[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.
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 having a sexual 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…
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.
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.
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.
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. 
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” 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.
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?
[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.
“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.
[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 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.
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% . 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.
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. 
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?
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.
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.
 Loftus, Elizabeth F., and Jacqueline E. Pickrell. “The formation of false memories.” Psychiatric annals 25.12 (1995): 720-725.
 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.
 Koss, Mary P. “The hidden rape victim: Personality, attitudinal, and situational characteristics.” Psychology of Women Quarterly 9.2 (1985): 193-212.
 Scully, Diana, and Joseph Marolla. “Convicted rapists’ vocabulary of motive: Excuses and justifications.” Social Problems (1984): 530-544.
 Jordan, Jan. “Beyond belief? Police, rape and women’s credibility.” Criminal Justice 4.1 (2004): 29-59.
 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.
 Rutherford, Alexandra. “Sexual Violence Against Women Putting Rape Research in Context.” Psychology of Women Quarterly 35.2 (2011): 342-347.
 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.