Tuesday, January 6, 2015

Writer says men have nothing to fear from new "affirmative consent" rape laws, suggests they should just trust women's good faith

Susan Dwyer's painful-to-read non-defense of the new "affirmative consent" laws sweeping American colleges is a hit parade of hackneyed memes employed to masquerade hostility of due process for college men.

Dwyer doesn't think that the whole "due process" thing is a valid concern. She posits that some people "fear that the weaker evidentiary standard strips accused individuals of due process, leaving them unfairly vulnerable to reputational and professional harms, perhaps at the hands of vindictive women." But later, Dwyer makes clear that she doesn't think innocent men have any need to worry about such things -- she suggests they should just trust women not to use the new law to harm them. Specifically: ". . . only a morally repulsive assumption about women’s psychology would lead us to think that the policy increases the mendacity of those who report sexual assault," she clucks.

This, of course, is merely another way of saying "women don't lie about rape," even though some (too many) women do lie about rape or assume rape has occurred when it hasn't. The wrongly accused are just necessary collateral damage in the "more important" war on rape.

It is irrefutable that a law that makes it easier to hold men responsible for rape will make it easier to hold the innocent responsible for purported offenses they didn't commit. Instead of dealing rationally with that valid concern -- a concern, incidentally, increasingly shared by many important progressive thinkers, including 28 Harvard law professors -- Dwyer does what feminist rape pundits routinely do: she casts aspersions on the good will of anyone who even dares to raise the question.

They do this all the time. See, e.g., here and here.  Dwyer's inanity is not worthy of serious refutation.

Dwyer also applauds the fact that the new law shifts the burden of proving consent to the accused, claiming, with no authority beyond her serene ipse dixit, that this shift "may . . . encourage victims of sexual conduct to come forward."

In fact, there is no evidence that this shift will change underreporting in any way, but it represents a dangerous sea change in the law. It makes the sex act -- something performed countless times every day since the beginning of time the world over -- a presumptive crime based on nothing more than an accusation. The prosecution/college need not prove the crime, all they need to do is present a woman to say it happened and the burden then shifts to the accused, and if the man or boy does not carry his burden to prove that he obtained consent in the required manner (which no one can define), the accusation alone is sufficient to convict. The concept of "innocent until proven guilty" has been kicked to the curb; the '70s feminist mantra "always believe the woman" has been given statutory articulation.

Shifting the burden of proving consent is an idea long pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."

Mainstream feminist extremist Jessica Valenti advocates that America look to Swedish law as its legislative model for rape, and "activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."

Serious feminist scholars have written extensively on the subject in an effort to change the law. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009). In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refused to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates a shift in the burden of proof by enacting affirmative consent laws.

Happily, the Washington Supreme Court recently reversed bad law that had shifted the burden of proving consent to the accused in that state's criminal courts. See here.

Dwyer makes clear she's hoping the affirmative consent law "changes the conversation about sexual assault" and "dismantle[s] wider cultural assumptions" about gender roles in the bedroom.

This is code for dismantling and rebuilding "masculinity." It is men's behavior Dwyer and the usual suspects seek to change because, under the new law, men will be branded as rapists when women resort to the passive bedroom behavior that women are taught from an early age and later decide to cry "rape."

The usual tripe.