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« Scribes in a digital age | Main | Re-blogging [Cat (or Global Forces) Got Your Tongue?] »

August 20, 2012


Count upon it, Akin will not survive as a senate candidate past 5pm today. If he doesn't get pushed out by the Republicans by then, they will not find it easy to get another candidate on the ballot against McCaskill.

Juan Cole points out (c/o Brian Leiter) that Akin's position resembles Shariah. Perhaps that's what frightens the knuckleheads.

I love Akin's non sequitur. How should the law deal with X? Uhm, X is rare.

One of these ought to be the oath of office each Senator and Assemblything takes.

So my prediction didn't come true- there goes my career as a crystal-ball gazer. Instead, the battle-lines are now being drawn by the GOP

What will this do to the Republican women voters? Will they still support the party's platform?

The GOP platform is no surprise. It was the same in 2008 with McCain and before that in 2004 with Dubya. I am not worried about the ignorant Akin. I hope he stays in the race. It is up to the voters in Missouri to decide if they want to vote for the dumb ass. I am more concerned with Romney-Ryan. After all, Ryan was a co-sponsor with Akin on the House abortion bill only last year and they had very similar provisions in the bill for rape.

P.S. Akin today said that he was referring to "false" rapes when he made his comment. Exactly what I thought.

Ryan was visiting Pittsburgh yesterday on his campaign trail. His position on 'forcible' rape appears to have evolved, now that it has become toxic:

I haven't been following the Ryan nomination (e.g. I didn't know that Ryan and Romney had different positions on rape and abortion till I read the article) but fwiw the word forcible means something definite - it's meant to exclude "consensual crimes" like statutory rape.

It comes up in collecting and analyzing crime statistics, because when a 24 year old has sex with a 16 year old, it's going to be classified as rape, but that's a separate question from whether the 24 year old restrained the 16 year old (or vice versa, though presumably that's less common) physically / via threats, or if both parties were willing. It's related to the difference between what Whoopi Goldberg called 'rape' and 'rape rape'. I'm not sure it's the same distinction, since Goldberg clearly regarded alcohol/drug related violations as not being 'rape rape' but I don't know if such cases are counted as 'forcible.'

It's also come up in other contexts. There have been cases where minor males who've been statutory-raped by adult women have been required to pay to support the resulting child. By contrast it would seem pretty perverse to make that same requirement in a case where the minor male had been required to perform at gun-point.

Prasad is correct. "Forcible" has a technical meaning in criminal law, which is ordinarily the business of the states, go figure. But like so many technical legal terms--fairness, equity, reasonableness, objective, etc.--particularly in the hands of a demagogue, the technical delineations are obscured by commonly understood meanings. Consequently, the law itself offends. I imagine most victims of rape involving impaired consent perceive the crime as an equally "forcible" violation as a gunpoint rape.

Thank you, Dean.

Actually, remembered a more common reason the forcible/statutory distinction matters legally. Basically, it allows you to apply ~ "forcible masks statutory" when one minor forcibly rapes another. If a sixteen year old girl is raped by a thirteen year old boy, you don't want to call her a rapist instead of (or in addition to) him.

Ruchira, back with a vengeance! If this won't get you back to blogging, very little will. My God what an era we live in.

Oh just anecdotal: Men are often found to believe legitimate rape has occurred when a woman hasn't lied about being raped to get back at the guy -- for seducing her -- by tarnishing his reputation for good. Injuries are excellent proof of this, provided they are not self-injuries. In the absence of injuries that can be forensically demonstrated to prove, not suggest, sex with violence -- or as women tend to call it, rape -- there's a great big gray area where a guy should always be given the benefit of the doubt. Too much is at stake for him to be easily victimized by a woman who fell for him while he was merely playing rough, and who is just plain old sorry now -- and angry.

How do you think laws defining rape would read if they were written by women and children? What we have now are laws that compare to anti-theft laws written by thieves.

Ah, thought a bit more -> force or threat also supersedes impairment in virtue of intoxication. Say two men, one extremely drunk, have sex. Depending on circumstances, he's been raped. But suppose instead the same drunk guy physically holds down and rapes the other guy, he is now rapist, and his drunkenness might conceivably be held against him. Again, think it inadvisable to tactically collapse categories to prevent politicians from misusing them.

Elatia, what are some ways in which rape laws would look different if women and children were writing them?

I am fully aware of the danger to men from women claiming rape where there was none. (Think "A Passage to India"). As the mother of a boy and a girl, I am not biased either way. But I think very few women will claim to have been raped if it did not occur. Harrassment perhaps, but rarely rape. Women's natural reticence in having their sexual lives examined in public is a very good safe-guard here. But of course, the law cannot be based on the guarantee of a woman's virtue. But the starting point should not be her lack of it either. Right wingers like Akin seem to operate on the premise that since most women are floozies, most rapes must be illegitimate ("She was asking for it") claims of non-consent. At least that is how it comes across. I think forensic tests can be pretty reliable in cases of rape. Unlike Akin, experienced doctors do know how a woman's body works. Threat of violence is sometimes as good as the act of violence. The problem of course is that majority of rapes do not involve complete strangers. Perpetrators are usually someone the woman knows - some better than others.

No time for a literature review, but I've just stumbled across a piece from 1998 that gives an idea of the kinds of different rape laws promoted by a feminist scholar. It is Aviva Orenstein, No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998). You can see that it focuses on character evidence, primarily of the accused. Ironically, from my cursory glance it appears that the article argues for reforms that will, in the short term, perhaps reduce convictions. Orenstein has a grander scheme in mind. She wants "to counteract the cultural pull of the rape fable in ways that are both fair to individual defendants and respectful of feminist principles." Specifically, she reluctantly rejects rules that permit presentation of propensity evidence in cases of rape.

Andrea Dworkin, rest her soul, was on to this years ago. The he-said-she-said conundrum of rape law is a bit of a distraction. The misogynistic cultural celebration of sexuality as an exercise of entitled power is the culprit. If the background story to every rape suit that "most women are floozies" remains implicit and thus unchallenged, fine tuning of the process isn't going to matter much.

Coincidentally, another example of laws related to the evidentiary aspects of investigation of sexual assault has cropped up. I'm not suggesting this describes a law that would be better written by women and children--evidence law is complicated and it tries to balance a number of competing forces, so of course one party or another is likely to seem slighted in many cases--but you can see how even judicious legalism ends up sometimes seeming so unfair.

In brief, the case described involved a 14-year-old female victim of her father's assault. A court rule of evidence permits testimony as an exception to hearsay when statements are made "for purposes of medical diagnosis or treatment..." The victim was examined by a doctor, with a state trooper in attendance, in accordance with a state program designed to elicit forensic information. The victim was upset and unable to provide verbose testimony, so the trooper asked her yes-or-no questions, to which she responded. Ultimately, the state's highest court held that the testimony had been admitted improperly at trial because its explicit purpose had been forensic investigation.

Read the court's six reasons for its finding that "[t]hese facts all suggest the exam was primarily forensic rather than medical." Maybe so. In fact, this conclusion seems indisputable. But the rule doesn't require a primary medical purpose to except the prohibition against hearsay, and the six reasons don't strongly diminish the equally clearly medical nature of the investigation.

Prasad and Dean, in observing above that laws pertaining to rape would be different if authored by women, I am suggesting that we live in a society whose laws are written by men. Until the legislature is 50/50 men and women, that's the way it's going to be. I am not suggesting women lawmakers would seek to criminalize the behavior of men more than laws on the books now do. I am suggesting that a woman who accuses a man of rape, so that a charge of rape may be brought against him, has had to make of her life an open book, when no such disclosure is required of men accused of rape who try to protect themselves against being formally charged. Should this be more symmetrical?

Elatia, I agree with most of what you say. Laws are written by men, often by men who are deeply confused about sexuality, gender, violence, and power. Much of the literature about rape law relates to the very problem you identify, the double-victimization of the woman, whose character is made an issue by the defense. But review my comment at 4:50 p.m. yesterday. Orenstein describes an actual rule of evidence that was intended to air more about the propensity of the accused in a suit against him, contrary to the usual rule in criminal cases. Yet she is wary of its effect.

I would put what you are saying this way: The two phenomena, imbalance in the legislatures and the unfair, hurtful treatment of rape victims by the law, are two effects of a shared cause. Fixing one or the other effect won't remedy the cause.

Dean, in rejecting 'propensity evidence' [I had to look that up, so may be misunderstanding what it is] it seems like the obvious impact of what she's saying, short or long term, is to make rape convictions harder. This doesn't sound like it's going to help in consequentialist terms. I can see someone worried about defendant rights making this argument, but don't understand at all how it's supposed to be helping women. The text you quote ("counteract the cultural pull of the rape fable") sounds like word salad to me.

Ruchira, the estimated rates of false rape accusation are pretty low, like 5%. My go-to cases for dodgy rape accusations would not be Passage to India type stuff. It'd be rather the case where the accused is politically important, or where someone else who's important benefits from hurting him. Two recent cases, both where many details are hazy/contested, that trouble me are the experiences of Assange and DSK. Basically sleazy guys, but where the evidence of rape was limited, and there were obvious political issues at stake, issues more than strong enough to railroad them. ISTM they had largely fictitious cases created against them for political purposes, and liberals (who'd leap to defend them, Clinton style, on mere sleaziness) ceremoniously acted like charges that likely have significant politics behind the scenes are fully legit, because they don't want to sound like rape apologists. Assange seems to be hanging on, but DSK is basically finished. I remember posting about this a couple years back, and my views have become more hardline since. When a significant political figure is accused without much evidence, the usual rules of thumb don't hold, I think.

I was hoping Assange might get mentioned. His situation pointedly reflects how a rape accusation can taint one's credibility in areas that have approximately nothing to do with one's sleaze factor. In a kind of reliance-on-steroids of his perceived propensity to do unseemly things, many are happy to assume his guilt in both areas, the Swedish sexual assault charges and the Wikileaks matter, which is often mistakenly regarded as a species of treason. Yes, the general prohibition against the introduction of a defendant's propensity to commit a certain type of crime is designed to prevent a jury from considering facts that are of only tenuous relevance to the case and yet would have highly prejudicial effects. Again, I only glanced at the Orenstein piece. She makes the point that the short-term effect of maintaining the prohibition would reduce the number of convictions.

The word salad? It is to some extent a function of the article's time and genre, but also a consequence of my having excerpted one small expressive passage. Many have wearied of the looseness of some scholarly prose, of its reliance on narrative and storytelling, rather than on a more rigorous syllogistic reasoning. I haven't, at least not altogether, and so when I read "counteract the cultural pull of the rape fable" even out of context, I get a rough idea of what I think Orenstein is going on about. Your example, Prasad, of charges against politically important figures involves culturally significant stories, stories told over and over on television and in popular fiction. We consume and internalize these stories, and as jurors might be inclined to weigh evidence to suit the paradigm. Orenstein seems to be talking about another story, "a paradigmatic tale of rape, involving an attractive, modestly dressed victim who is brutally beaten and sexually attacked by a deviant sociopath with whom she has no prior relationship." Admitting evidence of an accused's past similar crimes can mistakenly promote the story, which then puts pressure on victims in other cases to make their situations fit it as well.

Okay boys, pay attention. I thought about Julian Assange, not of DSK though, when I wrote my comments. I think the Assange case is more dodgy than that of DSK. The latter had a pretty barbarian record with women that was accepted even by his wife (she called it "seduction" - not the same thing) who btw, has left him now. In the case of Assange, it seems that he may have used his fugitive celebrity to cajole (coerce?) women into unpalatable sex - rape may or may not have taken place. Being grossed out by an encounter is not the same as being raped. In both cases, there is legitimate suspicion of political motivations. I think Assange is a more likely victim than DSK.

And here is something that should be taken into consideration about powerful men vulnerable to real or specious charges. It just so happens that powerful alpha men also feel entitled to favors, sexual ones included. ("Power is the ultimate aphrodisiac" _ Henry Kissinger) Women often oblige, sometimes out of awe and occasionally out of fear. Some who resist can find themselves as objects of their ire or coercion. Rape, physically forcible or not, is very much a powerful men's domain. That is the reason why work place harrassment rules put so much emphasis on power differentials. Clinton said of his non-rape shenanigans, when asked why he took such reckless risks, "Because I could." Rape is a crime of opportunity and that opportunity is often facilitated by a position of power of the criminal.


Okay, I understand better what at least the 'fable' notion is, and is doing. So she wants the word 'rape' to become richer, more accurately reflect the real life range of cases, so that when a particular case doesn't involve a 'attractive, modestly dressed victim who is brutally beaten and sexually attacked by a deviant sociopath' the victim gets a fairer shake. It's about arbitrage between 'madonna' and 'whore' victims/situations, to make convictions less dependent on this kind of idealization of victims. Sounds a bit baroque, but I get the idea. You're much better at decoding this stuff than I am! Re reduction in conviction rates, she says 'short term' but I think the downward pressure is intrinsic, long term.


I'm in the odd position of defending DSK. I do it against the rape charge, not DSK as a certain kind of sexual animal. I don't know if you followed the story after media interest quieted down, but my summary is, -everything- unraveled, even the lies about the lies. Like the idea of an earlier rape of Diallo. She claimed to have been raped earlier in Guinea, then admitted she'd said that to be consistent with an earlier lie made on her asylum application to strengthen her case. Still later it came out she'd never claimed she'd been raped in her asylum application to begin with. It was just heat of the moment storytelling. Plus plenty of people, including then and ex wives, gave him character testimony saying he was a serial womanizer, but not one who'd rape or assault. After the settling of the dust, I don't find anything remaining separating DSK from Clinton.

I see your point about powerful men also taking license because they can get away with it, something that further separates a DSK/Clinton/Berlusconi from an Assange. My example would be Berlusconi, whose downfall ultimately (in part) was that he was sleeping with a seventeen year old prostitute. To put it crudely, no-one, even a man who has illicit tastes, needs to involve himself with seventeen year olds specifically. But he must have been so used to getting away with everything, he didn't even bother with bright-line legal distinctions. It would be even truer for any cases where he thought his "charms" were being rejected.

The women who have publicly defended DSK are almost all from Mrs. DSK's close knit upper crust circle. The hotel maid Diallo turned out to be a terrible accuser. I am still not sure if he was set up by political opponents. A young French journalist (a family friend to boot) also accused him of a decade old rape but her case was thrown out. Her mother initially dissuaded her from going public with her accusations but later supported her. So, we don't know if there was anything there. Men like DSK begin as common Lotharios. But as the success rate of their aggressive seduction increases they often become sexual bullies, particularly if at the same time their financial and political fortunes are also ascendant. Of their numerous conquests, a rape or two are not at all unlikely.

Julian Assange is definitely not Clinton-Berlusconi-DSK. He is emphatic about not returning to Sweden. He says that he fears extradition to the US, the power that is surely pulling the strings behind his persecution. But the question is which came first - the alleged rape or the opportunity to get him on the charge? If extradition rules are all he fears, then the UK is hardly a safe place for him. The UK is if anything, even more friendly with the US and more likely to do the political biddind of the US. But there are no rape charges against him in the UK. How expansive and liberal are Swedish laws regarding rape? I am sure they are much more in favor of women than they are here. Does Assange think (know?) that whatever he did with the women, may actually put him in danger of prosecution in Sweden independent of Uncle Sam's hostile intentions? Very murky.

Getting back to the original point of this post, I am not especially hung up on "women's issues" in picking political positions. I mean that is not all I look at. But blatantly hostile and ignorant attitude towards women is clearly off putting. Mitt Romney (and Mrs. Romney) have repeatedly asserted on the campaign trail that he is on the right side of women's issues because women care about the same things as men, the economy and job opportunities being of primary concern to them also. Exactly! Don't they realize that reliable health care, access to contraception, freedom from sexual intimidation and planned pregnancies are 'economic' issues for women? Unless they feel secure on these fronts, their working lives can be severely compromised. It is not just their dignity that is hurt. Any politician who takes a cavalier, demeaning and contemptuous stand on these matters is also acting against the economic interests of women.

My understanding is that Assange is in fact eager to discuss the claims with Swedish officials, but that he fears US meddling. He wants to conduct the interviews in London--or now Ecuador's embassy there--or, if in Sweden, with assurances that he won't be extradited to the land of the free and the home of the brave.

You've perfectly summarized the perennial dialectic of "women's issues," Ruchira. They belong to women only by virtue of their not being of special concern to men.

I harbor far more sympathy and benefit of the doubt for Assange than I do for the likes of DSK and Berlusconi. I hope that he is indeed able to tell his side of the story to Swedish authorities without the fear of being Shanghaied to Gitmo.

Ruchira, I strongly suspect they know what they're doing, that the failing is moral, not intellectual. Not the Akin episode itself, that's foot-in-mouth, but the overall approach, and the picking of an even more pro-life VP guy than Romney's repackaged himself into.

The important word there is repackage. Consider his track record as Mass governor, his work with Bain and then Salt Lake Olympics, plus the fundamental Mormon issue. Then there are all the primaries, where he was effortlessly getting out-tea-partied by Bachmann, Santorum and Perry. You say Romney to the average Republican voter, and he's not thinking social conservative messiah and family values, he's thinking Wall Street, Gordon Gekko and Mass healthcare. Fundamentally his problem is he's seen as someone who'll say anything for a vote.

So Romney's probably decided to give some heft to 'base turnout' at the cost of 'independent support.' He also wants to make Obama's likely effort, in the debates etc, to depict him as flip-floppy and keep mentioning 'Romneycare' sound less psychologically plausible.

Oh he is playing to the base alright. Hope the shameless pandering comes at a steep price.

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