What Men Dare Do! "O, what men dare do! What men may do! What men daily do, not knowing what they do!"

4Nov/109

Sexual Assault and the Law

Sexual Assault & the Law

A very unfortunate fact that ends up coloring many a man's perception of sexual assaults is how the legal system deals with sexual assaults.  A man is most likely to hear about rape and sexual assault through the media, which frequently filters that through a lens of the law.  If you ask a man about examples that came to mind, he'd probably mention Kobe Bryant, the Duke lacrosse case, Ben Roethlisberger, or maybe Julian Assange.

First, we have to face some things: our legal system is not designed to discover the truth behind every alleged crime.  It is designed to take allegations of crimes that prosecutors believe they can prove in Court to a jury beyond a reasonable doubt.

Secondly, we have to deal with the matter of jury nullification.  Jury nullification is an act that occurs when a jury acquits a defendant of a crime for reason that are not sanctioned in the legislation that makes the act a crime, or when they believe that the law is simply incorrect as applied in this case.  Classic examples of American jury nullification are frequently racial in nature: in the antebellum North, juries frequently refused to acquit under the Fugitive Slave Act, and in the post-Reconstruction South, juries would frequently acquit a white man of murdering an African-American.

In sexual assault and rape cases, frequently you see jury nullification when a jury acquits for something contrary to what the law would demand.  For instance, the victim may be drunk and is raped, which is still criminal rape, but a jury might acquit, citing the alcohol usage.  There is nothing in the law, which permits a jury to acquit for such a reason.  Similarly, juries might acquit a rapist when the woman is in a situation in which she "should have known better" and the like.

Most sexual assault cases have fact patterns that are incredibly difficult to prove in Court, usually due to the fact that only two parties witnesses the crime: the perpetrator and the victim.  Similarly, many cases also have circumstances that juries are likely to use for jury nullification: the inebriation of one or both of the participants, their past sexual histories with each other and others, and the general circumstances such as time and place.

So when it comes down to it, and we hear about a case of sexual assault in the popular media, there's a lot at play when it comes down to the legal stuff.  To look at the Rothelisberger case where allegations were made by a student at Georgia College & State University, the victim, though not recanting her allegations, asked the District Attorney not to move forward with the case, citing the intrusion into her privacy.  There's a lot of factors at play -- the DA then decides not to prosecute the case, stating that he did not believe he could prove the case beyond a reasonable (which is absolutely the wrong standard by which you move forward on a case at that stage, but that's a whole different issue).  Now, the DA may have had a point: with a now-uncooperative victim/witness, the evidence may have been too scant to prove in front of a jury in this community.

But that doesn't mean that the sexual assault or rape didn't happen, and sadly, that's usually the take-home message when you just observe how these things are portrayed in the popular media.  And that's a radically wrong message to be sending to men.

As I talked a bit about in my post on talking to men about sexual assaults, men's experience with rape is from the media, and the media frequently portrays a rape that doesn't go forward as somehow "exonerating" the perpetrator.  I'll repeat as I said in that post, rape and sexual assault has no greater rate of false allegations than any other crime, and when you see allegations made against celebrities, that's a population that is not representative of the general population.  For the overwhelming majority of men, a woman has nothing to gain financially and a whole lot of privacy to lose and emotional and physical trauma to go through to make an allegation of rape or sexual assault.

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19Oct/101

Talking to Men about Sexual Assault

Talking to Men about Sexual Assault

Talking to men about sexual assaults is probably one of the more difficult tasks of the male feminists.  It's difficult in ways that really highlight the differences in strategies and tactics in bringing feminism to women and bringing it to men.

One of the central differences in this: talking to an oppressor is different than talking to the oppressed.  The oppressed (women) are open to your arguments.  They understand first-hand that they exist in a system that discriminates, from subtle forms of discrimination to brutal violence.  While it would be incorrect to generalize and say that women are low-hanging fruit when it comes to feminism, they're certainly lower than men.

Men are the oppressor in this system.  We are privileged.  We see neither the forest nor the trees of this system.  Feminism appears to us to be an ideology designed to weaken and change the traditional privileges and bonds of power we have exercised.  We are skeptical.  We are not easily won over.  We are not low-hanging fruit.

When I was in college at a liberal arts school in New England, we had a program for all incoming first-year students about sexual education.  It covered relationships, consent, assault and things of that nature.  Students were divided into three or four groups and they all went through a program of two parts at different times during their orientation program.  The first was a big ol' set of speakers where hundreds of students were talked to in a big auditorium.  In the second part, that big group broke up into small, same-sex discussion groups of maybe 20-40 (though people were told that they could join with whatever group they identified with).

During the second part, there were student facilitators who ran a little program, held a discussion group and answered questions.  I was one of those facilitators for several years and did maybe a dozen of those groups.

So, let's set the scene here.  You have 20-40 18 year old men, all of whom are required to be present.  So you know that you have a pretty mixed bag: there's probably some gay and queer men there, there's probably some out-and-out chauvinists, there's all sorts of people in between, but most of all, they're all probably a bit scared and generally speaking, pretty ignorant when it comes to formal education about sexuality and sexual assault.  You're getting young men who may have had comprehensive sex education to those who had abstinence only to those who just had nothing at all.

When we facilitators got together to prepare for these types of groups, we tried to agree on strategies to deal with questions and guide discussions.  A couple of those principles were pretty obvious: stay away from legal stuff.  We had some handouts that simply contained the language of our State sexual assault and rape statutes, but it wasn't our place to be lawyers and take hypothetical questions from men in the group.  There was almost always one would-be litigator who really wanted to parse the definitions, and that's not what the purpose of these groups was for.

One of those principles we agreed to guide our discussion was to be painfully honest with the group, and explain every issue thoroughly and explores its subtleties.  This wasn't necessarily easy, and it might cause a bit of controversy among feminists.

For instance, when talking about consent, we first would cover the legality of it all.  But the questions would quickly come and we'd have to wade into the nitty gritties of reality.  "If me and my girlfriend, who have had sex before, go to dinner, have some wine and go home and have sex, is that rape?"  "If I meet a girl at a party, and we both get drunk and have sex, is that rape?"  We explained these types of issues to men in terms of risk, because the legality is all pretty clear.  If either of the parties believes that they did not consent, then it was rape.  The former situation obviously has far less risk than the latter.

Talking about these issues with nuance is necessary to impress upon young men that healthy, consensual sex is complicated and it takes a bit of work.  The popular perception of feminism is that it is radical and deals in absolutes.  The stereotype of the feminist is that they would simply answer that both of those situations are rape, without recognizing any nuance.

Let's talk about another example from these discussion groups before concluding.  In these groups, invariably, someone would bring up an example of a "false rape allegation" from popular media.  When I was doing this it was usually the Kobe Bryan case or the Duke Lacrosse case, but now I'd imagine it might be Ben Roethlisberger.

Now this is another example of any area of male feminist discussions where you have to be painfully truthful with the young non-feminist male.  They would ask us, "Aren't these examples of false rape allegations?  Can't this happen to me?  Doesn't a woman have a lot to gain by this?"

Now, there's a lot of ways to start talking about this.  You can take one of the specific incidents and start discussing it.  Say the Kobe Bryant case (I had his post-settlement statement taped to a binder), where Kobe eventually says, "Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did."  That's obviously a point pretty ripe for discussion.  If I think I have consensual sex with someone, and the other party "does not view the incident the same way," then that means she does not view it as consensual.  And that's rape.

You can also take the tact by discussing what's actually involved in a woman making a report of rape to law enforcement: rape kits, reliving a traumatic experience, slut-shaming if it goes public, the lack of rape shield laws in some jurisdictions, etc., etc., and show that women have a lot to lose by making those kinds of allegations.  And of course, there's always the wry observation that if a woman made a rape allegation against me, or anyone else in the room, it's not because of our deep pockets or all the money she might gain out of it.

Now, there's some things I would not say in this situation, and this is really the crux of my thesis here: being painfully honest with these kinds of men.  I would not say that it's impossible for a woman to make a false accusation.  I would stress that for the crime of rape and/or sexual assault, false accusations are made at no greater rate than any other crime.  I would stress that in any situation any of us might encounter, the most responsible and healthiest course of action is to believe any person who comes to us claiming to have been a victim, so that we can help them get help.  But I would not flat out deny that false accusations are impossible.

Is there a possibility that some men will take that admission as permission to assume false accusations or justify pro-rape behavior?  Yes, but I would say that those men probably were going to anyway, and what I said did not do much.  I think, however, that far more likely, is that I buttress my own credibility in talking to men by being painfully truthful and acknowledging the nuances of issues, rather than taking absolutist stances on issues.  In buttressing male feminists' credibility, we can better reach those men who are open to what we talk we about, and hopefully gain some converts, or at least make some young men think.

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