It is not at all astounding that we live in a time when men and boys are at greater risk than ever of being falsely accused and wrongly charged and convicted of rape. It is astounding that more people didn't see this time coming. The fact is, we've been planting the seeds for this day for decades. We've carefully cultivated, watered, and fertilized the soil from which it sprang. And now we are shocked to see the fruits of our labors in full bloom. How did this happen?
Professor Alan Dershowtz once made the seemingly innocuous statement that "the rules of evidence have been changed to make it easier to convict defendants of rape and harder to cross-examine alleged rape victims."
Dershowitz was right, of course, but he was attacked for saying it.
Dershowitz was referring to the rape reforms of the feminist revolution in the 70s and 80s. Those reforms led to rape shield laws that forbid inquiring into the accuser's sexual past with persons other than the defendant; the law that eliminated the requirement of corroboration; the laws that eliminated the requirements of force and resistance; and the law that made nonconsensual sex during marriage rape.
It would be dishonest in the extreme to refuse to acknowledge that these laws made it easier, and in truth, much easier, to obtain a conviction in a rape trial. Yet, Dershowitz was criticized for supposedly failing to appreciate that the laws reforming rape were designed to do nothing more than treat rape like other crimes.
The problem with that noble-sounding sentiment is that rape isn't like other crimes. The very physical act that constitutes rape is typically precisely the same physical act that constitutes the most natural and fundamental demonstration of love and bonding known to man -- an act that has been performed somewhere, in every land, among every people, every second of every day since the beginning of time. It is simplicity itself for women to transmogrify garden variety consensual intercourse into rape with nothing more than an after-the-fact declaration of non-consent.
Yet, advocates of rape reform point out that in pre-reform days, rape law was alone in requiring a prosecutor to provide corroboration for a victim's testimony. For example, a robber could be convicted on the victim's testimony alone; a rapist couldn't.
The crucial difference lies in the fact that the physical act of robbery doesn't also happen to be the same physical act that constitutes a fundamental and necessary act of human existence. It is, thus, naive to think that rape ever could, or should, be treated like other crimes. And that wasn't really the goal of rape reform advocates anyway. Their goal was to jack up rape convictions, and they have advocated numerous laws and policies to insure that rape isn't treated like other crimes -- that rape accusers are afforded special treatment not afforded any other criminal accuser. Many of these changes have been adopted, and here are a few:
▲Unlike any other criminal trial, a rape trial in federal court and in various state courts allows evidence of the defendant's commission of prior sexual assaults in order to show his propensity for committing the crime at issue. Under this rule, which is unique in all of American jurisprudence and condemned by many legal scholars, the jury is to be informed of the defendant's prior sexual assault even if the defendant was acquitted of it, so long as it is proven by just a preponderance of the evidence (far lower than beyond a reasonable doubt).
▲The UK compenstates victims of even non-forcible rape, and "over the clothing" sex acts, no matter how slight their injuries, but traditionally has refused to compensate men falsely accused of rape, no matter how egregious their harm. Last year, a court ruled that one falsely accused man (who has written to us -- I'll be writing about him next week), is entitled to compensation, but the UK is appealing that ruling.
▲Various U.S. states are extending and even abolishing statutes of limitations for rape; in contrast, false reports are often subject to a limited statute of limitations that will bar most claims if the woman's lie has its intended effect and her fraud is not discovered for several years.
▲Using polygraphs to test the credibility of rape claimants is verboten. To be eligible for VAWA funds, states and territories must certify that they prohibit polygraph testing of victims. VAWA provides: "No law enforcement officer, prosecuting officer, or other government official shall ask or require an adult, youth, or child victim of an alleged sex offense ... to submit to a polygraph examination or other truth telling device." In contrast, using polygraphs on men accused of rape is routine.
▲Rape accusers retain lifelong anonymity, either by law (UK) or by agreement of news sources (U.S.). In contrast, the mere allegation of rape, without any other evidence and no matter how far-fetched, invites a man's name to be splashed all over the newspaper, TV, radio, and Internet for the world to titillate at the details of his humiliation.
▲Many colleges have adopted policies not to punish underage drinking if it is discovered in connection with a sexual assault complaint. This rule does not apply to any other criminal complaint.
▲Rape accusers are afforded all manner of counseling and assistance funded by tax and tuition dollars. No similar assistance is afforded to victims of other crimes, least of all false rape claims.
And these are the milder reforms. Some feminist scholars want to reverse the presumption of consent for intercourse when a woman cries rape so that the burden is shifted to the male to prove consent. This would officially transform intercourse into a presumed crime whenever a woman says it was rape. And recently, the U.K. toyed with targets (quotas) for rape convictions.
Have these reforms made it easier to cry rape, charge for rape, and convict for rape? The question scarcely survives its statement. But they have also, by necessity, made it easier to falsely cry rape, and to wrongly charge and convict for rape.
No Reforms For The Presumed Innocent
While these reforms have been occurring, have there been any reforms to protect the presumed innocent who, too often, turn out to have been falsely accused?
Has any state increased the maximum or minimum sentence under its false reporting statute for rape claims?
Has any major news outlet withheld the names of men accused of rape until conviction?
In fact, while the rape reforms were being enacted, the only attention paid to the falsely accused has been to pretend they don't exist.
We have handed women and girls unprecedented power not only to bring their rapists to justice, but to destroy the lives of innocent males merely by crying rape. But we didn't bother to consider what we should do if they abuse that power. Every day, we see evidence that too many are abusing that power, but we are content to keep our heads in the sand because we've decided that the victimization of our daughters is more worthy of our protection than the victimization of our sons.
The result is that innocent men and boys are at greater risk than ever of being falsely accused, and wrongly charged and convicted, of rape. And that is a fact that should be intolerable to all civilized people.