Friday, February 14, 2014

A misguided distrust of the legal system is behind much of the advocacy about rape

Reading Katie McDonough's tired, incredibly angry piece in Salon that repeats all the familiar mantras of radical feminist rape advocacy, it dawned on me that I simply can't respond to all of these things. It feels like we're living in a George Romero movie -- we shoot one slow-moving zombie, there are four more right behind her. Their latest lie is that you are more likely to be hit by an asteroid than to be falsely accused of rape.

I won't respond to any of it (but it occurred to me that  I would have a pretty damn difficult time filling up a blog with stories about asteroid hits -- I have no problem filling this blog with news of false rape claims). In any event, it occurred to that there is a fundamental belief among all of these writers that pervades the entire milieu even when it's unstated. It's that the criminal justice system fails victims of sexual assault on a massive scale. That's the elephant in the room and ought to be the focus of our attention.

The system does fail some victims--there are too many examples where law enforcement hasn't taken sexual assault seriously or investigated properly. These are gradually disappearing, and the need for standardized law enforcement protocols and practices is now well-recognized. Katie McDonough her ilk are grossly unfair to the vast majority of police departments that do make great efforts to treat these cases seriously.

But their gripe seems to go way deeper than that. Their gripe seems to be that there's not a conviction for every rape claimed by a woman on a survey.

First, assuming a one-to-one correlation between surveys and the actual incidence of rape poses all sorts of thorny issues. See here. (You know, one in five women also claim they've seen or been in the presence of a ghost -- just sayin'!)

Second, it's easy to declare in the abstract that justice isn't being done, but when the actual evidence regarding specific sexual assault claims is examined, in most cases where charges aren't brought or where a defendant is cleared, there are valid reasons for it. And I'm not talking about "the woman lied!" -- those are only a small portion of claims. The ideologues who write about this issue refuse to acknowledge the validity of these reasons. If we wanted to have an adult discussion about how terribly the system fails victims, we would need to do a careful examination of a few hundred claims. All the evidence I've seen tells me that when we talk about specific cases, it isn't nearly as black-and-white as the ideologues claim, in fact, it's usually pretty damn grey and messy.

Third, some rapists are going to walk because our legal system believes it is more important to protect the innocent from being punished than to punish an offender. The first time I raised Blackstone's Formulation in my blog, I was astounded by the level of vitriol hurled at me. Two feminists called for me to be brutally raped.

I can't stand the Oppression Olympics we are drawn into. But unfortunately, every measure to roll back the due process rights of the presumptively innocent in sex cases is accompanied by arguments like the ones Katie McDonough makes. We don't have a monopoly on the truth, but we think the issues we raise ought to make their way into the public discourse when these things come up. We report in this blog on terrible injustices that could have been avoided with greater fidelity to principles of due process, yet we are dismissed as a hate site.

It's not worth trying to respond to the Katie McDonoughs of the world. And it's not an either-or proposition. We ought to be minimizing sexual assault on a host of fronts, but that doesn't mean we have to make it easier to punish the innocent for something they didn't do.