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Criminalizing heterosexual sex

by erik on May 13th, 2007

Note: Sorry if you tried to comment on this post earlier and couldn’t.  Comments should now be available.

Yesterday on I Blame The Patriarchy, Twisty asked provocatively: what if all heterosexual sex were deemed a criminal act perpetrated by the male? What if “consent” was irrelevant, and all it took to get a man thrown in jail for rape was proof that he had had sex with a woman and testimony from her that it was rape?

You can almost hear the collective sharp inhalation coming from the lungs of men all over the world. I certainly had the immediate “what about false accusations?” reaction when I first read her post. “Think of all those poor innocent men in jail!”

But I held my tongue and trudged on through the hundreds of comments. It was a comment from “Cunning Allusionment” that started to convince me that there was some sense in Twisty’s Law:

That raging injustice you [men] feel about this hypothetical situation? That’s how women feel about the real situation. And given the fact that we’re [men] the one’s with massive institutions of oppression behind us, maybe we can afford to give up a little of that privileged security they don’t have.

In other words, yes it opens the door for injustice against men, but the current legal system so ridiculously favors men that said injustice is a small price to pay for the, presumably, massive gain in justice which will result from empowering women to convict their rapists much more easily. The number of rapes that go unpunished under the current system is disgusting.

[A minor aside: Cunning Allusionment is a man. Why is it that all the female arguments seemed less than reasonable to me, but his argument got through my thick skull? Is it that I subconsciously give men more credibility, or is it just that because Cunning is a man, he knows which parts of the argument men have a hard time with and is, because of his experience having a penis, better able to speak to those?]

So I am pretty open to entertaining even the strongest version of Twisty’s suggestion. What’s frustrating to me about the comments on IBTP is that people keep asserting that Twisty is making a much weaker proposal: that men should bear the burden of proving consent, rather than the courts requiring a woman to prove that consent was not given. That’s not how I read Twisty’s post. After all, she did say:

I grasp that, technically, the plan criminalizes all male participants in heterosexual sex.

That means even sex with a consenting woman is criminalized. Any evidence of consent, other than the testimony of the woman, would be irrelevant in the courtroom. It seems like almost half of the commenters on IBTP aren’t grasping the radicality of Twisty’s proposal.

But I think those who do understand the full radical proposal are also being short-sighted when they suggest that Twisty’s Law would not change the behavior of men who are already adequately mindful of consent and of their female partners’ real, genuine desires. Twisty herself says in a comment, “this law would change nothing for dudes who don’t go around raping women. Their lives would remain exactly the same.” (bear in mind Twisty’s definition of rape is far on the liberal end of the scale).

I don’t think that’s true. Risk assessment involves considering both the probability of consequences and the severity of consequences. If a man trusts a woman deeply and has clear verbal consent which was freely given, the probability of him being accused of rape is very low. Under Twisty’s law that doesn’t change. What does change is the severity of consequences if she does bring charges against him. Under current law, armed with evidence of consent he’s almost certainly not going to jail, and under Twisty’s Law he almost certainly is. And on days when such men are feeling risk averse, they will walk away from sex, even if a woman is asking for it, out loud. So even men who hold this standard for sex, which is the only decent standard under any law, will change their behavior. And the woman who wants to sleep with him will have to find something else to do with her time.

The one critique of Twisty’s proposal that really makes good sense to me from a feminist stanpoint is this comment from “Repenting”. She points out that the notion that women are incapable of giving consent equates women and children, and is strongly anti-feminist. You can read Twisty’s response for yourself, but the jist of it is that she never said women were incapable of giving consent, she just said that consent shouldn’t be the litmus test for rape trials. She seems to be saying that consent is a good thing to communicate between people, but consent doesn’t give a man the right to have sex with a woman. It’s her sovereign body, no matter what agreement she makes with a him, and it’s her choice whether his penetration is rape or not.

And again, the longer I dwell on that idea, the fairer it seems. But damn, that was a painful thread to read.

  1. As we all know from the recent case in Duke, false accusations are never an issue, are they?

    Let’s do a thought experiment – of Twisty gets her little law within months there will be dozens of rape convictions, some of which are unjust. The result will not be a lot of people saying “Hmmmm. Perhaps i should think about how difficult a rape victim can have it”

    The result would be a massive backlash against feminism, the lawmakers who passed such a bill, and women in general.

    See, responding to injustice with more injustice is not a solution, it is an escalation. If someone mistakes your intentions and slaps you, a returned punch will not make the first person realize they made an error. If Twisty truly believe “The Patriarchy” is some powerful group that dominates soceity, she should realize that her little law would only result in more suffering for women.

  2. Deep Thought,

    We don’t know if the Duke students were falsely accused or not. All we know is that there was not enough evidence to convict them in the current legal and political climate. You’ve got a lot of faith in the judicial system, I don’t.

    As for backlash… you’re probably right that there would be backlash. That doesn’t speak to the fairness of the law, however, which is what my post was about.

    The fact that you think there would be “dozens” of convictions within the first few months demonstrates how little you understand about the scale of the problem. A woman is sexually assaulted every few minutes in this country.

    You put some nice words in Twisty’s mouth, but I can’t think of an instance where she said she thinks the Patriarchy is a powerful group of people. When I talk about patriarchy, I’m not talking about a group of powerful people, I’m talking about a set of cultural practices, beliefs, and social structures that are perpetuated (mostly) by regular everyday men. You know we third wave. Why you playin’?

  3. No playin’. Making a point. Let me amend that – trying to make a point. The brute force method of attempting to engineer social change *hardens* responses, not softens. If the Patriarchy as defined by post-Second wave Feminism in general is as they claim, cramming a law like this down the throats of the oblivious and self-aware subscribers will stiffen their commitments to said Patriarchy, either consciously or through reflex. Neither will have results you would consider, uh, salubrious.

    And If the Patriarchy as defined be thee and thine doesn’t actually exist (i.e., your definition is wrong or you simply missed the boat) you could derail positive accomplishments rather quickly.

    Imagine a backlash that returned to the days of yore when it was legally impossible for a man to rape his wife? Within a year of “Twisty’s Law” hitting the books there would just such reactions rocketing through legislatures all over this fair land, wouldn’t there? Or imagine a ‘contract dating’ culture where a woman gets to sign an agreement with a man with strict delineations of what is and isn’t permissible with a time limit and action counter? Bringing a lawyer to a hookup and making sure each act is taped for the safety of the man involved?

    Not my idea of the way to improve male/female relations in the PoMo age.

    And I am a Traditional Latin Mass Catholic White guy with a stay-at-home wife that homeschools our passel of kids! If *I* think the backlash would be bad for women, you should look around.

  4. Alex permalink

    What happened to “Innocent until proven guilty?” This all seems like a great way to set up a witch hunt.

  5. Mm.. that’s a good point.

    But what constitutes “proof”? That is a fuzzy line that needs to be drawn somewhere, and that choice is all about balancing false convictions against prosecutorial power, no?

  6. As we all know from the recent case in Duke, false accusations are never an issue, are they?

    Actually, the Duke jocks would have still gotten off, because the prosecutor failed to even show that sex had taken place. So under this law there would still have not been a conviction.

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