Presumably you’re aware by now that accusations have been made that Michael Shermer did something bad (if not, you can catch up on current events here). There are some things atheists need to consider about this, philosophically and personally.
The Quality of Evidence
As skeptics we should know the difference between ordinary and extraordinary claims (we rightly mock William Lane Craig for thinking winning a lottery is as extraordinary a claim as rising from the dead; yet rape and sexual assault and exploiting women for sex are far more common than winning lotteries). We should know the difference between anonymous authorship and unnamed sources (the Gospels being anonymous is only a problem because that means we can’t evaluate their reliability or how they even know what they claim, but when we have a journalist using unnamed sources, which are not anonymous to him, the author is the journalist, who is not anonymous, but is a known person whose reliability we can evaluate, and we do know how he knows what he claims).
We should also know that standards of evidence are on a sliding scale (belief is proportioned to the evidence) and not black and white (as if claims have to be either certainly true or certainly false…surely you’re sick of explaining that to Christians, so surely you can understand why atheists are sick of having to explain it to fellow atheists). We should also know that clues that accumulate from multiple independent sources, even when unnamed or anonymous, have to be weighed in (we rely on this routinely in public discourse: think of how many things you believe about the government that in fact you really only know because of multiple “unnamed sources” in that government–and how many times have we atheists been allowed to make charges or even testify as “Jane Doe” in cases against school prayer and proselytizing, specifically to protect us from vigilante backlash?).
We should also know the difference between criminal and civil standards of judgment; and between investigations and findings reached in a court to enforce public laws, and investigations and findings reached in private companies (for-profit and nonprofit, schools and hospitals, hotels and bars, banks and grocery stores) to enforce their own private conduct policies (e.g., you don’t have to be convicted in court to be banned from a campus for violating a school conduct policy, nor do you have to break any law for that, either).
These things have already been thoroughly discussed by others here so I’ll say no more about them. (See Sexism, Skeptics, and the Burden of Proof by Dana Hunter, and Harassment, Rape, and the Difference Between Skepticism and Denialism and PZ Myers’ Grenade, and Anonymous Accusations vs. Unnamed Sources: The “Deep Throat” Analogy by Greta Christina). [Add to those now the equally astute and useful analysis of Shouting Arson in a Crowded Theatre: Rape, Reputations and Reasonable Suspicion by Alex Gabriel.]
The State of Evidence
Notably, the accuser did not use the word “rape” when she described what happened (though she did in the end call it that). What she said was “Mr. Shermer coerced me into a position where I could not consent, and then had sex with me.” And her only reason for having this accusation made public was “to share this story in case it helps anyone else ward off a similar situation from happening.” Because she was hearing similar stories from many other women involving Shermer.
This will become very important as I continue. So do take note of the precise distinctions here, of what has actually been said, and why.
The details involved alcohol. Given things others have said online (revisit the timeline), it’s possible Shermer has a habit of getting women drunk and having sex with them (or trying to). Several people online claim to have witnessed his skirt-chasing in general (even propositioning a married woman while her husband was elsewhere in the same room) and evidence of his propensity to have multiple simultaneous ongoing affairs (some of which one source claims his wife eventually became aware and was looking online for others…I don’t know if Shermer and his wife are still married). I’ve been hearing other rumors like this for years, so this isn’t a suddenly new thing. It’s just spilling out into public now.
You can review all there is and draw your own conclusion. This is only my own judgment. But the preponderance of evidence (a civil court burden, whereby a claim need only have a better than 50% chance of being true, so even just a 50.1% chance of being true would win a case) is enough for me to conclude that the general picture is probably true: Shermer pursues sex with women a lot, both one-night stands and ongoing affairs, and he has often enough done so without telling his wife or his various girlfriends. His recent attempt to compel PZ Myers to retract his report of what a witness told him appeared to deny even this (that Shermer has lots of consensual trysts and affairs), which I think is disingenuous at this point.
The Relevant Moral Values
If that were all there were to this story, I would not be troubled by it. Consensual sex, even cheating, is not anyone’s doom. What one does sexually does not (contrary to pop politico psychology) indicate a general dishonesty or unreliability in other matters, or entail you’re a bad person, or make you unlikable or untrustworthy. Or dangerous. Or disgusting. Or any negative stereotype attached to expressions of human sexuality, even the sneaky kind. (This has nothing to do with opposing sex.)
What troubles me (and ought to trouble you) are the elements of victimization, exploitation, and insensitivity that are bubbling to the surface in some of the accounts of Shermer’s behavior.
Because I also believe the preponderance of evidence is sufficient to conclude Shermer probably has crossed moral lines. I have seen enough evidence to establish, in my own mind, at least a 50.1% chance that Shermer has not just cheated or fooled around, but has left a wake of victimized women in his path, that he has not conducted himself morally, and that he is probably not good or safe company (especially for women). Again, I am not witness to this. I am only inferring it from what has been said online by those who do claim to have witnessed evidence of it.
Whether you or anyone would agree depends on what you think the evidence establishes as actually having happened. But it also depends on what we think would even be right or wrong in the first place, even if we agreed on every fact in the matter. The two must not be confused. Nor should an emotional reaction to the one lead you to promote wrong notions regarding the other.
So set aside for a moment whether the accounts of his behavior are true. As a general rule, these things are true:
(1) Propositioning women you’ve barely even met, and have built no rapport with and have no idea what they think or feel about such things, is wrong.
That is wrong most especially (but not only) because it is certain to make a lot of women uncomfortable and unhappy and ruin their fun at parties. And a decent person shouldn’t want to do that. Moreover, a decent person would be aware that they are doing it. So when someone is doing it, or isn’t even aware that they are doing it, that’s a good reason to peg them as undesirable company.
It’s a basic rule of being a nice person: it is the moral responsibility of anyone at a social event to make sure, so far as they are able, that anyone in their immediate presence is reasonably comfortable, and not to make them uncomfortable without moral cause. And that’s what people have a right to expect (otherwise they wouldn’t go to social events at all). Even when we violate that pact inadvertently (and that often happens), we apologize and make it right (whatever that reasonably entails, as the offended party will inform you).
If the stories going around are true, it does not sound like Shermer is on board with this. And that makes me wary of him.
(2) Getting women drunk with the intent of having sex with them (without first establishing that they are okay with that) is wrong.
By this I mean very particularly making an intentional effort to get a woman drunk (and not merely enjoying the drinking and the elation of inebriation together) with the intentional purpose of getting them to have sex with you (as in: you do not believe they would agree to have sex with you if they are sober, therefore you inebriate them), and, again, without first establishing that they are okay with that (e.g., I’ve known women who have said, when sober, that they want their man to get them drunk to give them the courage to do something sexual, and that’s okay).
This is wrong for two reasons, one more major than the other.
The one less major is that it’s sleazy. Seriously. If you can’t persuade a woman to have sex with you when they are sober, you really should admit it’s slimy and pathetic to then try and impair their judgment just so that you can take advantage of them. That disregards their feelings, their happiness, their desires and interests, and simply makes them a tool for your manipulation and pleasure. You don’t care about them. You only care about yourself. And you’ll do what you can to them to get what you want. You shouldn’t even want to do that. And anyone who does is kind of an awful person. The kind of person I want to stay away from…and I think most women do, too.
The more major reason is that this puts you in serious risk of committing rape. Or at the very least (if you are a caring sort of person), creating a situation in which it’s not even clear whether you are committing rape (a situation a caring person would find disturbing to find themselves in). If you are inebriating a woman (or even if she is inebriating herself), your moral responsibility to her increases. You have an even greater obligation to take even greater care to ensure she consents to anything that then happens, and that means making sure she understands what is happening, and actually approves of it. Though this need not require some sort of silly precisely worded script or the exactly precisely clear word “yes” to every single move, it still cannot be accomplished by telepathy. You cannot guess that they approve. You need to be sure.
Notice how this contradicts the supposed purpose of getting her drunk, if you are getting her drunk specifically to make her more likely to say yes. If you are not an awful person, and thus actually care about any women whose company you are enjoying, then you should recognize that these two goals are in conflict: making sure anything you do together is what they want; and taking deliberate steps to bypass what they want by impairing their judgment.
Think about that.
(3) Both principles (your responsibility to the comfort of people in your presence at social events, and that your responsibility increases with their inebriation) entail another: alcohol is a recreational drug, and as such, you have a responsibility not to force it on people or let it harm them when you can intervene to prevent it.
It is wrong to keep filling someone’s glass with alcohol without asking them each time if that’s what they want. It is even more wrong to try and keep their glass full not only without asking them, but even taking measures to try and conceal this from them (such as by distracting them, keeping them busy, filling their glass when they aren’t looking, and so on). It sounds like Shermer might do this (one or the other, or both, depending on the exact details of the accounts so far told). If he does, that’s morally wrong. And that would make him a sleaze who disregards the wishes and welfare of those in his company.
But your responsibility extends even beyond that. Even if they are saying yes when you offer them more, even if in fact you aren’t even supplying them and they are entirely refilling their glass themselves and you have nothing to do with it, you should still care about their welfare and let them know if you think they might be having too much (which means to the point of maybe getting sick or having a hard time walking or grasping what’s going on). Your response to them getting too drunk should not be to pick that as your moment to have sex with them. It should be to recognize that maybe they are too drunk to fairly consent to sex and therefore they should get a chaperone to bed…who should be someone they know and trust, and that might not be you. Or you can advise them to switch to water or non-alcoholic drinks for awhile so they can avoid things like, say, tripping and falling, or feeling sick, or throwing up.
Remember that thing about responsibility to the comfort of your company? Do you really want people to get sick or hurt themselves? No? Then say something. Do what you can to prevent it. And “hurt themselves” includes doing things that damage their happiness. Like have sex with someone they really didn’t want to, or do something sexual they really didn’t want to, or get outright molested, assaulted, or raped.
It is important to recognize that victims of crimes and abuse do not have an actual responsibility to avoid being victimized. We are not morally or legally obligated to lock our car doors. Even if we leave our keys in the ignition, it is still theft to drive off with it. It is still victimizing someone, taking or using their property without their permission. And indeed, under the law, these things wouldn’t matter…a car thief would not get acquitted, or do less time, if she proved the keys were in the ignition when she stole the car. That it was an easy theft, that we didn’t take steps to make it harder, makes no difference to it being a crime, or to its severity.
The same follows for rape or assault–and not just rape and assault, but non-criminal abuse and exploitation as well. It is not a victim’s responsibility to avoid getting drunk, to avoid drinking too much, to avoid drinking as much as they mistakenly think they are, or to avoid drinking at all. They have a right to get as right bloody drunk as they please. Or as they accidentally end up doing. It doesn’t matter. The keys in the ignition do not excuse the theft of your car. If you take advantage of a woman in such a state, even if she is entirely responsible for putting herself in that state, you are victimizing her, same as a car thief is stealing a car.
This holds not just for actual rape (a distinction I’ll get to next), but even for things that aren’t crimes but that do cause harm (as in, damage, or even just unwanted risk, to people’s health or happiness). Even if it’s not rape, if you are taking advantage of a woman and she is harmed by it (like, say, if she’s left devastated and in tears immediately afterward), you are making her a victim, and you are the one causing her harm. It was not her responsibility to avoid that (any more than it’s our responsibility to not leave our keys in the car). It was your responsibility to avoid that (to not steal the car).
It disturbs me that Shermer might not agree with this. That he may have been victimizing women (even if not criminally) and doesn’t even think it’s wrong–that he owes nothing to them, not even an apology, not even a revision of his future behavior so as not to cause this result again. That he might even think it’s their fault. It appears as if he isn’t even worried about how he may have hurt this woman, nor cares to find out what he did wrong so he can avoid doing it again.
Although, granted, that depends on what has actually happened. Merely drunk women who pursue him are consenting adults (presumably). But there is a line beyond that, when he sets his sights on a woman, and it does look to me like he might have a habit of crossing it.
Whether that’s so or not, as to the moral aspect, Shermer might, even on the record, agree with what I’ve said. Suppose, if his accuser faces him in court with her story, and Shermer then claimed he never had sex with her, that in fact he was concerned about how inebriated she was and sought to find someone to make sure she made it to bed safely–unharmed, unexploited. That would mean he agrees with the moral principles I have laid out, and that therefore he agrees that if the accusation against him is true (and that he is the one who escorted her to her room, and had sex with her), then he is indeed a bad man who victimized a woman. Crime or not.
Thus when I look at the accuser’s claims and the corroboration that has followed and conclude that the preponderance of evidence (a greater than 50% chance of being true) favors his having done what he now denies, you can see why this troubles me. I am not troubled by Shermer merely having trysts and affairs. I am troubled by that.
Note that I have framed all this from the perspective of men targeting or harming women, because Shermer is a man and I am not aware of Shermer pursuing men. But everything I have just said is just as true when gender roles are reversed, and a man or a woman is targeting or harming men. Because men can also be raped or taken advantage of or made uncomfortable or otherwise harmed if we don’t treat them with the same respect and compassion when pursuing a sexual interest in them.
Rape vs. Sleaze
Recall what I said at the start. Michael Shermer’s accuser did not include the word “rape” in her initial description. Maybe that was intentional, maybe it was fortuitous. But it’s important. Because it can be unclear just what that means. If you accuse a guy of raping someone, do you mean by the legal definition? By the legal definition that was in force in the specific jurisdiction where it occurred, or in some other jurisdiction that you are more used to? Or do you mean not legally, but morally?
Indeed, one could say “you raped me” in the sense of “you were convicted in a court of law of raping me” or “you raped me” in the sense of “I’m going to take you to court for raping me” (or “I would take you to court for raping me if I actually thought I had any chance of getting a fair trial” or “I would take you to court for raping me if I actually thought convicting you was worth suffering all the horrible things your legal defense team will inevitably do to me and my family and reputation” or whatever).
These are not the same thing. Clearly, no one (even anonymously) has claimed Shermer was convicted of rape. I think the evidence is sufficient to conclude already that that would be defamation. Rather, he has only been accused of doing something (not of being convicted for it), and only something that might be rape. Even if his accuser said “he raped me,” that is not defamation in and of itself. Because it is not automatically defamation to accuse someone of raping them. Obviously. Otherwise no one could ever be accused of rape. It is not defamation to testify that your rapist raped you, or to tell the authorities they raped you in the first place. People have to be allowed to report crimes without being sued for it. No justice system could function otherwise.
For a public figure, of course, and certainly in California (where Shermer lives), a defamation suit requires proving not just that something said about him was false (and that may be impossible for him to prove when no witnesses can back him up any more than his alleged victim, and her eyewitness testimony simply cancels his), but that it was said in reckless disregard of the truth (meaning, the person saying it knew it was false, or had no honest reason to believe it was true…and again, Shermer would have to prove this, and that’s really hard to do, probably impossible in this case, even if or when he knows who his accuser is).
This is why I suspect his accuser is not afraid of a defamation suit. He’d almost certainly lose. What I suspect she is afraid of, if she tried charging him or suing him for assault (or even if he finds out who she is, without being legally compelled to keep her identify from the public), is how he can materially harm her, destroy her reputation, investigate and expose her life, her sex-life and sexual history, and the resulting endless and relentless swarm of harassment, threats, and stalking that inevitably befalls any woman the Evil Atheist Slyme Hoard sets their sights on. (And such behavior is precisely what creates injustice by scaring victims away from reporting what happened…which actually facilitates rape and abuse, which a decent person should be keen on not doing.)
Just for example, suppose Shermer’s accuser is married and has had in her life one consensual extramarital affair that her husband never discovered. Shermer’s lawyers might dig that up and parade it in court in an attempt to discredit her (which would fail, since it actually wouldn’t prove her malice or the falsity of her claim) and to materially punish her (which would succeed, if it had the expected effect of ruining her marriage). She might not want to expose herself to that outcome, preferring he be allowed to get away with whatever he did, in the interests of her own wellbeing, while still being able to warn other women. Which, incidentally, was her actual stated purpose, as quoted.
There are many other scenarios that could warrant the same choice. (What if she is a private member of a BDSM club, and doesn’t want that paraded out in public? As inevitably it would be. And so on.) [Since I published this, an actual rape victim recounted a number of other reasons, which in her case were not even hypothetical.] If you can honestly put yourselves in those shoes, you’ll realize this is no simple matter of “certainly I’d file a charge with the police” or “certainly I’ll come forward.” If you have never felt sympathy for the countless victims of the world who are in these situations (and thus stay silent, for their own good), then you either lack compassion or haven’t learned as much about the world as I have.
Thus it’s crucial to note that all she has said she wants to do is warn women. And that’s what she has done. It is not incumbent on her to do more. Particularly as it would not accomplish all that much. Proving what happened to her in court is exceedingly difficult and wouldn’t make much difference even if she could manage it–problems countless survivors of rape, abuse, and assault have dealt with. Moreover, what happened might just have risen to the level of inappropriate conduct, and not a crime (not only for reasons I’ve already stated, but also for reasons I’m about to go into–hence reporting it to the conference venue, as she said she did, was possibly all should could do, and is in line with her stated goal of making it possible for future women to be cautioned about his behavior).
Thus look at what she said happened: she claims Shermer “coerced” her “into a position where I could not consent” and then had sex with her. She has not said what form of coercion was used (and thus no accusation has been made yet that he used physical force) and what counts as coercion can be sufficiently subjective that it would be all but impossible for Shermer to prove he didn’t coerce her…in whatever sense she means. Likewise, what she considers being unable to consent can be sufficiently subjective that it would be all but impossible for Shermer to prove she could consent…in whatever sense she means.
Thus, read as-is, there really isn’t much here that Shermer can challenge…unless he wants to challenge it happening at all. And that’s where a significant number of other witnesses come in, who have already said they can corroborate at least that much, as well as that this woman felt traumatized and devastated by what happened. She was harmed. Regardless of what Shermer factually did. I think there are enough witnesses to prove that’s true, and if he forces the matter, I suspect he won’t be able to honestly deny it.
I make these points not to suggest that I think Shermer’s accuser is exaggerating or employing disturbingly broad definitions of words (the stock fears of the MRAs and other misogynists and rape apologists). I actually don’t know what details lie behind “coerced” and “could not consent.” And neither do you. Rather, the point I am making is that in one still important respect it doesn’t matter. What he did is sleazy. Even in what I think is the best case scenario, given the preponderance of evidence so far. To me it doesn’t seem like he cares (now or then) about how he may have harmed this woman, or that whatever he did to harm her might be something he should apologize for and make right and stop doing in general so as to ensure he doesn’t harm anyone else (and it does sound like there are already other victims).
To explain what I mean, I have to conclude with a thought experiment.
When Exactly Is It Rape?
Trigger Warning: I am about to viscerally describe rape and shame scenarios. Hypothetically, but realistically. If you think that might be too disturbing, you should skip the indented paragraphs with titles in bold (the blocks labeled Scenario A and Scenario Z and Scenario B). Just don’t read them. Read only what comes before and after those.
Let’s explore three different scenarios…
Scenario A: You finally get to meet a big celebrity, for the first time, someone you really love and admire, and you’re at a party having drinks together, sitting at a table. He shows a lot of interest in you, asks you lots of questions, listens intently. Your conversation is so animated, in fact, his focus on you so engaging, that you don’t even notice that he keeps filling your wine glass, and you don’t realize how much you’ve had.
Then you start to feel you must have drunk too much, your vision is blurring and you feel a little dizzy. He shows concern, and offers to take you to your room. You get up and almost fall, you are having difficulty keeping upright. He supports you, and in his arms walks you to the elevator, and your room. You are really out of it and at this point can barely think straight and can’t navigate on your own. You have difficulty walking. At first you aren’t even sure it was your room he took you to.
He gets you to the bed and your head is swimming. You’re struggling not to pass out. You can’t speak coherently. He starts kissing and fondling you, then undressing you, then…everything else. You are too drunk to resist. And you are too surprised to speak. You just think to yourself, in a bit of shock… Oh. Okay. So this is happening. You never asked for it, and he never asked you if you did. It wasn’t even a subject you’d ever discussed or hinted at. And once it’s begun you aren’t sure how to stop it. You aren’t even thinking clearly enough to reason that out. You say something, but your speech is so slurred even you aren’t sure what you said. And before you get any idea of what to do, it’s over, and he leaves.
You lay there in the bed, stunned. The shock of what happened has sobered you up a little. You feel violated. You gather yourself up. You start crying. You finally get your head together and stumble out to report what just happened, visibly shaken as many witnesses can verify.
This is a rape. In at least a third of all the states in the United States, in fact, it is felony rape (though the exact language varies, e.g. rape is sometimes called “aggravated sexual assault”). If Shermer has ever done this, then he is a rapist, by almost any standard. I say almost, because shockingly, at least as of ten years ago, it appears that in two-thirds of U.S. states what I just described is not a rape. Although it is in the other third of the country.
(For this point, and what follows, see Valerie Ryan, “Intoxicating Encounters: Allocating Responsibility in the Law of Rape,” California Western Law Review 40.2 [Spring 2004]; see also the NDAA manual on Prosecuting Alcohol-Facilitated Sexual Assault .)
Under New Jersey law (as of 2004; things may have changed since), unless the victim was unconscious or completely unable to move or speak (and thus “physically helpless”), she cannot claim it was legally rape if she was aware of the fact that she was drinking alcohol (no matter who gave it to her) and wasn’t being forced to drink it. Only if the alcohol was administered without her “prior knowledge or consent” would Scenario A qualify as rape under that law (since the victim in that scenario was conscious and offered no objection or resistance).
Under California law, however (again, as of 2004), it is rape whenever “a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.” A woman who can barely walk or speak coherently and is having trouble figuring out where she is and how to get to her room, is clearly incapable of resisting a sexual advance. In California, having sex with her anyway is felony rape (assuming you didn’t establish consent for this to happen prior to her condition).
Note that under neither law does her merely being drunk make it rape (and I am not aware of any law under which it does–a lot of college “rape awareness” pages get this wrong). Under California law, according to state jury instructions, “the level of intoxication and the resulting mental impairment” must be “so great that the alleged victim could no longer exercise reasonable judgment.” As Ryan puts it, the law doesn’t require a victim to “become so intoxicated that she is physically unable to speak or display a lack of actual consent,” but on the other hand mere intoxication “to some degree” or intoxication that “reduce[s a woman’s] sexual inhibitions” is not sufficient to make a sexual encounter rape (some other condition would be required, such as she resisted, verbally and/or physically, and the man continued; or she was threatened; etc.).
When the question of whether Scenario A is rape or not depends on the absurd trivia of what piece of land it happened on, you should readily grant leeway in the use of the term “rape.” If it’s rape in California, it’s fair to say it’s also rape in New Jersey by California standards. “In California, we call that rape.” Fact.
Atheists should be particularly sensitive to this point. We often make hay out of the fact that the Bible legalizes rape. Even though, strictly speaking, that’s logically impossible. If rape is legalized, it’s not rape anymore…if, that is, you insist on only ever calling something “rape” when there is an actual law calling it rape at the time and place it occurred. Oh, right. Now you see the problem.
Under the laws governing the ancient Hebrews, forcing captive women to have sex with you was not “legally” rape. It not only wasn’t illegal, it was explicitly legal, codified in the law as a man’s privilege (for this and other horrible truths about the Bible, see my collection of examples, including this one, in The Will of God). But we are happy to call it rape. Because we don’t follow the rule “it’s only rape when the law at that time and place says it’s rape.” We follow our conscience instead.
Thus, we readily recognize that calling something “rape” does not mean “according to the law at that time and place.” We know rape when we see it. When consent cannot honestly be given.
We in the U.S. endured a very recent example of this: Only just last year, President Obama signed a law making it illegal to rape your wife in the military. That’s right. Until 2012, in the military, it was legal to rape your wife. Notice the phrase “legal to rape your wife” entails accepting that we are not defining “rape” by “what the law says at that time and place.” Rape is not what is illegal. Rape is what should be illegal.
[The new law] eliminated the old UCMJ provision that allowed service members to rape their own wives: that’s right, the law used to define rape as any of a list of awful things done to a woman except one’s wife (explicitly: it said wives can’t even in principle be the rape victims of their own husbands). No shit: the very first line of this law read: “Any person subject to this chapter who commits an act of sexual intercourse with a female not his wife, by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct.” So you can force your wife to have sex with you without her consent. Nice. In this new Act, signed by Obama, the phrase “not his wife” is now deleted. The new law has also eliminated the bizarre assumption that only women can be raped and only men commit rape, by substituting “person” for all gendered terms.
So you can get rid of the notion that we can’t accuse someone of rape if the act in question doesn’t meet some strictly defined legal definition in a particular time and location. We would never have allowed that reasoning to fly when criticizing the UCMJ, and we atheists certainly don’t let it fly when criticizing the Bible. Rape is sexual penetration without consent. Period. No matter what the law says.
We could say this is the distinction between something being legally rape (in 2000 A.D., a soldier forcing his wife to have sex with him without her consent was not legally rape; in 2000 B.C. a soldier forcing a foreign woman he captured to have sex with him without her consent was not legally rape) and it being morally rape. And I think most discourse about Scenario A being rape would be of the latter kind. If Scenario A is what Shermer did, then morally, Shermer is a rapist. Regardless of what the law may have said wherever and whenever it occurred. Whether in Palestine in 2000 B.C., or in the U.S. Military in 2000 A.D., or whatever. Because that’s what most people mean by a “rapist,” and most especially atheists, who use “rape” in exactly that sense when criticizing biblical law.
This is not the only distinction we atheists already routinely make (between what is rape really, and what only technically is rape under any given system of law). We also recognize a huge difference exists between what a law says, and what juries end up doing. The law may say that “Congress shall make no law respecting an establishment of religion” or that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” or that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” but what legislatures, judges, and even juries do might still not enforce that law, due to prejudice, ignorance, or what have you.
Scenario Z: So, imagine. You’re a man. You are arrested for some misdemeanor you didn’t commit and will easily walk on, but you are held over in jail a night awaiting a court hearing. In your cell three men jump you and gang rape you. You report this almost immediately and establish abundant documented physical evidence (wounds, physical trauma, semen). The three men claim it was consensual, and even though they are separated when interviewed, their stories all agree (as they conspired to ensure). It goes to trial, and the jury believes them, and not you. They are acquitted. And in the eyes of the law, they are innocent, and you were officially not raped–in the eyes of the law you had consensual group sex in a jail cell. And now no one believes you.
That would fucking suck, wouldn’t it?
Now think how often that actually happens. To women.
In Scenario Z, the truth is you were raped, and you know it. Could you–would you–still call it rape? Even though your rapists were acquitted? What would you call it? What should you call it? Are they really no longer rapists? Should you really stop calling them rapists? It seems pretty obvious that you should be able to tell the truth, that you were raped, and that you believe they are rapists. Imagine how horrible it would be if it was illegal for you to do that. That your rapists could even sue you if you did, and take your house, your savings, even compel you to pay them money out of your paycheck every month. After having raped you. All because they could dupe a jury into believing their story.
Think about that.
What could you do? Well, I suppose, you could say you “believe,” as you testified in court, that they raped you, and are therefore rapists, but the jury didn’t see it that way and acquitted them. Could your rapists sue you if you put it that way? Would that be fair? Do we really want the world to work that way? Worse, do we not only want it to be okay for your rapists to sue you, but do we also want you to be harassed and mocked by your own community as a “liar” and a “faggot”? (I shocked you there, didn’t I? Replace that last word with “slut” and think long and hard.)
This is why you should feel bad about victim blaming.
You should feel awful for anyone who suffers Scenario A. It should make you sick to think that even happens. And when you don’t know it wasn’t Scenario A, yet act like whatever did happen was no big deal and it was the victim’s fault for making it easy, you are on the wrong side of justice. Remember the (only barely) hypothetical gang-raped man in Scenario Z, and the tragedy of the outcome of his trial. Will you really side with those who don’t believe him and even mock him for claiming what happened to him was rape? Really?
But that’s even in the context of the law, what legally is rape. Many a rapist will be acquitted, or can’t get convicted. Yet they are still rapists, even by the legal definition. That juries don’t or can’t be convinced of that does not change reality. And regardless of the legal definition, anyone who sexually penetrates another without their honest consent is a rapist, by every moral standard we atheists have been applying to the Bible, and antebellum Christian slavery, and fundamentalist Mormon polygamy, and the scandals of the Catholic Church. We don’t stop to ask, “Oh, wait, was that actually legally rape where that occurred?” No. We know rape when we see it. Especially when the religious majority refuses to legislate it.
But the reality goes beyond that. Because even when something is not even morally rape, it can still be sleazy and reprehensible.
Scenario B: You finally get to meet a big celebrity, for the first time, someone you really love and admire, and you’re at a party having drinks together, sitting at a table. He shows a lot of interest in you, asks you lots of questions, listens intently. Your conversation is so animated, in fact, his focus on you so engaging, that you don’t even notice that he keeps filling your wine glass, and you don’t realize how much you’ve had.
But then you start to feel you must have drunk too much, your vision is blurring and you feel a little dizzy. He shows concern, and offers to take you to your room. You get up and lose your balance a bit but don’t stumble. You can walk if you’re careful, and with his hand out to you he walks you to the elevator, and your room. You are really out of it and are kind of floating. You struggle to concentrate on where he is even taking you.
He gets you to the bed and your head is swimming. You crack wise about how drunk you are. Then without warning he starts kissing and fondling you, then undressing you, then…everything else. You didn’t give him any signal you wanted to fool around, and this isn’t anything you wanted before, but once he just suddenly started, even from his first kiss you respond in kind. You aren’t thinking straight, or thinking at all, but it’s exciting and you participate enthusiastically. But in the midst of it you start to feel it’s wrong. He didn’t ask you. There was no lead up to test your boundaries or pauses to determine your desires. He just did it. You’re ashamed and don’t think you would have done this if you’d been given a chance to think about it. Soon it’s over, and he leaves.
You lay there in the bed, regretting what happened. You feel exploited. Like he took advantage of you. You feel awful about yourself, you feel like a fool, and you cry yourself to sleep. You vow never to let that happen again, to stay away from men who would do that, and to only drink in the company of men you trust won’t.
This is not rape. But it isn’t nice, either. If it wasn’t what you wanted, if you weren’t given a chance to think about it first, then it still wasn’t right. You were still taken advantage of. You were still abused and mistreated. And your happiness was still damaged and disregarded. Even if that is all Shermer did, even if what happened was Scenario B (and I am not even saying it was, only if it was), then he still took advantage of a woman and destroyed a human being’s happiness. Even if it wasn’t against the law. Even if it wasn’t sexually penetrating someone without their consent. Thus it’s being against the law or not is hardly the point. But it’s being rape or not is hardly the point, either.
Knowing that even just Scenario B happened would be sufficient warrant for women who don’t want that to happen to themselves to not drink with Michael Shermer, and to drink instead with men they can trust, men who won’t take advantage of them or attempt to trick them into sex they don’t want by plying them with alcohol, men who respect them enough to think that even trying to do that would be appalling, an outright embarrassment to their gender.
And women who might not want that to happen to them, who want to know what sort of men they can and can’t trust, deserve to be made aware of that. And that is exactly what this witness did. No more. No less.
And you don’t have to decide which happened, Scenario A or Scenario B, in order to agree with that.