Nobody reasonable would ever suggest that rape — nonconsensual sex — should not be against the law. But should the burden of proof be on the accused or the accuser?
With other crimes, the accused is innocent until proven guilty. If somebody accuses you of stealing from his store, the onus is on the accuser to establish the facts that you did it. Perhaps there’s a video of you doing it, a witness, or other factors to establish proof.
With rape, particularly “date rape” where the two parties already know each other and the issue involves whether the sexual activity was consensual, it’s admittedly a more difficult matter. But does this justify shifting all or most of the burden for proving innocence onto the accused?
A new “yes means yes” approach to rape and the law suggests the answer is, “Yes.”
California, the first state to implement the “yes means yes” law, will require California colleges that want to keep their state funding intact to deploy the “affirmative consent” standard when adjudicating sexual assault cases. This means that campus authorities will have to establish whether the partners obtained “affirmative, conscious, and voluntary” agreement. Although non-verbal consent is allowed, verbal is better. And it has to be obtained at every stage — touching, kissing, and foreplay — not just initially. [Reason.com 10/7/14]
In practice, this means that when somebody is accused of imposing sex on another against her consent, campus authorities will be required to gain proof that consent was acquired. Essentially, the accused is considered guilty until or unless proof of that consent can be established.
How is this to be done, short of having a video of every sexual interaction, at every stage of the interaction? Your guess is as good as mine. It will be her word against his; and unless he can prove otherwise, her word will prevail.
In a vague, floating abstraction kind of way, it’s difficult to dispute the law, at least until one thinks about the particulars. “Should sex be consensual?” Of course it should. But when you ask the question as, “Should the burden of proof be on the person being accused?” and you answer, “Yes,” then you can’t evade the fact that you’re turning the very concept of common law justice on its head.
The Los Angeles Times asks if there is
… a role for the government in mandating affirmative consent? It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms. Colleges, to their credit, are struggling to clarify and strengthen their policies on sexual misconduct, and are seeking to provide better support for victims of sexual assault in the face of growing concern about the issue. But must they become so prescriptive as to try to set rules about exactly how sex should proceed? There are serious questions about whether such a policy is either reasonable or enforceable.[Source: Los Angeles Times 5/28/14]
Yes, it’s ironic. This law is pushed by feminists. Feminists are supposedly on the side of sexual liberalism, which includes (or used to include) an idea that government should stay out of the bedroom. But this law takes government into the bedroom as few laws have done since puritanical times. If one — coming from a puritanical perspective — wished to place restrictions on sexual activity, one could come up with a very similar law. “Well, if two people have sex, and one of them after the fact claims it wasn’t consensual, then the other party better have an explanation for it. Otherwise, the law will come down on him.”
It’s difficult to imagine a more “big government” and intrusive policy with regard to sex: “Well, sex might be nice. But if things don’t go well afterwards and I get accused of something, it’s all over.” It makes celibacy seem appealing.
Feminist Amanda Marcotte writing at slate.com [9-29-14] offers this defense of the law:
Yes, it would be unreasonable and unenforceable to monitor every sexual encounter and demand students follow a step-by-step process for how to have sex. Luckily, that is not what the bill was proposing and is not what the governor signed. The affirmative consent law only helps clarify how university disciplinary boards should proceed in cases where one person is saying she was raped while the other is swearing it was just a hookup.
It’s true that the law does not explicitly require a “step-by-step” process for having sex. But it certainly implies one, and requires one. In fact, it creates an incentive not to have sex at all. Clearly, the law is aimed primarily at young men. If a young man has sex with a woman, and sincerely misunderstands her desires, there’s no benefit of the doubt applied to him. Or, in other cases, let’s say there is no doubt in either party that the sex is consensual, but then something goes wrong later on. Maybe the young woman’s feelings are hurt that he doesn’t call the next day, or doesn’t want to pursue a more serious relationship. Some women might decide to file a complaint that the sex wasn’t consensual, out of spite. What then? The onus of proof is on the man to prove that it wasn’t date rape. How reasonable, just or legally tenable is this?
Marcotte insists: The law has no bearing on the vast majority of sexual encounters. It only applies when a student files a sexual assault complaint.
But that doesn’t address the basic issue. How do we justify placing the onus of proof on the accused, once any complaint is filed? It’s naive to assume that anyone filing a complaint is automatically and always honest. Furthermore, placing the burden of proof on the accused certainly creates incentives for false filers to abuse the system. How reasonable and fair is that, including for innocent individuals who might benefit from a rational system less capable of being abused?
This law is supposedly aimed at date rape. It’s certainly what supporters have in mind for a more broadly based policy to be applied in courts across the country, not just for college students but for everyone. Date rape is much harder to establish than conventional rape. But is that any justification for changing the basic premise of innocent-until-proven-guilty that has been the governing principle of justice outside of dictatorships?
This policy goes even beyond date rape. Date rape was originally a context where a man invites an unsuspecting woman on a normal date, and then imposes force (slipping her a drug, or some other coercion) in order to get his way against her will. This new California law can apply to literally any situation. All you need to activate the law’s relevance is (1) two people having already had sex; (2) a woman filing a complaint; and (3) an accusation by the woman that the man forced sex on her, with the onus on the man to prove that he gained consent at every stage of the sexual process.
So this is where “liberalism” and feminism have now taken us? Wow.
Shikha Dalmia, an opponent of the law [writing at reason.com 10/7/14], writes:
The obvious problem with the law — which many other states are considering as well — is that it assumes that sexual assault, already a crime under multiple laws, is the result of miscommunication. The assumption is that somehow one partner (and let’s be honest, it is overwhelmingly the one with a Y chromosome) didn’t ask or realize that the other wasn’t into it. But the fact is: Most assaulters know exactly what they are doing. The vast majority of campus rapes are committed by a small minority of repeat offenders who give not a damn about what the woman wants. And if they can threaten violence, they can also lie about obtaining consent. So how will the law change anything?
We can only assume that proponents of such laws realize all this. The only conclusion? They don’t care. The unspoken attitude and premise of this whole approach to rape is, “Well, if a man is concerned about false or malicious complaints, then maybe he shouldn’t be having sex with a woman.” Maybe sex should be confined to marriage. Maybe sex should be confined to child-bearing. No, I doubt this is what the feminists pushing these laws have in mind. But if these were their intentions, this law would be one of the best ways to go about achieving them.
Sexual puritanism has come full circle. In the past, women were shamed and treated unjustly by a legal system which was capable of denying evidence that a woman had been raped. Or, if she had been raped, she must have “brought it on herself.”
Today, sexual puritanism has shifted blame, shame and the impossible logical task of proving a negative (“I didn’t do it”) on to the male. If two people have sex, and one of them later claims it was not consensual, then the man must have brought the whole thing on.
Flipping injustice and irrationality from women to men solves nothing, unless your goal is to punish men — collectively — for the sins of men — collectively — in the past. It’s not progress. It’s not liberal. It’s not evolved, enlightened or anything but an abuse of the legal system to “get even.”
Granted, in supporting such a law you get to say, if you’re a man, “Look at me. I don’t hate women. I’m not in favor of rape.” The progressive male Governor of California, who supported this law, certainly enjoys being in that role.
But don’t kid yourself that it has anything to do with justice. It’s nothing more than crudely devised and implemented shame, blame and control — feminist-style.
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