REASONABLE DOUBT

Longtime readers know how much I love me some hockey and the Blackhawks in particular. So earlier in August you can imagine how disappointed and grossed out I was to hear that mega-star Patrick Kane was accused of sexual assault in his Buffalo home. It is, sadly, the latest in a long line of incidents involving Kane, although the previous problems fell under categories like "immaturity" or "poor judgment." Apparently he has graduated from being a jackass to being a criminal.

Not that I expect the legal system to reach that conclusion.

One of my family members was a public prosecutor for about 30 years and he has noted on several occasions that sexual assault cases are among the hardest to prosecute successfully. Of course most instances of rape never result in so much as a police report let alone prosecution, but among those that do the nature of our justice system (and culture) favors defendants more than usual. It's one of a few instances in which judges and juries must not only consider whether the defendant is guilty of a crime but whether a crime was committed at all. If both parties agree that sex took place but disagree about whether it was consensual, it's not exactly like dealing with a burglary case.

In the Kane case the accuser did every one of the "Well if she was really raped, why didn't she ____?" things that the Men's Rights crowd inevitably brings up. She called the police and reported it. She went directly to the hospital. The "story" is uncomplicated and consistent. Unfortunately the police are spending a great deal of time investigating things that ultimately are irrelevant. How drunk was Kane at the club? Did the woman flirt with him there? Nothing anybody saw in public at a bar matters. If the woman was climbing all over him and said "LET'S GO HOME AND HAVE SEX" in the presence of a dozen witnesses, it doesn't matter. If she got to his house and decided "Nah, I changed my mind" then that's that. People have a right to do that. Women (or men) aren't contractually bound to deliver sex at Point B because they had agreed to it at Point A. This isn't selling a car.

The much-publicized fact that Kane left a bite mark on the woman is also going to be of limited value to the prosecutor. I mean. Let's be real for a minute here. Raise your hand if you've never given, nor received, a bite mark from another human being during an intimate encounter. So it wouldn't be terribly difficult for Kane's (no doubt extremely expensive) attorneys to argue that such evidence was merely part of a sexual encounter that both parties participated in willingly.

Do I believe that? No. Does it look like he did commit rape? Seems more likely than not to me. But "Seems more likely than not" is not a useful concept in a criminal case (civil trials are another matter). There were no witnesses to the actual sex/assault. No videos and pictures, at least not that the public has been told about. She will tell a jury what happened and his lawyers will say "It happened but she agreed to all of it." And the odds that the jury will overlook that alternative explanation to drop the hammer on the rich NHL superstar and local hero are vanishingly small.

The justice system gets a lot of things wrong. Sometimes that's because it isn't working. In other cases it's because it works exactly as intended. With some crimes, guilt beyond a reasonable doubt is an impossibly high bar.

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64 Responses to “REASONABLE DOUBT”

  1. Emerson Dameron Says:

    The most likely resolution would be that she drops the criminal proceedings and cleans his ass out in civil court. The NHL can boast that he's "cleared his name" and maybe the Hawks can bump his salary to help with the substantial payouts he'll be making for the next decade or so. That's happened before, right?

  2. Hazy Davy Says:

    I keep reading analyses like what you've written, that I assumed that's how it worked.

    I have a contrary experience. Someone I know, male, was accused last year of a variety of crimes, which I think stop short of rape. But without legalese in the way, I think "unlawful sexual contact" or what have you is more simply known as rape.

    Something happens at his house. Accuser (female) hangs out there for a while after. After she's gone home, showered, etc. etc., she calls law enforcement to report it. He's arrested. The LE pushes a press release that declares:
    1) That he did it
    2) That they think there may be more "victims", who are requested to come forward.
    3) Five more women come forward, subsequently, two of them with credible stories. (Two of them don't even make sense.)

    So, I know this guy 20 years. And I believe he's telling the truth when he admits to consensual activity with one of the women (not the initial accuser). I don't believe he's ever assaulted anybody. [Maybe to lend weight to my assessment, understand that I don't hold him in a very positive light, right now.]

    Yet he was convicted on all counts (except one which was dropped).
    [And then, bafflingly, for these terrible crimes, for which he was convicted, instead of spending his life in prison, he's going to spend less than 2 years in the county jail.]

    So the nature of crimes in which the accuser and the accused are the only witnesses, and there's no forensic evidence besides, are crazy both in terms of conviction as well as sentencing.

    But if you add into the mix that the accused is wealthy and celebrity, I imagine they get weirder yet. [I honestly don't know whether it's unidirectional as you've said, given my one personally proximal anecdote.]

  3. mojrim Says:

    As much as we decry this or that particular defendant going free from an especially heinous crime we must not forget (a) that's how it's supposed to work and (b) the alternative is downright appalling. No system is, has been, or will be perfect – you only get to choose how you want to be wrong.

  4. GunstarGreen Says:

    "With some crimes, guilt beyond a reasonable doubt is an impossibly high bar."

    And then it's YOUR ass in prison and/or on a registry for the rest of your life. And then suddenly you're not so ambivalent about the consequences.

    This problem will not be resolved until there are coitus contracts, full stop. The only other alternatives for any sensible person that wants to protect themselves from life-ruining legal backstabbing is complete and total abstinence, or "Yes, but only with a judge and jury watching".

    Innocent until proven guilty. It is the core basis of our legal system.

  5. SeaTea Says:

    I agree with mojrim totally. It's really a reflection of the nature of the crime than it is a reflection of the justice system. When a situation boils down to "party A's testimony versus Party B's testimony and no other facts to go on", it would be dangerous if the court were to sentence someone to serious, serious penalties. There is a subset of things where evidence can be presented and a reasonable certainty established as to guilt or innocence. Our system is good for those, usually. But when there cannot be a reasonable certainty established, for better or worse, the person should be "innocent until proven guilty". It's not perfect, but it's probably optimal until we get precogs floating in milk baths.

  6. Emerson Dameron Says:

    @mojrim @SeaTea:

    Sex offenses, particularly misogynistic ones, reveal the "empathy fatigue" and barely repressed Lock 'Em Up, Law-and-Order reactionary streaks of many on the left.

    I have no solutions, but some people in the Restorative Justice movement are doing very important work in this area.

  7. Brian M Says:

    I agree with some of the comments here, Ed. You come to a very bad conclusion here.

    We can't assume that "the system" will provide justice unless it is held to that standard (and even there, it fails). And, unfortunately, that means some victims won't receive justice, either. But that doesn't mean we make it easier to convict. Easier to charge (where appropriate). Better training for dealing with these crimes and charges of crimes. But to assume we need easier convictions, less proof….that is dangerous.

    Because the hockey stars will not be the victims. Minorities and poor folks will be. As they always are.

    I like the Restorative Justice idea.

  8. Skepticalist Says:

    It has to be hard to decide whether to ruin a life rather than a career. The first should be hard the hardest.

  9. Skepticalist Says:

    Geeze…

    Make that "The first should be the hardest."

    I'm overdo for a checkup.

  10. herble gerble Says:

    @GunstarGreen

    What does a contract do? People have to have the right to back out of sexual activity at any point, that they signed a contract at some earlier point doesn't mean a thing.

  11. GunstarGreen Says:

    @herble gerble

    Hence the rest of that comment.

    The only other alternatives for any sensible person that wants to protect themselves from life-ruining legal backstabbing is complete and total abstinence, or "Yes, but only with a judge and jury watching".

    In the context of "guilty beyond a reasonable doubt is an impossibly high bar", what you are talking about is lowering the burden of proof until it is effectively non-existent. "I said it was rape, therefor it is rape and they are guilty". In such an environment, there is no legally-sensible way to engage in sexual activity. There is no circumstance under which you are protected from someone deciding, quite after the fact, that they don't like you for whatever reason and having you thrown in jail for a crime that they have no burden to prove actually occurred.

    In all other contexts in which the consent of multiple parties must be legally established, our society uses contracts. All involved parties sign a document stating their agreement to proceed along some course of action under certain pre-defined terms, and their legal recourse for the breach of those terms is to refer to that document and the obtained signatures. If you mean to say that even THIS construct should be subject to whim and invalidation at a moment's notice with no repercussions, then what you are effectively stating is that any involvement in sexual activity of any kind must necessarily leave you vulnerable to criminal prosecution for any reason or no reason, with nothing you can do about it and no means to defend yourself.

    And a person would have to be a remarkable fool to take that risk, ever.

  12. Emerson Dameron Says:

    @GunstarGreen:

    I can't tell if you're trolling, but how about, "trusting, healthy, consensual sex with people who aren't out to hurt you?"

    If I were that paranoid, I wouldn't leave the house.

  13. GunstarGreen Says:

    "Trusting, healthy, consensual sex with people who aren't out to hurt you" is a very lovely ideal, but it simply does not reflect reality.

    Humans are complicated. There are any number of reasons why a trusting, healthy, consensual relationship can turn sour later. It doesn't even have to be exotic or extraordinary; sometimes people get together, have a good time, and later on decide that it's just not working out and part ways. Ideally, that's the end of it. Often times it is not. Sometimes people get bitter or jealous after the fact, and decide that they need to get some revenge. Having a charge you can level against someone that will land them in jail, few or no questions asked and no real burden of proof required? That's a very dangerous weapon in the hands of someone in that mindset.

    And that's before you get into the actually complex stuff. Like it or not, Duke Lacrosse happened, and that case alone — to say nothing of other recent high-profile examples — demonstrates that no, "guilty beyond a reasonable doubt" is NOT an "impossibly high bar". It's the bare minimum.

  14. Trollumination Says:

    There used to be a contract that declared sex to be consensual. It was called 'marriage'.

  15. Greg Says:

    Yup. And thanks to that "contract," until the last decade of the 20th century, it was legally impossible to rape your spouse.

  16. Skippper Says:

    @Hazy Davy

    I don't know what the victim's actions following the rape have to do with anything. People who have been through serious trauma behave in different ways, not according to some fantasy that other people have of how they should have reacted.

    Some people freak out, other people go into a catatonic state, other people just wander around as if nothing has happened. It's a very individual response.

    Very often, people who are being assaulted, just mentally go away. Mentally, they're not really there. They go to a "safe place" in their heads. It's a survival mechanism. This is why very often survivors of childhood abuse don't remember the abuse until years later.

    And taking a shower — lots of showers, long showers — is a common response of rape victims. They feel violated. They feel dirty. They want to wash off the smell, the sweat, the drool, and semen of the douchebag who assaulted them.

    But the fact they didn't behave the way people who have never faced serious trauma imagine they should have behaved will be used against them at a trial. That's one of the big problems.

  17. Chris Says:

    Ed, thank you for writing this in a way that mostly avoids assuming this is something that only men do to women.

  18. Hazy Davy Says:

    @Skipper,

    You're right. (Although I think my narration didn't reflect what I thought was weird about the event, it's reasonable for a victim of assault to behave"weird", so …)
    I'll try again, but might still get it wrong.
    – Here's a guy who, despite the fact that I don't like him, am pretty angry with him, has not behaved in a way that I could believe he assaulted anyone, in any way.
    – There's a complete absence of forensic evidence, turning this into party A vs. party B
    – His version of story: we were doing what we agreed to do. Then, we were sitting, having a deep philosophical discussion for 2 hours and sharing a non-alcoholic beverage. Then she went home. There was no sexual contact and no assault. Her version: we were doing what we agreed to do, when all of the sudden, he raped me. Then, we were sitting, having a deep philosophical discussion for 2 hours and sharing a non-alcoholic beverage. Then, I went home. Then I showered off and called law enforcement. I don't really see what makes her version ring more true than his.

    As to the other accusers, one said "he yelled at his dog" (I've never heard him yell, in 20 years, at anyone….certainly not his dog, and that hardly seems relevant). One said "nothing happened, but I always thought something might." One said "I felt uncomfortable, but he didn't technically do anything wrong."

    I don't know of a better way of resolving unevidenced situations.
    I think, neither did the judge, since the sentence seems incredibly light if he believes the jury correctly convicted him.

  19. jon Says:

    I think sexual chaperones are a better non-solution than contracts. A contract of that sort would probably involve a notary public. Good luck getting one of those at closing time. A sexual chaperone could come to you at all hours and supervise things, advise you of which orifices are available based on the mutual interests of the parties involved. It could be like Uber or Lyft, records could be kept, and based on the number of people getting busy at various times, the economy of scale could keep things affordable.

    Or we could grow up and just not have coercive sex with people. I think that would work better.

  20. witless chum Says:

    "And that's before you get into the actually complex stuff. Like it or not, Duke Lacrosse happened, and that case alone — to say nothing of other recent high-profile examples — demonstrates that no, "guilty beyond a reasonable doubt" is NOT an "impossibly high bar". It's the bare minimum."

    Huh. The Duke lacrosse case didn't even get to trial, but less conviction and featured what I hope was unusually flagrant prosecutorial misconduct. It doesn't actually tell us much about a situation like Kane's. The most other recent high-profile example was, what, the Rolling Stone article that mentioned a gang rape at U. Va. which probably didn't happen, certainly not the way the woman said? It involved no criminal charges ever being filed against anyone.

    Such evidence as there is suggests that false rape allegations are very rare and most of the ones made aren't even against a specific person, but involves a woman seeking sympathy and attention by making up a rape that never happened. Sometimes including some pretty baroque self-mutilation.

    It seems to me that for almost all people, worrying about false rape allegations is akin to worrying about getting hit by falling airliners.

  21. Emerson Dameron Says:

    @witless chum:
    It's also worth noting that people who treat all rape allegations as automatic gospel truth are part of a fringe minority, and not a powerful or well-respected one.

  22. J. Dryden Says:

    It's worth noting, too, that in a delightfully racist society like ours (as well as one that worships fame, falsely idolizes certain professions, etc.), "reasonable doubt" is a wildly varying standard.

    Accuse a black man of raping a white woman to an all-white jury? That's a much easier case to make than, say, a white man accused of raping a black woman in front of that same jury.

    "Reasonable" too often means "based on my prejudices." As a result, male jurors, female jurors, gay jurors, straight jurors–everyone who has a gender or sexual identity that differs or aligns from the narrative put forward by the prosecution is going to steer that verdict in a certain direction.

    Rape trials that boil down to equally plausible he-said, she-said narratives are always going to yield acquittals, because we've decided that the protection of the potentially innocent supersedes the protection of the accuser (which often means "of the victim.")

    It sucks. It sucks and it leads to the terrible injustice of people guilty of horrible fucking things go free.

    But the alternative is so much worse that, yeah, I just can't endorse the opposite. Punishment must be made to overcome the most vigorous of defenses. But as clear as that point is, it is made over the suffering of millions of women. And children. And men.

    Rape has to be prevented–because our system cannot effectively redress it. So maybe that's where we focus the stressful energy that fills us when yet another woman comes forward to be told "Sorry, we just can't make a case, here."

  23. Glen Says:

    If orgies were more socially acceptable, maybe even required, then witnesses would be a norm. If not orgies, at least Threesomes?

  24. mwing Says:

    It does suck- but if it comes down to a "he said, she said" trial, the "she said" – by itself- just doesn't meet any standard of reasonable doubt.

  25. Ethelreda Says:

    And after that you get to the question of, "what is the point of our criminal justice system?"
    1) vengeance- truly a terrible idea for society as a whole to conduct vengeance. But often it seems to come down to that rather than anything else.
    2) Provide a deterrent- well nice idea, but the world breaks down into 2 types of people (people who break the world into 2 types of people, and people who don't heh) those for whom a fine or embarrassment or other small punishment will cause them to not do bad thing X, and those who are unable or unwilling to care about the penalty. Even the threat of death doesn't stop some people.
    3) We increasingly will find that most people who do bad things are unable to control themselves, and prison doesn't help them. Their brain was made wrong, or stress, malnutrition, abuse, etc changed their brains in bad ways. It seems really unhelpful to have only punishment as a way to treat these people.
    3a) Of course, most of the people in prison have mental or substance abuse disorders, so it is doubly bad. Those are people who we have proof we can often help with different programs.
    4) only use for prison as it now stands- keep people who cannot not be evil away from the rest of us.

    Having said that, I like the idea of taking someone like Tsarnaev and dropping him in a locked box for 80 years. Sounds much worse to me than death, so I have the same desire for vengeance as anyone; more than some. But I wish to live in a society that doesn't allow our ruthless impulses to rule the day.

    I don't even think civil penalties are really less good than criminal. I mean look at what happened to OJ. His life was ruined either way. I suppose jail is worse than poverty and shunning, but maybe not by much. And the victim in the civil case gets something of benefit; all they get is vengeance in a criminal case, which you can't eat or buy a Ferrari or mental health treatment with.

  26. Eau Says:

    Wow. Everyone's rolling out The Greatest Hits for this one! From Golden Oldies such as 'This happened to one guy I know and I think he's innocent cause I I know him', 'innocent til proven guilty', 'he said/ she said', 'ridiculous unworkable solution medley' (coitus contracts? Is that a fucking joke?), to Instant Classics such as 'it happens to men too', and the 'no man is safe to have sex' two-step shuffle, the list goes on! Classic tunes to date rape your woman by! Get your 18 disc set today!

    Don't let the apparent consensus here fool you guys. You're not right, youre just still arguing while those opposed have given up in disgust after reading these same arguments that have been effectively rebutted so many times before. That's why people like ed keep bringing the subject up. Because you're not getting it.

    I'll sign off as I have before during similar topics: think harder about this. You can do better.

  27. Laie Says:

    @Ethelreda:
    1) Vengeance is an official objective: victims (and sometimes the general public) want to see the offender punished and I think noone wants them to take it into their own hands. One may bemoan it, but it's important for keeping the peace.
    2) deterrent, too. In the case of rape&murder I'm under the impression that most offenders don't think things through, but here's many more crimes, from shoplifting to misappropriation to vigilante justice.
    3) securing society from certain people
    4) resocialisation (which maybe should be 3a)

    In my part of the world, a few important lefty terrorists (dare I say celebrities?) were due to be released a couple of years ago. Public uproar. But even the worst cynic had to admit that they were unlikely to resume mordering politicians, or anyone for that matter, and that no amount of further jail time would bring back the dead or increase the deterrence value of their punishment. For better or ill, justice had been served.

  28. Laie Says:

    @Eau: hiding 'innocent til proven guilty' among the other golden oldies, you've almost snuck it past me. But this one is golden for good reason. If you don't understand why this is so, read up on the Inquisition, Volksgerichtshof, and House Un-American Activities Committee.

    You may think it's crap. I think the alternative is so much worse.

  29. Brian M Says:

    Conviction without a trial is pretty disgusting as well, Eau.

  30. Hazy Davy Says:

    Eau,

    You've certainly misrepresented what I said, if not others.

    Others made the argument that, in the absence of evidence, the justice system biases towards acquittal. And I'm saying, I've only known one person who I've been aware has been accused of rape. He says there was no sexual contact. And there's a complete absence of forensic evidence. The only data are his word, her word, and the testimony of other women (mostly about different accusations). And he was convicted.

    And based on the sum total of info I have (which is more than the jury had), I would acquit. And it's not that I like the guy. I don't.

    I have an anecdote to counter Ed's anecdote with his relative. It's ^%&*( impossible to rebut mine. It's a story. I presented the information. And it contradicts Ed's implication that this would be pretty cut-and-dried to favor the accused.

  31. quixote Says:

    Seconding @Eau.

    There are reliable statistics, based on situations like hospital treatment after sexual assault (i.e. not just some woman deciding after a while that she's cross), that one in three women are raped during their lifetimes in some populations, and around one in five to one in six in the general population in the US.

    That is a truly huge number of people.

    It's not hard to derive from that what the reporting rates are for the crime. They are very low. On the order of 10%. So, with a 1000 rapists out there, 100 might be reported. Out of those, two, yes, two, (2), are actually convicted.

    But the problem judging by the comments is false accusations of innocent men.

    Right. Got it.

  32. Laie Says:

    Eau, quixote, I see how you get there. Ed says "With some crimes, guilt beyond a reasonable doubt is an impossibly high bar" and I fully agree.

    However, we know what happens when that bar is lowered. It has been tried before. Don't do it again.

  33. Spiffy McBang Says:

    I'm reading and re-reading the end of this post to see where Ed is suggesting that the bar for rape convictions should be lowered. He's saying the justice system gets it wrong (ie. rapists are let free) because the bar for conviction is so high relative to the way those crimes tend to play out. He's correct that this is how the system is designed. That's not the same as saying it needs to be altered in some fundamental fashion.

    Look, false accusations are shitty, but FBI statistics consistently show a false report rate of 7-8%. Obviously that doesn't mean 92% are convictions, but rather that there's some level of evidence available that something happened. So for every woman who's going to the police out of some sense of revenge, twelve more had an experience negative or sketchy enough to decide they should take it to the authorities. If the first thing you're thinking about when it comes to the question of "did a rape occur" is the possibility of a false report, your priorities are seriously skewed.

    In the Kane case, what makes him look particularly bad is not that there was a woman pawing him at the bar before they left; it's that the accuser is that woman's friend, who apparently was not acting that way and only went to make sure nothing sketchy occurred (oh, irony). And the fact that detail matters sucks. But realistically, especially if this goes to trial, it will.

    P.S. @quixote: The numbers are awful, like you say, but not quite that awful. Via rainn.org, 32 out of 100 are reported, and two of those 100 result in a felony conviction/jail time.

  34. eau Says:

    OK, I admit I was a bit lazy in trying to make my lame "Greatest Hits" gag work. I'm still sickened by many of the hand-wavey, just-let-me-stop-thinking-about-this comments above.

    @Hazy: Fair enough. When you put it that way, I see your point. Being that you admit it is one isolated case that only you are familiar with and clearly runs contrary to the overwhelming majority of similar cases makes it kind of useless for this discussion, but I see it.

    @Brian M.: That's a fine straw man there. I hear there's a wizard who'll put a brain it for you if you ask real nice.

    @Laie: Yes. Having a problem with a victim blaming, rape-excusing culture = McCarthyism. I guess you got me there. Well done.

  35. hoosierpoli Says:

    Ugh. Every time this topic comes up…everyone has their side and zero respect for the other side. People start throwing shit.

  36. Khaled Says:

    Pension Plan Puppets (the SB Nation Maple Leafs fan site) had a nice post about the victim-blaming and slut-shaming that goes on when a famous person is accused of rape. The coverage of the Kane case tended to focus on what the woman was doing before she went home with Kane, and "sources" close to Kane have spent a good amount of time victim-blaming. Of course a lot of the coverage somehow forgets to mention that Kane has a criminal history, stemming from him and his cousin beating the crap out of cabbie over a fare dispute.

    The Duke Lacrosse case is not proof of how terrible the justice system is, it is proof that the system worked in their behalf. Oh, what, did some special white snowflakes get falsely accused of some heinous crime by some black girl? What's that? It didn't even get to trial and none of them had to do jail time? Yeah, so terrible. Ask any black man who is in prison for raping a white girl who is innocent about how terrible that outcome was for the Duke players.

    False rape accusations are extremely rare, and the rate at which people are convicted of rape is very, very low. So when a rich and famous person is accused of rape, why do people rally to the defense of the famous person? It's one of the few times that people inherently believe the accuser rather than the accused. For every Rolling Stone article or Duke Lacrosse team bullshit, there are Stuebenvilles or the St Paul's boarding school or the Missouri HS football player (in which a HS senior gave booze and raped a 14 year old, left her half-naked in her yard and nothing happened until people outside the small town got involved). So while you may want to believe that Patrick Kane or Ben Roethlisberger didn't rape young women, the burden of proof for the law is different than the credibility of the story.

  37. Hazy Davy Says:

    So far, eau, Ed has provided one anecdote. I've provided one ancedote. You've criticized me for only providing one, which is dissimilar to the "overwhelming majority of similar cases". Or, rather, you've provided none. quixote and Spiffy McBang are offering some statistics and reason, whereas you're providing only confrontation.

    So, here:
    – Yes, assault (not just sexual assault, but that too) is abhorrently common, and under-reported.
    – Yes, juries will tend to favor the accused, in the absence of evidence. (aka "With some crimes, guilt beyond a reasonable doubt is an impossibly high bar.") [Well, extremely high bar…not *impossibly*, as my anecdote illustrates.]

    1) Saying "it's not *impossibly* high" is relevant. It's directly relevant to the point of the article.
    2) Saying "that's the best way for the justice system to work" is different than saying we needn't do more to prevent, detect, and prosecute such crimes.

  38. Greg Says:

    It's come up before as to Cosby: innocent until proven guilty is a trial right, not some ethical obligation. Reserving judgment due an acknowledgement that you don't have all the facts is a reasonable stance, but shouting about innocent until proven guilty as a defense of somebody is silly. And if the jury believes a victim's testimony, or any witness' testimony, that is sufficient for conviction. It'll be appealed before the verdict is out of the foreperson's mouth, but it is 100% sufficient. The only ones required to get beyond a reasonable doubt are the members of the jury.

  39. Xynzee Says:

    Interesting that it's mostly—I'm assuming from the history of posts I've read from most of the commentariat—male voices on this.

    Where do we put someone like Julian Asange? Take Wikileaks out of the equation. He goes to Sweden hooks up with a woman at a BBQ. She cooks him breakfast.
    He goes to another event, hooks up with a second woman and stays with her. We know that one of them was a bit gaga over him from the texts.

    Next thing he knows he's accused of "surprise sex"*, which is akin to rape in Sweden apparently. At what point did the "consent" end?

    The majority of guys who get caught up in this aren't slathering beasts laying in wait to pounce from behind the bushes at beat a woman senseless. They're not an arrogant over indulged professional sportsman who feels he's entitled to have sex with any woman he chooses. Nor a guy who's got a bunch of roofies in his pocket.

    He is us. He's your brother, cousin, son, nephew… someone that when hear this leaves you gob smacked to hear. You cannot tell me that in your—your younger years especially—life you haven't misread the signals? Granted the majority of us got a very firm, "No!" Which is where it ended. Or you had a couple and you went further than even your own personal boundaries would allow when sober? Or a wife/girlfriend who wasn't quite in the mood, but…

    For most men—younger men especially—female sexuality is a total mystery. Guys it's on or off.
    Yes I am simplifying: With women it seems it can start off with a bang, and just as quickly you're told it's just not going to happen. Other times you're settling yourself in for "when can I drop her off and go home and take care of this?" when you say or do something and the next thing you know she's sucking your face off. Then there's everything in between.

    The problem is, is that part of the learning process requires mistakes. Unfortunately, mistakes in this area means someone got hurt. Which is a very serious problem.

    Do we throw a 14, 15, 18, 21 year old kid in jail—most guys spend a life time figuring this out and still f/up—for being a total social clod where it affects his job opportunities for the rest of his life?

    Sorry I don't have an answer either.

  40. Xynzee Says:

    I also wonder if some of these discussions merely entrench the view that men are horrible sexual predators from whom women must be protected!

    Whatever happened to the "Gloria Steinham school" of feminism which was about giving women agency? Whilst *not* encouraging women to join men in the cesspit as it seems today.
    It sometimes looks as though the "Dworkin school" where all heterosexual sex is rape has won. Which is really a repackaged version of men are predatory beasts.

  41. democommie Says:

    As to why someone wouldn't immediately report thecrime.

    I was close to 30 before I told anyone about having been sexually molested from age 4 to 7.

    Trauma makes people do weird, counterintuitive shit.

  42. Emerson Dameron Says:

    @Khaled:

    Reade Seligman of Duke lacrosse infamy actually went on to do great work for the Innocence Project in exonerating falsely convicted minority clients. In fairness to him.

  43. Emerson Dameron Says:

    @Xynzee:
    To reiterate, hardcore Dworkin acolytes aren't a particularly powerful lobby at the moment. A lot of these talking points seem to be nightmares about dragging horribly betrayed men in front of Chief Justice Amanda Marcotte and her team of kangaroos.

  44. Greg Says:

    Duke Lacrosse only went on as long as it because the PROSECUTOR lied about evidence and did it to the media and the court. The evidence of the accusations was notably lacking from the first lab reports. That situation was well beyond the control of the accuser, malicious or not.

  45. Xynzee Says:

    @Emerson: I wouldn't quite class Kipnis as a staunch member of the MRA set would you?

  46. Katydid Says:

    @Democommie; it's significant that nearly every woman I know has a story about being sexually assaulted and/or raped; often more than one story. Not in the MRA fantasy of "oh, I told a woman she had pretty hair and before I knew it, I was thrown in jail for a million years and everyone in my family was forced to take out newspaper ads and wear signs saying I was a rapist". Women are socialized to accept being assaulted and not raise a fuss about it. It's significant that the 14-year-old rape victim at the prep school kept insisting she didn't want to appear rude to the guy who was, in fact, raping her by standing up for her right not to be raped.

  47. democommie Says:

    @Katydid:

    I agree.

  48. Skippper Says:

    I've had personal experience with the judicial aspect of this. I was a juror on an acquaintance-rape trial. It wasn't technically a date.

    Accusation: Guy meets woman (whom he knows) at a local dance. He offers her a ride home. On the way (supposedly) to his car, he throws her on the hood of a parked car and rapes her.

    The guy was a 19-year-old. So was the woman. He was a "stud," boyishly good looking, nice body, etc. One of the cool guys. The woman was, to be charitable, plain. She was not one of the cool girls in high school.

    After the incident, at 2 a.m., the woman immediately ran to a stranger's home, crying, pounding on the door and asking them to call the police. For his part, the guy drives to a buddy's house, gets the buddy out of bed, and says — in front of the buddy's mother — "Man, I really fucked up."

    It comes out at trial that, following that, the guy goes with his two uncles to a cabin in the woods to write down his side of the story. (The two uncles were in court. If you called Central Casting and send "Send me two small-time thugs," these are the guys who would show up.)

    The trial was typical. The defense attorney tried to make the victim look like a slut who had initiated the sex. The implication was that why wouldn't someone like her want to have sex with a sexy stud like that — despite the fact it was outside on the hood of a car in February in New England.

    They paraded her panty hose — shredded at the crotch — around the courtroom. And they made her relive every moment of the rape in excruciating detail. She was a trooper, but it was brutal.

    The guy took the stand in his own defense — huge mistake, never do that. He claimed the shredded panty hose were the result of "foreplay." This actually got a laugh from everyone in the court. Even the judge kind of turned away and you knew he was chuckling. He claimed that his "I fucked up" comment was because he had met his former coach that night, and the coach informed him that it was too late to get into the college of his choice. Another hearty laugh from the entire courtroom — even the judge.

    His best buddy testified and lied through his teeth. The fact that he was lying was beyond obvious. Then, just in case you hadn't noticed, as the buddy left the witness stand, he went by the defense table and gave the defendant a big wink and a thumbs up. These are not bright people.

    So, on to deliberations. There were five men and seven women on the jury. We took a straw vote immediately, in case we were all in agreement. All five men voted guilty. Four women voted innocent.

    On we went. One woman came around quickly. Another, an older, grandmotherly type — actually the jury foreperson (chosen by lot) — was afraid of "what this would do to his life." Our answer, of course, was what would an acquittal do to the woman's life.

    Also, because he took the stand, the prosecution was allowed to tell us that he was already in state prison on two separate armed robbery charges. (Flower of American youth.)

    The older woman came around, but was unhappy about it. The two other women held out. We went into a second day of deliberation. Counterintuitively, it was the five guys who were doing the persuading. But the two holdouts were adamant that they thought the woman wanted it and changed her mind. Based on what? we asked.

    The biggest pieces of evidence in our favor were the "I fucked up" statement and the fact that the woman had run for help immediately. Finally, they came around. The foreperson cried when she read the verdict in court.

    I've often wondered what would have happened had the woman waited — even a day — to report the rape. I don't know if we could have convinced those two holdouts.

  49. Khaled Says:

    @Skipper-

    Yes, what will happen to the poor, sweet boy who, in a moment of passion, tenderly raped the girl and left her crying. For fuck's sake. And people wonder why women don't report the rape or that prosecutors don't try and go after men for rape. The dude is lucky that the woman went to the cops and didn't have brothers or a father or cousins that would rather settle things on the street.

    @Xynzee- What the fuck.
    "He is us. He's your brother, cousin, son, nephew… someone that when hear this leaves you gob smacked to hear. You cannot tell me that in your—your younger years especially—life you haven't misread the signals? Granted the majority of us got a very firm, "No!" Which is where it ended. Or you had a couple and you went further than even your own personal boundaries would allow when sober? Or a wife/girlfriend who wasn't quite in the mood, but…

    For most men—younger men especially—female sexuality is a total mystery. Guys it's on or off.
    Yes I am simplifying: With women it seems it can start off with a bang, and just as quickly you're told it's just not going to happen. Other times you're settling yourself in for "when can I drop her off and go home and take care of this?" when you say or do something and the next thing you know she's sucking your face off. Then there's everything in between.

    The problem is, is that part of the learning process requires mistakes. Unfortunately, mistakes in this area means someone got hurt. Which is a very serious problem."

    That is one of the dumbest fucking things I have ever read.

    Where is this crisis of men going to jail because they "misread signals?" How dare those women be mysterious… like when they say "no!" their eyes really say "yes!". Ruin some guy's chance at getting a job? I'm sure the woman or girl who was violated and humiliated is gloating at her feminist studies class with the other "womyn" swapping stories of all the men that they have ruined for spite!

    Seriously, stop thinking of it in terms of "what happens to the poor boy" and "he had a boner, what was he supposed to do?" Just stop. If you're not sure that someone is, you know, consenting to what is happening, ask. And if it's too much of a fucking bother to find out, then give it up. What the fuck.

  50. Interrobang Says:

    The sad part of the whole prosecution thing is that it's now much easier to prosecute rapes than it used to be, at least in North America. (Up until the 1990s, in Italy, the victim wearing jeans was an affirmative defence against rape, because legal opinion there held that a rapist couldn't remove a woman's jeans without her help, so therefore any woman who was wearing jeans at the time of her rape had actually consented.)

    The "you can't thread a moving needle" concept had enduring currency since the 19th Century, but may at last be dying out. But there are an awful lot of people (viz. Todd Akin) who basically believe that no woman can actually be raped unless she's a virgin, dressed modestly (for whatever definition of "modest" they believe in), and fight back to the point of injuring themselves or even dying in the attempt. That's an impossibly high standard.

  51. mothra Says:

    Xynzee, I have to hope that you really just have a bad way of expressing yourself because indeed, as Khaled says, it sounds like you are saying "he's got a boner, what was he supposed to do when she was kissing him? She was CLEARLY wanting it…." Uh, no.

  52. Eau Says:

    @hoosier: the real victim here is civilised debate!

  53. Katydid Says:

    There's a quote that says, "A man's biggest fear is that a woman will laugh at him. A woman's biggest fear is that a man will kill her." Women are socialized at a very young age to accept abuse and not speak up. When I was 8 years old and riding the (city) bus to school, a man sat down next to me, put his hand on my leg, and started going up my skirt. Being young, I hollered out…and was immediately chastised by the women on the bus to stop making a fuss and embarrassing the poor man. As a teen in crappy retail jobs, I've had to deal with the skeevy boss who's just a little too handsy, who every woman knows never to be caught alone with. In college, the big fear is date rape, where consenting to dinner together in the dining hall is "misconstrued" to mean consenting to sex. This is the reality for pretty much every woman. For every false claim of rape, there are likely dozens of claims that never get made. Look at the claims against Bill Cosby, going back 40 years. Every woman who spoke up was slut-shamed and called a liar, until the lucky break where the voices were so loud that someone was believed. This is why most women don't speak up about sexual assault/rape.

  54. Xynzee Says:

    @Khaled: "what the actual fuck" is simple. Take everything I said and filter it through Katydid's post.

    Tell me in your history are you 100% sure EVERY girl you had sex with was 100% on board with what was happening?

    Are you sure? She didn't say 'No', but she didn't quite say 'Yes' either. You just raped her.
    Maybe you'd met at a party both had a few—neither are blind falling down drunk, but certainly intoxicated—you both agree it's on. She wakes up feeling a bit of regret because she is not into "just jumping into bed" with just anyone. Therefore you didn't have full consent, therefore that is rape.
    Or your wife or partner not being quite "in the mood", but she has sex with you any ways. Spousal rape?
    Or perhaps at 11 or 12 you (or a friend) snapped a girl's bra strap. Nice work, that's sexual assault.

    You're correct, we do NOT have an epidemic of men being "wrongfully imprisoned".

    What we do have is an epidemic of women being sexually assaulted and raped.

    I am trying to point out, it's far more prevalent than we want to admit, and the fact that pretty much every guy has come pretty freaking close to it. The majority of rapists are not wielding a knife and wearing a skimask, but the guy you look at when shaving. Nor are violence and coercion necessarily involved.

    We can no longer say "that's boys being boys" or "no blood, no foul", can we?

    But is the answer, "throw every guy in prison"?

  55. Eau Says:

    @Xynzee: I don't mean to pile on, but that comment above is a little scary. Only you know if you failed to express yourself or not, but… Yikes. As for the male voices observation, my anecdotal experience (what women in my life have told me) is that women often don't get involved in these discussions because they see them as pointless. Like most hot button issues, we are all dug in to our positions. Things like evidence and logic don't have the impact they should, and it all goes around in circles. But, unlike you and I, there is skin in the game for most women. You're afraid of what 'might' happen to good, clean, godly young men. The woman you're arguing with remembers what did happen to her (or her sister, mother, daughter, friend). Not fun stuff to relive for the sake of a pub/Internet argument.

    @Skippper: Thanks for sharing that story. Apparently, I owe Hazy an apology. It appears the bar is indeed not always 'impossibly' high. Seems pretty high in this case, but you and your fellow jurors got there. Kudos. That can't have been a pleasant experience.

  56. Katydid Says:

    @Xynzee; it's hard enough to get a rape case prosecuted when there is zero doubt in anyone's mind that a rape occurred; not many women are going to run the gauntlet of slut-shaming and "you should have done THIS" and "you shouldn't have worn THAT" over next-day regrets. It's pretty much an MRA fantasy that women wake up the next morning, look across the bed, think, "ahhh, i coulda done better" and scream rape.

  57. Part-time Jedi Says:

    @Xynzee I'm gonna leave you a link to Dr. David Lisak's study on non-incarcerated rapists. http://www.davidlisak.com/wp-content/uploads/pdf/RepeatRapeinUndetectedRapists.pdf

    There's a lot of interesting stuff in there, and I encourage you and anyone else to go through the whole thing, but here's the gist of it. Dr. Lisak asked male volunteers to answer questions about whether they had raped someone, without using the word "rape". He then did some followup questions with the men who said they had forced someone to have sex with them.

    What he found was that 95% of the rapes that were reported within the cohort were committed by men who had done it at least twice, and over 50% were committed by men who had done it 7 or more times.

    7 or more times.

    These were not acts of poor communication or mixed signals. They were deliberate attacks by men who held women in contempt, and had figured out a way to prey on them without getting caught by law enforcement.

  58. Chris Says:

    I've been debating all day whether to write this. I finally decided that writing might help get it out of my head.

    @Eau, when I said it happens to men too, I wasn't trying to be hand-wavey or dismissive. I was trying to be inclusive. This isn't a problem isolated to women, it does happen to men. I know because it happened to me and it's happened to several men I know.

    My story goes like this: I was visiting a friend at a large southern university, drank too much at the party after the football game and passed out in buddy's roommate's bed. Here's where I would say, "Next thing I know" but there isn't one particular "next thing". Your memory slowly starts to fade in, and you realize, not all of a sudden, but gradually, that you are kissing someone you've never seen before and she has your pants off and is groping you. It's more confusing than frightening. (I guess here one could say that it's different for men, because you don't have to worry about the threat of violence.) I hear my friend call through the door that it's time to head out to dinner. I'm embarrassed and say I don't want to go out. I think I said something like, "Nah, I'm good," to which he joked, "I bet you are." They eventually persuade me to go out to dinner, where I try to make small talk with the woman who took my pants off. You might wonder why I would want to go out and chat with someone who assaulted me while unconscious. I think I wanted to feel like nothing bad had happened, that everything was fine. We even went back to my friend's place and fooled around some more. I would bet that she thought i was totally into it. She asked if we could hang out again and gave me her number. I just wanted to go home and pretend it didn't happen.

    The next day my friend says to me, "Isn't ——- a wonderful place? You go to sleep and magical things happen." I asked him how that got started. He said she came by after the game and he told her to go wake me up and have some fun. His roommate chimed in that I should probably get tested for STDs.

    I don't know if I had a particular point in writing this. It was several years ago, but I've never told my friends or family about it. I don't want them to worry, but part of me also feels like I did something wrong, like I shouldn't have drank so much or should have stopped it once I sobered up a little. To try to tie back in to the discussion, I can see both sides of this issue. I probably never said "no" to this woman, and she probably thought I wanted it all to happen. At the same time, the whole incident was so confusing, from the literal confusion of "who is this person" to the emotional confusion of feeling embarrassed and thinking I should just go along with it, that I can sympathize with anyone who doesn't report right away or try to fight off their assailant.

  59. Katydid Says:

    @Chris; I am sincerely sorry that happened to you.

  60. Khaled Says:

    @Xynzee-

    I don't care how many times you trot out the same straw man argument, it still doesn't make it valid. Rape is not a result of "mixed signals" or "being regretful after a night of drinking".

    As Jedi put it: "These were not acts of poor communication or mixed signals. They were deliberate attacks by men who held women in contempt, and had figured out a way to prey on them without getting caught by law enforcement."

    Bingo. The rapes that occur are done by teenagers or men who want to control women and see sex as a conquest. Your average Joe who hooks up at a party is not at risk of becoming a "rapist" because the girl wakes up and goes "oh, fuck, I slept with HIM!?!?!? But he doesn't drive a nice enough car!!!"

    And to answer your dumbass questions, I am absolutely sure every sexual encounter I've had was 100% consensual, and I didn't even have to think about it. And I've never "forced" myself on my wife; if she's not "in the mood", I don't throw her down, scream "I'm the MAN" and go at it. And since I'm not a dickhead and this isn't the 1950s, I've never snapped a girl's bra.

    The idea that "innocent young lads" could "accidentally" rape someone is just silly. Swap out any other form of assault for rape in your arguments, and you'll see how silly those arguments are. For example, if you argue with a friend while drinking, and you just get all emotional and then start breaking beer bottles over his or her head, you've not just "gone a little too far", you've assaulted them. Same with a spouse. If you just get extra angry during an argument and punch her in the face a la Ray Rice in an elevator, you're an abuser. How would rape be any different?

  61. Part-time Jedi Says:

    @Chris
    Not that you need a total stranger from the internet telling you this, but what that woman did to you was wrong, and it was not your fault.

  62. HoosierPoli Says:

    Eau:

    I'm not David-Brooks-level concern trolling about "tone", I just feel like there has to be some solution to this problem that isn't zero-sum – that protects victims while also safeguarding against abuses of the system. I think the ugliness of the debate comes from a deep feeling on both sides that it IS zero sum…on the "women's" side that more power needs to be given to the accuser, and on the "men's" side that power needs to be taken away from the accuser (please mind the scare quotes).

    I don't have any good answers myself but I feel like we're missing something here. The answer can't just be "lock up more innocent people" or "lock up fewer actual rapists".

  63. democommie Says:

    As of recently the owner of Sky bar says that SOME young woman was all over the guy, so whatever happened it must be HER fault.

  64. mclaren Says:

    Bite marks?
    Holy crap. What kind of sex are you people having, anyway? What next — farm animals, kitchen implements and midgets…?