How to Get Away with Rape

[Content note: rape & sexual assault]

My latest piece for the Daily Dot is about excuses people make when accused of rape.

In 2013, two then-students at Vanderbilt University, Brandon Vandenburg and Cory Batey, allegedly raped an unconscious female student on campus. They used a cell phone to capture footage, which also shows Batey urinating on the victim and using racial slurs.

Unlike most accused rapists, Vandenburg and Batey are now on trial. As the trial opened this past week, the defense team made some interesting comments about Batey’s culpability.

Batey’s attorney said the football player from Nashville was influenced by a campus culture of sexual freedom, promiscuity and excessive alcohol consumption that contrasted with the manner of his upbringing.

The atmosphere “changed the rest of his life,” and Batey was too drunk at the time to deliberately commit a crime, he added.

The reasoning seems to be that Batey has been somehow wronged by this university and its campus environment in a way that is relevant to the matter of his innocence or lack thereof. (The question of whether or not being drunk should influence culpability is a separate one that I will leave to a separate article.)

This seems like a convenient way of obfuscating the issue. Of course Batey was influenced in all sorts of ways by his environment. We all are. That’s the nature of being a social species. But ultimately the burden of making the decision falls on the individual making it, and part of being an adult is accepting that responsibility.

This got me thinking about other bad and illogical excuses people make when accused of rape.

1) “I’m the real victim here.”

Usually this means “victim of a false rape accusation,” but clearly Cory Batey and his lawyers didn’t have that option–there was video evidence. Instead, Batey is the victim of “a campus culture of sexual freedom, promiscuity and excessive alcohol consumption that contrasted with the manner of his upbringing.” The implication seems to be that none of this would ever have happened if Batey had not found himself (well, chose to place himself) in such a campus environment.

I’ll be the first to endorse the claim that many college campuses have unhealthy cultures, and this can impact people in all sorts of ways. (Not necessarily negative ways—some people respond to these environments by becoming passionate activists for a better culture.)

Short of some horrific and science fiction-esque brainwashing scenario, you can’t force a person to rape someone.

However, short of some horrific and science fiction-esque brainwashing scenario, you can’t force a person to rape someone—or to urinate on them, for that matter. Batey’s peers and environment may have suggested to him that this sort of behavior is OK, but it is not too much to expect an adult to be able to make their own decisions about whether or not to rape someone, especially if that adult’s upbringing contrasted so greatly with this campus culture.

That said, buried deep within the obfuscation and rationalization that Batey’s lawyers are presenting here is actually a nugget of truth that anti-rape activists have been repeating for years: Many campuses have a really unhealthy and dangerous climate when it comes to things like binge drinking and sexual assault. Acknowledging this and working to change it, however, does not mean excusing those who commit rape.

2) “She was asking for it.”

This is, of course, entirely self-contradictory. If someone was actually asking for you to have sex with them, then it was not rape. If someone was not asking (or consenting) to have sex with you, then it was rape. If someone makes a rape accusation, then that means they were not asking. The only way to actually “ask” to have sex is to, well, ask for it—not to drink alcohol, not to dress sexy, not to dance or flirt with you, and not to make out with you.

We hear this excuse a lot with sexual harassment, too, not just assault. The reason I used a female pronoun is because this is typically only applied to female survivors. Why? Probably because (white, conventionally attractive) women are presumed to be so irresistibly appealing that men cannot possibly restrain themselves—therefore, those women were “asking” for whatever it is the men did.

But we didn’t ask for you to have such poor self-control that you cannot keep yourself from catcalling or raping us. And, more to the point, rape is typically a premeditated act. It has nothing to do with irresistible urges.

Read the rest here.

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How to Get Away with Rape
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34 thoughts on “How to Get Away with Rape

  1. 1

    “If someone makes a rape accusation, then that means they were not asking.”

    In other words, every accusation of rape is true. Really?

    Note, I am not in any way defending rape. Rape is a serious crime and should be treated as such. But so is robbery with violence, and so is murder. I don’t think we would want to maintain that every accusation of those crimes is true.

  2. 2

    In defense of the defense attorney – if you’ve been unable to work out the case, and the state has overwhelming evidence, it is usually considered bad form to get up and just say “hey, I’ve got nothing.”

  3. 3

    “Batey’s attorney said the football player from Nashville was influenced by a campus culture of sexual freedom, promiscuity and excessive alcohol consumption that contrasted with the manner of his upbringing.”

    Ugh. THIS IS WHY THE FREE WILL DEBATE MATTERS OH MY GOD. “His behavior was caused by his environment” is literally true of every action taken by anyone ever. And of course, free will is only present when it supports the conclusion you want to hear. People in poverty? Use your free will to get yourself out, anything is possible! A person I know committed rape? Oh, it’s just the culture that led him astray! He couldn’t help it! The fact that the vast majority of people in our society take free will seriously is one of the biggest barriers to social progress.

  4. 4

    Of course Batey was influenced in all sorts of ways by his environment. We all are. That’s the nature of being a social species. But ultimately the burden of making the decision falls on the individual making it, and part of being an adult is accepting that responsibility.


    You are touching a difficult issue. Are we ever justified in treating the cultural influences as an excuse (that is, as a mitigating circumstance, not to be confused with justification*), and not merely as a partial explanation? In practical terms, this would mean e.g. milder sentences for some perpetrators: in this way the court could express the view that a given person is less culpable than other violators of the same law. Do you think that it’s always “bad and illogical” to invoke cultural factors as a mitigating circumstance, or did you mean it just as a specific comment about Batey’s case?

    A particularly poignant (and much cited) example can be found here .

    *As I understand it, a justification of a given act would involve recognizing it as the proper thing to do. It’s different than excusing a given act (finding the perpetrator less culpable), because in the latter case we still do recognize the wrongness of the act.

  5. 5

    I don’t really know what to say about cases like this, where people get so fucked up that they end up doing really stupid things. Did the players here do wrong? Yes. I haven’t seen the videos, but from the description, it sounds like they crossed the line and then kept going. Do they deserve to be put in prison for decades? I have to say, no, I don’t think so. Before readers get all outraged and offended, let me just say that perhaps I’m wrong about the details and that they reveal things that I’m not aware of, but in my experience when people are that drunk to some extent they really do forfeit the normal claims made during sobriety. Let me give one example. Years ago, one of my friends had a bachelor’s party where he got so drunk that he was passed out naked on the floor. The story goes that then party goers wrapped various ribbons and things around his penis and did various other things to his body. It may also have involved his girlfriend, I’m not entirely sure (I wasn’t there). All of this kind of kind of got recorded into the ongoing tabulation of the wild times of his life. After what I’m sure was a wicked hangover, the recollection amounted to no more than a hilarious anecdote. In different times and circumstance, perhaps this could have been a trial with dire felonious consequences.

    Perhaps the answer here is that the offense really does get determined once the persons involved sober up, provided there is recorded video evidence to attest that anything even happened. I wonder how many drunken college experiences, through the ages, perused by very sober DAs and law enforcement personnel, would actually result in criminal convictions?

    I hope readers can follow my intent. In this case, it’s obvious the victim, upon gaining sobriety, really believes that she was victimized. She’s not a guy who woke the next day to learn he had his penis wrapped and perhaps slapped his then aching forehead.

    The fact is that this happened in Tennessee, a state where draconian justice lives up to its name, and these men may well have just ended their own lives, sure as if they drove drunkenly into a brick wall.

    1. 5.1

      I’m pretty sure you’re trying to say that it’s less bad to rape someone who’s drunk or unconscious than someone who’s sober. That’s fucking stupid and you should be ashamed of yourself.

      1. More like it “may” be less bad to rape (penis wrap, etc.) someone when you’re shitfaced than when you aren’t. This is the whole debate about culpability during drunk rape topic. The Vanderbilt case crossed the line, mostly as evidenced by the fact that the victim clearly claims that she’s been victimized. IMO in cases like this, the victim’s belief is prima facie evidence as to whether a crime has happened. It’s also why I don’t believe penis wrapped guy was assaulted, much less raped. I have no trust whatsoever in prosecutors. They’re some of the worst, most career and politically driven people on the planet. Just as a hypothetical, what would have happened if the woman in question had regained consciousness and maintained that she hadn’t been raped? More than likely, the prosecution would have commenced anyway, since prosecutors can act on behalf of The People. Would this have been just? I’m curious.

        1. More than likely, the prosecution would have commenced anyway, since prosecutors can act on behalf of The People.

          I highly doubt that, given how most law enforcement agencies handle sexual assault cases (i.e., by focusing on the actions of the victim rather than those of the defendant). Unless there are other factors at play (e.g., the victim is White, the defendant Black), I doubt the prosecution would spend too much time on this.

          In addition, you claim that “it ‘may’ be less bad to rape (penis wrap, etc.) someone when you’re shitfaced than when you aren’t.” Does this mean that (in your opinion) it “may” be less bad to kill somebody because you were driving drunk and lost control of your car, compared to killing somebody because you fell asleep at the wheel while stone cold sober? And if not, why not?

          1. In this case I don’t think that’s true. It seems the police and prosecution were the instigators of the investigation, not the victim, who was actually unaware of the assault. Whether they would have proceeded without cooperation from the victim, I don’t know, but I think it’s quite possible. So it opens the clear possibility today that authorities, gaining access to video surveillance, can complete prosecution solely based on digital evidence, without personal testimony. After all, the victim was entirely unconscious during the event. The received wisdom is that a person can’t give consent while unconscious, unless we postulate some weird post-facto rationalization, like that she indemnified them all against charges of rape at the start of the evening (which obviously didn’t happen).

            About culpability and drunk rape: It’s noteworthy that even the prosecution must have been somewhat concerned about the “drunk defense” due to its attempt to show Batey was more sober than he maintained. (The bit about being able to spell “quesadilla”). Like I said initially, I don’t really know what to make of cases where young people get so fucked up that stupid things happen. Often they have no previous experience to rely on. Perhaps they have never been that drunk before. Imagine beginning an evening, getting more and more and more drunk. With each drink your inhibitions drop a bit more. At some point, perhaps you still know what you’re doing in local time, but the next morning you suffer anterograde amnesia and have no recall of the previous night after a certain point. You learn that you’ve done something very stupid and terrible. This seems to be an unfortunately common situation. From what I can tell, prosecutors don’t take the Jekyll/Hyde position on this. They don’t consider the drunken person some emergent, horrible persona enabled by alcohol. To a certain extent I think this is actually a step backward from the prohibitionists, who in some ways were more savvy than we are today. They were not wrong about one thing. Alcohol has extreme social liabilities. It seems that extreme drunkenness really can bring out the Hydes in some people, that denying this was just an expedient way to gloss over a massive problem that societies with alcohol have never really come to terms with. The expediency is that we are all still responsible for what we do when drunk, even drunk out of our minds.

          2. Hunt wrote:

            About culpability and drunk rape: It’s noteworthy that even the prosecution must have been somewhat concerned about the “drunk defense” due to its attempt to show Batey was more sober than he maintained.


            There is something here which I do not understand. I read that “Batey’s attorney Worrick Robinson argued in a last-minute pretrial hearing that he, too, was too drunk to form an intent to commit rape.” (Jezebel’s piece). On the other hand, I found also the information that rape is classified as a general intent crime (for the explanation of the term, see here).

            I read that intoxication can be used as an effective defense only against the accusations of specific intent crimes. For example, first degree murder requires premeditation (specific intent) and intoxication can be invoked as a defense here – it can be argued that the defendant was so inebriated that premeditation was out the question. This strategy wouldn’t work however against the accusation of second degree murder, which is a general intent crime.

            Since rape is classified as a general intent crime, this would mean that the prosecution needs only to show that … well, that in these and these specific circumstances the accused intended to have sex with the victim – and that’s it, basically.* If this is so, I can’t see how the ‘drunk defense’ could help. For rape as a general intent crime, there is no need to prove the (specific) intent to rape, there is even no need to prove the awareness of the defendant that the act was illegal. And if the specific act of having sex was illegal, this in itself should be enough to establish the culpability.

            But if this is so, what’s the point of arguing – as the attorney did – that the accused “was too drunk to form an intent to commit rape”? I know very little about the American law and it’s pretty obvious that some subtleties of the situation elude me. Is there anyone here who could explain?

            *From the source I linked to earlier: “the only state of mind that will suffice for a conviction is an intent to commit the act that constitutes the crime. If this has been established, the defendant can be convicted even if he never intended to violate the law, and even if he did not know that his act was criminal.” I interpreted this as stating that a mere intent of having sex with the victim – even without awareness that in these particular circumstances it will be a criminal act – would be enough. Alright, I’m not a lawyer and I have to ask: is this a correct interpretation?

        2. More like it “may” be less bad to rape (penis wrap, etc.) someone when you’re shitfaced than when you aren’t.

          the victim’s belief is prima facie evidence as to whether a crime has happened.

          I have no trust whatsoever in prosecutors. They’re some of the worst, most career and politically driven people on the planet.

          Hey, no offense, but…you know that you’re, like, super-creepy, right?
          Seriously, when you come into a conversation and say that rape is maybe sometimes not so bad and that it doesn’t even really count if the victim doesn’t catch you and that the people who try to put rapists in prison are just THE WORST…you sound like a really creepy person (to say the least).

          So…why are you here? What point are you trying to make? I mean, rape isn’t just some abstract thought experiment designed for you to casually mull over, it’s a serious problem that badly damages a lot of people’s lives. And you seem to be trying to argue in defense of it. Why?

          1. If you’re more interested in the general nostrums that are usually iterated, then don’t read my comments.

            Fuck you. If you’re going to argue in defense of rape and rapists, you’re gonna get called on it. Deal with it, creep.

  6. 6

    I hope readers can follow my intent. In this case, it’s obvious the victim, upon gaining sobriety, really believes that she was victimized. She’s not a guy who woke the next day to learn he had his penis wrapped and perhaps slapped his then aching forehead.

    Sorry, I genuinely am not following your intent. Unless you’re trying to say that raping an unconscious person sometimes maybe isn’t so bad because you once knew some dude who got sexually assaulted while unconscious and he seemed fine with it. But since that’s clearly a pretty terrible thing to say on any number of levels, I’m going to assume you’re making some nuanced point that I haven’t quite grasped. Can you clarify, please?

  7. 7

    We already have one vote for sexual assault. In some states he would actually be considered to have been raped. This is rule-book moralizing and is exactly why the Panopticon should never be invited into your living space.

    1. 7.1

      We already have one vote for sexual assault. In some states he would actually be considered to have been raped. This is rule-book moralizing

      Um…no. Someone being touched sexually (and I rather think touching someone’s genitalia qualifies, if anything does) when they have not given consent (and/or are unable to) is sexual assault, by definition. That’s just what the term means, regardless of how traumatized your friend felt. Just like if someone had taken his wallet while he was passed out, it would be theft, regardless of whether he wanted it back or not.

      Your friend got sexually assaulted, and you find it hilarious. That’s not moralizing. Those are the facts, as you yourself presented them to us.

      Now, maybe your friend didn’t feel traumatized by the assault. That’s fine. Good for him. But that doesn’t mean he wasn’t assaulted. That people felt entitled to have their way with an unconscious naked person’s body doesn’t suddenly become OK if the victim doesn’t raise a fuss; it still indicates a disregard for consent and boundaries on the part of the assailant that is Not OK, and I can’t for the life of me figure out why you’re defending it.

      But really, how sure are you that he wasn’t bothered by the incident? I mean, you know him, and I don’t, but I can say that if I had been sexually assaulted while unconscious, I certainly wouldn’t feel comfortable sharing any discomfort I had with my assailants, or other friends who found it “hilarious”. Why are you so sure that it was shrugged off with just a slap on the forehead?

      1. Which would mean that many debaucherous parties and hazing rituals are actually sexual assaults or perhaps even rapes according to state laws. Add to this mix video surveillance and intervention by police and prosecutors and you arrive at the apparently absurd conclusion that a person could do prison time for attending a frat party even if the “victim” does not agree or cooperate with authorities. Either you agree with this or you must also include the intentions of those in attendance. I doubt the law and prosecution will ever get this nuanced, since if it did, even in cases where a person felt violated and victimized, there would always be the defense that a perpetrator was confused about the intent of participants. It would logically exclude all but the most superficial applications of punishment for any alcohol fueled indiscretions or even what appears to be outright crime. That’s not going to happen, so we’re stuck with the former absurdity. I think one maxim that can be derived from this, for any person who intends to engage in wild, debauched partying is this: know your fellow partiers, their desires and intentions; don’t party in placed with CC TV cameras, and if someone starts taking video, you’d better be situationally aware enough to understand exactly what’s happening, which may be very difficult if you’re very intoxicated. Do you find all this enraging? Unfortunately, this is just the way things are these days.

        1. Which would mean that many debaucherous parties and hazing rituals are actually sexual assaults or perhaps even rapes according to state laws.

          That is quite possibly correct. I don’t see how it makes you any less gross and creepy for finding sexual assault hilarious, though.

          Add to this mix video surveillance and intervention by police and prosecutors and you arrive at the apparently absurd conclusion that a person could do prison time for attending a frat party even if the “victim” does not agree or cooperate with authorities.

          Fuck you, liar. You’re not talking about people getting arrested for being at a party, you’re talking about people being arrested for rape and sexual assault.

          Don’t wanna go to jail? Then stop fucking raping people, whether they’re unconscious or not. But if you’re gonna sit here and talk about what a shame it is that some rapists go to jail, you’re not going to convince anyone of anything except that it’s probably a bad idea to drink with you.

          I think one maxim that can be derived from this, for any person who intends to engage in wild, debauched partying is this: know your fellow partiers, their desires and intentions; don’t party in placed with CC TV cameras, and if someone starts taking video, you’d better be situationally aware enough to understand exactly what’s happening, which may be very difficult if you’re very intoxicated. Do you find all this enraging?

          Yes, I find it extremely enraging that you’re giving rapists advice on how not to get caught. What the actual fuck is wrong with you?

  8. 8

    “Batey’s attorney said the football player from Nashville was influenced by a campus culture of sexual freedom, promiscuity and excessive alcohol consumption that contrasted with the manner of his upbringing.”

    Soooo … I suppose we should be thankful that he didn’t come off the rails in Las Vegas. If it ends up as a brutal gang rape in Vanderbilt I suppose it might have involved dozens of victims and him dancing around in a woman’s skin in Nevada.

    These are not impressionable young boys. They are men. They, as all adults do, have the responsibility to control themselves. Failing that they need to be supervised. Prison or a mental institutions is the way society tightly supervises people who cannot control themselves.

  9. 9

    This is, of course, entirely self-contradictory. If someone was actually asking for you to have sex with them, then it was not rape. If someone was not asking (or consenting) to have sex with you, then it was rape. If someone makes a rape accusation, then that means they were not asking. The only way to actually “ask” to have sex is to, well, ask for it—not to drink alcohol, not to dress sexy, not to dance or flirt with you, and not to make out with you.

    In other words, every accusation of rape is true. Really?

    I think this bears clarification. “She was asking for it” is frequently used to side step the issue of consent. Someone acting in such a way that tends to induce getting punched might just get punched: if they do, we can say “he/she was asking for it,” since they should have known the consequences of their actions. Similarly, what she actually gives someone permission to do becomes irrelevant if we establish that her behaviour is the sort of behaviour that we think engenders sexual assault/rape: she should have known the consequences of her actions. “They were asking for it” really means, “I feel justified in my behaviour regardless of what I had actual permission to do.” Sometimes the argument makes sense. In cases of rape and sexual assault specifically, literally the only criteria for justified behaviour is consent. It doesn’t make sense, as the premise of the argument contradicts the sole requirement for justification.

  10. 10

    Well, starting to look like Miri’s initial title might have been prescient after all. The defense is now asking for mistrial, due to one juror allegedly not reporting her past experience as a rape victim.

    Commenter like discountdeity will find it hard to accept, but I actually am interested in real justice being served, proportional justice for those deserving it. But sorry, to me this case just wreaks of Javert-style over-prosecution, combined with the type of “kitchen-sink” charge lists that I consider deeply inhumane. Every time I hear of high school and college rape cases like this, with alcohol, with defendants without prior criminal record, I just cringe. I know what’s coming. It’s the same feeling I used to get reading Christian blogs recounting how the conservative faithful punish their children. It seemed each sadistically vicious home remedy was only to be outdone by the next one in line. To read some of the commentary on various articles about this case is to truly travel some dark byways of the human soul, visiting opinions to lock up both kids and parent, only to be outdone by the gleeful expectation of what’s to happen to these deprave felons in prison.
    I would like to see another trial, in another state, definitely not Tennesee. Perhaps one not in the top five most racist states in the union.

  11. 11

    Hunt–

    We all get that you think it’s awful young men sometimes go to jail for having sex with a woman who is too drunk or stoned to give consent.

    I suspect you also think it’s awful that young children sometimes get run down by speeding cars. But you”d probably be horrified if some new-agey parent said, “My children should feel free! They should go in the street whenever they feel like it!! Cars just shouldn’t run them down!!!”

    Instead, you’d want parents to take responsibility for watching their very young children and training their slightly older ones not to play in traffic, wouldn’t you?

    What you’re doing here is the equivalent of the new-agey parent. Young people need to know that having sex with someone who can’t give consent is a felony and committing that felony could potentially ruin their lives. You may not approve of that, any more than you approve of cars running down toddlers. That is, however, the law in most places, and will be for the foreseeable future. Ironically, it’s feminists who are protecting young men by getting the word out that rape does not necessarily involve violent force. If you really want to protect people from being incarcerated for something you don’t consider a serious crime, then put your personal issues aside and get the word out that sex without consent is, in fact, a crime. Whether you approve of the law or not.

    1. 11.1

      This sounds a lot like the prosecutorial language that I disagree with a lot: “send a message,” “make an example of,” etc. If I were to even make a concession to go along with that, the group I would do it for would not be young intoxicated stupid people. There are other ways to “educate” people, scare quoted because deterrence has never been shown to be a terribly effective way to educate anyone; instead it usually serves as an excuse to dish out cruel punishment and eye-for-eye justice. So you might want to rethink that one, particularly if you consider yourself a progressive. One of the stranger things about the attitude to sex crime: the uniformity of opinion about how to deal with it across the political spectrum. Perhaps this should be evidence that the attitude is correct, I don’t know.
      If there were ever cases where rehabilitation should play a principal role, and crushing punishment a secondary one, don’t you think it should be in cases like this, or Steubenville? The case can be made that this is all pantomime designed to scare the shit out of the perps, to be later corrected when final sentencing comes. Sometimes that seems to be the case, but I don’t think anyone can rely on that process.
      Human beings don’t have a very stellar record when it comes to punishing those it considers the transgressor, the felon. Felons lose most of their rights, they’re thrown in a sadistic penal system that doesn’t guarantee their safety, or that they will even make it out alive. As evinced by some of the comments I’ve described, we haven’t come that far from the days of gallows entertainment. The criminal is the one we focus all our social frustrations upon, often in overtly sick ways. And for some reason that utterly eludes me, the younger they are, the more acute this phenomenon seems to be. Unfortunately, our attitude towards criminals and punishment makes a mockery of justice. I would say things are slowly improving, but at least here in the US, given the state of the penal system, proportional justice is nearly impossible.

      1. To read some of the commentary on various articles about this case is to truly travel some dark byways of the human soul, visiting opinions to lock up both kids and parent, only to be outdone by the gleeful expectation of what’s to happen to these deprave felons in prison.

        I noticed this also in my country. It seems to me that a large part of it is helplessness: no one really knows what to do, no one knows if there is anything at all that would make a real difference.

        a person could do prison time for attending a frat party even if the “victim” does not agree or cooperate with authorities.

        Sorry, I know nothing about frat parties, but there was a famous case here a couple of years ago. A group of teenage boys molested their classmate. The victim (no scare quotes) was a 14 year old schoolgirl. The boys undressed her, slapped her on the buttocks and simulated sexual intercourse, while recording everything on a mobile phone (it happened in the classroom. No alcohol involved.) It was also one of those cases where the victim did not “agree or cooperate with authorities”. Well, she couldn’t have – she was dead. She hanged herself soon after the incident.

        The official mourning followed, a visit of the president to her grave, a minute of silence in the parliament, a lot of angry, fruitless yadda yadda on television and in the press, coming from the representatives of all political parties, lots of enraged comments in the social media (yes, a good opportunity to “travel some dark byways of the human soul”), and then … hmm … then nothing. Just nothing. The boys remained on probation until the age of 21 (there was not much else that could be done under our legal system). That’s it, case closed. At the moment all of this is forgotten. Finished. And obviously the girl remains dead. Perhaps only her parents still mourn her.

        The case can be made that this is all pantomime designed to scare the shit out of the perps, to be later corrected when final sentencing comes. Sometimes that seems to be the case, but I don’t think anyone can rely on that process.


        I suspect that the pantomime is mainly for our sake. When confronted with something so absurd and horrible, when feeling utterly helpless, what do we do?

        We scream and grimace to each other like monkeys, pretending that it makes a difference.

        1. I noticed this also in my country. It seems to me that a large part of it is helplessness: no one really knows what to do, no one knows if there is anything at all that would make a real difference.

          I’d have to differ there. I think some people are quite certain they know exactly what the problem is and how to remedy it, stiff sentences, sending messages, making examples, much directed at what appears to be the demonic segment of our society de jure, football players (I’m talking America here). To this end, there is no difference between feminism and conservative factions of American society. When it comes to sex crime, even feminists become law and order conservatives; actually, they outdo them.
          I was thinking more about this case last night and came to the conclusion that the defense was on the right track about being caught up in permissiveness. If college culture is to be indicted then I think we should do that, with all attendant ramifications. Otherwise applying the same rules to campuses as we do to “real life” constitutes a form of bait and switch for the unwary and unsuspecting. Again, this will infuriate law and order feminists. At very least these considerations should temper our judgement.

          Just call me a bleeding heart liberal. 🙂

          1. came to the conclusion that the defense was on the right track about being caught up in permissiveness. If college culture is to be indicted then I think we should do that, with all attendant ramifications.

            What do you have in mind? What would it mean to “indict the college culture, with all attendant ramifications”? What measures would have to be taken in order for such an indictment to carry any force?

            Otherwise applying the same rules to campuses as we do to “real life” constitutes a form of bait and switch for the unwary and unsuspecting. Again, this will infuriate law and order feminists. At very least these considerations should temper our judgement.

            Even though I can appreciate cultural factors, I’m still confused about how to apply such considerations consistently in the law (which is exactly the area where consistency is needed). You cannot make an exception for the college culture. As soon as you accept this sort of a cultural defense, you face difficult questions: how about the jihadi culture – should the perps be excused (receive milder sentences) because it is their culture that taught them to kill the infidels? How about honor killings – is it your opinion that we (in Europe and in the US) practice “bait and switch for the unwary and unsuspecting” immigrants? And so on, and so on.

            At the moment all of this looks like a sad mess. An example from Germany: according to the ruling of the Federal Court of Justice in 1994, honor killings should be treated as murders for “base motives”. Nevertheless, according to one study:

            German courts are in many cases failing to adhere to the ruling by the Federal Court of Justice that honor killings be treated as having “base motives,” which tends to lead to more severe sentences. But in fact, base motives were only determined for 28 out of the 87 people convicted.
            In around 40 percent of cases, the honor killing aspect wasn’t even addressed. In 15 cases, the judge even deemed the “honor” motive as a cause for leniency.

            As I said, it’s a sad mess. The American case of People v. Kimura quoted by me earlier (admittedly, it’s much older) is also instructive: on the one hand, you can see the extreme reluctance of the court to invoke cultural factors as motives for the verdict; on the other, you can notice also a very conscious attempt to impose the mildest punishment possible in these circumstances. The tension is almost palpable.

            You write:

            I’d have to differ there. I think some people are quite certain they know exactly what the problem is and how to remedy it, stiff sentences, sending messages, making examples

            It’s not a real disagreement, since I see much of it as a knee jerk, angry reaction of helpless, infuriated people, who want “to do something” – no matter what, as long as it’s quick, spectacular, and provides an illusion of making a difference. Also: from my perspective, “infuriating feminists” is one of the smallest worries. The big worry is that at the moment both our practice and our theory seems chaotic and unprincipled.

  12. 12

    What do you have in mind? What would it mean to “indict the college culture, with all attendant ramifications”? What measures would have to be taken in order for such an indictment to carry any force?

    It would mean repudiating college drinking culture in the media and in education, which has only happened in limited ways, as far as I can see. The fact that it hasn’t constitutes the “bait” in bait-and-switch. The measures that would have to happen would be the measures that are happening now, the encroachment of “the real world,” law enforcement and prosecution into the college sub-culture. I never said I didn’t see the logic of it, or even disagree with it in principle. Wouldn’t it be great if education alone would stop it, without any “examples” having to be made. All this assumes “it” is something you want to stop. It’s possible that extreme excesses, like Vanderbilt, can be stopped while preserving college drinking culture, but this presumes that Vanderbilt is categorically different than other things that happen on campuses, in debaucherous parties, in hazing rituals (which can be extremely raunchy, demeaning and sick), and not just a matter of degree, turning the dial up to eleven. A lot of people dearly want to believe it’s categorically different, but is it? Let’s say that it is. Even this doesn’t mean claiming that the categorical difference isn’t obvious to a stupid, inebriated student isn’t a sound defense.

    As soon as you accept this sort of a cultural defense, you face difficult questions: how about the jihadi culture – should the perps be excused (receive milder sentences) because it is their culture that taught them to kill the infidels? How about honor killings – is it your opinion that we (in Europe and in the US) practice “bait and switch for the unwary and unsuspecting” immigrants? And so on, and so on.

    The moral questions when dealing with immigrant culture are simpler (for us) than something domestic, like college culture. After all, it’s not something fostered as a subculture within our society. College drinking culture is a monster of our own making. We are entirely responsible. Immigrant cultural dislocation is largely their own problem. I don’t see the bait-and-switch, but maybe I’m missing something? In my opinion the way you don’t deal with it is with tolerance to egregious things that directly contradict the values of your own culture, like Sharia Law, honor killings, acid attack, etc. However legal systems do make concessions for all sorts of (usually minor) things that aren’t tolerated for mainstream culture. For instance, even where I live, certain nominally illegal drug use is legal for religious ritual, and so on.

    I agree you can’t expect the system to accommodate both (or several) mainstream cultural norms. The inconsistency and contradiction alone would make it impossible, which is precisely why “the system” attempts to ignore all but mainstream culture right up until it becomes impossible to tolerate the presence of others.

    You can extend this idea to subculture and pose that this is why the justice system has been reluctant to intrude in college drinking culture up until now, and it’s why when it does so, it causes shock and denial. As some remarked on the Steubenville case (which actually dealt with high school aged kids), the reason they were prosecuted is because they provided so much video evidence that it was impossible for the prosecution to ignore it. They were forced to do something, even though normally they would ignore it (and I’m not implying that ignoring it would have been the right thing to do).

    Also: from my perspective, “infuriating feminists” is one of the smallest worries. The big worry is that at the moment both our practice and our theory seems chaotic and unprincipled.

    Consideration for all things feminist, especially infuriation, is extremely relevant to anything that happens on (at least) American campuses, since feminism is extraordinarily influential on American campuses, with the possible exception of some private religious campuses. Basically, feminism rules American campuses.

    1. 12.1

      Since I’m not familiar with American college drinking culture, I’m trying to think in terms of analogies, which are better known to me. The analogies are imperfect, so there are risks. Correct me when I go astray.

      It would mean repudiating college drinking culture in the media and in education, which has only happened in limited ways, as far as I can see. The fact that it hasn’t constitutes the “bait” in bait-and-switch. […] Wouldn’t it be great if education alone would stop it, without any “examples” having to be made.


      One analogy is our soccer fan culture. We left it alone with little interference, until it was recognized that a monster was created. Racism, violence, extreme nationalism, regular battles between the fans of different clubs, sometimes with mortal casualties – nice stuff like that. Wouldn’t it be great if education alone would stop it? Yeah, it would. But will education alone stop it? That’s the hard question. Two issues here:

      Firstly, these groups are hermetic and the possibilities of reaching them with educational effort are quite limited. Secondly, I see absolutely no chance of a uniform and strong “repudiation of their culture in the media”. Some elements (notably, violence and hatred) are repudiated quite uniformly, sure. But other elements, like the passion for sports, like showing an emotional and practical support for a local club or a national team, or like the idea of togetherness in all of this – no, they just won’t be uniformly condemned in our media. There is practically no chance for such a uniform condemnation in a pluralistic society. In effect the bait will remain and to see the removal of such a bait as a precondition for the intervention of the law, strikes me as totally unrealistic. Is your case of college drinking culture similar in these two respects?

      The moral questions when dealing with immigrant culture are simpler (for us) than something domestic, like college culture. After all, it’s not something fostered as a subculture within our society. College drinking culture is a monster of our own making. We are entirely responsible. Immigrant cultural dislocation is largely their own problem


      Well, I strongly disagree with this. In fact I wouldn’t want to live in a society where the criterion for leniency (in legal matters) is whether the delinquent is “one of us” or “one of them”. As for creating monsters and responsibility: I see creating monsters as an unavoidable risk. In a pluralistic society we let the subcultures be – that’s the position which I would like to see as the default one. We can criticize them, sure, but we do not thwart them, unless they prove themselves to be really dangerous. This concerns both domestic and imported subcultures – no difference here. You captured it yourself in your “the system attempts to ignore all but mainstream culture right up until it becomes impossible to tolerate the presence of others”. Of course the risk is that something truly dangerous will be overlooked. But this risk *should be accepted* – after all, we don’t want to introduce a secular version of the Sharia law, do we? This limits also our responsibility.

      the reason they were prosecuted is because they provided so much video evidence that it was impossible for the prosecution to ignore it. They were forced to do something, even though normally they would ignore it


      If this is true, I find it disquieting and my own conclusion would be that something was deeply wrong not just with the football culture, but also with the practice of the law.

      From your description, it seems that what you are having now is a far reaching change in the application of the law, is that correct? If so, then I’m ready to agree that it would be good to precede it with an information campaign, which could lessen the “shock and denial” effect. On the other hand … sorry, I’m also one of those who think that the behavior of the perps clearly belongs to the “impossible to tolerate” category. Hunt, what is it that should be done in your opinion? Do you think that the law shouldn’t touch such cases until the education changes the culture? (Good luck with that. Similarly: until the education reaches the soccer fans, let them maim and kill each other – they are not immigrants after all but our domestic darlings!) Or do you think that the law should intervene but culture should be treated as a mitigating factor? (Then you are still left with the consistency issues.) Something else? What’s your position, really?

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