Frustration and Consequence
posted by Infra on February 8th, 2007
I’m thoroughly disgusted with the way that the Nowak case is being handled. I’d dare anyone to say to me — with a straight face — that it would be being handled the same way if it was a guy who had stalked a woman for two months, followed her flight plan by car, wearing diapers so that he didn’t have to stop along the highway, tracked her in the parking lot wearing a wig and trenchcoat, tried to bluff her into opening her window by pretending to need help, pepper-sprayed her, attempted to ditch evidence and was found to have, among other things, a new metal mallet, BB gun and four-inch folding knife, at least three feet of rubber tubing, garbage bags, latex gloves, a significant amount of cash and directions to her home in his possession and in his car. I doubt that people would be focusing on the stress of his job. I doubt that they would be describing him as “love-lorn.” And I seriously doubt that an attorney who argued that he just wanted to talk to her and that he should only be charged with battery would be anything less than drawn and quartered.
[Edit: It's good to see that I'm not alone in picking up on this. Denise Noe posted an article on MND lately saying the same thing. There was also an entry on HMP by Man On The Street, one which I missed earlier. Don't entirely agree with that one, though.]
It seems perfectly appropriate that Larry King did a sympathetic interview with a woman convicted of poisoning her husband tonight, allowing her to play herself off as wrongly-convicted. It’s the same bullshit stereotype playing out. I feel sorry for the woman that Nowak — allegedly, but most likely, all the same — came to Florida to kill and dispose of. Seeing Nowak treated this way must be like sandblasting the wound.
The more I hear about these kinds of things — not just this, but other cases, like the one last year in which a woman forcibly raped a young boy at knifepoint, posing as a health worker, and got a six month jail sentence — the less sympathy for and patience with women’s issues I have. Not women, mind you, but women’s issues, the maintenance of pro-women gender stereotypes and the rather extreme lobbying, on occasion, that goes on for them.
If there is a backlash against feminism in my thought, it’s stuff like this that’s motivating it. It reminds me of what Toy Soldier wrote about Oprah’s show on female rapists (parts 1 & 2), with which I have to agree.
I can understand why many men who try and address these issues are becoming increasingly radicalized. Unfortunately, this radicalism simply provides fuel for those people who dismiss the issues out of hand, further feeding the cycle. A good example of the irresponsible behavior that results can be found in this examination of the DNA exoneration rates for rape convictions, as they are reported by some — perhaps most — men’s rights activists and antifeminists. (The author, in a comment in another site’s article, linked to Edward Greer’s examination of the 2% statistic, which is worth reading for context, if not for general illumination on the subject.*)
I don’t want to become bitter over these things. I don’t want them to poison my view of women, or feminism, or relationships, or…. At times that gets difficult, especially when expressing my frustration with events like these gets me the dubious honor of being branded a misogynist, even by close friends who have known me for years. Granted, she later explained that she did that out of frustration and stress, knowing that it would get to me and intending it to do so, but that’s not a justification and it doesn’t undo the damage. If anything, it only goes to show that making that accusation, even in response to valid issues, can be an accepted and tolerable response.
Addressing these things — meeting them on the grounds of reasonable discussion and speaking out against evident imbalances — would go a long way toward not only getting a clear view of them and solving the problems involved, but also reducing the influence of the more radical perspectives.
That could hardly be described as a bad thing.
* One part of this law review article is of particular note in connection with the previous post, specifically in regard to the requirement of explicit verbal consent in the Act referenced in the linked Spiked article, and in regard to the notion of an ambiguous “no:”
Once one removes these parameters, the definition of the felony becomes wildly over-inclusive. For instance, if consent required express verbal speech acts on the part of the woman, there would probably be hundreds of times as many acts defined as rape as there are today. Only after a cultural change in which such statements become effectively universal would it make sense to use silence — or even rhetorical “no’s” — as one per se element of the felony.
Many who adopt an LDF [Note: Legal Dominance Feminism, used by the author to refer to dominance theory feminism applied to legal matters and public policy] approach insist, however, that there should be a change in the legal rules governing rape such that in the absence of a woman’s verbal statement of assent, rape has occurred. There is both a stronger and a weaker version of this proposed reform.
In the stronger version, any act of intercourse that occurs in the absence of an express oral consent is rape. Most within the LDF do not seriously dispute that currently a large portion of women fail to meet this proposed standard of behavior; and they probably even agree that it would be unjust currently to imprison the male sexual partners. Exponents of the stronger version argue, however, that passage of such legislation would prospectively create a beneficial social change, such that women would regularly speak up as sexual encounters transpired. Thus, “[i]f women could rely on the legal presumption that all escalation of intimacy required a clear, affirmative assent, it might be easier for them to decline to go forward.” Once women did generally behave in line with this new legal reality, the absence of a rhetorical assent would suffice to give fair warning to the man of nonconsent and would warrant his criminalization if he had intercourse without having obtained such consent. This position is at best rather speculative.
More commonly within LDF there are calls for public policy implementation of the weaker version: that “no means no,” i.e., that once the woman has rhetorically expressed nonconsent, sexual intercourse is rape. This is a seemingly reasonable notion, but in a society in which numerous women say “no” when they mean “yes,” [Note: author references studies establishing this on the basis of empirical research, notably Schulhofer (Unwanted Sex, 1998) and Dressler (Understanding Criminal Law, 1995)] it suffers from the same practical defect as the stronger version. Functionally, adoption of a rule that criminalizes all acts of sexual intercourse that occur after the woman has said “no” means that all of those millions of real life instances occurring daily in which women use that locution become potential strict liability crimes. By simply averring that the “magic word” was spoken, any very difficult rape case to prove would be transformed into a relatively simple one. This would have the unfortunate collateral effect of creating a strong incentive for prosecutors and individual complainants to provide false testimony.
[...]
Eliminating any mens rea requirement would surely raise the conviction rate toward the ninety-eight percent benchmark. By definition, if the woman testified at trial that she currently believes that she did not contemporaneously consent, the man would have to be found guilty. As with other strict liability crimes which encompass millions of violators, it is impossible to enforce such laws; all that can occur is a handful of selective prosecutions. This proposed version of strict liability would approach retroactive absolute liability, whereby at her sole discretion, the woman could imprison any current or former sexual partner as far back as the controlling statute of limitations allows.
Such a revolution in the legal process would be justifiable if and only if some defensible reason could be articulated to authorize a heightened evidentiary status for a woman’s complaint of sexual mistreatment. The rationale advanced by LDF to justify such special treatment is that women do not lie about rape since only two percent of rape complaints are invalid. However, as demonstrated in Part II.D, this figure is thoroughly unreliable.
It is unfortunate that the theoretical situation described in this excerpt is, in fact, the legal climate that exists today.