The Presumption of Guilt

Feminists have gotten a lot of traction out of the Steubenville rape case. Unlike many of the other prominent cases that caught the nation’s attention, this case had no wiggle room and ended with two convictions. The boys recorded themselves assaulting the girl. They and others traded the video and pictures. There was no question even from the photos that the girl was intoxicated and could not consent.

This provided the ammunition many feminists look for when talking about sexual violence against women. Many feminists talk about consent in broad terms, but this case provides them an example of someone clearly not saying “yes” and clearly being incapable of saying “no.”

All of the conversations about consent have revolve around the idea of “affirmative consent”, the notion of males getting a verbal “yes” from females. As Thomas MacAulay Millar puts it:

Some folks call that “enthusiastic participation” and some call it “affirmative consent” which sort of sounds more technical, but when you’re getting busy with someone, it sounds like “Yes!” “Take your cock out” “I want to touch it”, “I want to suck it.”  Which is way hotter than just laying there, right?  So how do you get that?  Ask.

There are a number of problems with that logic, starting with the pesky fact that most people, men and women, do not ask for or give verbal consent to engage in sexual activity. The other is that, just like cases without verbal consent, there are usually only two people there to witness the act. Even if one got “affirmative consent”, short of recording it one would lack any proof that one got it. The only counter argument to this is that no woman would ever claim that consensual sex was nonconsensual, which is untrue.

Yet what Miller is really getting at is the notion that sex is transactional. One person offers/requests something and the other grants it. That is generally the nature of most human interaction. One person wants something from the other, and other either gives or denies it. Jill Filipovic disagrees with that transactional nature:

The underlying assumption is that sex is a transaction service women provide for men, and that smart and virtuous women will trade sex for something else they want – marriage, commitment, decent treatment.

When sex is perceived a commodity that women have and men get, our laws, our courts and our juries similarly use a transactional model to assess sexual assault. The baseline is that men always want sex, and women are in the position of withholding or relenting. While most state laws have been updated to reflect the fact that sexual assault turns on consent, the presumption remains that men will naturally try to “get” sex at all costs, and so the onus is on the woman to clearly and forcefully express her refusal to partake in any sexual interaction. Sex isn’t a thing that both parties should have to say “yes” to; it’s a thing that women have an obligation to refuse. Sexual assault charges are routinely dropped or not filed in the first place, and defendants are routinely found not guilty, if a victim didn’t clearly enough say “no”.

That is a very skewed view of how sex between men and women actually works. Even her preceding explanation about the cause for such transactional sex is problematic. That Western religion distorts sexual activity is beyond question. Western religions consider masturbation sinful. If touching yourself is an impure act, imagine how those religions would view people touching other people’s bodies, let alone putting their body parts on or in other people’s bodies.

However, the notion that women have an obligation to say “no” to sex is untrue. Likewise, the notion that cases are dropped, dismissed, or result in acquittal solely because a woman did not say “no” is untrue. Filipovic is a lawyer, and one would think she would know better than that.

The law requires the state prove a crime occurred. If the state cannot find evidence supporting their theory and cannot convince a jury or judge of their version of events, the accused must be acquitted. If the state lacks the evidence to support their charges, the case must be dismissed. If the state lacks evidence to support arresting someone, it cannot file charges. That some victims feel that no one will believe and therefore will not report their assaults is a terrible thing that we should fix. However, that has nothing to do with the state’s burden of proof.

It would seem then that Filipovic takes issue with that burden of proof, specifically that female victims should have to proof they did not consent. Filipovic’s answer to this “problem” is to make “affirmative consent” part of the law:

A shift to a legal model of affirmative consent could help change that. With affirmative consent, there’s less grey area. The baseline assumption is that sex acts must be entered into with a meaningful “yes”. Rape victims would no longer have to prove that they vociferously objected to sex, just like a robbery victim doesn’t have to prove he verbally told a thief not to take his belongings. An affirmative consent model assumes that women are sexual actors, too, and that men have agency beyond simply trying to get sex at any cost.

Legally, this would mean clarifying the meaning of “consent” in our penal codes to make clear that the question isn’t whether a woman voiced her lack of consent, but whether the sex was mutually consensual. In practical terms, that will probably mean that if a defendant uses consent as a defence to a sexual assault charge, he would shoulder the burden of demonstrating that the defendant affirmatively and meaningfully consented – not that she just didn’t say no, or that she was competent enough to say no if she wanted to.

Let us start with the basics: First, the law already recognizes that sex must start with consent. That is why all 50 states have rape/sexual assault statutes stating something akin to “a person commits the crime of rape if the person engages in sexual activity with another person without the consent of that person.”

The law does not require that the victim prove that they “vociferously objected to sex”, only that they did not consent. In some cases, the law itself declares the person incapable of consenting, as in cases of minors, the mentally disabled, or the intoxicated. In those cases, the state only has to prove that the sexual activity occurred and that the victim met that criteria. In both situations, the cases hinge on proving that the person making the complaint has a valid reason to make the complaint.

Filipovic’s robbery analogy fails because in robbery cases the complaint does have to prove they did not allow the accused to take the item. She tries to get around that obvious element of the law by hinging her argument on verbal consent, but legally speaking, the nature of the consent is irrelevant. If one sends someone a text message stating that the person can have a particular item and that person later takes that item, that one did not verbally say “You can have it” does not make that person a thief.

Filipovic claims that her new model will recognize that women have agency, yet it does not. It instead assumes that short of verbal consent women are incapable of giving consent.

Second, the issue of “voicing” consent is a problem. Sex is not a simple transaction. People often do not explicitly state, as Miller suggested, “Yes!” “Take your cock out” “I want to touch it”, “I want to suck it.” Most often, people simply engage in sexual activity by reading each other’s body language. Likewise, some people say the opposite of what they want. Some may say, “No,” “Not there,” “Don’t touch it” when they really want people to continue the sex.

Rape cases do not just deal with whether the sex happened or whether it was consensual, but also whether the accused could or should have reasonably known the other person did not consent. If a person never says no and never does anything to show they do not want to continue with the sex, how would the other person know? Many rape cases boil down to this, and that is partly why some of them result in dismissal or acquittal.

What Filipovic wants to do is put the burden on the accused to get the “yes”, which leads to the third issue with her proposal: presumption of guilt.

Filipovic’s position would force the accused to prove their innocence, i.e. to prove they did have verbal consent. That would violate the 5th, 6th, and 14th Amendments of the United States Constitution. It would also run against Coffin v. United States, a case from 1895 that affirmed a person’s right to the presumption of innocence.

The state has the burden of proof for a reason: they are the ones bring the complaint. To argue that the accused must prove that they had consent assumes that no consent was given. However, the accused is not making that claim; the accuser is. Therefore, the accuser must show that they did not give consent. In other words, the accuser must show that they were wronged. Putting the burden of proof on the accused forces the accused to have to prove a negative.

This is so obvious that Filipovic spent most of her article on the “history of rape” rather than explaining her new proposal. Indeed, when asked on her own blog to explain it, the best she could come up with was:

The prosecutor has the initial burden of proof, yes. And even with an affirmative consent model, it would still fall on the prosecution to provide evidence that the victim did not say “yes” (the evidence could be her testimony, among other things).

No, it would not. As noted above, the new model assumes that consent was not given, so the state has nothing to prove. Once the person says “I didn’t consent” that is the end of the state’s burden. Filipovic realized this and tried to explain:

In some jurisdictions, consent (or an honest or reasonable mistake as to consent) is an affirmative defense to sexual assault. In cases where an affirmative defense is raised, the defense has to provide evidence supporting their contention. This would essentially extend meaningful consent as an affirmative defense, which the defendant would have the burden of providing, instead of just making the argument that “she didn’t say no.”

When asked to give an example of such a case Filipovic remained silent. That is likely because there are no examples in modern American law of a person being required to prove they did not commit an act. The only examples of affirmative defense Filipovic will find are cases in which a person is countering the state’s argument. In other words, the state argues that the girl was intoxicated and therefore raped because she could not consent, so the defense argues that the girl did consent and adds that she was a heavy drinker, therein implying that she could consent while intoxicated.

Another example would be the Jodi Arias case. The state claims that she premeditated the murder of Travis Alexander out of jealously. Arias counters that by claiming she killed him in self-defense because he was abusive and attacked her. The defense does not have to put on a case at all. They can simply pick apart the state’s witnesses and evidence on cross examination.

People typically choose an affirmative defense when they agree the act occurred but disagree with the state’s position on how or why it occurred. Even then, if the defense fails to prove their case, that is not grounds for a conviction. Only the state has the burden of proof. So if the jury does not buy Arias’ self-defense argument because her attorneys poorly presented it, they cannot use that against Arias in making their decision. They must address whether the state proved its case beyond a reasonable doubt.

This is basic law. This not something one needs a degree for. This is something that one can find out watching old Muppet Babies cartoons. Yet, the idea of forcing men accused of rape to prove they are not rapists is so appealing to some feminists that they try to defend violating people’s rights to due process. As Miller states on Feministe:

It no more shifts the burden to say that silence is not consent than it does to say unconsciousness is not consent.

Yes, it does. Unconsciousness is a physical state of impairment. An unconscious person cannot give consent. A silent person, however, is not necessarily impaired. One can be completely conscious, aware, capable, able, and consenting and never state a word.

Miller tried to better explain his theory:

Right now, in Ohio, “substantially impaired” means incapable of legal consent. In New York, “physically helpless” means incapable of legal consent. In every state, younger than some specified age means incapable of consent. The State proves the absence of consent by proving these conditions.

Miller fails to understand his own argument. Each example he gives implies that a person experiencing them cannot give consent because they literally cannot physically or verbally communicate anything or that their mental state is such that they lack the ability to understand what they are consenting to. Silence, however, does not present the same issue. A person can remain silent and fully consent to an act.

I won’t speak for Jill, but amending the substantive law to say simply “consent may not be presumed because the victim failed to verbally articulate refusal” would mean that the State would still have the burden of proving nonconsent, and would have to put on competent evidence to show that the victim (1) didn’t, or (2) was not legally capable of consenting.

It would if the accused did not have the burden of proving there was consent. By forcing the accused to prove there was consent, the state’s position becomes a given. In other words, if one argues that the accused must prove they got verbal consent, one assumes that they did not have consent to begin with. If one questions whether the accuser gave consent, there is no reason to demand the accused prove they got consent. Both answer the other question, so you cannot have both models in the same case.

Let us use Steubenville an as example. If one puts the burden on the accuser to prove she did not consent, proving that beyond a reasonable doubt means the boys are guilty. If one does not prove it, the boys must be acquitted. If one puts the burden on the accuse to prove the girl did consent, proving that beyond a reasonable doubt means the boys obviously are not guilty. If one does not, … well it gets tricky. Have we proven they committed crime or only shown that they cannot prove they did not commit a crime? That is the other glaring problem with Filipovic’s model.

In normal cases, if the state fails to prove its case the accused walks. In the new model, what happens? Failure to prove you did not commit an act does not mean you did commit the act. What do we do? Do we convict anyway? Oddly enough, this very problem is the reason why the state has the burden of proof. This is why the accuser has the burden of proof. As a lawyer, Filipovic should know this, and it is doubtful she does not. She just wants more rape convictions and does not appear to care about the immorality of her new proposal.

The Feministe comments are a wonder to read because dozens of people realize the problem with this new proposal. It is wrong on a fundamental level and they know it. But they want this new proposal because it fits into their ideological perspective, so they try their hardest to make it work, even though the very examples they give show that the logic is fundamentally flawed. Miller tried to explain “affirmative consent” before and could not do it in any concise, coherent, or gender neutral way.

The problem here is not the law. Rape statutes work the same way assault and theft statutes do. They require the person making the complaint, via the prosecutor, to prove the incident took place as they say. This works, and scores of people end up in jail and prison for it. It works so well that there are even innocent people imprisoned. The problem is that rape cases are hard to prove because there is typically little to no evidence outside of the two parties’ testimony. That is not a conspiracy, just the reality of the situation. Forcing the accused to prove their innocence will not change that. It will still be one person’s word over the other.

That may be a hard pill to swallow, but one cannot try to side-step that by flipping the burden of proof. Just because you cannot prove a rape happened does not mean you get to make someone prove they did not commit rape. Forcing people to prove their innocence is an unfair, often impossible burden, which is precisely why the United States Constitution prohibits the courts from doing that.

Where Filipovic has a point is that if someone argues that there was consent they should have to proof that position. However, affirmative defense is already part of the law. Anyone who argues it must provide evidence supporting that argument. That is why Jody Arias’ defense team put domestic violence experts and psychologists on the stand. Yet that defense does not remove the state’s need to prove its case. The difference between that and Filipovic’s model is that the latter would be the default in rape cases.

Once the state established that consent was not given by proving the accuser filed charges, the burden of proof would immediately shift to the accused. That is unfair, immoral, and unconstitutional. More so, it would not prevent rape. It would only make it easier to convict people charged with rape, whether they are guilty or not. That may not bother many feminists, but it should given that most women do not ask for men’s consent.

All that said, I would be remiss not to mention the grand irony of Filipovic arguing that the lack of verbal consent constitutes rape. This is the same woman who argued a few months ago that a woman having sex with her sleeping boyfriend was not rape because “he was sleep-walking, she thought he was awake.” This is the same woman who defended her rape apologist position while presenting herself as a victim.

Just so we are clear: Jill Filipovic wants to change the rape statutes in the United States to include “affirmative consent” so that the absence of a verbal “yes” becomes indicative of rape after arguing that someone who assumed they had non-verbal consent did not commit rape.

37 thoughts on “The Presumption of Guilt

  1. The problem with the theft analogy that commenters like Alara and others are using is- taking someone’s property (legally or not) only goes one way. I can’t accuse Joe of stealing my stuff if I still have it in my possesion. (and he can’t accuse me of lying about him taking my stuff if he has it.) Sex doesn’t work that way. Sex isn’t actually something one person gives to another. The evidence that I had sex with someone will be on *both* of our bodies. At the same time.

  2. “That is why all 50 states have rape/sexual assault statutes stating something akin to “a person commits the crime of rape if the person engages in sexual activity with another person without the consent of that person.””

    Not true. Some states do.
    Washington does
    http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.44.060

    OTOH other states like NC have something like “By force and against the will of the other person;”
    http://law.onecle.com/north-carolina/14-criminal-law/ (ctrl+f for “rape” to see all the relevant statutes.)
    I think that changing all the states laws to be more like Washington’s would be fine. Making the accused have the burden of proof is a terrible idea. (Partly because a rapist or government agent, or other bad actor will fabricate claims to do their evil.)

  3. I have a message in the spam filter. (Caused it linked to facts probably). Summary: The state Washington requires the victim to not have consented for rape charges, but NC only requires sex with “With another person by force and against the will of the other person, and:” so its not quite right to say

    “First, the law already recognizes that sex must start with consent. That is why all 50 states have rape/sexual assault statutes stating something akin to “a person commits the crime of rape if the person engages in sexual activity with another person without the consent of that person.””

    Its not really all 50 states. WA has it right NC has a terrible way to do it.

  4. >Rape cases do not just deal with whether the sex happened or whether it was consensual, but also whether the accused could or should have reasonably known the other person did not consent.

    The UK’s Sexual Offenses Act 2003 specifically requires a rapist not to have a reasonable belief they had consent. Of course, it defines rapist as male, but baby steps.

  5. TS

    I wrote a letter and got a quick response. I think this highlights much of what you talk about.

    —– Original Message —–
    To: “kelly roche”
    Sent: Monday, April 1, 2013 9:32:56 AM
    Subject: Man up Article

    Kelly Roche

    Considering the vast majority of men do not commit sexual assault I find it insulting that it is implied that we all are the ones who should do something about it. You also conviently leave out the fact that many men are sexually assaulted also, and yes by women. That’s right women can be rapists too. You know, your teacher, librarian, child care worker, babysitter, etc. In fact, the same reasons of shame that prevent women from reporting their assaults are the same for men reporting theirs. The one point of your article that really raised my ire is that you single out my profession. As a male Registered Massage Therapist you continue the false stigma/stereotype that women need to be wary of myself and all the other male RMT’s. The only “rape culture” out here is the one that continues the falsehood that only men are rapists and only women are the victims.

    John
    _________________________________________

    From: Kelly Roche
    To:
    Sent: Monday, April 1, 2013 10:09:45 AM
    Subject: Re: Man up Article

    Thanks for writing, John. Perhaps you should re-read the article. Men are acknowledged as victims, albeit briefly. The focus was on women being targeted. Today, I’m writing a follow-up piece highlighting men as victims and am already familiar with the 1in6 site.

    It sounds like you’re taking the reference to the RMT personally. Let it go. My favourite RMT is a man. In fact, I just saw him last week. He’s one of a few men I’ve been treated by over the years. They have all been 100% professional. Some women just aren’t comfortable being undressed in front of a man, which is why they’ll book with a female RMT.

    I think you’ve missed the point.

    Best,
    Kelly
    ________________________________________________

    Kelly,

    Thanks for your quick response. I have been practicing for over 23yrs in the field, so I have “let it go”. I am glad you are comfortable with your male therapist. The truth is many are not because of articles that tend to overwhelming single out males as abusers. Of course I am offended when my chosen profession gets lumped in to an article on sexual assault. I would hope that you can see that and maybe just be a little more careful in the future when writing on such matters.
     
    John

  6. Thefish, “against the will of the other person” means the same thing as “without the consent of the person.” Both mean that the person did not give the other person permission to engage in sexual activity with them.

  7. “A shift to a legal model of affirmative consent could help change that. With affirmative consent, there’s less grey area. The baseline assumption is that sex acts must be entered into with a meaningful “yes”. Rape victims would no longer have to prove that they vociferously objected to sex, just like a robbery victim doesn’t have to prove he verbally told a thief not to take his belongings. An affirmative consent model assumes that women are sexual actors, too, and that men have agency beyond simply trying to get sex at any cost.”

    Her formulation denies women agency in presuming that it is always men who initiate sex. If a meaningful yes is required why would the change in the law she is proposing not rewqure the person claiming rape to prove they obtained an explicit yes frorm the person they are accusing, lest they themsleves be accused of the rape?

  8. Ginkgo, you have a point, however, I think that if the accuser contends they did not consent to sex, whether the other person consented would not matter unless the accuser initiated the sex.

  9. @toysoldier: You are certainly right that not having consent is part of the definition. But there is still the by force deal. That should be taken out.

  10. You are certainly right that not having consent is part of the definition. But there is still the by force deal. That should be taken out.

    I disagree. That is the reason for degrees of rape. I think a sexual assault that involves physical violence against the person in the commission of the act should receive a greater penalty than a sexual assault that does not involve such violence. Also, the link you listed for Washington State refers to 3rd degree rape. The 1st degree statute has “force” in the definition, but lacks an explicit “consent” element. Likewise, the definition of “consent” used in Washington includes verbal and non-verbal elements.

  11. @Toysoldier: Your right about the different degrees. So let me refine my position. The part about requiring force should be taken out of some of the sexual assault/rape statutes. So more like Washington’s. It takes a lot of clicking (you need to check each link under rape), but as far as I can tell sexual assault in NC always requires force.

  12. Oh and I still can’t make heads or tails of what Jill was arguing for. The tag “affirmative” is not well defined, and part of the article seems to argue for shifting the burden of proof. Whatever it is, it sounds terrible. If only for how “affirmative” will translate into legalese.

  13. Thefish, what Filipovic means by “affirmative consent” is a direct verbal statement. In other words, someone saying, “Yes, I want to have sex with you.” Anything that is not a direct verbal element could be misconstrued, therefore it cannot count. It is a mess of logic because, as I noted in my post, a silent person can give consent.

  14. Did anyone notice the built-in sexism in the language used by Jill? And why am I ussually the only one noticing this stuff.

    Let me demonstrate…

    A shift to a legal model of affirmative consent could help change that. With affirmative consent, there’s less grey area. The baseline assumption is that sex acts must be entered into with a meaningful “yes”. Rape victims would no longer have to prove that they vociferously objected to sex, just like a robbery victim doesn’t have to prove he verbally told a thief not to take his belongings. An affirmative consent model assumes that women are sexual actors, too, and that men have agency beyond simply trying to get sex at any cost.

    Legally, this would mean clarifying the meaning of “consent” in our penal codes to make clear that the question isn’t whether a woman voiced her lack of consent, but whether the sex was mutually consensual. In practical terms, that will probably mean that if a defendant uses consent as a defence to a sexual assault charge, he would shoulder the burden of demonstrating that the defendant affirmatively and meaningfully consented – not that she just didn’t say no, or that she was competent enough to say no if she wanted to.

    Her languaging ASSUMES the man is the one ASKING, and the woman the one ANSWERING. Notice how she ALWAYS uses he/she for those roles.

    The thing that trips me off the most in all feminist writing is that it’s possible for them to have a 500 page book about consent, and all language ASSUMES the man as the initiator and move-maker, and the woman as the receiver.

    Awfully suspicious for a movement claiming to want to transcend gender roles. Are women somehow physically incapable of leaning into a male head and initiating a kiss? I don’t get it?

    It’s obviously not a physical restriction, and obviously a gender role. So why does all feminist discussion assume the man is the one making this move?

  15. @thefish: If that is what Jill means its completely inane. That’s certainly what some arguments in the comments of that article were for.

    Also part of the reason a vaguely defined “affirmative consent” law would be bad is there would be this confusion and its ultimate meaning would be decided by a judge and the law would become (even more) completely inaccessible to the common person. Plus, it would be decided upon after the act being considered. Deciding if something is illegal after the act is a huge problem.

  16. Alek, I assume the reason Filipovic would give is that most reported rapists are men and most reported rape victims are women. Yes, her theory works on the assumption that it is the man doing the initiating, and as Ginkgo pointed out, that is not always true. This is one of the many problems with the new model because if the initiating party later claims they were raped they could easily be countered charged with rape and have to prove they got the other party’s consent first.

  17. Unbelievable! Look at this quote Jill posted approvingly at Feministing:

    “Until I was 30, I dated only boys. I’ll tell you why: Men scared the sh*t out of me. Men know what they want. Men own alarm clocks. Men sleep on a mattress that isn’t on the floor. Men buy new shampoo instead of adding water to a nearly empty bottle of shampoo. Men make reservations. Men go in for a kiss without giving you some long preamble about how they’re thinking of kissing you”

    http://www.feministe.us/blog/archives/2011/10/05/straight-to-the-heart/

    Got that? Asking if she wants to be kissed is something weak, pathetic boys do. Real men just move in for the kiss! Oh, but there has to be clear, affirmative consent, first. How do feminists have any influence on society at all?

  18. Oh yeah, that was an inane article. Half the article was “men have lots of money and are willing to waste it for the sake of wasting it”. I have money to get any piece of clothing I want (partly because I don’t want hugely expensive clothes). I have still bought second hand clothes because it was what I wanted. I could have either a) bought it, or b) spent a bunch of extra time and money to probably not get something as good. When you get to the last bit of shampoo you might as well add a bit of water to get it out. Its going to mix with water anyway. Alarm clocks are inaccurate, have a crappy user interface, take up space and are a waste of money. You probably have a phone, a music player, and a computer all of which have alarms. Some guys prefer the mattress on the floor. (Okay, they tend to be Otaku but still.)

    That whole article is basically “Men perform conspicuous consumption in a socially acceptable manner.”

    @toysoldier: Yeah, that’s something that people always forget. The bad guys, the rapists, the would be Stalin, the Mafia, America’s enemies, etc. will be perfectly willing to lie to send someone to jail or to show their threats have weight. The bad guys absolutely will use the legal system as a tool to abuse people. Nor do they wear obvious black hats.

    When you think of the legal system and how it should be run, ask yourself how you would want to be treated if your boogeyman of choice tries to frame you.

  19. “I think that if the accuser contends they did not consent to sex, whether the other person consented would not matter unless the accuser initiated the sex.”

    That’s what I menat. if the accuser didn’t initiate the sex, i take his/her assertion of nonconsent at face value. That doesn’t raise it to the legal standard – communication is an lelement of the legal standard – but it gets it pretty close.

    Real Peterman, there is a pupose behind that kind of double messaging, or rather several reasns that all come down to one thing. One such reason is plausible deniability. Another is unpredictablity, which is a technique of control. Both of them come down to narcissistic attempts at controlling another person and their behavior.

  20. “Did anyone notice the built-in sexism in the language used by Jill? And why am I ussually the only one noticing this stuff. ”

    Alek, oh I noticed her sexist language and assumptions and sexist double standards a long time ago. for instance she would readily condemn a man as misogynist for insisting and coercing a woman into giving oral sex, but if she insists on him giving and he is hesitant, he’s…..misogynuist!

  21. Pingback: The quandry of moral contradictions | Science and Other Drugs

  22. I don’t see how an “affirmative consent” model could work in reality. For affirmative consent to be established the participants of a sex act would have to describe explicitly and in detail what the sex they are going to have will look like. This seems very difficult to accomplish, “no means no” just requires the communication and understanding of a “no” or a “stop”, which is very basic and clear.

  23. @Ginko

    Why is plausible deniability such a taboo subject and so few feminist critics have the courage to speak up about it? I do realize feminists are quick to label one with “rape apologia” the moment one brings it up… but the truth should not be hindered for fear of dishonest rhetoric.

    In my mind it is the single biggest elephant in the room that will radically change the entire dialogue, yet so few people are willing to talk about it, or even mention it.

    And yes, plausible deniability, double-binds, double-speak, double-think are all forms of exerting control over male sexuality and men. Which is why we have to continually point out all of these “doubles”.

  24. @Jupp

    I actually like that model if it’s actually put into law and taught and school? Why, because it will kill off all plausible deniability.

    Right now the “affirmative consent” model is merely used a bluff. I’d love to call its authors on their bluff and actually put it into law and make it super-strict, as in actually have people sign lengthy forms whenever they have sex, kiss etc etc.

    And no, I’m not kidding. The only way to prove someone’s dishonesty is to fully call them on their bluff. It is women, and the female population at large that will protest to repeal such a law far more than men.

  25. Peterman, I find Jill Filipovic to be a bottomless well of contradictions and hypocrisies. I think she is in so deep that it no longer occurs to her that she even does it.

  26. Jupp, you are correct that the model could not work in reality, which is why we do no use it for sexual violence or any other crime.

  27. Alek, I agree we have to keep calling out all these tactics and distortions. The Men’s rights subreddit does a lot of that.

    TS, that sums Filipovich up pretty well. She has about the debate ethics you would expect in a lawyer. She is all narrative, dogma and special pleading with a veneer of fairness to fool the gullible.

  28. SYABM, I am not surprised by Zerlina Maxwell’s article. It is a dishonest strawman argument. Cathy Young’s argument is sound. False accusations do occur. We have no way of knowing how frequently they occur because many cases do not result in charges, do not go to trial, and do not result in conviction. We also have no way of knowing how many do result in conviction because many rape cases do not involve physical evidence. You simply have one person’s word over another, and short of the accuser admitting to lying the falsely accused has no recourse to prove their innocence.

    I do not understand why this is such a difficult issue for feminists like Maxwell. As a male survivor, I certainly want others like me to be believed. Yet I also do not want innocent people going to prison. I understand to prevent the latter I must accept that people will scrutinize my story. I think that is a fair trade to making sure someone does not spend time in prison for a crime they did not commit or one that never happened. I do not have to pick between the two issues. I can support both without contradiction.

  29. I think that is a fair trade to making sure someone does not spend time in prison for a crime they did not commit or one that never happened. I do not have to pick between the two issues. I can support both without contradiction.

    But that only works if she considers that she could ever be falsely accused, or has empathy for those who are.

    From her point of view, men don’t fear rape happening as a crime and so the questioning at the bench is seen as “patriarchy wanting to save men from prison”.

    The thing to do with points of view is knowing that our own is not necessarily objective. Empathy and “what would you do if it was you” only works if you care about the other in the first place. If it can’t happen to you, a lot of “screw you, I got mine” happens.

  30. Nice catch, Peterman.

    I recommend reading the comments on that article, where commenter Sam basically makes the point that he finds this a contradictory message when one considered the notion of enthusiastic consent as well.

    Needless to say, this was not well-received overall. Filipovic accuses him of creating a point to fight over *eyeroll*

    One person even made an argument about how “some guys are just better at nonverbal communication”. Um….isn’t nonverbal communication then relevant to intercourse, not just kissing?

  31. Pingback: CHILL: New Zealand’s Proposed Rape Law ‘Reforms’: No Right to Silence, Burden of Proof Shifted to the Accused | pundit from another planet

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