The quid pro quo of sexual assault cases

Unlike other crimes, most sexual assault ends up being ‘he said, she said’ – he says that it was consensual, she says that she did not consent.  (That doesn’t work quite as well with robbery: “She said that I could take her platinum ring for free!”)  Instapundit links to an article by Walter Russell Mead on the kangaroo courts on college campuses that are overly quick to punish men who are accused of crimes.  Mead rightly points out that ignoring claims of sexual violence is wrong, but surely, we can prosecute people with some sense of justice.

Back in the dark ages, men who bedded women to whom they were not married could be tried for the crime of seduction: a felony whose criteria was having sexual relations with a chaste woman (either by promising marriage to her, or enticing her into bed).  For all the faults of that system, a man could not escape from prosecution by claiming that she consented.  He knew in advance that such a crime existed and that he could be prosecuted for a very specific act, should he engage in that act.  Women were secure in the knowledge that the legal system would back them up; the one thing it asked of them was to be chaste before bringing such a charge.  (Modern women foolishly think that this was a misogynistic requirement, akin to the belief that easy girls ‘deserve it’; however, it was merely a separate, easily-provable crime that does not rely only on “he said/she said”.)

Certainly, a woman has a moral and legal right to sleep with every guy on campus, except for one, and then have her wishes to not sleep with the one scorned man to be respected.  “Rape shield” rules of evidence rightly underscore the idea that if a woman has slept with half the town and not complained about it, but complains about one particular guy, the defendant cannot use the fact that she’s consensually slept with half the town as evidence to support his cause that she’s lying.

But a legal system that does not have psychic knowledge into the events that take place cannot possibly attempt to untangle the “he said/she said” of a drunk one-night stand – and certainly not beyond a reasonable doubt.  We give young men and women precious little guidance into how to navigate those brief encounters.  The feminists’ endorsement of the “enthusiastic yes” standard is laudable isofar as it tries to set some sort of objective standard for men and women before a sexual encounter, but it hardly solves the underlying problem.  We’ve created a society in which it’s perfectly normal for young women to sleep with near-strangers, which has the unintended effect of eradicating any means for a woman to bolster her credibility in a sexual assault case.  “Why the hell would I sleep with a guy I barely know?” was once a really valid point in a rape (or seduction) trial.

The ‘quid pro quo’ referenced in the title is just that: it used to be that if women lived chaste lives, their testimony in a criminal sexual assault trial would be believed.  We did away with that requirement, and, leaving nothing to bolster women’s testimony, have created kangaroo courts.  The criminal system does not require that women fight back with physical force or scream bloody murder; not knowing one’s assailant is hardly proof of a crime of rape (see above).  What’s left for evidence? “I didn’t want it?”  Are we just hoping that men will be psychics? or be so scared of women’s ever-shifting norms for consent that they don’t bother?  Do women have any responsibility for showing that some sexual contact is unwanted?

Update: this is a bit like the Miranda issue (no, not the Boston terrorist Miranda issue).  Policemen love Miranda: if they say a couple of sentences to a person who is not intoxicated, delusional, or mentally unsound, they will be able to admit subsequent evidence.  Imposing those rules is actually a benefit in what can be a highly adversarial situation: courts are not left to play psychic with scant evidence.

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