Society's zeal to prosecute certain offenses has led to an erosion of due process in a number of respects. This has been most problematic in cases where the law forbids consensual transactions, such as drug offenses. Because the parties to a drug transaction engage in it of their own free will, law enforcement has to take extremely intrusive measures in order to try to enforce the laws against it.
This has led to what is sometimes referred to as the "drug exception" to due process, as courts have increasingly allowed for more and more intrusive surveillance techniques, and civil asset forfeiture laws are used with impunity as revenue raising measures with very little in the way of due process protections. Essentially, in drug cases the government (or the state) always wins because politics dicatate that it must win.
Steven den Beste makes the case for how similar thinking has overtaken cases involving accusations of rape:
What bothers me about rape is that we seem to have discarded the traditional presumption of innocence. Somehow in this one crime, we've almost reached the point where there's a presumption of guilt. Where in armed robbery the victim's word and the defendant's word would have to be judged equal, in rape what she said is given more credence than what he said.Juries don't necessarily have to believe all witnesses equally. They don't automatically acquit in any case where there is contradictory testimony. But if there is contradictory testimony they do not automatically assume that the prosecution's witnesses are right. They evaluate the testimony, but the judge doesn't direct them on who to believe.
But in rape, that issue of credibility has gotten close to the point of actually being procedural, where the alleged victim's testimony is presumed true unless there is significant doubt raised about it. Necessarily that in turn means that there's almost a presumption of guilt; there's certainly not much presumption of innocence. If she says she was raped, and if he says it was consensual, and if there's no other evidence available on that point, then he stands a good chance of being convicted.
In any other kind of criminal prosecution, he'd nearly always be acquitted if that were all the evidence which existed.
The problem is that the politics of rape have developed to the point that any failure to vindicate a woman's accusation of rape (against a man) is seen as a symptom of the larger political "problem" of male social dominance. This makes it politically imperative that an alleged female rape victim's accusations be given every benefit of the doubt. As den Beste points out, this turns the usual burden of proof in a criminal trial on its ear.
This is a much bigger problem than what feminists are willing to admit. The further we get from the classic paradigm of the stranger invading the home, or assaulting his victim in a park at midnight, the more we are confronted with the many complications and subtleties of human relationships, especially sexual relationships. The most central of these complexities is the notion of consent; when a woman has given it, and at what point is it reasonable for her to withdraw it (no pun intended).
Ultra-hard line feminists take the view that, because men dominate every aspect of society, women can never really consent to anything of their own free will. These "feminazis" go so far as to say, for example, that women cannot consent to contractual relationships because the superior bargaining power of men necessarily leads to coercion. Such nonsense, if taken seriously, would have the ironic effect of taking women's economic standing in society back to the 19th century, when they were still deemed legally incapable of entering into contracts and fully inheriting property from their fathers and/or husbands.
The current state of thinking on rape runs the risk of similarly infantilizing women's ability to take care of themselves, because it assumes that women need to be protected from the hazards of navigating their interactions with men; it seeks to totally absolve women of any and all consequences of, for example, choosing to accompany a star athlete to his hotel room.
That is not to say that SWLiP is of the opinion that any woman who accompanies a man to his hotel room deserves to be raped. That would be asinine. But it is equally asinine to assert that a woman in that circumstance must be presumed to be totally unaware of the signals she gives to the man when she agrees to so accompany him, and that such conduct bears no relation to determining the broader question of her consent to whatever happens thereafter.
UPDATE: This article by Cathy Young is relevant to the above post.
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