The Hofstra University gang rape that wasn't is the sped-up version of the Duke lacrosse rape. In the Duke scenario, a woman who'd been brought in to dance at a lacrosse party said she was the victim of a brutal 30-minute gang rape in the bathroom by three lacrosse players. Durham County District Attorney Mike Nifong got caught up in prosecuting the charges and defending the false accuser to the point of professional insanity. It took more than a year for the attorney general of North Carolina to dismiss all the charges against the lacrosse players and exonerate them in April 2007.
In the Hofstra case, the false charges unraveled in less than 72 hours. A week ago, an 18-year-old student told police she'd been gang raped in a bathroom on campus by five men she'd met at a party the police had broken up. The details were tabloid lurid: The student said she'd been tricked into a public men's room after one of the men stole her cell phone and then roped it to a toilet stall. By Wednesday, she'd admitted the sex was consensual. Her nonassailants were released after two nights in jail. She was suspended from school.
The weird lesson for men who have group sex in bathrooms: Film it on your cell phone. A five-minute video of the sex, which one of the men gave the cops, apparently persuaded the 18-year-old to take back her original story. At another moment, such a video might have gotten the guys in trouble for making porn and for sexting. But this time, it seems to have saved them.
But the deeper lesson, about date rape and the law, is much harder to pin down. Inevitably, the reactions to this case have broken down along the usual lines: On one side, raucous commenters say women can't be trusted when they have sex they're not proud of, and this proves it. On the other, women like Ann on Feministing says rape is a huge problem, and false accusations are a tiny one, and don't let this confuse you. We're also replaying the debate about whether to publish the names of women who make false accusations, after the names of the men have been splashed everywhere. (I'm erring on the side of privacy; there's a cogent argument in the other direction.) The arguments sound familiar because the problem of how to investigate and punish charges of date rape doesn't lend itself to simplicities. This is still where feminism collides with due process, when outrage butts up against the need for hard proof that's almost never available.
When Katie Roiphe published her book The Morning After in 1994 and attacked feminists for pumping up the idea of date rape as an after-the-fact excuse for bad sex, feminists like Katha Pollitt went after her reporting and her thesis. (Both Roiphe and Pollitt have written for DoubleX.) Rebecca Traister writes of her own college memories of the fracas, "I was furious at Roiphe, for sending a message to young women that all sex was OK sex, and that they were probably complicit in any violent sexual experiences they might have had." Then we went through the not-guilty verdict for Kobe Bryant in a he said/she said classic and the bogus charges against the Duke lacrosse players.
By now, traditional feminism has moved to a place where it's OK to air doubts about what date rape is and whether it can and should be prosecuted. Laura Sessions Stepp defined "gray rape" as "sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what." According to Stepp, 62 percent of female rape victims say they knew their assailant. For college women, she says, the stat is nine out of 10. Stepp was mildly chided for her "gray rape" ideas. But she also prompted recognition from women who had experienced confused drunken nights in their pasts that they couldn't really define—certainly not clearly enough to go to the police or any other authority about. Some feminist voices began to admit that, yes, the hookup culture and dating in general had blurred into a charcoal smear their own line between consenting and being sexually assaulted.
Feminists may be working out their own rape doctrines, but these are still likely to be useless for police and prosecutors. Nonconsensual sex between two people who know each other, whatever you call it, is a terribly awkward fit for our adversarial criminal justice system. It often comes down to two competing accounts, an accusation and a denial, and no physical evidence to definitively settle the dispute—no injuries, no one near enough to hear screams or calls for help. Add drugs or alcohol to the mix, and you can pretty much forget it.
Former prosecutor Linda Fairstein laid out the problem at a Cosmo panel our own Jessica Grose covered for Jezebel:
"There is no such thing as gray rape in the criminal justice system. …" If a woman is blackout drunk—ie she is actively engaging in behavior but not creating new memories—rape will be nearly impossible to prosecute. " 'I would never have said yes when I was sober,' " Fairstein said, "will not stand up in court." "Men are responsible," Fairstein continued. "They shouldn't be having sex with wasted women. Vomit should probably be a red flag... But teaching responsibility to young women is just as important. You don't have to drink eight drinks. You don't have to get blotto."
Let's agree that something disturbing happened to that 18-year-old woman at Hofstra. Something she feels awful about. Any good, right-thinking feminist, and any good girlfriend, would encourage her to talk to a counselor about her story. The problem is that by going to the police and then recanting, she fit into a new story that backfires on her and on feminism in an ugly way. She becomes the false accuser, and the boys, like the Duke boys, become the victims. In these moments of recantation, all we can talk about is how wrong she was. And then we lose the conversation that happens at a level beneath the law: about how these late-night moments in a random bathroom that everyone regrets can stop before they start. I'm not sure how you do that. But I wish this was where we'd go, now that we know that whatever happened to this girl, it wasn't the legal definition of rape.