The next crime reduction breakthrough

Many of our great universities are having some awkwardness about how they deal with people who sexually mistreat their students.  The government is making them report on cases and how they are handling them, and Yale’s offers an innovation that has vast promise for all criminal justice, even though its merit completely escapes some bloggers.    The innovation is to rename rape as  non-consensual sex.  Like most innovators, Yale didn’t push their invention as far as they should have, but we can fix that: what they actually meant was partially consensual sex: surely they didn’t mean to completely ignore the enthusiastic consent of the rapist that is universal in these cases! In the student-on-student cases, it’s not just anyone consenting, but a Yale Man, not to mention a future stream of alumni bucks – possibly even  a letter athlete. In gang rapes, it seems only right to say “minority nonconsensual sex“.

The language change is much more interesting than it might appear.  For one thing, it sounds much less like something that’s done to you by somebody, and more like something that just happened.  Like when you trip on a loose rug when you didn’t mean to.  So all that blaming and fault-finding that makes the dean have Seriously Awkward Meetings with the spoiled son of a rich alum gets the heat turned down from the start. For another, it elides what we know about rape being a matter of power and not, mainly, sex. And finally, it wonderfully raises the subconscious suggestion that maybe not consenting was the offense!

I foresee a whole penal code worth of creative renaming in this line.  For a start, it will be super useful as the military looks under its sexual abuse rock; in lots of those cases, the consenting rapist outranks the victim, a clear case of predominant consent. When someone points a gun at you and takes your money and your cell phone, that’s not robbery; it’s partially consensual sharing!  When Yale students cheat on their exams, they’re using partially approved study methods.  If that armed sharer just shoots you to move things along, he’s aggravated the offense with partially consensual lifespan determination.  The possibilities in international relations make my head swim; armed occupation, for example, is partially consensual governance, which is obviously not that far from enacting legislation in Congress with a less-than-unanimous vote.

Rape is a felony, and felonies tend to involve the police, prison sentences, and a bunch of other really messy stuff. If we call this something that sounds a lot more like kids having fun…well, you get the idea. If you call a dog’s tail a leg, the dog has five legs, right?

I am ashamed that my alma mater does not get credit for this breakthrough, but maybe we can come up with something like it in the next round.

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

16 thoughts on “The next crime reduction breakthrough”

  1. Oh, but you can’t say, “rapist” under these conditinow, can you? It must be the sexual consenter, to be distinguished from the sexual non-consenter.

    1. Nope. The non-consenting party (let us not say “victim”) can only point the finger and say that “he had non-consensual sex with me!” At which point the one who consented can point back and say the same.

  2. Drafting for connoisseurs in the Yale report:

    Additionally, because the descriptions are composed to protect the privacy of the individuals involved, they do not fully capture the diversity and complexity of the circumstances associated with the complaints or the factors that determined the outcomes and sanctions.

    If this means “one or both parties was too drunk to know what they were doing”, why not say so? Neither is of course a legal defence or moral excuse against rape, but intoxication queers the evidentiary basis.

    1. The core of the issue. Whatever happened to “plain-speaking?” Has the Sandusky case already disappeared down the memory hole? Temples of higher learning, indeed!

      1. “The core of the issue. Whatever happened to “plain-speaking?” Has the Sandusky case already disappeared down the memory hole? Temples of higher learning, indeed!”

        Look at Summers; the Ivy League is convinced that they are in a different world, and they are usually right.

  3. I find the whole situation thoroughly depressing, but I just can’t muster a whole lot of outrage at Yale’s use of words.

    The underlying problem is that sexual misconduct hearings are essentially internal civil proceedings that use a “preponderance of the evidence” standard. There are a number of problems with that approach:

    (1) The standard — i.e., “more likely than not” — is pretty low for the potential sanctions that attach to it.
    (2) The procedural safeguards are weak.
    (3) If the criminal justice system does its job, it’s not really necessary to have that for rape. If the criminal justice system doesn’t do its jobs, colleges make poor ersatz prosecutors.

    The whole approach makes me very queasy. Just because something can be difficult to prove does not mean the proper response is to lower evidentiary barriers so as to get more convictions. Taken to its extreme, it would be an invitation to create kangaroo courts.

    Part of the problem is now that with such weak safeguards in place, university administrations may be reluctant to use the full force of the law against an offender [1].

    In the case of the Yale report, what I’m seeing primarily is not somebody downplaying rape, but bureaucrats fumbling to find verbiage for an act that “is rape more likely than not”, similar to how we have trials for “wrongful death” in civil proceedings rather than making findings about “murder” and “manslaughter” (see, e.g., O. J. Simpson).

    That’s a distressing state of affairs, but my primary issue would be with the state of sexual misconduct hearings in general, not Yale’s write-up of them [2].

    [1] And yes, very likely a fair number of cases where somebody got away due to connections (such as daddy being a big-time donor), being able to evade consequences for other reasons, or colleges just not being very diligent to begin with. That’s not mutually exclusive, though.
    [2] That Yale may have been lacking diligence in handling sexual misconduct is a different issue.

    1. Thank you, Katja. I have never understood why colleges and universities attempt to adjudicate rape cases when they would never attempt to do so for murder or armed robbery or other serious felonies. If the local criminal justice system is thought not to do a good job of prosecution of rape cases, the solution is to improve that system, not to try to replace it.

      Of course, it may be that the colleges are simultaneously trying to avoid having their students (victims and perpetrators alike) involved in the criminal justice system for reasons of adverse publicity and/or protecting either victims or perpetrators who are connected to influential donors (that can’t be a very high proportion of cases) and also trying to address cases that the criminal justice system would not consider high priority — cases of non-consensual sex while intoxicated, for example.

      1. Part of the issue is that often enough the victim does not want to pursue criminal prosecution. Robbery would be a better analogy, because this is also something that happens in colleges and that is sometimes difficult to get prosecuted criminally (prosecutors don’t have a lot of spare time). While I share Katja’s frustration (my daughter goes to one of these institutions), I don’t think a college can tell a student that the only option is criminal prosecution and otherwise overlook evidence of significant wrongdoing. So they come up with an alternative disciplinary approach. You can call it sexual misconduct or whatever else, the point is, not calling it rape makes eminent sense because, after all, rape is a criminal act, and this internal disciplinary panel (or whatever) is NOT a criminal court and is NOT making criminal findings. So long as that is made plain to the victim, that the college’s actions can NEVER be a substitute for criminal prosecution and will NOT have the same consequences, for the victim or the perpetrator, then that is probably okay. What I think is sometimes happening is that victims are being affirmatively discouraged from pursuing criminal cases, and I think that IS wrong.

        1. I’ll bet that the major issue is that the university administration doesn’t want criminal proceedings, because that’d lead to higher crime stats.

  4. Please explain “enacting legislation in Congress with a less-than-unanimous vote.” Do you mean a less-than-majority vote?

  5. Exactly why should universities be handling these issues at all? Didn’t the days of in loco parentis end in the 1960s?
    Students who are the victims of sexual assaults or any other violent crime should report it to the police (the real police, not campus security). If the police aren’t taking these complaints seriously, then that is the problem that needs to be addressed, and the university should place its full weight behind ensuring that its students receive equal protection under the law.
    Quasi-judicial systems in universities work fine for offenses that are primarily academic in nature, like cheating or plagiarism. These aren’t usually legally actionable, but they are a threat to the university’s mission, and professors and staff have the necessary expertise to adjudicate them. But they do not have the necessary legal expertise to handle cases of serious criminal activity. These should be handled solely by the actual criminal courts.

  6. In re, the military, there’s a whole lot that goes on there that’s “non-consensual”. How about just rewriting the regs so that it’s not a crime so long as the superior officer issues an order to the inferior officer or soldier? Wouldn’t that solve the “problem”?

  7. My daughter goes to a college that now finds itself being investigated (although what happened doesn’t sound quite as significant in number or dereliction as what happened at Yale). What I told her was what I feel all these colleges should be telling students: Rape is a felony. If you are the victim of a felony you should call the real police, not the fake police whose job is as much about protecting the college as it is about protecting students.

    In the primary incident at my daughter’s school, the student didn’t want to call the police, as many victims of sexual assault don’t want to call the police, for a variety of reasons — some of which themselves reinforce the coddling of the perpetrator (“don’t want to ruin his life” kind of reasoning, just want him to be ostracized by my academic community).

    I don’t know how a university is supposed to handle these incidents when the victim herself does not want them treated as the serious criminal offenses that they are. It would be wrong for the university to discourage the reporting of incidents to the police. And I suppose the university could insist on a “no contact” (or even expulsion) policy for students who provide credible information of assault, even if they don’t want to go to the police, much as they would for academic misconduct. But you can’t treat someone as if they have been convicted of a felony when they haven’t. This isn’t just a matter of sympathizing with one party over the other, it’s an issue of basic justice that being accused isn’t the same thing as being found guilty, so the opportunity, for instance, to tell other people — like transferee institutions or professors or other students — is limited.

    As for whether Yale is afraid of losing future donations — don’t you think it could also be that Yale is trying to protect someone who is at the other end of the scale, athlete or not?

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