NY Times Admits - Most Reported Campus Rapes Aren’t Rapes

WASHINGTON - Aug. 28, 2015 - PRLog -- The New York Times has now admitted what  many lawyers have known for a long time - most campus rapes reported by women are not rapes at all, and that whatever standard colleges adopt to define consent are irrelevant because sexual intercourse, even if there is no consent, or if the woman clearly says “no,” doesn't constitute rape in most states.

        So, as the Times notes, women are bombarded with ads and other educational materials telling them that "no means no," or that “If she doesn’t consent, or if she can’t consent, it’s rape.” as a White House video explains it.

        But that could give women a false sense of security, especially once the leave the security bubble of two students at the same school having sex, says public interest law professor John Banzhaf.

        Despite seemingly endless repetition of this "no means no" mantra, a Times article on why sexual assault laws should change now concludes that "this message often doesn’t line up with legal reality.  A majority of states still erect a far higher barrier to prosecution and conviction by relying on the concept of force in defining rape . . .  in more than half of the 50 states, a judge or jury must find that a person used force to find him or her guilty of rape."

        So probably the majority of situations in which a coed claims she was raped because she didn't consent, or even that she clearly said "no," could not be successfully prosecuted.

        Female students who cling to that belief may well find themselves with no protection if they date a man who has graduated, or who never went to college, or even if he goes to a different college, notes Banzhaf.

        Strangely, it took a case of alleged rape at St Paul's, a high school, to bring this forcefully to public attention, says Banzhaf.

        In that case a young girl accepted an invitation from a senior to meet for what she knew was to be a "senior salute," a well-known ritual where "male students [compete to see] who could ‘score with’ or ‘slay’ the most girls.”  She presumably felt that she could prevent unwanted intercourse from occurring by saying "no," which she claims she did in fact say three times.

        But she also testified that "she lifted up her arms so Labrie could take her shirt off and raised her hips so he could pull off her shorts," and that “I wanted to not cause a conflict” and “I felt like I was frozen.”  In short, he could have believed that her initial “no” was changed to a "yes" - as indicated by her cooperation and lack of any other resistance.

        So, even if a jury finds that she did in fact say "no," it could well also find that the "no" was contradicted by her actions and/or by not speaking up more forcefully.  The jury therefore might be unable to conclude, beyond a reasonable doubt, that Labrie knew she hadn't consented, and for that reason and that reason alone is guilty of felony rape.

        Moreover, any such guilty finding would be impossible in most states, even if the jury concluded that she has not consented at all since, "in many states, Labrie probably would not face felony charges of sexual assault at all."

        The Labrie case also illustrates another important aspect of the problem.  Many women on college campuses probably would not experience unwanted intercourse if they stopped worrying about being nice and “not caus[ing] a conflict” when confronted with aggressive advances by dates or even acquaintances.

        A recent study reported in the New England Journal of Medicine, which showed how to slash the number of rapes by almost 50%, concluded that, while coeds are not hesitant about saying “no” forcefully and very effectively to a stranger, they are reluctant to do the same to a date or acquaintance.

        As the authors noted, the emphasis was on “verbally resisting.”  It appears, therefore, says Banzhaf, that the women simply learned how to say - or perhaps even shout - "no" earlier and more effectively, thereby forestalling unwanted sexual intercourse even with a friend.

        The author explained that most women, faced with unwanted sexual advances by people they know, try pleading and crying, instead of voicing a very firm and unequivocal “no,” or even screaming if necessary.  But sending signals which aren’t clear - especially if both the male and female have been drinking heavily - in many cases simply aren’t effective, says Banzhaf.

        The study strongly suggests that a clear loud - and screamed if necessary -  “no” or “stop” apparently is far more effective, especially if uttered before penetration occurs, than vague protestations like “I don’t feel right about this,” or “shouldn’t we wait,” suggests Banzhaf.

        Perhaps the best long-term remedy, says Banzhaf, is to have one simple uniform standard which applies in all states both on and off campus - if sex occurs after a women forcefully and clearly says “no” (or “stop” or “don’t"), it’s rape, regardless of whether or not the male used force.

        This would avoid the confusion which now occurs, provide the same standard of protection to all women whether or not they happen to date a student at the same university, ensure that both prosecutors and college officials are applying the same (rather than inconsistent or even conflicting) standards, and be consistent with the tried and true tests used for hundreds of years in civil trials of sexual battery.