War of the Sexes: Part 2 - Rape

In the last part of this series we examined the front in the war that is divorce and discovered that the evidence, such as it is, seems to indicate that woman are on the offensive and winning on that front.  A second front in the war is rape.  Who's winning there?

There is no doubt that for all practical purposes we can consider that all rapes and sexual assaults are initiated by males and can be considered a male offensive weapon in the War of the Sexes.  Estimates of the numbers of female victims vary widely and are aggressively disputed.  One camp claims there's a massive epidemic of rape, for example that one out of five undergraduate women at college are sexually assaulted:

Democratic strategist Van Jones said the number of women sexually assaulted on college campuses was "shocking." 

"It’s literally one out of five," Jones said. [...]

The "one in five" statistic is frequently cited by advocates of sexual assault awareness. Both President Barack Obama and Vice President Joe Biden have repeated it.

Certainly if President Barack Obama said it, it must be true, right?

Others claim the exact opposite:

Because the truth is that there's no epidemic outbreak of college rape. In fact, rape on college campuses is — like rape everywhere else in America — plummeting in frequency. And that 1-in-5 college rape number you keep hearing in the press? It's thoroughly bogus, too. [...]

Sen, Gillibrand also says that "women are at a greater risk of sexual assault as soon as they step onto a college campus." 

The truth ... is exactly the opposite. According to the Justice Department's Bureau of Justice Statistics, the rate of rape and sexual assault is lower for college students (at 6.1 per 1,000) than for non-students (7.6 per 1,000). (Note: not 1 in 5). What's more, between 1997 and 2013, rape against women dropped by about 50%, in keeping with a more general drop in violent crime nationally.

So which is it? One in five (which is 200 per 1,000) and increasing or six to eight (times 4 years) per thousand and decreasing? Nobody seems to know and nobody can agree.  There are many possible reasons for discrepancies:

• Definitional - if the definition of sexual assault/rape includes things like a woman being made to feel uncomfortable by a man looking at her a certain way, it will yield much different results than if the definition only includes forced penetration under the threat of violence;
• Sampling and survey issues - some of the studies that showed the highest numbers were small, local Internet based studies and may have had a bias towards respondents who were raped and also may not be applicable to the whole country;
• Not all sexual assaults and rapes are reported - the studies with lower numbers may have underestimated the number of unreported rapes and assaults; 
• Some claims of rape and sexual assault are false - the studies with higher numbers may have underestimated the number of false claims of rape.
• Etc.

The difference in the extreme estimates is important.  With rape rates at the low end of the estimates, it seems that the criminal justice system should be able to handle it, keeping due process for the accused intact. With rape rates at the high end of the estimates (one out of five!!!), it is pretty much a national emergency, and things like "innocent until proven guilty" or even "guilty until proven innocent" may need to be thrown out the window and replaced with the much simpler "guilty if accused."

There would be nothing wrong with "guilty if accused" if the accuser was always completely honest and never mistaken.  However, in the real world, that's not the case.  Even worse, the range of estimates of the rate of women making false accusations about rape and sexual assault are as large as the variance between the extremes in estimates of the rates of rape and sexual assault themselves:

How many women falsely accuse men of rape? 

A lot of statistics are floating around the Internet: Two percent, say many feminists, the same as other crimes. Twenty-five percent, say other groups who quarrel with the feminists on many issues, or maybe 40 percent. Here’s the real answer: We don’t know. Anyone who insists that we do know should be corrected or ignored. 

The number of false accusations is what statisticians call a “dark number” -- that is, there is a true number, but it is unknown, and perhaps unknowable.

Even accepting the "two percent" estimate, it should, in my opinion, still give us pause when considering throwing due process out the window and going with "guilty if accused:"

Benjamin Franklin thought "that it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer." For "one hundred", substitute N, and probably everyone can find some N, between 0 and infinity, that they feel comfortable with. As one rather amusing essay points out, lots of people over time have put forth different values for N, with the current mean value being approximately 59.72. In other words, in the United States, we believe that on average, it is better for 59.72 guilty persons to go free than to have one innocent punished, but better to have one innocent punished than to have more than 59.72 guilty people go free.

Because even with the two percent estimate, more than one innocent person would be punished for every 59.72 guilty people going free and that seems to conflict with the American sense of justice. But this is a war, and justice is typically redefined or ignored in the context of war, and by redefining justice, women have turned the tables and have captured rape, or rather the punishment of men accused of rape, as an offensive strategy.

There are two main fronts in this strategy and they are related.  The rules put forth to colleges from the Office of Civil Rights (OCR) have been around for a few years:

The OCR regulations are stunning in their presumptuousness. They are asserted with the force of law but were not passed by Congress or considered by the courts, nor were they formulated after a legally required process of hearings and comment. Equally stunning is the docility with which they have been received by the universities. Though there are signs of discomfort, not one has opposed an intrusion upon their self-government in a matter of educational discipline that previously has been left to them.

One could go on to explain features of the new OCR policy that make it a danger to civil rights, as indeed has been done in a published petition by a number of Harvard law professors. As to due process, these are rights that will not be protected by the new policy: a hearing, the right to confront or cross-examine witnesses, the right to an attorney, the right of appeal to a neutral party, protection against double jeopardy, the right to a presumption of innocence, the right to have one’s case heard by an impartial arbitrator. The new standard of misconduct requires less evidence than before, as it is necessary only to prove by “the preponderance of the evidence” rather than “beyond a reasonable doubt.”

The woman, or rather the complainant, has huge leverage with the man's (excuse me, the "respondent's") due process rights complete eliminated, replaced with an opaque bureaucratic process which metes out punishment with no or limited visibility into the decision making process.

The other front is State level legislation such as California's infamous "Yes Means Yes" law:

Last month, California Gov. Jerry Brown, a Democrat, signed legislation requiring colleges in the state to adopt sexual assault policies that shifted the burden of proof in campus sexual assault cases from those accusing to the accused. Consent is now “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” The consent has to be “ongoing” throughout any sexual encounter.

On California campuses, consent is no longer a matter of not struggling or not saying no. If the student initiating the sexual encounter doesn’t receive an enthusiastic “yes,” either verbally or physically, then there is no consent. If the student is incapacitated due to drugs or alcohol, there is no consent.

The man has to prove the "ongoing" consent, which on its face means "guilty until proven innocent." However, short of videotaping the encounter, such proof is impossible, which means that this and other laws like it are indeed achieving the desired standard "guilty if accused."

So far, the above rules have applied mostly only to colleges, but sensing total victory, women want to extend the law nationwide:

New York Democratic Sen. Kirsten Gillibrand, one of the most prominent lawmakers fighting campus sexual assault on Capitol Hill, said Monday that affirmative consent laws should be made the standard nationwide.

At this point, "nationwide" just means on college campuses nationwide.  But I can't help wondering if the ultimate goal is to make it nationwide, not just at colleges, but everywhere, all of the time, such that any woman can bust any man by accusing him of rape, even if completely false.

The problem is this: if a male and female are seen to consensually wander off together to a private location, she claims rape, he claims consensual activities, and there's no evidence of weapons or violence (not even a bruise), there are really only two choices:  either prosecute all men in that situation under the "guilty if accused" approach, or prosecute none of the men because there isn't guilt beyond reasonable doubt - it's a "he said, she said" situation.  I suspect that Sen. Gillibrand and many others would prefer the "guilty if accused" approach and they might one day have the power to make that the law.

In any case, men are badly losing the war on this front as well.  As a result, it seems that many men might be in full blown retreat, a topic for the next post in this series.