Writing about rape without mentioning the financial incentives

A friend of Facebook cited this New Yorker magazine article: “St. Paul’s School and a New Definition of Rape,” by a professor at Harvard Law School. My friend’s intro: “A thoughtful piece, as always by Jeannie Suk. Taking her last paragraph especially to heart.” And, indeed, the piece is mostly about feelings that one might experience “in the heart.” But criminal justice is one of the largest industries in the United States and therefore people commenting on this issue may be influenced by their wallets. Judges get paychecks, lawyers get paychecks, prison workers get paychecks (larger than Harvard graduates in some states), officials and legislators get paychecks. Different definitions of “rape” may have a significant economic effect on the revenue for this industry because either a larger or smaller percentage of human activities will become potential sources of business. And of course there are oftentimes parallel civil lawsuits when there is an accusation of rape (see Missoula), giving yet more lawyers and judges an economic stake in how many human activities can be classified as “rape.”

Of course, economics may not be the only motivation for people in this debate but why assume that it is entirely irrelevant? Why assume that people in this industry would be just as happy not to be paid as to be paid?

Related: “The Lessons of Stanford’s Sex-Assault-Case Reversal,” a New York Times story on the administrative and legal processes following a year-long relationship between two over-18-year-olds who met (but did not have sex) on the Stanford campus. In a society where we worry about how it will be possible to fund college educations for young people from middle class families, there is no discussion about the resources spent paying university officials and attorneys to argue about sex between these two young people.

Also Related: A TED talk about divorce and its impact on children that was the subject of an email discussion. The speaker is a professor at UC Santa Barbara. Here were some comments:

  • “Parents’ conflict is more important than divorce per se” — doesn’t really make sense to consider these things independently. Divorce law often gives people good financial reasons to create conflict (e.g., to cement sole custody and the tax-free river of cash that goes with it). So the two cannot be separated.”
  • The whole talk has an enormous blindspot. She is in a state where a woman can go to a bar, have sex with a tipsy patron, and earn more money, after tax, than she gets paid by UCSB. Or where a person can marry three people in succession, stay with each one for 5-10 years, and end up collecting a share of the earnings of three other adults simultaneously. But there is no discussion of financial incentives and their effect on behavior.
  • The talk is irrelevant because the present and future of family court action is between biological parents who were never married. The U.S. doesn’t have “children of divorce”; it has “children of people who were never married”.
  • To look at an activity that generates $100 billion/year in cashflow and ignore the cashflow makes the analysis incomplete.



  1. Izzie L.

    November 9, 2015 @ 1:52 pm


    The irony in Labrie’s case was that his most serious conviction (the one that was a felony and put him on the sex offender’s list for life and in general will ruin his entire life) was unrelated to the actual sex he did or did not have with that girl. Rather it was for using computer services to “seduce, solicit, lure, or entice” a child. I.e., he texted/emailed/facebooked the arrangements for their date rather than speaking to her in person or over the phone (because that’s how young people communicate nowadays). If he had just passed notes to her in class or spoken to her in person, he would have only faced misdemeanor charges (statutory rape involving minors close in age).

    One of the greatest weapons that prosecutors have nowadays is that there are broad and vaguely worded statutes that cover just about every behavior. Even if you are a choir boy, the government could indict you ten times a day for one crime or another, but they normally don’t unless you have done something to draw their attention. (This is exactly how it works in totalitarian states, BTW.)

    Once they have you in their sights, they then indict you for a multitude of crimes – all they need to do is get ONE to stick. Even if some members of the jury are somewhat sympathetic with you, there will be others that want to convict and they all want to get home, so the easiest path out of the jury room is a compromise verdict – we will acquit on most of the charges but convict on one or two (not realizing that a conviction on even one felony count cooks your goose ).

    In this particular case, the vaguely worded statute was intended by the legislature to deal with dirty old men luring children to have sex but somehow it got applied to two teenagers texting each other for a hook-up. This is a “felony” that perhaps 1/3 of the teenagers in New Hampshire are guilty of.

  2. PJay

    November 9, 2015 @ 10:27 pm



    Could have been worse. He could have faced 130 years for sexual harassment.
    Lower your eyes when you approach a woman, worm!

  3. Izzie L.

    November 10, 2015 @ 8:09 am


    The article mentions something called “an advocacy bureaucracy “. The very words send a shiver up my spine. Even Orwell could not have conceived of such a vile organization, combining the zealotry of the ideologue with the plodding relentlessness of the paper pusher.

  4. PJay

    November 10, 2015 @ 3:57 pm


    It’s not dissimilar to Family Court, with its judge proxies and victim advocates who make it simple to convict a man on a minimal preponderance of evidence standard.

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