People accused of crimes have the right to a presumption of innocence…unless they are charged with rape, in which case they are guilty until proven innocent (and maybe still guilty even then).
The accused are guaranteed by the Bill of Rights, in the Sixth Amendment, to be able to confront, challenge, and cross-examine witnesses against them. But not so much in cases of rape, thanks to “rape shield” laws.
And when police recommend, and the news media promulgate said recommendations, that people lock their cars and keep their valuables out of sight, there is no firestorm of controversy, no insistence that it is wrong to steal regardless of whether valuables are visible or doors are unlocked. There is no chorus of accusations that this amounts to “blaming the victims” of property crimes. But when a newspaper columnist begins her column with the caveat “For starters, men need to know that ‘no means no’ and there’s no excuse for rape” but goes on to wonder “But as women, shouldn’t we take responsibility for our bodies by not becoming so intoxicated that we don’t know what is happening?” then the shit hits the fan, and it’s time to bring out the fainting couches.
A sample reaction tweet:
Never mind that this is a shitty, maybe even libelous, paraphrase of the column. Danders were got up, and the newspaper deleted the column from its site and apologized for printing it in the dead tree edition.
You’re right that rape shouldn’t be treated with a double standard. People who claim that someone raped them should be taken just as seriously as people who claim that someone robbed or beat or threatened to kill them: the accusations should be investigated and not dismissed.
Slacker: Jesus, dude, what happened to you? You’re covered in blood!
Me: I know! I was walking down the street, and John came up on me, punched the shit out of me, and stole my wallet!
Slacker: Bullshit. I presume John’s innocent.
Could the difference perhaps be due to history? When people didn’t just say that a rape victim who got drunk, or who walked down the"wrong street" or who wore too short a skirt wasn’t acting as prudently as she might have, but instead excused the rapist entirely because I don’t know, he couldn’t be expected to control himself when faced with a drunk woman or one wearing a short skirt.
Rape has a very different history than other crimes. NY used to require corroboration for every element of a rape - even if penetration and lack of consent could be proven, the identity of the perpetrator had to be corroborated. How many rapes take place in view of a witness? A New York Times article from 1972 explained it this way
precisely because the assault, robbery and theft did not have the same corroboration requirements as rape. (they couldn’t get someone on the assault if he was also charged with rape and the assault was a lesser included offense. An assault without an accompanying rape did not require corroboration.)
Has any victim of a robbery had the defendant use the fact that the victim has previously given money to people of his own free will as a defense? Happened all the time prior to rape shield laws - after all, if she consented have sex with this other guy or these two other guys, she must have also consented to the defendant.
Now, I’m not saying for a minute that women shouldn’t take steps to protect themselves - but the history is the reason for the outrage and that history doesn’t exist when it comes to telling people to lock their doors.
Just out of curiosity, how are you on the merits of this conversation, judicially speaking:
Slacker: Jesus, dude, what happened to you? You’re covered in blood!
Me: I know! I was walking down the street, and John came up on me, punched the shit out of me, and stole my wallet!
Slacker: Let’s go, boys, find John and string him up from the nearest lamppost!
Is there even a state where a drunk but still conscious woman cannot consent? I know in my state and others, intoxication only results in an inability to consent if the person is physically incapacitated or if the intoxication is not voluntary ( a drug slipped into a drink, for example). So a drunk woman who is capable of initiating an encounter or forcing herself on a man can still consent. I acknowledge that a unconscious person cannot commit a rape anymore than they can consent to sex.
Now she’s talking about people who did consent, but claim they were raped because they regret consenting. I’m sure it’s happened, but I have no reason to think it’s common.
Why not just tell him to protect himself by not having sex with an drunk, unconscious woman? Since nowhere in the article does she even mention men helping drunk women being accused of rape, I assume by “run the other direction” she actually means “don’t have sex with her”. The whole article has been about how women should protect themselves - why is unacceptable for her son to protect himself? I guess the history isn’t the only reason for the outrage.
Since you brought up the concern about her son in college, I didn’t even mention the fear that my son could face expulsion and all the life damage that goes with it, as the outcome of a star chamber hearing in which he does not have the opportunity to confront his accuser, and said accuser may only be accusing him of having sex with her despite her unenthusiastic consent. It’s madness, and I have heard multiple female podcast commentators express concern about this regarding their sons.
FFS, tepid or grudging consent is still consent, as long as it is not obtained through threats of violence or other forms of extortion. A schlubby guy, for instance, should not be liable to be expelled from college for accepting a pity fuck!
Colleges are put into the precarious position due to Title IX compliance to become investigators, judges and jury as it relates to sexual assault cases.
I recently heard of one case where students were at an off campus party in an apartment. A couple that met at the party, both of whom had been drinking, were making out on the couch, feeling each other up. No sex, no nudity.
Fast forward a few months. The dude gets called into the university’s Title IX office to cooperate with their investigation. He is asked about the events that happened at the party. He confirms that he remembers drinking and making out with the girl. Dude is suspended from school for 1 year, for sexual assault. No formal criminal charges are brought against the guy.
The girl has no recollection of the events, as she was too drunk. One of her friends told her the next day what happened. And she agreed that if he groped her that she wanted action taken.
Witnesses said that the “feeling up” was mutual. What about her sexual assault of him?
Thing is, from a physiological standpoint, “not remembering” is a totally different thing than “couldn’t consent”.
The notion that if you drink too much and don’t remember what you did then you didn’t consent to any of it is nonsensical. Alcohol can interfere with the transfer of short-term memory to long term memory, and so you can agree to things you don’t remember agreeing to. Whether you remember it or not is a separate issue.
The point is “so drunk you don’t remember” might mean you were so drunk you couldn’t consent, or it might not. It’s not the same thing. People can be completely lucid and yet not remember afterwards. You weren’t a different person just because you don’t remember what you did.
Of course many people are invested in the idea that the actions they take when drunk shouldn’t count. If I punch someone when drunk, I don’t mean it, I was drunk. That wasn’t me, I was drunk, it doesn’t count. So alcohol provides them with the psychological excuse they need to act out.
Fear doesn’t demonstrate a legitimate social problem.
How often is it the case that a person’s life actually is ruined by a star chamber making an unfair judgment of guilt in a case of sexual assault?
Is this a frequent occurrence?
This is complete nonsense demonstrating either an ignorance of the Sixth Amendment, rape shield laws, or both.
The Sixth Amendment guarantee to be confronted by the witnesses against you does not give the defense an unlimited scope and range of cross examination of said witnesses, a fact that is both common sense and established by Supreme Court rulings that happened quite a long time ago. “Rape shield” laws are statutory limitations on the evidence considered relevant to a trial, and it is perfectly reasonable to have such limitations. We already had limitations on such things, hearsay being an obvious example.
True. But Being accused of a crime can have very deleterious effects on you and these can continue even after being cleared. A person is looking at some lengthy period under detention awaiting and during trial, massive legal expenses, loss of job, and potential destruction of social and personal relationships.
That would be true however for any heinous crime.
And its not like its a new idea. At common law, the victims sexual history with persons other than the accused was not admissible (R v Riley [1887] 18 QBD 481 wherein it was said
[QUOTE=Lord Coledrige]
“…evidence to shew (sic) that the woman has previously had a connection with person other than the accused, when she has denied that fact must be rejected and there are very good reason’s for this rejection. It should in my view be reiterated that not only upon the ground that it would be unfair and a hardship to the woman, but also that it is not evidence which goes directly upon the point of the trial.”
[/QUOTE]
Furthermore, Drunken consent is still consent as far as the law is concerned. Intoxication on its own does not vitiate consent, otherwise aboit 90% of sexual encounters on the planet would be rape. It is when the intoxication is at such a level that a person no longer has capacity to make a judgement at all that it begins to matter. When the law says too drunk to consent, it means near passed out drunk not tipsy or with reduced inhibitions.
I just want to deal with this point. When women are given “advice” to avoid rape, it tends to fall into three categories:
So obvious as to be meaningless: this is “don’t get so drunk you pass out” and the like. People generally know that’s a bad idea. That’s like telling someone who just jumped in a pool with their cell phone in their pocket that you shouldn’t ever put your cell phone in your swim suit pocket. It’s pretty obvious, and giving things like this as “advice” deserves eye-rolls at best.
The next category of advice is the stuff that’s just useless–“don’t wear clothes that provoke rape” is the classic example. There’s zero evidence that what a woman wears has an effect on whether she’s raped or not. It’s just not a factor. Rapists rape when they have the opportunity and feel like they will get away with it–not because a glimpse of thigh made them snap.
The third category is stuff that is so limiting that it’s not practical. Conventional wisdom would make it “unwise” for a woman to travel for work either alone or with only male co-workers–or even accept a ride home from a man they don’t know “well”. It defines having more than 2-3 drinks, sipped slowly over the course of the evening, as unacceptably risky behavior. Think about it for a minute–if there was a college campus where a man could not safely go to a party, meet a couple other dudes, have a good time, and head with them to another party across campus, we’d consider that a crime-ridden environment. We wouldn’t shake our head and tut-tut and say it’s just the nature of the world. I live in a quiet suburban residential neighborhood, and women don’t walk/run alone after dark even here, because we’ve been told, over and over again, that it’s not safe, it’s unwise, it’s just “practical advice” to avoid rape. But if a neighborhood isn’t safe for men after dark, that’s an extraordinarily bad neighborhood, that’s a collapse of law and order.
Advice like that asks women to chose between being a functional adult and personal safety, and suggests that if they chose the former, they “shouldn’t be surprised” when they are assaulted. Giving advice like that makes people feel like 1) it couldn’t happen to them, they are in the know and 2) that they have now done something to solve the problem.
There’s some really reasonable advice out there, but if it’s reasonable, assume every woman over 12 has heard it.
So the many, many young women (including at elite colleges) who nevertheless get blitzed out of their minds? They are just idiots? Alcoholics? Willful and stubborn?
My most fundamental point here, in case it was not clear, is frustration with the Star deleting and apologizing for printing this op-ed. Not that people can’t or shouldn’t take exception to any assertions within it.
OP, what was with the reference to rape shield laws? Since those deal with whether a alleged victim’s sexual history can be introduced (as I understand it) - how does that interfere with confronting and cross-examination? Do you feel that whether the alleged victim was a madonna or a whore relevant to whether **this **instance was rape?
Cross-examination has limits in other cases. Why are rape shield laws a problem for you?
