Tuesday, June 3, 2008

Another rape myth: the low conviction rate for sexual assault is due to 'victim blaming'

The Washington Post had another article bemoaning the difficulty in obtaining convictions for rape. As is customary with such articles, this one, too, cites bias against alleged rape victims as the cause. This piece, sadly, is part of a long tradition, especially in Europe, of trying to concoct ways to jack up the conviction rates for rape based solely on a supposedly low percentage of convictions.

The naivete of such articles, and the misandry of the persons behind these efforts, are breathtaking. Here is why: The vast majority of rape claims involve claims against acquaintances where the man or boy claims the sex was consensual. Typically there is no evidence for the purported crime beyond the woman's testimony. Assuming the man or boy and the female both provide plausible testimony, what should be the outcome?

The man or boy should be exonerated, of course. This is so fundamental that it scarcely requires elaboration. The burden of proof in such cases is guilty beyond a reasonable doubt. If the man or boy provides plausible testimony that the sex was consensual, that certainly should be sufficient to give a juror a reasonable doubt.

I would like to hear the response of feminists to the question of whether the man or boy in such cases should be exonerated. I suspect they would say "no." I suspect they would want the man or boy to spend decades in jail and then be forced to register as a sex offender for the rest of his existence merely because the female says she was raped. I suspect they would want to toss the long-honored burden of proof applicable to all crimes onto a scrapheap of politically correct indifference for just this one crime.

Some feminist legal scholars want to reverse the burden of proof when it comes to consent and require the man or boy to prove that sex was consensual. Think about that in all it's Star Chamber ramifications: they want to make the sexual act -- one of the most fundamental, basic and beautiful of all human acts -- to be, by default, criminal. Without any evidence beyond the female's serene ipse dixit, they want the presumption to be that a crime was committed. The misandry at work here is utterly unfathomable.

Such a view, of course, is premised at least in part on the feminist canard that false claims are a myth. Hence the need for this Web site -- to help make false claims part of the public discourse about rape, as they should be.

Getting back to the question at issue -- whether the low conviction rate of rape is accounted for by bias against rape victims. The feminist sexual assault counseling industry would have us believe that an exoneration of a rape defendant in the acquaintance rape scenario is an example of "victim blaming."

Nonsense. Consider this law review article on the subject:

"[T]here should be no criticism of 'victim blaming' until the legal standard of proof has been met. To rebuke those who "blame the victim" is to assume the very point at issue in a consent-defense case: that a rape rather than a seduction occurred. . . . But of course, the presumption of innocence requires the jury to focus, not on whether Ted is probably guilty in fact, but on whether the prosecution has proved his guilt beyond a reasonable doubt. To the extent that the difficulty of convicting acquaintance rapists is due to genuinely reasonable doubts about defendants' guilt, case attrition is not evidence of a malfunctioning criminal justice system. Quite the contrary, under such circumstances the rapist's escape from justice, while deplorable in a sense, is evidence that the system is functioning exactly as it should. . . . [The] failure to deal with the burden of proof is typical of modern rape scholars. For example, some authors complain that, as one book puts it, 'the victim is placed in the precarious position of having to prove that her reaction [to the rapist's advances] was sufficient to establish nonconsent.' That sounds unfair. Why should the victim have to prove anything? The answer, of course, is that the law presumes that she is not a victim, unless and until the jury finds the defendant guilty. Because Sally is the prosecution's leading witness, and the prosecution has a heavy burden of proof, 'she' quite properly 'has to prove' beyond a reasonable doubt that the defendant raped her. So let us rephrase the scholars' complaint: 'In rape, the prosecution must prove the essential elements of the crime, including the alleged victim's nonconsent, beyond a reasonable doubt, relying chiefly, especially in the absence of strong corroborative evidence, on credible testimony by the alleged victim.' As thus rephrased, the proposition is unremarkable and connotes no unfairness. Yet the essential practical difficulty remains: the burden of proving nonconsent is on the government and therefore, in a loose sense, on the government's leading witness."

DAVID P. BRYDEN * & SONJA LENGNICK CRIMINAL LAW: RAPE IN THE CRIMINAL JUSTICE SYSTEM 87 J. Crim. L. & Criminology 1194 (1997).