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"If I Could Go Back In Time, I Wouldn't Report My Rape"
October 17, 2012 7:19 PM   Subscribe


 
Well, it goes without saying that this is a sad story.

May I sensitively inquire why the 99%-success-rate tactic was not used by the defense in the 10-year case?
posted by michaelh at 7:33 PM on October 17, 2012 [2 favorites]


Between this and the reddit thread, I was sitting here thinking, damn, is this rape culture week on metafilter or something?

And then I remembered that it is always rape culture week everywhere, and I became sad
posted by NoraReed at 7:34 PM on October 17, 2012 [86 favorites]


“There’s a 99% chance we’ll lose this case. I just won’t be able to win this one for you. They’re going to use the slut defense and it’s going to work.”

Why? Did her binder say "Sluts" on the outside? Why is it going to work? Because reasons. Because misogyny doesn't somehow become logical thoughts when off the pages of creepshots and Facebook pages documenting the decolletage of children. Because when we complain about rape culture on the internet, this is why.

[admittedly would like more context and statistics placing her opinion piece within a broader context, but man, if that's even half an accurate quote...]
posted by jetlagaddict at 7:41 PM on October 17, 2012 [4 favorites]


Remember the ADA is not your lawyer. The ADA is the lawyer for the State.
posted by humanfont at 7:43 PM on October 17, 2012 [25 favorites]


IBTP. Also my fucks are on back order.
posted by flex at 7:46 PM on October 17, 2012 [4 favorites]


May I sensitively inquire why the 99%-success-rate tactic was not used by the defense in the 10-year case?

Well, I doubt anyone posting here knows the details of that other case, so you're probably just going to get conjecture. Myself, I was able to come up with a pretty likely guess pretty quickly. Then I pondered the gap between explaining something and justifying it.
posted by benito.strauss at 7:51 PM on October 17, 2012 [5 favorites]


humanfront is right, it is a big mistake to think an ADA is your lawyer if you are the victim of a crime. The DA is not there to look after your interests, he or she is there to look after the state's interests and those are often or even usually not the same thing.
posted by Justinian at 8:08 PM on October 17, 2012 [3 favorites]


She mentioned fees and settling out of court, so she had her own civil lawyer for a (civil) assault lawsuit. Civil lawsuits for dismissed or acquitted rape charges are rare enough (and hard enough to win even with a lower burden of proof) that the plaintiff lawyer could easily add ask some insensitive questions in vetting the potential client and then preparing the complaint.
posted by MattD at 8:19 PM on October 17, 2012 [1 favorite]


I read the comments on the link. So many chilling, sad stories it just hurt to read them.
posted by cccorlew at 8:30 PM on October 17, 2012 [1 favorite]


What's her rapists name? It should be all over the internet.
posted by bottlebrushtree at 8:44 PM on October 17, 2012


What a horrible, horrible story.

One would think that they could generally rely on a DA when an obvious crime has been committed, but in this case apparently not.

If someone I cared about told me that an officer of the court told them that someone was going to employ "the slut defense" against them causing them to lose a fucking criminal rape case, I'd be sorely pressed to later employ "the shotgun defense" against said ADA in a secluded downtown alley.

While the "alleged" rapists name can't be all over the internet for legal reasons, the ADA's name sure should be. What a fucking travesty.
posted by Sphinx at 8:49 PM on October 17, 2012 [2 favorites]


I came to say the same thing: the ADA was not her lawyer and, frankly, sounds like a dipshit who decided he couldn't be bothered to win this one (prosecutors tend to have heavy caseloads and in liberal cities not very high conviction rates either.) DAs can also be prone to a sort of a careerist corruption when it comes to which cases they decide to spend time prosecuting, and it may be that this one simply wasn't worth his while in his estimation (Not all prosecutors are like this, obviously. It sounds like this one was, however.)

Also, it's not cheap to process rape kits by my understanding, and this one found evidence. So from the state's side, this guy wasted their resources not pursuing a case the state had seemingly locked down.

I don't need any more details than the author has already been willing to share, but I'm curious how exactly the defense in this case planned to present their "slut defense" while getting around rape shield law. The perpetrator was a stranger, which makes it unlikely that defense counsel had vindictive old acquaintances of the victim ready to besmirch her character on the stand, and cross-examining the victim on her sexual activity is strictly a no-go. Was there a hotel bartender ready to talk about how much she'd had to drink that night or something? Or were they just going to go with the defendant's version of events? In the case of the former - so the fuck what? In the case of the latter, great! You know how rarely a prosecutor gets to cross-examine a defendant? Eat him up!

Rape shield law is imperfect, the system is awful and even in the best of situations the process can be described, as it was in "The Not-Rape Epidemic" as a "second rape." Many many things need to be fixed and as it stands most rapes go unreported because a solution which should involve some degree of re-empowerment for the victims instead just drags them back through the same feelings in torturously slow-motion.

But in this case the author had already been through all of that when the ADA said, "nah." Except that's too kind. He didn't say, "nah." He said, essentially, "we're going to lose this because you're a slut." That's both an incompetent lawyer and an awful human being, and moreover I don't even trust him. The grand majority of work that criminal defense attorneys do to win cases is via suppression - i.e. finding ways that the cops and/or prosecutors screwed up. So I greatly suspect the ADA was covering his own ass. And even there in the most callous way imaginable. Note that he didn't say that they'd have trouble proving that there was no consent, but rather that the victim would be considered a "slut." If we're not talking about screw-ups on the state's side of things, then they would have:

1. Crime scene photos showing copious blood on the defendant's hotel bed as well as the vitcim's.
2. DNA evidence (much rarer than is generally assumed) of the defendant having penetrated her.
3. The victim's testimony as to the events.
4. Possibly a defendant available for cross-examination.

And again the defense is pretty hamstrung as to how they can play the "slut" card here. It happens to be sure, but it isn't easy and - surprise surprise - it tends to make the defense attorney and defendant look really bad when they try.

So yeah. I know it's not her point and that in the end she feels a conviction wouldn't have gotten her any more closure anyway. I'm still pissed at the god-awful ADA.
posted by Navelgazer at 8:56 PM on October 17, 2012 [19 favorites]


If someone I cared about told me that an officer of the court told them that someone was going to employ "the slut defense" against them causing them to lose a fucking criminal rape case...

The ADA's job is to prosecute the case. The defense attorney's job is to give her client the best defense she can provide. If that is the old "complainant is a slut and a liar" defense, then that is what they are going to run with. Because a) it is better than nothing, and b) it still works. The fact that it works is not the ADA's fault, and while he sounds like a douchebag, that doesn't mean he's a not a realist.
posted by DarlingBri at 9:01 PM on October 17, 2012 [1 favorite]


Soon after the lengthy ordeal was over, I got a tattoo that said, “Never going back again.” (Taken from a Tori Amos song, not Fleetwood Mac.)
The song played itself out in my head the minute I saw the tattoo. Related: it's never a bad time to donate to RAINN.
posted by Brak at 9:07 PM on October 17, 2012 [2 favorites]


What's her rapists name? It should be all over the internet.

Without a conviction, and with the out of court settlement, this is not going to happen. Because if she goes public with a name she gets sued for defaming his character and and and what is this I don't even. The settlement probably included very specific language to keep the name of the rapist from probably even being spoken to her family.

Beyond that, I just can't even. I was trained at a very young age that sexual abuse allegations were "not a nice thing to say about somebody." The message was not that you don't molest little girls. It wasn't that women had a right to say no. I wasn't taught that I had any body autonomy. So I don't even tell my closest family members about my childhood sexual abuse, much less everything that happened to me as a teenager and young adult. It's too exhausting to try to overcome the...well all of it. There just isn't any justice in it and once you've talked it through so many times, then you get to the point where people hear about it all and walk away thinking "that can't be real, or she'd be more broken up about it. Maybe she misunderstood what happened. Or else she's a slut." (The converse! You're too emotional? Then...you're too emotional and you can't be a reliable narrator of your own experience. Or you're exaggerating.)

The slut defense works. In part because a basic understanding of rape and rape recovery is very much lacking. Also in part because, rape culture.
posted by bilabial at 9:07 PM on October 17, 2012 [26 favorites]


It's not a happy story, but it's a common story. I certainly know people with remarkably similar stories of not having rapes prosecuted fully, often because the events drifted even slightly into some kind of "grey area" of consent. I started to type out examples but we all know them; it's like criminal law and the way people act don't fit well together in these situations and crappy outcomes are almost guaranteed.
posted by Forktine at 9:26 PM on October 17, 2012


He didn't say, "nah." He said, essentially, "we're going to lose this because you're a slut."

That wasn't my impression of the story at all. It reads to me like he said "we're going to lose this because the defense is going to call you a slut." That may have been a realistic and accurate statement of the facts, albeit presented in a very hamhanded and insensitive way.
posted by Justinian at 9:27 PM on October 17, 2012 [2 favorites]


The author mentions the case was "settled outside of court." I'm hoping that's just her interpretation of a plea agreement because, you know, violent felonies such as rape or sexual battery probably shouldn't be "settled outside of court" like some stupid patent-infringement case or something.
posted by hamida2242 at 9:47 PM on October 17, 2012 [2 favorites]


This is the way that rape cases are defended. Calling it "the slut defense" was obviously crass and insensitive, but the fact is, it IS the job of the defense attorney to raise the specter of reasonable doubt however she can.

Yes, it can get ugly. But we do it because we believe, as a country, that it's essential that everyone has effective assistance of counsel and a fair trial.
posted by snarfles at 9:49 PM on October 17, 2012 [2 favorites]


I realize this is it is an adversarial system, and the defense says that they have to say to get the client off, or they would be remiss. Perhaps the ADA sees this day in, day out and has become a jaded wreck. I realize we have a fucked up culture.

But honestly, in this case where the victim is bleeding, there is blood at the scene, the victim is covered in bruises and bites, that some sort of slut defense could work is unimaginable to me.

Even if we managed to subtract the rape from the equation there is the physical violence. If she was attacked in the street by a mugger could the perpetrator get off by saying she somehow secretly wanted to be mugged and beaten? Nobody could get off saying "she had money so she was asking to be mugged".

I guess in the end there was a plea bargain? So I guess we don't even know if the slut defense was used, but the fact that there is so little hope for a conviction is just breathtaking.
posted by Ad hominem at 9:52 PM on October 17, 2012 [9 favorites]


Justinian, I respect your reading of that. Mine is very different. Now, I'm a man. I've never been raped. I was not raised in the way bilabial explains above. There's a hell of a lot about all of this that I haven't experienced.

All I know is from the legal proceedings side of things, and how these trials work, and I do have training in that.

If the ADA is saying that there's nothing he can do to stop a "slut defense" then he is saying that he cannot form the word "objection," or else doesn't care to. While the defense is still viable and still finds every way to sneak itself in around the edges, it is pretty much the only defense for any crime which is actually legally barred from use. The ADA has no reason to stand back helplessly and watch it happen - it is in fact his job in those cases to prevent the defense from doing it and the court system is on his side there.

Now, I've seen first-hand how rape culture can work in these situations. In perhaps the most rage-inducing moment of my life, I was working on a reality show in upstate New York that involved a lot of volunteers from the very very small town we were working in. One of our projects involved renovating an ice cream shop. One of our teenage volunteers was raped by another student at her school, and promptly reported it. For reasons beyond my knowledge, this incident caused her parents to split up, but the thing that made me briefly lose faith in humanity was the grown daughter of the ice cream shop owner, who boasted all around town that she would testify for the defense about what a slut the victim was.

People can be horrible. Rape culture is real.

But rapists still get convicted. This wasn't a he-said-she-said date-rape case (only using that term to refer to difficulties with evidence, not the "legitimacy" of the attacks in those instances) but a case of strangers, with DNA evidence and pictures of copious amounts of blood and testimonials and cops who were there very shortly after the attack. From all that is described, this case is, if not a slam-dunk, certainly not a 99% loser. Not unless the author is leaving out major details, which I have no reason to believe she is.

This was a case of the ADA having other priorities and leaving the victim out in the cold.
posted by Navelgazer at 9:54 PM on October 17, 2012 [16 favorites]


Ad Hominem- It won't work, but you do it. The jury sees through the BS and convicts.
posted by snarfles at 9:58 PM on October 17, 2012 [1 favorite]


Also, the defense isn't she was asking to be raped, it's that it was consensual sex. I'm not saying that's what it was, but I am saying that that's the attorney's obvious argument.

Why the ADA decided not to prosecute-- I have no idea. But that sure isn't the defense attorney's problem.
posted by snarfles at 10:01 PM on October 17, 2012


What's her rapists name? It should be all over the internet.

naw, it sounds good, but unless you've been there, exposing the guy's name is too loud. It's a closer battle than that, facts are weapons.
posted by lakersfan1222 at 10:03 PM on October 17, 2012


Also, the defense isn't she was asking to be raped, it's that's consensual sex

Sure, but I just think saying she consented to being beat to hell and bitten would be a harder sell. Not that I am any sort of law expert, but people like me make up juries and we don't know anything about the law.

I've regained some faith. I guess there just needs to be an ADA that hasn't totally given up.
posted by Ad hominem at 10:04 PM on October 17, 2012 [1 favorite]


Ad Hominem: I'm pretty sure I've told this anecdote here before, but no matter:

Back in the pre-rape-shield days, my old supervising/training attorney was defending a man accused of robbery. They were in the courtroom early enough to see the rape trial preceding theirs.

The defense attorney went after the victim about her prior sexual history.

Once my supervisor's trial got underway, she cross-examined the robbery victim about whether he'd given charitable donations in the past, or given money to beggars on the street. Of course there was an objection on relevance.

Her reply, "Your Honor, it was relevant in the last case."
posted by Navelgazer at 10:06 PM on October 17, 2012 [61 favorites]


Yup, it is a hard sell. Saw a case that went down like this over the summer. The jury didn't buy it for a second.
posted by snarfles at 10:09 PM on October 17, 2012 [1 favorite]


snarfles: can you be a little more specific, please? What was a hard sell? Whose case did the jury refuse to buy?
posted by Navelgazer at 10:12 PM on October 17, 2012


Arguing consensual sex w/ obvious injuries.
posted by snarfles at 10:12 PM on October 17, 2012 [2 favorites]


Thanks.
posted by Navelgazer at 10:16 PM on October 17, 2012


This is why I give up. I'm so sorry this happened to you.
posted by OnTheLastCastle at 10:24 PM on October 17, 2012


Once my supervisor's trial got underway, she cross-examined the robbery victim about whether he'd given charitable donations in the past, or given money to beggars on the street.

This may not be uncommon. I was mugged last year, and at the preliminary hearing I had to be cross-examined by his attorney, who asked me similar questions. I had the feeling that the perp -- who had experience at playing the legal system -- may have said something along those lines in his statement to police. It may or may not be related that in giving my own statement, the police asked if I had given him my wallet (I had not, he and I had struggled physically as he grabbed it from my back pocket). Pretty ridiculous.

The point is, there are a number of crimes where it's a he-said, she-said situation with no other witnesses; only in sex crimes is it a social humiliation to say that the victim voluntarily assented to their own victimization.
posted by dhartung at 11:16 PM on October 17, 2012 [4 favorites]


Between this and the reddit thread, I was sitting here thinking, damn, is this rape culture week on metafilter or something?

And then I remembered that it is always rape culture week everywhere, and I became sad


Isn't it a good thing? The more that these issues penetrate public awareness, beyond survivor's groups and ivory towers, the better. A world of progress has been made over the last generation, and a world more will continue to be made.
posted by anonymisc at 11:48 PM on October 17, 2012 [1 favorite]


Charges Dropped Against Alleged DUMBO Upskirt Photog Because Victim Wouldn't Testify
One New York City prosecutor, who would only speak on condition of anonymity, offers some insight about the challenges encountered with these kinds of cases: "Reporters frequently stalk our sex crime victims, talking to their doormen, neighbors, family members, etc.—a total invasion of privacy, whether or not the name appears in print. I know of several cases where witnesses or victims stopped cooperating because of this, including some who did not even want close family members to know they were the victim of sex crime."
posted by homunculus at 12:37 AM on October 18, 2012 [3 favorites]


The "slut" thing wouldn't work if we as a society accepted that women can fuck anyone they want to whenever they want to just like men can. Also, no means no means no means no MEANS FUCKING NO. No matter how much sex the woman (or man, as the case may be) has, STOP WHEN THE WORD 'NO' IS SPOKEN.

And if it can be proven you didn't, then go to jail.
posted by Malice at 1:49 AM on October 18, 2012 [2 favorites]


The ADA's job is to prosecute the case. The defense attorney's job is to give her client the best defense she can provide. If that is the old "complainant is a slut and a liar" defense, then that is what they are going to run with. Because a) it is better than nothing, and b) it still works. The fact that it works is not the ADA's fault, and while he sounds like a douchebag, that doesn't mean he's a not a realist.
Well, we don't know what he did. It sounds like the guy got a deal. People who are provably guilty of various crimes get deals all the time. It doesn't mean that they couldn't have convicted if they'd really tried for it.

A lot of it probably depends on how expensive the opposition's lawyers are. If this guy was some poor person with a public defender, he very well might have been able to get a conviction without too much effort, while if they hired good lawyers it might have been far more difficult.
Without a conviction, and with the out of court settlement, this is not going to happen. Because if she goes public with a name she gets sued for defaming his character and and and what is this I don't even.
She might get sued. But has an unconvinced rapist ever won a lawsuit like that? My guess is that it's possible there was a civil settlement as well, in which case she would have been paid, and been restricted from talking about as a part of that agreement.
The author mentions the case was "settled outside of court." I'm hoping that's just her interpretation of a plea agreement because, you know, violent felonies such as rape or sexual battery probably shouldn't be "settled outside of court" like some stupid patent-infringement case or something.
Yeah, that was weird. Usually lawsuits are "settled out of court", while indictments are usually talked about in terms of "taking a deal"

She also mentioned her lawyer. Like I said, it sounds like she may have sued him civilly, and that lawsuit was settled. Which would explain why she was talking about her lawyer - that would be someone different then the ADA, and that would have been the person who told her to talk about it.
posted by delmoi at 2:16 AM on October 18, 2012


True enough, Malice, but good luck trying to prove a "no," especially if confronted with a (possible) backlog of questionable "yes'es".

Granted, there is a LOT we don't know about this case, but a few salient details emerge: this was a family man, who had an adjoining hotel room with her.

Many people on juries are unwilling to accept a scenario under which a so-called "ordinary guy" in an " ordinary situation" could suddenly become a monster. Whether it's a matter of civic pride, or just a case of "that could have been me," they are simply unwilling to accept a worst-case scenario, and will desperately cling to any mitigating circumstances, if only to hold on to their notion of " people around here are decent."

When given a choice between "this is just consentual sex that got out of hand" and "there is a monster living among you," juries will often tend toward the former, and that's nobody's (or, more accurately, everbody's) fault.
posted by ShutterBun at 2:19 AM on October 18, 2012


Delmoi, look up the Tawana Brawley case for a "worst case scenario" in which an accused (and exhonorated) assailant successfully sued for defamation.

Combine that with the likely devastating effect of the Duke Lacrosse Team debacle, and it's unlikely either side could have expected a fair trial.
posted by ShutterBun at 2:34 AM on October 18, 2012


bilabial : Without a conviction, and with the out of court settlement, this is not going to happen. Because if she goes public with a name she gets sued for defaming his character

1) Why can some 120 "Johns" in Maine get their names published in the paper on the thin premise that the DA might press charges, but this guy has an aura of sanctity around him?

2) The truth works as a positive defense against defamation.

3) Sometimes, seeing someone out of town by an angry mob makes little things like getting sued totally worth it.
posted by pla at 3:35 AM on October 18, 2012 [2 favorites]


A lot of it probably depends on how expensive the opposition's lawyers are. If this guy was some poor person with a public defender, he very well might have been able to get a conviction without too much effort, while if they hired good lawyers it might have been far more difficult.

I wish people wouldn't say things like this. Sure, PDs have less time and resources than private lawyers. But as a whole, at least in my jurisdiction, they are an extremely talented and hardworking group. Many are graduates from the top schools in the country who -- get this -- think helping poor people is important.
posted by snarfles at 4:21 AM on October 18, 2012 [3 favorites]


The DA's job is not to sympathize with the victim. It's to get convictions. If he can't realistically get a conviction, I think it's his moral responsibility to tell the victim why.

While saying "They're going to use the slut defense" is insensitive, he needs to be honest as to how the defense will portray the victim so that she is prepared. It's not his job to be the victim's therapist.

Furthermore, there's a lot of details that are not delved into deeply enough. Here are some things I noticed from the story:

1) The two of them were both staying in the same hotel.
2) Liquor was involved (he admitted he had been drinking).
3) He claimed she stole his wallet and ring.
4) The man's lawyer's used the "slut defense."

It's the third one that caught my attention, because what kind of defense is that? Nobody in a civilized country ever says "Well, she stole my wallet, so I raped her." That's just not a credible defense.

One possible explanation is that they met at the hotel bar, got drunk together and started behaving in physically affectionate ways, and then went upstairs together, where he raped her. The "slut defense" would have been very effective if all the publically witnessed activity was consensual whereas the rape was private. Also, it would also explain how the theft was a valid counterclaim: it would have been phrased as "Our sex together was voluntary; the real reason she's accusing me of rape is because I discovered that she stole my stuff and confronted her."

Obviously this is all speculation, but it fits all the details in a manner that actually makes logical sense and explains why things happened as they did, instead of being a complex tapestry of inexplicable events. It would certainly explain the DA's behavior, and why he felt he couldn't get a conviction. My heart goes out to this woman, because I do believe that she got raped, but I don't believe that her story about what happened during the legal process is particularly credible. (Not that she's lying, just that it sounds like she's cherry-picking details - or maybe the editors of XOJane did.)
posted by wolfdreams01 at 5:40 AM on October 18, 2012 [7 favorites]


A long time ago I worked with a guy who used the whole "she stole my wallet" thing to try and get out of getting caught cheating a prostitute -- he created a narrative that basically involved meeting her at the hotel bar, drinking together, going up to his room, and having consensual sex, after which she freaked out, demanded money, and stole his wallet. Her story went more like she propositioned him at the bar, he agreed to the price, they went up to the room and had sex, and when he wouldn't pay her afterwards she called hotel security who called the police.

In that case the wallet was magically found under a pillow, he gave her money under duress, and the hotel asked him to leave; nobody got arrested. So it was a happier story in that the theft claim didn't work, but it could easily have worked and probably most does more often than not.

Claiming theft sets up a story where not only does she have such low morals as to have agreed to consensual sex, but is also so untrustworthy as to steal her partner's wallet after the sex; hell, with that much interest in money, you might even think she was a prostitute, right? It's incredibly shitty, but I'm not at all surprised that a good lawyer, combined with an ADA who isn't interested in a chancy and drawn-out he said/she said trial, combined with a monetary offer to the victim, could make this work.
posted by Forktine at 5:57 AM on October 18, 2012 [1 favorite]


probably most does more often than not.

Grammar fail!
posted by Forktine at 6:04 AM on October 18, 2012 [1 favorite]


Yeah . . . Americans really want to trust the legal system, so while these bad experiences are incredibly common, they don't get talked about. Though I guess it's probably better than sexual assault victims just en masse giving up on getting the legal system to defend their interests.

This, by the way, is why I just can't get behind all the comments in threads like the recent Boy Scouts one that say things like "If you, as an adult, witness sexual abuse of a child, do not pass Go, do not collect $100, call the police immediately!" Because if you do that, you may well be plunging the child into an entirely new world of shit. This is not to say that going to the legal system is the wrong thing to do -- I think it's usually the right thing, because of the danger of the abuser going on to abuse other children -- but it involves the victim in whole new layers of pain and humiliation, and even when the victim is a child, they deserve to be consulted about it so they can prepare themselves and feel a little agency.
posted by ostro at 7:20 AM on October 18, 2012 [1 favorite]


Because if you do that, you may well be plunging the child into an entirely new world of shit.

I would suggest that at the time you witness sexual assault (child or not), the victim would probably like for it to stop, regardless of what society does afterward.
posted by Mooski at 7:41 AM on October 18, 2012 [2 favorites]


Absolutely. But there are sometimes -- not always -- ways to get it to stop for the time being that don't involve the police, while you consult with the victim themself about how to proceed next. Again, I think taking it to the legal system is almost always the right thing to do, if only for the sake of other children who may be victimized by the same person, but the pick-up-that-phone-right-now, how-could-you-delay-a-second approach really ignores the awful secondary trauma that can be inflicted through legal involvement. Victims -- adults and children alike -- at least deserve to know what's coming, and part of what this article seems to be saying is that the author wishes she had known that.
posted by ostro at 7:54 AM on October 18, 2012


Victims -- adults and children alike -- at least deserve to know what's coming, and part of what this article seems to be saying is that the author wishes she had known that.

It's an interesting problem, I agree; I'm just not sure that it should be a judgement call as to whether to report a sexual assault to police. On one hand, my feeling is that you must limit the suffering of the victim as much as possible- on the other, you absolutely must do everything you can to prevent the predator from victimizing others.

That our justice system has flaws that harm victims can't be used as a reason to not attempt to bring criminals into that system.
posted by Mooski at 8:00 AM on October 18, 2012 [1 favorite]


Thing is, that kind of prioritization of prevention of future attacks effectively asks victims of sexual assault to sacrifice themselves (their best path to recovery, their reputation, often their friends and family . . . it goes on and on) for others. Now, much as I hate to, I can just about accept that -- it falls into the category of the universe being unfair and sometimes asking of us heroic things that we never signed up for.

But if we're going to ask that of people, we at least owe it to them to give them agency in the final decision and not to trivialize or minimize what they're about to go through. And right now we, as a culture, are not doing that. Nobody tells sexual assault victims (and certainly not child victims) that going to the legal system is likely to be a retraumatizing experience, because, as people who value our legal system, we don't like to think that. And often (I'm not saying that you're saying this) instead of respectfully hoping that victims will choose to take on a difficult burden for the public good, we threaten them, saying that if you're assaulted and don't say anything, and then the perpetrator assaults someone else, all those subsequent assaults are Your Fault.

My hope is that if we can acknowledge for once that taking your case to the legal system really can hurt rather than help, we'll be shocked into changing it. But who knows.
posted by ostro at 8:31 AM on October 18, 2012 [1 favorite]


My hope is that if we can acknowledge for once that taking your case to the legal system really can hurt rather than help, we'll be shocked into changing it. But who knows.

I guess the question is, are you sure you want to change it? How so?

Would the result be that it is easier to convict defendants? Is that really what we want in a country that has a huge prison population? How would you specifically address sex assault cases?

I guess what I'm saying is, I'm happy that a defendant gets to confront a witness in court. Would you rather someone's word send another person to jail without that word being tested?

I'm all for beefing up victims' advocate programs and other support avenues for victims navigating the court system. Being involved in a criminal prosecution is tough, and I'm not underestimating that. But what's the alternative?
posted by snarfles at 9:07 AM on October 18, 2012


Well, yes, I'd like it to be easier to convict guilty rapists. (How I feel about the prison system in the US is a complete other story, but "let's not make any additional effort to convict the guilty" is not the right way to start reforming or replacing it.) And yes, defendants have the right to confront witnesses, but the way the witness's word is "tested" is very different in sexual assault cases than in other kinds of cases, and that should change. (Think of the common example of how we don't assume that a person going to court over the theft of their car just lent their car to the defendant and is now "regretting" it.) Emphasizing the role of active consent (rather than just "I didn't hear her say no") would help here.

But in general, I don't necessarily mean changes in the legal system. A lot of the pain of a sexual assault prosecution comes from the rejection and disgust of family and friends, who want to find every possible reason it was the victim's fault so they can go on believing it could never happen to them. (Or, alternatively, it comes from keeping everything you're going through an absolute locked-down secret because you fear that reaction, or just fear being categorized as damaged goods.) If we, as a society, could consider having been sexually assaulted as no more shameful to the victim than having been non-sexually beaten up, that would be a big step. And if we could get juries that really had it established in their minds that rape consists of violation of consent, not of some kind of property crime against a pure virgin, it would be a lot harder to get rapists off on the "slut defense" or handwave away cases because of that possibility.

The legal system is definitely moving in the right direction, what with rape shield laws, etc, but there are still some specific changes to be made -- note the place in the article where the hospital-room door stands open as the police officer takes all the necessary but invasive photos. But I think a quite a bit of the remaining work to be done falls under this umbrella of attitude change. Luckily, this is something we can all DIY.
posted by ostro at 9:40 AM on October 18, 2012 [1 favorite]


I've personally argued that someone who was charged with stealing a car was lent a car.
posted by snarfles at 9:49 AM on October 18, 2012


Thanks for this. It's part of what makes a commitment to criminal defense so difficult. (Credibility attacks are one of the best defenses against rape and sexual assault charges, rape shield or no.)

Also really appreciated the bit about her talking with the person whose rapist had been incarcerated. I think she gets at something important going on there that I hadn't thought as much about before.
posted by likeatoaster at 9:49 AM on October 18, 2012


Well, yes, I'd like it to be easier to convict guilty rapists. (How I feel about the prison system in the US is a complete other story, but "let's not make any additional effort to convict the guilty" is not the right way to start reforming or replacing it.)

But how do you know he is guiltily before the trial? Because she said so? You want accusations to be enough for jail time?

Our personal value system is different from the legal system.

Example: a close family member confided in me that she had been raped by an acquaintance of ours. For me personally, that's enough evidence for me to know and believe that my family member was raped and that this guy is a rapist.

But I'm not the state. The state has the power to toss people in jail and because of that, a jury has to find that the guy did it beyond a reasonable doubt. That's a high bar, but trust, we don't want to be throwing people in jail for less than that. The state doesn't know my family member. It doesn't know whether she is credible, or whether she's a compulsive liar who has falsely accused ten people.

So, unfortunately, she's got to get up there, and answer a bunch of humiliating and offensive questions if the state is going to be able to prove that it happened.

Personally, I don't believe a rape victim has the responsibility to report. And unless it was a crystal clear stranger rape, I doubt I'd report it myself. The judicial system is a beast. But we are committed to a system where we'd rather have a guilty man go free than an innocent man go to jail. And maybe this is unpopular, but I sure as hell hope it stays that way.
posted by snarfles at 10:10 AM on October 18, 2012 [5 favorites]


Think of the common example of how we don't assume that a person going to court over the theft of their car just lent their car to the defendant and is now "regretting" it.

When I was younger, I used to be a lot more of a seductive smooth-talker than I am today, and one thing I discovered through my own experiences is that when women are socialized to believe that hooking up just for sex is bad, there will be a lot of "morning-after" regret. If a Muslim woman who is committed to not having sex before marriage sleeps with you, or somebody in an LTR cheats on her boyfriend, there is often a lot of unhappiness afterwards. And when it comes to finding somebody to blame for their unhappiness, people are willing to do all sorts of weird mental gymnastics so that they don't have to blame themselves. "I'm not that kind of girl... I must have been really drunk! I would never cheat on my boyfriend!" Even if it's just something as trivial as sleeping with somebody on the first date, a lot of women feel very guilty about it and feel that it cheapens them somehow, so they try to find excuses that diminish their agency in the seduction. I don't know why - I'm simply noting my personal observations.

My point is that we need to be skeptical of all accusations in our legal system... and your glib point about cars sort of comes off (in a certain sense) as society needing to give accusers of rape the benefit of the doubt, because why would they make such accusations if they weren't true? If that's indeed what you're trying to suggest, I don't think that's a very healthy viewpoint. People generally tend to regret letting somebody use their body a lot more than they regret letting somebody use their car.
posted by wolfdreams01 at 10:56 AM on October 18, 2012 [1 favorite]


Many people on juries are unwilling to accept a scenario under which a so-called "ordinary guy" in an " ordinary situation" could suddenly become a monster.

It'd be easier to convince them that he is a monster who poses as an ordinary guy.
posted by Malice at 11:08 AM on October 18, 2012


It's an interesting problem, I agree; I'm just not sure that it should be a judgement call as to whether to report a sexual assault to police. On one hand, my feeling is that you must limit the suffering of the victim as much as possible- on the other, you absolutely must do everything you can to prevent the predator from victimizing others.

First, why are these framed as being mutually exclusive?

Wow. As a victim, it's my job to protect potential future victims? This is even worse than telling me that being _[defect/negligence/choice]__ made my _[victimization]_ my fault. Now, my painful awareness that reporting is humiliating (naked, probed, photographed, interrogated), heart breaking(blamed), crazy making (doubted, denied, shamed) is information I would absolutely use in deciding whether to report a future assault.

We are doing something wrong when we don't send the message 'don't sexually assault people.' for the message to be "victims must tolerate being disbelieved, shamed, vilified, etc in the unlikely hope that their public testimony puts a perpetrator in jail long enough to prevent assault on another victim" disgusts and terrifies me.

Because that is not effective unless the guy goes to jail for a very long time. we know it's not because that's what we've been tellingm rape victims for quite some time now. So victims get retraumatized and the perpetrator either walks, gets a slap on the wrist, or serves a short sentence.

What seems to be effective is teaching everyone that women and girls are people. Furthermore, that it is possible to be told no and hear it. That sexual desire is temporary and not crippling, blinding or overpowering. Teaching women and girls some cues to look for in a man who disrespects women generally and sexual women particularly. Giving women permission to avoid and risk offending men who view women as objects. Ensuring that women aren't called bitches for refusng a drink at a bar/calling out misogynist jokes/refusing a ride from from a vaguely creepy guy.

We have a better track record of establishing that a person can be held accountable for what they do with a car than with their sex organs. That has to stop.
posted by bilabial at 11:26 AM on October 18, 2012 [2 favorites]


We are doing something wrong when we don't send the message 'don't sexually assault people.' for the message to be "victims must tolerate being disbelieved, shamed, vilified, etc in the unlikely hope that their public testimony puts a perpetrator in jail long enough to prevent assault on another victim" disgusts and terrifies me.

I don't disagree that it's awful, but just so you know, once you get to the stage where you are testifying publicly at trial, the rape conviction rate is actually quite high. (It's the reporting and arrest rates that are low).
posted by snarfles at 11:49 AM on October 18, 2012


I've personally argued that someone who was charged with stealing a car was lent a car.

Sure, but this is in no way the immediate assumption the way it is in rape cases. Presumably you had to actually argue the likeliness of this point, rather than just say "Well, there's no evidence that a conversation where A lent B the car didn't happen . . ." For cars, the assumption is that people keep them to themselves unless there's specific reason to believe that they gave someone else temporary access. For bodies, for some reason, the assumption is that they are open for public use at all times, and the onus is on the woman to prove that at this particular moment, alone of all others, she did try to shut the vagina-doors. It's as if, for car theft, you had to run along next to the car screaming and banging on the windows for it to "count," or else everyone will just assume that the random driver had automatic consent to drive off in your car. This is fucked up.

why would they make such accusations if they weren't true?

Do you really think it's common for a woman to regret consensual sex, try to dismiss it as much as possible (which, yes, clearly happens) . . . and then promptly open herself up to the kind of sexualized public humiliation described in this article? If a woman with a boyfriend sleeps with someone, her boyfriend may never know, but if she accuses someone of rape, her boyfriend will know, and possibly blame her. If a religious woman from a conservative community accuses someone of rape, her community will know, and possibly blame her. In most circumstances, saying that you were raped doesn't take away any of the existing ugly consequences of having had consensual sex; it just adds a whole boatload of new misery. Someone may try to convince herself, privately, that she didn't consent when at the time she did (though, honestly, I doubt that many people frame this even to themselves as rape, because having to see yourself under the label of "rape victim" is, for a lot of women, even worse that "cheater" or "promiscuous") but I imagine she's very, very unlikely to go to the police about it and let herself in for all this. And frankly, it's pretty insulting that you think it's anything but a very uncommon reaction for a woman who merely regrets a sexual act to perjure herself and put an innocent man at risk of prison.

I don't doubt that it happens occasionally, because all kinds of weird shit happens occasionally. But I think the legal system already has pretty good precautions in place to determine when somebody is clearly unstable/has an obvious incentive to lie/has a version of events that doesn't add up/etc. And I really question the assumption that any reform making it easier to convict actual rapists would also make it easier to convict the falsely accused. The idea that it's better to set free a hundred of the guilty than to convict one of the innocent is unquestionably a basic principle of our legal system, but it also tends to get pulled out as a way of dignifying the conclusion ". . . therefore, let's not even try to change." There's an extreme caution here that seems to go way above and beyond the standard applied to other types of crimes. At the moment we're sacrificing thousands and thousands of rape victims to this weird specter of the innocent man accused by the crazy bitch, which is not a specter that seems to come up in the case of other crimes that depend on conflicting sets of events. Doesn't that seem screwed up to you? The process of prosecuting a sex-related crime is never going to become fully non-humiliating until our culture becomes fully non-fucked-up. But in the meantime, we could be doing better.
posted by ostro at 11:55 AM on October 18, 2012 [2 favorites]


Rape and Attrition in the Legal Process, 39 Crime & Just 565 (2010) puts the conviction rate in the US at 74% at trial.
posted by snarfles at 12:06 PM on October 18, 2012


People generally tend to regret letting somebody use their body a lot more than they regret letting somebody use their car.

A-what now???
posted by kettleoffish at 12:08 PM on October 18, 2012


Between this and the reddit thread, I was sitting here thinking, damn, is this rape culture week on metafilter or something?

Another great article on reddit on that site. I am bookmarking it just for the comments.
posted by kettleoffish at 12:16 PM on October 18, 2012


At the moment we're sacrificing thousands and thousands of rape victims to this weird specter of the innocent man accused by the crazy bitch

You're really sort of escalating this unnecessarily. Nobody called anybody a "crazy bitch", and when you invoke extreme scenarios like that you're unnecessarily escalating the grar factor of this thread. It also makes it harder to respect your viewpoint when you put words in people's mouths that they didn't actually say.

But I think the legal system already has pretty good precautions in place to determine when somebody is clearly unstable/has an obvious incentive to lie/has a version of events that doesn't add up/etc.

Yes, it does - the top precaution being the presumption of innocence, which is exactly what you are proposing to change.

The process of prosecuting a sex-related crime is never going to become fully non-humiliating until our culture becomes fully non-fucked-up. But in the meantime, we could be doing better.

OK... well, what do you propose? If you have any specific suggestions that preserve the fairness to the accused while at the same time being more sympathetic towards rape victims, I'm sure you'd find a welcome audience here. However, so far you've just been speaking in generalities, which is lazy philosophizing. Anybody can make general statements about how things could be improved, but the devil is in the details.
posted by wolfdreams01 at 12:20 PM on October 18, 2012 [2 favorites]


Fairness to the accused while at the same time being more sympathetic towards rape victims...

Rape victims do not need sympathy, they need fairness.

YES, the devil is in the details.
posted by kettleoffish at 12:23 PM on October 18, 2012


. It's as if, for car theft, you had to run along next to the car screaming and banging on the windows for it to "count," or else everyone will just assume that the random driver had automatic consent to drive off in your car. This is fucked up.

Sure, it's different, and my response was flip. But how do you suppose you would ever conduct a fair trial without asking these questions of the witness? Remember, innocent until proven guilty and all that. The burden is on the state to affirmatively prove that it was not consensual. The burden isn't on the defendant at all. They could sit there and do nothing and be acquitted if the state can't establish the lack of consent. That means asking the witness questions about the context of the non-consent.

Let's say I have a client charged with rape. The complaining witness was a friend of his. There's DNA evidence but no evidence of trauma.

She gets on the stand and goes through direct examination with the prosecutor, where she says that she told him no but he kept going. My turn to cross-examine. Would you like me to not ask anything and send my potentially innocent client to jail? Do you think a rape victim should be isolated from a cross-exam? How about an assault or battery victim?

Seriously, I'm curious as to how you think this should play out if you have a problem with how it works now.
posted by snarfles at 12:26 PM on October 18, 2012 [1 favorite]


Rape and Attrition in the Legal Process, 39 Crime & Just 565 (2010) puts the conviction rate in the US at 74% at trial.

That statistic is less helpful than it seems, because the bulk of the criminal legal system takes place in the pre-trial bargaining process. Like in this piece, where she never even went to trial because she was advised not to be the DA based on his assessment (rather than a jury's assessment) of the triability of the case.
posted by likeatoaster at 1:03 PM on October 18, 2012


61% of the sample pled guilty. 8% went to trial (where 74% were convicted). So that's a 67% overall conviction rate, which is high. I cited this stat because bilibial was talking about the humiliation of public testimony, which goes hand and hand with a trial.
posted by snarfles at 1:08 PM on October 18, 2012


You're really sort of escalating this unnecessarily. Nobody called anybody a "crazy bitch", and when you invoke extreme scenarios like that you're unnecessarily escalating the grar factor of this thread. It also makes it harder to respect your viewpoint when you put words in people's mouths that they didn't actually say.

I don't think that you're calling anyone a crazy bitch -- that part of my comment was intended as a general summation of our culture's attitudes towards rape prosecutions, not as a summation of your comment. I'm sorry if my wording was unclear. Honestly, though, I do think your comment taps into that general cultural vein of "women are unreasonable, unpredictable and irresponsible" that also produces outright "crazy-bitch" attitudes.

Yes, it does - the top precaution being the presumption of innocence, which is exactly what you are proposing to change.

If you have any specific suggestions that preserve the fairness to the accused while at the same time being more sympathetic towards rape victims, I'm sure you'd find a welcome audience here. However, so far you've just been speaking in generalities, which is lazy philosophizing.

As I've said several times here, I think the biggest necessary changes are cultural as I've described above, not legal. I would be content to have big changes in the culture with no changes in the legal system, if it were to happen that way. But since you ask specifically about the legal system: no, clearly the presumption of of innocence is an overriding principle, but it seems to be defined differently in sexual assault cases than anywhere else. Right now, the standing idea is that a woman in her daily life, walking down the street, going to the grocery store, is consenting, consenting, consenting, until she stops consenting. I would like to change that to an idea that a woman in her daily life is not consenting, not consenting, not consenting, until she explicitly consents. Just like with cars. This doesn't alter the principle of innocent until proven guilty -- the state would still have the burden of proving that sexual contact took place, just like it currently has to show that the car was in fact in possession of Person B. But just like we accept that there must be some specific reason to believe that Person B might have had permission to take the car, otherwise we believe Person A when they tell us that Person B had no permission, we require evidence that Person B might have had permission to have sex with Person A, otherwise we believe Person A when they tell us that Person B had no permission. For example, in both cases, a preexisting relationship between the two people would be very good for Person B's case, but not conclusive, since you can both steal a car you've borrowed before and rape a person you've had consensual sex with before.

My turn to cross-examine. Would you like me to not ask anything and send my potentially innocent client to jail? Do you think a rape victim should be isolated from a cross-exam?

No, not if you're talking about standard probing into her version of events, the cohesiveness of her narrative, etc. The fact that that kind of cross-examination is humiliating is basically the fault of the culture we live in that defines having been sexually victimized as humiliating, not the fault of lawyers. It's not your job to take responsibility for the fucked-up culture we live in by declining to cross-examine in order to protect the witness from that culture. But there's cross-examination and cross-examination; it is, on the contrary, your job to avoid exacerbating its harm by implying that she was so slutty as to be unrapeable, in the various ways that can still be gotten away with under rape shield laws.
posted by ostro at 1:26 PM on October 18, 2012


pla writes "
1) Why can some 120 "Johns" in Maine get their names published in the paper on the thin premise that the DA might press charges, but this guy has an aura of sanctity around him?
"


1) It's really hard to tell from the mashed together legal narrative but if there was a settlement in a civil case it's probable that she risks having to repay the payout if she names names.
posted by Mitheral at 4:35 PM on October 18, 2012


[Please don't do the "let's argue about rape from first principles" thing here, it's not what the thread is about and it's a classic derail technique even if you don't mean it to be. If you're not trying to criticize, try harder with how you phrase your conversations here. Contact form always available. Thank you.]
posted by jessamyn at 5:11 PM on October 18, 2012


I would like to change that to an idea that a woman in her daily life is not consenting, not consenting, not consenting, until she explicitly consents. Just like with cars. This doesn't alter the principle of innocent until proven guilty -- the state would still have the burden of proving that sexual contact took place, just like it currently has to show that the car was in fact in possession of Person B. But just like we accept that there must be some specific reason to believe that Person B might have had permission to take the car, otherwise we believe Person A when they tell us that Person B had no permission, we require evidence that Person B might have had permission to have sex with Person A, otherwise we believe Person A when they tell us that Person B had no permission.

1) What do you mean by "explicitly consents?" I have never had a woman explicitly tell me "You now have permission to have sex with me." Nor do I think I ever will, since asking in such a way would be deeply unromantic and a total mood-killer. We usually just start by making out and advance slowly from there, with the assumption that the woman will stop me if I start doing anything that she is uncomfortable with. What is your expectation for how this should occur?

2) Suppose that the hypothetical scenario occurs where a woman does formally state "You now have permission to have sex with me" (thus meeting your standard of explicit consent). If she later accuses me of rape, how do I prove that she said that? Most of my sexual activity tends to be private, so presumably the only two witnesses there when she said it would be me and her. Should I have her sign a formal document before sex begins? How exactly does person B "prove that consent was given" in this scenario, according to your proposed law?

I'm not being sarcastic: I'm genuinely curious to explore this further. You recommended this hypothetical change in the law so I think it makes logical sense to question how it would play out in real-world scenarios.
posted by wolfdreams01 at 5:34 PM on October 18, 2012


We usually just start by making out and advance slowly from there, with the assumption that the woman will stop me if I start doing anything that she is uncomfortable with. What is your expectation for how this should occur?

"Yes Means Yes" (blog) is a cornerstone of feminist sex-positivism that answers your question. (Not just saying, hey, go read this blog and figure it out. I mean that whole concept of enthusiastic consent.)
posted by Navelgazer at 6:07 PM on October 18, 2012


1) What do you mean by "explicitly consents?"

Explicitly consents doesn't mean "You have permission," it means waiting for an enthusiastic go-ahead of whatever method the consenting parties are both into-- saying "Yes," for example, or kissing with tongues, or whatever. It means pausing along the way to make sure everyone's okay with what's going on. Many women do not enjoy being in the position of having to say "No, I am not comfortable with this." (Nor for that matter are men always the aggressive ones.) Some men do not listen for no, and do not wait for enthusiastic consent.

Suppose that the hypothetical scenario occurs where a woman does formally state "You now have permission to have sex with me" (thus meeting your standard of explicit consent).


I can't answer on behalf of the original poster, obviously, but the way I have taken this to mean is more of a societal change. Frequently, rape victims are accused of not saying no enough times, of not fighting back enough, of having been okay with one thing but not okay with the next, which is to some people okay justification for the guy being confused and going on and raping her. There is another idea that many women like saying no, that they enjoy the pushing past their boundaries, that it isn't the fault of the guy for not getting that no really meant no. This is kind of a toxic environment, for a lot of reasons: people get pressured into things they're not really that into, victims get demonized, there is honest confusion about levels of consent all around. If sex is generally reframed around yes instead of no, some of that toxic environment is relieved. The onus is on both parties to prove they sought yes, instead of one person defending themselves for not saying no hard enough, for not being a perfect victim.

This is probably not the most eloquent defense of the idea. But it was somewhat groundbreaking when I head about it, and it reframed sex in a way that was much healthier. It's promoted by some of the on-campus groups where I work, and I think it helps many people, especially younger ones who are sorting out their own boundaries, to reconsider how they approach relationships: theirs, and the ones they see around them. It's a much more positive spin on consent.
posted by jetlagaddict at 6:15 PM on October 18, 2012


Look, I don't need to be educated in feminism - I've dated quite a few ardent feminists, so I'm pretty well schooled in it, thanks. I'm just wondering about the practical consequences of implementing a law which specifically required the person accused of rape to prove that it was consensual.

For example, here's a related question for you: right now, the default position of lawyers who defend people accused of rape is to claim that the sex was consensual, so it becomes a classic "he said, she said" scenario where the accuser is required to prove guilt or have the case thrown out. If you change this so that the accuser is shielded and the accused person now needs to conclusively prove their innocence, then it seems like the more tactically advantageous thing to do would be for the man accused of rape to make a counterclaim saying that the woman raped him. At that point, not only does he get shielded by all the same legal protections that his accuser has, but now - bonus! - there's even a small chance that the person who got raped would go to prison. After all, how can she "conclusively" prove that she didn't get him drunk and tie him up or something like that? I don't see how that scenario is better than the current situation - in some ways, it even appears worse.

Of course, you could easily avoid that scenario by having the law specify that women are incapable of raping men. But it seems like that addendum would carry its own set of problems, don't you think? Etc, ad infinitum.

My point is that if you're seriously talking about all the ways that this law could be used to help people, you also need to think about all the ways it could be abused to hurt people. Otherwise, it's just a very poorly conceived law.
posted by wolfdreams01 at 7:37 PM on October 18, 2012


The reason we're talking about needing social reframing of the concept of consent is because when men raise the objection that they wouldn't be able to get off without the woman saying, "yes," and that said concern is of a higher priority than women not being raped, it adds to the problem as a whole.

Consent is always going to be the central element in a criminal rape case, and will thus always need to be proven by the state (lack of consent, that is.) What is maddening here is that men would be so concerned about enthusiastic consent, like paranoid that they can't get laid without it.

Basically, if a man can't ask in some way if the woman wants to have sex, because he's not confidant that he'll get an affirmative reply or that doing so would kill the mood or something, well, what business does that man have trying to define rape? What business does he have saying she only regretted it later?

Rape Culture is defined by men trying to assert the rights of their horniness over those of women who might not be quite so down. The solution is for society to stop giving any weight at all, legally or otherwise, to how bad you want it.
posted by Navelgazer at 8:08 PM on October 18, 2012


I think I know one person--my old self-defense instructor, a martial arts black belt who fought it off both times--who reported an assault once. She got assaulted twice and reported once. And she said she'd never report again. That generally seems to be the recommended thing--he's going to get away with it no matter what, this just prevents you from being raped twice, except this time it's by the legal system too.

I seriously wonder what the hell it is women did (exist, I guess) to bring such hate out. I guess just owning a vagina is asking for it.
posted by jenfullmoon at 8:57 PM on October 18, 2012


I don't quite get how enthusiastic consent makes a difference here - it doesn't create a papertrail, it doesn't change the courtroom he-said-she-said dynamic. As long as it remains legal to consent in private, the problem is unchanged.

It's obviously a good thing, but its purpose is preventing cases where one person doesn't realise the consent isn't mutual, or has changed.
posted by anonymisc at 9:20 PM on October 18, 2012 [1 favorite]


Anonymisc captured my point exactly. I feel that one thing Mefites do consistently is complain about existing systems and processes without offering any good solutions of their own, because tearing things down is easy, but coming up with sensible solutions is hard. For example, Ostro made a good point about how rape victims get the short end of the stick, but I think we've just demonstrated conclusively how her proposed solution (which, to recap, would involve placing burden of proof on the accused rapist) could be abused. And I only mentioned a few of the ways - I didn't even go into the other options. For instance, if an unscupulous person wants to squeeze money out of somebody rich, all they have to do is some BDSM sex with them, then blackmail them with a rape suit. Or hell, just report it to the police, show the bruises, and file a civil suit in addition to the criminal charges. With all these potential negatives, is there anybody who seriously thinks her suggestion was a good idea? Who wants to step forward and support the idea of blaming "burden of proof" on the accused rapist?

This is something that is really maddening to me - when people critique the system and have nothing better to propose, or have proposals which are poorly thought out and obviously have not been subjected to critical analysis.

By way of contrast, let me offer a proposed change in the law that has been subject to critical analysis, so that you can see the difference. Rapists tend to be repeat offenders, right? So how about simply changing the statute of limitations for rape? Currently the only type of rape charge which has an extended statute of limitations in most states is rape in the first degree, which is a very small minority of these cases. If you extended the statute of limitations for 2nd, 3rd, and 4th degree rapes, this would give victims more time to heal from their trauma before beginning the trial process - as well as making it more likely that other potential victims will come forward. This could potentially give the DA much more evidence to work with, and the drawbacks of such a law (if any) would be very few.
posted by wolfdreams01 at 5:54 AM on October 19, 2012


wolfdreams01 writes "This is something that is really maddening to me - when people critique the system and have nothing better to propose, or have proposals which are poorly thought out and obviously have not been subjected to critical analysis."

The root of the problem is that there isn't a _good_ solution. Every solution is a trade off between different undesirable outcomes. The best we can do is try to spread the pain around evenly. Sadly that is often the case in any criminal event.
posted by Mitheral at 6:18 AM on October 19, 2012


Well Mitherai, what's wrong with fixing the system through incremental change? By which I mean, instead of these moon-eyed suggestions for radical legal overhaul - where the full ramifications have obviously not been considered - why not simply make gradual tweaks to get closer and closer to your desired results?

For example, my own proposed change (which you linked to) wouldn't "fix" the system, but it would certainly improve it, and there's almost no downside. Furthermore, it's something that could actually be implemented because it's not divisive in the way that extremist feminism tends to be - it doesn't expand one gender's legal protections at the expense of the other gender. The only people whose protections would be stripped under my suggestion are those of actual rapists, whom I'm pretty confident nobody wants to defend.
posted by wolfdreams01 at 6:33 AM on October 19, 2012




wolfdreams01 writes "Well Mitherai, what's wrong with fixing the system through incremental change?"

Nothing really but substantive change is limited not by the rate of change but by the lack of a good solution. A Sophie Choice situation doesn't become solvable by having the victim be nibbled to death by ducks rather than shot.

I can't much speak specifically to your incremental change proposal as I don't even know what the current limits are. In general I'm hesitant to change something complicated like the statute of limitations to achieve some goal even if that goal is perceived fairness. These sorts of changes tend to have unintended consequences (see mandatory minimums which turn out to be horrible pieces of legislation in many cases resulting in more unfairness rather than less). It certainly would require much study.

For the sake of discussion: The drawbacks are diffuse and insubstantial but still exist especially for anyone who is actually innocent. Generally there is more chance of judicial error the later cases are brought. Evidence fades and in non-material cases memories drift. Resources are limited and an argument can be made that priority should go to newer cases more likely to have a successful prosecution. Also justice needs to be perceived as fair and part of that is that it be dispensed in a timely manner. An innocent person being charged with crimes decades after the alleged occurrence is going to have substantially more difficulty defending themselves than if they were accused of a crime last week. Cripes I'd find it basically impossible to defend my self of any criminal accusation that dated back the 20 years to college unless I was lucky enough to have been out of the country at the time. People with total recall would of course fair better.

Finally I believe that the justice system should be rehabilitative more than retributive. If someone hasn't committed any offenses besides a rape 20 years ago little rehabilitative good will result in prosecution and may indeed result in more harm overall than good. Not to say that doesn't suck for the rape victim but that isn't really what law is about.

Which leads back into my comment that sometimes shitty things happen and resolving those shitty things doesn't always have a clear winning path.
posted by Mitheral at 5:17 PM on October 19, 2012


Indiana Republican Senate candidate Richard Mourdock says God at work when rape leads to pregnancy.
posted by jeffburdges at 2:17 AM on October 24, 2012


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