Phi Beta Cons

Re: Defining Campus Rape

I don’t dispute the claim, viz. Heather Mac Donald’s, that campus rape numbers are so high because of drunken, apparently consensual liaisons. And it seems unfortunate that university bureaucrats’ notion of rape is at odds with the common understanding of the crime.
Yet, it is also important to note that this common understanding doesn’t sync up neatly with rape’s legal definition either. In Massachusetts and many other states, a person becomes incapable of giving or refusing consent at some point on a drunken binge. Under Mass. case law, consent is presumed refused in these instances, and a rape has occurred. In this way, I imagine the New Hampshire survey’s usefulness has to do with its adherence to rape’s legal definition, and not its general definition.
With reference to this ‘too-incapacitated-to-consent’ genre of rape, some complain that the man, also drunk, is systematically identified as the aggressor. This strikes me as an argument rendered fallacious by a consideration of the mechanics of sexual intercourse, which most states define as a ‘penetrative’ act. The ball is quite clearly in the man’s court, and being drunk, even as it diminishes the legal importance of a clear denial of consent by a woman, does not absolve a person of criminal misbehavior. Conservatives hedging towards the demands of chivalry should not find that objectionable in the least.

Travis Kavulla is director of Energy and Environmental Policy at the R Street Institute. He is a former president of the National Association of Regulatory Utility Commissioners who held elected office as a Montana public service commissioner for eight years. Before that, he was an associate editor for National Review.

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