A Modest Feminist Proposal

by James Vonder Haar

In a recent comment thread, NewDealer had this to say, quoting Zerlina Maxwell:

“Teach young men to believe women who come forward and not to blame the victim.”

This is where my lawyer-liberal and pro-criminal defendant rights come in. This is a very tricky question. My Constitutional Rights/Pro-Criminal Defense side believes in the basic creeds of “innocent until proven guilty”, “an accusation is not necessarily evidence”, an “indictment is not a conviction.” … Criminal defense rights exist for a reason. They prevent mob justice which is a truly ugly thing and hopefully allow the truth to prevail and good justice to be served to both the defendant and a victim. I sincerely think it is possible to have a justice system that is “fair” to both defendants and victims of crime but a blanket belief in an accusation/indictment is not necessarily going to achieve that balance.”

Much has been made about what Zerlina Maxwell meant by her suggestion.  Personally, I’m inclined to read it less expansively than her detractors do, but that’s not a particularly interesting argument.  What is interesting is to consider what the world look like if Ms. Maxwell’s detractors were more right than they knew, and this fictional red in tooth and claw she-beast got her way.

So let’s suppose that she does.  There’s a significant amount of prejudice against males in our fictional society, so a woman will win the “she-said, he-said,” conflict almost every time when it comes to rape charges, both in legal courts and in the court of public opinion.  Effectively, without an air-tight alibi – I was actually at home when she said I raped her, and I have photographic evidence – if you are accused of rape, you’ll be branded a rapist for the rest of your life.

What does it look like, to be a man in this world?  They’d certainly have to be significantly more careful about who they trusted enough to sleep with.  They’d be pretty safe if they were never alone in a room with a girl, but of course vanishingly few will make that decision.  So they’d take risks, knowing that if they misjudged the character of their partner they were sunk, knowing that every additional time they decided to trust someone could be a life-derailing mistake

If this dynamic persisted, we’d probably see the development of mores around men taking personal responsibility for the consequences of their decisions to sleep with who they wanted.  The guy who has a lot of casual sex partners is obviously more likely to be a rapist than one who sticks to a strict monogamy, since it’s much easier to rape casual partners.  The ones that like to get really drunk and head to parties with other drunk people are even worse, irresponsibly reducing their ability to keep the beast in check and purposefully seeking out easier victims.  Obviously it would be significantly easier to get a conviction in these cases, not that it’s difficult to in less taboo circumstances.  A few might not even care particularly whether the accusation was correct.  Guys like that are scum, and we won’t shed any tears for taking him off the streets.  He knew the risks when he decided to party.

This, of course, substituting rape for incarceration, is what the world already looks like for women.

I’d like to declare victory and go home at this point, but the situation is more complicated than that.  The truth is that rape is a crime that is nearly impossible to deter with normal criminal justice methods, given normal protections for the accused.  We all know by now, I should hope, that the “stranger jumps out of a dark alleyway and drags a woman away” narrative of rape is only a very small subset of all rapes.  Rapists generally rape those they know, most of the time in a situation where it is plausible that sex is consensual.  If you’re going to rape someone, why bother physically overpowering them in an isolated location when you can find a nearly passed out girl at a party and have all the social cover you’ll ever need?

Two guys meet at a party, and they start to hit it off, ultimately retiring to a private room to make out.  One of them wants to take things farther, the other doesn’t, and when the second tries to push off the first, the assailant holds him down forcefully.  (though I should be clear that rape does not require a physical struggle).  Afraid of being hurt, the victim neither struggles nor calls for help.  Most rapes look something like this.  No amount of social reform can change the fact that this is a he-said, he-said situation.  We either believe the accuser, or we believe the accused, and we have scant evidence for both of them.  We will get few convictions, and little social opprobium, in a social and criminal justice system that rightly demands persuasive evidence before doling out punishments.

My dystopia and the status quo aren’t our only two options, but any intermediate point would only spread the pain equally, not reduce the harm.  (Though to be sure the fact that women take the brunt of the terribleness of this dynamic is a grave injustice that needs remedying). That’s why I think, although it will be difficult, Zerlina Maxwell’s approach is probably the right one.   Making rapists less likely to rape is the only way out of our zero-sum trap.