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 http://scholarship.law.berkeley.edu/californialawreview/vol87/iss4/5/].  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, http://douglaswhaley.blogspot.com/2011/01/women-in-my-law-school-classroom.html].  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, http://douglaswhaley.blogspot.com/2011/01/left-brainright-brain-life.html, “Life’s Little But Important Rules, April 23, 2011, http://douglaswhaley.blogspot.com/2011/04/lifes-little-but-important-rules.html, and “Good Sex, Bad Sex, Advice on Making Love, November 9, 2011, http://douglaswhaley.blogspot.com/2011/11/good-sex-bad-sex-advice-on-making-love.html].

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, http://douglaswhaley.blogspot.com/2015/02/is-50-shades-of-grey-demeaning-to-women.html
"We Are All Brian Williams: Confabulation Muddles All Our Stories," April 20, 2015, http://douglaswhaley.blogspot.com/2015/04/we-all-are-brian-williams-confabulation.html
“A Guide to the Best of My Blog,” April 29, 2013, http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html


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