Wednesday, March 4, 2015

Yale student: Forcing the accused to prove consent in rape cases does not violate his due process rights

A Yale student named Lauren Davila has written an article dutifully trotting out the feminist memes du jour about sexual assault. Most of her blather is well-trodden ground, but here's a new one:
Another misconception opponents have of affirmative consent is that it will deny due process to those who are accused. But that line of attack is wholly unrelated to the debate around affirmative consent. Simply changing the question from 'Did you get a no?' to 'Did you get a yes?' does not change the amount of evidence needed to bring forth disciplinary action."
This is simply wrong. First, the question has never been "Did you get a 'no'?" The burden has always been on the prosecutor/the school to prove the absence of consent. Second, the new affirmative consent laws sweeping the nation shift the burden of proving consent in rape cases to the accused (see here.) Third, forcing a man or boy accused of rape to prove that his accuser consented does raise due process concerns. Here's what the Washington Supreme Court recently wrote when it overturned some bad caselaw that shifted the burden of proving consent in rape cases to the defendant: "Requiring a defendant to do more than raise a reasonable doubt is inconsistent with due process principles. . . . . The defendant cannot be burdened with proving consent . . . ." State v. W.R., 181 Wn.2d 757 (2014). The court held that prosecutors must prove every element of a crime beyond a reasonable doubt -- including lack of consent -- and placing the burden on a defendant to prove consent has it backward. (The case is a good primer on this issue -- check it out.)

Allow me to digress. Not only is shifting the burden of proving consent in rape cases unconstitutional, it 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, and "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. 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 by enacting affirmative consent laws.

Shifting the burden of proving consent would transform the act of lovemaking -- something that occurs every second of every day around the world -- into a presumptive crime whenever a woman cries rape. That legislatures are now making new laws to allow this sea change on campus ought to be alarming to every thinking person.

Back to Davila's article. She declares, with no authority beyond her serene ipse dixit: "The undisputed point is that sexual assault on college campuses is at crisis levels." She cites the debunked "one in five" stat, apparently unaware that it unraveled last year. The lead author of the principal one-in-five study, Christopher Krebs, told Emily Yoffe that it simply is not a representative statistic that can be relied upon when discussing American college women in general. Earlier last year, the Washington Post concluded that the stat couldn't be relied on as representative. Then, at the end of the year, the Washington Post said it is "misleading to suggest that [the one in five stat] is representative of the experience of all college women." The New York Times declared the stat as "flawed." And even Scott Berkowitz, head of the national advocacy group RAINN, says the 1 in 5 stat "is probably too high." Most important, late last year, the Department of Justice said that it's not 1-in-5 college women who are sexually assaulted, it's more like 1-in 52.

Then Davila declares that "these staggering numbers" (she means the debunked one-in-five) "do not include the many more victims who do not report incidents of sexual assault." Sigh. Um, yes, Davila, they do. That's the whole point of the one-in-five. You see, Davila, reported figures show that sexual assault is extremely rare -- one in hundreds or thousands -- and the whole point of the one-in-five canard is to supposedly capture unreported rapes.

Sadly, if I tried to address every article like this, I would spend my every waking moment and still not be able to address all of them. All persons of good will need to stand ready to correct errors like these whenever they rear their ugly head.