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Rape apology on LCA mailing list

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TRIGGER WARNING This article or section, or pages it links to, contain information about sexual assault and/or violence which may be triggering to survivors.

The linux.conf.au 2011 conference had a chat mailing list for attendees. This list had considerable discussion of the Sexual and violent references and images in LCA 2011 Keynote incident.

Some of this discussion moved into general questioning of rape statistics and current definitions of rape. The context for use of rape statistics was that Jacinta Richardson used published statistics to estimate the proportion of LCA attendees who might be sexual assault survivors and perhaps thus particularly likely to be triggered by Mark Pesce’s use of violent and sexual imagery in his slides. ([1], later reposted on the Geek Feminism blog as Because sexual assault is more common than you think).

Theodore Ts'o made statements (full email archived here) in which he argued that categorising statuatory rape, child abuse, intimate partner abuse or rape without physical force with stranger rape of adult women with physical force is “hyperbolic and misleading”:

If you look at percentage of women reporting rape since age 18 (taking out the child abuse and statutory rape cases, which they also treat in detail), it becomes 1 in 10 (9.6%), and of those over 61.9% were at the hands of their intimate partner, as opposed to an acquaintance or stranger… in 66.9% of those cases, the perpetrator did not threaten to harm or kill the victim. (Which makes it no less a crime, of course, but people may have images of rape which involves a other physical injuries, by a stranger, in some dark and deserted place. The statistics simply don't bear that out.)…
over half of [a report’s] cases were ones where undergraduates were plied with alcohol, and did not otherwise involve using physical force or other forms of coercion. And if you asked the women involved, only 27% of the people categorized by Koss as being raped called it rape themselves. Also found in the Koss study, although not widely reported, was the statistic that of the women whom she classified as being raped (although 73% refused to self-classify the event as rape), 46% of them had subsequent sex with the reported assailant…
Please note, I am not diminishing what rape is, and or any particular person's experience. However, I *am* challenging the use of statistics that may be hyperbolic and misleading

Later in the thread Ts'o proposed a thought experiment (full email archived here) claiming to show that the (common law) legal doctrine mens rea means that rape cannot have taken place if both parties were drunken, and denying the ability of victims or researchers to identify rape if they cannot show mens rea:

Now, actually, the way the law works is that not only does the being raped be not able to give consent, but that the rapist has to know that the the other person was not able to give legal consent. So if both Alice and Bob were drunk, there's no rape that has taken place, in either direction. Whew!
So one of the problems with the Koss study is the women in question was only asked, did sex take place, and were you drunk and not able to give consent. She did not ask the question, did the other person legally know that the women was drunk. And given that the survey was asking undergraduates, and apparently on a campus where there was a lot of drinking and socializing going on, do you think that perhaps the numbers might be skewed by cases where both parties were drunk (and thus not legally able to know whether someone was legally able to give consent)? How many cases that might be, we won't know for sure, but it's certainly enough to call that survey flawed.

Responses Edit

The server archiving the mailing list this discussion took place on was taken down, so some of the first and fifth links below are broken. However, a new archive of the thread can be found here, and most of the links below point within that archive.

  • Matthew Garrett [2]: “I emailed Ted about this privately, suggesting that he may want to think about how he phrased this because he came across as amazingly insensitive. His reply was pretty much the same thing restated, so my conclusion is that he *is* amazingly insensitive.” Garrett goes on to reply point-by-point.
  • Jason White [3]: “None of [Ts'o’s points] does anything to challenge the finding that the reported incidents were not consensual, and hence amount to rape, whether the victims so classify it or not.”
  • Pia Waugh [4]: “No means no, regardless of gender or any other attribute, regardless of whether alcohol was involved. People are unquestionably raped in society, regardless of your insistence on questioning the apparent validty of some fringe cases, or your thought experiments, where consent may not have been quite so clear.”
  • Jason White on the legal issues [5]: “The usual requirement is that the accused knew that the victim did not consent, or was reckless as to whether the latter consented. Consent must be freely and voluntarily given. Indifference to the question of consent on the part of the accused may be sufficient to establish recklessness (this is a matter of case law in common law jurisdictions, and therefore the exact standard may vary to some extent).”
  • David Zanetti on future LCA attendance (link currently unavailable): "You appear to be an apologist for rapists and have the view 'she had it coming'. Such people I believe are a danger to the safety of others at the conference, and should be banned from ever attending. I certainly won't be attending any future LCA with anything less than the safety of *all* participants as the number one priority."
  • Linux Australia blog post: "Linux Australia would like to express its sincere regret that the discussion was less than respectful to all participants, and would like to apologise to those who were justifiably upset by its contents. Linux Australia would like to remind all mailing list subscribers that the mailing list is not a general forum, and while commentary on our policies and actions is welcome, harassment and intimidation of linux.conf.au attendees and Linux Australia members is definitely not. [...] Our goal is to create spaces that are known to be safe for all participants, and not forums for bullying or harassing behaviour."

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