What Happens When You Challenge ‘Rape Culture’ Orthodoxy

by A. J. Delgado
Facts, fair trials, and law don’t matter to zealots.

My recent article “Crying Rape: Is there really a rape epidemic? Probably not” generated a vicious reaction from left-leaning media and activists. In addition to being remarkably broad and at times dishonest, the tactics indicated that significant segments of the Left are not content to shout back at conservatives. They want to shout us down, to limit the honest discussion allowed regarding sexual violence.

As I stated in the article, I believe rape is a heinous, hideous crime and that a date-rape perpetrator “deserves the worst the law and life can throw at him.”

Now with that in mind, consider how David Brock’s Media Matters spun the story.

“National Review Online Claims Women Are Just ‘Being Taught To Believe They Were Raped’

The headline writer’s addition of the word “just” indicates that I claimed no rapes occur. But Salon went one better by claiming that I pretend rape “doesn’t exist.”

The Huffington Post purported to quote me. Apparently, I’d written that the campus rape epidemic was “a conspiracy by the Left to brainwash young women into ruining men’s lives.” Except that I never wrote such a thing — the quote is completely fabricated. After four days, the Huffington Post finally corrected the piece and apologized.

The ever-enterprising Huffington Post actually managed to get three pieces out of my one column, including a meta-thumbsucker about the reaction to my piece headlined “Horrendous rape column sparks backlash.” The author neglected to mention what portion of my article, exactly, was horrendous.

Other outlets joined in on the attack, including Talking Points Memo, Daily Kos, and The Guardian. The managing editor of Cosmopolitan called it “the worst article ever published.” And if the magazine behind “Best Boobs of May” says my article is worse than a 19th-century tract defending slavery or an article denying the Holocaust, it must be true.

One media outlet wanted to know why I wrote the article and who “commissioned” the piece. (For the record, I pitched it myself because people are hurt by false rape accusations.) Liberal radio host Thom Hartmann reportedly said I was condoning rape.

In sum, the broad argument against my piece goes something like this:

Writer: “Some rape accusations are false, and overly broad definitions are a problem.”
Critics: “How dare you say rape never happens!”

The tactic is clear and a clever one, because who the heck wants to be called a rape apologist? But you should play fair even when you’re sliming people. Before claiming I believe “rape is a figment of feminists’ imagination,” the blogger at AbovetheLaw.com could at least have done some opposition research and found, for example, this article I wrote last year bringing attention to a Canadian teenager’s suffering after she was apparently gang-raped.

Although various writers and journalists pointed out the degree to which my article had been distorted (examples, here, here, here, and here), the distortion had one important effect: Rather than taking an opportunity to balance “rape culture” coverage with a much-needed discussion about the wording of sexual-assault definitions, left-wing media chose to ignore the real-world effects – including “sex while drunk is rape” policies – that rape hysteria produces.

This is more serious than whether somebody disliked or distorted an article of mine, because bad policies have the power to ruin people’s lives. The Guardian’s Jessica Valenti waved off such concerns because, according to Valenti, no one of prominence argues for the definition that I was opposing. The Feministing founder assures us sex-while-drunk isn’t necessarily rape and that it is a “lie” to claim “anti-sexual assault advocates and feminists somehow believe any sex that involves drinking” constitutes rape. “Don’t point me to someone’s Tumblr,” Valenti writes, “and call it policy.”

But, in fact, it is policy in many places. I referenced the Fullerton State campus code in my article, but here are some other policies, from universities and groups, presumably written by scholars, lawyers, and consultants (not random Tumblr users):

Stanford University
“legally incapable of giving consent . . . if intoxicated by drugs or alcohol”

Illinois State University
“If an individual is ‘incapacitated from drugs or alcohol’ (i.e. drunk) they cannot give consent. Having sex with someone who is drunk, is by definition, a crime. . . . If an individual is intoxicated, they cannot provide consent. Having sex with someone who is drunk IS sexual assault/rape.”

Oregon State University
“When someone is under the influence of drugs and/or alcohol, (s)he is not able to give consent.”

“More Than Yes” project website
“A person who is intoxicated with alcohol or drugs can’t give consent. . . . Sex without enthusiastic consent is not sex at all. It’s sexual assault or rape.”

Lydia Forini, executive director, Sexual Assault Crisis Centre
“It has to be really enthusiastic consent. It can’t be under the influence of drugs or alcohol.”

MIT Medical
“Consent cannot be given . . . [i]f a person is intoxicated as a result of alcohol or drugs.”

University of California (Berkeley)
“Consent Cannot Be Given: Under the influence of alcohol or other drugs.”

University Health Centre, University of Georgia
“Consent is a voluntary, sober . . . ”

Partners in Social Change, “Contextualizing Consent”
“We move into really defining what we mean by consent and what elements need to be present for consent to be freely given. In brief, those elements are: . . . Neither party is under the influence of drugs or alcohol.”

Loyola Marymount University
“Consent is: . . . A voluntary, sober, imaginative, enthusiastic, creative, wanted, informed, mutual, honest and verbal agreement.
Consent is NOT: . . . Possible if one person is under the influence of alcohol or drugs.”

University of Wyoming
“Consent cannot be given unless both partners are of sober and sound mind. Sex that occurs while a partner is intoxicated or high is not consensual, informed sexual behavior — it is sexual assault.”

Stopviolenceuw, “Sober and Enthusiastic”
“Here’s the simple definition — sexual consent must be sober and enthusiastic.“

The SGVW Now Project
“Under the Affirmative Consent Standard, a drunk woman cannot consent to sex, because her judgment is incapacitated by alcohol.”

The idea is also promoted in the military.

And by the way, if Valenti disagrees with the “consent must be sober/drunk equals rape” stance, why has she not said so earlier? She also appears to agree with Vice President Biden’s claim that one in five women will be sexually assaulted in college, even though that statistic has been widely debunked (see here, here, and here). Last year she claimed that “Rape is as American as apple pie,” without citing a single study indicating that rape is a cultural norm in our nation.

In fact, studies have shown exactly the opposite. Dr. David Lisak, a psychologist and researcher focused on sexual violence whose work is often cited by feminists, finds that rape is actually committed by a small percentage of men who are repeat offenders. The vast majority of men will never commit rape. So how is it a cultural norm?

More seriously, Valenti and quite a few other folks seem to believe that due process and presumption of innocence are part of the problem. Valenti has suggested that we look to Sweden’s rape laws, which “go much further than U.S. laws do,” as a potential model for our own legislation, alarmingly adding: “In fact, some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn’t give it.”

Yikes.

As National Review’s Charles C. W. Cooke noted, “As much as anything A.J. Delgado has this week brought out of the woodwork the people who don’t believe in due process in rape cases.” Liberals who routinely invoke due-process concerns for, say, accused terrorists seem to have no such qualms concerning accused rapists. With the sole exception of Bill Clinton accuser Juanita Broaddrick (of “You better put some ice on that” fame), all women who claim to have been sexually assaulted are to be believed, and all defendants are guilty.

University codes regularly inform women that any sex under the influence of alcohol is rape, a stance that misinforms, tries to reprogram, and even traumatizes women. For instance, a 2007 study on campus sexual assault, submitted to the Department of Justice, found that a majority of sexual-assault victims “did not think it was serious enough to report.” In other words, you didn’t think you were raped but, trust us, you were!

And it bears repeating that a groundbreaking FBI report years ago noted that the percentage of unfounded complaints to law enforcement was four times higher for rape than for any other crime. In other words, plain, hard statistics prove that yes, individuals “cry rape.”

If you can afford to blog about feminism for a living, it might not occur to you that not every accused rapist can get his parents to hire a good lawyer and make the problem go away. So why not throw out the norms for dealing with people accused of crimes? After all, who will be hurt if you’re wrong?

Here’s one: On July 8, 2002, Brian Banks was a few days away from his 17th birthday, a handsome, happy, and healthy African-American teen about to live the American dream. The star of his Long Beach high-school football team, the 6´3´´, 235-pound linebacker had been recruited by a variety of universities and had just accepted a scholarship offer to play for USC, one of the country’s top football programs. All of Brian’s hard work and talent was paying off, and his future could not have been brighter. But later that day, Banks’s life changed in an instant when a classmate claimed he had dragged her into a stairway of their high school and raped her.

Brian was taken into custody and soon thereafter charged, as an adult, with two counts of forcible rape and one count of sodomy by force.

Evidence? Think again! There was none — not a single molecule of Banks’s DNA found on the victim, nor any other physical evidence. Nor did anyone see or hear a thing, even though the assault allegedly happened on school grounds only feet away from classrooms.

Despite the lack of evidence, and despite the fact that Brian was a fine young man who’d never had a single brush with the law, the police and prosecutors moved forward on the word of the “victim.”

Meanwhile, Brian’s mother was living hell on earth. Her son was accused of a rape he didn’t commit, and she was forced to sell her house and her only car, even borrow money from family members, to pay for a lawyer to represent Brian.

Not that it did Brian much good. The lawyer advised Brian to take the plea deal offered by the state, telling him that, even though this was a case of his word versus hers, the jury would see a young black male defendant and find him guilty regardless.

Prosecutors offered Brian Banks a “choice,” if one can even call it that: accept six years or go to trial and risk a sentence of a staggering 41 years. When offered the deal, a frightened Banks wanted to talk to his mother, but was told he had a mere ten minutes to decide whether to take the deal. Figuring six years was better than four decades, a distraught Banks “accepted” the six-year sentence.

Banks served five years and two months of hard time in a California state prison, surrounded by murderers and gang members. Even when he was paroled, he was registered as a sex offender and had to wear a tracking device like an animal. He was not allowed to go near a school or park, had a midnight curfew, and could not set foot outside the state. Due to his record, he was unable to find a job for years, forced to live on scraps and sleep on family members’ couches. In the years when Brian Banks would have been living his dream, possibly as an NFL player with a great life, a beautiful family, and millions of dollars in earnings, he was instead forced to live as an outcast, shunned by society and branded with the horrific “sexual offender” label to boot — all due to a false accusation.

Then, in March 2011, his “victim” got in touch, out of the blue, via Facebook, claiming she wanted to reconcile. Banks played along, met up with her, and was able to secretly record her admitting that she had made it all up. After an arduous battle, and with help from the California Innocence Project, Banks’s conviction was overturned.

For the proponents of “rape culture” theory, real-life stories like this one (and I listed a bunch of others in my original article) are just noise behind their symphony of fake statistics and unsupportable claims. Dismissing the evidence of false claims is purposeful: We must not talk about the ease with which rape or sexual assault allegations are made or handled, be it due to an awful prosecutor or an awfully worded campus code or law. Gotta break a few eggs to make an omelet, after all. If a few lives are recklessly ruined in the war on rape culture, that’s an acceptable price to pay.

This attitude is not just outside all the traditions of our law; it’s absurd on its face. Should we not report on the plight those exonerated of murder, for instance, on the theory that doing so will make it harder for DAs to prosecute homicides?

Thankfully, as a society, we do take rape very seriously. Writing about the need for a reasonable, sound approach, and against the runaway train of some definitions of sexual assault, does not threaten the former. On the contrary, those who seek to broaden the definition of sexual assault are the ones who threaten to dilute and diminish rape’s horror.

So I stand by every word I wrote. I would write this article again, every day and twice on Sunday, especially after hearing from others across the world who had their lives, or those of their loved ones, ruined by a false accusation.

Media Matters questioned how I sleep at night. I think about Brian Banks, and to that I answer: “Better than ever.”

— A. J. Delgado is a conservative writer and lawyer. She writes about politics and culture.

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