Do men understand rape?

[Igel]

123. It's a no-win argument.

If this happens, I empathize. Perhaps not as heartfelt as others would wish.

After dealing with the emotional and physiological trauma, the question the next minute is, What to do about it? The trauma is going to affect what people think the right course of action is. But that's not going to change the law or how to make the process fair to everybody in all possible relevant situations.

Whatever we make the right course of action for your scenario is also going to have to be the right situation for the girl or guy who has one drink too many and asks a partner to bed only to regret it two days later. Or the person who's badgered until consent's given after one drink too many. It's going to have to be the right course of action for the person who's drugged and gang raped by 5 guys in the alley and left bleeding. It's going to have to be the right course of action for the guy who has too much to drink, goes home with a woman out to spite her husband, and is accused of rape when hubby finds out. And for the woman and guy both of whom get completely wasted and wind up in bed together the next morning. And for the stone-sober woman who makes out with a stone-sober guy, strips, gets into bed with him naked, participates, and next morning regrets it but recalls that at no point did she ever say "yes". Going back to some advocatorial definition of rape and getting all the semen recipients in those situations to all say they were raped is specious. Not all were. Some clearly were. Some are in the middle, both responsible or neither responsible.

There are all wildly different scenarios. But the law's going to be pretty much the same for all of them, even if there are different levels of guilt and responsibility. Some want the semen donor to always be held responsible--sober or drunk; and the recipient to always be held as the innocent victim. Even if that's true 99.9% of the time, it's not always true and we don't knowingly crush the innocent just to be sure to exact punishment from the guilty. Some want the recipient to be able to make an accusation 3 years later with no evidence at all and for the accused to be punished just as much as if the incident was on video with iron-clad DNA tests and real-time blood-alcohol level monitoring of all parties.

Often what we have now is asymmetrically unfair. The woman typically bears the brunt of the trauma, with the legal burden of starting the criminal process, providing evidence, and testifying that's placed on her further traumatizing her. How society treats the woman makes things no less traumatic--being robbed is humiliated, being raped is much worse. At the same time, the burden of responsibility for being "his sister's keeper" is often shifted entirely to the guy who often has a serious conflict of interest and is expected to be responsible even if he's intoxicated. If my blood alcohol level is 0.16 I'm to be held to a higher degree of responsibility than my 0.081 partner? What if I don't remember the night in question--she says she said "no", but she may have a conflict of interest.

The way that we argue by anecdote instead of logic and reason doesn't help. It mixes emotion and compassion for a specific real or hypothetical victim with how to handle the general case and write the law. Use mercy and compassion in individual cases, not in writing the law.

What happens is that there's often no justice and there is absolutely no way to make sure that all and only the guilty get punished. This violates our sense of morality and justice. Often the woman has to bear the burden not just of being the victim but being seen as a victim or hussy, and making her victimization public. If the woman doesn't do this soon after the incident often there's a lack of evidence so she can't get justice. But we still have high standards for evidence, which constitutes a kind of burden. I can and do empathize with the unfairness of the first, but it's a standard kind of unfairness. The victim has to give evidence. I understand the need for the latter kind of unfairness, as well, because it's also standard: murder cases can be hard to crack when they're old because of a lack of evidence.

As an anecdote to show what *can* go wrong, take the case of a priest in the early '00s at the height of the Catholic child-abuse scandal. A woman accused a priest of raping her. Repeatedly. Gave dates and times and locations. Was adamant that this guy coerced her into having sex. It made the news nationally--this was in Los Angeles, he was suspended pending inquiry, his picture splashed over the national news. I heard it in west New York State. Turns out the guy wasn't in California on any of the dates she listed, and had been reassigned to another state before many of the dates so he no longer had an office. Somebody leaked her psych records and she'd been getting professional psych help. She tended to confabulate to justify her delusions. Some pointed out the guy was exonerated after having been libeled nationally. Others went back to saying the woman was the real victim: she'd been violated by having her medical records made public.

In your scenario, yes, the claim has to be made: a lawyer contacted to arrange for rape testing. Police may dislike it because it's an easy way to run up charges against the budget and disrupt things if it's falsely claimed too often. The innocent on both sides need protecting and rights are, after all, still rights. That may sound cold and uncaring, but justice is the application of the law to protect not just the rights of the perceived victim or the real victim, but everybody. It's inherently imperfect and in every case inherently biased against the plaintiff and in favor of the defendant (who's presumed innocent).

But the alternative--the claim against the UO basketball player and some of the demands that the lawsuit seems to make--are equally bad, if not worse.