George Will and Sexual Assault

I am a college professor, and a year from now the first of my three daughters will be preparing to head off to college. So naturally I have some thoughts on George Will’s comments about sexual assault, and I’m pretty critical of them. I’m not anti-George Will, but he would have done well to set this column aside and given it considerably more thought.

We’ve hashed out the issue of “coveting” victim status, so let’s set that aside, and focus on two other issues. One is the alleged proliferation of victims, and the other is his claim that including unwanted touching in our definition of sexual assault is “overbroad.”

About proliferating victims Will wrote,

Colleges and universities … are learning … that when they make victimhood a coveted status that confers privileges, victims proliferate.

From a micoeconomic point of view, we know that when we make something more desirable, and/or easier to attain, more people will try to attain it. That gives us two variables to look at: desirability and ease of attainment. Let’s look at desirability first, a concept which seems central to Will’s thesis because he says women “covet” victim status.

——————————–
The Desirability of Sexual Assault Victim Status

What exactly is desirable in victim status? What kind of status is it anyway? It’s not the status of being a star athlete, or the status of acing thermodynamics–nobody praises you for being a victim, nobody envies or emulates you. Tim Kowal suggests that it’s about legal status, that it “is undeniably a legally advantaged status for purposes of prosecuting her case.” Of course that means a guy who is attacked and hit in the genitals with a baseball bat is “legally advantaged for purposes of prosecuting” a case against his aggressor, which may have some abstract legal truthiness, but I can’t imagine that Tim could conceive of coveting that status any more than I do. All jokes aside, that approach means all crime victims have that “legally advantaged status,” but we don’t speak of any of them “coveting” that status. We understand that nobody desires to be a victim, except in the case of sexual assault, where–uniquely, it appears–we think women are coveting that status.

That’s a big claim to make, an extraordinary claim requiring extraordinary evidence, but Will treats it as an obvious truth, something that doesn’t need an explanatory or justificatory argument.

——————————–
The Ease of Attaining Sexual Assault Victim Status

The other variable in the proliferation of people attaining something is ease of attainment. Will also touches on this, with his claim that including “unwanted touching” as a form of sexual assault makes the definition of sexual assault overbroad. There is a general logic to this, that conceivably could apply. To see it better, let’s move away from the heavily weighted topic of sexual assault, and consider the crime of theft.

Assume our definition of theft includes only taking something from someone by force. That imposes certain limits on the number of actual victims. Suppose we then extend the definition to include taking something from someone through fraud. That will necessarily expand the pool of victims, by making it easier to legally qualify as a victim of theft.

But have we really expanded the pool of victims, or just the pool of people legally defined as “victims of theft”? That is, did the first definition improperly overlook a large subset of people who actually are victims, but just weren’t defined as such by that imperfect institution of human law?

Of course could–in theory, at least–readily extend the definition of theft beyond what most people would see as reasonable. You could be defined as a victim of theft because you found a problem I hadn’t told you about in that car that I sold to you as a “certified POS, with only god know what kind of problems.”

The question then, is to which of these cases is a broader definition of sexual assault more analogous? Will seems to suggest the latter, that we’ve gotten too loose in our definitions. But he doesn’t provide actual evidence for this–he doesn’t provide evidence that those who are subjected to unwanted sexual situations that fall short of forcible rape aren’t in fact victimized.

This is where the “lived experience” that Veronica Dire emphasizes and Tim Kowal dismisses is relevant. It’s easy to tell, objectively, if someone’s been physically injured, but for psychological or emotional injuries, objective evidence is much harder. But that doesn’t mean those injuries don’t occur–the lack of objective evidence does not mean that some person has not hurt another person.

Undoubtedly this is a very difficult issue for the legal system to grapple with. We can’t just accept any and every individual claim of psychological/emotional harm, but we do have to at least take seriously the “average” claims of a large number of people who’ve experienced particular actions against them. And what evidence does Will have to set against that? He gives us none, even though an elderly male telling younger women, “no, you haven’t actually been assaulted” is a claim that demands justification. It demands justification not because it’s about men, women and sexual assault, but as a general rule that “any X telling a group of Ys that the actions of Xes have not hurt Ys requires a compelling justification of the claim.”

——————————–
Is the Inclusion of Unwanted Touching an Overbroad Definition of Sexual Assault?

Will writes critically of

capacious definitions of sexual assault that can include not only forcible sexual penetration but also nonconsensual touching.

Let’s pause to note something. Will is an excellent writer, and I think a very cautious one. Nowhere does he explicitly say that nonconsensual touching is not in fact sexual assault. And the term “capacious” is clinical and not inherently normative. But his essay as a whole is critical of expanding the pool of people classified as victims, so I don’t think there is a plausible reading of this clinical phrase that doesn’t conclude Will is critical of the capaciousness of the definition.

But it seems to me, although I am not a lawyer, that Will is quite ignorant of the legal meaning of the term assault. The online legal dictionary of Cornell University’s Legal Information Institute defines assault as follows:

1. Intentionally putting another person in reasonable apprehension of an imminent harmful or offensive contact. No intent to cause physical injury needs to exist, and no physical injury needs to result. So defined in tort law and the criminal statutes of some states.

Several elements of that definition stand out as critically relevant. One is the note that this is how assault is defined in tort law, that is, it is a common law definition of assault. That means it’s not a new-fangled definition, but one that has roots going back centuries. (The common law does evolve, and does develop new-fangled definitions now and then, but this definition of assault is of long-standing.)

Another important element is that neither physical injury nor even actual physical contact is required, just an “apprehension of imminent…contact.”

Third, the apprehended contact does not have to be physically harmful, but merely “offensive.”

If anything, the term “sexual assault” is not overly capacious here, but the inclusion of the term “sexual” is not strictly necessary to recognize that “nonconsensual touching” can be the crime of assault.

But Will’s concern seems to be that we’re watering down the “real” sexual assaults; rape. And here the U.S. Code rebuts his claim. 10 U.S. Code § 920 – Art. 120 concerns “rape and sexual assault generally.” Notice that the very title distinguishes between sexual assault generally and rape as a specific type of sexual assault. The distinction is spelled out specifically, with part A defining rape and part B defining sexual assault more generally. And the code explicitly includes a definition of “sexual contact” as

Sexual contact.— The term “sexual contact” means—
(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or
(B) any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person.

From this we see that it is simple to have a capacious definition of sexual assault while still distinguishing rape as a distinct kind of sexual assault.
——————————–
Conclusion
Unwanted sexual touching is well within the bounds of the definition of assault. If the common law did not include sexual touching in its application of the assault tort, it seems more plausible that it was because of the generalized lack of recognition of women’s autonomy than because it was a logical exception.

Distinctions are what the law does, and there is no doubt that George Will knows that. Just as we distinguish between assault and battery, with battery being effectively a specific type of assault, and so generally punished more severely than simple assault, we can readily distinguish between sexual assault and rape, with rape being a specific type of sexual assault and punished more severely than “simple” sexual assault such as nonconsensual touching.

In his post-essay defense, he said his critics were the product of the internet’s reduction of barriers to enter into political debate so that “you don’t have to know how to read, write, or think.” We can’t deny that Will knows how to write. But it seems evident that in this case he did not read carefully, and failed to think very seriously at all.

Please do be so kind as to share this post.
Share

32 thoughts on “George Will and Sexual Assault

  1. Excellent post professor.

    The claim of being the victim of any crime is a “coveted status” is so out there to me that I don’t know where to start. I suppose you can argue that there is some Munchausen syndrome going on but that is the sign of Munchausen syndrome or a similar ailment. Not the sign that it is a coveted status or desirable to be the victim of a crime.

      Quote  Link

    Report

    • Three are always a small subset of people who make up stories of victimization for their own benefit, but it is rare for such stories to have long legs. Since the minds that fashion such stories tend to be severely disturbed, the stories are usually extraordinary, and develop inconsistencies with each re-telling.

        Quote  Link

      Report

      • There probably is some amount of people, not a high amount of people but maybe a few percent, that claim crimes were committed against them that did not happen.

        In a hypothetical world where being the victim of a sexual assault actually had some sort of social cachet (Which is not this world.), women might indeed claim something happened in the past, much like how in the real world I’m sure some idiot men run around claiming to have fought off muggers or whatever.

        But that’s entirely irrelevant here, because those pretend crimes were never, in fact, reported. People don’t say ‘I will pretend to be a victim of a crime tonight, and go to the police and file a false report’. That’s completely absurd. They set their pretend victimization in the past, somewhere else where it would be hard to check.

          Quote  Link

        Report

  2. James, some block-quote problems?

    I very much like your explanation of assault vs sexual assault; and wonder: does delineating a specific definition of sexual assault give it some higher degree of wrong, as battery does?

      Quote  Link

    Report

    • some block-quote problems

      Thank you. Fixed now.

      As to your question, I think that would not automatically be the case, but would depend on whether different–harsher–penalties were attached. If I’m wrong, I hope one of our counselors will correct me.

        Quote  Link

      Report

  3. Would it be too much to ask that we refer to George Will as “Mr. Will” going forward? I don’t know that we have an OT style guide, but every time I seem him referred to as “Will”, I think of “Will Truman”, and I’m sure our beloved Mr. Truman would bristle at being associated with some of the things Mr. Will has said on this topic. Maybe this is not necessary, but I thought I’d at least float it out there.

      Quote  Link

    Report

  4. Excellent piece, professor. Particularly the piece on “desirability”. There was a time, maybe a decade or so ago, where I was concerned about the potential for rape and sexual abuse laws/statutes to be abused. It bothered me that were to a young man and young woman both get drunk at a dorm party and then have sex, only the former could be guilty of a crime. I was wrong about this, on a number of levels. And I’m sure it was no coincidence that the time frame during which I held this belief overlapped with the time frame during which I was a young man who got drunk at dorm parties. One of the ways in which I was wrong was assuming that women would make rape or sexual assault accusations willy-nilly; the idea that they would turn a regrettable hookup into a rape allegation. Has that happened somewhere sometime? Will it happen again somewhere sometime? Yes and yes. There will always be people who falsely report crimes for god-knows-what-reasons. But reporting a crime is rarely easy. And all of the evidence points towards reporting rape and sexual assault as uniquely difficult. No sane woman (or man, for that matter) wants to be a rape or sexual assault victim. They do not want to experience what goes into substantiating that status. Furthermore, whatever privileges might exist for those who have been given that status are almost surely outweighed by the negatives associated with that privilege — even after we account for the fact that they were raped and/or sexually assaulted. No sane woman is going to subject herself to the scrutiny, the humiliation, the mental anguish, etc. that comes with reporting a rape or sexual assault just because they regretted hooking up with some guy or wanted to stick it to someone who never called them back. And it is callous, demeaning, and a whole host of other things to think anything else is true.

      Quote  Link

    Report

  5. /start lawyer pedant/

    There is a big difference between assault and battery.

    Battery is unwanted touching. (eg, battering ram, not assaulting ram).

    Assault is both (a) attempted battery (trying to punch someone in the back of the head and missing); and (b) creating fear of battery (making fists and getting up in someone’s face).

    The problem with (b) is that it is inherently subjective. So to prevent the minor aggravations that exist in modern society from becoming crimes, the law required that the conduct breach the ‘reasonable man’ standard — would a reasonable man be in fear of battery. An objective component was woven into the law.

    Back in the early 90s when I was going to law school, a major revolution in assault was occurring in both courts and legislatures. When a man threatened a woman, the woman’s fear was no longer adjudged by a reasonable man standard. It was instead judged by a reasonable woman standard. And it turns out that once you start putting women in jury panels, on the bench and in police forces that there’s a lot of conduct that used to be non-criminal becomes criminal. What’s a few slaps to the wife after a few drinks? Felony battery. What’s threatening to slap, especially if you’ve done it time and again in the past? Felony assault.

    Mr. Will seems to pine for the day that the law was nominally sexless, but instead actually written and interpreted for the benefit of men. (My wife recently got a judge to dismiss the pending prosecution of a woman for murder based on a battered wife defense. That was a good day in court, and only available once women’s reality of violence was recognized in the judicial system.)

    /end lawyer pedant/ [And since I’m dipping in 20+ year -old memories, apologies if any of this is wrong]

    There’s a really easy way for men (and women) not to commit sexual assault — obtain affirmative, enthusiastic consent each and every time. We must get way past “No means no” and get to “Only Yes means yes.”

      Quote  Link

    Report

    • Totally. With the caveat that folks ought to be able to sign reasonable contracts specifying what “no” means (If you want it to be a safe word, fine. But spell it out in writing. Ditto if you want it to be some sort of nonverbal communication).

        Quote  Link

      Report

    • That’s some extremely interesting legal pedantry/history about the “reasonable man” –> “reasonable woman” standard.

      The definitions make it sound like a lot of the crimes categorized as “sexual assault” (e.g., groping) would be more accurately described as “sexual battery”, since they involve physical contact.

        Quote  Link

      Report

    • I think with regard to the unwanted touching, the word “Intentionally” seems to do a lot here. In that the offender can’t be brought up on charges for tripping, putting their hands out in front of themselves, and grabbing a pair of breasts or buttocks inadvertently (absent any evidence of the trip being an intentional pratfall for the sole purpose of copping a feel).

      Basically, if you can’t show intent, you have a long road to climb for the charge. If you can, you should be able to lay in assault.

        Quote  Link

      Report

  6. Good post, James. It highlights one of the points that I found the most preposterous in the piece – the idea that there’s something wrong and overreaching with treating sexual assault short of rape as a crime.

    Your logic deconstructing the idea of “victimhood as a privileged status” is also excellent, especially:

    We understand that nobody desires to be a victim, except in the case of sexual assault, where–uniquely, it appears–we think women are coveting that status.

    I think you got at the heart of the sexist attitudes underlying George Will’s comment with that line.

      Quote  Link

    Report

  7. …a year from now the first of my three daughters will be preparing to head off to college.

    One wonders if George Will would have written this piece 15 years ago, when his own daughter was preparing to head off to college. And if she would have called him an idiot for doing so.

      Quote  Link

    Report

  8. So does anyone feel that Will’s critique of the statistics is incorrect? As for the critique of the liberal fetish of victim hood, he is right. Victim hood is a special status which entitles ones to privileges. It is a group identity which seems to be at the core of liberalism. If you are a victim it entitles you to control the discussion, you can stop others from taking part b/c or even discuss certain topics b/c you are the all knowing victim. Liberalism encourages folks to be victims.

      Quote  Link

    Report

    • Yes, I think that Mr. Will’s critique is incorrect. But don’t trust me, go review the math for yourself here.

      As to your last sentence, it’s well known that Conservatism encourages folks to be self-righteous sociopaths. Self-righteousness “is a special status which entitles ones to privileges. It is a group identity which seems to be at the core of [conservatism]. If you are [self-righteous] it entitles you to control the discussion, you can stop others from taking part b/c or even discuss certain topics b/c you are [] all knowing.”

      Gee, I built a strawman. Look how pretty it goes up in flames!

      [victimhood=power is really one of the most tiresome conservative tropes going around, promulgated only by people who have never met any victims. Do you honestly think that the woman my wife defended liked getting beaten up on a regular basis?]

        Quote  Link

      Report

  9. “What exactly is desirable in victim status?”

    Moral authority. “Don’t you presume to tell me anything about sexual assault! I’m a survivor of sexual assault! That means my arguments are inherently more valid than yours, and if you say I’m wrong about anything then you aren’t just disagreeing with me, you’re conducting a direct personal attack on a victim, you heartless Republican turd!”

    It’s the flip side of “you’d think differently if this had ever happened to you!” but it’s going to the same place; an argument that someone’s experience (or lack of it) constitutes unquestionably strong support for (or counter to) their argument.

      Quote  Link

    Report

  10. This is completely OT and irrelevant (IOW, pretty much like 99% of my comments), but I really like how the FP picture makes it look like George Will is sinisterly lurking around a corner.

      Quote  Link

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *