Since the great wave of feminist reforms first struck our peaceful shores thirty years ago, the goal of reformers has been to transform rape law to make it easier to charge and convict men and boys. These reforms typically are being made under the radar, without fanfare and often without any public debate. Most readers will assume it can’t get any worse than it is, but trust me, it can get worse. This article will chronicle some of the more dangerous proposals. Before we do that, it is well to summarize the history of these reforms to underscore the sexual grievance industry’s incredible track record for effecting change.
History of Rape Reforms Since the Dawn of the Feminist Revolution
Starting in the 1970s but especially in the 1980s and 1990s, our politicians kowtowed to the sexual grievance industry, which insisted that rape was grotesquely under-reported and that reforms were needed to do justice to countless women who supposedly suffered the brutal indignity of rape in silence. So they set to work to solve a problem that no one can prove even exists.
They adopted laws that eliminated the requirement of corroboration. Other crimes had no such requirement, they said, blinking at the fact that rape is not like other crimes. In many cases, the sole evidence of rape is precisely the same as the sole evidence of the most common act of love, performed innumerable times throughout the world every day. That act of love can be transmogrified into an alleged felony merely by claiming it was performed without consent. In practice, the elimination of corroboration essentially flipped the old law on its head: now, women don’t need any corroboration of their claims, but men and boys accused of rape are arrested, jailed, charged, and sometimes tried and convicted, solely on even the far-fetched say-so of any woman or girl if the men and boys can’t produce corroborating evidence of their innocence. It is literally guilty until proven innocent.
That wasn’t enough, they said. So we adopted rape shield laws that barred the admission in a rape trial of almost any evidence of the accuser’s prior sexual history with persons other than the accused. There is no evidence that rape shield laws have had more than minimal effect on the incidence of reports of acquaintance rape, but who cared? Rape shield laws too often have been abused, sometimes resulting in the conviction of an innocent man or boy. They have been used to exclude relevant evidence that the accuser has made prior false rape claims; that the accuser has used the same modus operandi to seduce other men; and that the accuser is a prostitute. In one famous case, a woman claimed she was tortured and sodomized; the man claimed the act was consensual. She denied ever expressing interest in sado-masochism, and he tried to introduce into evidence emails showing that she had expressed interest in sado-masochism. The email evidence was excluded, and her lie was permitted to go unrebutted.
That wasn’t enough, so we extended rape shield laws to civil actions in Federal Courts and in a growing number of state courts. The Advisory Committee that pushed the federal rule change expressed its hope that this protection against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping will “encourage victims to come forward.”
That wasn’t enough, they said. So we adopted laws that eliminated the requirements of force and resistance, and innocent men and boys who mistook the acquiescence of a woman as consent were sent to prison.
That wasn’t enough, they said. So we eliminated the mens rea requirement for rape. Historically, in a rape prosecution, the guilty defendant must have had the intention to have intercourse with a woman without her consent. Too stringent, said the sexual grievance industry, and the requirement was lightened or dropped altogether.
That wasn’t enough, they said. So we enacted laws in the UK and a handful of US states that legally forbade naming rape accusers. Moreover, in the US, news agencies and outlets have, by common consensus, agreed not to name rape accusers. The mere allegation of rape by the anonymous female, without any other evidence and no matter how far-fetched, often causes a man’s name to be splashed all over the newspaper, TV, radio, and Internet for the world to titillate to the details of his humiliation, destroying the man’s good name forever. In contrast, his accuser’s identity is guarded with all the tenacity that Clark Kent uses to shield Superman’s.
That wasn’t enough, they said. So we enacted laws that lengthened and even eliminated statutes of limitations for rape, but not for other crimes, and now, men are sometimes accused of, and charged with, alleged rapes that occurred 20, 30, 40 or more years after they supposedly occurred. This, of course, effectively forecloses the accused from mounting a meaningful defense because the evidence that might have proven them innocent — corroborating witnesses, after-the-fact letters suggesting consent, receipts showing he was actually out of town that day — has long disappeared.
That wasn’t enough, they said. So we enacted VAWA which, among many other things, pays the legal bills of alleged victims of sexual assault. VAWA pays none of the legal bills of men accused of rape, the presumptively innocent. Not even the falsely accused.
In the UK, it’s worse. The UK compensates alleged rape victims, even the ones not subjected to any physical force, no matter how slight their injuries. In contrast, the UK does not compensate men falsely accused of rape, no matter how egregious their harm. And, yes, sometimes false rape accusers are compensated.
That wasn’t enough, they said. So we enacted laws that exempted rape accusers from taking polygraph tests as a condition to proceeding with the investigation of their rape claims. But polygraphs are considered just fine — when they are used on men and boys accused of rape. If males refuse to submit to them, often even flimsy charges won’t be dropped. (Moreover, polygraphs are routinely used to insure that sex offenders, predominantly male, are adhering to the terms of their probation, and a refusal to take the polygraph will land the refusing party in jail. Worse yet, men and boys are subjected to penile plethysmograph testing, a sort of junk science polygraph of the penis, which typically requires the subjects to engage in self-arousal.)
That wasn’t enough, they said. So we enacted rules on college campuses making it easier and easier to expel males accused of sexual wrongdoing, with kangaroo courts that forbid confronting accusers and that employ inquisitorial, as opposed to adversarial, hearing processes that dispense with silly things like due process. Most colleges have lowered the burden of proof from “beyond a reasonable doubt” to “clear and convincing evidence” or a “preponderance of evidence” – just for charges of sexual assault or harassment. Many college campuses also adopted rules that forbid charging rape accusers with underage drinking in connection with their accusation, thus providing young women looking to evade an underage drinking charge with yet another motive to lie about rape.
That wasn’t enough, they said. So we enacted draconian Federal Rule of Evidence 413, and many states adopted similar laws. With this law, unlike any other criminal charge, including murder, robbery, even planning the World Trade Center attacks, a rape trial in federal court and in various states allows evidence of the defendant’s commission of prior offenses of sexual assault to show that he has a propensity for committing the crime at issue. This rule, which is unique in all of American jurisprudence and widely condemned by legal scholars, allows the jury to hear about the defendant’s prior acts, whether or not the defendant takes the stand. Even mere accusations of prior sexual offenses that occurred years before — and even criminal allegations for which the defendant was acquitted — are admissible if the alleged prior act is proven by just a preponderance of the evidence (far lower than “beyond a reasonable doubt”). This law was enacted specifically to nab more rapists – if you show the jury smoke, they’ll assume there must be fire even when there isn’t.
But surely all these massive reforms must have cut into underreporting of rape? Surely after decades of one reform cascading upon the next to encourage women to come forward, the women must be lining up, right?
Well, no, we are told. In fact, the sexual grievance industry insists that nothing has ever worked to curb alleged underreporting, and that it is supposedly still rampant. So, what do we to curb the problem? Why, we keep listening to the same people who’ve been taking our tax and tuition money, and who haven’t been able to solve the alleged problem.
Here’s the reality: it’s all nonsense. The sexual grievance industry needs rampant “underreporting” to perpetuate the rape cottage industry. So they manufacture it from whole cloth. There are powerful and entrenched financial interests at work that depend on rape hysteria. But they’re not finished.
I honestly can’t think of a single serious rape reform proposal that hasn’t eventually been enacted. The track record of the sexual grievance industry in getting their way is astounding. Here are some of the most dangerous proposals they want to enact:
THEY ARE NOT FINISHED:
Sex Will be a Presumed Crime When a Woman Cries Rape
Most readers think this is already the case, but trust me, it’s not. Few non-lawyers appreciate the importance of placing the burden of proof “beyond a reasonable doubt” on the prosecutor in criminal trials. Under present rape law, the prosecution must prove the essential elements of the crime, including the alleged victim’s non-consent, beyond a reasonable doubt. While far too many innocent men and boys are arrested and charged on flimsy false rape claims, most avoid lengthy prison terms simply because the prosecution bears that burden.
The Holy Grail of rape reform for feminist legal scholars is to flip the duty of proving consent to the accused. In Addressing Rape Reform in Law and Practice(2008), Professor Susan Caringellaof Western Michigan University’s Sociology Department, posits one such proposal. She says: “It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied.”
Among other things, Prof. Caringella lays out an elaborate legislative scheme to reverse the presumption of consent for rape. Most rapes are of the acquaintance variety, and consent often is the sole issue in dispute in a rape trial. Under this professor’s plan, if a woman alleges rape, non-consent would be presumed, and the man would be required to show by a preponderance of the evidence that the act was consensual. In most of those cases, there is no significant evidence aside from the testimony of the accuser and the accused. If the jury doesn’t know who to believe, as is often the case, the male will go to prison for many years. (And we have reported innumerable cases on False Rape Society where false rape accusers were found to be very credible.) The male will have lost the trial before it has begun.
This rule also means that the accused in a criminal trial will be forced to testify on his own behalf if he wants to stay out of prison – the same as in many countries ruled by dictators that have no regard for due process.
Think about the implications of this proposal: this feminist scholar wants to turn the most fundamental act of love, the act of procreation, that has been performed countless times every minute of every day of every year since the beginning of time the world over — into a presumed crime whenever a woman cries rape. This, of course, is a jurisprudence bordering on pathology.
Professor Michele Alexandre has an even more drastic plan. Currently, rape law adheres to a contract law standard of consent, where consent may manifested in any way that it actually occurs. In matters of romance, people toss formalities to the winds and typically express their desires in body language, smiles, nods, and caresses. There are, in fact, an infinite variety of ways people signal consent. Many, perhaps most, couples establish routines where unspoken conduct cues responses in a willing a partner. Currently, the law recognizes that whatever ways parties actually manifest consent is admissible evidence of it. That can’t possibly be unfair, right?
Well, wrong. Professor Michele Alexandre wants to junk all of that and severely limit the way consent may be legally manifested. She insists that the contract theory of consent treats women’s bodies as goods. She proposes that consent not be presumed; when a woman cries rape, the sex act is a presumed crime. The burden is on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .”
Moreover, she would junk all the non-verbal manifestations of assent: “. . . express consent entails verbal or written assent that leaves no doubt as to the victim’s agreement to the sexual interaction. . . .” (The other-worldly proposal about written assent is a dead giveaway that this professor is operating in a different universe than the typical bedroom where real couples are getting it on.)
She continues: Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent, and “withdrawal of consent can happen at any time during the sexual interaction.”
In this professor’s world, past sexual behavior – all those routines a couple has established over the course of months or years, all that private, unspoken language – none of it may be cited as evidence of present consent, and sex that occurs as a result of such flawed consent is rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009).
And it isn’t just the eggheads sitting in their Ivory Towers who buy into this inanity. Feminist superstar Jessica Valenti recently wrote this “. . . we should look to [Swedish rape laws] as a potential model for our own legislation. . . . In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn’t give it.”
If you think this is science fiction, you’d be wrong. It’s already happening in Washington state. Prof. Richard Klein describes it:
“The Washington State rape statute defining consent as requiring ‘actual words or conduct indicating freely given agreement to have sexual intercourse,’ was . . . silent as to where the burden lay as to the showing of consent. The defendant in State v. Camara claimed that judge’s charge to the jury improperly inferred that the burden was upon him. The Washington Supreme Court determined that there was ‘support in the history and purposes of rape law reform’ to conclude that the intent of the legislature was to shift the burden of proof to the defense. As a result of the Camara decision, Washington courts typically included the following instruction to juries in rape cases:
“’A person is not guilty if the sexual intercourse is consensual. ‘Consent’ means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual.’”
R. Klein, An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981 (2008).
Laws Forbidding Women Who Falsely Cry Rape From Being Charged
Shifting the burden of proving consent onto the male accused of rape isn’t the only thing on the sexual grievance industry’s wish-list. In the aftermath of the arrest of a woman in the UK for apparently falsely recanting a rape charge against an allegedly abusive partner, the government is establishing guidelines for charging women who recant. The director of public prosecutions, Keir Starmer, will need to approve all efforts to charge women who recant rape allegations and, Starmer said, “we will monitor them closely.” Specifically: “If the victim has decided to withdraw a rape allegation, we must explore the issues behind that, particularly if the victim is under pressure or frightened.”
In fact, this is a step on the road to achieving what prominent sexual grievance industry leaders have advocated: not charging rape liars with crimes. Lisa Longstaff of Women Against Rape has been quoted as saying the following: “Every prosecution [of false rape claims] puts women who have been raped off reporting it.” Another time, she called efforts to prosecute women for making false rape claims “a concerted witch-hunt.”
When a 17-year-old New Zealand girl was arrested after falsely claiming that she was dragged off by three youths and sexually assaulted at knifepoint, Dr. Kim McGregor, director of New Zealand’s Rape Prevention Education, was quoted regarding false rape complainants: “I would recommend some form of therapeutic intervention rather than charging them.” Dr. McGregor claims that “someone needed to be ‘pretty distressed’ to make a false allegation of sexual assault,” and that “very few women made false complaints as a form of revenge.”
Scrap the Adversarial System in Rape Cases in Favor of an Inquisition
Dr. Kim McGregor is also on record as favoring a change from the adversarial system that pits one person against another in terms of their credibility. She would like to see an inquisitorial form where both parties must answer questions in court. But, she has cautioned, the new inquisition for rape needs to be wary of male judges who would interview women and children because this may increase a victim’s anxiety. Don’t fear – she wouldn’t require all female judges in rape cases. She says that the anxiety could be avoided by the way the interviewer questions the victim. (Apparently sensitivity training would be required for male judges.)
The disciplinary procedures in many colleges already have scrapped the adversarial system when it comes to sex allegations.
Quasi-Quotas for Rape Arrests and Convictions
Two years ago in the UK, it was a pet project of then Labour’s deputy leader, Harriet Harman, to jack up the conviction rates for rape. Ms Harman floated a trial balloon that indicated she was toying with the idea of establishing targets for prosecutors and police to secure more convictions. This likely would have entailed police and prosecutors being required to furnish reports explaining the reasons the “targets” were not met, with all manner of negative consequence imaginable for “unsatisfactory” explanations; further, it is reasonable to suspect that police would be deprived of certain government funding in the event their responses were not “satisfactory.”
What effect would this have on innocent persons falsely accused of rape? Let’s furnish an example. In the United States, law enforcement agencies are notoriously afraid of losing highway dollars from the federal government if they fail to make a sufficient number of DUI arrests. A DUI expert famously contended on American television that innocent people who have nothing to drink are taken to jail after submitting to roadside field sobriety tests. The charges are later dropped, but presumably the incarceration is sufficient to help meet a quota.
Under this quasi-quota system, innocent men and boys not only would need to worry that a woman might decide to lie about their relationship, now they would also need to worry about whether the police department has hit its numbers in a given month when a woman falsely accuses them.
Harman is out of power, but my guess is we’ll be seeing this proposal again sometime. And given the sexual grievance industry’s track record, don’t be surprised if it becomes law.
