re gone and out into the world, so our main hope is to have helped instill good judgment and values. Part of good judgment is knowing how to assess risk and when to put yourself out of harm's way. But late adolescence in general isn't exactly a high-prudence phase of life -- it's a high-experiment phase -- and good judgment isn't always in effect. So the question then becomes one of environment. Where is the adolescent, and what are the risks around her?

Is college especially rife with sexual assault, more so than the society at large, or does it merely teach a clearer awareness of an oppressive reality that is everywhere? I don’t know the answer to that. Maybe the concoction of drugs and alcohol, sudden absence of parental control, male status competition, and the pseudo-freedom that permeates campus life makes it especially volatile and dangerous in this regard. This "cauldron of opportunity" model seems intuitively likely to me.  

The first thing I would tell my daughter is that she might do well to stay out of the cauldron -- to cultivate the habit of socializing with small groups of friends she has gotten to know and trust, and avoiding the mass parties that involve lots of strangers and lots of alcohol, and where sexuality becomes part performance, part market. And if she can't avoid that kind of party, how about considering not getting really drunk there? Or at all? In other words, I'd counsel prudence – of course I would, in the hope of minimizing the chance of something bad happening to her. And then I'd tell her that if something bad should happen to her, she should understand from moment one that it wasn’t her fault.

As for young men on campus, the ones who are stone-cold sexual predators need to be captured and caged. But how big a part of the problem are they, as opposed to the males who exploit sexual opportunities in murky or ambiguous situations arising from that kind of moral hazard I mentioned above?

At any rate, my advice to my daughter would (and will) go something like this:

"You are headed into the part of your life where love, desire, attraction and sex are going to seem at times more important and thrilling than just about anything else. The road will bring awesome fulfillments and also real perils. One of those perils will come in the form of people -- men, mostly -- who don't really care about you in your individual preciousness. They don't care about the fact that as a child you loved horses, and named your hamster Mr. Mystery, and collected Pokemon cards, and dreamed of being a detective. They don't care about any of your stories. They are trying to reduce you to body parts. They want to use those parts. They have contempt for the entirety of your person. They want to use your parts and throw you away.

"These are not people who love you. In fact, they despise you. The problem is that it may at times be hard to tell, especially at first. You will need all the powers of perception and judgment that you have developed so far. If you allow these powers to be dulled or obliterated by alcohol, you greatly increase the chance that the person who merely wants to use you will have his way.

"There are few things in life more beautiful and joyous than giving yourself physically to someone whom you love and who truly and deeply cherishes you. You are a precious person. Keep your heart open, but police your borders fiercely."

Rand Richards Cooper is a contributing editor to Commonweal

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The Sublimity of the Super-Brat

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