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“Prescriptions are merely public confessions of prescriptionists … what is right for one individual may be wrong for the next; and what is sin and abomination to one may be a worthwhile part of the next individual’s life. The range of individual variation, in any particular case, is usually much greater than generally understood. Some of the structural characters in my insects vary as much as twelve hundred percent. This means that populations from a single locality may contain individuals with wings 15 units in length, and other individuals with wings 175 units in length. In some of the morphologic and physiologic characters which are basic to the human behavior which I am studying, the variation is a good twelve thousand percent. And yet social forms and moral codes are prescribed as though all individuals were identical; and we pass judgments, make awards, and heap penalties without regard to the diverse difficulties involved when such different people face uniform demands.”
—Entomologist and sex researcher Alfred Kinsey
A few months ago I was out at a fancy ice cream place with my eight-year-old daughter. She got chocolate chip, and on a lark I asked for a taste of tarragon and pink peppercorn. It was delicious, and I wound up buying a cup.
I offered her a taste. She declined. I thought she’d really like it, and I thought she’d be chuffed to have tried such a weird flavor, so I offered again. She declined again. “Just one taste,” I said.
“No,” she said. “My body, my choice.”
I’ve used that phrase with her and her sister since they were toddlers, trying to drum it into them. Don’t want to hug your grandma? Don’t want your sister tickling you? Don’t want to wear the mask from your Halloween costume when you trick-or-treat? Your body, your choice.
But this was the first time she’d used it on me. She was right. And I apologized.
Her body, her choice. Period.
The Department of Education recently issued new guidelines on campus policies on sexual assault, including a directive that judicial bodies investigating sexual assault allegations employ the “preponderance of the evidence” standard in their deliberations.
“Preponderance of the evidence” is the standard commonly used in resolving civil cases — lawsuits — in the United States. It basically means that the question at hand will be resolved by a determination of which party’s version of events is more likely to be true. (“Beyond a reasonable doubt” is the standard of guilt used in criminal cases in the US, and there are other standards used in other circumstances, too.)
I don’t yet have an opinion on the DOE’s directive, and I think it’s an important question, so I’ve been reading up on it. And I just noticed something really weird.
As I noted above, “preponderance of the evidence” basically means that the judicial body will determine which side of the case, based on the evidence, is more likely to be in the right. If they come down on the side of the complainant, even hesitantly, the defendant is found guilty. It makes no difference, in other words, whether they’re completely convinced or have major doubts — whichever side they think is more likely to be in the right is the side that wins.
A common way of explaining this is to say that preponderance of the evidence means that if even 51% of the evidence presented supports one party, that party gets the decision. It’s an arbitrary number, of course — there’s nothing magical about 51% as opposed to 55% or 50.623% — but it gets the concept across. Whoever has the stronger evidence wins. Period.
So you see the 51% thing a lot. It’s all over the place — the number 51 appears in about a quarter of all web hits for the phrase “preponderance of the evidence.” But occasionally you see other numbers, like 50.1%, or even 50.000001%. And here’s where it gets interesting.
The number 50.1 appears only rarely in Google hits on “preponderance of the evidence” — a few times per thousand. But in pages in which the word “rape” or one of its variants appear as well, 50.1 shows up almost three times as often. You see a similar bump for 50.01, 50.001, etc.
Those numbers aren’t that big. It doesn’t seem to be a complete glitch — the numbers go in the opposite direction when you add “civil law” to the search instead of “rape,” for instance — but the magnitude isn’t huge.
Check out what happens when you substitute “campus sexual assault” for rape, though. The number 50.01 shows up three times as often as you’d expect, and 50.0001 shows up nearly seven times as often. Plug in “Title IX,” the campus sex-discrimination law on which the ruling was based, and 50.0001 shows up more than fifteen times as often as it should.
What does all this mean?
Well, one thing it doesn’t mean is that a campus assault case in which 50.0001% of the evidence supports the complainant is going to result in a conviction. The very concept of “50.0001% of the evidence” is meaningless — the idea that you could quantify the evidence in a sexual assault case to a precision of two parts in a million is absurd.
And that, of course, is why “50.0001%” is a figure of speech that you hardly ever see in discussions of this legal standard. It’s not coherent. It’s not meaningful. It’s not illuminating of the issues at stake.
And that is precisely why it keeps coming up in discussions of Title IX and campus sexual assault. Because “preponderance of the evidence means the side with 50.0001% of the evidence wins” is a lot scarier than “preponderance of the evidence means that the relevant body looks at all the evidence and rules for the party it thinks has the stronger case.”
Julian Assange, founder of Wikileaks, is back in court for a second day today, appealing an order that he be extradited to Sweden to face questioning on rape charges. As I noted yesterday, his defense team has shifted tactics in this latest round of argument, and they now claim that the charges against Assange, even if proven, don’t amount to rape. However “disturbing” or “disrespectful” his actions may have been, they say, however much he “push[ed] at the boundaries” of the complainants’ wishes, the two women ultimately consented to the acts in question.
Today Clare Montgomery, a representative of the Swedish prosecutors, is rebutting those arguments, and she’s pushing back hard.
The fact that the two women eventually acquiesced to advances they had originally rejected, Montgomery argues, is evidence not of consent but of coercion. In their statements to police, she says, the complainants describe “circumstances in which … they were coerced by physical force or were trapped.” In two cases — one in which Assange is alleged to have ripped a condom, and another in which he is accused of penetrating a complainant without a condom while she slept — “the complaint is unprotected sexual intercourse where consent had only been given to protected intercourse.” In the latter of these instances, she notes, “nobody suggests she was positively consenting.”
What is at stake here is the fundamental question of what constitutes consent in a sexual encounter. Yesterday Assange’s attorneys suggested that an encounter that begins non-consensually may become consensual if the passive party eventually agrees to the other’s advances, while today Clare Montgomery is arguing that such grudging consent is no consent at all.
The two complainants “let him continue,” she said this morning, but that did not make his actions legal. In fact, that construction is itself evidence of coercion, and thus of rape. “This is non-consensual,” she argued. “It is coerced, and the words used — ‘I let him’ — means non-consent.”
The hearing has just resumed for the afternoon session. More later if events warrant.
Update | More from Clare Montgomery on the incident in which Assange is alleged to have penetrated a complainant while she slept:
“The evidence is absolutely clear that this complainant may be legitimately described as given evidence that she had been penetrated whilst asleep. Furthermore, being penetrated in a way which [it] is absolutely clear … she had not consented to, namely unprotected. It is doubly clear there is no consent. She may later have acquiesced. That didn’t make the initial penetration anything other than an act of rape.”
Montgomery went on to say that the complainant had, by her own account, been “shocked and paralyzed” when she realized what Assange was doing, in part because she had never had unprotected sex before in her life.
Second Update | Montgomery has accused Assange attorney Ben Emmerson of “winding the law of consent back to the 19th century” with yesterday’s arguments.
Wednesday Update | A representative of the Swedish prosecution team is forcefully rebutting the Assange defense’s definition of consent in today’s hearing. Click here for ongoing coverage.
• • •
Wikileaks founder Julian Assange is in a London court today, contesting an order that he be extradited to Sweden to face allegations that he raped two women there last year.
Assange’s attorneys are contending that the extradition order is invalid because the actions alleged are not criminal under English law. In doing so, they appear to be conceding the sincerity of at least some of those allegations. “Nothing I say,” Assange lawyer Ben Emmerson told the court this morning, “should be taken as denigrating the complainants” or to “trivialize their experience.” His arguments should not be construed as disputing that they honestly consider Assange’s behavior “disrespectful” or “disturbing,” he said, or that Assange “push[ed] at the boundaries of what they felt comfortable with.”
Emmerson went on to provide accounts of the two encounters in question which granted — for the purposes of today’s hearing — the validity of Assange’s accusers’ central claims. He described Assange as penetrating one woman while she slept without a condom, in defiance of her previously expressed wishes, before arguing that because she subsequently “consented to … continuation” of the act of intercourse, the incident as a whole must be taken as consensual.
In the other incident, in which Assange is alleged to have held a woman down against her will during a sexual encounter, Emmerson provided this summary of the allegations: “[The complainant] was lying on her back and Assange was on top of her … [she] felt that Assange wanted to insert his penis into her vagina directly, which she did not want since he was not wearing a condom … she therefore tried to turn her hips and squeeze her legs together in order to avoid a penetration … [she] tried several times to reach for a condom, which Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without using a condom. [She] says that she felt about to cry since she was held down and could not reach a condom and felt this could end badly.”
As in the case of the first incident, Emmerson argues that subsequent consent renders the entire encounter consensual, and legal.
While Emmerson was not vouching for the accuracy of these accounts but merely offering them as summaries of the charges against his client, his introductory statement, excerpted above, was striking in its tone and approach:
“Nothing I say should be taken as denigrating the complainants, the genuineness of their feelings of regret, to trivialise their experience or to challenge whether they felt Assange’s conduct was disrespectful, discourteous, disturbing or even pushing at the boundaries of what they felt comfortable with.”
At a minimum, such language would seem to preclude two of the defenses that have previously been offered by Assange defenders — that the complainants were merely spurned lovers or government plants concocting fantastical stories for their own purposes.
• • •
Selected previous Assange coverage:
- Guilt, Innocence, and Justice in the Julian Assange Case
- Assange Accuser’s Only Interview Mostly Ignored By US/UK Media
- First Thoughts on Naomi Wolf’s BBC Interview
- Why Naming Names is a Problem Even When the Names Have Been Named
- Naomi Wolf Still Peddling Falsehoods About Assange Assault Case
Note | This post has been edited to further clarify the distinction between Emmerson’s own descriptions of Assange’s behavior and his summaries of the allegations against his client. The core arguments of the piece remain unchanged.
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