Missoula: Rape and the Justice System in a College Town, by Jon Krakauer (Doubleday, 416 pp., $16.95)

Supreme Court Justice John Marshall Harlan II once observed that it is the task of the law to form and project as well as mirror and reflect—that is, to shape behavior while also expressing society’s understanding of proper conduct. Over the last 40 years, American society has introduced dramatic changes in rape law, changes aimed at making criminal prosecutions and convictions easier. The reforms have succeeded in altering society’s understanding of sexually motivated assault, but the revised law has not adequately mirrored and reflected society’s views on the appropriate sanctions. The result has been a failure to increase in any significant way the number of prosecutions and convictions for rape, particularly alleged rape by an acquaintance of the accused. To summarize: reformers have captured the law and reshaped it to conform to their notions of right and wrong but failed to take account of the sentiments of the general public, which has sent the message that the reforms have gone too far.

This is not, however, the message of Jon Krakauer’s Missoula, a highly readable if one-sided account of three sexual assaults in a university town. Krakauer clearly believes in the reform of rape law; his sympathies lie completely with the young female complainants and not at all with the young males who had sex with them. He wants these men expelled from college and imprisoned and is disturbed that only one of the three suffered that fate. What he does not adequately consider is why so few cases, including two of the three he chronicles, close without any criminal sanction. In fact, very few acquaintance rape cases get prosecuted. The explanation, I would suggest, is that the American public does not share Krakauer’s view of the issues. Society does not consider date rape to be as morally reprehensible as classic forcible rape, and the public, which speaks through juries, will not support lengthy prison terms with all of their attendant consequences for young men who, despite otherwise spotless lives, engaged in conduct that, as the law now stands, merits some of the harshest sanctions available.

In the 1960s, the law defined rape as forcible and non-consensual genital copulation with a female. It was not sufficient for rape (though lesser sexual-assault charges might apply) that the woman did not consent. Force or the threat of force was required, and it had to involve serious bodily harm. Proof was required, for example, that the attacker choked or beat the victim, shot or stabbed her, or threatened to use a weapon on her. Resistance by the woman was part of the proof that force was used or threatened; some states notoriously demanded “resistance to the utmost.” In most states, however, there was an inverse relationship between force and resistance: the greater the force used or threatened, the less proof of resistance was needed. Thus, a woman was not expected to resist a rapist who threatened her with a knife or gun, but she might be expected to fight off one who attacked her with his bare hands.

The feminist movement subjected the force and resistance requirement to withering attack. The essence of the crime, they argued, was the violation of the woman’s integrity, her right to be free from any nonconsensual sexual intercourse. Non-consent should be sufficient; force should not have to be demonstrated. Though the law had to be changed state by state, given that crimes in the United States are overwhelmingly a matter of state determination, the pressure to reform was intense. Before long, most states adopted revised and less restrictive rape—often renamed “sexual assault”—statutes.

Other changes accompanied the elimination of the force and resistance requirements. These were designed to encourage women to report attacks, as it was known from crime victim surveys that a majority, and maybe a substantial majority, of rapes were never reported. To spare would-be complainants some of the humiliations of the criminal trial, the way in which non-consent was proved also was modified. Previously, the complainant’s prior sexual activity with the defendant, and more problematically, with other men, could be entered into evidence in order to show that the woman was sexually promiscuous. Her willingness to engage in sexual intercourse with the accused on earlier occasions or with other men served as evidence that she consented on the occasion at issue. The evidence wasn’t conclusive, of course, since an earlier “yes” is perfectly consistent with a subsequent “no.” But the jury could take such evidence into account, and defense lawyers took advantage of this rule to expose the victim’s personal life. Rape-shield laws, enacted by virtually every state, barred such evidence, though the accused may still prove that the woman engaged in sexual relations with him.

Rape-reporting restrictions—the Model Penal Code once recommended limiting rape complaints to a three-month period following the assault—also fell by the wayside. Reporting rules had been based on the assumption that true claims would have been promptly disclosed, while false claims or blackmail were facilitated by permitting delays. In one of the Missoula cases, the victim went to the police some 15 months after the incident. This had no impact on the case in the sexual-assault era. Indeed, if prosecutors feel that jurors might hold reporting delays against the victim, they may now put expert witnesses on the stand to testify that rape-trauma syndrome explains the victim’s behavior.

The thrust of all these changes has been to encourage reporting and prosecutions and make convictions easier and less painful for the complainant. But they don’t seem to work, at least not where the complainant and defendant are acquainted or dating. The ratio of arrests to reports of rape has declined in recent decades, while increasing for other violent crimes. In the 1970s, there was roughly one arrest for every two forcible-rape complaints; by 2013, the ratio had dropped to one in five.

Krakauer thinks that the reason for the foot-dragging is that the legal system hasn’t changed enough. It “stacks the deck,” he says, against sexual-assault victims. But clearly this is not the case with rape victims generally; the criminal-justice system is very harsh with child or stranger-victim rapists. It is mainly nonviolent acquaintance rape cases that are obstructed. The reason is not that the law doesn’t apply to such cases. On the contrary, the reason is that the law does apply—it treats nonviolent cases as morally equivalent to violent rapes and therefore subject to the same harsh sanctions—though it doesn’t comport with the general public’s notions of fairness. In the cases Krakauer presented, the applicable law provided as much as life in prison for the male college student defendants involved, though they did not use or threaten force against the victims. No doubt these young men took advantage of women in vulnerable positions—one had fallen asleep at a party where there was heavy drinking—but long prison terms for this level of misconduct are simply seen as too harsh. Unsurprisingly, prosecutors, police, and jurors—often themselves women—decline to apply such laws.

At the same time that the law of rape was broadened to cover more sex offenses, sexual relations were becoming less risky and college campuses less restrictive. In the 1960s, women were a distinct minority on campuses. They were housed in sex-segregated dorms with strict rules about male entry—rules enforced by dorm nannies stationed in the lobby. Drinking in dorms was prohibited and drug use was minimal. There was no Internet pornography. Abortions were illegal and birth control pills, condemned by Pope Paul VI, were controversial.

Starting in the 1970s, however, the college campus was transformed. Encouraged by the feminist movement, women began flooding into higher education. Separate dorms, and even female-only colleges, went the way of the dodo. The pill was made safe, abortions legal. Students were more affluent and could afford alcohol and drugs. Marijuana and assorted psychedelic substances became fashionable. College and university administrations looked the other way when it came to student comportment.

Predictably, the hookup culture was born and casual sex became the norm. Feminists had long preached that women’s sexual needs deserved fulfillment. Now they could be, with far less risk of the biggest complication: unwanted pregnancies. Young males and females, in their most sexually active years, were gathered together on campuses dedicated to their every need, with little adult supervision and sufficient resources to supply themselves with drink, drugs, and all the pornographic images they desired. Under such circumstances, is it any wonder that sexual abuses occur?

As Krakauer concedes, sexual assault is no more common in Missoula, Montana, than in any other city its size. It isn’t that he thinks Missoula is particularly unsafe, but rather that he sees the entire nation as under threat. “Rape occurs with appalling frequency throughout the United States,” he claims. Well, that depends on the meaning of rape. As we noted earlier, unwanted but nonviolent sexual intercourse may no longer be called “rape” in many states, but it has the potential to be punished just as harshly.

In Montana, the rape statute is fairly straightforward. § 45-5-503 is titled “Sexual intercourse without consent.” Subsection (1) says that “A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent.” It is noteworthy that the prosecution must prove that the accused knew that the intercourse was without consent. This part of the law, known as a mens rea, or mental element, was significant in two of Krakauer’s cases. If, as often happens in date-rape cases, the female agrees to various sexual activities short of genital copulation, and perhaps especially if the parties are intoxicated, the accused will likely claim that he didn’t know that she was not consenting. Often the courts will add that such a belief must be “reasonable,” which gives juries the power to reject claims that, as they understand the circumstances, seem incredible. But some states don’t provide for a mens rea, which means that the young man can be convicted of rape even though he reasonably believed that the complainant had consented. Lawyers call this “strict liability,” and it is considered the most pro-prosecution rule known to the criminal law. It is usually reserved for circumstances involving threats to public health, such as the marketing of adulterated foods, and is strongly disfavored in ordinary criminal cases.

The perceptions of the accused were vital in the Missoula incidents. In one of the episodes, the woman consented to digital penetration before the defendant attempted to have intercourse with her while she was asleep. In another, she invited the young man to her room, watched a movie with him from her bed, allowed him to remove her shirt, rolled on top of him and ground her hips into his. He then held her down over her protests, flipped her onto her stomach and penetrated her from behind. In the first case, the prosecutor, a woman, refused to press charges on the grounds that she couldn’t prove that the male reasonably knew that the victim didn’t consent. In the second, the case went to trial and a jury of seven women and five men acquitted. One of the female jurors later told Krakauer: “No one can really be sure Ms. Washburn made her intent clear to him.”

The victims in both of these cases were, according to Krakauer, traumatized by the events. But the young men, who must have been terrified, given the stakes for them and their families, get no sympathy from Krakauer. Nor does he respect those who supported them. When the woman prosecutor took the unusual step of testifying on behalf of one of the accused males at a university hearing, Krakauer accused her of misstating the facts and violating state law by failing to consult with the putative victim. It took “chutzpah,” he later said, for her to run for prosecutor as a victim’s advocate.

As far as we know, the young men in the Missoula cases were ordinary college students with unblemished criminal records. Yet, under Montana law, they faced extreme potential punishments. Subsection (2) of the Montana statute provides that “A person convicted of sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000.”

True, prosecutors will often make plea offers which sharply reduce the punishments. In one of the Missoula cases, the prosecutor wanted to offer a short jail sentence but, pressed by the victim and her family, he proposed 30 years in state prison, 20 suspended, with eligibility for parole—not a guarantee, of course—in 2 1/2 years. Even if the young man were to be paroled after that period of time, however, that wouldn’t necessarily mark the end of the sanctions. Once convicted of a sex crime, a released defendant may be put on a sex-offender registry with all sorts of collateral restrictions. He may be forbidden from living within a certain distance of schools and childcare centers, from moving to another state without notifying the authorities, even from acquiring legal custody of his own child. His name may be posted on the Internet, leading to loss of employment opportunities and shunning by members of his community. Krakauer may believe that nonviolent sex crimes deserve this level of punishment, but most Americans seem to disagree.

In the typical campus sexual-assault situation, the parties are drinking or doing drugs. One study ventures a conservative estimate that 50 percent of sexual assaults against college women involve the use of alcohol or drugs by the perpetrator, the victim, or both. Other studies put the figure closer to 75 percent. The intoxicants, which undoubtedly work more aggressively on females, not only reduce inhibitions; they also cloud judgments and sometimes render subjects unconscious. Despite the prevalence of intoxicants in college sex incidents, considerable uncertainty exists about their role in sexual-assault law. Most states provide that sex with an “incapacitated” person is rape or the equivalent for purposes of punishment, but what about temporary incapacitation due to intoxication? Should it matter whether the intoxication was voluntary or involuntary, the latter involving the unwitting ingestion of the substance? And what about the accused’s incapacity: suppose, due to intoxication, that the male was incapable of determining whether the female was denying consent? Given the large number of campus cases involving intoxicants, these are vital questions for criminal responsibility. The laws on these issues vary from state to state, and they often remain unresolved or unclear.

The Montana statute illustrates the uncertainties. It proscribes sexual intercourse without consent and defines the term “without consent” to mean that (i) “the victim is compelled to submit by force . . . or . . . the victim is incapable of consent because the victim is: (A) mentally disordered or incapacitated; [or] (B) physically helpless.” Does “incapacitated” encompass voluntary intoxication? Does “physically helpless” include being asleep? And if the answer to these questions is “yes,” which is plausible, what if the accused didn’t know that the female was incapacitated by drink or drugs, perhaps because of his own inebriation? The statute does not provide answers.

However the meaning of the law gets resolved, one thing is clear: criminal responsibility under the statute exposes the accused to some of the severest sentences in the corpus of Montana law, and similar exposure exists in numerous other states. A recent survey of the laws in all 50 states found that more than half provide for rape/sexual-assault convictions on proof that the victim was incapacitated and without any need to demonstrate that force was used. This puts hundreds of otherwise law-abiding young college men at risk of devastating felony records. The only thing standing in the way of such a ruinous consequence is the reluctance of juries to convict.

In addition to the potentially harsh sentences, there may be other reasons for the failure to pursue these cases. The complainants may not be believable, especially if they were intoxicated at the time of the alleged event. Also, juries might consider the females culpable (or the accused less culpable) because these women put themselves in a bad position. “No” should mean “no,” of course; but if a woman invites a young man to her bed and permits him to engage in all sorts of sexual activities short of intercourse, juries are apt to conclude that she bears some responsibility for the consequences.

Krakauer has a good point when he suggests that college administrators may pressure campus and local police into refusing to prosecute for fear of tarnishing the image of the college. He suggests that the University of Montana shielded its athletes (“adoration of the Griz football team created a pernicious atmosphere of entitlement”), and hints that one of the accused males, a star quarterback, might have been acquitted because of his hero status. And Missoula has done a service by addressing an important public question in a compelling way. Unfortunately, it misses half the issue. In a nutshell, Missoula looks at the problem from the woman’s perspective but overlooks the consequences for men. Providing extreme punishments for young men who are not criminals in the ordinary sense of the word does not help their victims and would be—were they imposed—ruinous for these young men. Better options exist.

Colleges and universities often handle these cases themselves. Their procedures have been criticized for ignoring the rights of the accused. Krakauer is indifferent to this charge. He thinks lawyers for accused males engage in “legalistic quibbling” and has little use for defense attorneys, accusing them of “chicanery, outright deceit, and other egregious misconduct.” When universities pursue sexual-assault cases, the maximum punishment is expulsion from the institution. This is inadequate, in Krakauer’s view, as it leaves rapists “on the loose, free to rape elsewhere.” He offers scant evidence that college students accused of date rape repeat their misdeeds once off the campus.

University proceedings are flawed in two other respects. First, they leave the accused male open to criminal prosecution in addition to the university’s sanctions. Indeed, they facilitate prosecution, because the evidence used in the hearings—including any statements made by the accused—may be used against him. Typically, the male is compelled to speak, if not to the university “court,” then to the dean of students in charge of sexual-assault claims on campus. He may be providing incriminating statements for subsequent use by prosecutors, but the universities need not and do not warn him of the risks. In fact, they do everything they can to pressure him to confess. Second, college and university proceedings do nothing for the accuser. Judging by the young women in Krakauer’s book, the aggrieved parties often leave these proceedings feeling hurt, angry, and depressed.

A better alternative would be for the colleges to provide professional counseling for students, male or female, who claim that they were sexually assaulted, and for the criminal-justice system to divert these cases to victim-offender mediation programs, a form of restorative justice. Professional counseling would help the victim cope with her trauma and refocus on her academic work, and it could be provided faster and more anonymously than campus misconduct hearings, to say nothing of criminal prosecution.

Some will consider restorative justice to be a wrist-slap for serious crimes, but the current system forces police and prosecutors to choose between draconian punishment or none at all. Instead, prosecutors should be permitted to hold in abeyance full-scale criminal prosecution with its harsh punitive outcomes as an incentive to the accused’s full cooperation with mediation. For nonviolent cases, and especially where the complainant might be seen as bearing some of the blame, or perhaps not offering an entirely credible account, restorative justice offers a valuable alternative. In such mediated settings, the accused meets with the victim and is made to understand the pain and damage he has caused, while she is helped to feel that her suffering has not been ignored. Such an approach would accomplish a great deal more than the punitive system that Jon Krakuer advocates in Missoula—a system that cannot work as long as it provides outcomes so out of sync with the public’s sense of justice.

Photo by Jitze Couperus


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