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Tuesday, January 20, 2015

So, the Pope Doesn’t Like Gay Marriage?

Recently at a mass in Manila Pope Francis made this startling declaration:
The family is threatened by growing efforts on the part of some to redefine the very institution of marriage. These realities are increasingly under attack from powerful forces which threaten to disfigure God’s plan for creation. . . .  Every threat to the family is a threat to society itself.
This is a major retreat from his supportive comment in 2013 when he casually stated in an airplane interview that “If a person is gay and seeks God and has good will, who am I to judge?"  Certainly that question was a startling change from the views of prior pontiffs, and it gave the gay community hope that the Catholic Church was going to drop the virulent homophobia that had so smeared it in the past.  For my blog post on point then see

I guess this shouldn’t be such a surprise, but it is a disappointment.  From the fresh views Francis’s papacy has taken on so many fronts I was hoping he’d be open to reconsidering the Church’s stance on gay matters.  What’s to be gained from reiterating this tired homophobia?  Surely there is no rational reason for it.  Or is there?  Let’s explore that.

My maternal grandparents and their children
The Pope can’t truly be hoping to force gays into heterosexual marriage, can he?  Such a tactic hasn’t worked well in the past, producing marriages that are deeply troubled with one partner sexually uninterested in the other.  But the Church has always followed doctrines—such as forbidding birth control—which resulted in huge numbers of Catholics in the world, even if that meant incredible suffering for the giant families involved.  My mother, a devout Catholic from a devout Catholic family, was one of nine children: eight girls, one boy (I have 39 first cousins from this group).  My mother and her siblings grew up in a crowded home (when my father first came over to the house to pick my mother up for a date there were so many girls running around he thought there was a party going on).  Those children, when they married, produced huge numbers of offspring.  My Aunt Antonette Kunkel herself had nine children, born into a very crowded household (children slept in hallways for years before they could graduate to a vacated bedroom) which could ill afford that many children, loved though they were.  Starting at my grandparents' level, this family alone produced hundreds and hundreds of Catholics for the Church within two generations.  Some of them, like me, were gay, but they married anyway and produced children, so maybe the Pope thinks he’s on to something.  But it is a cruel thing to do: forcing people into family arrangements that they would not choose but for the heavy hand of the Church dictating that they must.  [Almost immediately after I wrote the above and posted it, the Pope was on the evening news which described his meeting a woman who was pregnant with her eighth child, and him being annoyed that she was not observing responsible parenting since she was breeding like “rabbits.”  He counseled using “church-approved contraception.”  Ah, ha!  That would be the so-called “rhythm method” by which couples only copulate at the moments in a woman’s month cycle when she is unlikely to conceive, a sort of religiously approved guessing game.  It’s remarkably ineffective, and gives rise to an old joke: What do you call people who use the rhythm method?  “Parents.”  If the Pope thinks this is good advice for limiting the number of children Catholics have, it shows he’s never made love to a woman and has no idea what’s involved.  I’m perfectly sure most Catholic parents who follow all the Church’s rules have tried the rhythm method with very disappointing results, as all the studies show.]


Does the Pope think keeping gays from marriage might send them into the priesthood or the nunnery?  Maybe—certainly that was one avenue of escape for gay Catholics in the past when society provided them few safe havens.  I had a law student in the early 90s who had just dropped out of a local seminary.  He was gay and when I asked him to estimate how many of his fellow seminarians were also gay he thought it over and replied, “Over fifty percent, maybe a lot over fifty percent.”  As far as nuns go there also had to be a good many of them who were lesbians.  I grew up in the Catholic religion [see “Catholicism and Me” parts One and Two: and ] and had many nuns as teachers.  Like all teachers they varied in quality, but the nun who taught me fourth grade was a wonderful human being—the first person to ever tell me I might go far in the world, a statement which very much surprised me.  But while some nuns obviously chose a religious life because of a deep devotion to the church, I always suspected that many of them were hiding from problems when they sought out the nunnery (sexual fears, bad home life, rape, abuse, fear of repeating their mothers’ lives filled with huge numbers of children).  Now that women have so many resources for solving such problems (birth control, workplace possibilities, etc.), nuns are ceasing to exist.  In the United States nuns have an average age of 71!  That’s the average!  With almost no noviciates coming along the path, in this country at least the nunneries will all be closed with a decade or so.


What would the Pope have gays do about their homosexuality?  There is a Catholic organization called “Courage International” which tells gay Catholics they can still be upstanding members of the Church as long as they never act on their sexual desires (that’s the courage part).  But that isn’t a choice many people would make, or, having made it, live up to.  Does he think gays can be changed into straights?  No one who has objectively looked into that possibility would believe it possible—it simply doesn’t work [see “How To Change Gay People Into Straight People”:  and "A Homophobic Organization Throws in the Towel: Goodbye to Exodus International” at]. Would Pope Francis advise gay couples to “live in sin”?  Would he tell them that all the legal advantages of being married are morally forbidden to them because Catholic doctrine on point, created in ignorance and maintained on that same scale, demands it? 


The Inquisition at Work

The Pope and the Church leaders are simply out of step with the times, with common sense, and with common decency.  In the United States 57% of Catholics are in favor of gay marriage, but the Church persists in hounding its gay people.  This past November the Church’s Congregation for the Doctrine of the Faith (the same organization that so thrillingly brought us the Inquisition in the 12th century) held an inter-faith colloquium on “Complementarity of Man and Woman” and invited Southern Baptist Convention’s president Russell Moore, evangelical pastor Rick Warren, and Mormon president Henry Eyring to speak at the Vatican where this event was held.  A major gathering of homophobes, that.  They somehow managed to reach agreement that marriage should be restricted to one man and one woman (nowadays even the Mormons are on board, at least officially, for this conclusion).

  The Pope and the Church leaders are simply out of step with the times, with common sense, and with common decency.  In the United States 57% of Catholics are in favor of gay marriage, but the Church persists in hounding its gay people.  This past November the Church’s Congregation for the Doctrine of the Faith (the same organization that so thrillingly brought us the Inquisition in the 12th century) held an inter-faith colloquium on ComplementarityofManandWoman and invited Southern Baptist Convention’s president Russell Moore, evangelical pastor Rick Warren, and Mormon president Henry Eyring to speak at the Vatican where this event was held.  A major gathering of homophobes, that.  They somehow managed to reach agreement that marriage should be restricted to one man and one woman (nowadays even the Mormons are on board, at least officially, for this conclusion).

When I heard that Pope Francis had condemned gay marriage as a matter of Catholic doctrine my hopes for an enlightened reign from him died.  I had then the thought I have so frequently these days when I hear unthinking homophobia coming from the mouths of people who should certainly know better (one of whom is the moral leader of much of the world): how can good people be so cruel?

Many and sharp the num'rous ills
Inwoven with our frame!
More pointed still we make ourselves,
Regret, remorse, and shame!
And man, whose heav'n-erected face
The smiles of love adorn, -
Man's inhumanity to man
Makes countless thousands mourn!

                            Robert Burns, 1784


A Guide to the Best of My Blog,” April 29, 2013:

Thursday, January 8, 2015

Rape, Biology, and Tricks of the Mind

The treatment of rape and sexual harassment is a hot topic in the news these days.  Institutional responses vary from (1) the military where it appears to be true that in spite of recent rule changes men still can get away with about anything and a woman who complains jeopardizes her military career without getting relief, to  (2) college campuses where a new focus on using Title IX to help women get more protection than they had in the past is granting some help.  This is not a subject on which I have any expertise, and perhaps the wisest thing to do is shut up, but I want to suggest that the whole topic should be viewed with more focus on biology: both the biology of how the sexes relate to one another and on how our brains work.  Doing that might lead to solutions that are not currently being considered.

I am perfectly sure that if I were a woman I often would be fearful that some man was going to prey upon me in some unwanted sexual way, everything from being snatched off the street and dragged into an alley to having a date put something in my drink that would lead to a sexual encounter over which I had no meaningful control.  I would hate how men demeaned me on the street by making snide comments of a sexual nature as if it were their privilege to judge me, and how little men and society as a whole sees what a nightmare it is to constantly be battling sex in non-sexual situations.  One labor leader I know told me how women in one office were furious that their boss never looked them in the eye, but instead constantly stared at their breasts when talking to them.  How do you combat that?  [One suggestion: if I were one of these women I’d send the boss an anonymous note saying something like, “People think you’re a pretty good employer, but some people make fun of you because you never look women in the eyes, but stare only at their breasts.”  That should stop that.]

In 1975 feminist Susan Brownmiller published the groundbreaking book against our wills,  which was the catalyst for a major change in defining rape.  She said—and society eventually agreed—that rape is a learned behavior, “a conscious process of intimidation by which all men keep all women in a state of fear.”  The way this idea is phrased these days is that “rape is not about sex, it is about violence against women.”  As society adopted this conclusion it became almost impossible to counter it.  Scientists who pointed out that biology makes it clear that rape is both violent and sexual in nature were shunned, often even by their peers.  They had trouble getting research money, making speeches at conferences without being physically and/or verbally attacked, and their careers were jeopardized by stating what the evidence demonstrated.  As to this feminists themselves were divided: some feminists (often biologists themselves) agreed with those saying rape had a sexual component (as a matter of genetics), and others saying it didn’t matter what science claimed: rape was violence against women and had no sexual component, and certainly could not have an evolutionary explanation—it was learned behavior, not carried in the genes.  Today many people, men and women and governments, hold to the Brownmiller line and scorn and even punish any deviation from it.

For some of the major works explaining how rape could be genetically chosen based on sexual motives (the rapist, usually subconsciously, wants to reproduce his genes) see the following list.  The most accessible work, interestingly, is by a law professor from Arizona State who wrote a splendid law review article laying out the whole debate; see Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) [you can download it at].  This was followed almost immediately by a book that examined the same idea in careful detail: A Natural History of Rape: Biological Bases of Sexual Coercion (2000) by biologist Randy Thornhill and anthropologist Craig T. Palmer.  Finally there is a comprehensive discussion in Professor Steven Pinker’s wonderful 2002 book THE BLANK SLATE.

This whole debate is, of course one of nature vs. nurture (innate vs. learned).  In that contentious argument I come out firmly on the side of nature.  The older I get the more certain I am that almost everything we do is largely dictated by our genes, and, though we might wish it otherwise, nurture can shape us only so much as nature allows us to be shaped.  Anyone doubting this (and I know many readers of this post will doubt it) is urged to read Pinker’s book, where he lays out the case for it nicely, chapter by chapter, covering everything from politics, violence, gender, children, the arts, and so much more.  Other readings I’ve done suggest the terrifying possibility that almost all of our decisions are not truly made at the conscious level, but deep within us, only to be then elaborately explained after the fact by our very inventive minds.

I consider myself a feminist, and, as explained in prior posts, have been well trained by the women’s movement [see “Women in My Law School Classroom,” January 8, 2011,].  I believe that women must be treated equally by all aspects of civilization, and that not doing so is morally wrong, legally wrong, and stupid.  When it comes to rape and sexual harassment I think that both are a form of violence against women that society should do more than it currently does to prevent. 
But if Brownmiller is wrong, rape is about both sex and violence, and thus solutions should address the sexual component or they will fail at a basic level.  Right now sexual offenders against women who are serving prison terms can shorten their sentences by attending classes designed to change their perceptions of women and lessen their violent attitudes towards them.  By dutifully paying attention and professing sincerity and remorse, they get out earlier and—their sex drives intact—if unable to get sexual satisfaction in any other way, resort to rape or its evil sexual cousins to get it.  Only programs that address these sex drives stand much of a chance of success, but the Brownmiller viewpoint forbids even considering those.

How could rape be genetically selected?  The answer is that almost all species (mammal, bird, insect) produce rapists: males who will use rape when they cannot get a female through courtship.  It would be amazing if humans were any different.  Males, as a genetic matter, can spread their seed easily, and the more encounters the better.  Even males with a committed female have a genetic advantage in having sex with other females, voluntary or not.  Thus human males can, given the resources and time, have thousands of offspring in one lifetime.  The female human, however, must bear the children and care for them to have reproductive success, and the best estimate is that the maximum number of children (even with multiple births) for a woman is thirty.  So, for the best success at passing on genes, the woman must be choosy, but the male need not be.  Forced sex is rarely used by men, but it will sometimes be chosen as a last resort by those who cannot get sex in any other way.  Build those genes into men, and the urge to rape or use force or trickery to get sex is something some men will use when they can. 

If rape were only a violent urge with no sexual component, it would be a very strange one.  Consider that in the vast number of rapes the victim, while horribly traumatized, is not physically harmed at all, an unusual characteristic for a violent act.  Further if the couple is married, a husband with a strong sex drive may rape a wife who is not interested in sex even if he deeply loves her and she knows it, also not a characteristic of most violent acts.  Finally, note that if rape has a genetic component it would vary in strength from individual to individual, so that some men would be far more likely to rape than others.  If this is so, anti-abortion statutes forbidding a raped woman the right to terminate the pregnancy force her to produce offspring who will be genetically prone to rape, thus keeping that particular genetic line going, not a wise policy decision for her nor society itself.
There is a major difference between the brutal snatching of a woman on the street and raping her and the seduction by a man that leads a woman to allow him to bed her.  In between these extremes we move from clear crime into a grey area and then into a consensual sexual encounter.  Let’s explore that grey area.

First: if the woman has not made a choice in having the sex—say something has been slipped into her beverage and she is then taken while unconscious or unable to protect herself—that is rape and a crime.  But what about taking advantage of the fact that a woman has been drinking and flirting with a man, and eventually she ends up having sex that she is later shocked to realize she let happen?  That too is a matter of degree.  If she was so drunk that she went past the point of rational decision before the sex happened, that seems to me also to be rape. 

But women too have strong sexual urges, particularly when they are the most sexually active (from their teens up until age thirty).  What about the young woman who goes to, say, a college fraternity party and ends up having quite a bit to drink and then a sexual encounter she later regrets.  Is that rape?  Sexual harassment?  Should the man who so willingly took advantage of her be expelled, jailed?

The attitude at colleges used to be “live and let live—kids will have fun,” and they let it all slide.  This resulted in thinly-disguised rapes occurring with some frequency, and when the feminist movement succeeded one of the laws that was passed was Title IX, added to the federal Civil Rights Act in 1972, after which things improved dramatically.  Under the statute and subsequent regulations colleges must investigate allegations of rape and sexual harassment promptly and resolve the matter within 60 days, using a “preponderance of evidence” standard (not “beyond a reasonable doubt,” a criminal law requirement).  In the last year many colleges have been sued for not following these mandates, and across the country Title IX enforcement is improving.

But there are problems with Title IX.  Sixty days is a very short period in which to reach justice, so justice often goes out the window.  The current state of affairs in effect presumes the man is guilty, and in a battle of “he said, she said” the woman need only convince the college administrators that there is 51% probability that the man is guilty. 

In commercial law, which I teach, if a product is sold the buyer can return it if it is defective or breaches a warranty the seller gave, but the buyer cannot get out of the contract simply because he/she has a change of mind about the wisdom of making the purchase (“buyer’s remorse”).  In the aftermath of a sexual act one or more of the parties might regret what they did, with the woman sometimes experiencing a form of buyer’s remorse, or the man feeling guilty about going too far in forcing sex on a not-so-willing woman.  In either case they are likely to lie about what occurred: first to themselves and then to everyone else.

Whenever we hear a friend tell a story about what happened to them last night or last week we know to take it with a grain of salt, or—depending on the friend—a sizeable mound of salt.  Things have a way of changing in our minds between the event and retelling.  This is not to say that our friend is lying, but only that he/she has likely misremembered parts of the story and embellished some of it with an unconscious urge of “I wish I’d said/done that.”  Such a rewriting of recent personal history is well-documented and is what psychologists call conflabulation.  We all do it, all the time.  Wikipedia explains the term as “a memory disturbance, defined as the production of fabricated, distorted or misinterpreted memories about oneself or the world, without the conscious intention to deceive.”  When it occurs the person could then pass a lie detector test as to what he/she now believes happened.

Why does the mind do this?  The answer lies in the interaction between the left and right sides of our brain, something on which I’ve written many posts [see “The Left Brain/Right Brain Life, January 17, 2011,, “Life’s Little But Important Rules, April 23, 2011,, and “Good Sex, Bad Sex, Advice on Making Love, November 9, 2011,].

The right side of our brain is the part that controls physical activity (like making love, eating, playing sports, singing, etc.).  The left side is concerned with intellectual activities like reading, numbers, and speaking our thoughts.  When we do a right brain activity (say, making love) and the next day we have to explain why we did it, the left brain actually doesn’t know the answer because it was a right brain choice.  But we rarely say the words “I don’t know” out loud or even to ourselves.  Instead we instantly create a left brain explanation that satisfies ourself. This is conflabulation: the proces of rewriting our history in a way that pleases us.  Often we are then amazed when friends (or videos) prove to us that a definite memory is flat wrong.  Hmm.  Damn!

The morning after the fraternity party conflabulation can work on either person who has had sex.  She might say to herself, “I didn’t do that, I wouldn’t do that, therefore he made me do that.”  He might say, “I didn’t force myself on her, I wouldn’t do that, therefore she had sex voluntarily.”

How are we (or the college administrators or the courts) to know who is right and who is either lying or fooling themselves?

Dez Wells
We need to protect women from forced sex, but we need to protect men from baseless allegations too. Consider the case of Dez Wells, formerly a star basketball player at Xavier University in Cincinnati, Ohio.  On July 7, 2012, at a student party he had sex with a woman who participated with others in a game of “Truth or Dare,” did a lap dance on Wells’ lap, removed her shirt and pants, they both kissed and then, when they went into the other room he alleges he asked her for the condom that he then used for the sex that they had, after which she went back to their friends to pick up her phone, said good night and left.  The next day she reported Wells to the college for sexual assault, he was promptly found guilty by the college board investigating the matter, and expelled from college.  An Ohio grand jury was empanelled, but refused to indict Wells for criminal behavior, with the prosecutor declaring that all the evidence demonstrated that Wells had done nothing wrong.  Wells then sued the university, which has just recently settled the lawsuit in his favor for an undisclosed amount.  Wells is now one of the stars of the University of Maryland basketball team, but his reputation will forever include his expulsion from Xavier University for sexual assault of a female student.  Similarly, a gay friend of mine, who is very handsome, worked in the family bakery when he was 13 and got into trouble when he refused the advances of one of the women who also worked there.  She then told her family members that he had tried to molest her, and which point they cornered my friend and beat him up.  No one, not even his father (who then beat him up even more), believed his story that he was innocent.  The irony was that he was having sex, but it was gay sex with another teenager, and both were in the closet.  When he did eventually come out to his father that led to another ugly scene.

The opposite of these stories is one in which the woman is not believed and the rapist goes unpunished.  In the past this has most often been the result of rape allegations, and this was true throughout recorded history.  Indeed in some societies, notably Islam, the woman herself is sometimes punished for being the cause of the rape (since, for example, she refused to wear a veil, thus provoking the attack)!

Rape and sexual assault must be vigorously punished.  But colleges are not the forums in which this matter should be tried.  They aren’t equipped to do it, and are not likely to reach a result that is fair to either of the parties involved.  Title IX should be amended to require all sexual matters that arguably rise to the level of a crime to be promptly reported to the criminal justice system.  Flawed as that system sometimes is, it’s the best system we have for trying criminal accusations, and we have either to use what we have or invent a better system.  Handing the issue over to a body of adjudicators who are more interested in the process (lest they be sued) than in justice is not the answer.

Of course moving the rape into a criminal trial (with a higher burden of proof required for conviction) means that many rapists will be acquitted (or not tried at all), but that is always a risk in a system that demands solid proof before accessing guilt.  However, allegations of rape, even if not pursued through a judicial system, have their own societal penalties, particularly in this information age—just ask Dez Wells.  We all have a vital interest in making sure that women are as protected from sexual assaults as we can make them.  If we cannot guarantee perfection in this, well that is true of all things we attempt, isn’t it?
Take from this post two ideas that any rape analysis should include: (1) rape is a crime of both sex and violence, so solutions must deal with each of these propensities, and (2) neither party to the incident in question can necessarily be trusted to give an accurate account of what he/she did during it.

Related posts:
"Is '50 Shades of Grey' Demeaning to Women?" February 16, 2015,
"We Are All Brian Williams: Confabulation Muddles All Our Stories," April 20, 2015,
“A Guide to the Best of My Blog,” April 29, 2013,