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Sunday, July 27, 2014

Leiter on Rape and Sexual Assault in Illinois Law

Professor Peter Ludlow's anti-defamation case was dismissed recently, and Professor Brian Leiter is upset about it.  He says the case should have been a "slam dunk," and argues that the dismissal is most likely the result of bias on the part of the judge.  However, Professor Leiter's argument is not sound.  He hasn't even gotten the facts straight.  In response to an argument by Professor Heidi Lockwood, he says:

"Illinois defines rape as "criminal sexual assault" involving "sexual penetration"  . . . There was never an allegation of sexual penetration against Ludlow by the undergraduate student, so there was never an allegation of criminal sexual assault, i.e., rape."
If you follow the link, you will see that Illinois does not define "rape" as "criminal sexual assault."  The word "rape" does not appear anywhere on that page.  In fact, Illinois law does not define "rape" at all.

Professor Leiter says there is a basis for claiming Professor Ludlow was accused of sexual assault, but not rape. His reasoning is that "sexual assault" is not the same as "criminal sexual assault."  He defines "rape" as "criminal sexual assault" and he says this is not the same as "sexual assault."  However, Illinois law does not distinguish between any of these categories, so Leiter's claim is questionable.  He appeals to the fact that the defendants changed the wording in their news articles as support for his contention that there is a significant difference in meaning between "rape" and "sexual assault."  However, it is reasonable to think that the articles were changed upon request in order to avoid legal problems.  The changes are not an admission of wrong-doing and cannot be used to prove any difference between "sexual assault" and "rape."

Judge Flanagan observes that the terms "rape" and "sexual assault" are sometimes used synonymously in common language, and so the word "rape" helped give a reasonably accurate summary of the charges against Professor Ludlow. As she says, Merriam-Webster, which happens to be the dictionary Professor Ludlow brought to the table, lists these terms as synonyms.  Furthermore, I've also discovered that Illinois State University claims "rape" and "sexual assault" are synonymous.   Professor Leiter disagrees, but he seems to be relying exclusively on his intuitions.

Professor Leiter does have a point:  The term "rape" can have a stricter definition which can, in some people's minds, suggest a harsher crime.   (Update:  In her reply to Professor Leiter, Professor Lockwood claims that the stricter definition shouldn't have a harsher connotation.)  However, I cannot see how this is an easy or straight-forward point to adjudicate. It does not seem like a slam dunk case.  Perhaps Judge Flanagan was erring on the side of caution in the interests of protecting the freedom of the press.  If a person who is accused of X can successfully sue a media outlet because they think the wrong word was used to describe the accusation, even though the law does not distinguish between the terms and even though there is substantial evidence that people and institutions use the words interchangeably, then the power of the press will be severely limited.

Perhaps Judge Flanagan made some mistake in her reasoning, but that is not obvious to me.  What is obvious, I think, is that the accusation of bias is unfounded.

Update:  A couple points to add.  First, The Women's Center's page on Illinois law makes it hard to distinguish between "rape" and "sexual assault" at all.  Second, after looking at the Illinois criminal code of 2012, I have to wonder if Professor Ludlow might have been more properly accused of sexual abuse, and not sexual assault.

Second Update:  Professor Lockwood has replied to Professor Leiter, offering some socio-historical explanation for why we cannot and should not presume there is a relevant distinction between "sexual assault" and "rape."  Unfortunately, Professor Leiter's latest reply to Professor Lockwood (in an update to his original post) seems to have missed the point.  Professor Lockwood also makes the same point I do about the newspaper's correction not being an admission of wrongdoing, but Professor Leiter did not respond to that point.