Sexual Contact from Victimization to Crime

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Crime victimization surveys attempt to measure sexual victimization that is criminal. Sexual victimization can be a deeply personal feeling. Sex crimes, in contrast, are defined and judged under public criminal law. Measuring sexual victimization isn’t a straight-forward, objective statistical exercise of measuring unreported crimes. Crime victimization surveys both reshape victims’ perceptions of sexual victimization and independently judge sex crimes.

Understanding what sexual victimization surveys report requires detailed understanding of survey officials’ crime codes and judging procedures. Crime victimization surveys establish crime definitions and conventions for coding incidents that respondents recall in response to a variety of probing questions. Survey officials judge crime based on the incident report that field interviewers submit for the victim’s responses. What counts as particular crimes depends on survey officials’ criminal judgments. Those judgments can differ greatly from how the victim would judge her or his victimization, or how an actual judge would judge the case if presiding over a trial for the incident in question.

Survey officials’ judgments of sex crimes have great quantitative importance for rape victimization statistics. In a survey of sexual victimization of college women in 1997, the surveyed subject did not regard as rape 49% on the incidents that survey officials categorized as completed rape.^ The criminal justice system likewise declares far fewer convictions for rape than the number of rape victimizations that crime victimization surveys report. In 1992, state courts made 21,655 rape convictions. A major crime victimization survey reported 607,000 rape/sexual assault victimizations. Reported trends in rape from victimization surveys don’t even parallel trends in rape convictions and rapes known to the police. From 1992 to 2006, rape convictions, rapes known to the police, and rapes in victimization surveys increased 53%, -13%, and -69%, respectively.

Obscure aspects of survey design and administrative procedures greatly affect rape statistics that crime victimization surveys report. Consider the U.S. National Crime Victimization Survey (NCVS). It’s a large, ongoing victimization survey that the U.S. Department of Justice manages. NCVS categorizes “sex-related crimes” into four categories: rape, attempted rape, sexual assault, and unwanted sexual contact. Each of these categories are associated with survey questions asking about acts, attempted acts, and threats to act.^ The NCVS Field Manual defines rape as follows:

For the NCVS, rape is defined as forced sexual intercourse including both psychological coercion, as well as physical force. Forced sexual intercourse means vaginal, anal, or oral penetration by the offender(s). This category also includes incidents where the penetration is from a foreign object, such as a bottle. A rape victim can be either female or male and the rape can be heterosexual or homosexual.^

In NCVS, forced sexual intercourse doesn’t include men being made to penetrate. That’s a quantitatively significant form of rape. According to a U.S. official, national victimization survey, 1.3 million men per year are made to penetrate another sexually.^ Being made to penetrate another sexually is reasonably regarded as real rape. The NCVC survey instrument differentiates sexual assault from rape and attempted rape:

Enter Precode (13) {sexual assault} when the respondent was sexually assaulted in some way other than rape or attempted rape; that is, the sexual assault did not involve forced or coerced sexual intercourse or attempted sexual intercourse (for example, fondling the respondent’s breasts against her will).^

The NCVS Field Manual defines unwanted sexual contact without force thus:

Enter Precode (16), Unwanted sexual contact without force (grabbing, fondling, etc.), if the offender made some type of unwanted sexual contact without the use of force. For example, during the incident, the offender may have embraced, fondled, or touched the respondent against his/her will, but did not grab, push, or restrain the respondent in any way.^

Identifying rapes, attempted rapes, and sexual assaults requires classifying threats, including psychological coercion. Threats can constitute attempted rape or sexual assault. The NCVS requires field workers to interpret victims’ responses using a narrow definition of threats:

Only accept threats that are verbal, face-to-face threats to physically harm the respondent. Do not accept threats that an offender makes over the telephone, in a letter, FAX, or electronic message. Also unacceptable are threats or warnings delivered by another person for the offender, as well as a respondent saying that he/she just felt threatened.^

An NCVS screening question that probes for sex-related crime encompasses “unwanted sex”:

Incidents involving forced or unwanted sexual acts are often difficult to talk about. Other than any incidents already mentioned, have you been forced or coerced to engage in unwanted sexual activity by —

– Someone you didn’t know -
– A casual acquaintance -
OR
– Someone you know well?

Unwanted sexual activity does not necessarily imply a sex crime. For example, a man may have sex with his wife when he doesn’t want to have sex, but she does. NCVS officials identify within unwanted sexual activities those incidents that NCVS declares to be sex crimes. Both field workers and NCVS officials processing field workers’ reports make those judgments. Emphasizing the importance of NCVS officials’ crime judgments, the NCVS Field Manual advises field workers:

Since sex-related crimes are rare compared to other types of crimes, include as many details as the respondent is willing to provide. This is important so that we can classify any sex-related crimes into the correct category– rape, attempted rape, sexual assault, or unwanted sexual contact.

Avoid using phrases like “made sexually explicit comments,” “unwanted sexual contact,” or “unwanted sexual advances.” These phrases do not provide us with enough information to determine what actually happened. We need to know what was actually said, what parts of the body were touched, whether or not force was used, and so on.^

NCVS classifies as violent crimes victimizations that NCVS categorizes as attempted or completed rape, sexual assault, or verbal threats of rape or sexual assault.^ In its annual report Criminal Victimization, the NCVS reports under the heading “violent crime” the category “rape/sexual assault.” The category “rape/sexual assault” thus groups together a wide range of behaviors. Survey officials judge across that wide range of sexual behavior what behavior is unwanted sexual contact, sexual assault, attempted rape, or rape. While sex is common behavior, most persons have no clear understanding of the difference between the crimes of unwanted sexual contact, sexual assault, attempted rape, and rape.

Rape involves deep conceptual difficulties in surveying criminal victimization. Both the relevant case law concerning rape and perceptions of rape victimization vary widely across relatively common behavior. Consider the following statement/threat:

If you don’t have sex with me, I’ll stop going out with you.

That doesn’t count as a threat under the NCVS definition of threats. But persons receiving that threat and acquiescing to sex might well feel victimized. They might feel that they were forced to have unwanted sex via psychological coercion. Such incidents appear to meet the NCVS definition of rape. A leading work on unwanted sex that considers in detail the legal meaning of consent argues that such coercion should not imply the crime of rape.^ However, if the NCVS ignores such incidents, it may ignore deeply felt feelings of sexual victimization.

Recognizing emotional harm to be often the primary harm in sexual victimization implies recognizing broad possibilities for unwanted sex forced via psychological coercion. Suppose Abby’s intimate would feel deeply hurt if Abby had sex with Bill. Abby’s intimate also thinks that Abby having sex with Bill would be emotionally harmful for Abby herself. Suppose Abby said to her intimate:

If you don’t have sex with me, I’ll have sex with Bill.

Abby’s intimate may feel forced to have unwanted sex with Abby. If Abby’s intimate doesn’t have sex with Abby, Abby may feel forced to have unwanted sex with Bill. Do these circumstances imply that either Abby’s intimate will be raped, or Abby will be raped. Could Abbey’s statement/threat cause both Abbey and her intimate to be raped? Drawing force from both self-concern and other-regarding concern, Abby’s statement/threat is highly potent psychological coercion. Emotional harm is difficult to judge objectively. Perceptions of such harm can vary widely across intimately related persons. Statements interpreted as including a threat of emotional harm to multiple parties are likely to be relatively common means of sexual coercion.

Survey design, survey crime codes, and survey officials’ judgments appear to be much more significant than sampling error in rape victimization surveys. Beginning in 2008, NCVS reported standard errors for its annual rape estimates. The standard errors from 2008 to 2010 were about 20% of the estimated figures. NCVS annual rape estimates are based on a small number of incidents (36 to 57 from 2008 to 2010). The standard error accounts for sample size. The standard error doesn’t account for ambiguous categorization. Particular administrative decisions in judging the sexual crime for just ten incidents would cover roughly a quarter of the incidents that determine the NCVS annual national estimate of rape/sexual assault. Redesigns of NCVS have produced sevenfold increases in rape figures. Survey officials’ choices in defining and judging rape are much more important than standard errors in evaluating NCVS rape estimates. Those crucial crime definitions and crime judgments are publicly opaque.

NCVS has obscured in technical expertise fundamental challenges in surveying sexual victimization. The annual NCVS report for 1992, Criminal Victimization 1992, estimated 141,000 rape victimizations in 1992. Criminal Victimization 1993 estimated 607,000 rape/sexual assault victimizations in 1992, based on 1992 data from the redesigned NCVS. Criminal Victimization 1993 didn’t publish simple comparative figures showing the effect of the redesign on total estimated sexual crimes.^ It described the redesign as a matter of technical expertise:

the NCVS underwent a thorough, decade-long redesign to improve the survey’s ability to measure victimization in general and certain difficult-to-measure crimes, such as rape, sexual assault, and domestic violence, in particular.

A consortium of experts in criminology, survey design, and statistics performed extensive study and testing to update the questionnaire as well as survey procedures. Among the changes was the addition of sexual assault to expand the types of sexual crimes counted. Direct questions about these crimes were added to encourage victims to report to interviewers incidents that may have been committed by someone known to them.^

The large increases in rape reported by redesign in 1992 and 2010 aren’t merely a technical matter of better measurement. NCVS rape figures involve significant administrative judgments about sexual crimes. If NCVS doesn’t make those judgments transparently and reasonably, NCVS rape (or rape/sexual assault) figures aren’t objective, credible data.

A key survey administrative decision is how to treat men being made to penetrate sexually another person. Victimization surveys commonly haven’t even asked men if they have been sexually victimized by being made to penetrate. Major U.S. national surveys that have asked about sexual victimization in a gender-neutral way have found the prevalence of sexual victimization of men to be similarly to the prevalence of sexual victimization of women.^ If rape victimization is defined as nonconsensual sex, then being made to penetrate is real rape.

The public judgment of crime in a law-governed society differs from personally perceived victimization. The National Crime Victimization Survey tends to collapses the distinction between publicly defined crime and personally perceived victimization. Victimization of women attracts highly disproportionate public concern. The criminal justice system highly disproportionately incarcerates men. Because of its emotional potency, mis-information about sexual victimization is particularly pernicious in public discourse. Public discussion of sexual victimization, like public discussion of domestic violence, is deeply connected to disproportionate incarceration of men and mass incarceration.

Sex-Crime Reform Across the Criminal Justice System

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Like the general category violent victimization, sexual victimization is highly prevalent and largely not punished through the criminal justice system. If evaluated without gender bias, sexual victimization is roughly equally balanced between women and men. Sexual criminalization, in contrast, is highly skewed toward men. In the U.S., massively increasing sex-crime punishment would greatly raise the already extraordinarily high incarceration prevalence and make even more unequal the already highly disproportionate incarceration of men.

Most victims of sexual victimization are not currently receiving justice through the criminal justice system. According to a prominent national survey, 21% of women in U.S. colleges in 1997 had been raped or suffered an attempted rape prior to the start of the 1996 school year. The report estimated that 4.9% of college women experienced rape or attempted rape in the prior calendar year.^ That survey of sexual victimization didn’t survey college men. Another prominent national survey declared in a pull quote that “nearly 1 in 5 women and 1 in 71 men in the U.S. have been raped at some time in their lives.”^ That figure for men doesn’t include as rape men being made to penetrate another sexually. Less prominently reported estimates indicate that about 6% of women and 5% of men in the U.S. suffer sexual violence each year.^ Those percentages amount to nearly 15 million persons per year. Victimization surveys thus provide enormous scope for expanding punishment for sex crimes.

Demand for much more extensive sex-crime punishment exists in the U.S. within an already extraordinarily punitive and gender-biased criminal justice system. The U.S has the highest prevalence of incarceration among countries around the world. The prevalence of incarceration in the U.S. is more than seven time greater than that in France and Germany. Moreover, the sex composition of prisoners is highly unequal: in the U.S., about ten men are incarcerated per women incarcerated. Currently the U.S. criminal justice system convicts about 32 men for rape or sexual assault for every woman convicted of those crimes.^ At least in part because men receive longer prison sentences than women do, about 80 men are in prison for rape or sexual assault for every woman in prison for those crimes. More extensive sex-crime punishment would raise the prevalence of imprisonment and increase the number of men in prison per women in prison.

Estimating the effects of more extensive sex-crime punishment depends on the deterrence effect of imprisonment. General deliberation about the deterrence effect of imprisonment has for decades been wide-ranging, contentious, and inconclusive. Surveys of sexual victimization typically find that most offenders are family members, friends, and other persons regularly known to the victim. Criminal penalties are likely to be less salient for sexual victimization in intimate or familial contexts than in other contexts perceived to be more publicly regulated. Much of the rape literature attributes the cause of rape to patriarchy, male dominance, or male attempts to affirm male control. The number of men in prison seems to have little relevance to these explanations. Such theories thus suggest that imprisoning more men isn’t likely to reduce sex crimes.

Consider the percent reduction in rape per additional million persons in jail or prison. Currently the U.S. holds in prisons about 1.6 million persons. What would be the effect on sex crimes of having another million persons in prison? No effect is a relatively common view in ongoing public discussion of deterrence. No one reasonably believes that incarcerating another million persons would nearly eliminate sexual victimization. A reasonable supposition is that having another million persons incarcerated would reduce rape by 10%.

Having additional persons incarcerated would make more persons subject to the relatively high prevalence of rape in prisons. Reported rape/sexual assault is roughly 500 times more prevalent in prisons and jails than outside. Sexual victimization of inmates occurs both as sexual activity with prison staff and in forced sexual activity between inmates. Reported inmate sexual victimization (sexual activity) with staff is about a third greater than reported inmate-on-inmate sexual victimization.^ The deterrence effect of incarceration estimated for non-prisoners has little relation to deterrence of inmate-on-inmate sexual victimization. Moreover, punishment for inmate-on-inmate rape typically doesn’t occur through normal criminal justice system procedures. Hence expanding incarceration for sex crimes is likely to have a much lower deterrence effect for sex crimes among persons already incarcerated. A plausible estimate is zero deterrence.

Greatly increasing penal punishment for rape implies massively increasing the prison population and a large but not unprecedented rise in the ratio of males to females in prison. Among persons convicted of rape or sexual assault, 82% of the men and 43% of the women are sentenced to incarceration. Suppose that the criminal justice system convicted of rape yearly as many sex-crime offenders as prominent estimates of rape victimization suggest. That would imply an additional 1.1 million men and 23 thousand women incarcerated per year. Men and women incarcerated for rape/sexual assault spend on average 5.5 and 3.8 years, respectively, in prison. Under the 10% deterrence parameter, the number of persons in prison would rise from 1.6 million to 6.9 million in five years. The ratio of men to women in prison would rise from 13.3 to 24.1. The prison sex ratio doesn’t rise to nearer the current rape conviction ratio of 32 men per woman in part because prison-staff sex crime is much less sex-skewed than rape convictions are. Prominent estimates of rape/sexual assault victimization do not include men made to penetrate another sexually. If such victimization were recognized as real rape, the projected increase in prison population would be much greater and much less biased toward men.

Under reasonable model definitions and parameters, massively increasing penal punishment for rape would reduce sexual victimization of women, but increase sexual victimization of men. Given the proportionate 10% deterrence parameter, the model shows that total rape assault would be 34% lower with a prison population of 6.9 million persons. Rape of women (inmates and non-inmates) would decline 35%. However, rape of men would increase 71% because of the much larger number of men in prison. Even with the projected increase in incarceration to 6.9 million persons, rape victimization would be about a million persons per year. Further increases in incarceration would be needed to deter further rape victimization.

Sexual criminalization should be considered in relation to the overall functioning of the criminal justice system. While sexual victimization is roughly balanced across sexes, most persons convicted for rape or sexual assault are men. Estimates of rape victimization are on the order of two hundred times greater than current felony convictions for rape and sexual assault. Estimates of sexual victimization potentially imply major increases in the scope of the criminal justice system and in the criminalization of men. These fundamental facts are important for reasonable public consideration of how to best reform the way the criminal justice system punishes sexual victimization.

Reckless Sexual Conduct: Proposing Further Criminalization of Men

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A law review article published in 2005 proposed defining a new crime: “reckless sexual conduct.” The article’s authors are Ian Ayres, William K. Townsend Professor at the Yale Law School, and Katharine K. Baker, Professor of Law and Associate Dean, Chicago-Kent College of Law. Professors Ayres and Baker are, in short, eminent professors at leading U.S. law schools. Their article appeared in the prestigious University of Chicago Law Review. Their article explicitly thanked for comments a roster of important law professors and institutions:

Jennifer Brown, John Donohue, Steve Heyman, Christine Hurt, Christine Jolls, Edward Kaplan, Barry Nalebuff, Kate Stith, Richard Storrow, and seminar participants at Dickinson, Harvard, Iowa, University of Missouri-Kansas City, and Yale law schools (as well as the Yale Epidemiology and Public Health Department)

The article was written with the assistance of at least six acknowledged subordinate research workers (two women and four men). The article apparently is a weighty work of legal scholarship. It suggests that the criminalization of men is of little concern in legal scholarship concerning criminal law.

The article’s proposed criminal statute formally obscures that it effectively further criminalizes men. The proposed criminal statute is headed “Reckless Sexual Conduct.” Its first clause:

(1) A person is guilty of reckless sexual conduct when the person intentionally engages in unprotected sexual activity with a person other than his or her spouse and these two people had not on an occasion previous to the occasion of the crime {the new crime defined in the proposed statute} engaged in sexual activity.

Subsequent statutory text defines “sexual activity” as “penile penetration of a vagina or anus accomplished with a male or female” and “unprotected sexual activity” as sex without using a condom.^ The authors explained that this is “purposefully, a very limited definition of sexual activity.” Their purpose is to “try to maximize legitimacy and therefore enforcement.”^ Focusing criminalization on penises maximizes legitimacy in a legal culture that isn’t concerned about the criminalization of men.

The proposed new crime effectively allocates to men criminal responsibility for having first-time sex without a condom. The proposed statute uses sex-neutral terms “person” and “his or her.” However, the proposed statute’s definition of sexual activity is penis-focused. What would be the balance of risks of criminal punishment under the proposed statute if a man and woman engaged in first-time, consensual, non-condom-impeded sex? Pondering complex issues of interpreting the somewhat ambiguous proposed statute really isn’t necessary. Until 2012, the FBI limiting reported rape to rapes of females. Official reports on sexual victimization commonly exclude “made to penetrate” from statistics on rape and sexual assault. Domestic violence law and policies gender profile men for arrest. Imprisonment is imposed highly disproportionately on men. The balance of risks of criminal punishment for a man and woman engaged in first-time, consensual, non-condom-impeded sex under the proposed statute surely would tilt overwhelmingly toward criminalizing men.

The authors designed the proposed law to obscure its substantial discrimination. The authors noted that they rejected “giving women a per se defense against prosecution”:

Our deeper concerns are prudential. We worry that the social meaning of this de jure disparate treatment against men might undermine the effectiveness of the statute. … The appearance of unfairness is important. … one can imagine pathological circumstances (gun-to-the-head scenarios) in which a woman would in fact be prosecutable.^

This attempt to manage the “appearance of unfairness” is formally shrewd and communicatively effective. The article as a whole effectively conveys the understanding that men should be criminally responsible for having consensual, first-time, non-condom-impeded sex with women. At the same time, the formal statute obscures that effect and provides arguable formal deniability.

The proposed new crime of reckless sexual conduct would apply to sexual activity of about three million men in the U.S. per year about the year 2002. Roughly 13 million unmarried men ages 15-44 have sex with a new partner in the U.S. in a given year. In its cost-benefit analysis of the proposed new crime, the article uses 10% to 100% as figures for the share of the share of first-time sexual encounters in which the couple uses a condom.^ Among U.S. men ages 15 to 44 in 2002 who first had sexual intercourse from 1995-2002, 32% had sex without a condom in their first sexual intercourse.^ A reasonable estimate is that 25% of men who have sex with a new partner in a given year have that sex without using a condom. Hence roughly three million men a year would be subject to prosecution under the newly defined crime.

While the proposal to criminalize men for first-time sex without a condom emphasizes improving communication among first-time sexual partners, the proposal obscured communication within the criminal justice system. How would information that a man has engaged in first-time sex without a condom be generated within the criminal justice system? If a rapist did not use a condom in first-time sexual intercourse with a rape victim, the rape victim could report first-time sex without a condom, but surely the legal system should encourage rape victims to report rape. If a couple engaged in first-time sex without a condom, but the penis-penetrated partner did not want the penis-baring partner to suffer punishment, the crime of first-time sex without a condom would go unreported. Without totalitarian relationship-tracking and video surveillance systems, police cannot police first-time sexual encounters, or even identify first-time sexual encounters. Criminalizing men who engage in first-time sex without a condom would create a crime that could not be generally enforced. The criminal justice system could detect that proposed crime only when a man is accused of rape, or when the penis-penetrated partner (or a physician with whom the penis-penetrated partner confides) wants the man to suffer punishment. The proposed crime is not substantially a new rule of law. It is substantially an additional instrument for punishing men.

While the article provided a model statute for criminalizing men who engage in first-time sex without a condom, the article did not discuss the proposed statute’s sidestepping of U.S. criminal procedure and trial by jury. By the Sixth and Fourteenth Amendments of the U.S. Constitution, as interpreted by U.S. courts, persons accused of a crime that carries a prison sentence of six months or more are entitled to trial by jury and other constitutional rights of the accused. Persons accused of rape or sexual assault thus are typically entitled to trial by jury and other constitutional rights. Trial by jury engages ordinary citizens in the administration of criminal justice. Trial by jury fosters public communication about the actual practice of criminal justice administration. For men who engage in first-time sex without a condom, the article proposed the punishment “imprisonment in the state prison for up to three months, or a fine.”^ While state prisons normally hold persons sentenced to imprisonment of a year or longer, the proposed shorter prison sentence shrewdly places adjudication of this new sex crime outside of the constitutional protections of public criminal trials. The proposed crime would be adjudicated more tightly within legal culture and more distantly from communication with ordinary citizens. The proposal apparently doesn’t value general public deliberation about the criminalization of men.

Underscoring its lack of concern about criminalization of men, the article presented outdated rape statistics and engaged in no critical analysis of those statistics. The article, which includes references dated through February 2005, stated:

crime victim survey data from the mid- 1990s suggest that each year an estimated 500,000 women are victims of some form of rape or sexual assault.^

That cited statistic is based on National Crime Victimization Survey (NCVS) data from 1992 and 1993. NCVS rape/sexual assault statistics have major conceptual and statistical weaknesses. By the early 2000s, the NCVS was estimating about half as many rape/sexual assault victimizations per year as in 1992 and 1993. Criminalization of sexual victimization has important implications for incarceration. Concern about mass incarceration should motivate citing the best, most current statistics on rape/sexual assault, not the highest ones. Concern about highly disproportionate imprisonment of men should be relevant for legal scholars’ thinking about further criminalization of men.

The article’s discussion of false rape accusations underscores lack of concern for the highly disproportionate imprisonment of men. Regarding false accusations of rape, the article stated:

Current research suggests that the propensity of women to make false reports of acquaintance rape is extremely low. {footnote omitted} As Bryden and Lengnick summarize, “The conventional wisdom now is that the proportion of false reports is negligible, perhaps as low as 2%, a figure said to be comparable to that for most other major crimes.” ^

This “social science research” plays a key role in the article’s arguments.^ However, the article did not fairly cite its source. Immediately following the above quotation, the source continued with these sentences:

This new orthodoxy may well be correct, but, like the contrary opinions of Hale and Wigmore, it derives more from intuition than from common experience or scientific evidence. Although many have tried, no one has succeeded, either deductively or empirically, in demonstrating that the proportion of false rape reports is either low or high.^

The claim that “false reports account for only about 2 percent of rape complaints” had become by the end of the 1990s regularly asserted and widely accepted among legal academics. Nonetheless, an independent scholar’s research, published in the year 2000 in a low-ranking law review, showed that all examined instances of that assertion could be traced back to a highly normative work that offered an “interpretation of some data, now a quarter-century old, of unknown provenance from a single police department unit.”^ Evidence on reported inmate sexual victimizations indicates that 30% of rape allegations are false. An additional 50% of rape allegations lack sufficient evidence for substantiation.

The proposed crime of first-time sex without a condom encodes lack of concern about false accusations. The proposed criminal statute specifies that a person (man) accused of having sex without a condom has the legal burden of affirmatively showing unequivocal consent to first-time sex without a condom.^ A man facing a false accusation of not gaining consent for not using a condom surely couldn’t meet the burden of demonstrating unequivocal consent. The article’s proposed crime would criminalize about three million men per year in the U.S. about the year 2002. Even a false accusation share as low as 2% implies, under existing behavior and ideal enforcement, about 60,000 men per year imprisoned on false accusations. For comparison, U.S. courts sent 34,320 women to state prisons in 2002 on new commitments for any crime. By this metric, the article’s proposed crime implies a relatively large number of men being imprisoned on false accusations.

The article preemptively attacked any man who would express concern about false rape accusations. The article declared:

The kind of man who does not particularly care about the quality of a woman’s consent may be the same kind of man who will find the risk of this new crime to be most salient. This is because men who hold women in low esteem are likely to overestimate the risk of being falsely accused. This “irrational” fear of false rape accusations is well established in the literature. {footnote omitted} The statute {criminalizing men for first-time sex without a condom} harnesses this misogynist bias^

Being characterized as a man “who does not particularly care about the quality of a woman’ consent,” “who hold{s} women in low esteem,” and who is a misogynist is likely to be emotionally and professionally damaging. The harm is likely to be particularly severe when that characterization carries the authority of leading law professors writing in a scholarly article published in a leading law review. In response to the threat of personal harm, a reasonable man might decide that he has no alternative but to remain silent about the risks of the proposed new crime.

Successful law professors consider carefully the career costs and benefits of scholarly arguments. They generally avoid criticism that might lead to “accusations of ‘non-collegiality’ that are easily dispersed by the gelatinous sob brotherhood of the legal academy.”^ Male law professors should fear the anger of the legal academy’s sob sisterhood even more than that of its sob brotherhood.

Law scholars’ responses to the proposed new crime illustrate results of intellectual, emotional, and professional constraints and interests. The article proposing the new crime of reckless sexual conduct has been cited about 25 times in scholarly law literature. Only one of those citing articles contains any substantial criticism. That unique article provided detailed legal analysis leading to a highly negative evaluation:

The proposal, however, is deeply flawed. As a public health regulation, this proposed statute is highly problematic. It is overinclusive, thereby punishing the morally innocent. Moreover, its conception of consent as an affirmative defense fundamentally misunderstands criminal responsibility. … this proposal is morally objectionable and constitutionally impermissible: it punishes the innocent and improperly allocates the burden of proving consent to the defendant.^

The author of this critique was Kimberly Kessler Ferzan, a law professor at Rutgers School of Law. Her critique was published in the University of California Davis Law Review. In the legal academy’s status hierarchy, her review ranks far below the critiqued article’s explicit associations with Yale, Harvard, and Chicago. In accordance with the legal academy’s norms of deliberative cartelization, Ferzan arranged for pre-publication review of her arguments by the authors of the article she critiqued:

For comments on drafts of this manuscript, I thank Ian Ayres, Katharine Baker, Michael Dorff, Doug Husak, Jay Feinman, Dennis Patterson, and Ray Solomon.

Ferzan’s primary concerns in her published critique are the legality of public health measures and gynocentric rape reform. More generally, the proposal for extraordinary further criminalization of men didn’t prompt in the legal literature any responding review discussing the prison population’s enormous sex disparity and criminalization of men. Those profound legal and human issues appear to be largely undiscussable within legal scholarship. Legal scholarship favors work such as lengthy analysis supporting greater criminalization of men self-deluded about their presumed actual guilt of date rape.^ Legal scholarship lack of concern for imprisoning men points to highly significant failure in public discourse.