Thursday, July 15, 2010

If the presumptively innocent are given anonymity, a rape advocate says there will be more rapes

In one of the most despicable assertions ever uttered in the rape context, Chair of Women Against Rape Ruth Hall said the following: "There will be lots more rape victims" if the presumptively innocent accused of rape are afforded anonymity until they are charged.  Women's groups and scores of MPs posit, with straight faces, that anonymity will deter victims coming from reporting their ordeal to police. Link: here 

Why will women be deterred?  Well, the scattershot reasons posited in support of this epiphany are the proverbial moving target.  First, they say, anonymity will somehow, some way, stigmatize women as liars, thus deterring actual rape victims from "coming forward."  Second, it's often only publicity that makes rape victims "come forward," so it's important for victims to know that other women have also accused their rapist.

This is dishonest fear-mongering in the extreme, pure and simple.  We need to put this underreporting assertion in context:

Prior to the great wave of rape reforms starting in the 1970s, rape advocates reported, with seemingly infinite invention, that women were too scared, too embarrassed, too certain of its futility to report their own rapes. The sexual grievance industry insisted that rape was underreported, and that reforms were needed to do justice to countless women who suffered in silence the brutal indignity of rape. So we kowtowed to the sexual grievance industry to solve "the problem." 

First, we adopted laws that eliminated the requirement of corroboration, which de facto served to flip the old law on its head: now, women don't need any corroboration of their claims, but men and boys are arrested based solely on even the far-fetched say-so of any woman or girl if they can't produce corroborating evidence of their innocence.

That wasn't enough, they said. So we adopted rape shield laws that forbade almost any evidence of the accuser's prior sexual history with persons other than the accused, a rule that resulted in innumerable innocent men and boys being sent to prison for alleged rapes that never occurred. 

That wasn't enough, they said. So we adopted laws that eliminated the requirement of force, and innocent men and boys who misunderstood the acquiescence of a woman were sent to prison.  

That wasn't enough, they said.  So we enacted laws that eliminated the mens rea requirement for rape.  Historically, in a rape prosecution, the guilty defendant must have had the intention to have intercourse with a woman without her consent.  Too stringent, said the sexual grievance industry, and the requirement was lightened or dropped altogether.

That wasn't enough, they said.  So we enacted laws (in the UK and a handful of US states) that legally forbade naming rape accusers.  In the US, the news agencies and outlets have, by common consensus, agreed not to name rape accusers. The mere allegation of rape by the anonymous female, 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.

That wasn't enough, they said.  So we enacted laws that lengthened and even eliminated statutes of limitations for rape, and now, men are sometimes accused of and charged with alleged rapes that occurred 20, 30, 40 or more years after they supposedly occurred, effectively foreclosing the accused from mounting a meaningful defense because the evidence of their innocence has long disappeared.

That wasn't enough, they said. So we enacted VAWA which, among many other things, pays the legal bills of alleged victims of sexual assault. VAWA pays none of the legal bills of men accused of rape, the presumed innocent -- even those who were falsely accused.  In the UK, it's worse. They compensate alleged rape victims, even the ones not subjected to any physical force, no matter how slight their injuries; the UK does not compensate men falsely accused of rape, no matter how egregious their harm. Sometimes false rape accusers are compensated.

That wasn't enough, they said. So we enacted laws that exempted rape accusers from taking polygraph tests as a condition to proceeding with the rape investigation.  In contrast, using polygraphs on men accused of rape is routine, and often if men don't submit to them, even flimsy charges won't be dropped. (Moreover, polygraphs are routinely used to insure that sex offenders (predominantly male) are adhering to the terms of their probation, and a refusal to take the polygraph will land the person refusing in jail.)

That wasn't enough, they said. So we enacted Fed.R.Evid. 413 and many states adopted similar laws. Unlike any other criminal charge, including murder, assault, even planning the World Trade Center attacks, a rape trial in federal court and in various states allows evidence of the defendant's commission of prior offenses (specifically, his prior offenses of sexual assault) to show that he has a propensity for committing the crime at issue. This rule, which is unique in all of American jurisprudence and widely condemned by legal scholars, allows the jury to hear about the defendant's prior acts whether or not the defendant takes the stand. Even accusations of prior sexual offenses that occurred years before -- and even crimes for which the defendant was acquitted -- are admissible if the alleged act is proven by just a preponderance of the evidence (far lower than beyond a reasonable doubt). This is sometimes all a jury needs to convict the man or boy of the crime at issue.

That wasn't enough, they said.  So we enacted rules on college campuses making it easier and easier to expel males accused of sexual wrongdoing, with kangaroo courts and inquisitorial hearing processes. Many college campuses adopted rules that say rape accusers can't be charged with underage drinking in connection with their accusation, thus providing yet one more motive to lie about rape for any young woman looking to evade an underage drinking charge.

But surely these massive reforms must have cut into underreporting of rape? Surely after decades of one reform after the next to encourage women to come forward, the women must be lining up, right?

Well, no, we are told. Nothing has ever worked to curb alleged underreporting, and underreporting is supposedly still rampant. As but one example, on college campuses, the supposed hotbed for modern rape, more than ninety five percent of students who are sexually assaulted supposedly remain silent, we are told.  All the rape reforms, all the bending over backwards to get victims to "come forward" have been a waste of time.

So what's really going on here?  Here's the reality. No one knows the precise extent of underreporting, and no one ever has. The politicization of rape renders it impossible to discern whether underreporting even exists. See, J. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments 35 N.E. J. on Crim. & Civ. Con. 37, 49-51 (2009). The "proof" proffered for underreporting ranges from unreliable to nonexistent, and the truth is held hostage by radical feminist ideology.

Yet underreporting remains the Excalibur of the sexual grievance industry, the secret weapon with magical powers that is whipped out and wielded to achieve any desired goal.

Now alleged underreporting is being wielded in a last ditch effort to stop the plan for anonymity for the presumptively innocent. This plan, you must know, will not grant anonymity until conviction but only until a man is charged.  It is, thus, the most modest reform imaginable to protect innocent men, scarcely a reform at all, if truth be told. But to the sexual grievance industry, any support for the presumptively innocent is too much support.

The injection of underreporting into this discussion is a vile prevarication.  Anonymity for the presumptively innocent has nothing to do with whether women come forward. Anonymity does not send a message that rape victims should not be believed any more than anonymity for rape accusers sends a message that rape accusers should be believed over the men and boys they accuse. The message conveyed by this very limited anonymity plan is that the harm of publicly identifying falsely accused men is unconscionable, because a rape claim is loathsome and because, once a rape claim is alleged, unlike other allegations of criminality, it is nearly impossible to disprove.  The sexual grievance industry doesn't bother discussing the harm to the presumptively innocent. 

Women will not stop coming forward to report rape even when the accused are anonymous. After all, women continue to come forward now even when the accused is a teen male who is legally anonymous.  I have never heard any member of the sexual grievance industry claim that granting anonymity for teen males accused of rape somehow creates more rapists.  In fact, it is likely that more women will come forward if men are anonymous. When women cry rape and the man is identified, it often isn't difficult to infer who the accuser is. It is reasonable to assume that most rape victims would prefer not to have their identities revealed by inference.

What the sexual grievance industry has never been able to explain is this: if there are, in fact, so many roadblocks for actual rape victims to reporting their rapes, why the hell are there so many false rape claims?  There ain't no underreporting when it comes to false rapes. If the liars have no difficulty "coming forward," why is it so difficult for actual rape victims to report?
Or are we not supposed to talk about that?