If you think the title of this post is some "men's rights" hyperbole, read on. It's a legal fact, and everyone concerned about the rights of the presumptively innocent accused of rape needs to be concerned about this. In California and on college campuses across America, extremists have accomplished something that feminist legal scholars have been advocating for years. We've been warning against it here for a long time. Now, it's happening, and there appears to be no stopping it.
Under California's new "affirmative consent" law that governs sexual assault on college campuses, the accused must show that he took "reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented."
What is the problem with this, you ask?
For starters -- and this isn't even the big problem -- no one knows exactly what constitutes "affirmative consent." It is for this reason that not even progressive Harvard has adopted it. When Antioch College famously tried it, it was widely ridiculed, even on Saturday Night Live, because it doesn't comport with the way the vast majority of law-abiding people interact in the real world. To prove the point that the standard is without a clear definition, the co-author of the bill in California's Assembly, Assemblywoman Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said this: “Your guess is as good as mine."
But there's something even more fundamentally wrong with this law that few are focusing on. One of the most important, and startling, efforts of extremist feminist rape advocates has been to shift the burden of proving consent from the state to the accused. This is significant because the very essence of rape law is the absence of consent, and shifting the burden of proving that fact to the accused raises a host of due process concerns. Among other things, it would force presumptively innocent men and boys to testify, contrary to the Sixth Amendment, because the sex act would be a presumed crime if a woman cried rape; the only way to rebut that presumption would be for the man or boy to testify and try to convince a trier of fact (likely already predisposed to a finding of guilt) that consent was given.
Some have erroneously insisted the new law does not shift the burden of proof, but in practice it does. It requires the accused to show that he acted reasonably. FIRE thinks it shifts the burden of proof, so do supporters of the new law -- and they think it's a "needed corrective" to relieve the "victim" of this burden (the fact that they think accusers are "victims" tells us all we need to know).
The shift represents a sea change in the law. It makes the sex act -- something performed countless times every day since the beginning of time the world over -- a presumptive crime based on essentially nothing more than an accusation. The prosecution/college need not prove the crime, all they need to do is present a woman to say it happened. The burden then shifts to the accused, and if the man or boy does not carry his burden to prove that he obtained consent in the required manner (which no one can define), the accusation alone is sufficient to convict. The concept of "innocent until proven guilty" has been kicked to the curb; the '70s feminist mantra "always believe the woman" has been given statutory articulation; and the innocent have been placed at greater risk of being punished for offenses they did not commit.
Shifting the burden of proving consent is an idea long pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."
Mainstream feminist extremist Jessica Valenti advocates that America look to Swedish law as its legislative model for rape. She pointed out that "activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."
Serious feminist scholars have written extensively on the subject in an effort to change the law. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent . . . ." In this professor’s world, past sexual behavior – those routines a couple has established over the course of months or years, that private and unspoken language they've developed – none of it may be cited as evidence of present consent. Sex that occurs as a result of such flawed consent is rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009).
In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refused to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates "a shift in the burden of proof to the defense [that] would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord."
These egregious notions are now becoming law on college campuses all across America, and there seems to be no stopping the momentum. Radical feminists have achieved a feminist Nirvana on campus. We shudder to think what they might demand next because no rape "reforms" have ever been sufficient for these people.
Aside from California, these outlandish ideas already become law in several jurisdictions:
Article 120 of the Uniform Code of Military Justice, revised in 2006, removed "consent" as an element of rape and other forms of sexual assault and required the accused to raise "consent" as an affirmative defense and to prove it by a preponderance of the evidence. Only if the accused proves the affirmative defense does the burden shift back to the government to disprove the affirmative defense beyond a reasonable doubt.
It is a source of confusion how the prosecution could ever prove non-consent by a reasonable doubt after the accused has already proven consent by a preponderance of the evidence. But the more important problem is that a cry of rape literally turns the sex act into a presumptive crime.
In United States v. Neal, 68 M.J. 289 (2010), the U.S. Court of Appeals for the Armed Forces explained why shifting the burden of proof was proper in words that are as chilling as they are peculiar: "When sexual abuse by members of the armed forces occurs within a military organization, it can have a devastating impact on the good order and discipline essential to the conduct of military operations. When sexual abuse by deployed military personnel involves civilians, it can undermine relationships with the local population critical to our Nation's military and foreign policy objectives. These factors illustrate the importance of recognizing the broad authority of Congress to regulate the conduct of military personnel. That authority includes the power to define rape and its related offenses in a manner that does not require proof on the subject of consent, notwithstanding the traditional requirement in military and civilian law for such proof."
District of Columbia
In the District of Columbia, a sexual abuse statute, which encompasses any sex act committed by force or which places a victim in fear ob bodily injury, puts the burden on the accused to show consent. D.C. CODE § 22-3007 (2007). A court explained that the statute "was intended . . . to change the focus of the criminal process away from an inquiry into the state of mind or acts of the victim to an inquiry into the conduct of the accused." Russell v. United States, 698 A.2d 1007, 1009 (D.C. App. 1997).
Criminal law Prof. Richard Klein has explained that in Washington state, courts typically include the following instruction to juries in rape cases: "A person is not guilty if the sexual intercourse is consensual. “Consent” means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual." Prof. Klein explains that this instruction was challenged in 2006, but the court allowed it to stand.