In my legal practice, I take the approach that if the other side likes me I'm not doing my job. So I am happy that two radical feminist sites unfairly maligned me last week -- site number one and site number two. I previously responded to the "criticisms" here and here because they allowed me to expose some critical fallacies. I don't engage these people in "debate" because they are not interested in rational discourse; they have a political agenda to pursue and will twist and pound every fact to fit within it. On Sunday, however, Fidelbogen at The Counter-Feminist wrote how some of his comments were not being posted to one or the other of the hate sites, so I checked it out and saw a flurry of activity in the comments section. (I am breaking my own rule about not citing to hate sites because Fidelbogen has convinced me to do so.)
I noticed a comment on hate site number two by the actual author of the posts, named Marcella Chester, who may be, to use Fidelbogen's terminology, a false rape apologist. Her comment provides another opportunity for a teaching moment. It also says much about her reliability as an objective observer of rape issues.
I do not chronicle the many errors in Ms. Chester's diatribe against me but this one merits your attention because it underscores a host of double-standards that could hurt innocent men falsely accused of rape:
Ms. Chester's Comment:
One interesting side effect of making the false reporting of rape a felony would be that this would cause more of these cases to go to trial. And at this trial the alleged rapist loses all the protections which come from being the defendant. The alleged rapist could be required to testify under oath and could face the same type of treatment currently given to those who report rape.
There are some rape cases which are widely considered false allegations where this sort of trial would be fascinating because of who could be required to testify. With the protections reversed all sorts of questions would finally be answered. Every technique and approach which courts allow to be used against rape victims could be directed at this alleged victim.
Of course rather than seeing the situation from rape victims’ perspective, this would be marketed by those who demand this change in law as another way the system hates men.
Let us briefly explore Ms. Chester's erroneous comment that the man in a false rape claims trial could face the same type of treatment currently given to those who report rape. Let's deal with this in two parts:
I. Double Standards in the rape trial: The Rape Shield Laws protect rape accusers, not the defendant; and Fed.R.Evid. 413 imposes draconian rules on rape defendants that don't apply to any other defendant charged with any other crime
First, it is well to look at the rape trial itself because we need to clear up the erroneous premise that underlies Ms. Chester's comment that the rape accuser is somehow ill-treated in a rape trial. In fact, it is the accused, not the accuser, who is treated unfairly:
In a rape trial the woman would be fully protected by the rape shield laws that preclude any questioning or the admission of evidence regarding the woman's prior sexual history with persons other than the defendant (and in some instances, even including evidence of relations with the defendant himself). Some states bar evidence showing that she made prior false rape claims. Some states preclude evidence that the accuser used the same modus operandi to seduce other men.
In short, because of the reforms of women's groups that led to the enactment of rape shield laws, in a rape trial, the accuser is presented to the jury as a virginal specimen who, she claims, was defiled by a man who forced her to have intercourse with her against her will.
But wait, we're not done with the rape trial.
While the defendant need not testify at a rape trial, in federal court at least, women's groups have insured that special rules apply to him that don't apply to any other defendant in any other criminal case. Women's groups made sure that his sexual background is exposed for the jury to see in a manner that dispenses with the silly evidentiary protections applicable to all other defendants -- including murderers; including the theives who loot corporate pension plans and force thousands of employees to lose their retirement savings; including people who bash in the faces of convenience store clerks. Men accused of sexual assault are treated to evidentiary rules much harsher than any of them.
Pay attention to this: It is a basic tenet of our criminal law that jurors are not to be informed of any prior criminal record of the defendant. The reasons for this are obvious -- the trial will focus on the prior bad acts and the jury will convict the man for past misconduct as opposed to the charges at issue.
But a rape trial in federal court is different; there have been "reforms." Federal Rule of Evidence 413 provides that "in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." The jury is to be informed of the defendant's prior acts whether or not the defendant takes the stand. Did you hear that? So, no, he need not testify, but his name can nonetheless be blackened for something that occurred years ago.
Moreover, and this is worse: Federal Rule 413 was not restricted to prior criminal convictions or even arrests of the defendant. Even an accusation of a prior sexual offense would be admissible.
Furthermore, the burden on the prosecutor to prove to the court that the prior offense occurred is not the traditional beyond a reasonable doubt standard, but only proof by a preponderance of the evidence.
And finally, if those other rules don't work to destroy an innocent man, this one could: there is no time limit as to required proximity of the prior bad acts to the charged criminal conduct upon which the trial is based.
For no other defendant are similar rules applicable. Once this evidence is admitted, it is nearly impossible for a man -- who may be innocent of both the charge at issue and the previous accusation allowed to be introduced under Rule 413 -- to plant a reasonable doubt in jurors' minds. Jurors will desire to convict the defendant for being a bad man, even when the current charges against the defendant can't actually be proven beyond a reasonable doubt. And even when the charges connected to the prior accusation can't be proven beyond a reasonable doubt.
And the fact that there is no time limit as to required proximity of the prior bad acts to the charged criminal conduct upon which the trial is based could result in fatal unfairness for the innocent man. A 50-year-old man who is a minister with four children and a happy marriage might be accused of "raping" an acquaintance when he was 18-years-old, when they were both drunk. The prosecution might even have the supposedly "defiled" woman testify. As previously explained here, charging an innocent man with acquaintance rape years after the fact is grossly unfair to him because it leaves him at a severe evidentiary disadvantage. After having sat on the evidence for years, at trial, the woman might paint a vivid picture of a rape; in contrast, if the man is innocent, the most he may be able to honestly say is, "I would never rape a woman, but I have no strong recollection of that night." In fact, he probably would have no recollection whatsoever of where he was on the night in question -- whether he was with her or not; whether he was drinking; whether she was drinking; where they were prior to or after the sexual encounter; what they discussed prior to or after; or with whom they spoke prior to or after. In short, he may recall nothing whatsoever about that night, and at trial he would be like the warrior of old entering battle stripped of his shield and sword. Allowing admission of this evidence in a trial of a different rape charge long after the fact is beyond unfair, it is a gross abuse of the legal system.
The rape shield laws made certain that the prior sexual conduct of the victim will have no impact on the present rape trial. But as to the defendant, a double-standard was born. Evidence of his alleged prior bad conduct is admitted. It is "pay back" time -- time to exact vengeance on the patriarchy, and if some innocent man gets convicted, he was just necessary collateral damage. Rape case defendants are afforded fewer rights than defendants in any other trial -- including Charles Manson, O.J. Simpson, and presumably even Osama bin Laden, if he were captured and tried in Federal Court. The accuser is protected, the accused is not. All in an effort to jack up convictions and appease women's groups.
Can anyone assert with a straight face that innocent men are not at risk because of these "reforms"?
And can anyone accept Ms. Chester's underlying premise that rape accusers are somehow mistreated in a rape trial?
II. The trial of a false rape claim
Now let's look at the trial of a false report of rape to see if "every technique and approach which courts allow to be used against rape victims could be directed at this alleged victim."
First, making a false rape report is hardly ever charged. When it is charged, and when a conviction results, the sentences are laughable.
Second, in a trial over a false claim, the male would not enjoy any of the rape shield protections his false accuser enjoyed when he was on trial for rape. His entire sexual history might be fair game if it is relevant. How many prior sex partners have you had, sir? Have you ever given a date something to drink before initiating sex? Have you ever had sex with more than one woman at the same time? Has a woman ever accused you of taking advantage of her? Weren't you cheating on your girlfriend with another woman?
On and on it goes. Some elderly jurors -- elderly women, especially -- might be wholly shocked to hear the extent of a college boy's sexual activities. Those same same elderly female jurors might be even more shocked to hear of the equivalent sexual activities of college women (you know, unfair double standards and all that), but those jurors will never hear that evidence in a rape trial where the accuser is presented as clean as the new fallen snow.
Would it be proper to do away with the rape shield laws? Absolutely not. But rape accusers are in a unique position in that they are afforded sensitivity not shown to any other accuser. Men who are accused of rape are often tainted for life. My concern here, again, is with the innocent men, the ones falsely accused. Is that a concern that ought to be taken lightly? I think not.
So is Ms. Chester correct that "every technique and approach which courts allow to be used against rape victims could be directed at this alleged victim" in the trial of a false rape claim?
The question scarcely survives its statement.
She is wrong -- again.