Sat 12 Apr 2008
Commentary on Tracy McIntosh ‘75.
Pending the unlikely reversal of his sentence on appeal, the Tracy McIntosh travesty appears over. On Feb. 13, the former University of Pennsylvania professor and preeminent stroke and brain-trauma researcher was led from a Philadelphia courtroom to begin a 31/2- to 7-year prison sentence for the September 2002 sexual assault of a then-23-year-old Penn graduate student in his office at Penn. In December 2004, McIntosh pleaded no-contest to sexual assault and possession of an illegal substance in connection with the incident. A first-degree felony rape charge was withdrawn as part of the deal.
McIntosh thus joins Kobe Bryant, Bill Cosby, Penn State football player Austin Scott, and other unlucky, if not wholly virginal, males who have run afoul of laws similar to Pennsylvania’s arguably unconstitutionally vague sexual-assault law.
In Pennsylvania, a person commits sexual assault, a second-degree felony, when “that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant’s consent.” In layman’s terms, sexual assault is penetration without consent. Rape has the added element of force.
The legislature declared sexual assault a crime in Pennsylvania in 1995 following a 1994 state Supreme Court ruling that a person could not be convicted of rape absent proof of physical force beyond a reasonable doubt. Intentionally or unintentionally, the removal of force as an element of the crime put the age-old he said/she said conundrum in a whole new light and opened the door to all sorts of sexual hijinks.
Previous discussion here. See below for the rest.
The law enabled angry or vengeful women to extract their pound of flesh from guys who had dumped them. It soothed the conscience of women suffering the pangs of guilt from a momentary lapse of reason. In sum, women of all stripes were now able to avoid responsibility for their actions, ensure their victim status, and punish recalcitrant lovers simply by convincing themselves and others that somehow they had been forced to have sex albeit without the use of force. Sexual assault is the perfect solution to the human propensity to pin responsibility for our actions on others.
Cowed judges and zealous prosecutors who substitute crocodile tears and melodrama for common sense, hard facts and justice in the courtroom have contributed to the charade.
The case against McIntosh consists as much of emotion as facts. The problem is that the facts may not add up to a crime. An evening of bar-hopping on the Penn campus and the sharing of marijuana at McIntosh’s office preceded the boozy sexual encounter which the woman alleges was nonconsensual and criminal and which McIntosh alleges was knowing and voluntary, albeit wrong. With no proof of force or threat of force coupled with a classic “he said, she said” scenario, it’s hard to know precisely what McIntosh is guilty of.
At an earlier March 2005 sentencing, which District Attorney Lynne M. Abraham appealed, and which was overturned last April by the state Superior Court as too lenient, McIntosh’s former defense counsel said McIntosh displayed conduct “that may very well be adulterous, may be immoral, may be inappropriate - but may not be illegal.” He may be right.
At this month’s resentencing, the victim inadvertently admitted as much. She described herself as “a drunk, incapacitated 23-year-old girl” on the night of the incident, an odd choice of words considering that most 23-year-old females are quick to refer to themselves as women. She went on to implore the judge “to set this right for myself and for my family and for all women out there . . . to know that rape is a freaking crime,” overlooking the inconvenient fact that the rape charge was withdrawn three years ago.
Then, in damning evidence of consciousness, she testified that she remembered McIntosh on top of her and having sex with her, apparently without force or threat of force on his part or resistance on hers.
So where’s the crime? McIntosh’s failure in the heat of the moment to obtain her written consent? His failure to administer a Breathalyzer? Or are men held to a higher standard of conduct in sexual affairs than women? I’m confused.
At the earlier sentencing, the victim’s father said, “This is a man’s world. And this is a big step in the direction against man’s oppression of women.”
Indeed.
April 12th, 2008 at 8:56 am
Call me a prude or a stick-in-the-mud if you like, but must we discuss absolutely everything that fits the broad definition of being Williams related - to paraphrase Joseph Welch, “do we have no sense of decency”?
April 12th, 2008 at 10:14 am
I knew the feel-good stories on Williams life couldn’t last! For about the last five years or so, I’ve sat out all of the posts on these topics because, as Mr. Swart’s most recent correspondence from his roommate would indicate, I believe that David baits his loyal readers. Against my better judgment and the prosaic advice of my elder Ephs, I’m taking it.
I know this is one of David’s favorite tactics–post an article published elsewhere by a (usually) unaffiliated author, using it to shoehorn in his own opinion on the issue, and then when the merits of the argument are effectively challenged by other readers, exclaim that his own viewpoint differs in subtle but important ways from what was originally posted. Whatever, I’m game.
I already wrote this whole post out once and accidentally deleted it, and because I have a bunch of errands to run, I don’t have time to go back and fully cite all of my sources, but I use this research daily in my professional work, so am happy to provide a bibliography upon request.
Rape and sexual assault are not falsely reported any more frequently than other crimes. That is, people do not lie about rape and sexual assault any more frequently than people lie about having their house robbed, their car jacked, or their wallet stolen. In fact, the vast majority of survivors of rape and sexual assault never tell *anyone,* much less the police or DA.
Just as a little exercise, I’d like everyone responding to this post to include a description of their best sexual experience. I’ll wait while you type it up…
Just kidding. We would never do that. It’s embarassing, it’s public, and it’s not something we care to share with other people on EphBlog. So we would certainly never share our worst sexual experience in this forum. Yet, that is precisely what we ask victims of rape and sexual assault to do in order to go forward with reporting the crime and being involved in the prosecution. They have to tell the story over and over, in a linear fashion, including all the details, to people who are strangers and who, either implicitly or explicitly, suggest that they are either making it up or that there is contributory negligence.
Rape and sexual assault are not about miscommunication. The increasingly large body of research on perpetrators, both convicted and “undetected” (i.e. those who self-report in surveys that they have engaged in sexual activity via the use or threat of force or with a partner who they knew did not want to, but who have never been arrested or charged), suggests that they engage in specific grooming behavior and boundary testing, and that they are well aware that they do not have consent and do not care. They typically employ alcohol and drugs deliberately to incapacitate victims and use social situations where substances are present to camouflage their behavior.
The statutory force requirement that the author is arguing for here has been removed in many stats because it is an anachronism, a holdover from the time when perpetrators were widely believed to be armed strangers who leap from hedge rows and the darkest recesses of parking structures. In fact, about 70% of adult survivors of rape and sexual assault know their attacker, a figure which rises to 90% for college-aged survivors and 93% for adolescents ages 12-17. It is higher for children 11 and under. Because of this, it is largely unnecessary for perpetrators to use weapons. The research I mentioned above indicates that those same perpetrators rely most frequently on verbal threats and psychological manipulation and display excellent impulse control, using only as much force as is necessary to accomplish the assault. As such victims do not present with the kinds of injuries we “expect”–hideous facial injuries, ligature strangulation marks, etc.
The author in this piece brings up that tired old “What am I supposed to do, get it in writing?” argument. I would suggest that those who are most condescending and dismissive about the idea of consent are those who are least sure that they have it from a partner. That is, those who do not want to ask because the answer might be “no.” On the flip side, never in my whole life have I heard of consensual sex that DIDN’T happen because a partner took two seconds to say, “Is this OK? Do you like this?”
I would also suggest that the reason that people keep making these arguments—that survivors (especially women) lie about rape, that the victim should have been more careful, that if force isn’t used it’s a simple matter of a misunderstanding or bad manners—is because it is frightening and uncomfortable to think of rape and sexual assault otherwise.
There is a saying that all a defense attorney in a rape/SA case has to do to discredit the victim witness is bring up the “nut or slut” question: s/he was either crazy or asking for it. If we can pinpoint what it is that a survivor did “wrong,” we can make sure that we and our loved ones never replicate that behavior, and can thus feel safe. Or, if we can imagine that someone would make up a story for personal gain, that feels better than the alternative, which is that people are brutalizing their family, or friends, or dates or lovers on purpose.
It is also, I think, the reason that people feel more comfortable thinking of a knife-wielding stranger jumping out of an alley in the wrong part of town, rather than the family friend who is a professor and “pre-eminent stroke and brain-trauma researcher” in their leather-bound office at an Ivy League school.
David, you made a point in an earlier post that I actually agreed with. You said that it’s too easy to make McIntosh into a monster who is vastly different from we, the decent, kind fellow Ephs. As you rightly argued, I believe in that same post, not all men are rapists. That is indeed true.
If I may tie this back to an actual discussion of the Williams community, where we are failing as a community is imagining that our work ends at keeping the “monsters” out of the Purple Valley. Instead, our time would be better spent coming to grips with the fact that there are a handful of people who are perpetrators who are our friends, our colleagues, etc.
It’s been a long time since I’ve seriously heard anyone argue that any man (or woman) has the potential to be a pepetrator because of lack of communication. Real prevention work is not about covering your drink, avoiding the wrong parties, and splitting legal hairs about what constitutes consent, but about speaking up when we see behavior in social situations from our friends that transgresses normal pro-social behavior. If a friend is trying to pick up a partner whose sobriety treads the line of “incapacitation” (which is the statutory boundary for enabling consent in MA), we should be asking that friend why they’re choosing this particular partner. If we know someone who repeatedly tries to cross boundaries, we should be calling them out on that.
I am happy to participate in a conversation about how to make the Williams campus, and larger Williams community, less accepting of perpetration, but the constant condemnation of victims every time this topic comes up on this blog is not getting us anywhere in that direction.
April 12th, 2008 at 10:57 am
This is actually an important topic for all college men and women to understand. It is a conversation that I had with my daughter before college and a conversation that every parent of a male college student must have:
a) Sex without consent in a crime.
b) An intoxicated partner cannot give legal consent.
c) Sex with an intoxicated partner (i.e. “drunk girl” in the vernacular) carries potentially life-changing risk.
College males better fully understand the implications of these three simple points.
April 12th, 2008 at 10:59 am
College women better undestand the three points, too. For them, the “moral of the story” is don’t be the “drunk girl”.
April 12th, 2008 at 1:44 pm
1) I post things that are written about Ephs, whether I agree with them or not. Sometimes I agree, sometime I don’t and sometimes (like this time) I don’t have the time to comment one way or the other.
2) I really don’t know how much we differ, Another Eph ‘05. Would you take exception to my coverage of Mark Foster? In particular, I think that this is some of the best writing that I have done at EphBlog. Interestingly, most of the complaints that I get on this topic (i.e., here) are from people on the “other side” from you, that is people who think that I give to much credence to the Gensheimer’s account. How would you have me reply to such critics?
April 12th, 2008 at 1:50 pm
‘05:
Thanks for taking the time to provide (an informed) balance to McOscar’s article. His choice of McIntosh as an example of the injustice of “Pennsylvania’s arguably unconstitutionally vague sexual-assault” law is, IMO, a stretch, given the details of the case.
That said, I agree with your point that we could learn from his story, rather than deciding that McIntosh is some “monster” who is so “vastly different” from his “fellow Ephs”.
Your last three to four paragraphs are realistic and practical, and beautifully clarify the responsibility all students should take in certain ’situations’ on campus…a sort of extension of the action of taking car keys away from a friend who has had too much to drink.
If enough students see those three paragraphs, then you will have done a great service to the campus.
April 12th, 2008 at 2:19 pm
In some ways, we agree on various points. Weak community sanctions for perpetration of sexual violence and general acceptance of sexual violence within the community are both risk factors for perpetraton, so your suggestion about familiarizing first-years with the WPD’s response to prior cases is actually not terribly outlandish.
Where we differ is that you seem to feel (along with your critics) that it is essential that we here on EphBlog and in the Eph community get to the bottom of the details of either of these cases, or others which may not have gone so far in the judicial process.
Most of us have the good fortune of being neither police nor DAs, so it’s really not our duty to winnow out the facts. Ken Thomas wrote a response to your critics that is more heartfelt and articulate than I could be by paraphrasing (I’m still a novice, and haven’t figured out the block quote thing yet):
“In each situation,– regardless of “truth,”– what is the right response that is demanded of us? And how do we judge between each situation?
…
Whatever the character and patterns of behavior that lead individuals to extremes of behavior, they certainly practiced those behaviors at Williams.
And Williams should be a shelter against such darkness. It should instruct, guide, and build character.”
That would be my response to your critics; that our time and passion for our fellow students and community members is wasted on choosing sides. The behavior that I was speaking of before and that Ken is writing about in the context of his post is not anomalous or private. Rather than debating the merits of opposing testimony, we should ask ourselves where we were when the Mark Fosters and Tracy McIntoshes were practing that behavior on campus.
April 12th, 2008 at 3:35 pm
“… I agree with your point that we could learn from his story, rather than deciding that McIntosh is some ‘monster’ who is so ‘vastly different’ from his ‘fellow Ephs’.”
“…And Williams should be a shelter against such darkness. It should instruct, guide, and build character.”
Dr. McIntosh is in prison. Few of us can begin to imagine what that, and the fall from his previous life, must be like.
What he did was very bad (and particularly nightmarish in that it breeched an old college friendship, which hits especially painfully here in the Williams community). Yet, all of us would do well to understand that he is probably not so vastly different from us and that there is much that was and continues to be good about him. It isn’t very PC for this site (and I’m already ducking from the ton of brickbats that are probably about to be hurled my way), but I ask you to join me in (whatever your form is of the Friends’ way of) holding all of those at the center of this situation, and their families, in the Light.
April 12th, 2008 at 3:57 pm
Another 05 Eph:
Wow! Between your insightful post, and Ken’s beautifully written one (from the Foster link in David’s comment) I feel like the lightbulb has gone on!
I have experienced such a range of emotions with some of EB’s threads, and resorted to wagging my finger and shaking my head, without really understanding the difference between ‘batting around’ a controversial subject, and taking it in a direction that provides a discussion from which we can all learn and benefit. What a subtle distinction, and yet one so worth trying to understand and consistently employ.
As well, I haven’t really bothered to take on culpability for the turn some of the discussions take…I will certainly take that into consideration as well.
David:
Though I have been one of your “critics”, I will concede that you have managed to bring me to a different understanding on several fronts. However, 05, and Ken, and JG, and many others, have pointed out some key things that we should all very carefully digest. I think they are the subtle distinctions that could transform EB from a blog site into a truly amazing forum.
April 12th, 2008 at 3:59 pm
The problem with this, ‘05, as with many other cases, is that “he said, she said” cases, without more, are LEGALLY INSUFFICIENT to constitute a crime.
As with any other crime, the prosecution must prove each element of the crime (deviant act, lack of consent) beyond a reasonable doubt. “Beyond a reasonable doubt” is not “possible”; it is not “more likely than not”. It is a pretty damn high standard and one that is nearly impossible to prove in “he said, she said” cases.
Unfortunately, the trend is many of these cases, unlike robberies or burglaries, is to sweep the prosecution’s evidentiary burden under the rug.
The situation in quasi-judicial academic proceedings, is much much worse, where accused men often instead have to prove their own innocence without assistance of counsel, based on merely another’s claim. Procedural protections — including the burden of proof, evidentiary burdens, and the confrontation clause — exist for a reason. Sexual assault cases, despite their impact, are not and should not be treated differently than any other crime. In fact, sexual assault victims have an inordinate amount of protection from having their other actions questioned, at least under the Federal Rules of evidence and FRE-based state evidence codes.
April 12th, 2008 at 4:26 pm
Lowell, I made no assertions about the fairness or efficacy of the criminal or civil processes available in rape and sexual assault cases. We likely took very similar Intro to Law and Legal Reasoning classes, so there is no need to parse procedural issues or theory here. Further, since there was a conviction in this case, the prosecution obviously met their burden of proof.
Also, both of these cases went through criminal proceedings, not a college disciplinary proceeding. One resulted in conviction, the other acquittal. I’m sure your law school background has taught you that, whatever the procedural result, conviction or acquittal is not always tantamount to truth or justice.
The larger point was that, whatever the successes or failings of the criminal justice system or College response after the fact, there is a measure of individual responsibility that we all could take as a matter of prevention.
April 12th, 2008 at 5:00 pm
Was there a conviction or was there a plea bargaining (and then judicial action based on the plea)?
In any case, the point of having responsibilities for ourselves and for those we should perceive as vulnerable is really important, regardless of whether there is or might be legal liability attached. And the other side of that is the importance of compassion toward those who make terrible mistakes and those who are hurt by those mistakes.
Yesterday I heard a horrifying statistic on NPR: fully one percent of all American adults are currently incarcerated, and that percentage is expected to grow even though the average age of Americans is expected to increase over the next decade. We need to stand by these people.
April 12th, 2008 at 7:54 pm
On the mean streets there are a disproportionate number of convicted and unconvicted law breakers and, if one is to be self-protective, little room for compassion toward them.
April 13th, 2008 at 1:52 pm
Larry, it actually used to be even worse. Back before One Flew Over the Cuckoo’s Nest became the view of mental institutions and the changes in the law made it harder to commit people against their will, the combined institution + prison population was about 33% higher per capita than the prison population is today.
April 13th, 2008 at 2:47 pm
Loweeel, you are right, but I can’t rejoice. The mentally ill (including vast numbers of veterans to whom we particularly owe better) are now on the streets, all too often not receiving the treatment they need (and that their forerunners weren’t receiving when they were locked up, either). Aside from that population, the number of people who are incarcerated in prisons per capita must have soared.
The only good things I can think about this are 1) a general point: I sense that far fewer people are locked up because they are different, not mentally ill but just plain different as in not fitting into a fairly narrow norm of behavior and 2) it is good that people don’t just vanish away into hell holes for the mentally ill the way they once did and, as Ephs, we should be proud of the contribution Fredrick Wiseman’s “Titicut Follies” made to exposing just what hell holes many of those institutions were.
April 13th, 2008 at 5:56 pm
Lowell,
That has to be one of the most bizarre statistics I’ve ever heard. Mental health patients and incarcerated individuals should not be combines so simply into a single statisitcs.
The percentage of incarcerated Americans has grown dramatically because of reasons that have absolutely nothing to do with mental health policies in the US.
April 14th, 2008 at 2:26 am
Rory - Lowell is bringing up a common point of discussion in criminal justice circles. You do not know what you are talking about.
The implications of the theory may not all be true - and if you really want to get into it, it is fair to ask him for a link or an explanation - but you sound ignorant when you so casually and clearly without an inkling of knowledge about the literature and debates he is referring to dismiss something that is a major and current topic amongst criminologists.
April 14th, 2008 at 9:12 am
Vermando,
I assume you are talking about the prison and mental health statistics. I don’t really care, honestly.
The statistic is, on its face, a bizarre combination of two not necessarily linked statistics. Connecting them would require a lot more work than just noting the rates at two discrete times like Lowell does. If he can throw it out there so simply, I can respond equally simply–further, all he threw out was a statistic, and one that on its face is a weird combination (and tweaked to be its most damning, most likely. I’ll bet the 33% figure comes from its highest point in the 1950s). Trust me, he does the same to things sociologists debate all the time.
In fact, the simple graph: http://knitnut.net/wp-content/incarcerationrate.jpg belies that statistic point blank.
Actually, the author of the paper has his own graph: http://volokh.com/posts/1204227094.shtml. That graph is quite telling–for ten years, those formerly incarcerated people did fine. Then, they suddenly started getting locked up in the 80s and it really skyrocketed in the late 80s and early 90s.
There’s even more! Connecting the two changes assumes that psychiatry hasn’t improved its treatment abilities (highly unlikely).
Or, it could be connected to the punitive nature of the war on drugs that started around the same time as the increase in the incarceration rate. Take your pick. I’ll go with the more proximite cause, personally.
PLUS, if you consider the changing racialization of the prison population, that only further brings the statistic into further doubt. Or do you posit that mental institutions would have become heavily black and hispanic in mirror of the prisons?
It’s a bizarre statistic. I’ll stand by that, whether or not you want to listen to me as i’m outside “criminal justice circles”.