The Case For Damages For Abortion

At a town hall on March 30, Republican presidential candidate Donald Trump said that if abortion is outlawed, then women who still have abortions should face “some form of punishment”, though he did not elaborate upon what that might be. Outcry from both anti-abortion and pro-abortion activists led him to walk back his statement, saying,

“If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman. The woman is a victim in this case as is the life in her womb. My position has not changed — like Ronald Reagan, I am pro-life with exceptions.”

But is there a form of punishment for the woman that is compatible with libertarian principles? Let us examine this from both a criminal and a civil perspective.

The act of abortion involves removing a fetus from a woman’s uterus and killing it. The reason that most people have difficulty in figuring out the morality of this is that it weighs fundamental rights against each other: the woman’s right to liberty and property in her body versus the fetus’ right to liberty and property in its body. But before the point at which the fetus is viable outside the uterus, the only way the fetus can keep itself alive is to rely upon the woman for sustenance. The rights to liberty and property cannot be exercised without exercising the right to life, and that which is dependent cannot supersede that upon which it is dependent. Thus, the fetus’ right to life overrules the woman’s rights to liberty and property. Therefore, the logical position is to be pro-life until the fetus is viable. After the fetus is viable, the woman may choose to evict it but not to kill it.

Of course, there are some special cases where this calculus is altered and an abortion is clearly justifiable. If a woman’s life is in imminent danger and the fetus is not yet viable, then there may be a choice between aborting a fetus to save the mother and letting both die. In such a case, the fetus is out of luck and the abortion should proceed to preserve what life can be preserved. A birth defect or other illness which causes the fetus not to have the potential to become a sentient being (e.g. anencephaly) also legitimizes an abortion, as carrying the pregnancy to term will accomplish nothing and fail to produce a being with self-ownership. But aside from these circumstances, a fertilized egg which implants into the uterus has the potential to become a sentient being. (Implantation is a better starting point for when life begins than conception because at least half of fertilized eggs do not implant in the uterus, but instead leave the uterus as menstruation does.)

When none of the above special cases apply, killing a fetus is unjustifiable. Therefore, stopping someone from killing a fetus is justifiable, as is applying some sanction to someone who has killed a fetus. If an abortion is performed against the woman’s wishes, then the performer is clearly a criminal against both the mother’s body and the fetus’ life. But if an abortion is performed at the woman’s request, then she bears some vicarious responsibility for hiring the abortion provider to act as her agent. But how may someone be stopped from killing a fetus? To whom are the people complicit in the abortion responsible? What kind of criminal sanction or civil restitution is just? These are not easy questions, but let us attempt to answer them.

Using force to protect a fetus from being aborted must be done carefully; otherwise, such an effort may cause the very problem it is intended to prevent, as well as aggress against innocent bystanders. Such an effort would have to be directed solely against those who perform abortions and never against the women receiving abortions. This will probably always be difficult, if not impossible, so let us consider the matters of responsibility and restitution once an abortion is performed.

In all cases where killing a fetus is unjustifiable, the criminal liability for destroying a potential sentient being is upon the abortion provider. While there is some vicarious responsibility on the person who hires the abortion provider (usually the mother), the general rule is that there is no vicarious liability in criminal law. This is because a crime is composed of both an actus reus and a mens rea, and the mother has the latter but not the former. As such, the mother’s responsibility is best handled civilly.

The responsibility for restitution depends upon what was negotiated between the mother and father of the fetus. The default condition, which should apply when no other explicit agreement was made between the couple, is that agreeing to engage in an act which may result in pregnancy creates an obligation to be responsible for the new potential sentient being which may be created. One may assert a preference that a pregnancy not occur, and one may act upon that preference by using contraceptive measures, but the only guaranteed method of contraception is abstinence. If an abortion is performed, then the responsibility for the new potential sentient being has been shirked, and its heirs, if any, are due restitution. A fetus has only its parents for heirs, and restitution for an act of aggression cannot be due to a person who is complicit in the act. Thus, the restitution must be due to the father of the fetus, and only in a case where he did not consent to the abortion, as this would make him just as culpable as the mother. If the couple did make an explicit agreement to terminate any pregnancy resulting from their sexual activity, then there is an injustice against the fetus, but no restitution for it because there is no one who can receive said restitution.

Finally, let us discuss what sort of restitution may be appropriate. If a mother aborts a fetus against the father’s wishes, then he is deprived of offspring that he would otherwise enjoy. But to compel specific performance in terms of forcing the woman to bear the aborted fetus’ father a child would legitimize both rape and slavery. This makes specific performance inappropriate in the circumstances of the case. While damages cannot adequately compensate a father for the deprivation of offspring, a monetary judgment would have to suffice, in an amount which is best determined by specialists in such cases.

A Glossary of Social Justice Warrior Terminology

The use of language by social justice warriors frequently departs from both the dictionary definitions and the common understanding of words by most of the general population. As such, a guide to social justice warrior speech may be helpful to the layperson, along with commentary about how their uses of words relate to reality. This will take the form of an informal and potentially humorous glossary, which will not be exhaustive due to some terms being understood in the same manner by social justice warriors and the layperson, and due to the continual invention of new terms. This glossary will focus on how such terms are used in practice rather than how social justice warriors might define them in theory.

Ableism
(noun): any criticism or negative sentiment that affects people with disabilities, regardless of validity.
Ablesplaining
(verb): condesplaining by a able-bodied person to a disabled person. See Condesplaining
AFAB/AMAB
(abbreviation): assigned female/male at birth. This tends to be a statement of biological reality concerning people whose brains do not conform to said reality.
Ageism
(noun): any criticism or negative sentiment that affects young or old people, regardless of validity.
Agesplaining
(verb): condesplaining to a person of a different age. See Condesplaining
Agender
(adjective): a person who identifies with no gender. Usually (but not always) a denial of biological reality.
Anti-Semitism
(noun): any criticism or negative sentiment that affects Jewish people, regardless of validity.
Appropriation
(noun): the use of parts of a culture by someone who does not identify as a person from that culture. Although appropriation has been responsible for the spread of new and better ideas and technology throughout the world, social justice warriors view appropriation as problematic.
Bigender
(adjective): a person who identifies as a mixture of two genders. Usually (but not always) a denial of biological reality. See Intersex
Bigotry
1. (noun): any criticism or negative sentiment that affects a group which is said to lack privilege, regardless of validity. See Ableism, Ageism, Homophobia, Racism, Sexism, Transphobia.
2. (noun): a combination of prejudice and power.
Brocialism
(noun): the belief that socialism will result in gender equality.
CAFAB/CAMAB
(abbreviation): coercively assigned female/male at birth. A term used by social justice warriors for an intersex child who is assigned a gender by parents and/or doctors.
Cisethnic
(adjective): a person who identifies with the ethnicity indicated by their externally observable features. This is usually a sign of a healthy mind.
Cisgender
(adjective): a person who identifies with the gender indicated by their externally observable features. This is usually a sign of a healthy mind.
Cisplaining
(verb): condesplaining by a cisgendered person to a transgendered person. See Condesplaining
Condesplaining
(verb): the act of a person said to be privileged explaining something to a person said to be oppressed in a manner believed to be condescending. In practice, there need not be anything inappropriate or condescending about said explanation.
Consent
(verb): to agree to participate in an activity, especially activity of a sexual nature. Consent cannot be given when someone is intoxicated, unconscious, or has been threatened or manipulated into compliance, but social justice warriors only recognize this if a female is in such a condition.
Content Warning
(noun): an alternative to trigger warnings which was created because some people complained that a trigger warning is itself triggering. See Trigger Warning and Triggering
Dangerous
(adjective): See Problematic
Derail
(verb): to divert a discussion from its intended topic. This is frequently done by social justice warriors through a variety of means, including accusations of bigotry, unchecked privilege, etc.
Discrimination
(noun): the expression of any less-than-favorable preference toward a person or group believed to be less privileged or more oppressed than oneself, regardless of validity.
Econosplaining
(verb): condesplaining by a wealthier person to a poorer person. See Condesplaining
Essentialism
(noun): the idea that people, objects, and ideas can be identified based on externally observable features. Although this is empirically true, social justice warriors consider this idea to be problematic.
Ethnocentrism
(noun): the idea that one’s own culture is superior to others. This is viewed negatively by social justice warriors, even if it is factually justified.
FAAB
(abbreviation): See AFAB
Feminism
(noun): the idea that women should have the same rights and privileges as men without having the same responsibilities and drawbacks.
Gender binary
(noun): the idea that there are only two genders; male and female. This is viewed as problematic by social justice warriors, despite being a biological truth (with the notable exception of intersex people).
Gender equality
(noun): the belief that people should receive equal treatment and not be discriminated against on the basis of gender. Frequently accompanied by a denial of inherent biological differences between the genders.
Gender identity
(noun): a person’s internal sense of gender. This may or may not be in alignment with biological reality.
Genderfluid
(noun): a gender identity that changes over time. No biological basis for such an identity exists in humans.
Genderqueer
(noun): an umbrella term for gender identities other than male and female. See Third gender
Hate crime
(noun): a crime said to be motivated by bigotry against some aspect of the identity of the victim, such as race, religion, sexual orientation, gender, or disability. Most social justice warriors deny the possibility of hate crimes against people who are said to be privileged.
Heterosplaining
(verb): Condesplaining by a heterosexual person to an LGBT person. See Condesplaining
Hijra
(adjective): see Third gender
Homophobia
(noun): any criticism or negative sentiment that affects homosexuals, regardless of validity. Note: Most social justice warriors deny the possibility of bigotry against heterosexuals, due to their belief that bigotry is a combination of prejudice and power.
Internalized oppression
(noun): a term used to denounce a member of a group said to be oppressed who deviates from social justice ideology. Variants include internalized racism, internalized misogyny, internalized homophobia, etc.
Internalized superiority
(noun): a term used to denounce a member of a group said to be privileged who deviates from social justice ideology.
Intersectionality
(noun): the social justice warrior method for analyzing the various privileges or oppressions that a person may experience. This creates the progressive stack.
Intersex
(adjective): a person who is born with genitals which are not male or female, but something in between. While a legitimate concern, social justice warriors spend relatively little time addressing it.
Kyriarchy
(noun): see Intersectionality
MAAB
(abbreviation): See AMAB
Manarchism
(noun): the belief that social anarchism will result in gender equality.
Mansplaining
(verb): condesplaining by a man to a woman. See Condesplaining
Men’s rights activist (MRA)
(noun): any man who rejects social justice dogma, especially of the feminist variety.
Microaggression
(noun): any activity that makes a social justice warrior uncomfortable. In reality, there is no such thing as a microaggression because the law of excluded middle requires that an act be either aggressive or non-aggressive.
Misogyny
(noun): any criticism or negative sentiment that affects females, regardless of validity. Note: Most social justice warriors deny the possibility of sexism against men, due to their belief that bigotry is a combination of prejudice and power.
Neutrois
(adjective): See Agender
NTsplaining
(verb): condesplaining by a neurotypical person to a neurodivergent person. See Condesplaining
Oppression
1. (noun): discrimination at the group or societal level. See Discrimination
2. (noun): see Microaggression
Other
1. (noun): the idea that other people and groups are distinct beings different from oneself, even if they are not believed to be inferior.
2. (adjective): a person or group recognized as distinct from oneself.
3. (verb): to place another person or group into the position of an Other. This is generally a useful way of dealing with social justice warriors, as well as some of the more delusional types of people mentioned in this glossary.
Otherkin
(adjective): a person who self-identifies as a non-human. Otherkin are either one of the most delusional types of people given consideration in social justice ideology or trolls who are faking it to make fun of social justice warriors.
Patriarchy
(noun): a system of male dominance that suppresses non-masculine traits and behaviors. This is considered to be problematic by social justice warriors, even if such a system is formed voluntarily and proves more successful than other forms of social organization.
Policing
(verb): to reprimand a person who is not acting in accordance with social justice ideology, regardless of validity.
Polysexual
(adjective): a synonym for bisexual used by people who reject the gender binary.
Power
1. (noun): a person’s perception of one’s ability to influence outcomes to meet one’s needs and wants.
2. (noun): the ability to make decisions that affect another person
3. (noun): control of societal institutions
Prejudice plus power
(phrase): the social justice warrior standard for bigotry. This leads them to deny possibilities such as anti-white racism, misandry, heterophobia, cisphobia, and other bigotry against groups said to be privileged.
Pride
(noun): the celebration of a non-cisgendered identity or non-heterosexual orientation, despite the fact that having such an identity or orientation is innate and not an accomplishment.
Privilege
(noun): the sum of the advantages (or lack of disadvantages) that a person or group has, regardless of whether those advantages are innate, legitimately earned, or illegitimately taken.
Privsplaining
(verb): See Condesplaining
Problematic
(adjective): that which is at odds with progressive or social justice ideology, regardless of truth value. This glossary would be considered highly problematic.
Progressive stack
(noun): an arbitrary and capricious method used to decide how privileged a person is relative to others. Often referred to by non-SJWs as the Oppression Olympics. See Intersectionality
Questioning
(adjective): a person who is unsure of one’s gender identity or sexual orientation.
Racism
(noun): any criticism or negative sentiment that affects minority racial groups, regardless of validity. Note: Most social justice warriors deny the possibility of racism against white people, due to their belief that bigotry is a combination of prejudice and power.
Rape culture
(noun): the belief that brutally victimizing women while they scream for help is considered to be socially acceptable.
Reactionary
(adjective): See Problematic
Safe space
(noun): a location where emotionally unstable and/or immature people who are upset may gather to receive comfort and counseling for the traumatic experience of being exposed to a mere difference of opinion.
Self-identification
(noun): the idea that one can choose one’s identity, regardless of empirical facts.
Sexism
(noun): see Feminism. Note: Most social justice warriors deny the possibility of sexism against men, due to their belief that bigotry is a combination of prejudice and power.
Shaming
(verb): to suggest that degenerate behavior has negative consequences and should therefore be discouraged. Social justice warriors consider this to be problematic.
Shitlord
(noun): a person who engages in problematic speech and/or behavior.
Sizesplaining
(verb): condesplaining by a “normal-sized” person to a person widely perceived to be too small or large. See Condesplaining
Social construct
(noun): an idea created and developed in society. While a valid concept, social justice warriors misuse this concept to reject a priori truths.
Stereotype
(noun): a fixed image about a person or group that collectivizes them and denies their individuality. Social justice warriors tend to reject these unless they concern people said to be privileged, but they tend to ignore the fact that stereotypes frequently have a basis in reality.
Straightsplaining
(verb): See Heterosplaining
SWERF
(abbreviation): sex-worker exclusionary radical feminism. Some social justice warriors meet this description, while others find the concept to be problematic.
SWETERF
(abbreviation): See SWERF and TERF
TERF
(abbreviation): trans-exclusionary radical feminism. Some social justice warriors meet this description, while others find the concept to be problematic.
Thinsplaining
(verb): See Sizesplaining
Third gender
(adjective): a distinct gender that is neither male nor female. No biological basis for such an identity exists in humans.
Transabled
(adjective): a person who does not identify with the ability/disability indicated by their externally observable features. This is usually a sign of an unhealthy mind, and may lead a person to alter one’s externally observable features in an effort to make them resemble that of one’s ability identity.
Transethnic
(adjective): a person who does not identify with the ethnicity indicated by their externally observable features. This is usually a sign of an unhealthy mind, and may lead a person to alter one’s externally observable features in an effort to make them resemble that of one’s ethnic identity.
Transgender
(adjective): a person who does not identify with the gender indicated by their externally observable features. This is usually a sign of an unhealthy mind, and may lead a person to alter one’s externally observable features in an effort to make them resemble that of one’s gender identity.
Transphobia
(noun): any criticism or negative sentiment that affects transgender people, regardless of validity. Note: Most social justice warriors deny the possibility of bigotry against cisgendered people, due to their belief that bigotry is a combination of prejudice and power.
Trigger Warning
(noun): an advisory that following content may upset emotionally unstable and/or immature people.
Triggering
1. (adjective): content may upset emotionally unstable and/or immature people.
2. (verb): to engage in communication which may upset emotionally unstable and/or immature people.
Two-spirit
(noun): see Genderfluid
Verbal violence
(noun): the nonsensical idea that speaking words can inflict physical harm upon someone.
Victim blaming
(verb): to suggest that people have some responsibility for their own well-being and self-defense.
Whitesplaining
(verb): condesplaining by a white person to a person of color. See Condesplaining
Xenophobia
(noun): any criticism or negative sentiment that affects people who are different from oneself, regardless of validity.

The Not-So-Current Year: 2015 In Review

Though the specific demarcation of the passage from one year into another is a rather arbitrary social construct, it does provide a useful annual period for self-examination and remembrance. Now that 2015 has entered the history books, let us take a look back at a year’s worth of essays and review the not-so-current year.

In December 2014, an assassination of two NYPD officers prompted many libertarians to signal hard against the use of force against agents of the state. I decided to argue the opposing case. The harassment of the Meitiv family by Child Protective Services prompted another such article. Julian Adorney resolved that good government police exist, and I responded by explaining why this is impossible. I used another NYPD incident to argue that when government agents and common criminals fight, we should pull for no one. When Tremaine Wilbourn killed a police officer during a traffic stop in Memphis, Tenn, I wrote a list of observations on the event which mostly follow the aforementioned articles.

Many libertarians praise decentralization, and rightly so. But it is neither good nor evil in and of itself. It can be used for good or evil ends, and I explored the latter.

On Burns night, I observed that a proper haggis was unavailable in the United States and found that as usual, the state is to blame. Staying on the subject of food, economically illiterate researchers blamed Walmart for causing obesity, and I explained why this is fallacious.

The 70th anniversary of the liberation of the Nazi death camp at Auschwitz gave cause to examine how such an atrocity could be carried out without the state. The answer, of course, is that it would be all but impossible.

Entering February, I allowed my cynicism to wax to the point of formalizing it as a razor. It could use more detailing and strengthening, which is a project for a later time. I used the razor to explain why the Obama administration might want to disarm elderly people.

Alleged Silk Road creator Ross Ulbricht was convicted on February 4 and sentenced on May 29. I made lists of observations on both of these occasions. Some people were none too happy with the state’s treatment of Ulbricht, and their displeasure got them in hot water. This occasion also merited a list of observations.

The movie American Sniper did well at the box office, but a metaphor therein was left incomplete. I decided to complete the analogy of sheep, sheepdogs, and wolves by adding farmers of human livestock to the mix.

A video by Stefan Molyneux about two different types of statists compared them to warriors and wizards. I made the case that countering the state requires libertarians to be both character classes at once.

Ron Paul made a video appearance at the International Students For Liberty Conference, but some attendees decided to interrupt this by reading an open letter to him which was filled with leftist entryist nonsense. I wrote an open letter against them which gained wide recognition and helped run some of the people involved out of libertarian circles. It remains one of my proudest moments as a writer.

At the end of February, Republicans tried to use brinkmanship to force spending cuts, which failed miserably due to their track record of caving at the last minute. I wrote a list of observations on the event.

On March 9, I published my most popular article to date, which is also one of my most shallow, choir-preaching works. The correlation between the two can be most depressing at times. At any rate, here are 25 statist propaganda phrases and some concise rebuttals.

Several commenters have told me that I am at my best when I provide a sound defense for an idea that most people find to be outrageous. I did this several times in 2015, defending the killing of innocent shields in certain circumstances, the proliferation of nuclear weapons, letting Iran develop a nuclear deterrent, and the replacement of democratic elections with jousts to the death.

I went on a rebuttal streak in the spring of 2015. President Obama proposed that voting be made mandatory, and I argued the case against this. Michael Eliot argued that a violent revolution is not the correct strategy for creating a free society, and that the use of methods such as seasteading will be more successful. I explained why this is false. Walter Block argued in favor of Rand Paul’s presidential campaign, and I demonstrated why he is not a good choice. Austin Petersen effectively made a case against libertarianism itself, and I rebutted it.

Paul Krugman delivered some rather standard talking points about public goods, and I showed why they are wrong. I revisited the subject later in the year.

Rolling Stone decided to go ahead with a completely false story about campus rape, and did nothing beyond wrist-slapping to those involved in creating and editing the story. They also defended the ideas behind the story, with which I took great issue. Another sex-related story occurred on April 21 when the head of the Drug Enforcement Administration resigned due to a prostitution scandal that occurred on her watch. I explained why we should not be surprised, and should actually expect more of such behavior. The purity spiral of campus feminism has grown to such an extent that even left-wing feminist professors are not immune. Rape accusation culture struck once more at Amherst College, and the victim took the university to court.

Baltimore police officers arrested Freddie Gray, who died one week later as a result of injuries sustained during the arrest. Riots ensued, and I wrote a list of observations on the event.

Charles Murray published a book detailing a novel strategy for fighting the regulatory state: overwhelm it with civil disobedience, create a legal fund to defend victims of regulation, and start treating government fines as an insurable hazard. I argued that this would fail, but that it needs to be tried anyway.

The prohibition of excessive bail and fines, as well as cruel and unusual punishment, is a much-revered part of the United States Constitution. I argued that it should not be.

Dylann Roof carried out a mass shooting at a black church in Charleston, and I wrote a list of observations on the event.

Late June is Supreme Court season, and they delivered at least two bad decisions in 2015. First, they ruled very narrowly in favor of raisin farmers, but left the rights-violating practice of eminent domain intact. Then, they crammed same-sex marriage down the throats of all Americans.

Litecoin exchange rates suddenly spiked in early July. I took an educated guess at why, but it ended up being pure speculation.

Turmoil in Greece threatened to boil over into a default or even a Grexit. I took a deep look into the situation and concluded that only anarchy can fix the problems there.

Two seemingly disparate stories concerning Planned Parenthood and the ongoing conflict in Ukraine had a common thread: there is no such thing as non-lethal aid to an organization that conducts lethal operations.

I wrote a three-part series about fascism and communism in America, as well as how a nation can be both. Although I lated discovered that Lawrence Britt does not appear to be a real person, I found the 14-point list of fascist characteristics to be sound, so I did not revise the article.

A problem which is frequently cited as a reason why we must have a state is the problem of pollution. I dealt with the issues of water ownership and pollution in order to show why the state cannot solve the problem of pollution.

In one of my more controversial articles, I argued that Vester Flanagan, the man who murdered a reporter and a cameraman in Roanoke, Va., was a model social justice warrior. Examiner decided to pull it for offending their audience, but you can find it here.

Everyone knows that the Libertarian Party is not exactly a bastion of excellent strategic thinkers. I decided to offer them help, and a response to my essay advocating an alternate strategy is also worth reading.

Liberty Mutual created a series of advertisements that air regularly in my area, and they are full of economic fallacies. They annoyed me enough to dedicate an article to debunking them.

Reservation scalping occurred at Disney World restaurants, which outraged many people. I applied Walter Block’s reasoning for defending ticket scalpers to argue against the outrage.

September 11 always brings about discussions on security. I argued that there can be no such thing; only temporary and imperfect protection from particular dangers.

The term ‘cuckservative’ arose from alt-right circles to describe those who are insufficiently conservative, selling out their constituents, and/or acting against their own rational self-interests. I created the term ‘cuckertarian‘ to describe a similar problem among libertarians. Another problem with the libertarian movement that I addressed is the embrace of hedonism when libertarianism only requires that we not use aggressive violence to stamp out non-violent degeneracy.

After several years in prison for tax resistance, Irwin Schiff passed away. I wrote a list of observations on the event that gained praise from his son Peter.

I belatedly refuted Matt Zwolinski’s six reasons for rejecting the non-aggression principle. I had meant to do so when he published his piece back in April 2013, but other work took precedence and it languished in development hell. Next, I dealt with Youliy Ninov’s arguments against anarcho-capitalism in what is my most verbose article to date.

Islamic terrorists attacked Beirut and Paris on November 12 and 13, respectively. I wrote a list of observations on the events.

Many libertarians misunderstand immigration and borders, so after several pro-open-borders articles published in quick succession by other authors, I tried to set them straight.

Black Friday is revered by most libertarians as a celebration of free-market capitalism. I explained why this reverence is somewhat misplaced.

Robert Dear attacked a Planned Parenthood facility in Colorado Springs, Colo., killing three people and wounding nine others. I made the case that although the use of force against Planned Parenthood is defensive in nature, it is frequently impractical and counterproductive.

The success of the Donald Trump presidential campaign, as well as growing support for it in libertarian and reactionary circles, led me to examine the phenomena. I concluded that Trumpism is not a libertarian form of reaction, though we may have some common enemies.

My final article of 2015 addressed the common phrase ‘give back to the community.’ In short, it is communist nonsense that must be rejected.

I began work on another case against a constitutional amendment, but it was not completed for publishing before the end of 2015, so it will appear first in next year’s review.

All in all, it was an interesting year full of occasions to make sharp libertarian arguments. May 2016 bring more of the same. Happy New Year!

How Rolling Stone Is Advancing Rape Accusation Culture

On Apr. 5, Rolling Stone issued a retraction of an article called “A Rape on Campus” written by Sabrina Rubin Erdely that was featured online and in the print magazine in November. The article alleged that members of Phi Kappa Psi fraternity gang raped a female student, referred to as Jackie in the story, on September 28, 2012. After an initial response of outrage in the media and the decision by UVA president Teresa Sullivan to suspend the activities of Greek organizations on campus, questions began to emerge about the details of the story as well as Erdely’s journalistic methods. Over the following weeks, an increasing number of discrepancies emerged, leading Rolling Stone to ask the Columbia Journalism School to review Erdely’s work. A police investigation that concluded in March found no evidence of wrongdoing at any fraternity house on the UVA campus.

While Rolling Stone‘s editors as well as Erdely have apologized, no one involved in the story is going to be fired. They have said that “[s]exual assault is a serious problem on college campuses, and it is important that rape victims feel comfortable stepping forward. It saddens us to think that their willingness to do so might be diminished by our failings.” There is certainly nothing wrong with this position, and many others in the media have pointed out the chilling effect that this incident may have on the reporting of authentic rape cases. But let us examine the flip side. This story amounts to a false rape accusation for which no one is being punished. The name of Greek organizations on the UVA campus in general and Phi Kappa Psi in particular have been dragged through the mud for no good reason, and this has resulted in damages for which legal action is pending. But defamation cases are difficult to pursue in cases like this, and monetary relief cannot restore a tarnished public reputation. Regardless of what ultimately becomes of the lawsuit, neither Jackie nor Erdely will face consequences nearly as severe as a convicted rapist or an organization that turns a blind eye to rape would. All of this has the unfortunate effect of telling future false rape accusers that neither they themselves nor those who spread their stories will face any serious punishment for doing so. There is a reinforcement effect as well; if fewer women who have been raped come forward because they believe that they will be demonized as liars, then the percentage of false rape accusations will necessarily rise.

Some people will try to argue that false rape accusations are not a serious problem. The Rolling Stone retraction links to a study claiming that such cases amount to between 2 percent and 10 percent of all rape accusations. This figure could be restated as 6 percent ± 4 percent, and a figure with an error bar almost as large as the figure itself indicates poor methodology, which is exactly what one finds when delving into the details. The sample size of 136 cases is rather small, the false accusations number of 8 is small enough to cause statistical concerns, and the sample was taken at one unnamed university in the Northeastern United States over a 10-year period (1998-2007) rather than in a multitude of places.

Even if there were no methodological problems with the study, its presentation is also problematic. One could infer from the way the media is using this study that rape accusations are provably true in 90 to 98 percent of cases. This is not a correct inference. The breakdown of the study is that 5.9 percent of cases were provably false, 35.3 percent of cases led to criminal charges and/or disciplinary action from the university, 44.9 percent of cases either lacked sufficient evidence, had an uncooperative accuser, or did not meet statutory definitions of rape, and 13.9 percent of cases could not be categorized due to a lack of information. If we apply the rate of false accusations in the cases that are provably true or false to the total number of cases, we get a total rate of false accusations of 5.9*100/(5.9+35.3)=14.3 percent.

There is also a logical case to be made for why false rape accusations are more prevalent than false accusations of other criminal activity. The vast majority of people believe that rape is a special kind of evil, second only to murder in the amount of psychological damage that it does to a victim. (This fact alone is sufficient to debunk the myth of rape culture, but when have radical feminists ever cared about facts?) It follows that a person who wishes to get attention or ruin another person’s reputation would most likely accuse that person of rape, as a murder accusation is much easier to disprove and other accusations are less serious. A false rape accusation is also more useful in certain situations than other false accusations, such as revenge against exes, getting rid of a current romantic partner, or covering up an extramarital affair. Finally, there are radical feminists who view such accusations as a legitimate way to attack men collectively.

To conclude, incidents like the recent debacle at Rolling Stone are not only counterproductive for dealing with the problem of rape, but move us toward a rape accusation culture where a woman can ruin the reputation of men or even send them to prison on baseless charges while suffering no penalty for doing so, all the while empowering the state at the expense of the individual.