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Making Men Rapists

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It is called “affirmative consent.” It is a new front in the growing regulatory oversight of the most intimate aspect of personal life: making love or having sex. If the White House Council on Women and Girls gets its way, then the doctrine of affirmative consent will regulate sex on a campus near you. It may already be happening.

Affirmative consent is sometimes called “enthusiastic consent” or “yes means yes.” It is intended to replace the current standard of “no means no.” By that standard, the noninitiating sexual partner — almost always assumed to be the woman — needs to decline sex in some manner for the act to be legally viewed as rape. She can verbally decline, try to leave, or push the man away; her “no” can be expressed in many ways.

“No means no” is deemed inadequate for several reasons. It is said to place an unfair onus on the woman, who must protest in some manner. It has not eliminated rape, the rate of which is allegedly rising. It also does not comfortably fit an expanding definition of rape — for example, if the woman is drunk and so is legally unable to consent.

The legal standard of affirmative consent is said to solve these perceived problems. The person initiating sex must receive explicit consent before and throughout the sex act in order to escape the specter of rape. In practical terms, this means the man must receive explicit consent from the woman prior to and during a sex act, or he becomes vulnerable to being criminally charged.

The consent can be verbal, but this could be dangerous. What happens if a willing partner later becomes vengeful or regretful, or seeks an advantage such as a favorable divorce settlement? The man could face a “he said/she said” scenario in hearings or courts that are often biased in favor of “victims” and of women. To be safe, therefore, the man must get not only explicit consent but also provable consent. An example would be to get consent in writing.

No one excuses genuine rape or sexual assault. As a woman who has experienced both, I would never dismiss the pain of a victim or the need to bring a perpetrator to justice. Affirmative consent will not help with either of these concerns.

And yet, its advocates are vociferous about the need for it. They justify the demand with false statistics and hysterical arguments that create the illusion of an epidemic of rape on campuses and city streets.

False stats create a “rape” epidemic

There is a proximate cause for the growing campaign to assert affirmative consent on campuses and in legislatures. On January 22, 2014, the White House Council on Women and Girls issued a paper entitled “Rape and Sexual Assault: A Renewed Call to Action” (PDF). It stated, “1 in 5 women has been sexually assaulted while in college.” That’s a stunning statistic. Or, it would be, if it were true. It is not. And the New York Times headline, “Obama Seeks to Raise Awareness of Rape on Campus,” printed on the same day as the council’s report was released, can’t turn falsehood into truth. Nevertheless, the task force established in the wake of the report will almost certainly validate its findings and act on them.

The truth: the rate of rape has fallen sharply since 1979.

In March 2013, the U.S. Department of Justice reported,

From 1995 to 2005, the total rate of sexual violence committed against U.S. female residents age 12 or older declined 64% from a peak of 5.0 per 1,000 females in 1995 to 1.8 per 1,000 females in 2005 (figure 1, appendix table 1). It then remained unchanged from 2005 to 2010. Sexual violence against females includes completed, attempted, or threatened rape or sexual assault. In 2010, females nationwide experienced about 270,000 rape or sexual assault victimizations compared to about 556,000 in 1995. [PDF.]

The White House Council’s report is also biased in its presumption that the majority of sexual assaults are committed by men against women. The council states that “1 in 71” men is raped in his lifetime, as opposed to “1 in 5” women during her college years. But this figure appears to conflict with the landmark 2007 “Sexual Victimization in State and Federal Prisons Reported by Inmates” conducted by the Bureau of Justice Statistics (BJS) within the Department of Justice (DOJ). The BJS report indicated that around 60,500 prisoners were sexually abused in one year alone. Since the prison population is overwhelmingly male, it is reasonable to assume most of the victims were male as well. (Indeed, of the ten prison facilities found to have the highest incidence of “nonconsensual sexual acts,” eight had only male prisoners [PDF].)

More recently, in January 2011, the DOJ responded to a series of articles in the New York Times that excoriated it and the BJS for misrepresenting the rate of prison rapes. The DOJ finally raised its report of the number of people who were sexually abused in 2008 from its earlier figure of 90,000 to more than 216,600. As the New York Review of Books states, “Overall, that’s almost six hundred people a day—twenty-five an hour.” Again, it is a safe assumption that the majority of victims are male.

Moreover, if you expand the subject from rape in prisons and look at sexual assaults more broadly in the general population, then the rate clearly changes. For instance, men perpetrate domestic sexual violence against women at roughly the same rate as women commit it against men. A 2010 report from the Centers for Disease Control, the National Intimate Partner and Sexual Violence Survey, found that nearly identical percentages of men and women experience sexual violence other than rape (men: 5.3%; women: 5.6%).

Professor Martin S. Fiebert of the Department of Psychology at Cal State Long Beach has done meticulous research. His study, “References Examining Assaults by Women on Their Spouses or Male Partners” compares 343 scholarly investigations, 270 empirical studies, and 73 reviews and/or analyses. The aggregate sample is over 370,000 people. Fiebert’s work demonstrates that women are as physically aggressive in relationships as men. Neither sex can claim victimhood or villainy. Such abuse is a human condition in which both sexes share.

The inflated numbers often cited by affirmative-consent advocates also arise because they ignore or downplay the problem of false or mistaken accusations. The council’s report states that “only 2–10% of reported rapes are false.” On the basis of that extremely low estimate, the council’s report credits every rape accusation as true.

But in her article “Memo to VP Biden: Male Rapists Are Not Lurking on Every Campus Corner,” author Suzanne Venker points out that “three peer-reviewed studies have found the rate of false accusations of rape to range from 41% to 60%.”

Peter Neufeld and Barry C. Scheck are cofounders of the Innocence Project, which seeks to exonerate the falsely imprisoned. They explain, “FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 [DNA] tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have ‘matched’ or included the primary suspect.”

The National Institute of Justice’s informal survey of private laboratories reveals a striking 26 percent exclusion rate.

Clearly, false or mistaken accusations are common. Affirmative consent may also increase confusion and honest mistakes. How? Even if a man dates a woman or is married to her, unless explicit consent is present each time, a rape could still legally occur. It could also occur if explicit consent is present at first but withdrawn during the act itself. In fact, a measure proposed in California would establish this precedent.

Such measures also embed a de facto double standard in law and policies. Consider just one scenario. Two drunken people have sex; legally speaking, this means neither is able to consent. As it stands, a drunken woman is likely to be considered a rape victim and not responsible for her actions; a drunken man is likely to be considered a rapist who is responsible for the actions of both. This vicious double standard has no place in justice or in an honest dialogue.

What about due process for men?

Affirmative consent is trying to find a foothold on campuses through means other than legislation as well.

In April 2011, the U.S. Department of Education’s (DED) Office for Civil Rights sent a letter to campuses across America, demanding they comply with new standards on sexual assault if they wish to receive federal funds. (Almost every institute of higher learning in America receives federal funds.) The letter expanded the definition of sexual assault. It also greatly reduced the due process of an accused, depriving him of legal protections such as the presence of council and the right to cross-examine an accuser. Current DED sexual-assault policy includes no requirement that a “victim” get an examination, which means guilt can also be adjudicated with no medical or DNA evidence.

Instead of using the legal standard of “beyond a reasonable doubt,” the DED letter requires college hearings to use the standard known as “a preponderance of evidence”; that is, a 50.01% likelihood of guilt or innocence. This is the standard used by civil rather than criminal courts. Male students can be found guilty of rape by using the same standard of evidence employed by traffic courts when they adjudicate parking tickets.

The White House Council’s report is, as its subtitle indicates, “A Renewed Call to Action.” It has emboldened politically correct voices on campuses. For example, at a recent conference on how to handle campus assault, Amanda Childress, coordinator of the Sexual Assault Awareness Program at Dartmouth College, suggested, “Why could we not expel a student based on an allegation?” Instead of raising a voice of sanity, the college publicly defended this remark, saying that Childress “was asking a question — a provocative one — meant to generate dialogue around complex issues for which answers are necessary to continue to strengthen and promote fair and equitable processes at all colleges and universities.”

What? There is nothing fair, nothing equitable, about ruining a young man’s career and smearing him as a rapist on the basis of an allegation. And yet, this $63,282-a-year college is willing to discuss the “provocative” option of doing just that to male students  — without issuing a refund, of course.

Even on the brink of graduating, the accused can be expelled and refused the degree that he may need to obtain a license for the career for which he has trained. With a permanent stain on his record, other universities are not likely to admit him. Few employers are likely to hire him.

Males should not be stripped of due-process rights, on campus or in courts. They must be presumed innocent until proven guilty; they must be allowed to face their accusers in the company of counsel. And the accusation of rape needs to be judged by a standard of “beyond a reasonable doubt.”

No one should have to relinquish their constitutional rights in order to get an education.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).