In the discussion of the comments made by Stephen Trachtenberg which I wrote about yesterday, there are several problems. Since I have young nieces who are influenced by this and similar discussions, I'll go through some of those one by one.
There is the accusation that someone who pointed out problems with the case made at Mother Jones, Jezebel blog and other places is "putting the onus on the victims of rape".
Well, no, that onus isn't placed on those who make accusations of rape it's placed on anyone who makes any accusation of wrongdoing and, especially, law breaking. That's an inescapable consequence of the law making a presumption of the innocence of those who are accused, ideally the basis of the American justice system. If that isn't the basis of how justice is done then any entirely innocent person could be accused of a crime and they would be responsible for proving that they were innocent. History shows that even in the United States, when the presumption of innocence is suspended that the results have not favored those who are not privileged. Poor people, social outcasts, ethnic minorities, women, have all suffered under systems where the presumption of innocence isn't the basis of justice as it is really administered.
Anyone who has not been convicted under due process is not "known" to be guilty. That is as true of those accused of rape as it is those accused of any other crime. In too many cases, including in rape cases, convictions have been shown to be false and people have been proven to have, actually, been innocent. No one should get to begin by assuming that someone who is accused is guilty or that everyone who makes an accusation is a victim of a crime. That a crime was committed has to be established even before someone can sustain an accusation against someone. If that's not the standard that is followed, all hell breaks loose.
If you want examples of what happens when that isn't the case, you can look at the infamous Stuart case in Boston, where an accusation was against an unnamed "black man"made by a white man who murdered his wife and then shot himself to deflect suspicion from him. A real black man was arrested and brutalized and perp walked before the entire world's media before Charles Stuart was shown to be the real criminal who committed the murder of his own wife, who committed the "assault with a firearm" on himself. You can also look at the infamous Scottsboro Boys case in which no crime took place and, it is quite possible, the "victims" were pressured into making false accusations by the assumption that something must have happened under the circumstances. In that case the accusations were almost certainly coerced by social and legal expectations and a presumption that the young white women were victims and that the teenage boys were rapists when nothing happened. The entire injustice was created by a presumption of, not only guilt, but of a crime having happened.
There is no possible perfect justice system that can be administered by people, an imperfect one is the best we can achieve. But there are ways to prevent the casual insertion of common forms on injustice into it. Putting the onus on the accuser and the prosecutor is one of the most important of those measures. That the presumption of innocence might, sometimes, be especially vulnerable to allowing the guilty to escape punishment is the result of the crime hinging on the question of consent being given, in private. It is also vulnerable due to the fact that the accused may be able to excuse their actions by claiming to have done what they were given permission to do. That is an inescapable problem with the presumption of innocence but there isn't any remedy that isn't liable to even worse problems arising.
As an aside, the political and social milieu in which this question is argued doesn't help clarify things when it also champions such things as bondage sex, sexual sadism and other things associated with the practices of rapists and those who prey on vulnerable people. You can't have it both ways. You can claim to have a right to the full range of sexual depravity that is based on creating and exacerbating differences in power and control, claiming a right to degrade and abuse people for sexual gratification but you will find it impossible to insist that they have a right to presume that other people will have a heightened respect for their full right to personal dignity and autonomy at the same time. That distinction is damaged and destroyed, you won't find that there is a universal safe word that works when you play like that. Mix in the insistence on that at ever earlier ages of consent and with alcohol and drugs mixed in and you are insisting on the right to something even as you make it impossible to have it.
Choices matter in real life. Real choices have real and effective consequences. You choose one alternative and you accept the results, those you like and those you don't.
You can choose that people act like adults who respect the rights of other people or you can have people who don't respect those rights when it comes to you.
You either get to claim the right to dignity and respect for autonomy in sex or you get to accept sexual incidents that include the denial of dignity and the respect for autonomy. You don't get to claim a right to the presumption of innocence when it suits you but, then, to deny that right when its results don't suit you. Responsible adults don't try to have it both ways and irresponsible ones who insist they do aren't allowed to do that by responsible adults. And that isn't a matter of gender it is the difference between being a responsible adult and a person who can't and so isn't allowed to have the full measure of personal autonomy and choice in their life. Accepting responsibility for your choices is the basis of adult autonomy and agency, the only means of achieving that.
I have to say there is something a little disgusting about having to point these things out to people deputed to be adults. It is an extension of the disgusting situation in which "adults" of college age have to be told by a college president that they are endangering themselves by choosing to get drunk. Something they should have known years earlier. It is especially disgusting when people even far older than college age who are told that holler and complain that the person telling them what is obviously true and responsible are violating their rights as adults to do stupid stuff and expect that their university is responsible for preventing them being harmed by their own choices. That's not something the feminists I knew in the 1970s would have done, they were all about claiming their rights as adult women and owning all of what that means.
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