Nice Place We’ve Got Here

Moving In

'Packing' by Ryan Hyde. Some rights reserved.

Welcome to the new home of Almost Diamonds. If you’re reading the blog for the first time, the old home is here. I also blogged for a time at Quiche Moraine and guest posted at Greg Laden’s Blog, Sex in the Public Square, the Scientific American guest blog, and the Journal of Are You Fucking Kidding. I won’t be migrating my archives wholesale, but I’ll likely polish up and pull over some of the more relevant posts and parts of ongoing series. I’ll start today with “The Accommodationism Challenges.”

Those of you who have been following the blog for a while should know that I don’t have any plans to change what I’ve been blogging. If you can figure out what that actually is, please let me know. Well, I know there’s science and sex and politics and atheism and art and snark, but if any of you think you’ve managed to come up with some sort of organizing principle for it all, speak up.

What about me, you ask? (Yes, I can comfortably hold up both sides of a conversation.) I’m an analyst by trade, and that is as deliberately vague as it sounds. I’m not a scientist, but it is still my job to pull lots of information together from the best sources identifiable, figure out what it says, and figure out where the big, gaping holes are. On top of that, I write science fiction and fantasy, with my first professional sale to be published soon (“soon” being a publishing term with its own special relationship to everyday English). I’m also a once and future host of Atheists Talk radio, which is available as a podcast through iTunes or on the Minnesota Atheists website.

I have a very unusual, but not unique, name, which makes me easy to find on Twitter, Facebook, and Google+ (for now, at least) if you like what you find here and want more. I’m the snarky one.

Businessmen’s Heads

It’s one of those ridiculously busy times at work right now, so you’ll get nothing of substance from me today. This, however, is making me feel a little bit better.

And be sure to tune back in tomorrow.

The Love of Problematic Literature

Periodically, someone pops up to tell us we shouldn’t like literature in which Bad Things happen. The most recent iteration of this is a critique of the sexism and misogyny of the world and characters in George R.R. Martin’s Song of Fire and Ice series.

I’m not entirely unsympathetic to the critique. A writer friend recently had to fix a bad copyedit that consisted, in large part, of making the (non-historical, non-Earth) world of his book more sexist because “that’s how high fantasy works.” I understand that these things can be done thoughtlessly and pointlessly and in ways that contribute to the idea that “that’s how the world works.” But that doesn’t mean that the presence of these elements mean that the work is thoughtless, pointless, or harmful to its readers.

Nor does it mean that the fans of that work, even if they disagree with you vehemently about the worth of the work, are drinking in the sexist Kool-Aid. We interact with what we read in complicated ways, even when we’re deep in fandom. One of my favorite fantasy books sets the plot in motion by placing an almost supernatural value on beauty–which leads to a brutal incestuous rape. When I reread it, I often skip that part. I’m not up for putting myself through it, and while it’s a necessary part of the story, I’m interested in what happens afterward.

Alyssa Rosenberg has that kind of complicated relationship with the Song of Fire and Ice, and she explains it, and what it means to read fantasy, beautifully:

And it seems particularly bizarre to assume that people read A Song of Ice and Fire because they want to live in the world depicted in it. The medieval era is a useful setting, because the conflicts are smaller enough than our contemporary ones that it’s possible to imagine that a single character can have an impact on the outcome, but big enough to feel that said impact is meaningful. Sady may find medieval warfare boring, which is her prerogative, but that does not mean that medieval warfare is inherently boring (the constant treatment of preferences as facts is one of the things I find most offputting about this mode of criticism), and the scale of it means that critics like Spencer Ackerman have been able to extract applicable lessons and metaphors about strategic thinking from it that are accessible to everyday readers. I tend to find the banking subplots both interesting and usefully, grimly analogous to our present situation. I read these novels with a profound thankfulness that I don’t live in this time period, but with a feeling of being energized by the characters’ triumphs. If I had an actual office, I’d have a replica of Needle over my desk, not because I want to live through Arya Stark’s privations, but because her strength in them reminds me of the smallness of my own obstacles, the tiny magnitude of risk I face in confronting them, and that spurs me on. People want to be part of the Brotherhood Without Banners not because they are really psyched to be peasants trying to survive in a country where the nobility is actively hostile to their flourishing, but because groups based on affinity for fiction can be really rewarding!

I recommend reading the whole thing.

Male Rape Victims: Let’s Talk About the Men

A few months ago, this video was posted.

Very shortly thereafter, a blogger posted an objection to one line of the video:

I love the organization and I support them in doing great things. However, there is one thing that rubs me the wrong way. Watching this video, I get the message that men don’t get raped.

Yes, I am aware that the video portrays a woman, Shoshannah Stern, and shares her perspective on the rape culture. That’s fine. The part that bothers me? At the end, she signs, and the message is printed on the screen: “Rape is hate crime against women.” Not people. Not humans. Women. Just women.

This is a very measured version of an objection that is raised whenever women talk about the experience of being raped and about the culture and myths that support rape in our society. Men get raped too.

ResearchBlogging.orgIt’s true, of course. Fewer men are the victims of rape than women (about 10% of rape victims), but the number is still not small. And we know there’s at least one important difference when a rape victim is a man instead of a woman: Men are even less likely to report the crime. Aside from that, though, how well do women’s descriptions of rape fit men’s experience? Aside from not consistently naming men as victims, do women’s discussions of rape do any disservice to male victims?

Luckily, although the phenomenon of rape of men outside of prison populations wasn’t acknowledged immediately when rape became a major topic of scholarly study in the 70s and 80s, the literature has had some time to catch up. The following is very U.S.-centric and may not apply uniformly to childhood sexual abuse, but it is a quick review of what we know about the experience of male rape victims. Prison rape is included in this discussion, even though it isn’t usually mentioned specifically because rape in prison looks very much like rape in the general population.

Definitions
Counting rapes is made more difficult by legal definitions that relate rape directly to procreative sex and direct violence. In many U.S. jurisdictions, rape is still defined as forced penile-vaginal penetration, although other types of rape are covered under other sexual assault charges. Making the term “rape” more general, to recognize other types of contact and situations in which consent cannot be effectively given, is controversial, but if male rape victims are to be treated seriously, changes need to occur.

The Rapists
Whatever the gender of the victim, rapists are overwhelmingly male and overwhelmingly heterosexual. This lends extra weight to the statement that rape is not about sex but about power, as does the fact that males are relatively more likely to experience gang rape. The relationship of the rapist to the victim is one of authority rather than sexuality. The exceptions to the heterosexual male rapist are generally found in date and domestic rape, in which people are forced or coerced by their romantic or potential romantic partners. As we see more women in positions of stable power from which they are able to apply coercion, this may change, but that’s the picture at the moment.

Hate Crimes
What Shoshanna said in her video is true. Rape is a hate crime against women. It is also a hate crime against non-heterosexuals, those who don’t conform to stereotypical gender expectations, those on the receiving end of racial or religious hatred, civilians on the “wrong” side of a military conflict, and those who are otherwise disenfranchised. This goes along with rape being a crime of power.

In men and women, bisexuals are at the greatest risk for sexual assault, then homosexuals, then heterosexuals. Men pay a stricter penalty in terms of increase in risk for non-heterosexuals. Women’s rates of victimization are consistently higher, only beginning to approach equality in bisexuals.

In all these cases, the sexual assault itself, as well as the reactions of others afterward, can reinforce the self-hatred of internalized oppression.

Coercion
Coercion is another controversial topic in rape education. There is constant pushback from those who feel that enthusiastic consent is too high a bar, but the fact remains that many people don’t feel free to say, “No.” Whether they are dependent on a partner for emotional or financial support or housing, whether they are dependent on a colleague for career support, saying, “No,” often comes with unacceptable consequences, even if those consequences are never stated directly. Just as we have come to recognize that “Yes,” when said at knifepoint or in another physically threatening situation, is not consent, so do we need to realize that consent given under other kinds of duress is not consent at all.

There is a great deal of irony in this being a controversial assertion among the same people who usually complain that those who speak of rape aren’t speaking about male victims. There is evidence to show that rates of coercion by sexual partners is higher among lesbians than among gay men, but that statistic is likely skewed by women’s higher sensitivity to issues of coercion. By attempting to stop those who speak about rape from identifying coerced sex as rape (the “If they didn’t call it rape, how can you?” argument), these people are continuing to deny male victims an equal understanding of their experiences. This is particularly relevant for those men who are coerced into having sex by a woman.

Rape as Sex
Rape defense and denial works very hard to confuse rape with sex, similar to the enormous amount of effort made to blur the very simple distinction between flirting and sexual harassment. To put it simply, sex and flirting are things that both parties want. Rape and harassment are one-sided. It’s very simple for all the argument that goes on.

It’s also quite an important distinction when we’re talking about male victims of rape. The ongoing confusion between rape and sex is particularly bad for male victims, because erectile response and even ejaculation can occur in the presence of fear and other negative emotions. This can lead to men under-recognizing rape when it happens to them–again, particularly with female assailants. It can also lead straight men who are raped by other men to question their sexuality, even as they have to deal with the other aftermath of their rapes.

Rape Trauma
Rape trauma, the post-traumatic stress disorder associated with sexual assault, needs to be understood well for two reasons. The first, of course, is that it is critical for proper treatment. The second is that the presence of rape trauma can be used as corroborating evidence in rape trials in at least some jurisdictions. The research on rape trauma specifically in men is scanty. However, the literature that exists does suggest a similar spectrum of symptoms is present in men and women who are raped, with the individual constellation of symptoms varying from person to person.

Heterosexual men may additionally, as noted above, question their sexuality after a rape in a way that is unique to them as victims. They may also view the assault as a failure on their part to fulfill their masculine gender identity, in a way that women may not.

Attribution of Blame and Social Support
Social support is critical for the recovery of rape victims of all genders. It is perhaps the single most important factor determining recovery outcome, and influences treatment by the criminal justice system. Due to a number of rape myths, however, victims are often judged when they should be supported.

Both women and men face disbelief when they report rape: women are thought to have changed their minds after consensual sex, men are told it is impossible for them to be raped by women, and vast numbers of all genders have to try to be heard and believed over attackers whose social status is much higher, as discussed under Hate Crimes above. Men report rape so rarely that there aren’t any good statistics on rates of false report, but automatic disbelief is an issue for men just as much as it is for women.

Similarly, men are also on the receiving end of victim blaming, even if some of it varies slightly in the details. They “should have known” that this part of town was bad. They shouldn’t have committed a crime if they didn’t want to be raped in prison. They should have known better than to flaunt their sexuality in front of aggressively heterosexual men. And even more than women, who are expected to be the weaker sex, they should have fought back. Male survivors of rape, like any other victims, need us to break down the practice of deciding that anyone who has been attacked must deserve the attack in some way.

The idea that rape is a form of sex instead of a crime that uses the trappings of sex is also a problem when it comes to attributions of blame. If the attacker is of the appropriate gender to be desired by the victim under other circumstances, rape is viewed as less of an assault, denying some degree of social support to the victim. Gay men are considered to be more complicit in their own rapes by men than heterosexual men are.

Institutional Support
This is where we most fail male rape victims. From education to collection of evidence to rape counseling, so few men attempt to use services for rape victims that the services are often not put in place in time to help them. As we continue to work to improve services for women and to make rape a safer topic of public conversation for everyone, we also need to insist that those providing the services–at a minimum–know where services for men are provided by trained, compassionate professionals. And while we are doing that, we need to make sure the same is provided for those whose gender expressions don’t fit the standard binary as well.

Happily, I can say that the group that provided the video at the top of this post pointed to this one as well. We need more of these (though perhaps with better treatment options recommended).

Citations
Anderson, I., & Lyons, A. (2005). The Effect of Victims’ Social Support on Attributions of Blame in Female and Male Rape Journal of Applied Social Psychology, 35 (7), 1400-1417 DOI: 10.1111/j.1559-1816.2005.tb02176.x

Balsam, K., Rothblum, E., & Beauchaine, T. (2005). Victimization Over the Life Span: A Comparison of Lesbian, Gay, Bisexual, and Heterosexual Siblings. Journal of Consulting and Clinical Psychology, 73 (3), 477-487 DOI: 10.1037/0022-006X.73.3.477

Davies, M. (2002). Male sexual assault victims: a selective review of the literature and implications for support services Aggression and Violent Behavior, 7 (3), 203-214 DOI: 10.1016/S1359-1789(00)00043-4

Doherty, K., & Anderson, I. (2004). Making sense of male rape: constructions of gender, sexuality and experience of rape victims Journal of Community & Applied Social Psychology, 14 (2), 85-103 DOI: 10.1002/casp.765

Lipscomb, G., Muram, D., Speck, P., Mercer, B. (1992). Male victims of sexual assault JAMA: The Journal of the American Medical Association, 267 (22), 3064-3066 DOI: 10.1001/jama.1992.03480220082032

Waterman, C., Dawson, L., & Bologna, M. (1989). Sexual coercion in gay male and lesbian relationships: Predictors and implications for support services Journal of Sex Research, 26 (1), 118-124 DOI: 10.1080/00224498909551495

Saturday Storytime: The Shadow and the Flash

There was a time when people who wrote simply wrote science fiction and fantasy along with everything else they made up. Whether that stopped due to our changing relationship with science and rationalism or due to the codification of genres, I think we’re the poorer for its lack. Recently, Dr. SkySkull traced how early writers of invisibility stories were likely inspired by the work of Isaac Newton. Though it would be rare to find that kind of direct inspiration outside the genre ghetto today, at the beginning of the 20th century, no one thought it odd when Jack London was inspired to write this tale of scientific rivalry.

“Very true,” he went on warmly. “And that is because they are not perfectly black. Were they perfectly black, absolutely black, as it were, we could not see them – ay, not in the blaze of a thousand suns could we see them! And so I say, with the right pigments, properly compounded, an absolutely black paint could be produced which would render invisible whatever it was applied to.”

“It would be a remarkable discovery,” I said non-committally, for the whole thing seemed too fantastic for aught but speculative purposes.

“Remarkable!” Lloyd slapped me on the shoulder. “I should say so. Why, old chap, to coat myself with such a paint would be to put the world at my feet. The secrets of kings and courts would be mine, the machinations of diplomats and politicians, the play of stock-gamblers, the plans of trusts and corporations. I could keep my hand on the inner pulse of things and become the greatest power in the world. And I –” He broke off shortly, then added, “Well, I have begun my experiments, and I don’t mind telling you that I’m right in line for it.”

A laugh from the doorway startled us. Paul Tichlorne was standing there, a smile of mockery on his lips.

“You forget, my dear Lloyd,” he said.

“Forget what?”

“You forget,” Paul went on – “ah, you forget the shadow.”

I saw Lloyd’s face drop, but he answered sneeringly, “I can carry a sunshade, you know.” Then he turned suddenly and fiercely upon him. “Look here, Paul, you’ll keep out of this if you know what’s good for you.”

A rupture seemed imminent, but Paul laughed good-naturedly. “I wouldn’t lay fingers on your dirty pigments. Succeed beyond your most sanguine expectations, yet you will always fetch up against the shadow. You can’t get away from it. Now I shall go on the very opposite tack. In the very nature of my proposition the shadow will be eliminated –”

“Transparency!” ejaculated Lloyd, instantly. “But it can’t be achieved.”

“Oh, no; of course not.” And Paul shrugged his shoulders and strolled off down the briar-rose path.

Keep reading.

Insomniac Games Does Social Media Right

I’ve been a fan of Insomniac Games from close to the start. When my brother asked whether we’d played a new game and I said, “Ratchet and Clank? What’s that?” I had no idea it was the new game by the people who made Spyro the Dragon, the first game I played on a modern game console.

The answer, by the way, to “Ratchet and Clank? What’s that?”: Just awesome; that’s what. And through a large number of sequels, the games have stayed awesome. Then they added the Resistance franchise, which aside from also being a shooter, was very, very different in tone and style. Still awesome.

Now I’m really looking forward to Overstrike. To the best of my knowledge, it’s the first game of its type with an even number of male and female playable characters. When you play a lot of network games with another couple, the lack of this option in most games gets pretty painful. Also, the game looks to be combining the gritty world of Resistance with the sly humor of Ratchet and Clank.

But still, well before that comes out, Resistance 3 launches the day after Labor Day. Like Resistance 2, 3 has robust online play. For the new game, the online play is currently in beta, and this is where Insomniac Games has impressed me in a way no other company has.

Betas are fun. They’re also somewhat painful. No matter how much you test a game, no matter how much load you put on your servers, it isn’t quite the same as having a bunch of people figure out your interface on their own and using it in any way they see fit. Things go wrong in beta, however well prepared you think you are.

For some companies, this could result in a lot of user frustration. For Insomniac fans who are on Twitter and Facebook, it’s been an exercise in being heard and helped in record times. When the public player-matching system went wonky, players arranged “private” games with strangers on Insomniac’s Facebook page, and Insomniac used Twitter to send players there. Insomniac broadcast questions on Twitter to collect information about how widespread bugs were. They announced the expected timing of bug fixes and server downtime and passed along workarounds. They took bug reports and customer service complaints and responded incredibly quickly.

In short, Insomniac Games took what could have been the ugliest time for their game launch and turned it into an exercise in making their customers very happy by using social media. I should be surprised, and I’m not really. This is one of the first companies to figure out what a podcast could do for them, and they’ve always been on top of figuring out what options new gaming hardware can give them.

So, no, I’m not surprised. I just hope that those behind Insomniac’s social media presence get the credit they deserve, and that some other companies pay attention to what Insomniac is doing right.

Why Should I Pay for Your Health Insurance?

A friend of mine from high school asked on Facebook a few days ago, “Why should I pay for your health insurance?” Because we have a certain amount of history together, I’m going to answer that question seriously instead of hiding or unfriending this person, which would be my normal inclination with anyone who has managed to reach our age without figuring this out.

So why should you pay for my health insurance? Lots of reasons.

Maybe because I pay for yours and your family’s, and I do it willingly. More than that, I insist on it. Who do you think has been churning the economic engine while you’ve had your career in the military? Who do you think has raised a stink when your benefits haven’t been funded, your institutions have been allowed to rot, your fellow service members’ coverages haven’t kept up with the dangers of the modern military age? I’ll give you a hint: It wasn’t anyone leaning “kinda libertarian on this one.”

Pat yourself on the back all you want for the planning or whatever that got you into a position where you don’t think you need to worry about paying for your own health care. But remember, I was there. I know just how much planning didn’t go into those choices. You lucked into this one, and you’re going to have to count on luck to keep what you’ve been promised.

To your fellow “Why should I” libertarians, you’re a slogan at best. There’s nothing special about you or the military that will keep them from cutting your benefits so they can keep more of “their” taxes. The only thing putting you one major illness away from bankruptcy, just like the vast majority of the rest of us, is that there are people out there who answer, “Why should I,” with, “Because to do anything else would be indecent.”

If that isn’t enough for you, maybe you should pay for my health care because you already do. You pay more taxes because my insurance is untaxed. You pay more for products because my salary and benefits have to be enough to cover my costs. You pay the unemployed because I or others like me work enough hours to pay for everything, which keeps jobs from opening up. (It’s cheaper, after all, to pay overtime than to pay health benefits for another employee.) You pay for disability if the incentive structure of my private insurance is set up to prevent short-term problems over the life of my one-year contract instead of over my much longer lifetime.

Only right now, you’re paying way too much for my health care. You’re paying for the most inefficient health care and insurance industry in the world. Free market health care maximizes profit, not efficiency.

Or maybe you should pay because you want to protect your own health. Can you come up with a better breeding ground for epidemics than crowded emergency rooms full of infants, seniors, people with open wounds, and the immune-compromised? Can you come up with a better way to push people to those emergency rooms with serious illness than to make them unable to afford a trip to their doctor early in their disease? And how long were those people wandering around, ill and contagious but unable to afford care, before they were forced to seek treatment?

Or maybe you should pay because you think the U.S. should be a land of innovation and enterprise again. Because you understand that large companies are mostly buying small companies these days in order to add products and services, not innovating on their own, having slashed their research and development budgets and staffs over the last couple of decades. (If you don’t know that, I’m sure you have enough friends in R&D to find out what’s happened to their departments.) Small companies are currently driving innovation, if they haven’t throughout our history, but small companies pay more for health insurance and have the smallest of margins. People smart enough to change the world are smart enough to know what they risk by starting a company to pursue their ideas.

Or maybe, just maybe, you should understand that caring for one another, creating a better world for all, is what humans do. You should know that the point of this incredibly long adolescence of ours is socialization, becoming fit to take our places among the larger complex group, understanding both the advantages and responsbilities that this gives us. You should understand that claiming only the advantages while sniffing at the responsibilities is claiming the perpetual status of adolescent, which is why the grown-ups around you look so disappointed or angry when you say these things.

In other words, for as far as you’ve come and as much as you’ve accomplished, maybe it’s time to finish growing up.

Beer Science!

Just in time for me to go pick hops this weekend, a couple of related posts on the history of drinking and brewing beer.

Does Your Beer Glass Matter?

Typically, my beer comes in a pint glass, which seems the standard treatment for this libation: it leaves enough space for a nice head, and allows beer drinkers to appreciate the color and clarity of their beverage. But is it enough to really enjoy the rich notes that fermented barley can produce?

Our relationship with beer dates back some 9,000 years BC when the fermenting process was discovered independently by several cultures. As this is a history that’s fairly accessible, I won’t delve too deeply here. In line with this particular story, however, is the history of “glassware”—the containers that hold our libations reflect the social context of our times. These products reflect the technologies and the knowledge at our disposal through the ages.

Raise your pints to the Patagonian fungus that helped us to brew lager

Ask someone to think of a domesticated species and they’ll probably think of something like a dog, cat, cow or horse. But domesticated fungi are just as close to our hearts or, at least, our livers. The yeast, Saccharomyces cerevisiase, has been used to bake bread and ferment wine or ales for centuries. But it’s only partially involved in lagers.

Lager is fermented at a lower temperature than either ale or wine, and the fungus for the job is a cold-tolerant species called S.pastorianus. It has never been found in the wild, and its genes tell us why. It has four of each chromosome, and appears to be a fusion of two different yeast species. One of these is S.cerevisiae but the identity of the second partner has been a long-running mystery. Until now, the best guess was yet another species of cold-tolerant yeast called S.bayanus. But like S.pastorianus, S.bayanus has never been found in the wild.

Now, Argentinian scientist Diego Libkind thinks he has tracked down the real species that merged with S.cerevisiae to help us brew our lagers. And he has found it in a most unexpected place – Patagonia, the southernmost tip of South America.

Enjoy! (Responsibly, of course.)

We Can Have Better

I am…not kind to the people who say that all politicians are alike. I don’t tolerate those who try to tell me there aren’t any good ones. I know better. I’m represented by several at the city, state, and national level. Not everyone who represents me is effective and passionate about making the world better for all, but many of them are outstanding at both.

Nor is Minnesota unique in that respect. Yesterday, Canada lost its opposition party leader, Jack Layton, to his second bout with cancer. Between his battles, and before he first was diagnosed, he had spent his life articulating a vision first of a Toronto, then of a Canada that was strong because it cared for its weak and vulnerable and rich because it properly valued the work of the poor.

He never got to run that Canada, although his message carried his party from fringe to center stage, even as the press failed to take him or the NDP very seriously until just before the 2011 election, when polling numbers required it. But even as he was dying, he continued to lead it. From his last letter:

To young Canadians: All my life I have worked to make things better. Hope and optimism have defined my political career, and I continue to be hopeful and optimistic about Canada. Young people have been a great source of inspiration for me. I have met and talked with so many of you about your dreams, your frustrations, and your ideas for change. More and more, you are engaging in politics because you want to change things for the better. Many of you have placed your trust in our party. As my time in political life draws to a close I want to share with you my belief in your power to change this country and this world. There are great challenges before you, from the overwhelming nature of climate change to the unfairness of an economy that excludes so many from our collective wealth, and the changes necessary to build a more inclusive and generous Canada. I believe in you. Your energy, your vision, your passion for justice are exactly what this country needs today. You need to be at the heart of our economy, our political life, and our plans for the present and the future.

And finally, to all Canadians: Canada is a great country, one of the hopes of the world. We can be a better one – a country of greater equality, justice, and opportunity. We can build a prosperous economy and a society that shares its benefits more fairly. We can look after our seniors. We can offer better futures for our children. We can do our part to save the world’s environment. We can restore our good name in the world. We can do all of these things because we finally have a party system at the national level where there are real choices; where your vote matters; where working for change can actually bring about change. In the months and years to come, New Democrats will put a compelling new alternative to you. My colleagues in our party are an impressive, committed team. Give them a careful hearing; consider the alternatives; and consider that we can be a better, fairer, more equal country by working together. Don’t let them tell you it can’t be done.

My friends, love is better than anger. Hope is better than fear. Optimism is better than despair. So let us be loving, hopeful and optimistic. And we’ll change the world.

Reading the whole letter, I can’t help but wonder what Paul Wellstone would have done had he known he was about to die. I also can’t help but wonder how many of those passionate people have their influence confined to their city or county or small nonprofit instead of sharing it more broadly with the world because, when they run for a larger election, we can’t bring ourselves to believe that they will or even want to make that bright vision a reality. How many of them never even make it past primaries or caucuses.

There are more people like Layton out there. What could we accomplish if we supported them? I think Layton just told us all.

Title IX, Civil Rights, Sexual Violence, and Clueless Whining

This weekend, Peter Berkowitz published a piece in the opinion section of The Wall Street Journal that probably ought to raise serious questions about his abilities as a scholar. The Stanford fellow was all up in arms over guidance to federally funded schools and programs on dealing with sexual violence as a civil rights issue under Title IX. In his letter, titled “College Rape Accusations and the Presumption of Male Guilt” and subtitled “Pressured by the Obama administration, universities abandon any pretense of due process in sexual assault cases.”, he wrote:

Our universities impair liberal education not only by what they teach and do not teach in classrooms but also by the illiberal rules they promulgate to regulate speech and conduct outside of class.

The Obama administration has aggravated the problem. On April 4, Assistant Secretary for Civil Rights Russlynn Ali, head of the Department of Education’s Office for Civil Rights (OCR), distributed a 19-page “Dear Colleague” letter to “provide recipients with information to assist them in meeting their obligations.”

At the cost of losing federal funding—on which all major institutions of higher education have grown dependent—colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape. They are also obliged, according to Ms. Ali, to curtail due process rights of the accused.

Now, of course, it isn’t his opinions on how universities ought to be run that suggests his value as a scholar is limited, but his apparent unwillingness or inability to read the letter he was complaining about. For all his vitriol, it is both a needed and a rather unremarkable document. You can read it for yourself. It begins:

Education has long been recognized as the great equalizer in America. The U.S. Department of Education and its Office for Civil Rights (OCR) believe that providing all students with an educational environment free from discrimination is extremely important. The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.

Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX. In order to assist recipients, which include school districts, colleges, and universities (hereinafter “schools” or “recipients”) in meeting these obligations, this letter explains that the requirements of Title IX pertaining to sexual harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.

The first thing to note about this letter is that it is desperately needed, particularly at the junior high and high school level. Despite what reading Berkowitz could lead you to believe, this letter is not aimed at colleges and universities. It’s aimed at all educational establishments, and the timing (given that we can’t send it back in a time machine several years) is excellent. When a cheerleader is forced to cheer for an athlete whom the school knows has been accused of raping her, we need this letter. When a child is expelled from school for reporting a rape, and when the response of the school to this child being raped a second time–on school property–by the same assailant is to say that “the girl failed and neglected to use reasonable means to protect her self,” we need this letter. It was about damned time.

It is also worth noting that despite Berkowitz’s sneer about women being a majority on campus (thus surely not in any need of any consideration in this setting where the authorities are still predominantly men) and use of the male pronoun for anyone adversely affected by enforcing Title IX’s requirements on sexual violence, the report itself highlights the fact that males are also protected by these requirements:

The statistics on sexual violence are both deeply troubling and a call to action for the nation. A report prepared for the National Institute of Justice found that about 1 in 5 women are victims of completed or attempted sexual assault while in college. The report also found that approximately 6.1 percent of males were victims of completed or attempted sexual assault during college. According to data collected under the Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act (Clery Act), 20 U.S.C. § 1092(f), in 2009, college campuses reported nearly 3,300 forcible sex offenses as defined by the Clery Act. This problem is not limited to college. During the 2007-2008 school year, there were 800 reported incidents of rape and attempted rape and 3,800 reported incidents of other sexual batteries at public high schools. Additionally, the likelihood that a woman with intellectual disabilities will be sexually assaulted is estimated to be significantly higher than the general population. The Department is deeply concerned about this problem and is committed to ensuring that all students feel safe in their school, so that they have the opportunity to benefit fully from the school’s programs and activities.

Title IX protects the civil rights of all students, not just females, from discrimination based on sex. That means that male students are also protected from those like Berkowitz who gloss over the rape of men and boys in order to make their points.

But what is Berkowitz’s point? What is his main complaint? Right, that the Obama administration is weakening due process on campus.

OCR’s new interpretation of Title IX “strongly discourages” universities from permitting the accused “to question or cross-examine the accuser” during the hearing. In addition, if universities provide an appeals process, it must be available to both parties—which subjects the accused to double jeopardy.

Most egregiously, OCR requires universities to render judgment using “a preponderance of the evidence” standard. This means that in a rape case, a campus disciplinary board of faculty, administrators and perhaps students serves as both judge and jury. Few if any of these judges are likely to have professional competence in fact-gathering, evidence analysis or judicial procedure. Yet to deliver a verdict of guilty, they need only believe that the accused is more likely than not to have committed the crime.

This is the lowest standard. It is much less demanding than “beyond a reasonable doubt,” which is used in the criminal justice system, and the intermediate standard of “clear and convincing proof.” Yale, Stanford and many other universities have rushed to comply with OCR’s directives.

On campus, where casual sex is celebrated and is frequently fueled by alcohol, the ambiguity that often attends sexual encounters is heightened and the risk of error in rape cases is increased. The consequences for a wrongly convicted student are devastating: Not only is he likely to be expelled, but he may well be barred from graduate or professional school and certain government agencies, suffer irreparable damage to his reputation, and still be exposed to criminal prosecution.

This is where I really start to question Berkowitz’s basic fitness to comment on this issue. Despite the OCR letter itself being quite clear on the topic:

In some cases, the conduct may constitute both sexual harassment under Title IX and criminal activity. Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX. Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.

Berkowitz can’t seem to tell the difference between an administrative procedure designed to make sure all students’ civil rights are being protected and a criminal trial. In case he needs the clarification, only in a trial is one convicted, and it is only in a trial that the Fifth Amendment protection from double jeopardy applies.

Nor does a Title IX complaint procedure constitute double jeopardy. It serves a different purpose than a criminal complaint–to ensure that the civil rights of all the school’s students are served in an equitable way. This becomes quite obvious if one reads the entirety of the section of the letter from which Berkowitz snipped his quotes:

As noted above, the Title IX regulation requires schools to provide equitable grievance procedures. As part of these procedures, schools generally conduct investigations and hearings to determine whether sexual harassment or violence occurred. In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints. The Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Like Title IX, Title VII prohibits discrimination on the basis of sex. OCR also uses a preponderance of the evidence standard when it resolves complaints against recipients. For instance, OCR’s Case Processing Manual requires that a noncompliance determination be supported by the preponderance of the evidence when resolving allegations of discrimination under all the statutes enforced by OCR, including Title IX. OCR also uses a preponderance of the evidence standard in its fund termination administrative hearings. Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses and other evidence. The complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing. For example, a school should not conduct a pre-hearing meeting during which only the alleged perpetrator is present and given an opportunity to present his or her side of the story, unless a similar meeting takes place with the complainant; a hearing officer or disciplinary board should not allow only the alleged perpetrator to present character witnesses at a hearing; and a school should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement.

While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally. OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment. OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties. Schools must maintain documentation of all proceedings, which may include written findings of facts, transcripts, or audio recordings.

Note that the “to question or cross-examine the accuser” quote that Berkowitz presents isn’t actually in the OCR letter. There is a power shift being required by this letter, but it isn’t nearly the shift away from a presumption of innocence that he represents it to be. It is simply an acknowledgement that if schools fail to protect the rights of the accused and the accuser, that they will be reinforcing a fundamental inequality.

The letter from the OCR is a rather remarkable document in that respect. I suggest reading the whole thing. It addresses, in a more practical way than Berkowitz’s poetical hand-wringing, the problems of alcohol and sexual assault. It also has guidelines for drafting educational materials, which might be entertaining to compare to Berkowitz’s paranoid fantasy of the same.

Or if you’re short on time, you might just want to read the end of Berkowitz’s piece, with its overblown invocations of the major fields of human knowledge to lament that no one (no one!) in power seems to agree with him on this topic. Unlike the rest of his letter, it’s both entertaining and reassuring.