Sexual harassment, let alone sexual assault and rape, are tragic occurrences. However, the idea that any charge a woman brings must be automatically believed without question is morally wrong and potentially a cause of great injustice.
Although we as a society are much better off judging any claim on its own merits, the ongoing discussion about rape and sexual harassment is taking place within a hegemonic feminist narrative. Feminist scholars have made “rape culture” and “toxic masculinity” central pillars of their teaching and research. As a result, the meaning of words such as “rape” and “sexual harassment” has been dramatically expanded. As Philip Salzman, an Emeritus Professor of Anthropology at McGill University puts it, ‘great efforts have been made by feminists to expand the boundaries of the categories of rape and sexual assault, and feminist law professors have worked successfully to incorporate expanded categories in law’.
Take the contemporary meaning of sexual harassment, for example. It has now become a sort of “catch-all” category that includes all sorts of things, including an accidental bump, a touch on the shoulder, an innocent hug, and even an unwanted invitation. The ultimate goal is to maximise the appearance of female victimisation, thus making it conform to the feminist model of a brutal society of violent male oppressors, and blameless, helpless women.
Of course, there is no “rape culture” in our western societies and no social or legal reward for men who rape – quite to the contrary. In fact, our society strongly condemns rape, putting into place severe legal penalties for those who dare to commit such a crime.
Some feminists nonetheless contend that the so-called “subordinate position” of females make men naturally inclined to use them for sole sexual pleasure. They support the view that if a woman only happens to feel regret after having a sexual relationship with a man, this can be eventually construed as a form of rape.
Following this radical feminist agenda, the New South Wales Liberal government expressed a desire to effectively police every form of sexual conduct between two consenting heterosexual adults. On May 8 last year, Prevention of Domestic Violence and Sexual Assault Minister Pru Goward notoriously stated that a consensual sexual relationship can be a form of rape unless such consent has been “enthusiastically” verbalised. ‘You must explicitly ask for permission to have sex. If it’s not an enthusiastic yes, then it’s a no’, the then Minister said.
Based on such a radical feminist approach, the NSW government proceeded to initiate legal reforms that include a $1 million advertising campaign targeting pubs, clubs and universities on “how to obtain a clear yes”. Furthermore, Attorney General Mark Speakman, in consultation with Goward, has recently asked the NSW Law Reform Commission to review s 61 HE of the Crimes Act 1900 (NSW), which deals with consent in relation to sexual offences. As noted by Perth law academic Lorraine Finlay, ‘a key issue being considered by this review is whether NSW should introduce an “enthusiastic consent” standard, also known as “affirmative consent” or “yes mean yes” laws’.
Finlay is an accomplished criminal law lecturer and the author of numerous academic articles and books on the subject. She is a former state prosecutor with the Western Australian Office of the Director of Public Prosecutions and a former president of the state’s Liberal women’s council. As can be seen, she is perfectly qualified to authoritatively state that there are significant legal and practical problems with the ‘enthusiastic consent’ approach preferred by the NSW government.
According to Finlay, ‘enthusiastic consent laws undermine due process and the presumption of innocence. When we require consent to be affirmatively established we are starting from the presumption that there is no consent, meaning that all sexual intercourse is unlawful until proven otherwise ‘This is contrary to the fundamental legal precept that individuals are presumed to be innocent until proven guilty’, she says.
At a practical level … these laws fail to account for the way that human interact in reality, and they transform any sexual encounter into a potential legal minefield. They also unacceptably blur the line between a bad sexual experience and an unlawful one. A “yes mean yes” standard makes it disturbingly easy for an individual to re-evaluate a regretted sexual encounter and to retrospectively withdraw consent, with some advocates … going so far as to claim that “regret equals rape”.
For a verbal consent to be legal, do we also need a witness in the room? It might be better not to suggest this to the NSW government. There is indeed great absurdity in requesting explicit verbal agreement in each stage (what constitutes a new “stage”?) of a sexual relationship. This state law will eventually lead to men leaving romantic relationships being accused of sex crimes. Since most couples engage in sex without “verbal” consent, the NSW government is effectively redefining most people, and most happily-married couples, as rapists. In fact, this government is effectively defining every sexual encounter as rape, unless neither party turns the other into the police.
According to U.S. sociology professor Stephen Baskerville, the ultimate goal of this sort of legislation is to ‘create another tool to criminalise male sexuality and men’. He argues that laws such as the one enacted in New South Wales makes virtually all sex be officially redefined as rape, ‘but no one will notice unless a woman decides to exercise the ever-available option to prosecute her husband or partner for what, on her say-so, is suddenly criminal rape’.
Writing in The Spectator Australia, Corrine Barraclough explains that feminists ‘are currently busy twisting statistics which actually show a rise in reporting rather than a definitive increase in sexual assault to justify this nonsense’. Due to this inflated perception of high levels of sexual assault by heterosexual men, many women will believe that they are actually living in a “rape culture” and surrounded by dangerous “male predators”. ‘In dramatizing the pervasiveness of rape’, writes self-described libertarian feminist Camille Paglia, ‘feminists have told young women that before they have sex with a man, they must give consent as explicit as a legal contract. In this way, young women have been convinced that they have been the victims of rape.’
On university campuses the feminist encouragement of “rape hysteria” has led to a flood of accusations, mostly by females against male students and professors. In some surveys of university campuses, informants report that unsatisfactory sexual engagements have been classified as rape or sexual assault. These instances of “rape” were not interpreted as such by the alleged victims but, instead, they were subjectively classified as such by the feminist authors of the reports.
Such false accusations of sexual assault are apparently encouraged by university administrators, who have requested the state press charges and punish males, and also have led many students to believe that there are numerous unreported rapes on university campuses. Baskerville notes the irony of ‘so much hysteria, false accusations, and distorted scholarship’ occurring on university campuses, ‘which supposedly exist to pursue the truth’. In dramatising the pervasiveness of rape on our university campuses, writes Paglia:
Feminists have told young women that before they have sex with a man, they must give consent as explicit as a legal contract. In this way, young women have been convinced that they have been the victims of rape. On elite campuses … they have held consciousness-raising sessions, petitioned administrators, demanded inquests. A Brown University, outraged, panicky “victims” have scrawled the names of alleged attackers on the walls of women’s restrooms’
This problem is certainly not restricted to America. As reported, crown prosecutors in NSW are increasingly running sexual assault trials with insufficient regard for the strength of the evidence.
A prominent criminal lawyer, Greg Walsh, has acted for numerous alleged victims and defendants. He explains that the “hysteria” around sexual accusations that started with the impact of the #MeToo movement, has been driving “zealous” and “activist” prosecutions, which makes it ‘increasingly difficult to defend the accused’, especially when prosecutors have an ‘ideological bias to obtain convictions at any cost’. According to Walsh, these “zealous” and “activist” prosecutions have “gone too far”. These sexual assault cases ‘are becoming a cause celebre, they are just out of control’, he says.
Another well-known Sydney criminal lawyer, Chris Murphy, confirms that prosecutors are presently using “increasingly aggressive tactics” in sexual assault cases, with critical evidence being withheld from the defence in some trials. He also explains that witnesses can now be excluded by the prosecution, ‘because they would be beneficial to the defence’. According to him, ‘false sexual allegations have become a mighty sword’, and ‘a lot of prosecutions are shit-scared to put aside complaints they don’t believe in for fear of public criticism’.
This is not happening by mere accident, because, in his seminal book The New Politics of Sex (2017), Stephen Baskerville explains:
Feminists openly advocate that convicting men of rape is a goal to be pursued for its own sake, regardless of the evidence in particular cases, and they agitate for using whatever political means are available to increase the convictions as a virtue in itself … It is hardly surprising therefore that the process for adjudicating rape is openly rigged in favor of conviction. Rape accusers remain anonymous, but the accused do not, even after the accusation is demonstrated to be false. The past sexual history of the accuser is not admissible as evidence, but that of the accused is. Accusers are exempt from polygraph tests, but not the accused. Even a history of false accusations is not admissible. Apparently police are now being instructed to hide evidence that exculpates the accused.’
In August 2019, a District Court judge from NSW requested the state parliament to change the law after he was forced to exclude the evidence from a rape case trial because of a provision aimed at protecting rape victims but at the risk of causing serious injustice to defendants.
This particular judge has been presiding over a case where a man accused of rape is not being allowed to bring evidence of 12 incidents in which his female accuser has made false complaints about sexual abuse. On two separate occasions, the woman made false reports to the police, and after being investigated she admitted fabricating the sexual assault allegations.
In other words, this Australian judge has been precluded from allowing evidence of a woman’s history of making false claims of sexual assault, because of laws that stop so-called “offensive and demeaning” cross-examination of an accuser’s sexual history. He has now called on parliament to amend the legislation to allow evidence if it is done in the interests of justice. This is an “affront to justice”, he says, because the history of false complaints is entirely relevant to the trial. Still, he could not allow the evidence to be introduced due to a section of the Criminal Procedure Act, which requires the court to follow a procedure that, in his opinion, causes “significant unfairness”.
The unfairness is real and not illusory because, as he points out:
The law prevents the accused from placing before the jury relevant evidence (past fabrications) which is capable of going directly to an issue in the trial, namely the honesty and reliability of the complainant. It prevents the accused from showing the complainant to be a compulsive false accuser of sexual misconduct’.
Lawyer and columnist Janet Albrechtsen believes that “gender zealotry is having a real impact” on our culture and legal system in Australia. She argues that ‘the legal consequences are even more troubling given the pressure on prosecutors to proceed with flawed sexual assault trials’. The result, writes criminal law professor Kenneth Arenson, is unfair procedural rules limiting a defendant’s long-entrenched common-law right to put before a court all legally admissible evidence that helps to show they are not guilty of the alleged crime.
According to Professor Arenson, the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 has ushered in profound changes to the statutory offence of rape in Victoria. This legislative change replaced traditional rules of evidence with a new version that adds a “hybrid criteria” regarding a person’s intention to commit a crime (‘mens rea’) that, according to this distinguished criminal law academic, is utterly ‘inconsistent with the most rudimentary notions of fairness, common sense, and the cardinal tenet that all persons are equal before the law’. As a result, even an innocent man can be found guilty of rape when the fundamental principles of natural justice and due process of law are undermined, among other things, to invert the onus of the proof so the accused effectively has to prove that the accuser was consenting to the sexual overtones.
While civil libertarians, conservative lawyers, and classical liberal theorists would all express a common concern for preserving the rule-of-law principles of due process and natural justice, professor Aya Gruber, a self-described “neo-feminist” who teaches at the Colorado Law School, candidly confesses that mainstream feminist legal theory has bolstered a ‘highly authoritarian’ criminal law system that treats male defendants unfairly by inadequately protecting their individual rights.
According to Gruber, ‘changes in rape laws, like rape shield statutes and affirmative [i.e.; enthusiastic] consent doctrines, seek to make it easier to prosecute rape cases and to prosecute cases’. She goes on to say that mainstream feminist theory ‘centers on a fairly uncompromising and absolutist idea of bad and good – bad being things that sexualize women and good being the eradication of those things through prohibitory law’. Such a feminist approach to the procedural conduct of cases involving alleged rape and domestic violence, writes Gruber;
[D]irectly and indirectly led to reforms that were largely protective of [female accusers] during trial. Civil libertarians assert that these protections often come at the expense of a fair trial … The evidentiary and substantive law reforms obviously served to disadvantage [male] defendants, who, feminists asserted, had been unfairly benefiting from sexist cultural beliefs all along.
This means that some men may be presently serving jail for the crime of rape that they may actually have not committed. This completely violates our legal tradition where a person is innocent until proven guilty. John Fortescue (1394-1476), who holds a unique place in the history of English legal literature, once declared: ‘I would rather with twenty evildoers to escape death through pittie, then one man to bee unjustly condemned.’ Deeply recommended for his great wisdom, gravity and uprightness, Fortescue explained that the power of the state to enact legislation must be limited by a fundamental “right” of the individual not to be subjected to an unjust law.’
Something is inherently wrong when we allow a legal system to invert the onus of the proof and prevent the presentation of relevant evidence in the interests of justice. It is particularly difficult to accept in a common-law tradition based on the protection of individual rights and freedoms, the legitimacy of a system where basic procedural rules leading to a fair and proper trial are so dramatically undermined, and the accused (usually male) can be publicly “named and shamed” though unable to more properly defend himself when such terrible accusations are made against him.
Needless to say, a false accusation may be sufficient to entirely destroy the life of an innocent person. Women who make such false claims not only do real damage to the innocent victims as well as genuine female victims of rape and sexual harassment, but also bring the entire credibility of our legal system into severe disrepute. Such people do enormous damage to our society and should never go unpunished. Rather, they must face justice for their destructive lies.
The system is therefore in urgent need of reform, so that basic principles of natural law are properly applied, and justice ultimately prevails and the truth of the matter can be more properly ascertained.
Dr Augusto Zimmermann is Professor and Head of Law at Sheridan College, Perth/WA. He is also adjunct law professor at The University of Notre Dame Australia (Sydney campus) and President of the Western Australian Legal Theory Association (WALTA).
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