Wednesday, March 23, 2011

Radical feminists want to convict men and boys of rape even if there was actual consent

Currently, rape law adheres to a contract law standard of consent, where consent may manifested in any way that it actually occurs. In matters of romance, people typically toss formalities to the winds and generally express consent in body language, smiles, nods, caresses, and in a thousand other ways that wouldn't be appropriate in a commercial setting. There are, in fact, an infinite variety of ways people signal consent. Many, perhaps most, couples establish routines where unspoken conduct cues responses in a willing a partner.

A law that recognizes that consent may be evidenced in whatever ways parties actually manifest it can’t possibly be unfair, right?

Well, wrong.  Criminal law professor and feminist Michele Alexandre wants to junk all of that and severely limit the way consent may be legally manifested. She insists that the contract theory of consent treats women’s bodies as goods and proposes to change criminal law so that all the non-verbal manifestations of assent are invalid to show legal consent. Specifically, “express consent entails verbal or written assent that leaves no doubt as to the victim’s agreement to the sexual interaction. . . .” (The other-worldly reference to "written assent" is a dead giveaway that this professor is operating in a different universe than the typical bedroom where real couples are getting it on.)

She would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent, and “withdrawal of consent can happen at any time during the sexual interaction.”  (The latter point about withdrawal is not objectionable under the contract law theory of consent.)

In this professor’s world, past sexual behavior –  those routines a couple has established over the course of months or years, that private and unspoken language they've developed – none of it may be cited as evidence of present consent. Sex that occurs as a result of such flawed consent is 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).

Presumably, the jury would have to be instructed that even if they find there was consent -- a real, honest-to-goodness agreement to have sex -- if such consent wasn't manifested in the "correct," narrowly prescribed manner outlined here, then there was no legal consent. It was rape.

If the goal is to establish certainty about whether the woman consents to the sex act, there already exists a sure-fire way to insure that the male understands whether she consents: she can say "no."  Uttering "no" means there is no consent. Before or during the act -- "no" means "proceed no further." Yet, for unfathomable reasons, in the past few years there's been a movement to insist that uttering that two-letter word puts too much burden on the woman.

So what good would this law accomplish?  None. The proposed new law would force innocent men and boys to testify at trial, contrary to the Sixth Amendment's prohibition, because the sex act would be a presumed crime if a woman cried rape; the only way to rebut that presumption would be for the man or boy to testify.

Real rapists would do what they've always done: lie. Only now, they'd claim consent was obtained in the new, narrowly prescribed way even though it wasn't.

Women in divorce and custody battles would have a powerful new weapon in their arsenals to hold over their ex-husbands' heads.

Troubled college girls would have even more power to get attention or revenge.

Men and boys would be punished by ex-mates they've pissed off by having rape claims lodged against them because, even though there was actual consent, the guys failed to obtain consent in the new, correct manner.

And most couples in a healthy relationship would ignore the new law altogether.  But if the couple ignored the new law, only the male would do so at his peril.