Sunday, July 17, 2011

I will be concerned about women who are raped but aren't believed (because of their pasts) the day feminists are concerned about Fed.R.Evid. 413

Feminists and female features writers for major U.S. dailies are beating the tom-tom about the Dominique Strauss-Khan case. They are upset that even if the accuser has a history of telling lies, she still might have been raped but isn't being believed because of her character.  "Unfair to women!" they cry.  "It plays into ancient stereotypes going back to Potiphar's wife!" Blah, blah, blah. Cluck, cluck, cluck.


Even if it were proven that women with questionable pasts have a harder time being believed when they cry rape, it is not something I am terribly upset about.

Why?  Put it this way: if you loathe and detest the stereotyping that goes on in rape cases based on peoples' pasts, there's a far more serious concern you should be talking about: Federal Rule of Evidence 413. The only problem is, males have a near monopoly on being screwed by Rule 413, which pretty much means that the people I'm addressing will be OK with it even though it might just be the single most unfair law on the books. Don't believe me? Read on -- you'll be amazed who agrees with me.

Rule 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."

Several states have enacted their own versions of this rule. 

If you aren't a lawyer, you may not realize how outlandish this rule is. Rule 413 allows the prosecution to demonstrate a rape defendant’s alleged propensity to sexually attack women by introducing into evidence by just a preponderance of the evidence (50.000001%) a prior alleged rape to show that the man on trial acted in conformity with this supposed character trait. Note that this evidence of a prior rape is admissible even if the man never takes the stand (despite the 6th Amendment); even if the man had been criminially acquitted of the prior sexual offense (despite the 5th Amendment); and even if the alleged prior rape occurred many years ago, when a middle-aged man was a teenager or a young man in his 20s. The jury will hear that the man did it before, and will likely conclude he must have done it this time, too. The jury might even want to punish him because it figures he must have done it one of the times. This rule is in force only for sexual assault, no other crime.

Want to see just how unjust this law is? You'd better sit down before you read this: Mr. VAWA himself, then-Senator Joseph Biden, found it repugnant.  No, I'm not kidding.  Biden stated:

"[Under these rules, t]he prosecutor, instead of just having to deal with that witness and those facts, is able to go out and find anybody who is willing to say, 'By the way, when he was 21 years old when we were parked in the car he physically molested me,' without any proof of anything. Now, the people who might . . . have been around to prove that that was not the case, the couple you double dated with in the front seat of the car, are dead. But you have a witness, the one person sitting there, who says, 'But that happened to me 25 years ago.'" 140 Cong.Record S12,261 (August 22, 1994).  Biden declared that he had "a moral, intellectual, and practical aversion" to this rule. Id.

Wow!  Let that register in your craniums: Joe Biden said that.

The purpose of the law, for those law-and-order Republicans, like Bob Dole, who pushed it, is to convict more rapists.  The problem is, it might be possible to "prove" by a preponderance of the evidence that an innocent man on trial for rape committed a prior sexual assault many years ago. And that "proof" would often seal his conviction in the present case, even though he didn't do it.

Don't you hear all the protests about this unjust law?  Neither do I.

So yes, dear features writers who are wringing their hands and beating their breasts over the crucifixion of Strauss-Kahn's accuser (whose name is Nafissatou Diallo): even women who've lied about other things can be raped.

But the harm that Rule 413 can do to innocent men is far worse.

In the case of the Strauss-Kahn accuser, even assuming she really was raped, she won't spend many years in an awful prison if her rapist goes free. 

In contrast, an innocent man convicted because of Rule 413 will have his life destroyed. The stakes are infinitely greater.

In the case of the Strauss-Kahn accuser, some of the revelations about her character go directly to a motive to tell a rape lie: for one thing, she discussed the possible financial benefits of pursuing charges against a wealthy man. Moreover, one newspaper claimed she is a prostitute, another important piece of evidence to show her rape claim was a lie.

In contrast, the evidence of the alleged prior sexual assault admitted under Rule 413 has nothing to do with motive. It is admitted merely to help send a man on trial to prison, whether he did it or not.

I also will be more concerned about feminists' complaints that women are underrepresented in CEO positions the day I hear feminists complain that women are underrepresented in the jobs with the greatest mortality rates, and among the homeless.

I also will be more concerned about feminists' complaints that women aren't paid the same as men the day I hear feminists complain that men work too many hours and aren't treated as equals in family law court.

I also will be more concerned about feminists' complaints about female genital mutilation the day female talk show hosts can report on a woman slicing off her husband's dick without guffawing and crying out, "You go, girlfriend!"

In short, I'll be more concerned about your complaints the day you give a flying fuck about the other half of the population of planet earth.

Until then, I don't have time.