The Infamous Date Rape

That's the title of an old Tribe Called Quest song, but it could also apply to the case of the five Hoftstra University students who were accused of gang-raping a female student in a campus bathroom earlier this month. The men spent two days in jail and were identified in numerous media accounts, but were freed when the alleged victim recanted her story. The case is similar to the Duke lacrosse team scandal of a few years back, but the Hofstra situation included an oddly of-the-times twist - the woman's admission that she had consented to the group grope came after she saw the cell-phone video of the encounter recorded by one of the alleged assailants. While it may be disrespectful, exploitative and just plain gross, filming one's sexual adventures evidently makes some legal sense.


That last point is cribbed from a column by Slate legal writer Emily Bazelon in the female-focused blog Double X. It's just a small note in a piece that goes on to discuss whether the accuser's name, like those of the accused, should be released to the public. Bazelon agonizes over this question and ultimately decides that the false accuser should remain anonymous, although in a later blog post she also acknowledges that perhaps the same courtesy should be extended to those accused of a crime. In doing so, she also acknowledges that the question itself brings into conflict her views on gender solidarity, the imperatives of journalism and the law.


All this, and I'm still dancing around the essential point of the piece and the (non?) lessons of the Hofstra case. Bazelon is wading into the contentious territory of "grey rape," a phrase coined to describe sexual encounters wherein consent is difficult to determine and even the "victim" isn't quite sure whether they've been violated or just feel a particularly stomach-churning remorse about a choice or series of choices. Not surprisingly, the "grey rape" term has been derided in some feminist circles as blame-the-victim terminology and by some men for further muddying the already opaque waters of sexual transactions, particularly those involving alcohol.


The extreme viewpoints are well-represented in the comments section underneath the article, as are more moderate views. But what cuts to the bone for me is an essential question: are women fully equal to men and thus responsible for their own decisions, or are they fundamentally vulnerable and thus dependent on the law to protect them from those decisions.


Let me be clear - on the issue of any sex that results from the application of force or drink-spiking or any other physically assaultive action, I see no grey area. But when it comes to other factors, such as straight-up alcohol consumption, it's a lot murkier. The notion, expressed by some of the commenters, that women are essentially powerless against "manipulative" men who "get them" drunk in order to sleep with them seems to strip women of any kind of power. Coming from women who identify as feminist, I find this to be a bizarre proposition. Of course, sex with an unconscious person is unconscionable, and I'm quite comfortable with the idea that any man who takes advantage of a woman so drunk that she's in blackout, or even unintelligible mode, has committed rape. But what if - as I suspect is the case in a lot of college-campus cases - the man is also drunk out of his mind? Should the law require that he take full responsibility for his actions and the woman none? Again, that seems to violate fundamental feminist principles, at least as I understand them.


I don't for a second believe there's an epidemic of false rape allegations, but cases like these do point to some uncomfortable problems with the way we treat sex and gender equality under the law. Rape cases so often come down to the competing accounts of the accuser and the accused, with only their respective words to guide a judge or jury. It's a legal arena that has always screamed out for more clarity, but I'm not sure that tipping the scales in a way that presumes men to be conscious predators and women to be helpless prey brings any more justice to the justice system or any more gender equality to society.


We want so badly for these things to be black and whites, but the grey remains. Maybe the solution is to videotape everything.


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