Thursday, July 26, 2007

Towards a Feminist Theory of Rape Defense

I remarked once before that one of my recurring fears is of being falsely accused of a crime. I have no idea why this particularly misfortune sticks in my head so persistently, but it does. As a result, in my various writings and musings on feminism and its related topics, I have been perpetually intrigued by the question: How does a feminist defend himself against rape charges? While I have seen many (very justified) criticisms of a variety of common rape-defense tactics (slut shaming, “she was asking for it”, etc.), to date, I have never seen any examination or recommendation of what would constitute a morally acceptable defense against the accusation of rape. I myself do not have the answer, so I pitch it to the blogosphere, so that voices wiser than mine might find a solution.

I understand why this question may have been overlooked. Feminists are principally concerned with getting society to take seriously rape and sexual violence against women. By and large, our problem is certainly not that we are provide insufficient opportunities for accused rapists to get off. Many feminists, quite understandably, feel that society pays far greater attention and directs greater sympathy to the perpetrators of such violence than it does to the survivors of it. Devoting time and attention towards defending the accused seems to divert resources away from some of the most vulnerable women and straight into the hands of the patriarchy. Perhaps most importantly, treating the question of innocent accused rapists as one of paramount importance may have the effect of buttressing the all-too-common and all-too-dangerous perception that false accusations of rape are prevalent and predominant.

I am not unsympathetic to those concerns. And I want to stress that I do not write this post gleefully, as a “gotcha”, nor as the brave crusader leading feminists into waters they dare not tread. There are excellent reasons for why the feminist movement focuses on what it does. Yet, I feel like the question I pose is an important one for several reasons. First, and obviously, there are some false accusations out there; ideally, having theory and practice available to handle such situations will not be confused with endorsing that situation as paradigmatic. Second, believing that a rape happened is not the same thing as believing that the particular person charged is the guilty party. Remembering that rape prosecutions are part of the criminal justice system writ large, we cannot ignore the racial aspects inherent in this discourse. The racial inequities present in all parts of the criminal justice systems surely are just as extant (if not more so) in rape cases as they are anywhere else. The gap in the theory that currently exists does not fall equally—like so many other things, it disproportionately affects members of subordinated races and classes. Third, not providing avenues for rape defense that are consonant with feminist conceptions of justice drives the accused into the arms of our enemies. We do not expect the guilty, much less the innocent, to forfeit their defense against criminal charge; if the only viable defense procedure is one that denigrates and degrades women, then that is the one they will use. Fourth, perhaps most abstractly, not theorizing in this area makes us the enemy for a class of people which—for better or for worse—has significant social visibility. People who see a given institution or community clamoring for their criminal conviction, without providing any hearing or consideration to their protestations of innocence, will quite understandably be hostile to that institution or community. The American community, to stress, is not clamoring to convict the perpetrators of sexual violence. But insofar as the feminist community only speaks to guilt and not innocence, it can reasonably be viewed in this manner. People who are falsely accused of crimes have (fairly, I think) a lot of moral force in American political discourse. We do not want them devoting that power towards dismantling the feminist project. Bluntly, I don’t think our footing is solid enough to withstand the assault.

Depending on how cynical one is, one may not believe that any theoretical feminist-friendly rape defense will be use often, if at all. This, I submit, is not relevant. While I do think that there is someone, somewhere, would want to defend himself against rape charges without contributing to the perpetuation of patriarchal hierarchy, the utilization of the defense is only part of its function. Also, and equally, it serves as a presented substitute for the status quo. Judges are not going to sustain objections to illegitimate defense tactics if there is no known alternative way for the accused to defend himself. Our norms regarding a fair trial and innocent until proven guilty require the judiciary to leave open some mechanism by which the accused can plead his case. Without alternative defense procedures, the current set appears to be inevitable, inalterable, and unchangeable. Working to develop a rape defense strategy that is both feminist and viable will put a crack in that wall. I do not mean we should in any way abandon our stance as protectors and advocates for the survivors of sexual violence. But the status quo is serving nobody’s interests. We need to step beyond comfortable turf here, if we are to make progress, and create a justice system that convicts the guilty, frees the innocent, and protects the dignity of all.

Two further notes:

1) For purposes of this discussion, what difference does it make whether the person proclaiming his innocence is a) truly “the wrong guy”—he never met the accuser, b) concedes having sex with the accuser, but argues it was consensual, or c) simply lying?

2) What do we do when unambiguously guilty parties use the projected defense? Part of its purpose, recall, is to mitigate the effects of defense tactics that turn upon further denigrating or marginalizing women. That won’t occur if guilty parties do not see the tactic as viable. Yet, the prospect that a “feminist” project may allow guilty rapists to go free is repellent. Is there any way around this?


Russell Miller said...

I think you're making a false distinction. You seem to be assuming that just because someone is a feminist and just because women have equality with men, that certain defenses become unacceptable. I don't believe this to be the case.

For example, if a woman were to seduce a man, then decide the next morning it's rape and call the police, then the "she was asking for it defense" is quite appropriate, because she, in fact, was.

Feminism is about women being equal with men in every way. It is not about women having power *over* men, nor is it about men losing the right to defend themselves when unjustly accused. Thus, if a defense fits and is appropriate, it should be used. Period.

David Schraub said...

That's not what the "she was asking for it" defense is. "She was asking for it" generally refers to a woman who dressed "provocatively", thus "proving" that she wanted sex even when she says she didn't. That should be an illegitimate defense, as women don't forfeit their right to bodily autonomy just because they wear a miniskirt (and its a feminist claim because women are unequal to men insofar as their dress can be used to justify violence against them). So yes, in a feminist world view, certain defenses against rape charges become illegitimate because they deny women's equality to men. You're badly misunderstanding the point here.

Unfortunately, a great many rape cases do turn on whether or not the jury finds that a woman was suitably chaste and virginal in her demeanor. That's wrong, and it's jettisoning those sorts of arguments (and replacing them with other ones) that is the subject of this post, not anything about making women superordinate to men.

PG said...

(The below assumes that an accuser is being honest; if a rape accuser lies about the facts -- as opposed to perception -- of an event, then there's the same defense you would make to any other crime. I assume we're not looking for a feminist defense to the situation when you borrow a car with the owner's agreement, accidentally crash it and have the owner then claim that you actually stole the car.)


I think you misunderstand the "she was asking for it" defense. The defense is not that the woman walked up to the man and actually said, "Take me now or lose me forever!" It is that the woman's actions -- in flirting, in dressing provocatively, in giving social cues that are taken to indicate an interest in having sex -- justify the man's misunderstanding that she did not, in fact, want to have sex.

Part of the reason colleges have promoted seemingly ridiculous codes is to avoid exactly this kind of misunderstanding. If the rule is to ask a woman directly, "Do you want to have sex?" instead of assuming that because she's been grind-dancing with the man and wearing a low cut top, she must want to have sex, there never can be a misunderstanding. Either she'll say yes, and that *will* provide a solid second wave feminist defense to a rape charge (specifically, the defense that we should take women at their word instead of assuming they mean something else), or she'll say no, and the presumption then goes against the man who ignored the no. If she says, "I'm not sure," the man will ask again later after she might feel more comfortable saying yes. It's easy to avoid acquaintance rape charges if the man asks a woman directly what she wants and doesn't want, instead of hoping that if there's no discussion, she'll never say no flat-out and he can keep going.

Avoiding accusations of stranger rape is more difficult, because then a woman you've never seen in your life is convinced that you are the guy who grabbed her in a dark alley. On the other hand, the defense is easier in these days of DNA. If the perpetrator left any behind, it is vanishingly unlikely to match the innocent defendant's.

ada47 said...

I’ve thought about this quite a bit over the years. I’m not sure that this is getting at your question. The fear of being falsely accused of a crime is not something that many people think about. I think most Americans are more afraid of being victims of crime. This is completely understandable. For most of us, it is very unlikely that we will ever be convicted for a crime we did not commit (though the last seven years have taught me to fear that), and all of us have been touched in some way, large or small, directly or indirectly, by crime committed against us or someone close to us. We may even feel that the justice system unfairly favors the criminals. We take it is a matter of faith that only the guilty are in jail, and that many guilty people are free.

Our legal system is predicated on the notion that this is as it ought to be. This is something we have forgotten. I don’t just mean that we learned it in sixth grade civics class and we forgot it, what I mean is that most of us have no historical memory of a time or place when this was not true, when you could be tossed in jail or executed at the whim of a king or a governor or a judge, when this was not uncommon. I am not so naive as to think this doesn’t happen now; of course it does, but people reading blogs on a regular basis or otherwise participating in this discussion probably have no experience of this.

When a crime is reported, a prosecutor has to decide whether enough evidence can be gathered to make a case. A prosecutor does not have to decide whether a crime was committed, or whether the accuser has been victimized. Rape presents special obstacles, as evidence is often hard to come by. Often an allegation cannot be prosecuted, or a strong case cannot be made. Even leaving out defense attorneys who may know their client is guilty and try to game the system, or jury panelists who assume that the red cocktail dress is an invitation, it can be very difficult in rape cases to thread the needle between protecting the rights of the accused and those of the alleged victim.

Our legal system is designed to protect the rights of the accused. There was amazing wisdom in this, but it can unfortunately add more trauma and grief to someone who has been victimized by a crime.

We cannot, and should not automatically believe women who allege rape. We cannot give more weight to the word of the accuser than to the word of the accused. We cannot make the definition of rape so broad as to excessively criminalize sexual encounters. So, how do we help rape victims without violating the rights of the accused?

We can begin by not equating the justice system with therapy. We may not be able to convict an alleged rapist. This does not mean we must assume that the accuser was lying or that she was not violated. A rape victim, or the victim of any crime, needs to be heard and believed and understood. She needs to have her grief acknowledged, and she may need help processing her experience. (I’m hating right now that I sound like some new-agey psychotherapist, but I don’t have a better way to talk about this.) My point is that it is not the job of the jury to believe her and acknowledge her pain. It is not even their job to decide whether she was raped. It is their job to determine whether a strong case was made against the accused. We should not expect the justice system to validate the victims. We should net expect conviction and sentencing to help he victims achieve closure. In fact, it mostly does not, as many victims who have seen their attacker successfully prosecuted will tell you.

This does not mean that we cannot find some way to help victims. I don’t know what those are, other than lots of therapy. I don’t say the flippantly, I’m quite serious. Maybe feminists should focus more on providing those resources and helping people deal with the consequences of a justice system that, quite rightly, protects the rights of the accused. This is far outside my area of expertise.

So what about your question? Can there be a feminist theory of rape defense? I’m not sure. I doubt it. But everyone, feminists included, should be interested in maintaining a legal system that protects the rights of the accused.

Anonymous said...

During my divorce, my ex claimed rape. It was perfect for her, no proof of a crime, her word against mine, and weakened my case for custody. I was no longer a good parent, I was the one who had to go to see specialists if I was "Capable" of rape. And since divorce court is Civil not Criminal, you are guilty until proven innocent.

Be afraid, false rape claims are used. The police told me its common in divorce cases, lucky I had no criminal record and upstanding in the community. If I had any criminal background, I know I would of been arrested.

The experience is horrifying, the thought of suicide was on my mind for a few years after. Men are the new boogy men, the new escape goats.