Professor Peter Ludlow's anti-defamation case was dismissed recently, and Professor Brian Leiter is upset about it. He says the case should have been a "slam dunk," and argues that the dismissal is most likely the result of bias on the part of the judge. However, Professor Leiter's argument is not sound. He hasn't even gotten the facts straight. He says:
"Illinois defines rape as "criminal sexual assault" involving "sexual penetration" . . . There was never an allegation of sexual penetration against Ludlow by the undergraduate student, so there was never an allegation of criminal sexual assault, i.e., rape."If you follow the link, you will see that Illinois does not define "rape" as "criminal sexual assault." The word "rape" does not appear anywhere on that page. In fact, Illinois law does not define "rape" at all.
Professor Leiter says there is a basis for claiming Professor Ludlow was accused of sexual assault, but not rape. That is questionable. He defines "rape" as "criminal sexual assault" and he says this is not the same as "sexual assault." However, Illinois law does not distinguish between any of these categories.
Professor Leiter mistakenly assumes that the defendants in Ludlow's anti-defamation case have tacitly acknowledged a significant difference in meaning between the two expressions because they changed their wording from "rape" to "sexual assault." That is not a warranted assumption. It is reasonable to think that the headline was changed upon request in order to avoid legal problems. The changing of the headlines is not an admission of wrong-doing..
Judge Flanagan observes that the terms "rape" and "sexual assault" are sometimes used synonymously in common language, and so the word "rape" helped give a reasonably accurate summary of the charges against Professor Ludlow. Professor Leiter disagrees, but he seems to be relying exclusively on his intuitions. There is reason to think Judge Flanagan knows what she is talking about. First, as she observes, there is the fact that Merriam-Webster, which happens to be the dictionary Professor Ludlow brought to the table, lists these terms as synonyms. Furthermore, Illinois State University also claims "rape" and "sexual assault" are synonymous. Professor Leiter does have a point: The term "rape" can have a stricter definition and can, in some people's minds, suggest a harsher crime. However, I cannot see how this is an easy or straight-forward point to adjudicate. It does not seem like a slam dunk case. Perhaps Judge Flanagan was erring on the side of caution in the interests of protecting the freedom of the press. If a person who is accused of X can successfully sue a media outlet because they think the wrong word was used to describe the accusation, even though the law does not distinguish between the terms and even though there is substantial evidence that people and institutions use the words interchangeably, then the power of the press will be severely limited.
Perhaps Judge Flanagan made some mistake in her reasoning, but that is not obvious to me. What is obvious, I think, is that the accusation of bias is unfounded.
Update: A couple points to add. First, The Women's Center's page on Illinois law makes it hard to distinguish between "rape" and "sexual assault" at all. Second, after looking at the Illinois criminal code of 2012, I have to wonder if Professor Ludlow might have been more properly accused of sexual abuse, and not sexual assault.
Second Update: Professor Heidi Lockwood has replied to Professor Leiter's argument, offering some socio-historical explanation for why we cannot and should not presume there is a relevant distinction between "sexual assault" and "rape." Unfortunately, Professor Leiter's latest reply to Professor Lockwood (in an update to his original post) seems to have missed the point. Professor Lockwood also makes the same point I do about the newspaper's correction not being an admission of wrongdoing. Professor Leiter did not respond to that point for some reason.