The Gentler Sex

In the scheme of criminal justice politics, gender has grown to be a rather persistent problem.  The clash between tacitly favoring women by reducing expectations of evidence while increasing the value of their feelings, and recognizing the politically unpopular notion that they can put a person in prison with no greater proof than mouthing the words, “I said No!”

Ironically, those who push the gender agenda like to wrap themselves up in feminist rhetoric, when the soul of their point is that women are too weak, too emotional, too incapable to fend for themselves.  And those who note the obvious are labeled by the dreaded misogynist epithet.

At Concurring Opinions, University of Miami lawprof Mary Anne Franks goes after a local Georgia lawmaker for doing the unthinkable, calling those who accuse “accusers.”  This is a direct slap in the face of the feminist cult of victimhood, and Franks isn’t going to stand for it.

Georgia state representative Bobby Franklin (R-Marietta) has recently proposed a bill that would require the word “victim” to be replaced with “accuser” in the state’s criminal codes. If this were the whole story, the bill might pose a moderately interesting metaphysical question: aren’t all crime victims merely accusers unless and until a court delivers a conviction?

While the answer to that question is perhaps rather obviously no, that is not the question the bill actually raises: Rep. Franklin doesn’t think that people who claim to have been robbed, assaulted, or defrauded are merely “accusers.” No, those people are still “victims” even before a conviction is handed down, and indeed even if no conviction ever materializes. The bill only applies to certain crimes – namely, rape, stalking, and family violence. That is, the only crimes affected by this bill are those crimes disproportionately committed against women and committed disproportionately by men.

I’ve broken up Franks’ lengthy paragraph (you know how lawprofs write) to make it marginally readable.  While she includes what purports to be a link to the proposed bill in her content, it’s not.   Here is a link to the Georgia bill,  Franks’ link goes to the opposition party’s criticism of the bill.  It must have been an inadvertent mistake, no doubt.

As Franks teaches criminal law, as well as “law and gender,” one might suspect that she would recognize the nuance that there are two independent elements basic to any prosecution, the first being that a crime has been committed, and the second that the defendant committed the crime.  But nope, no room for nuance when it comes to the gentler sex.

What accounts for this exceptional treatment? Neither the bill nor Rep. Franklin himself offers insight into the bill’s logic, and so we are left to speculate. Perhaps Rep. Franklin has fallen victim (or do I mean accuser?) to the unfounded yet persistent belief that false accusations of rape are significantly more common than those of other crimes. The bill provides yet another opportunity for misogynists to rehash hysterical statistics on false rape reports…as well as a host of other anti-feminist canards, such as the claim that feminists don’t believe women ever lie about rape. How wearying it is to have to cover the same ground, over and over: of course people sometimes lie about rape.

She’s quite right that thinking is hard work, and obviously has tired her out, though not sufficiently to prevent her from sticking the word “misogynist” in there, as no righteous feminist rant is permitted without calling their enemies names and impugning their motives in the absence of basis. 

While Franks’ point, that there are other crimes aside from those disproportionately committed by men against women where it’s unclear that a crime has in fact been committed, thus making it unclear whether the person is victim or accuser, there is no crime which is disproportionately based on the mere say of one person against another.  Violent rape is a clear exception, but it’s also a great rarity. 

While few criminal defense lawyers would disagree with Franks if her point was that all purported “victims” be referred to as accuser until such time as a conviction was had, such that they aren’t brought into court on a stretcher, evoking sympathy before any evidence that a crime was committed has been adduced and approved by a jury.  But she isn’t saying that, and certainly doesn’t mean that.  The point here is that rape victims and victims, no additional proof required.  If a woman cries rape, then rape it is, and anyone who questions the accuser victim is a misogynist.

Rather than leave any doubt as to the emptiness of her logic, Franks rams it home with this reasoning.

Even if there might be some merit in a general prohibition on the term “victim” prior to a court determination that a crime has been committed (although whatever merit this prohibition would have is meager indeed, as it defies logic to claim that a person has only been victimized if some perpetrator is proven guilty of the crime in a court of law. This would mean that all unsolved murders have no victim; all unreported crimes have no victim; all crimes not resulting in convictions due to bad lawyering or jury error have no victim), to apply this prohibition only to crimes committed primarily against women is simply unjustifiable.

“All unsolved murders have no victim?”  Here’s where we get back to that whole thoughtful nuance thing that kicks the crap out of feminist rhetoric.  You see, unsolved murders leave dead bodies behind.  Most crimes have evidence that facially supports the occurrence of a crime.  That’s what the knife sticking out the dead person’s chest means, that someone killed him.  But even then, it’s impossible to say it’s a murder until we know that it wasn’t some women fending off a would-be rapist who, after the fact, decided to become part of that grand under-reporting statistic.  Screw the dead body, who’s the real victim here?

On the other hand, the vast majority of alleged sexual assaults and rapes come with no evidence that a crime occurred.  The only thing that distinguishes a rape is a woman’s word that she did not consent to sex.  That’s a pretty big difference, yet one that eluded Franks when she chose to disparage Bobby Franklin’s motives.

Not knowing Franklin or having any particular reason to defend his family honor, I won’t ascribe lofty purpose to his sponsorship of this bill.  At the same time, placing the mantle of victimhood on anyone merely because of gender is wrong and irrational.  If there were any real feminists left out there anymore, they would denounce these neo-feminists whose argument is ultimately grounded in the notion that women are just too weak, too fragile, to manage without special dispensation.

Neo-feminism does neither women nor law much good, demeaning both in the name of an agenda.  It doesn’t matter in a court whether women are the gentler sex, especially deserving of the title “victim” lest their feelings be hurt.  Either there’s proof of a crime or not, regardless of how many men are called misogynist in the process.

19 comments on “The Gentler Sex

  1. Prosecutor

    If I used my name, I would be fired before anybody read this comment. I’ve done sex crimes and homocide, and women want us to believe that rape is the same as murder.

    Women who have never been raped say it’s just as bad. Women who have been raped say it’s just as bad. Women who have been murdered can’t say anything because they’re dead.

    It’s not the same. It’s part of this myth of female exceptionalism that makes crimes against them different and more important. Murder is an equal opportunity crime, where gender doesn’t count. Therefore, it’s off the agenda. Only crimes they can claim to be gender specific serve to make them special.

    And any prosecutor who openly acknowledges this can kiss their ass goodbye.

  2. John Burgess

    I understand that the word “accuser” might be construed negatively, coming with scare quotation marks around it. It needn’t be construed that way, but thanks to the harridans of CNN Headline News, the word is always laden with innuendo.

    How’s about we substitute, ‘alleger’? That keeps the unknown quality of the allegation superposed, avoiding both the unwarranted positives of ‘victim’ and negatives of ‘accuser’.

  3. Mark Draughn

    Since Scott is apparently too busy fantasizing about big AOL bucks to comment here, I guess I’ll have to be the one to point out that this anonymous comment from a supposed prosecutor would be more convincing if it spelled “homicide” correctly.

  4. SHG

    I’m no one to quibble over typos.  Neither are you.  And I know who the “supposed prosecutor” is, and you don’t.  And I’m not talking.

  5. Mark Draughn

    Then I apologize.

    This wasn’t a complaint about a typo–I make plenty of those myself–it’s more a matter of the perils of anonymous commenting. When someone makes a controversial assertion backed up by an unverifiable claim of authority, we have to take our hints where we can get them. Now that you, Scott, have stood behind his claim of authority, it changes everything.

  6. SHG

    I’m less concerned with whatever perceived negatives there are  in accuser than I am at the word victim, which has a specific meaning that a crime ocurred, the very thing a court is there to determine.  As Justin Wilder below suggests, compainant would work, though it also has its problems since the individual isn’t a complainant as would be a civil plaintiff. 

  7. SHG

    I don’t include the fact that I know the identity of the poster to bolster credibility. By commenting anonymously, his credibility is only as good as one takes it.  I do, however, think that basing a credibility on a typo would be a mistake.

  8. SHG

    It seems to me that “complainant” has no perjorative connotation, though it’s somewhat inaccurate given that it suggests that the person initiates a criminal prosecution, whereas that’s not really the case.

  9. Mike

    In California, the jury instruction council proposed changing criminal jury instructions. The charges would now refer to the prosecution as the “prosecution” rather than “the State.” Prosecutors threw a fit, and the proposal was dropped.

    I know that’s not only peripherally relevant, but it’s interesting trivia.

  10. SHG

    That has always pissed me off.  In New York, the prosecution is called “The People,” as in the people of the State of New York versus…

    I refuse to call them the people, and make a point throughout trial of calling them the prosecution. 

  11. REvers

    Have you ever raised a conflict of interest issue on a prosecutor for this? It seems like your client would be one of “The People” too (unless he or she is from out of state, I guess) and the prosecutor would therefore be representing your client also.

    You won’t win, of course, but it’s always fun to watch people sputter. 🙂

  12. SHG

    Well, that’s the sort of motion that would make the CDL look just a bit too clueless and all the people in the courtroom would laugh at him.  Not a good idea from the lawyerly perspective.

  13. Allison

    I see no evidence of women asking for special treatment, as you claim. Professor Franks’ is arguing in favor of equal treatment. If you want to refer to all alleged victims of crimes as “accusers,” fine. Personally, I think that’s an excellent idea. But don’t carve out a special category of crimes, disproportionately committed against women, and refer to only those (alleged) victims as accusers.

    And I don’t buy your attempt at distinguishing rape, stalking and domestic violence from crimes like robbery because it’s not clear that a crime occurred in the former case. First, your claim that violent rape is extremely rare is overstated. According to RAINN, 73% of all rapes are committed by someone the victim (or accuser if you prefer) knows; that leaves 27% in the stranger-rape category. And that’s assuming that rapists who know their victims never use violence to subdue them, which is patently absurd.

    Moreover, you conveniently leave stalking and domestic violence out of your analysis, which is unsurprising, given that those crimes very often involve clear, physical evidence of a crime having been committed. So if I go to the police and tell them my wallet was stolen, I deserve the title of “victim,” according to you, even though for all anyone knows I could have lost my wallet or even given it to a homeless person in a moment of charity. But if I claim to have been raped, I should be treated differently under the law, even though there’s no more nor less evidence of a crime having been committed. And if I end up in the emergency room, badly beaten, and tell the doctor a stranger did it, I’m a victim; if I say it was my husband, I’m an accuser, even though again, the evidence is the same. Because this has nothing to do with the evidence and everything to do with politics

    And please, “crying rape?” “Gentler sex?” “Increasing the value of their feelings?” If you want to come across as an advocate for fairness, as opposed to sexism, you should take it down a notch.

  14. Dan

    When I was a prosecutor, I had a trial where the defense lawyer began his opening by introducing himself and saying “I also represent the people of the State of New York, specifically this young man,” as he patted his client on the shoulder. I actually thought it went over pretty well.

  15. SHG

    In fact, I would very much like to see all “alleged victims” called “accusers,” or frankly anything other than victims until the occurrence of a crime has been found.  But if you removed the “disproportionalty committed against women” component, then you would care less that these crimes, proscuted on nothing more than a witness’ word, were singled out.  I draw distinctions based on evidence. You (and Franks) draw them based on gender. So who’s using gender to discriminate?

    As for your “buying” or finding the level of discourse to your personal liking, who cares?  Do you presume yourself (whoever you are) to be the bar by which all argument is measured?  It never ceases to amaze me how people offer their personal feelings as the barometer, as if the world revolves around them and we’re all dying to know, but what does she think?

  16. SHG

    I’ve used a variation on this theme, but never felt it added much.  I found it more effective to repeated state that the other side was the prosecution, whose job it was to put their proof to the test, and that the jury was the People, and the evidence meant nothing until it passed muster with the jury. 

  17. Allison

    “I draw distinctions based on evidence. You (and Franks) draw them based on gender. So who’s using gender to discriminate?”

    But you’re not drawing a distinction based upon evidence. Unless you believe that there is *never* objective evidence of rape, stalking or domestic violence. Sometimes there is no evidence that a crime has been committed, apart from the victim’s word, but very often there is other evidence. Physical evidence, hospital records, witness statements. Also, rape, stalking and domestic violence are not unique in that they are sometimes, but not always, “prosecuted on nothing more than a witness’ word.” I’ve worked on many theft cases that were he said/he said. Suspected arson cases always involve a dispute over whether any crime occurred. I could go on. Given that many rape, stalking and DV cases contain more in the way of objective evidence than many more “gender-neutral” crimes, singling them out for different treatment seems suspicious.

    “Do you presume yourself (whoever you are) to be the bar by which all argument is measured? “

    Why no, I don’t, and so I gave you a lot of objective reasons why your argument fails (in my always humble opinion), none of which you actually responded to… But thanks (sincerely) for reading and responding to my comment, regardless.

  18. SHG

    Not only did I not say that there is “never” hard proof of rape, but I expressly said the opposite.  That, however, doesn’t translate into there is “very often” evidence.  That’s wrong.  In the majority of rape cases, 73% based upon your numbers under the presumption that claims of rape by parties who know each other hinge on the testimony of the accuser.  That’s an overwhelming majority where the issue of whether a crime occurred is based solely on the word of the alleged victim. 

    There is no other crime where there is a supermajority of cases where the very occurrence of a crime itself is in issue, putting the question of whether there is a victim at issue.  That’s a hard distinction, and it’s not overcome by the gender-based nature of the crime (because you prefer to give women the benefit of the doubt to the prejudice of defendants).  Moreover, there is no “prejudice” to women by calling them “accusers” (or complainants, or any other name that doesn’t presume the conclusion to be proven), as they aren’t on trial and these words don’t inhibit the presentation of evidence to prove their accusations.  They accuse the defendant of a crime. It’s proven. The defendant gets convicted.

    If your argument is that other cases, theft or arson as you argue, similarly have the occurrence of a crime at issue, then the solution is to argue to extend the use of accuser to other crimes, not reduce it as to rape.  Unless the heart of your beef is that women are special and you’re willing to undermine the fairness of the system when it comes to rape because, well, you just prefer to favor women.

    And if that’s the case, then just say so, take your lumps for being flagrantly biased against men and in favor of women, and we can save time arguing.

    And finally, when your argument comes down to “I don’t buy it,” then it becomes all about you.  If that wasn’t what you meant, you need to be careful not to put your personal sensibilities into the mix to reach your conclusion.

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