A recurring gripe is that readers agree with me 75% of the time, but that last 25% is the killer. Not only do they disagree, but they vehemently disagree, to the point where they want to reach through the computer and strangle me. How, they ask in earnest, can I be so wrong?

The “wrong” at issue is my writing on the subject of the changing tides of sexual assault, rape and neo-feminism.  The dilemma is easy to understand: liberal ideology vehemently supports the due process rights of criminal defendants, the free speech rights of individuals right up to the moment when an allegation is raised by a woman, whereupon the ideology does a 180° and blind support for women trumps everything else.  Why don’t I get that?

Female criminal defense lawyers have informed me that as much as they agree with me completely about criminal law, they find me intolerable when it comes to gender issues.  Whereas they take a principled stance when it comes to their duty as lawyers, they see no problem with abandoning all principle when the allegation is rape. Murders, no problem. Drugs, whatever. Rape? Well, that’s what ideology does to reason.

Former federal judge turned Harvard lawprof, Nancy Gertner, has written a lengthy piece in the American Prospect addressing this flagrant dilemma.  Her bona fides as a feminist are beyond reproach; she has done more of the heavy lifting to promote feminist concerns and interests than twinkies like Mary Anne Franks could ever hope to accomplish.

I am an unrepentant feminist, a longtime litigator on behalf of women’s rights, as my memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to which women—including me—feel uniquely vulnerable, no matter who they are, no matter what their class, their race, their status. No one should have been surprised that I supported stronger enforcement of Title IX, more training for investigators, more services for complainants, systematic assessments of the state of enforcement on college campuses, and other tough remedies.

When I was a lawyer, I understood how inadequate the law was in addressing sexual violence at all. I worked for changes to the retrograde definition of rape in statutes around the country and their disrespectful treatment of rape victims, laws that were a throwback to medieval conceptions about women. I lobbied for rape shield laws that limited the defense counsel’s cross-examination of a woman about her prior sexual experiences. So little did the law trust a woman’s account of rape that some states required that a woman’s accusations be corroborated by independent evidence, a requirement to which no other crime victim was subject. The definition of the crime focused on the woman’s conduct, whether she had resisted “to the utmost;” a simple “no” did not suffice. To the extent that the man’s conduct was considered at all, the statutes required that he use force before his acts amounted to rape; drugging a woman, or having sex with one wholly incapacitated by alcohol, was not enough. And date rape was never prosecuted no matter what the circumstances.

Indeed, as you read Gertner’s article, you realize that she unabashedly embraces every feminist trope around, regardless of whether it’s based in fact, in personal experience or just a self-serving rhetorical sham.  Let’s face it, rape shield laws already elevate rape above all other offenses by protecting women from relevant evidence. Sure, there’s a good reason to do so, but there are no analogous shield laws for any other offense where the reasons would similarly exist but there is no “woman” to protect in the mix.

But unlike those who knee-jerk follow the ideology, Nancy Gertner didn’t forget what she did with the rest of her day: defend the accused. She offers a story of a defendant, “Paul,” who (we are required by her story to believe) was innocent of rape yet convicted for all the wrong reasons, foremost of which was that nobody wanted to bear responsibility for being the decision-maker ending the false rape claim nightmare.  He too deserved fairness. That was her point, accused rapist that he was.

Why, though?  Why give a damn about the outlier false rape allegation, when every other thought was how society must mold to the needs of women because, well, women.  Gertner offers a rationale.  It’s unclear whether this is what she believes, or this is what she’s trying to sell:

Further, how were colleges and universities to balance the interests of the complainant with those of the accused? Just as the complainants must be treated with dignity and their rights to a fair resolution of their charges be respected, so too must those accused of sexual misconduct. You don’t have to believe that there are large numbers of false accusation of sexual assault—I do not—to insist that the process of investigating and adjudicating these claims be fair. In fact, feminists should be especially concerned, not just about creating enforcement proceedings, but about their fairness. If there is a widespread perception that the balance has tilted from no rights for victims to no due process for the accused, we risk a backlash. Benighted attitudes about rape and skepticism about women victims die hard. It takes only a few celebrated false accusations of rape to turn the clock back.

If feminists push the limits too far, even though they deserve to be pushed to the wall, it will redound to their detriment and undermine the gains they’ve made up to now.  Don’t do it because it’s right and the ideology is flawed. Do it for self-serving feminist reasons, to protect the gains and not wake up the sleeping giant of reason, which will snatch them away.  Avoid the backlash.

Does Nancy Gertner mean what she says?  A disturbing admission in her article suggests this is for real:

As a federal judge, I did not have much occasion to address the issues with which I had been so concerned as a lawyer. Rape is principally a state, not federal, crime. I did deal with accusations of sexual harassment in the workplace, fully appreciating the extent to which sexual harassment obstructs equal opportunity and discriminates against women.  I wrote articles decrying the state of civil rights enforcement in the federal courts.  And on the criminal side, while I did everything I could to mitigate the harsh effects of onerous drug sentencing, I had no problem sentencing sex traffickers as harshly as the law allowed.

While sitting in judgment of others, Gertner concedes that her sentences reflected her personal ideology, being as harsh as the law allowed when the crime was one that she personally hated.  No, 18 U.S.C. 3553(a) has no prong for personal judicial prejudice.

This is an admission that she abused the power of her position to vindicate her gender-based hatred. At the same time, it reflects a level of honesty in her writing, that she has taken a position that she must, despite how feminist ideology might otherwise blind her.

When I seek to argue the unprincipled inconsistency of this ideological conflict, I’m easily dismissed because I’m male and just can’t appreciate the special suffering of women. But Nancy Gertner can’t be so easily dismissed.

Do it because it’s right.  Do it because it’s in feminist self-interest not to push the envelope so far beyond the pale as to give rise to a backlash. Either way, the law must either protect the rights of all accused or none. The Constitution, and the principles it holds, don’t and can’t end at gender.