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?