The Moral Panic about Sexual Assault

So much for justice. According to our criminal justice system, rape is a felony. The accused is innocent until proven guilty. He is entitled to a trial by a jury of his peers. He has the right to due process of law, and thus, to confront his accuser. The jury determines what did or did not happen. 

Such is the way the criminal justice defends the rights of the accused. Or better, balances the rights of the accused against the interest of the state. Those who believe that we must always have justice do not like the system. They explain that rape victims do not want to come forth, do not want to testify, and certainly do not want to be subjected to cross examination.

Thus, through the aegis of the Obama administration Department of Education, universities were encouraged to set up administrative courts where due process of law would not pertain and where any woman who accused a man of sexual assault would be believed. The accused man would not have any right to appeal or to contest the charges.

Evidently, this is an aberration, produced by overly zealous justice warriors. Law professors of all political persuasions have consistently denounced this process. Cases that have been appealed to federal courts have most often been overturned. The law professors remember Emmett Till. Apparently, the Obama Education Department did not.

To get around the inconvenience of due process of law, we have lately seen men denounced and shamed for presumably having committed sexual assaults. Often these accusations arrive months and years after the facts. Rarely would the evidence suffice to produce an indictment.

Even the zealous mattress girl, Emma Sulkowicz, saw her case rejected by prosecutors. There was insufficient evidence to bring a criminal case. If I recall correctly, after the fact she wrote the alleged perpetrator a text message telling him that she had had a wonderful time. But, when it came to denouncing and defaming the alleged perpetrator, evidence did not matter. What mattered was that Sulkowicz believed that she had been raped. 

The criminal justice system is one thing. It runs by strict rules. The public assault on reputation is quite another matter. In a world where Google search can instantaneously bring forth the most sordid accusations against a person, defaming someone’s character has become too common and undoable. In principle, someone who has been falsely defamed has a course of action… in civil court. But still, once the damage is done, the damage is done. 

Now, more and more women are having second and third thoughts about the #MeToo campaign. What started as an effort to reduce sexual harassment took on a life of its own and enticed women to come forth and to describe their own sexual experiences, some of which were clearly assaults, some of which were ambiguous.

For the record it seems all to have been incited by the election loss of one Hillary Clinton, the nation’s leading enabler of sexual assault and sexual harassment. That no one seems to care about the Clintons’ contribution to the pervasive sexual harassment in the workplace tells us a great deal about the current state of the American mind.

Anyway, recently the highly esteemed-- by me-- Emily Yoffe wrote about the case of one Jonathan Kaiman, formerly a rising journalistic star, currently, on the evidence of two accusations, living with his parents, jobless and friendless, obsessed with thoughts of suicide:

Until the spring of 2018, Jonathan Kaiman was the Beijing bureau chief of the Los Angeles Times. Today he is living at the home of his parents in Phoenix under conditions he describes as a form of psychological house arrest. There are no visitors, and his few remaining friends rarely call. He feels unable to make new ones, because he fears the reaction of anyone who Googles him. He's 32, unemployed, and perhaps unemployable—"I'm radioactive," as he puts it. And he's still trying to find the right combination of psychotropic medication to quell the recurrent thought that ending his life may be the best way out.

Kaiman was accused by two women, each once his friend, of behaving badly during separate casual sexual encounters, four years apart. The result of these accusations—even in the absence of any formal legal proceedings—has been a thoroughgoing destruction of his life.

By now, many feminists have concluded that declaring war on men, trying to destroy as many men as possible, redounded to their own discredit. It might make you feel powerful to destroy a man’s life, but it does not count as an achievement or a job qualification. More and more women are also now radioactive. Older men will not mentor them, will not have dinner alone with them, will not travel with them. #MeToo has not necessarily advanced women’s career prospects. In many cases, quite the opposite.

Yoffe continues:

A common feminist dictum holds there are no innocent men, as per the slogans #YesAllMen and #KillAllMen. We are now in a time when a sexual encounter can be recast in a malevolent light, no matter whether the participants all appeared to consider it consensual at the time and no matter how long ago it took place. Looking back, it can be even harder—perhaps impossible— to know what really happened in a private sexual encounter.

But creating injustice today does not undo the harms of the past; instead it undermines the integrity of the necessary effort to address sexual misconduct. When we endlessly expand the categories of victim and perpetrator, we let loose forces that will not stay contained. Anyone, regardless of innocence, can be targeted and found worthy of destruction. And long after the headlines have faded, the damage continues to accrue.

Unfortunately, the sexual encounters between Kaiman and two women, Laura Tucker and Felicia Sonmez fell somewhere between assault and misunderstanding. They were hookups that seem to have gone wrong. And yet, in both cases, women seemed to have voluntarily taken initiatives on the evenings in question that would have cast serious doubt on their stories in a court of law.

Here is what happened with Laura Tucker:

 After an evening out drinking and flirting, Tucker drove Kaiman on her scooter back to her apartment. There, she wrote, they mutually and consensually undressed and got into bed....

Tucker wrote that while making out in bed with Kaiman, she had a change of heart, so she stood up and said she didn't want to continue. She wrote, "He lay on the bed, not moving, watching me. I remember that he sort of smiled and seemed to pout." As they talked and she repeated that she didn't want to have sex, she wrote, "he began to whine," which made her feel "like it was too late to back out."

He says that after a brief conversation he concluded the night was coming to an end and that he should leave, so he sat up with the intention of getting dressed.

She described what happened next: "I am still so upset that I concluded the easiest, least confrontational way forward was to place male satisfaction above my own desires and to go back to bed." The sex made her feel "gross," she wrote, and Kaiman left immediately afterward. His recollection is that she was a full participant and that he stayed the night. When he went to kiss her goodbye the next morning, he says, he was surprised that she seemed distant and upset.

She was acting out of her own fear, not, apparently, out of any overt coercion. Perhaps she had had similar experiences before. Perhaps not. But, she decided to participate, only to decide later that she had not really consented.

Is this plausible? Yes, it is. As we will see, you can consent to something and then, upon performing the action, feel that it was not at all what you consented to. In a courtroom you do not have a case. In your own personal moral calculus, you are choosing between being a less than reputable woman and being a rape victim. Do not underestimate the importance of women defending their reputations.

Here is what Sonmez described:

She described a very late-night sexual encounter in mid-September 2017, which happened after a daylong FCCC party that ended with people gathering at a karaoke bar. Sonmez wrote that portions of the evening were consensual, including kissing at the bar—Kaiman says she initiated the kiss—after which she offered Kaiman a ride home on her scooter, just as Tucker had driven him on hers.

Sonmez, who is about four years older than Kaiman, wrote that they both got off the scooter when she had to stop to get past a barrier, at which point "Jon lifted up my dress and began digitally penetrating me without my consent." She said she had to forcefully push him away, at which point he "began unbuckling his belt and pulling down his shorts. We were on a public street, it was dark and no one was around. Jon is much bigger than me, and it took me repeatedly telling him no and pushing him away for him to finally stop." She continued: "It gives me chills to think of that moment and imagine what he would have done if I hadn't been able to get him to stop."

Kaiman says that when Sonmez stopped her scooter, they began kissing. He reached under her dress and she started unbuttoning his pants. Then Sonmez expressed discomfort at engaging in sexual acts in public, so Kaiman stopped immediately and offered to walk the rest of the short way home.

Kaiman says Sonmez insisted on driving him. She doesn't explain why she let him back on her scooter, but she acknowledges she drove him to his apartment. He says when they got there and got off the scooter, they kissed while standing outside the building and again fondled each other's genitals. But he was feeling guilty about cheating on his girlfriend and said that what they were doing was not a good idea.

Her version is that he resumed his assault: "Before I knew it, Jon had backed me against a wall around the corner from his front door. We were kissing, and then he again began unbuckling his belt and taking off his shorts. Again I told him no, I didn't want to do that."

Sonmez, Kaiman says, wanted to walk him to his apartment, six floors up. She had been to his place previously, so she knew how far it was. He says that because of the hour—it was about 2 a.m.—and the alcohol, he was making poor decisions, and he agreed.

Sonmez wrote that "many parts of the night remain hazy in my memory." In reconstructing her thought process, she said, "I don't remember what was going through my head as I went upstairs, whether I wanted to take a nap or get some water or maybe make out." In other words, despite what she described as a chilling escape from Kaiman only minutes earlier, she put him on the back of her scooter and took him to his door, where she claims she was sexually violated again. Then, under her own power, she hiked the many stairs to his apartment with the idea of possibly resuming consensual sexual contact.

Sonmez wrote that she "ended up naked on the couch in Jon's room with Jon on top of me. He briefly performed oral sex on me and then he had unprotected sex with me. I remember that he was already inside me before I had the wherewithal to ask him whether he had a condom; he said no. He continued for what I imagine was a few more minutes. I put on my clothes and unsteadily drove off home soon after."

 "I am devastated by the fact that I was not more sober," her letter stated, "so that I could say with absolute certainty whether what happened that night was rape." That line was quoted in stories about Kaiman's suspension in the Los Angeles Times and by the Associated Press, whose story was picked up internationally, linking him forever, he says, to the word rape.

Again, there is a zone of ambiguity. In a courtroom her willingness to walk him up to his apartment, her undressing, her performing oral sex on him and allowing him to perform oral sex on her would have been relevant. In the court of public opinion, they are not. She felt traumatized and believed that Kaiman was solely responsible.

Yoffe quotes a New York Times editor’s redefinition of consent:

In a December 2017 article, New York Times gender editor Jessica Bennett described how issues of female consent play out in the world, writing, "Sometimes 'yes' means 'no,' simply because it is easier to go through with it than explain our way out of the situation. Sometimes 'no' means 'yes,' because you actually do want to do it, but you know you're not supposed to lest you be labeled a slut. What about when 'yes' isn't really an enthusiastic affirmative—or an affirmative at all? What about a woman who doesn't feel that she can speak up because of cultural expectations? Should that woman be considered unable to consent?"

Bennett is certainly right that sex can be ambiguous and confusing. But requiring that men intuit that a "yes" actually means "no," because women lack the wherewithal to know their own minds or to express themselves, revives the pernicious belief that women are perpetually childlike.

Is Bennett right? Yes, she is. A woman can ostensibly consent while discovering after the fact that what she thought she was consenting to was not what she experienced. So, the issue of content is ambiguous. Which is why we have often referred these cases to the criminal justice system.

And, let us not forget, we live in a hookup culture, where, as Heather Mac Donald once noted, the sexual default for women is Yes, not, as it had been in the past, No. This enhances the possibilities of misunderstandings. So Yoffe asks whether uncertain memories and moral ambiguous behavior should be sufficient to destroy someone’s life.

Meanwhile, we are now in a time when the uncertain circumstances surrounding one regretted sexual encounter and another hazily remembered (and fiercely disputed) intimate encounter are sufficient to destroy the accused's life.