The Blogg

I expect this to be another highly controversial topic, so I will start again with a disclaimer. I do not personally know anyone who (to my knowledge) has been a victim, a perpetrator, or accused of any sexual crime. I freely admit my lack of personal knowledge of the subject and would be glad to be corrected or to consider new information. I am simply providing the facts as I see them.

About a week ago, Penn State running back Austin Scott was arrested on charges of rape. The story (from the victim’s perspective) is as follows: After having drinks in a bar, she and Scott returned to his apartment. She made it clear to him that she was not willing to have sex with him. After watching television for some time, she fell asleep in his bed. She woke up to find him having intercourse with her, and stopped resisting when he punched her in the back. I have not yet seen Scott’s account of what happened.

A few days after this was reported, the Morning Call ran an article which claims that college and professional athletes are “disproportionately involved in incidents of sexual assault”. Unfortunately, it does not provide actual details to demonstrate the statistical significance of this gap. It also states that athletes are much less likely to be convicted than the average defendant, although the data provided to support this is somewhat suspect. The Montgomery County district attorney is quoted that when sexual violence cases reach trial, the prosecution almost always wins them. A cited USA Today study states that over some time interval, 22 of 168 rape allegations against athletes resulted in convictions. What is not provided is information about how many of those cases reached trial.

Despite the lack of reliable data provided, I have little doubt that both of these assertions are true. There are a number of reasons why athletes might be more likely to commit rape than members of the general population: Certainly, the respect and special treatment afforded to high-profile athletes will inevitably lead to a sense of entitlement among a significant number of them. The same qualities that make athletes better than the population in general at their respective sports would make them uniquely qualified to successfully engage in any sort of violence. Perhaps most importantly, even those athletes who are not using performance-enhancing drugs are going to have elevated levels of testosterone, the primary hormone in both aggression and libido. In addition, it seems reasonable that athletes are also more likely to be falsely accused of crimes, due to their wealth and fame. Finally, athletes are more likely to be able to afford good representation than many other people, and their high profile means that many jurors may feel that they “know” the person, and that he is incapable of such an act.

Morning Call columnist Paul Carpenter (yes, the same guy I referenced in comments to my previous entry) wrote a response to this that was printed yesterday. To guard against expiration, I will reproduce the entire column here:

One need only look at Mike Tyson’s facial tattoos to realize this guy does not just have a screw loose, he has great big bolts clanking around in there.

Tyson’s tattoos may reflect the rest of his persona — they look like deranged doodles.

Nevertheless, I never have been comfortable with the fact that Tyson spent three years in prison on a rape charge. This was a case in which a woman voluntarily accompanied Tyson to his hotel suite in the wee hours of the morning, went to his bedroom with him, and then got in his bed.

I can’t help but wonder what women think will happen if they make a habit of jumping into the sack with young men who have normal hormonal drives. Ferocious feminists preach that ”no” always means ”no.” They even say that when a sex act has already begun, the male must stop instantly instead of continuing, as reportedly happened with Kobe Bryant.

In theory, that may sound like a valid argument; in actual practice, I think raging hormones may be as strong as the physiological mechanisms that produce involuntary hiccups.

For various reasons unrelated to Tyson’s rape case, jail might be a good place for him. Among other things, it would keep him off our public roads and away from people’s ears.

I have misgivings, however, when the legal system makes no distinction, at all, between a case in which a beast grabs an innocent victim from a sidewalk and rapes her, and a case in which an adult woman agrees to get in bed with a man and then coyly says ”no.”

Weekend stories told of rape charges being filed against Parkland High School graduate and Penn State star football player Austin Scott.

One story, on Sunday, also made comparisons with the cases involving Tyson, Bryant and other star athletes. The story quoted one expert as saying such luminaries ”get a sense of entitlement at a very young age,” suggesting that their behavior may be tainted by being full of themselves.

There was no mention of any possibility that some women may have motives for pursuing star athletes, as conveyed by the lyrics of a song written in 1933 and still played by rah-rah scholastic bands. ”You’ve to be a football hero to get along with beautiful girls. You’ve to got be a touchdown getter … ” and so forth.

In touchdown getter Scott’s case, it was reported, a woman voluntarily joined him for drinks at a State College bar, voluntarily went with him to his apartment, voluntarily got into his bed in the wee hours of the morning, and then, egad, Scott had sex with her.

There are other factors reported in this case. For example, the woman said Scott gave her a kidney punch. If that is true, prosecute him, by all means, for punching her.

At some point, however, somebody needs to have the courage to face the wrath of ferocious feminists and bring some degree of common sense to these kinds of situations.

In murder cases, we decide whether to execute people on the basis of mitigating and aggravating factors. We need a similar approach in cases involving sex. Grabbing a victim from a sidewalk or playground and raping her simply is not the same as being in bed with a willing woman who suddenly has a change of heart after the windows get steamed up with heavy breathing.

I’m not saying such behavior should never be prosecuted, but let’s apply some common-sense mitigating factors.

I admire Mr. Carpenter’s courage. In our current society, there are a few issues on which you simply cannot disagree with prevailing opinion without becoming a pariah. One needs only to look about two weeks back in the same newspaper to the outcry over this editorial. Of course, that was a case where the writer was both wrong and hateful, but my point remains. When I was in college, there was an organization known as STudents Against Rape (STAR), a noble cause. I became disgruntled, however, when some members of this group started an in-your-face campaign that essentially labeled all men as predators and women as helpless victims throughout their lives. My roommate and I talked about starting a parody organization to oppose them: Raging Against People In Star Today (RAPIST). In hindsight, I am quite glad news of this never spread beyond our immediate circle of friends; being lynched does not sound pleasant.

In this case, I do not quite agree with Mr. Carpenter’s views, but I find myself wholly approving of the spirit of his writing. Getting into someone’s bed is not implicit consent to sexual contact, particularly if it is accompanied by a specific statement of the opposite intent. In a college dormitory room, there is typically little other furniture a person might use while watching television. It was not terribly uncommon to have two people on each of the beds in my dorm room with another 4 laying on a futon in front during a movie night, and I can assure you that no one had any intention of initiating any sexual behavior.

Mr. Carpenter also argues that, when a woman changes her mind in the midst of a sexual encounter, the “raging hormones” of a young man may make it physically impossible to comply with her wishes. As a “young man who has normal hormonal drives”, I find that absurd. If a policeman shining his flashlight through the car window can cause an immediate stop to intimate activity, I am sure that a firm “stop” from one of the participants can as well. (Not that I’ve ever been in this situation, but it is enough of a cliche that it must have some basis in reality.

Where I agree entirely with this column is the indignation that events as described above are legally considered the same as a forcible attack. “Grabbing a victim from a sidewalk or playground and raping her simply is not the same as being in bed with a willing woman who suddenly has a change of heart after the windows get steamed up with heavy breathing.” Amen. To think otherwise trivializes the trauma experienced by those women (and men) who are victims of the former type of assault.

My personal problem with current laws has less to do with situations where consent might be implied or withdrawn as above, but with those where consent is given by all parties but the law decides that some parties could not have given consent. Most notably, it makes little sense to me that someone can choose to become intoxicated, choose to have sex while intoxicated, and then have her sexual partner considered a violent attacker. If we follow this logic, anyone who engages in a financial transaction with a drunk person should be charged with theft by deception. Furthermore, if an intoxicated person is legally incapable of making such decisions, we cannot hold drunk drivers legally responsible for their actions. What makes this even worse is that the same rules do not seem to be applied equally to both genders. If two intoxicated people have sex, they should both (under current laws) be charged with raping each other. In cases I have read about, however, only the male partner will be charged. I suppose this implies that a man would never decline casual sex when sober, which is insulting. Of course, I am not proposing that these laws be indiscriminately repealed. If someone plies their date with alcohol or discreetly drugs him or her with Rohypnol or another “date rape” drug in order to elicit consent, this should clearly be illegal. Even in this case, however, I do not think the punishment should be as severe as the case of a physically violent attack.

There is a similarly very difficult problem when a person is ruled incapable of consenting due to their age. Of course children need to be protected, and adults who exploit them should be punished severely. The concept of a “statutory rape” being the same as a rape, however, is extremely distasteful. I am still young enough to remember being a teenager, and it is difficult for me to imagine that any sexual experience that a typical teenager might completely agree to would be traumatic to them. This is really a topic for an entirely different essay, so I will not pursue it further.

In summary, I think Mr. Carpenter’s idea of mitigating and aggravating factors is excellent as long as we continue treating all unwanted or otherwise illegal sexual contact as the same crime. It would allow offenders to be punished in a manner consistent with the details of their crime without the capriciousness of a judge’s sentencing leeway. Common sense is lacking in such highly-charged issues, but voices of reason may eventually prevail if we are not first silenced.

I’ll preface this essay by making it clear that I have no direct stake in the matter I am about to discuss. I have never (to the best of my knowledge) consumed a chemical considered by any government with authority over me to be a controlled substance, except for prescription medications taken under the care of a physician and within the bounds of the law. Furthermore, I have no desire to do so and can definitively state that I would not, even if the threat of legal punishment was removed. I have no particular desire to “expand my consciousness”, the thought of deliberately relinquishing some control over my thoughts is frightening, and I am not sure I could handle more of a “high” than watching my favorite team come from behind for a last-second, important victory. I do have a stake, however, in a stable society.

Now that my personal biases and motivations have been laid aside, let us consider the cost of the criminalization of drug use. The United States incarcerates a higher proportion of its population than any other nation for which statistics are available. According to a June 2006 report by the U. S. Department of Justice’s Bureau of Justice Statistics available here, the combined prison systems of the United States held an average of 2,245,189 inmates at any given time, 0.497% of the total U. S. population. If that number does not seem high, consider that it equates to 1 of every 200 people. Given that only about 10% of inmates are female, that would be 1 of every 111 males. When we consider the relatively low incarceration rates of children and the elderly, the proportion of males aged 18-40 increases even further. Locally, Northampton County completed a new prison expansion in 2006, and the county council is currently considering a proposal to build again. Regarding the ever-increasing inmate population, county executive John Stoffa says “I don’t think it’s ever going to be solvable. It’s frightening, scary.” Apparently the number of inmates has been growing by a rate of 100 every 6 months.

The Research, Development, and Statistics Directorate of the United Kingdom’s Home Directorate published its World Prison Population List (4th Ed) in 2003. This report gives the United States incarceration rate as 0.686%, so it is clearly measuring something slightly different. Nevertheless, comparison of this figure with those from other nations proves enlightening. Our neighbors to the north in Canada incarcerated only 0.102% of their population, while in the south only 0.156% of Mexican citizens were imprisoned. England had a rate of 0.139%, while most of continental Europe was close to France’s 0.085%. Australia, the most famous penal colony, currently has a prisoner rate of 0.116%. Even repressive regimes such as Iran (0.229%) and China (0.111%) fall far below the United States, although one might be less inclined to trust figures provided by governments that are known to hold political prisoners. The only major nation that approaches the United States rate is Russia, at 0.638%.

Of course this data does not provide a perfectly clear picture. Few Americans would propose that this statistic be lowered by changing sentences from incarceration to floggings, forced amputations, or executions. Nevertheless, the differences between the United States and other nations that mostly share our values are striking. Given these statistics, it seems at least one of the following must be true:

1. Americans are more likely to commit crimes than citizens of other nations.
2. American criminals are more likely to be caught and convicted than their counterparts in other nations.
3. The United States imposes harsher penalties for crimes than do other nations.
4. There are activities prohibited in the United States but legal elsewhere.

I suspect there is a degree of truth to each of these. We might think of ourselves as law-abiding people, but individualism is a foundation of the American psyche. Certainly, the law enforcement agencies of the United States are among the best trained and equipped in the world. I will offer specific examples of the latter two later in this essay.

I would not propose that the government be more lenient in the general case, nor that acts clearly detrimental to society should be legalized. Murderers and other violent offenders should be segregated from society where the further damage they are able to inflict is minimized. People who commit property crimes such as theft and embezzlement should be required to compensate their victims and a deterrent should be provided against future offenses. If there is a safe way to decriminalize our society, however, we must consider it. Perhaps some more data will be useful.

First, note that our prison population has not always been such a significant percentage of the general population. Data on years past is much more difficult to find, but Another BJS publication shows total U. S. prison population growing steadily from 300,024 in 1977 to 1,496,629 in 2004, an increase of roughly 400%. By comparison, total U. S. population increased from 220 million in 1977 to 294 million in 2004 according to U. S. Census Bureau estimates, an increase of only 34%. We cannot be sure, but it seems quite likely that the Controlled Substances Act of 1970 and subsequent periodic escalations of the “War on Drugs” is a significant factor in this surprising increase.

The first BJS document cited above states that, as of 2006, 20% of inmates had a drug-related offense as their most serious crime. Thus, the illegality of drugs can easily be faulted with 1 out of 5 of our current convicts. That still leaves us far above most other nations in per capita prison population. We must also consider, however, the secondary effects of the drug trade. On this point I have no hard facts to offer, only anecdotes and logic. The absurd profits afforded drug dealers and subsequent high prices for users must fuel significant amounts of violent and property crime. Every day we read about turf wars between dealers and gangs that leave criminals and innocents alike dead and about addicts who stole when they had no other way to pay for their next fix. The lessons of Prohibition and the mafia are staring us in the face.

So is this what makes the United States different from other nations? Perhaps. There are nations such as the Netherlands where possession of marijuana is not a crime (see #4 above). Actually finding sentencing guidelines for the United States and other nations has proven surprisingly difficult. It seems to be a common belief that prison sentences for drug possession are significantly longer in the United States than elsewhere, but I lack data to support or repudiate that belief.

Even if we accept that the illegality of drugs is the most significant cause in the explosive growth in United States prison populations, we must consider whether or not the benefits outweigh the costs. These costs are easy to name but in some cases difficult to quantify. Most obviously, the government spends an enormous amount of money guarding prisoners and providing for their needs. There are other economic and social costs as well: the absence of inmates in the labor market, the children who may only visit their fathers with a set of bars between them, the fear of drug lords that control many neighborhoods, the victims of violent crime created by the drug market.

Obviously, the desired effect of these laws is to deter drug use. Whether or not the law actually serves as a deterrent is another difficult question, but let us presume that it does. So what are the benefits of deterring drug use? I see the following as potentially significant arguments:

1. Many currently illegal drugs are potentially fatal to users, and even those that are not toxic in normal doses may cause users to engage in risky behavior when their judgment is clouded. We have a responsibility to prevent people from killing themselves.
2. Fatalities aside, drug abuse frequently causes health problems. The strain on our health care system of treating these preventable illnesses hurts society.
3. Users who are under the influence may lack the judgment that would normally prevent them from engaging in behavior that is violent or recklessly endangers others. We must protect ourselves from this behavior.

I do not put much stock in the first of these arguments. As long as people are able to make informed decisions, they should have the right to engage in behavior that puts themselves but no one else at risk. If we truly think otherwise, we need to outlaw bacon cheeseburgers and fried chicken, and that would make me a criminal. I could see the government stepping in only if it were truly necessary to the continued survival of the species, and I have seen no evidence that this is the case.

The second argument is a bit more compelling. I would argue that health care for drug-related problems should be covered by insurance providers and government subsidies only when the patient is willing to abstain in the future. If he or she is found to not be in compliance, all funding for treatment should be cut off and the patient blacklisted from receiving such assistance in the future. One unfortunate result of this is that only the rich would be able to “get away” with continued destructive use, but this is already the case. If someone proposed the same type of system regarding diabetes, high cholesterol, and other ailments caused by high-fat diets like my own, I could not argue against it.

The third argument is the tricky one. We already see significant problems of this type caused by alcohol consumption, between drunk driving and alcohol-fueled rage. In spite of these horrific events, the vast majority of people who consume alcohol do so responsibly. I would certainly not consider the current policy toward these events to be sufficient, but I have no better solution to propose. We currently try to avoid vehicle accidents caused by intoxicated persons by making it illegal to drive while intoxicated. This is quite reasonable, but the probability of being caught given current enforcement technology is low enough to (apparently) not be a significant deterrent. Intentional violence while intoxicated is more difficult to control; it makes little sense to outlaw becoming angry while under the influence. The best we can do is to punish those who do commit violence and hope that people who have a propensity for it will have the wisdom to avoid putting themselves in dangerous situations.

Of course people do commit violence and cause accidents currently while intoxicated by illegal drugs. The problem with legalizing drugs is that, if it does indeed lead to an increase in use, these tragic events will become more prevalent. Perhaps we could instead have strict controls on how and where currently illegal drugs may be used. I would have little concern about a licensed nightclub that serves cocaine to its patrons but does not allow them to leave until the effect has dissipated. But what if the drug in question was LSD, and patrons experienced flashback-induced psychosis long after the chemical had been flushed from their body? We must also consider the actual level of risk associated with each drug. The running joke about marijuana is that the greatest danger posed by its users is of eating you out of house and home, but I have no way of measuring the validity of this argument.

Obviously, this remains a very difficult question. Nevertheless, it seems likely to me that the harm caused by criminalization is higher than the danger to society of the substances themselves. I would not propose a wholesale reversal of current United States policies based on this unproven hypothesis, but it certainly deserves a careful, unbiased study. If such a study supported my hypothesis, we could begin by slowly changing sentences for simple possession from incarceration to fines and mandatory treatment and eventually decriminalizing possession entirely while monitoring the size of prison populations, number of violent crimes committed, and other metrics over the quality of life for society as a whole. Of course, the United States may have little leeway to effect significant changes while honoring our obligations under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, but I suspect many other nations would be willing to consider changes to it if we led the way.