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J A N U A R Y   1 9 9 9

  • Unwanted Sex
  • Mad-Cow Disease
  • Intellectual Property
  • Assessing Poverty
  • Editor's Note

    Unwanted Sex

    Stephen Schulhofer, in "Unwanted Sex" (October Atlantic), says, "The best available estimates suggest that each year ... thousands (probably hundreds of thousands) of college women face unwanted sexual demands from their professors." There is a deal of difference between "thousands" and "hundreds of thousands." Might I suggest that instead of "best available estimates," which implies some attempt at precision, he should have written "wild guesses"?

    The higher number, which suggests that at least 200,000 college students each and every year have sex demanded of them by their professors, is a grotesque distortion and a slander on all the hundreds of thousands of male teachers who have never done any such thing.

    David Latané
    Virginia Commonwealth University
    Richmond, Va.

    Stephen Schulhofer is dead right in pointing out the deficiencies of modern rape and sexual-assault law. Yet effecting the changes he advocates without somehow distinguishing encounters between people known to each other from those between strangers invites prosecutorial abuse.

    As it addresses sexual activity between total strangers, the current state of the law may have serious shortcomings, imposing on prosecutor and victim the heavy burden of showing force or refusal. But with sexual activity between people known to each other in some manner, and for some time, the current law affords protection against the emotional backlash, and possible appetite for revenge, of a failed relationship. With a relaxation of the elements of proof in all sexual-assault and rape cases, the way may become open for scorned partners to vent a hellish fury.

    Michael E. Zuller
    Great Neck, N.Y.

    Stephen Schulhofer suggests that we need to broaden the scope of the law regarding rape by embracing his notion of sexual autonomy, and then concedes that this will invariably criminalize relationships that don't necessarily warrant such action.

    He points out studies showing how women can manipulate a sexually charged environment, but later implies that these same women, who are sophisticated enough to send out ambiguous messages, are somehow incapable of discerning the same in others, and of dealing with the consequences if they are mistaken.

    Should men be held liable for their failure to properly interpret a woman's desires? If sex is unwanted yet nonetheless consummated, should a criminal prosecution be contemplated? My feeling is that juries would be unwilling to criminalize sex that was unwanted yet apparently consensual. A suggestion -- one that has recently arisen in the area of sexual harassment -- is to use tort law for redress.

    The advantage of using tort law is that it would shift the burden of proof toward the male while also lowering the threshold of proof that would be required in a criminal case. Women who feel that they have been victimized can try to recover damages in civil court. Juries and judges who may be reluctant to put people away for what may have been a reasonable mistake might be willing to remedy cases where the woman can show harm as the result of the invasion of her "sexual autonomy."

    Our criminal courts are having difficulty trying to determine when people are liable for their own behavior. Schulhofer's prescription would make the law's answer murkier. How can we teach a concept of rape with any clarity and efficacy if it becomes a catch-all phrase for a large percentage of sexual encounters?

    Neil Brown
    Princeton Junction, N.J.

    Stephen Schulhofer replies:

    Numerous studies estimate the incidence of unwanted sexual demands by women's professors and by their workplace supervisors, psychotherapists, and doctors. As detailed in my book Unwanted Sex, one survey (reported by the researchers Linda Rubin and Sherry Borgers) found that 15 percent of female undergraduates had been the target of unwanted sexual advances from a faculty member; at the graduate level unwelcome sexual pressure was even more frequent.

    With allowances for the possible imprecision of such surveys, it is reasonable (and conservative) to estimate that at least 10 percent of college women experience unwanted sexual pressure from a professor or an instructor. Since there are nearly seven million women in college, that estimate suggests that approximately 700,000 women face a faculty member's unwanted sexual demands at some point in their college experience, an incidence level of at least 175,000 a year. Comparable surveys suggest that roughly a million working women each year confront unwanted sexual demands from their supervisors, and every study of psychotherapists and physicians points to high rates of unwanted, highly damaging sexual contact between patients and those entrusted with their care.

    Precisely because these are encounters between acquaintances, we cannot content ourselves with Michael Zuller's proposal to reform only the rules applicable to stranger rape. Neil Brown rightly emphasizes that tort remedies are often preferable to criminal sanctions, and better professional regulation is another useful approach; my book discusses both options in detail.

    Mad-Cow Disease

    In "Could Mad-Cow Disease Happen Here?" (September Atlantic), Ellen Ruppel Shell may have the reader believe that where the U.S. Department of Agriculture is concerned, regulatory and surveillance actions have been very limited and were only recently implemented.

    In 1989 the USDA banned the importation of live ruminants and most ruminant products from the United Kingdom and other countries where bovine spongiform encephalopathy was diagnosed (the ban was subsequently expanded to include all of Europe). Since 1990 the USDA has conducted extensive educational outreach to veterinarians, cattle producers, laboratory diagnosticians, and others about the clinical signs of BSE. The department's active BSE surveillance also dates back to 1990. It was expanded in 1993 to include examination of brain tissue from "downer cows," and again in 1994 to incorporate new technology for testing brains for the abnormal form of the prion protein that is indicative of transmissible spongiform encephalopathies.

    Shell states that Europe prohibited rendered products of cow and sheep carcasses from being manufactured and labeled as feed for hogs, chickens, and other farm animals. To clarify: Europe prohibits the feeding of mammalian protein to ruminants. Its regulations, like the regulations of the Food and Drug Administration, do have a provision allowing the feeding of pig and poultry protein to ruminants under certain conditions. And furthermore, European legislation still allows the use of ruminant protein in feed for pigs and poultry.

    "Downer" is a slang term for any cow that cannot rise. Cows may be down for a number of reasons, such as broken bones, muscle or joint injuries, and metabolic disorders. With treatment many cattle recover. Shell mentions a common estimate of the number of downer cattle in the United States. We have attempted to research this subject in the past, and have determined that no one really has an accurate number, especially since many animals do get up. In cooperation with the American Association of Bovine Practitioners, we have developed a survey that has been distributed to their members in an attempt to obtain a better estimate of the number of downer cows, an explanation of why they go down, and information about how many recover.

    In her synopsis of the U.S. scrapie-control program, Shell states that the 1983 change to blood-line depopulation made no sense, because the disease spreads laterally. This is not a fair statement if evaluated against the knowledge of the times. Work done in the United Kingdom and observations made in the United States suggested strong blood-line ties. Scrapie was thought to be a genetic disease. With the discovery of the PrP gene, we now know that genetics plays a role in either incubation times or susceptibility but is not the sole cause of scrapie.

    Linda A. Detwiler
    U.S. Department of Agriculture
    Robbinsville, N.J.

    Ellen Ruppel Shell replies:

    Linda Detwiler raises many issues, most of which do not contradict what I said in the article and serve only to distract from the central issue. Although the USDA has certainly taken some action to prevent the incidence and spread of mad-cow disease in the United States, it has not taken what many experts consider to be the practical and necessary steps of outlawing the inclusion of neurological material from cows in the food supply and of forbidding the inclusion of infectious material in rendered products. As a result, Americans continue to be exposed to a potential risk.

    Intellectual Property

    "Who Will Own Your Next Good Idea?" (September Atlantic), an article about intellectual-property rights, should be especially careful in its citation of "borrowings." Charles Mann states that "Steve Jobs, of Apple Computer, saw [the windows-and-mouse interface] demonstrated on a tour of PARC [the Xerox Palo Alto Research Center] in 1979. He borrowed the idea, hired some of its creators, and went on to build the Macintosh." A number of books and articles have long since debunked that myth. I proposed the Macintosh project to Apple's management in March of 1979; designing started immediately; and the Macintosh became an official Apple project under my leadership in September of that year. Jobs's cited first visit to PARC didn't take place until months later.

  • From Atlantic Unbound:

  • Roundtable: "Life, Liberty, and ... the Pursuit of Copyright?", (September, 1998)
    John Perry Barlow, Lawrence Lessig, Mark Stefik, and Charles C. Mann debate the future of intellectual property in the information age.

  • Jef Raskin
    Pacifica, Calif.

    Charles Mann, like many others who write about "fair use," obfuscates an important distinction -- namely, between copying that is done in the traditional way he applauds toward the end of his article (with one author building upon earlier ones through quotation and intellectual borrowing), and copying that does nothing but multiply the number of copies that exist, which is what photocopying and, now, digital copying are. As Judge Jon O. Newman said in writing the court's opinion in the famous Texaco case, "Whatever social utility copying of this [latter] sort achieves, it is not concerned with creative authorship" in the way that the former, "transformative" type of copying is.

    Although the section of the copyright law that is devoted to "fair use" (Sec. 107) does give limited sanction to merely duplicative copying, it is a far different kind of copying, which has a much different role in contributing to the public good, than "transformative" copying, and people who engage in this debate over the value of more or less copyright protection would do well to keep this distinction in mind.

    Sanford G. Thatcher
    Penn State University Press
    University Park, Penn.

    Charles C. Mann replies:

    Jef Raskin is correct: he did lead the original Macintosh project. But after Steve Jobs went to PARC, he essentially ejected Mr. Raskin and radically changed the project's direction.

    Sanford Thatcher's distinction between "transformative" and "duplicative" copying is important. Alas, it is increasingly difficult to maintain. At a time when a few mouse clicks can copy entire songs, books, and movies, it is hard to figure out a system that allows people to copy small, permissible chunks of material for commercial use and whole works for private use while simultaneously blocking the reproduction of entire works for widespread use.

    Assessing Poverty

    In "The Hidden Side of the Clinton Economy" (October Atlantic), John E. Schwarz observes, "That workers take and keep jobs paying menial wages is generally a mark of an aggregate undersupply of employment." One consequence: "workers' real wage increases have failed even to keep up with improvements in their productivity."

    But there is another explanation for the troublingly slow growth of real income for people at the lower end of the scale -- an oversupply of low-skill workers, an important consequence of high levels of immigration, legal and illegal, by people with little education and few skills.

    The United States is among the most inequitable of the advanced democracies in income distribution. We should establish a high and rising standard of living for citizens as our principal economic goal, as Michael Porter argued in The Competitive Advantage of Nations. That will require a lot more effort in education and training, along with continuing upward pressure on the minimum wage. But it will also require a significant reduction in the flow of low-skill immigrants.

    Lawrence E. Harrison
    Vineyard Haven, Mass.

    John E. Schwarz replies:

    Lawrence Harrison is correct that a surplus of labor provides an element of the explanation. This surplus is due in part to immigration. An even larger cause, though, is the tidal wave of new workers who have entered the labor market over the past three decades or so, from the crowded Baby Boom generation and then from the children of that generation, the effect of which has been to double the size of the labor force, with a net addition of almost 70 million new workers since 1960. Still another important ingredient of the poor jobs picture has been the progressive weakening of organized labor. Thus most American workers -- not just low-income workers -- have seen their real wages stagnate over the past quarter century and fall significantly behind the gains in their productivity.

    Editor's Note

    Several lines in the introductory material for Jack Kerouac's letters ("The Kerouac Papers," November Atlantic) contained factual information gathered by Ann Charters; owing to an editing error, the source was not acknowledged. The second volume of Charters's annotated edition of Kerouac's letters is in preparation. Several of the letters that appeared in The Atlantic will be included in that volume.

    Copyright © 1999 by The Atlantic Monthly. All rights reserved.
    The Atlantic Monthly; January 1999; Letters; Volume 283, No. 1; pages 8-11.

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