[guest post] Debunking Some Skeptic Myths About Sexual Assault

[Content note: sexual assault]

This guest post was written by my friend HJ Hornbeck and discusses a talk on sexual assault given by social psychologist Carol Tavris at The Amazing Meeting (TAM) this past July. 

Introduction

Carol Tavris’ talk came at the worst time for me, as well as the best. I’m too busy at the moment to give it a proper fisk, because I’m preparing a lecture on sexual assault. I’ll see if I can aim for two birds, but for now her talk deserves at least a point-form response with minimal proof-reading.

Some background first, though. If I can crib from her TAM 2014 bio,

Carol Tavris is a social psychologist and author whose work focuses on critical thinking and the criticism of pseudoscience in psychology, among other topics. Her articles, book reviews and op-eds have appeared in the New York Times, the Los Angeles Times, the Wall Street Journal, and the Times Literary Supplement, among other publications. Many of these essays and reviews are available in Psychobabble and Biobunk: Using psychological science to think critically about popular psychology. Dr. Tavris is coauthor, with Elliot Aronson, of Mistakes Were Made (But Not By Me): Why we justify foolish beliefs, bad decisions, and hurtful acts–a book that has become something of a bible, dare we say, of the skeptical movement.

So she’s a pretty cool, smart skeptic. The title of her talk did raise a few eyebrows, though–why was a conference notorious for havingsexual assault problem hosting “Who’s Lying, Who’s Self-Justifying? Origins of the He Said/She Said Gap in Sexual Allegations”? Still it didn’t attract much attention…

until the live-Tweets arrived.

They’re terrible, by and large, but most of them come from people who are already terrible on this topic. This was a talk given at a conference where the management has historically taken out extra liability insurance to deal with the risk posed by one of its keynote speakers. There’s a certain motivation for the attendees to pull out every dismissive, permissive, victim-blaming message possible from a talk on rape. The tribalism in the tweets is not subtle. I could give a talk on rape myths in front of that audience, and the Twitter feed would still be terrible.

So I’ll wait to see whether the talk is released to a general audience.

I had much the same opinion as Stephanie Zvan; critiquing something you only have a fragmentary record of would only lead to disaster, so it was better to wait and see.

Well, I waited. I saw. And my goodness, what a disaster.

Dodgy citations

I’ll start with the part I found most outrageous. Tavris claims a CDC report put the lifetime risk of rape or attempted rape at about 9%, contrary to an earlier government report which claimed the incidence was 1-in-5. Her probable source of the formeris this:

Approximately 1 in 5 bisexual women (22%) and nearly 1 in 10 heterosexual women (9%) have been raped by an intimate partner in their lifetime.

Whereas the source of the government report is likely this, if the Washington Post is to be believed:

The first and most inclusive set of measures we present are the number and percentage of undergraduate women who reported being a victim of attempted or completed sexual assault of any type before entering college (1) (n = 819, 15.9%) and since entering college (6) (n = 1,073, 19.0%).

These two statistics don’t cover the same thing; sexual assault is a more inclusive term, and the study itself is clear on this.

In [this study], sexual assault includes a wide range of victimizations, including rape and other types of unwanted sexual contact (e.g., sexual battery).

If Statistics Canada is to believed, only one in five incidents of sexual assault involve penetration. So we’d expect the number of rapes to be lower than the number of sexual assaults. Secondly, the first covers “intimate partners,” which the CDC defines as

The term “intimate partner violence” describes physical, sexual, or psychological harm by a current or former partner or spouse.

So the CDC numbers don’t include rape by strangers or dates, but the government’s numbers do. Unsurprisingly, the former number is less than the latter. Those two numbers do not conflict, yet Tavris makes it sound like they do by claiming they cover the same population.

[16:00] Many of you, I’m sure, have heard about the White House task force to protect students from sexual assault, which [via research] reported to the Department of Justice that 19.1% of college women have experienced rape or attempted rape. Remember this statistic? It was quickly rounded up to twenty percent – one-in-five – women on college campuses have been subjected to rape or attempted rape.

Well that number, of course, went viral. A more recent report from the Center for Disease Control, based on a nationwide phone survey conducted in 2010, reported that 9% of American women have been victims of completed forced penetration or attempted forced penetration in their lifetimes and an additional 3% have been victims of alcohol or drug-facilitated penetration. [16:47]

At my most charitable, this demonstrates that Tavris doesn’t even understand what the term “sexual assault” means. It makes me wonder why she was invited to talk about sexual assault in the first place.

False Memories

Tavris name-drops Elizabeth Loftus, a pioneering researcher in this domain, so let’s hear what she has to say about false memories.

Relatively modern research on interference theory has focused primarily on retroactive interference effects. After receipt of new information that is misleading in some way, people make errors when they report what they saw. The new, post-event information often becomes incorporated into the recollection, supplementing or altering it, sometimes in dramatic ways. New information invades us, like a Trojan horse, precisely because we do not detect its influence. Understanding how we become tricked by revised data about a witnessed event is a central goal of this research.

The paradigm for this research is simple. Participants first witness a complex event, such as a simulated violent crime or an automobile accident. Subsequently, half the participants receive new misleading information about the event. The other half do not get any misinformation. Finally, all participants attempt to recall the original event. [1]

OK, so the basic pattern is that new information winds up distorting or even reinventing older memories, so if Tavris wants to point the finger at false memories she needs to show this new source of misleading information.

Tavris mentions a group devoted to sexual assault at Occidental college, but few sexual assault survivors visit groups like those; Statistics Canada has consistently shown that about 91% of all sexual assaults are not reported to the police, and the US. Department of Justice’s National Crime Victimization survey finds that 65% of “serious violent rape/sexual assault”[2] goes unreported. I scanned through my copy of the General Social Survey 23 incident file, and found that of the 144 people who reported some form of physical or sexual assault, not one visited victim services. On the other end of the spectrum, one study in 1983 found the following:

Among the subjects whose sexual experiences met a legal definition of rape, none of the unacknowledged rape victims reported their experience to the police, a rape crisis center, or a hospital emergency room. Actually, more than half of them did not reveal their assault to anyone. In the acknowledged rape victim group, 8% of the victims reported their experience to the police, while 13% went to a rape crisis center or hospital emergency room. However, 48% of the women did not discuss their rape with anyone.[3]

If as many as half of all those who thought they were raped never disclosed to anyone that they were raped, where could the new information necessary to form false memories come from?

(Full disclosure: other surveys give quite different numbers; that same paper gives a range from 10% to 50% in the intro, while my scan of the GSS 23 incident file indicates 10% of those in a sexual assault or attempted assault never discussed it with a friend/neighbor, co-worker, doctor/nurse, lawyer, or priest. I don’t have enough time to puzzle out the differences, sadly, so I’ll settle for just noting divergent opinions here.)

It’s also strange that Tavris only considers false memories of sexual assault. That same study found that of the 12% of women who were “highly sexually victimized” (that’s the paper’s terminology, not mine), 43% did not acknowledge their rape; that is, they claimed to have been penetrated without their consent, but did not say yes to “Have you ever been raped?.” This makes some sense; one way of coping with a traumatic event is to deny or downplay it. With time and repetition, this could form false memories of not being sexually assaulted, which would only be revealed by avoiding emotionally-laden terms like “rape” and instead engaging higher-level cognition. While that paper doesn’t give similar statistics for “less” victimized women, it takes no imagination to propose that a higher percentage of these women would not think of themselves as sexually assaulted.

So even if we make the ridiculous assumption that all sexual assault health groups promote misinformation about sexual assault, we find plausible reason to think incidents of sexual assaults can be erased via false memories, and that a significant number of sexually assaulted women may have such false memories. Tavris’ argument actually suggests there are more cases of sexual assault than the numbers suggest, not less.

Didn’t we cover this already?

We did, actually; Ophelia Benson pre-emptively dealt with a number of Tavris’ mistakes, since this talk is very similar to an article she published for eSkeptic.

“They?” “Anonymous?”

[19:20] Well that’s one point of view. For people on the other side of the pyramid, 10% feels like a more accurate number, supporting their argument that claims of rape are exaggerated in a political climate that now supports any allegation a women makes, including anonymous ones, and that encourages women to transform unpleasant or regretted sexual encounters into charges of harassment and assault.

The culture today, they say, encourages women to avoid taking responsibility for their own part in sexual encounters. Today, a young man is accountable for his actions when he’s drunk, but a young woman is not. If we warn men that it’s unsafe to get drunk and hook up, why do we think it “blames the victim” if we warn women that it’s unsafe to get drunk and hook up? [20:11]

Uh, who’s “they?” Why do “they” have a “feel” that a 10% lifetime incidence of intimate partner rape is more accurate than a 20% incidence of sexual assault on campus? I’d love to challenge my assumptions by examining “their” arguments, but Tavris is way too vague for me to track “them” down. She’s actually preventing me from reducing my cognitive dissonance, and encouraging me to stay on my side of the triangle!

Also, where are “their” studies to back up “their” claims? I’ve had no problems finding multiple scientific studies to back up my claims, on short notice; does this mean “they” have few or none? Is Tavris creating a false balance here, comparing social scientists relying on a foundation of three decades of research into sexual assault with conspiracy nuts who think the Feminists are out to steal their penises? I’ve got no way of telling, thanks to her vagueness.

As for that mention of “anonymous accusations,” it’s probable Tavris is talking about PZ Myers’ “Grenade” here. The problem is, those accusations were not anonymous; PZ Myers and Carrie Poppy both know the woman’s real name, she merely requested it not be published to prevent any retaliation by Shermer. This is quite plausible, as both PZ Myers and (if the rumours are true) Pamela Gay found out.

I kept the bastard’s secret for fear of my career, and now I don’t use his name for fear of his attorneys…

I got an email indicating that there are recordings of B discussing what happened in his non-profit work place. I was cc’d on a chain of emails that resulted in person B denying my experience. I responded with the same “this is what happened” as above. I’ve gotten pages and pages back. And, person B started cc’ing Famous Person A, a man who is known to be litigious.

According to the GSS23 incident file, 40% of attempted or actual sexual assaults were not reported because the victim fears retaliation. The “Grenade” woman’s request to remain anonymous to us is understandable.

So it’s sad to see that this lie refuse to die.

Here comes the theft analogy…

[20:11] No-one gets huffy if we warn women to protect their purses and wallets if they’re visiting Prague, by the way, which is known for its pickpockets – you can go online and find ways to protect yourself from pickpockets in Prague. Go try saying that, “protect yourself from pickpockets in Prague,” twelve times. [20:27]

Sigh. I’ll let the Googles handle this one.

When you carefully tuck your high-value portable property under the passenger seat (just kidding, smash-and-grabbers! That’s definitely not where my iPad is!), it’s because you don’t want potential thieves to know it’s there. But draping your vagina in a floor-length modesty frock is unlikely to persuade anyone that don’t have one, and therefore might not be worth violating. This is not a quantum mechanics problem. Schrödinger’s fanny is not a thing.

Sarah Ditum, “Three reasons why a vagina is not like a laptop.” The Guardian, May 26th, 2013.

This is one of the most insulting and most insidious analogies; I’ve caught myself using it . “A man carrying cash in a bad neighborhood would only be prudent to lock it in his car.”

No analogy is perfectly symmetrical with its analogue, but rape-theft comparison fails so obscenely because women’s bodies are not merchandise. Her body is not detachable from her–it is her self, her person. Her body is not the good china, to be locked up safely and displayed at appropriate times. Rapists do not steal sex or take from women–they attack and violate the woman herself.

When we say, “Here are the proper times, places, and protocols for being openly female in public” when we treat these restrictions as a legitimate and obvious solution to the evil of rape, we are effectively saying “Women are not for public space and public space is not for women.”

Of course, the word rape comes from rapere, which often means to snatch or pillage. For much of human history, the crime of rape has been construed as a sub-species of theft: theft of virtue, theft of marriage prospects, theft of a daughter or wife from her rightful owner. The current rape as theft discourse might associate the ownership and right of disposal of female bodies with the women in question, but idea that woman is a tradeable and alienable asset remains.

Clare Addie Christine, “Babes in Babylon” blog. June 18th, 2013.

To my knowledge, there is no effective way to prevent rape except not raping. Most people are sexually assaulted by someone they know. Many people are sexually assaulted at home or at the home of a friend. The only factor present in the vast majority of rapes (99%) is a male rapist. So the only effective way to prevent rape would be to avoid men regardless of your own gender. Obviously, that’s not realistic. And since only a small percentage of men (~6%) are rapists, you’d be cutting yourself off from a lot of potentially great (or at least not-rapey) people.

Miri, “Ten Ways Sexual Assault is Not Like Getting Robbed“. Brute Reason, August 28th, 2014.

“People leap to conclusions”

[4:05] So lately I have been thinking about the way [cognitive] dissonance operates in the discussions of sexual assault allegations. “Discussions” of sexual allegations? “Vituperations, rage, invective, threats, and the most loathsome name calling” is more like it.

Deja vu. As before, what’s missing from that calculus is that, perhaps, the invective and name-calling is justified?

“I was in shock. I was outraged and I just assumed kits were being tested,” said actress Mariska Hargitay about the thousands of rape kits in Detroit and across the country that have been left sitting in storage without being processed, allowing rapists to remain free to attack again. And they often do. …

Over 11,000 sexual assault kits, some dating back to the 1980’s, were found abandoned in a Detroit Police storage facility back in 2009. …

So far, 1,600 rape kits have been processed, resulting in the identification of about 100 serial rapists and ten convicted rapists, according to Worthy.

That seems like a perfectly sensible thing to be angry about. By the same token, wouldn’t you be angry if someone who assaulted you was known to be a sexual predator by other members of the skeptic/atheist community, but they never bothered to stop them or even mention it? I’m talking in hypotheticals, but other people have non-hypothetically invoked the same scenario.

Given things others have said online (revisit the timeline), it’s possible Shermer has a habit of getting women drunk and having sex with them (or trying to). Several people online claim to have witnessed his skirt-chasing in general (even propositioning a married woman while her husband was elsewhere in the same room) and evidence of his propensity to have multiple simultaneous ongoing affairs (some of which one source claims his wife eventually became aware and was looking online for others…I don’t know if Shermer and his wife are still married). I’ve been hearing other rumors like this for years, so this isn’t a suddenly new thing. It’s just spilling out into public now.

Isn’t that also worthy of anger, if true? Emotions are the symptom here, not the cause, so merely calling them out does nothing to handle the facts. Tavris, in contrast, prefers to talk in generalities. What sorts of “threats?” I strongly oppose any threats of physical harm made against Shermer; at worst he needs counseling, not violence, thrown his way. Or are these threats of not inviting him to conferences? That’s quite reasonable.

Determining whether or not the anger is justified requires delving the the details of who said what. Tavris never does, omitting critical context.

Consent

[24:44] Both sexes, often, do not in fact understand “no.” It can mean “no,” but occasionally it means “maybe” or “in a little while.” It can mean “I want to, but I don’t want to appear too easy because then you’ll call me a “slut” and I’ll have to go through all that “slut-shaming” thing. It can mean “persuade me.” [25:09]

[26:21] People rarely say directly what they mean, and they often don’t mean what they say. They find it very difficult to say what they dislike. They don’t want to hurt the other’s feelings. They may think they want intercourse, and then change their minds. They may think they don’t want intercourse, and then change their minds. [26:40]

[29:11] I made a lot of mistakes, as I learned to play what Deborah Davis called “The Dance of Ambiguity,” which protects both parties, and the relationship. By being vague and indirect, each party’s ego is protected in case the other says no. She can say “yes,” without having to explicitly admit it’s what she wants. Either one can subtly reject the offer without rejecting the suitor. It’s a terrific system, really, except for the fact that it gets both parties into so much trouble; as Davis says, “there’s a price for all of this ‘ego-protection’.” [29:51]

This is a perversion of consent. Say I head to a friend’s house for a party, get him good and drunk, then ask him if I can borrow his expensive camera for some camera tossing. He mumbles out a “yeah, sure.” He sobers up the next day and realizes his camera is missing. If I’m convinced he gave me clear consent to use his camera this way, but he’s unsure of whether or not he gave clear consent, was I justified in taking his camera?

Of course not; being unsure of consent means there was no consent. This is the legal view of consent:

Agreement given for something to be done, after the procedure has been fully explained so that the person understands the procedure and their right to agree or refuse. See consent.

Which is also in line with “informed consent” in science:

In order for the patient’s consent to be valid, she must be considered competent to make the decision at hand and her consent must be voluntary. It is easy for coercive situations to arise in medicine. Patients often feel powerless and vulnerable. To encourage voluntariness, the physician can make clear to the patient that she is participating in a decision-making process, not merely signing a form. With this understanding, the informed consent process should be seen as an invitation for the patient to participate in health care decisions.

So why should sexual consent be treated any differently?

This view of consent also ignores the findings of research into convicted rapists. One study[4] found that 83% of them didn’t view themselves as rapists. How did they manage that feat of cognitive dissonance? By deploying a number of excuses, such as:

Thirty-four percent (n = 11) of the deniers [or those who admitted to having sexual contact, but denied it was sexual assault] described their victim as unwilling, at least initially, indicating either that she had resisted or that she had said no. Despite this, and even though according to pre-sentence reports) a weapon had been present in 64 percent (n = 7) of these 11 cases, the rapists justified their behavior by arguing that either the victim had not resisted enough or that her “no” had really meant “yes.” …

Claims that the victim didn’t resist or, if she did, didn’t resist enough, were also used by 24 percent (n = 11) of admitters [or those who admitted to sexual assault] to explain why, during the incident, they believed the victim was willing and that they were not raping. …

Many of the rapists expected us to accept the image, drawn from cultural stereotype, that once the rape began, the victim relaxed and enjoyed it.6 Indeed, 69 percent (n = 22) of deniers justified their behavior by claiming not only that the victim was willing, but also that she enjoyed herself, in some cases to an immense degree. Several men suggested that they had fulfilled their victims’ dreams. Additionally, while most admitters used adjectives such as “dirty,” “humiliated,” and “disgusted,” to describe how they thought rape made women feel, 20 percent (n = 9) believed that their victim enjoyed herself.

So “playing coy” benefits rapists as well.

Strangely, Tavris never examines the alternative system, where everyone’s open with when and what they want in the sack. Doesn’t that sound glorious, being able to know exactly what you’re getting into when you have sex? Being able to share your fantasies, your desires, rather than almost always groping for them in the dark. Consider an ice-cream shop where the person behind the counter looks at you and guesses what flavor you want instead of asking. That’s ridiculous, yet it’s precisely the model we usually adopt about sex, and the one Tavris seems to endorse.

What do we if we’re nervous about taking some action? We talk it out, discuss it, role-play, and verbally work through it. We do not just toss you into the deep end of the pool. And seriously, if talking about what you want in bed is that difficult, how do you hope to perform it?

As for “bruised egos”, what’s more damaging, having your partner say they’re not into that kind of sex, or having them shove you away while you’re hot with passion? Even out of the bedroom, I have to say that if your relationship is badly damaged by learning the other person won’t have sex with you, you probably have a shitty relationship to begin with.

Ruination of reputation

Tavris mentions that accusations of false sexual assault can be ruinous if posted online. Yet, she does not provide a single example. In fact, here’s what happened to the lacrosse players implicated in her favorite example of a false report, the Duke lacrosse incident.

As for Seligmann, Finnerty, and Evans, the three men managed to move on past their scandal-ridden Duke days. Before news of the trial broke, Evans, the only senior accused, had landed a job with J.P. Morgan Chase. During the trial, the offer was rescinded, only to be reinstated after his name was cleared. Evans declined the offer, and instead accepted a position as an investment banking analyst program at Morgan Stanley. Today, Evans works at Apax Partners, a private equity and venture capital firm, as a Senior Associate in the Consumer team.

Seligmann, a sophomore at the time of the accusations, transferred to Brown following the trial, and then went to law school at Emory University. Today, he works as a law clerk at the U.S. District Court in New Jersey. Finnerty also left Dukeas a sophomore, and finished his degree at Loyola College in Maryland. Today, he works as an analyst at Deutsche Bank. Both Seligmann and Finnerty continued playing lacrosse at their new schools, each serving as co-captains of their respective teams their senior year.

Remember the Steubenville football players that were convicted of sexual assault? Guess what:

Seventeen year old Ma’lik Richmond is suiting up for the upcoming football season in Steubenville, Ohio. Reports circulating on Monday show pictures of the football player practicing with his teammates before their season begins. It’s a scene that must be playing out in nearly identical fashion on fields across the entire country, with one notable exception. Ma’lik Richmond is back on the team after serving a year in a juvenile detention center because he was convicted of raping an unconscious 16-year-old.

On the other end of the pole we have someone like Roman Polanski, the famous film director who pled guilty to “unlawful sex with a minor,” fled the country, and… continued to be a famous film director. Mike Tyson was convicted of rape during the height of his career, and on release…he immediately resumed boxing, eventually retiring a decade later.

What “ruination” is she talking about? Tavris only gives one example, of a student kicked out of college due to an investigation into sexual assault. Fair enough, but is that a typical case? She makes it sound like it is, yet with little effort I was able to offer up four counter-examples. Anecdotes can only indicate plausibility, at best; we need to string together multiple anecdotes into data to assess frequency. Tavris never attempts that; she’d rather generalize from a single case.

And seriously, when did skeptics start putting such a high value on anecdote? That’s all she had here, yet I haven’t seen a single skeptic call her out on that.

Consequences

I know, you ask: why does it all matter? Well, promoting myths about sexual assault can lead to fewer sexual assault convictions, if the police buy into them. A recent report put the number of “missing rapes” at one million between 1995 and 2012, due to misclassifying, destroying or ignoring evidence, or dismissals according to how the victim presented themselves.

Police officers display the same implicit biases as the general public, a tendency also evident at colleges and universities, where campus police are often more focused on investigating the credibility of victims than in whether or not their vulnerability was exploited in a predatory way. Studies show a strong correlation among police officers between rape-myth acceptance, sexist attitudes and an unwillingness to process or investigate reported assaults.

As earlier research claims:

An early study conducted in the United States of America, for instance, revealed that the police officers who participated in the research believed approximately three out of every five rape complaints to be either false or mistaken (Feldman-Summers and Palmer, 1980). Likewise, in Chambers and Millar’s (1983) Scottish study, many detectives estimated false complaints to be very common, with one saying he believed only 1:20 were ‘real rapes’ (Chambers and Millar, 1983: 85 footnote). Junior detectives would typically say that, although they had dealt with few false ones themselves, nevertheless they ‘knew’ false rape complaints were common (Chambers and Millar, 1983: 85 footnote).

More recently, Jennifer Temkin (1997) found when interviewing police in Sussex that half of the officers considered a quarter of all rapes reported to be false. She provided the following extreme example:

One CID officer, DC X, considered that there were ‘few cases of genuine, very genuine rape’. Genuine rapes he described as ‘off the street, didn’t know the victim at all’ rapes which he contrasted with ‘we went out for the evening sort of rapes’. (Temkin, 1997: 516)

Detectives in other United Kingdom research, however, believe the proportion of false complaints to be closer to one-half (e.g. Lees, 1997:184), with Ian Blair noting: ‘there is considerable evidence that investigators . . . seem prepared to give serious consideration to the proposition that between 50 per cent and 70 per cent of all allegations of rape are false’ (Blair, 1985: 53–4). One cynical detective even maintained: ‘After six years on the force, I don’t believe any of them’ (quoted in Burgess, 1999: 9).

The actual false report rate? 2-8% [6]. Justice is blind, all right, and that’s keeping criminals out of jail. That same study found that:

cases where the police clearly believed the complaint was genuine but the complainant insisted on withdrawing the complaint (N = 13; 38 per cent of genuine cases overall). All but one of these cases was cleared by the police as no offence disclosed, despite evidence of victimization being obvious. In five cases, it appears that the victim and perpetrator were either partners or ex-partners, and the complainant wanted them warned but not charged.[5]

By promoting myths and misunderstandings, Tavris is perpetuating a system that provides ample excuses for rapists to claim they did not rape, to make it more difficult to bring criminals to justice, and promotes a twisted view of sexuality and consent. To avoid this, all she had to do was take a close look at the science; one review found that 22,000 papers were published on sexual assault in the span of 35 years. [7]

She didn’t.

Deborah Davis’ Turn

And neither did Deborah Davis. You remember her, right, Tavris’ main source? Her main argument is exactly as Tavris paints it: ambiguous consent can be affirmative consent, and should not be counted as non-consent. It sounds like a fairly progressive idea, and certainly not something adopted by academia or the courts.

Wrong. Here’s some sample questions from the Sexual Experiences Survey (or SES). I’ll highlight the key bits:

8. Been in a situation where you tried to get sexual intercourse with a woman when she didn’t want to by threatening to use physical force (twisting her arm, holding her down, etc.) if she didn’t cooperate, but for various reasons sexual intercourse did not occur?

9. Been in a situation where you used some degree of physical force (twisting her arm, holding her down, etc.) to try to get a woman to have sexual intercourse with you when she didn’t want to, but for various reasons sexual intercourse did not occur?

10. Had sexual intercourse with a woman when she didn’t want to because you threatened to use physical force (twisting her arm, holding her down, etc.) if she didn’t cooperate?[8]

In every situation, the questions assume the victim was able to give a clear signal of non-consent, gave that signal, but sexual contact happened anyway. As the SES has formed the backbone of sexual assault research for the last thirty years, that means most of the sexual assault literature already excludes the cases Davis is talking about.

It’s the same with the courts,at least in Canada as of 1997.

79. The first situation targets ambiguous conduct by the complainant. While in the vast majority of sexual encounters the parties successfully communicate consent or refusal of consent without any difficulty or misunderstanding, the law recognizes that occasionally conduct may be so ambiguous that an appropriately concerned defendant will honestly misread the complainant’s actual refusal or incapacity as consent with capacity.

In the United States, ambiguous consent is handled via the “Mayberry defence,” which refers to a specific appeal handed down in 1975.

If a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of either kidnaping (§ 207) or rape by means of force or threat (§ 261, subds. 2 & 3).

Incidentally, if you want to see what a typical court case of ambiguous consent looks like, I recommend you find a safe place free of potential projectiles then look up “People v. Mayberry , 15 Cal.3d 143” online. Let me remind you that I said it was “typical.” I’ve read worse.

So Davis’ arguments are either irrelevant, or (sadly) have already been accepted long before she came up with them. How could she have missed this? I think she was using theory-driven research:

1. Come up with a theory.

2. Look for data to back up your theory.

3. Profit!

It’s the old hammer-nail situation; Davis is an expert on false memories, so she went looking for another domain where false memories could apply, and immediately extended what she knew over there without first becoming familiar with the existing literature. An amateur mistake, but as a professional she’d never think she was capable of amateur mistakes.

I know, you’re skeptical of my interpretation. Too bad! As it turns out, Tavris only used unpublished research from Davis, so you’ll have to wait days, weeks, or months to validate anything I’ve claimed, and even then I can just say the editing process must have wiped out the critical evidence. Of course, Tavris can play from the exact same book.

Yep, A Disaster

I’m not sure what’s more appalling, that a major skeptic organization thought this horribly flawed lecture was “one of the best ever given at The Amazing Meeting” (check the YouTube description), let alone that Tavris was capable of discussing sexual assault in the first place, or that so many skeptics fell over themselves to praise this anecdote-riddled, shoddy piece of work. Remember, that same organization is notorious for poorly managing sexual assault incidents, perhaps to the point of needing extra insurance (see above), so this also counts as a massive undisclosed conflict of interest.

I could go on. But I hope this brief overview was enough to get the point across.

~~~

[1] Loftus, Elizabeth F., and Jacqueline E. Pickrell. “The formation of false memories.” Psychiatric annals 25.12 (1995): 720-725.

http://www.psychedout.org/uploads/2/7/9/7/27978279/loftus_pickrell_1995.pdf

[2] In Tavris’ defense, even experts can be confused about the statistics. RAINN reports the same number, but leaves off the “serious violent” part and thus underplays the reporting problem.

https://www.rainn.org/get-information/statistics/reporting-rates

[3] Koss, Mary P. “The hidden rape victim: Personality, attitudinal, and situational characteristics.” Psychology of Women Quarterly 9.2 (1985): 193-212.

http://pwq.sagepub.com/content/9/2/193.full.pdf

[4] Scully, Diana, and Joseph Marolla. “Convicted rapists’ vocabulary of motive: Excuses and justifications.” Social Problems (1984): 530-544.

http://academic.udayton.edu/clarakim/criminology/articles/7-violent/Convicted%20Rapists%27%20Vocab.pdf

[5] Jordan, Jan. “Beyond belief? Police, rape and women’s credibility.” Criminal Justice 4.1 (2004): 29-59.

http://www.d.umn.edu/cla/faculty/jhamlin/3925/4925HomeComputer/Rape%20myths/Police.pdf

[6] Lonsway, Kimberly A., Joanne Archambault, and David Lisak. “False reports: Moving beyond the issue to successfully investigate and prosecute non-stranger sexual assault.” The Voice 3.1 (2009): 1-11.

http://www.nsvrc.org/publications/articles/false-reports-moving-beyond-issue-successfully-investigate-and-prosecute-non-s

[7] Rutherford, Alexandra. “Sexual Violence Against Women Putting Rape Research in Context.” Psychology of Women Quarterly 35.2 (2011): 342-347.

[8] Koss, Mary P., and Cheryl J. Oros. “Sexual Experiences Survey: a research instrument investigating sexual aggression and victimization.” Journal of consulting and clinical psychology 50.3 (1982): 455.

~~~

HJ Hornbeck is a former president of the University of Calgary Freethinkers, current feminist, and in future plans to get an “Atheism+” tattoo. He discussed the science of sex and gender at FTBCon2, and you’ll pry his academic access out of his cold, dead hands.
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[guest post] Debunking Some Skeptic Myths About Sexual Assault

43 thoughts on “[guest post] Debunking Some Skeptic Myths About Sexual Assault

  1. 2

    Thanks HJ, this was excellent.

    Its staggering that someone could give an actual talk on this subject and roll out that terrible theft analogy. I’m used to seeing it in comments in articles, from chumps who think they’ve come up with a devastating and original trump card, but from someone claiming to be a sceptic and some kind of authority is incredible.

  2. 3

    You’d think that somebody who cited the prevalence of a sub-set of rapes (intimate partner) to “debunk” the overall prevalence would be something that would set off a skeptics “bullshit detector”, not lead them to label the talk as “the best ever”. Of course the number is lower, how could it not be? But, I guess when you’ve already decided that acquaintance rape is akin to bigfoot and homeopathy then you’re going to believe anything somebody says to confirm it. The JREF used to be such a good organization, it’s a shame what’s happened to it.

    1. 3.1

      well, they did just fire Grothe and have announced a re-focus on kid-friendly education. Apparently this kind of bullshit has seriously fucked with their finances (and I assume their relevance).

      So there’s a bit of hope that they have decided they really don’t want to be the refuge of the skeptiscum anymore.

  3. 4

    1)she treated general population sexual assault stats and intimate partner rape stats as if they were about the same thing?! *winces*

    2)So she manages to describe the rape-culture-y, slut-shaming atmosphere about sex and sexual consent… and what? Her conclusions are that this is just how it is, and therefore it’s not rapey? What?

    And that’s aside from the part where we know that rapists are not actually confused about consent with this whole “dance of ambiguity” thing. THEY understand when a polite rejection is a rejection, but they also know how to use it to confuse and make their victims (and society) think that actually there was no rejection. http://yesmeansyesblog.wordpress.com/2011/03/21/mythcommunication-its-not-that-they-dont-understand-they-just-dont-like-the-answer/

  4. 5

    actually no, wait. she describes the rapey & slut-shaming atmosphere around sex, and concludes that this means were OVERestimating sexual assaults/rapes!? 0.o HOW the fuck would a culture this full of rape-myths and this full of ambiguity produce only false memories of rapes that weren’t, and not the opposite?! (I know you talk about this in this post… but I just can’t wrap my head around it)

  5. 7

    drken @3:

    You’d think that somebody who cited the prevalence of a sub-set of rapes (intimate partner) to “debunk” the overall prevalence would be something that would set off a skeptics “bullshit detector”, not lead them to label the talk as “the best ever”.

    That one doesn’t bother me, actually. It’s very easy to confuse the definitions of sexual assault and rape, especially when you’re juggling several jurisdictions at the same time.

    What does piss me off is that not one person has called out her over-reliance on anecdote. Strip those away, and all you have left are those two studies and the work of a single researcher, Deborah Davis. I thought skeptics were supposed to be extra-sensitive to that?

  6. 9

    Jadehawk @4:

    she treated general population sexual assault stats and intimate partner rape stats as if they were about the same thing?!

    Multiple times, no less. She also divides the pyramid into 20% people and 10% people. Speaking of which, did anyone else note that she grumbled about everyone rounding 19% to 20%, then later rounded 9% to 10% herself? It’s small potatoes, but I had to chuckle.

    And that’s aside from the part where we know that rapists are not actually confused about consent with this whole “dance of ambiguity” thing. THEY understand when a polite rejection is a rejection, but they also know how to use it to confuse and make their victims (and society) think that actually there was no rejection.

    Ooo, good catch. I was going to take that one a different route, and point out how the ambiguity argument plays out in the courtroom.

    Believe it or not, what you see above you is merely a quick summary. I banged off 90% of it in a day’s worth of spare time. I could easily double its length (and technically, I already have) if I gave it more attention.

  7. 10

    Tom Foss @6:

    I look forward to the talk you’re planning…I’m assuming it’s for FtBCon?

    You assume correctly. My unofficial goal is to double the citation count of my last one. Dunno if I can pull that off within the time limit, though. We’ll see.

  8. 12

    A more recent report from the Center for Disease Control, based on a nationwide phone survey conducted in 2010, reported that 9% of American women have been victims of completed forced penetration or attempted forced penetration in their lifetimes and an additional 3% have been victims of alcohol or drug-facilitated penetration.

    This is actually wrong three times over. One, as you say, the 9% figure from the CDC’s NISVS is for intimate partner rape only. Two, the 3% is not ‘additional’ as Tavris claims, but rather a subset of the 9%. Three, by far the most important of Tavris’ errors: the NISVS reported rates for all rapes, not just those commited intimate partners. The overall figure? 18.3%. The NISVS doesn’t contradict the DoJ figure, it confirms it.

  9. 14

    Uh, who’s “they?” Why do “they” have a “feel” that a 10% lifetime incidence of intimate partner rape is more accurate than a 20% incidence of sexual assault on campus?

    People who haven’t gone to college? Which, depending on what numbers you read and how you define “not going to college” (does going for a year and dropping out count?) seems to be anywhere from 50 to 70 percent of the population. I agree, the purpose of Tavris’s number juggling is confusing. She seems to acknowledge that she’s using numbers from different groups, but then seems to conflate them.

    The problem is, those accusations were not anonymous; PZ Myers and Carrie Poppy both know the woman’s real name, she merely requested it not be published to prevent any retaliation by Shermer.

    Sorry, but this is ridiculous. Anonymity here certainly refers to whether the source is known to the general public, not the fact that two people know who she is. A named source means the general public can evaluate a claim via other information they know about that person.

    Isn’t that also worthy of anger, if true?

    Well, I guess you can choose to be angry about whatever you want, but technically, the only thing that is even potentially illegal in that paragraph is that “it’s possible” Shermer tries to get women drunk and have sex with them. It’s quite “possible” that describes an illegal act, but nothing else there is even remotely illegal or even immoral. Perhaps you may disagree with a man having extramarital affairs, but honestly, it’s none of our business. You may be interested in my comment on that post, which I still stand by.

  10. 15

    This is a perversion of consent.

    I agree, this part of the talk was bad. Maybe after a couple know themselves very well they can play act with coyness, but for things like dating, this is a recipe for disaster.

    What “ruination” is she talking about?

    Can’t follow you on this one either. Whether reputations are irretrievably ruined or not, I don’t think you can dismiss the potential devastation of a false accusation. I mean, come on, if we’re going to take rape seriously, and we’re going to marshal moral and ethical principle to that end, you can’t just turn around and say meh, it’s no big deal if an accusation is wrong anyway. That reeks of hypocrisy. I’m sure cleared rapists are as eager as anyone brushed by the law to put the matter behind them. They’re probably not going to be writing articles like “my time as accused rapist.” Whatever their experience, we probably know little of it.

  11. 16

    Wow, I didn’t expect that much praise. Thanks, everyone! As for the sole exception:

    Hunt @14:

    She seems to acknowledge that she’s using numbers from different groups

    I’ve listened to the lecture at least five times, and never spotted that. Where does Tavris say that?

    A named source means the general public can evaluate a claim via other information they know about that person.

    And an unnamed source carries the same level of trust as the named person it is attached to. If that person isn’t trustworthy, few will believe them. So, what’s your point? Do you disagree with me, and think a person would face no consequences for making an accusation of rape? Or are you agreeing with me, and merely restating the obvious as if it was “ridiculous?”

    Well, I guess you can choose to be angry about whatever you want, but technically, the only thing that is even potentially illegal …

    Hold up there, you just conflated “angry” with “illegal.” Do you think the only valid anger is directed at an illegal act?

    the only thing that is even potentially illegal in that paragraph is that “it’s possible” Shermer tries to get women drunk and have sex with them. It’s quite “possible” that describes an illegal act, but nothing else there is even remotely illegal or even immoral.

    So other than the one possibly illegal act, there were no other illegal or immoral acts? What kind of argument is that?! You do bring up a good point, though. Here’s the most definitive US law on rape:

    (a) Rape.— Any person subject to this chapter who commits a sexual act upon another person by—
    (1) using unlawful force against that other person;
    (2) using force causing or likely to cause death or grievous bodily harm to any person;
    (3) threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
    (4) first rendering that other person unconscious; or
    (5) administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control conduct;

    is guilty of rape and shall be punished as a court-martial may direct.

    Notice anything missing there? In some jurisdictions within the USA, being part of a sex act that you haven’t consented to is not considered rape. That’s kinda barbaric, and contrary to what you’ll find in Canada and the UK, or even elsewhere in US law. If you proposed that someone could transfer a land title or government bond without consent, you’d be laughed out of court. So why the radically different standards about sex?

    1. 16.1

      Gah, I shouldn’t post in the early morning. I misunderstood your first point in your first comment, Hunt; you weren’t arguing that Tavris claimed they were different figures, you were agreeing with me that she was equivocating two separate statistics. Sorry about that!

    2. 16.2

      And an unnamed source carries the same level of trust as the named person it is attached to.

      Says who? Let’s invert this and suppose a very trustworthy source vouchsafes some bit of information to a totally unworthy intermediary. Are you still willing to say both have the same level of trust? The fact is, no matter what each level of trust happens to be, a secondhand account is not equivalent to a named source that the public knows and can investigate for themselves. This is what bugged me about “Shermergate.” We were supposed to trust PZ Myers. Well, as it happens, I don’t, for the reasons I explained in my comment to Carrier’s post that you linked.

      So other than the one possibly illegal act, there were no other illegal or immoral acts?

      I’m just curious about why you think we should be angry. So through his super-accurate game of telephone, Carrier gathers some instances of Shermer wielding a wine bottle and chasing other people’s wives. If Carrier’s telephone hasn’t failed him, Shermer may be trying to get people drunk to have sex with them. He skirt chases and is sexually active. And you’re angry. I’d just like to know in what way, exactly, you’re angry. Are you angry because you picture the worst, and that guy angers you?

      Notice anything missing there? In some jurisdictions within the USA, being part of a sex act that you haven’t consented to is not considered rape.

      I guess they figure that if consent is not given, then at least one of the other points will be violated.

      1. [FYI, all my comments are out of the mod queue.]

        Hunt:

        Says who?

        Says you. In the same paragraph, you make the following argument:

        P1. An unnamed source carries the same level of trust as the named person it is attached to.
        P2. PZ Myers is not a very trustworthy person.
        C1. Therefore, his unnamed source cannot be trusted.

        If you want to refute your primary argument in order to vindictate a secondary one, be my guest.

        The fact is, no matter what each level of trust happens to be, a secondhand account is not equivalent to a named source that the public knows and can investigate for themselves.

        And where did I say otherwise?

        We were supposed to trust PZ Myers.

        We were? Who was enforcing that, if anyone?

        I’m just curious about why you think we should be angry.

        Read more carefully: I was arguing we could be angry, not that we should be. I can’t control your emotional state, let alone read it. The same is not true for you, though:

        And you’re angry. I’d just like to know in what way, exactly, you’re angry.

        I am? How did you infer my emotional state from characters scattered across a screen, and how is your assessment of it my accurate than my own? And how exactly does my emotional state answer the question I asked of you?

        You’re not actually answering my questions, you’re just spouting non-sequeters and hoping we’ll trust you enough to accept them. That only works for Presuppositionalists preaching to their flock.

        You wouldn’t happen to post at the SlymePit, would you?

        1. Says you. In the same paragraph, you make the following argument:

          Just because I’m focusing on the bad argument that was provided doesn’t mean I endorse it. Even given that measly rationale, my point is that it fails miserably because I don’t trust Myers in that context. This just shows how bad the argument is. If you’re going to do something like this, i.e. judge things in the court of public opinion, you need to provide the public with enough information to judge for themselves.

  12. 17

    Hunt @15:

    Whether reputations are irretrievably ruined or not, I don’t think you can dismiss the potential devastation of a false accusation.

    Can a false accusation be devastating? Sure. As a rule, are false accusations devastating? Both you and Tavris seem to think so, yet I had no problems coming up with counterexamples. Either you need to provide a representative sample of false accusations and show that a reasonably large majority were devastating, or you’re both guilty of overgeneralizing from a handful of hand-picked cases.

    1. 17.1

      You showed that three men found jobs after being falsely accused. That’s not showing that false rape accusations aren’t devastating. You’re guessing, from a tiny sample and a strong bias. “or you’re both guilty of overgeneralizing from a handful of hand-picked cases.” I think what you mean is “or we’re both guilty…” because you’re already guilty of doing that, and I would be guilty if I followed suit.

      1. Hunt:

        OK, I’ll change it to “why could we be angry”

        Ok, then you have to explain why someone couldn’t be angry at the scenario I outlined above:

        By the same token, wouldn’t you be angry if someone who assaulted you was known to be a sexual predator by other members of the skeptic/atheist community, but they never bothered to stop them or even mention it?

        Hunt:

        Just because I’m focusing on the bad argument that was provided doesn’t mean I endorse it.

        So why do you endorse it in the next sentence?

        Even given that measly rationale, my point is that it fails miserably because I don’t trust Myers in that context.

        The only way that “Hunt doesn’t trust Myers” could be transformed into “the unnamed source is unreliable” is via that argument, that we know of. You have not even attempted to come up with an alternative. Ergo, either you endorse the argument or you’re making a non-sequitur.

        This just shows how bad the argument is.

        No, it demonstrates how bad you are at basic logic.

        Hunt:

        If you’re going to do something like this, i.e. judge things in the court of public opinion, you need to provide the public with enough information to judge for themselves.

        Done.

        Hunt:

        You showed that three men found jobs after being falsely accused. That’s not showing that false rape accusations aren’t devastating.

        Exactly. I explained this in the OP:

        Anecdotes can only indicate plausibility, at best; we need to string together multiple anecdotes into data to assess frequency. Tavris never attempts that; she’d rather generalize from a single case.

        I never bothered to state the obvious, that the same argument applies to me, because I figured most people would figure that out on their own. You did, in line with expectation, but then you assumed I was asserting “false rape accusations aren’t devastating.”

        I can’t help but notice you haven’t answered any of my earlier questions, either.

        Hold up there, you just conflated “angry” with “illegal.” Do you think the only valid anger is directed at an illegal act?

        And where did I say otherwise[, that a second-hand account has equal or greater trustworthiness to a first-hand account]?

        We were [supposed to trust Myers]? Who was enforcing that, if anyone?

        How did you infer my emotional state from characters scattered across a screen, and how is your assessment of it my accurate than my own? And how exactly does my emotional state answer the question I asked of you[, about that bizarre argument where you pointed out there were no additional illegal or immoral acts]?

        Running away from your arguments indicates you’re arguing in bad faith, Hunt, and it’s getting to the point where the typical reader would agree with me.

        1. Ok, then you have to explain why someone couldn’t be angry at the scenario I outlined above:

          I’m sure a person would be angry in that scenario, but this is a bad argument to condone innuendo regarding Shermer, since Shermer’s guilt or innocent is the subject at hand. It amounts to begging the question. You’re assuming Shermer is guilty, therefore further victims will be angry if he isn’t exposed. Further, the subject is those “other members of the skeptic/atheist community.” Who are these people? How can I interview them and ask them questions and corroborate their stories? What are their reputations? I have no idea. This should bother you. None of these objections are original to me. They are nearly cliche through hard won historical experience. This is how “witch hunts” (yes, I went there) have operated for centuries.

          The only way that “Hunt doesn’t trust Myers” could be transformed into “the unnamed source is unreliable” is via that argument, that we know of. You have not even attempted to come up with an alternative. Ergo, either you endorse the argument or you’re making a non-sequitur.

          The point is one person’s word is a poor substitute for known, firsthand testimonial. If you don’t agree, then I doubt I’m going to convince you with more words.

          I never bothered to state the obvious, that the same argument applies to me, because I figured most people would figure that out on their own. You did, in line with expectation, but then you assumed I was asserting “false rape accusations aren’t devastating.”

          Tavris, I, you (probably) and others take it for granted as a given. If you’re determined to be pedantic, then I guess the point needs to be proven, but it sounds kind of nitpicky. Your counterexamples don’t show much anyway, since they are of young men, students, who are usually given more leniency. In effect, they have no reputation TO destroy. Also, remember, just because a false accusation happens to in fact be false, that won’t necessarily ever be proven. So in effect you’re saying that we need to prove that any accusation of sexual harassment, even ones that finally stick, are not potentially devastating, which is, again, ridiculous.

          By the way, where were you when stories more similar to Shermer’s case came up? Here’s PZ describing his own brush with sexual harassment allegations:

          I had to work fast, because I knew that if it turned into a he-said-she-said story, it wouldn’t matter that she was lying, it could get dragged out into an investigation that would easily destroy my career, no matter that I was innocent.

          Hmmm, technically an unsupported proposition, I guess.

          Hold up there, you just conflated “angry” with “illegal.” Do you think the only valid anger is directed at an illegal act?

          No, not at all. Again, I’m just curious about the way in which a person “could” find anything in that paragraph angering. Maybe you’re not the one to ask.

          And where did I say otherwise[, that a second-hand account has equal or greater trustworthiness to a first-hand account]?

          Did you not say this, or what did you mean if that’s not what you’re saying?
          “And an unnamed source carries the same level of trust as the named person it is attached to.”

          We were [supposed to trust Myers]? Who was enforcing that, if anyone?

          Nobody was enforcing it. I certainly didn’t buy it. However, that was a popular argument at the time. If you doubt it, review the contemporaneous posts and commentary.

          How did you infer my emotional state from characters scattered across a screen, and how is your assessment of it my accurate than my own? And how exactly does my emotional state answer the question I asked of you[, about that bizarre argument where you pointed out there were no additional illegal or immoral acts]?

          I don’t exactly understand what you’re rambling about here. I suspect it’s about the previous question and Carrier’s paragraph. Again (and again) when a paragraph outlines hypothetical criminal act and then perhaps sexual indiscretion and then someone talks about finding it angering, my curiosity is piqued.

          1. Huny (“Huny?” Did you open up a new account to get around a ban?):

            this is a bad argument to condone innuendo regarding Shermer, since Shermer’s guilt or innocent is the subject at hand.

            No no no, Hunt, you’ve wandered away from the plot again. Look at the first sentence of my guest post: “Carol Tavris’ talk came at the worst time for me, as well as the best. I’m too busy at the moment to give it a proper fisk, because I’m preparing a lecture on sexual assault.” I only brought up Shermer because of an argument Tavris made about anger, and only then to show my hypothetical situation might also apply to the current situation. Might. My real goal was to argue that “vituperations, rage, invective, threats, and the most loathsome name calling” can be justified in some circumstances, contra Tavris’s implication, and in your case I’ve succeeded with flying colours:

            I’m sure a person would be angry in that scenario

            I’m not in a mood to grind your axes over Michael Shermer or Richard Carrier for you. Focus, Hunt.

            Your counterexamples don’t show much anyway, since they are of young men, students, who are usually given more leniency. In effect, they have no reputation TO destroy.

            Mike Tyson and Roman Polanski were young students, without reputations to their names?

            Also, remember, just because a false accusation happens to in fact be false, that won’t necessarily ever be proven.

            In other words, some true accusations will never be proven. Sure, that sounds right. I have no idea what it has to do with what follows, though:

            So in effect you’re saying that we need to prove that any accusation of sexual harassment, even ones that finally stick, are not potentially devastating, which is, again, ridiculous.

            No, I meant exactly what I said: you cannot point to a few specific cases and use them to generalize about all cases. You need to do a careful sample of all cases to make a semi-justified claim about all cases. Neither Tavris nor I have done that, and so neither of us are justified in making blanket statements about how devastating an accusation of sexual assault can be.

            Again, I’m just curious about the way in which a person “could” find anything in that paragraph angering.

            … Waaaait a minute, didn’t you just say in the very same comment:

            I’m sure a person would be angry in that scenario

            How can you both wonder why that scenario could be worthy of anger, and know that it would be? You’re not even internally consistent! And how could you mistake this:

            And an unnamed source carries the same level of trust as the named person it is attached to.

            for this?

            a second-hand account has equal or greater trustworthiness to a first-hand account

            The first refers to how much to trust someone’s second-hand account, absent any comparison to first-hand accounts, while the second compares second- and first-hand accounts while keeping trust equivalent. They’re orthogonal to one another.

            hjhornbeck:

            How did you infer my emotional state from characters scattered across a screen, and how is your assessment of it my accurate than my own? And how exactly does my emotional state answer the question I asked of you[, about that bizarre argument where you pointed out there were no additional illegal or immoral acts]?

            Hunt:

            I don’t exactly understand what you’re rambling about here. I suspect it’s about the previous question and Carrier’s paragraph.

            And now you’ve apparently lost the ability to scroll up.

            Hunt:

            And you’re angry. I’d just like to know in what way, exactly, you’re angry.

            Your personal grudges, internal contradictions, invented arguments, tendency to run from your arguments, and your blind spots make you impossible to argue with. Given the choice of holding your hand and walking you through the fundamentals yet again, or just giving up and letting your “arguments” speak for themselves, I’m strongly leaning to the latter.

  13. 19

    You’re being unfair, you’re using data!

    False memories and leaping to conclusions: These only ever happen to “alleged” victims (or those supporting the victim), right? Right?

    THIS.
    It’s not like perpetrators change their memories and interpretations to fit their own self-concept ever, right?

  14. 20

    Thank you, HJ. This is great stuff. I look forward to your talk.

    One lingering question about Shermer was answered for me over the weekend. He cancelled his appearance at DragonCon because he was going to be on his honeymoon. While that seems like an odd scheduling conflict to suddenly crop up, it does indicate that he and the wife who was looking online for evidence of his infidelity did get divorced.

  15. 21

    Giliell @19:

    It’s not like perpetrators change their memories and interpretations to fit their own self-concept ever, right?

    I’ll get to that shortly. 😉 But for now, it’s time for a history lesson on US sexual assault law. The omission of consent actually dates back to the 1950’s and 60’s, to the creation of the Model Penal Code. As the American Law Institute puts it:

    The purpose of the Model Penal Code was to stimulate and assist legislatures in making a major effort to appraise the content of the penal law by a contemporary reasoned judgment—the prohibitions it lays down, the excuses it admits, the sanctions it employs, and the range of the authority that it distributes and confers. Since its promulgation, the Code has played an important part in the widespread revision and codification of the substantive criminal law of the United States.

    It was sorely needed.

    When the Model Code project was launched in 1951, the vast majority of American criminal codes were in a sorry state. Only Louisiana had undertaken a serious effort to reform its criminal code since the nineteenth century. A typical American criminal code at the time was less a code and more a collection of
    ad hoc statutory enactments, each enactment triggered by a crime or a crime problem that gained public interest for a time. The major contribution of previous code “reforms,” including the reform of the federal criminal code in 1948, was to put the offenses in alphabetical order.
    Robinson, Paul H., Markus Dirk Dubber, and Buffalo Criminal Law Center Director. “An Introduction to the Model Penal Code.” Aufsatz: Veröffentlicht auf der Internetseite der University of Pennsylvania Law School, zitiert: Robinson/Williams/Dubber (2010).

    The law I quoted above, from the United States Code of Military Justice, is almost exactly the same as what the American Law Institute released:

    Section 213.1. Rape and Related Offenses.

    (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
    (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
    (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
    (c) the female is unconscious; or
    (d) the female is less than 10 years old.

    The writers of the Code had two primary arguments for dropping consent from that section. Emphasis is mine.

    Changing the focus from the woman to the man’s conduct sounded like a step in the right direction; until then, the woman’s conduct was put on trial, judged, and often found wanting. The status of the victim then becomes a factor in the trial; was she a virgin, was she married, was she a ‘party girl’ or prostitute? Nevertheless, the reasons for not including consent in the Model Penal Code rules rested on sexist notions about women and consent too. The writers assumed that women say ‘no’ and don’t mean it, that women are ambivalent about consent to sex, and that women have conflicting emotions and are unable to directly express their sexual desires. Model Penal Code contributors delineate between forcible rapes, on the one hand, and on the other, reluctant submission. Only the former, forcible rape, was a serious crime.
    McGregor, Joan. “The legal heritage of the crime of rape,” Handbook on sexual violence. Routledge, 2011. pg. 77.

    Whoa, that’s almost identical to Tavris’ argument!

    [9:45] There are men who rape out of a desire to dominate, humiliate, or punish their victims; soldiers who rape captive women during war, and then often kill them; soldiers who rape military women to convey the message “you aren’t wanted here;” men who rape other men, in gangs or prisons; men who rape women to keep them “in their place,” as with the horrific gang rapes we’ve been hearing about in Egypt, Afghanistan, and India. Some rapists, including a significant percentage of the perpetrators on college campuses, are predators, repeat offenders who use force, alcohol, or roofies. Few dispute that these acts of rape are contemptible and criminal. [10:30] […]

    [11:10] But 85% of all reports of rape in this country occur between people who know each other. And it’s here, in people’s intimate lives, where sexual encounters can be far more ambiguous. [11:20]

    [24:44] Both sexes, often, do not in fact understand “no.” It can mean “no,” but occasionally it means “maybe” or “in a little while.” It can mean “I want to, but I don’t want to appear too easy because then you’ll call me a “slut” and I’ll have to go through all that “slut-shaming” thing. It can mean “persuade me.” [25:09]

    This was quite predictable. The law is almost always painted in strokes of black and white: people are either guilty, or not guilty; if an action matches section 213.1, and only then, it is legally called rape; and so on. There’s only two ways to handle ambiguity of action in that framework. Ether raise the bar, in this case by going with a minimum of “enthusiastic” or reasonable proof of consent; or lower the bar, de facto arguing that consent to sex is either automatic or easily implied.

    As the ALI also thought that people could be ambiguous with consent, and also balked at raising the bar, they had no choice but to set it low. Tavris’ ignorance of the law has an amusing side effect: we can explore what would happen if her arguments were extrapolated into law.

    Because those laws were put into place, in her home country, forty to fifty years before she gave those arguments.

  16. 22

    [this comment references something that’s currently in the mod queue. Also, TRIGGER WARNING: details of EXPLICIT sexual assault and worse.]

    Let’s start with the conclusion of People v. Burnham (1986) [176 Cal. App. 3d 1134], an appeal which overturned an earlier conviction.

    If it is a defense to a crime the defendant entertained a good faith and reasonable belief the victim consented to the act, fn. 20 and that defense is supported by evidence worthy of consideration by a jury, even though such evidence may not inspire belief, is incredible, or the evidence is circumstantial or is based upon the defendant’s testimony alone, the court must give the mistake of fact instruction to the jury sua sponte if that instruction is not inconsistent with the defendant’s theory of defense

    That seems pretty fair: if there was “a good faith and reasonable belief the victim consented” on behalf of the accused, the jury must be instructed about the “Mayberry defense” (see the OP). As that wasn’t done, a possible defense was closed off to the defendant. By itself, that isn’t enough to overturn; the evidence for that defense also has to be “worthy of consideration,” you can’t just invoke aliens or demons or some other nonsense. The appeal judge had no problems rattling off several such pieces of evidence, though.

    In the instant [or current] case [the] appellant never denied the events, which formed the crux of the state’s charges, took place. Rather, appellant consistently contended that his wife consented or agreed to each act. Appellant testified throughout his direct examination that his wife said “I’m willing to,” “I’m willing to continue doing it,” “You don’t have to worry about it … I can handle it,” and “She agreed to it.” Appellant described conduct by his wife indicating consent. The testimony of appellant clearly supported the inference he believed his wife consented to the acts of intercourse and to the act of penetration by a foreign object. That inference, in turn, constituted evidence deserving of consideration by a jury.

    In addition to appellant’s testimony, there was circumstantial evidence from which the jury could infer appellant believed his wife consented. There was testimony appellant’s wife sent approximately 18 letter[s] to appellant reiterating a theme of love for appellant and a fear that appellant would leave her. There was testimony on many occasions appellant’s wife orally professed her love for appellant. There was testimony appellant’s wife carried a loaded pistol in her purse at all times (and, presumably, could have threatened appellant with it and made her way to neighbors or the police). Three witnesses testified, in effect, appellant’s wife was sexually promiscuous.

    Accordingly we must conclude, under these facts, there was evidence worthy of consideration by a jury that appellant believed his wife consented.

    Ok, things are starting to get fishy. The whole point of striking consent from the Model Penal Code was to avoid situations where the victim’s past was used against them, and yet here we are tut-tutting over her promiscuity and pointing to love letters. So what, exactly, did Victor Burnham do? Two documents provide some clues:

    In California in 1981 Victor Burnham was convicted of marital rape after three of his wives testified to rape, battery and torture at his hands, dating back to 1964.

    The last example points out the situation that the courts have often treated allegations of marital rape as a “he said, she said” situation, much like allegations of stranger rape or sexual harassment. It is almost as if one must have corroborating witnesses; and in the case of marital rape, that is often difficult to produce. In the Burnham case, however, it was quite easy because he had two former spouses who had also experienced rape and repeated torture and they were willing to testify.

    …. Repeated torture?

    Episodes of torture with a battery-charged cattle prod and an egg beater, as well as forced intercourse with large dogs, were recounted in Merced County Superior Court … by two of Victor Burnham’s former wives…The present Mrs. Burnham told the jury her husband forced her to submit to sex with dogs as well as his acquaintances. He took photographs which can only be described as pornographic…

    What?! This can’t be the same case!

    It is contended the appellant admitted giving a severe beating to his wife on February 11; fn. 8 therefore, “As a matter of law, appellant could not have a reasonable belief that [his wife] consented to sexual intercourse after she was almost killed by the appellant on February 11, 1981.” The other contention is similar, namely, the charge of attempted penetration with a foreign object (a canine penis) fn. 9 is such a “depraved, degrading type of assault” that it is “inherently incredible” to believe that after the severe beating the appellant reasonably believed his wife “consented to this revolting abuse.”

    So Mrs. Burnham was tortured with a cattle prod and egg beater, beaten to the brink of death, forced to engage in bestiality, backed by three witnesses and Mr. Burnham himself, and the judge thought it was POSSIBLE she could have granted consent, based ONLY on the testimony of her husband?! We’re not even supposed to be CONSIDERING consent in the first place, just force! This can’t possibly get any worse.

    Despite the fact that our review of the record establishes the evidence against the appellant was overwhelming, and despite the fact that we might be convinced beyond a reasonable doubt that instructing the jury pursuant to CALJIC No. 10.23 would not have resulted in a more favorable verdict, we are required by the doctrine of stare decisis to follow the decisions of our Supreme Court when those decisions have given us clear and unequivocal rules to follow.

    What. The. Fuck. At the same time the judge was arguing there was a possible defense of consent, they thought the defendant was guilty beyond a reasonable doubt and that another judge or a jury would agree? Don’t those two contradict?!

    It also clashes with Tavris’ arguments. As I quoted above, she walls off certain rape situations as universally condemned and immune from any “ambiguous consent” defense. And yet, here’s one case where not only was that wall breached, it had a major impact on the case. Her arguments can, have, and are applied to cases she thinks they can’t possibly be.

    And the results are horrific. The above is the worst example I know of, but it’s by no means alone…

  17. 23

    Hunt

    Can’t follow you on this one either. Whether reputations are irretrievably ruined or not, I don’t think you can dismiss the potential devastation of a false accusation.

    The point is not that it is WRONG to falsely accuse somebody*, but that in this world, even a rape conviction hardly affects the perpetrator’ life beyond the sentence. Therefore the claim “false rape accusations ruin innocent men’s lives” is simply not true.

    *Which actually hardly ever happens. Fals rape claims are not only rare, they are also usually “stranger in the bushes” accusations. What happens are mistaken false accusations, meaning that the rape happened, but that the victim identifies the wrong person as the rapist.

  18. 25

    [TRIGGER WARNING: sexual assault and assault in explicit detail]

    While I linked to People v. Mayberry earlier and flagged it as an ambiguous consent case, I never went into detail. It’s worth giving that detail, however, as it’s become pivotal to US law.

    This particular case was an appeal of the earlier conviction of the Mayberry brothers. According to one of the brothers, Franklin,

    he saw Miss B. about 4 p.m. on July 8, 1971, and engaged her in conversation, after which he accompanied her to the grocery and the store where she purchased cigarettes. They then walked to his home. He did not threaten her, nor did she protest but accompanied him willingly and agreed to, and did engage in, intercourse. He denied seeing Booker hit her, but recalled that Booker entered the apartment while she was there and began laughing. She looked upset, said, “I’ll fix you,” and left.

    While the other brother, Booker, said that

    when he returned to his apartment on July 8, 1971, he found Franklin and Miss B. in bed. He left the apartment and, upon his return, commenced laughing. Miss B. put her hands over her face and left. Booker denied having touched her.

    “Miss B””s testimony is pretty long, so I’ll summarize. A group of men harassed her as she entered a grocery store. Franklin grabbed her arm, kicked her, and threw a beer bottle at her (which hit). He followed her into the store and demanded she come outside, otherwise she’d “pay for it.” Outside the store, he struck her again, threatened to knock out all her teeth, and said he’d rape her. Miss B stalled for time, tried playing along to gain sympathy, but in the end Franklin grabbed her elbow and directed her to the apartment.

    Once inside, he locked the door. Miss B continued to insist she didn’t want to have sex, and tried to talk Franklin out of it, but to no avail. She was struck while being raped. Booker then arrived, and demanded his turn. When she continued to refuse, he tossed her against the wall and hit her repeatedly. The ordeal only ended when Booker started choking her and Franklin eventullly pulled them apart, in the process bringing Miss B. close to the now-unlocked door.

    While there were no witnesses, several people including a police officer testified to the extensive bruising on Miss B. No other explanation was ever given.

    Most of the counter-arguments in this appeal (to mention two, that Miss B. was drunk or never tried to run away) were soundly rejected. One wasn’t, though.

    The court refused to give requested instructions that directed the jury to acquit Franklin of the rape and kidnaping if the jury had a reasonable doubt as to whether Franklin reasonably and genuinely believed that Miss B. freely consented to her movement from the grocery store to his apartment and to sexual intercourse with him. Franklin contends that the court thereby erred. The Attorney General argues that the court properly refused to give the instructions because “mistake of fact instruction[s] as to consent should be rejected as against the law and public policy.”

    People v. Burnham was just following the same logic. The judge goes through each of the Attorney General’s defenses, and either rebuts them with existing case law or points out they’d nullify the law.

    The Attorney General notes that utmost resistance by the female to establish lack of consent to intercourse is not required. … Such an argument, in our view, invokes a policy consideration for the Legislature — adoption of the argument would result in effective nullification of Penal Code sections 20 and 26 when applied to cases of kidnaping (Pen. Code, § 207) and rape (Pen. Code, § 261, subds. 2 & 3).

    And so, the court winds up simultaneously arguing for ambiguous consent …

    Franklin’s testimony summarized above could be viewed as indicating that he reasonably and in good faith believed that Miss B. consented to accompany him to the apartment and to the subsequent sexual intercourse. In addition, part of Miss B’s testimony furnishes support for the requested instructions. It appears from her testimony that her behavior was equivocal. Although she did not want Franklin to think she was consenting, her “act” and admitted failure physically to resist him after the initial encounter or to attempt to escape or obtain help might have misled him as to whether she was consenting.

    … while distancing itself from that argument, by saying it was merely “deserving of consideration” …

    We by no means intimate that such is the only reasonable interpretation of her conduct, but we do conclude that there was some evidence “deserving of … consideration” which supported his contention that he acted under a mistake of fact as to her consent both to the movement and to intercourse. It follows, accordingly, that the requested instructions, if correctly worded, should have been given.

    … and acknowledging that even if it had been considered, it probably wouldn’t have changed the original verdict.

    Here the jury, by finding Franklin guilty of kidnaping and rape, impliedly found that Miss B. did not consent either to the movement to his apartment or to sexual intercourse. While we reverse the rape and kidnaping convictions because of the court’s failure to give the requested mistake of fact instructions, those instructions pertained to Franklin’s state of mind and the failure to give them does not affect the import of the jury’s finding that she did not consent to the movement or to intercourse.

    For the second time, I’ve not only shown that “ambiguous consent” has been part of US law for over forty years, I’ve also shown it’s used on cases that Tavris and Davis claim it could never be used on.

  19. 26

    HJ
    It should be noticed that those who insist that consent is oh so ambigous ALSO insist that affirmative or enthusiastic consent is way over the top.
    It’s almost as if they didn’t want the rules to be clear so they can have some room to move…
    And holy shit, how that can be considered “amibigous” makes you wonder what would count as “clear”. You robably need to be dead for that and then they’ll probably instruct the jury to consider assisted suicide…

  20. 28

    Giliell, professional cynic -Ilk- @25

    It should be noticed that those who insist that consent is oh so ambigous ALSO insist that affirmative or enthusiastic consent is way over the top. It’s almost as if they didn’t want the rules to be clear so they can have some room to move…

    If they’re arguing for plausible deniability, they’ve got some fuck-up priorities. Don’t they also realize that consent is a recognition that you’re a human being possessing full liberty, a recognition of basic human rights? I wonder how many of them are libertarian…

    And holy shit, how that can be considered “amibigous” makes you wonder what would count as “clear”.

    Good point. Did you notice that consent was a major deciding factor in both of these cases? Didn’t the Model Penal Code try to remove consent from consideration?

    You can’t push back against the tide, though. Consent is such a foundational part of all our laws that it creeps in everywhere, and new laws don’t magically toss out a century of legal precident. All that happened was that “consent” became synonymous with “lack of resistance,” the part of the law that it most resembled. Defense lawyers just re-worded their old arguments and continued to use them.

    I hope you see how dangerous this equivocation is. US law is effectively arguing you consent to sex by default, and only opt out by taking clear action or possess clear fear of threat. What’s “clear?” Whatever convinces multiple judges and juries, because as we’ve seen the defendant can appeal the first decision and win on the second, even if only by technicality.

    [TRIGGER WARNING: explicit detail of sexual assault and violence]

    This case, State v. Gonzales, is an appeal of an earlier conviction. Interestingly, the alleged victim was the only one who testified about the incident itself, Gonzales opted to remain silent. According to the presiding judge,

    Prosecutrix had what might be described as a casual and friendly relationship with the defendant. He had given her a jewel box which he had made for her and they had attended parties together and apparently had danced together.

    So it wasn’t much of a surprise when he walked into the bar where she worked in 1971. They hung out for a bit.

    He had come to the bar with another man, who apparently had been drinking too much, and sometime prior to the time prosecutrix left the bar defendant asked her for a ride home. She advised him she did not take anyone home. When she left the bar to drive home defendant followed her and when she climbed into the driver’s side of the car defendant went to the other side of the car and got in and repeated his request to be driven to Lovell. She again refused, although she said she was nervous and scared at the time and she made no further protest, nor did she seek help from the proprietor or any of the five other people in the bar and drove without stopping or signalling with the horn.

    Gonzales asked to be driven to his mother’s place. The alleged victim continued to protest, even stopping the car a few times, but he was adamant.

    He asked her to stop “to go to the bathroom” and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car when he “went to the bathroom” and made no attempt to leave. When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, “I’m going to do it. You can have it one way or the other.” She says he was mad because she was trying to talk him out of it, although there is no testimony as to exactly what was said or done during this period. After this threat he took off her shoes and when he said he’d take off her panties if she didn’t, she took them off. Her clothes were in no manner torn and she did not know if her hair was mussed. She was in no manner bruised and, as she admits, she was never struck at any time.

    And then, well:

    She says that it seemed like two to three times he performed the sexual acts upon her but did not remember. During this time she kept begging him to let her go home. He replied he would let her go when he was through. At least two hours later she took him to his mother’s and stopped at her own home to check on two of her sons and then went to … where her other boy was staying and where she first made this complaint and was interviewed by the deputy sheriff.

    This should be pretty open-shut. There were threats of violence, obvious signals of non-consent, and the defendent never rebutted any of it. But

    At the time of the finding of guilt the court said:

    “We all know the law does not require a woman to fight to the utmost. All she is required to do is to resist until such time as she becomes convinced resistance is going to do her no good. She does not have to subject herself to a beating, knifing, or anything of that nature. As long as she is convinced something of a more serious nature will happen, she is then given by law the right to submit.”

    Wilson v. United States, 9 Cir., 250 F.2d 312, 324, rehearing denied 254 F.2d 391, equates such statement with erroneous jury instructions.

    I can’t find the original case for context, but I seriously doubt that could improve things. I’ve read that passage over, several times, and can’t figure out how it’s unreasonable (let alone prejudicial). The presiding judge, and presumably also the one that ruled on Wilson v. United States, is arguing that while being raped all persons must be willing to lose life and limb, to demonstrate their non-consent. Anything less is an admission of consent.

    What about the threats of violence? The judge finds no credible ones.

    To sustain her knowledge of his quick temper and violence she testified about an incident wherein defendant was alleged to have threatened to beat her if he ever heard she was on dope. The court at the time this testimony was given stated that it had “no bearing whatsoever on the future threats,” with which we are inclined to agree, suggesting that it might even indicate a concern for her welfare.

    Two other incidents are brought up. Gonzales had been asked to help a dancer, and when things escalated the alleged vicitm stepped in to prevent any violence from occurring; as no violence actually occurred, the judge did not consider this evidence of violent tendencies.

    Additionally prosecutrix testified he had come into the bar on one occasion badly bruised and she said he told her he had been in a fight but no further particulars appear. There is no mention of violence in this connection. This is not a firm basis upon which to sketch a man of violence and one who would inspire fear. It is further to be noted that Wanda Meeks, a close friend of prosecutrix who had known defendant eight to ten years, testified concerning several occasions when she had seen defendant and described him as acting like a gentleman and said he had never “said or did anything out of the way to me,” nor had she seen him act in any manner hostile or violent toward the prosecutrix on any occasion when she had been present.

    So the judge found there was insufficient evidence of resistance, and effectively concluded the alleged victim must have consented. They also found no reason for her to fear this man, dismissing his threats as irrelevant or non-starters. You might have guessed the outcome, but I bet you’ll be surprised at the honesty of this judge.

    Under these circumstances we find it unnecessary to discuss whether there was sufficient substantial credible evidence offered by the State in this case to sustain a conviction. Inasmuch as the case must be retried in conformity with these principles we do not deem it amiss to state it is not entirely fair to a trial court or to the defendant to rely upon the sketchy showing and lack of detail presented at this trial. While delicacy may be socially proper, it cannot be defended when a man’s liberty is at stake.

  21. 30

    “So why should sexual consent be treated any differently?”

    Do you really mean to compare medical consent with sexual consent? The former involves a patient explicitly signing a form and agreeing to undergo a specific procedure (probably while anaesthetised and immobilised) whereas the latter form of consent is ongoing and signalled by enthusiastic and active participation between equal partners, who have probably (hopefully?) not pre-scripted every move.

    This seems like a really terrible analogy, on all substantive points. Why don’t you just say what Tavris got wrong about consent, specifically?

  22. 31

    This woman is absurd.
    While I agree that people often do not say what they mean, her arguement is… contradictory.
    People don’t often say what they mean, no. But that is because common courtesy in most countries and languages means that people will avoid at almost all costs saying “no”. Even when people — specially women — clearly mean no, they mostly used a softened version of yes. So when someone says no, it’s most likely, because they mean no, and they cannot even disgguise that as a “maybe”.

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