Rape and Ambiguity 2

Dahlia Lithwick has a good New York Times editorial about how the criminal justice system is basically incapable of resolving acquainance rape accusations, a point I've made before. She writes:

Rape shield laws prohibit the use of an accuser's prior sexual history to undermine her credibility, with rare exceptions. These laws were urged by feminist reformers in the 1970's because until that time the central inquiry in rape cases was whether the accuser was a tramp who, essentially, "asked for it." Cordoning off her sexual past from public scrutiny was vital, and in classic "stranger in the bushes" cases it made good sense. Who cares whether a woman had sex four times that night? No assailant had the right to force a fifth. But the problem in acquaintance rape cases - centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it. Almost literally. And all the evidence of her sexual behavior - in this case the physical evidence implicating the accuser's other encounters that week - thus becomes highly relevant.

This well-intentioned reform in our rape laws has led to two unappealing alternatives: Either the defendant's legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or - as a practical matter - the woman's sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.

Ms. Lithwick then goes on to criticise the media for hyping the case to monumental proportions, but I think that's a futile effort. The media exists to make money, and there's money to be made in publicizing celebrity rape trials. Period. (Anyone who thinks the media's main goals are the pursuit of truth or to inform the public are delusional.)

The law is a blunt instrument, and not well-suited for every task to which we may like to apply it. In acquaintance rape cases the truth is difficult to discern, and often even the accuser and the accusee aren't sure what really happened. So what's the best way to resolve such accusations? If the evidence is sketchy a jury must acquit, but that doesn't mean individual members of society can't make up their own minds and shun whichever party they feel to be in the wrong. The situation is magnified in spectacle trials because of the high profile, but the principles are the same.

And, of course, if you don't want to be raped or accused of rape, don't hang out in secluded areas with strangers. That'll go a long way towards reducing your risk. It's not your fault if a car full of racing teenagers runs through a stop sign and smashes into your vehicle (as I heard happen the other day, and then saw the wreckage), but if you don't wear your seatbelt you're a fool.

(HT: VC.)

Update:
Via Insty, TalkLeft has an excellent example of how questionable some cases -- including rape cases -- are. This is the type of thing that makes me reconsider my support for the death penalty in its current state. Of course, sending a man to jail for 17 years for a rape he didn't commit is hardly much better.