Creative Destruction

May 14, 2006

Mary Doe Had Sex With Her Boyfriend. So What?

Filed under: Current Events,Feminist Issues — Ampersand @ 3:23 pm

Today’s big news among the she’s-a-liar crowd is the revelation that Mary Doe, who says she was raped by three men at a Duke lacrosse team party, had sex with her boyfriend – as the DNA evidence proves.

Call me a weirdo, but I don’t think that proof Mary Doe has had sex with her boyfriend changes anything. Nor does this prove she wasn’t raped at the party, by people other than her boyfriend. (Not living like a virgin doesn’t magically make someone rape-proof.)

But isn’t it impossible for her boyfriend to have left traces of DNA if later rapists did not? Not as far as I know. Maybe her boyfriend left much more evidence behind (not all men produce the same quantities). Maybe the rapists wore condoms. The truth is, we don’t know. I have my opinion, and other folks have theirs; but to think anything’s been proved at this point, before both sides bring in experts who are subjected to cross-examination, is foolhardy.

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28 Comments »

  1. Or at least, as the information about the DNA evidence released by the defense attorneys at a press conference proves.

    Comment by mythago — May 14, 2006 @ 4:03 pm | Reply

  2. Nor does this prove she wasn’t raped at the party

    It doesn’t have to. All it needs to do is support an alternative version of events – one in which the injuries recorded by the SANE were caused by rough sex with someone else. The defence doesn’t need to prove this. They only need to show reasonable doubt.

    We’ve been told that the injuries are consistent with rape. What we haven’t been told, one way or another, is whether they are consistent with rough consensual sex.

    Comment by Daran — May 14, 2006 @ 11:58 pm | Reply

  3. Daran, you’re talking about a different thing than I am. In terms of creating reasonable doubt, of course this could be relevant (although whether or not it actually will be relevant depends on a lot of stuff we don’t know yet).

    However, the “this proves the bitch was lying” crowd isn’t saying “regardless of if the rape happened or not, this could create reasonable doubt.” That’s not something I could disagree with. They’re saying she’s a proven liar, and it’s ridiculous for anyone to think otherwise at this point. And that’s something I do disagree with.

    Comment by Ampersand — May 15, 2006 @ 4:33 am | Reply

  4. Daran, you’re talking about a different thing than I am. In terms of creating reasonable doubt, of course this could be relevant (although whether or not it actually will be relevant depends on a lot of stuff we don’t know yet).

    It will be interesting to see whether the defence tries to claim either that her injuries are consistent with rough consensual sex, or that they were caused by a rape earlier that day.

    If they do, then, the existence of ‘other’ foreign DNA becomes relevant. I bet it won’t be admitted though.

    However, the “this proves the bitch was lying” crowd isn’t saying “regardless of if the rape happened or not, this could create reasonable doubt.” That’s not something I could disagree with. They’re saying she’s a proven liar, and it’s ridiculous for anyone to think otherwise at this point. And that’s something I do disagree with.

    You would have done better to link to some sample posts/comments where they say this, (not that I doubt they exist).

    Oh, and by the way, I think that if you’re a feminist taking a stance about those who treat rape complainants automatically as liars, that creates a moral obligation to be concerned also about those who treat the accused as automatically guilty whether on your own blog, or elsewhere. Otherwise, you’re just a partisan hack.

    Comment by Daran — May 15, 2006 @ 7:09 am | Reply

  5. You would have done better to link to some sample posts/comments where they say this, (not that I doubt they exist).

    You’re right, I should have. I was being lazy – the specific comment that galvanized me into writing in this post was a comment left on one of the feminist-only threads on “Alas,” which I didn’t let through.

    I appreciate you saying that you don’t doubt such comments exist. If anyone wants to seriously doubt such comments exist, I’ll be happy to do a google search and find some examples of what I’m referring to.

    Regarding being a partisan hack, I’ll have to give that comparison some thought.

    Comment by Ampersand — May 15, 2006 @ 1:54 pm | Reply

  6. I appreciate you saying that you don’t doubt such comments exist. If anyone wants to seriously doubt such comments exist, I’ll be happy to do a google search and find some examples of what I’m referring to.

    I don’t doubt such comments exists. I question whether they are really as prevalent as you imply. I know from my own experience that it’s often hard to find comments saying preciselywhat I think feminists (or whichever group) have been saying generally. Quite often when I look back at the specific comments I remember, they stand for something slightly different.

    In fact, in the first couple of Google returns for the string “duke accuser consensual boyfriend lied OR lie OR liar” I couldn’t find a post that stood for this proposition. There were several calling her a liar, but none saything that this particular revelation proved it. (It’s possible that I missed something.)

    Comment by Daran — May 15, 2006 @ 4:01 pm | Reply

  7. I think that you used an overly complicated search string. Going to google blog search and searching for “duke dna boyfriend” turned up two examples very quickly: La Shawn Barber and Rhymes With Right.

    That they consider people who disagree ridiculous is something I’m inferring from their tone, not something explictly said in these posts. But that they’re convinced that Mary Doe is a liar, and that this new evidence adds more weight to the “she’s a liar” side of the scale, seems pretty undeniable to me. Here’s the complete text of the post from Rhymes with Right, for example:

    They found DNA.

    And it doesn’t match anyone from the team.

    It matches her boyfriend.

    Will Nifong have the honesty to admit this is a hoax, apologize to the players, and drop all charges against them?

    Will he have the guts to charge the accuser with making false statements to police?

    There are also many examples in the comments of LSB’s post. Admittedly, they’d be saying the same things even if the boyfriend’s DNA hadn’t been reported; but they are saying these things, right at this moment, in response to reports of this DNA connection.

    Comment by Ampersand — May 15, 2006 @ 7:51 pm | Reply

  8. But that they’re convinced that Mary Doe is a liar, and that this new evidence adds more weight to the “she’s a liar” side of the scale, seems pretty undeniable to me.

    It is undeniable, and the RwR cite exemplifies it perfectly.

    But this isn’t the proposition at hand, which is their alleged claim that “this proves the bitch was lying.” (Comment #3)

    I looked at the first few comments at LSB, but quickly had to come up for air. If there’s a comment there that stands for this proposition, then I think its your burden, not mine to swim this particular sewer.

    I don’t doubt that someone, somewhere among the “she’s a liar” crowd has said this, just as I’m sure that somewhere there’s a feminist who has said “All sex is rape”. But if you can’t actually find an instance of it that doesn’t come from critics of the “she’s a liar” crowd and feminists respectively, then that’s a good indicator that it’s a strawman when applied to those groups generally.

    Comment by Daran — May 16, 2006 @ 12:41 am | Reply

  9. In post #3, I didn’t intend to say that they believe that this one piece of evidence, in and of itself, is all the evidence needed to prove that she’s a liar. I’m sorry you took it that way.

    With hindsight, I should have said that they’re convinced that Mary Doe is a liar beyond any doubt, and that this new report adds more weight to the “she’s a liar” side of the scale.

    I realize, of course, that this is a case of being skewered on my own sword. However, when I ask MRAs and anti-feminists to provide actual examples of feminists saying “all men are rapists” or whatever other nonsense those folks make up, I’m usually doing so for something that I think actually matters. Whether or not feminists believe that “innocent until proven guilty” should be done away with, or that all men rape, or whatever, is actually a question with significance to the debates involved.

    In contrast, I’m not convinced that the distinction you’re catching me on here is one that has any real substance to it.

    Comment by Ampersand — May 16, 2006 @ 1:26 am | Reply

  10. Well, Amp, that’s just your privilege talking.

    (Ba dum bump!)

    Comment by bobhayes — May 16, 2006 @ 1:30 am | Reply

  11. I am the mother of a little boy and a little girl – I can’t imagine him being falsely accused of rape or my daughter being a victim of one. I believe she is lying. Regardless of all the reports out there, Kim Roberts the second stripper was there and can’t say that a rape occured. I think she would’ve known if it happened. I feel very sorry for the players – saying racial slurs and raping someone are two very different things.

    Comment by jlb — May 16, 2006 @ 11:46 am | Reply

  12. Ampersand:

    In post #3, I didn’t intend to say that they believe that this one piece of evidence, in and of itself, is all the evidence needed to prove that she’s a liar. I’m sorry you took it that way.

    I didn’t; I took it as saying that this one piece of information in particular, against the backdrop of all the other (mis)information proves that she’s a liar.

    I briefly considered an alternative explanation – that the ‘crowd’ say “this proves the bitch was lying” about a lot of different things, but not necessarily this particular revelation, but if that had been your intention, you would have rejected my invitation to cite outright.

    With hindsight, I should have said that they’re convinced that Mary Doe is a liar beyond any doubt, and that this new report adds more weight to the “she’s a liar” side of the scale.

    Which it does, (albeit to a miniscule degree) whether or not you agree that “she’s a liar” is proven beyond any doubt.

    I realize, of course, that this is a case of being skewered on my own sword. However, when I ask MRAs and anti-feminists to provide actual examples of feminists saying “all men are rapists” or whatever other nonsense those folks make up, I’m usually doing so for something that I think actually matters. Whether or not feminists believe that “innocent until proven guilty” should be done away with, or that all men rape, or whatever, is actually a question with significance to the debates involved.

    In contrast, I’m not convinced that the distinction you’re catching me on here is one that has any real substance to it.

    It’s an easy but unconvincing victory over a strawman opponent. The fact that she had sex with her boyfriend cannot amount in and of itself to proof that she lied about having been raped. (BIFF!) nor could it be sufficient when added to other known facts to turn non-proof into proof. (POW!! He’s down. There’s straw all over the ring.)

    I agree with you that the available information as a whole is insufficient for any reasonable person to conclude with certainty that the accusation is false. I also agree that “she’s a lying bitch” is an essentially dishonest agenda. But the first of these points is a much harder argument to make, while making he second opens you up to charges of hypocrisy if you engage in dishonest rhetoric yourself.

    I also agree with you about the lack of substance, but for a different reason. This discussion lacks substance because those we criticise lack substance. They are a powerless marginalised group, empty vessels making a lot of noise. Dworkin and Mackinnon, by contrast were and are influential feminists who opinions have influenced public policy. While I agree that neither of them (nor any other feminist of note) have ever said anything which rises to “all men are rapists” or “all sex is rape” they have expressed some remarkable negative and prejudicial views about men and about consensual sex.

    Comment by Daran — May 17, 2006 @ 10:01 pm | Reply

  13. I also agree with you about the lack of substance, but for a different reason. This discussion lacks substance because those we criticise lack substance. They are a powerless marginalised group, empty vessels making a lot of noise. Dworkin and Mackinnon, by contrast were and are influential feminists who opinions have influenced public policy. While I agree that neither of them (nor any other feminist of note) have ever said anything which rises to “all men are rapists” or “all sex is rape” they have expressed some remarkable negative and prejudicial views about men and about consensual sex.

    Actually, they both favor consensual sex; they just doubt that full agency (and thus full consent) is possible within an oppressive system. In other words, their critique of the sex we have is that it isn’t consensual enough.

    As for “power,” I think you’re mixing up the power of individuals and the power of ideas. Does a blogger like La Shawn Barber have much power as an individual human? As far as I know, he (she?) doesn’t – at least, not when it comes to questions of law policy. (Then again, neither do I – and LSB’s blogging megaphone is, I suspect, larger than my own). And LSB certainly is less influential, as an individual, than MacKinnon (mostly because of merit).

    But the ideas he advocates do have a hell of a lot of currency and influence. The ideas he advocates are the ideas which drive one of the most powerful part of the right-wing coalition that is ruling all three branches of our government. He has, in fact, far more power than I do in a winner-takes-all representative democracy, because he has some representatives who have actual power to affect policy.

    If MacKinnon’s ideas had more power in our society, the OC rape case would never have happened – it would be an incomprehensibly bad idea for lawyers to treat a rape victim like that. But that case did happen. Why? Because ideas like LSB’s still rule the day, by and large, rather than ideas like MacKinnon’s.

    And although they put it in more polite language, Mary Doe is being trashed not just on blogs but on cable news and talk radio. When an MSNBC news host frames a story like this:

    A new independent report said the accuser in the Duke rape investigation initially said it was 20 players who raped her, then changed her story to three. Is it time for the D.A. to drop the charges?

    …It’s only barely different from what LSB is saying. The framing is still selling the story as “she’s a lying bitch,” it’s just put more politely. The ideas LSB advocates are believed by a huge proportion of our society – and not just people without any power or influence.

    Comment by Ampersand — May 17, 2006 @ 11:13 pm | Reply

  14. LaShawn Barber is a woman.

    Comment by Robert — May 17, 2006 @ 11:53 pm | Reply

  15. Actually, they both favor consensual sex; they just doubt that full agency (and thus full consent) is possible within an oppressive system. In other words, their critique of the sex we have is that it isn’t consensual enough.

    So “In a patriarchal society, all heterosexual intercourse is rape…”, while not her actual words, is not so far from what she argues. That was my point.

    But the ideas [Barber] advocates do have a hell of a lot of currency and influence. The ideas he advocates are the ideas which drive one of the most powerful part of the right-wing coalition that is ruling all three branches of our government. He has, in fact, far more power than I do in a winner-takes-all representative democracy, because he has some representatives who have actual power to affect policy.

    We’re not talking about rightwing ideas in general. We’re talking about one particular idea – that women who cry rape are lying bitches. Show me some evidence that this idea has any political currency. Show me the Lying Bitches Act. Show me the policy statements. Show me the government sponsored research into the alledged problem. Because I can show you legislation, policy statements and research that incorporate feminist ideas.

    If MacKinnon’s ideas had more power in our society, the OC rape case would never have happened – it would be an incomprehensibly bad idea for lawyers to treat a rape victim like that. But that case did happen. Why? Because ideas like LSB’s still rule the day, by and large, rather than ideas like MacKinnon’s.

    What is this? Proof by anecdote? I’ll see your OC rape case and raise you a Jovanovic.
    That case should never have been brought, let alone result in a conviction, but it did. Why? Because ideas like MacKinnon’s still rule the day.

    These two cases, taken together, support my argument. Jovanovic’s conviction was due to the misapplication of rape shield legislation, which is a feminist idea made law. The egregious conduct of the defence in the OC case is, by contrast, precisely the kind of thing the state enacted those laws to try to prevent.

    And although they put it in more polite language, Mary Doe is being trashed not just on blogs but on cable news and talk radio. When an MSNBC news host frames a story like this:

    A new independent report said the accuser in the Duke rape investigation initially said it was 20 players who raped her, then changed her story to three. Is it time for the D.A. to drop the charges?

    …It’s only barely different from what LSB is saying. The framing is still selling the story as “she’s a lying bitch,” it’s just put more politely. The ideas LSB advocates are believed by a huge proportion of our society – and not just people without any power or influence.

    There’s been a fair amount of trashing of the lacrosse players in the mainstream press. Their names and photos have been published, while hers has been withheld. (Yeah, I know a purported identification of Mary Doe is in circulation, but that’s not come from the mainstream press.) This is a voluntary code that the press follows. If LSB’s views held sway, they wouldn’t.

    I don’t read the cited text the way you do. It asserts that the alledged victim’s allegedly changing story creates sufficient doubt that (according to them) the case ought to be dropped. The “new independent report” doesn’t stand up to scrutiny, but that points to a lack of scrutiny by the media, not a desire to trash the alledged victim.

    Comment by Daran — May 18, 2006 @ 10:06 am | Reply

  16. So, I got booted? not politically correct. just because i’m not a feminist????????? and had a ligitimate opinion, and not objetionable? bad site!!!!!!!!!!!!!! Just because the duke boys are rich (or talented) and she is a stripper your site has been the judge and jury!!!!!!!!!!!

    Comment by ted — May 19, 2006 @ 4:08 pm | Reply

  17. Ted, every exclamation point after a sentence reduces the perceived IQ of the poster by half. If you had started with a post written by someone with an IQ of 200, you end up around (counting…) 0.08.

    If you object to someone with a blog setting the tone and content of their own site, I can recommend a good remedial reading course on the topic of private property.

    Comment by Robert — May 19, 2006 @ 4:41 pm | Reply

  18. What we haven’t been told, one way or another, is whether they are consistent with rough consensual sex.

    We haven’t been told anything, since early April, by anyone from Nifong’s office. We’ve been told plenty by the defense attorneys, who are holding press conferences early and often. (That’s not a criticism; they’re doing their jobs.)

    Comment by mythago — May 19, 2006 @ 6:18 pm | Reply

  19. So “In a patriarchal society, all heterosexual intercourse is rape,” while not her actual words, is not so far from what she argues.

    Actually, there’s a huge distinction. You’re like a Republican arguing that when Gore said he was instrumental in legislation which brought about the creation of the internet, that’s not so far from saying “I invented the internet.”

    As for which ideas have power and currency in society, it’s not an all-or-nothing proposition. Obviously, feminists have had a very great influence on policy and law in the U.S., including the creation of rape shield laws. And including the fact that it’s now possible for Mary Doe to say she was raped and to be taken seriously (by some, in some circumstances, anyway).

    But the other side’s ideas – the idea that women who report rape (especially if they’re the “wrong kind” of women, such as strippers, prostitutes, drug addicts, etc) are not to be trusted, the idea that attacking the character of alleged rape victims is appropriate outside of very narrow courtroom circumstances, and the idea that rape shield laws have gone too far – are also influential and commonplace. That these ideas are not expressed in legislation does not mean they have no currency.

    The egregious conduct of the defence in the OC case is, by contrast, precisely the kind of thing the state enacted those laws to try to prevent.

    Gee, and it worked so well, didn’t it?

    It’s a victory for US feminists – and for justice – that rape shield laws, in one form or another, exist in all states. But defense lawyers still use the “make the alleged victim’s life hell” technique, and still do all they can to put accusors on trial.

    If feminist ideas really had won, defense lawyers wouldn’t dare do stuff like that, for fear of pissing off the jury.

    The sign that feminist ideas will have won isn’t that we have rape shield laws. When feminist ideas have really won, we will no longer need rape shield laws.

    What is this? Proof by anecdote? I’ll see your OC rape case and raise you a Jovanovic.
    That case should never have been brought, let alone result in a conviction, but it did. Why? Because ideas like MacKinnon’s still rule the day.

    How on Earth do you connect the Jovanovic case to MacKinnon’s ideas? (Vivian Berger is the feminist scholar generally credited with rape shield laws). Logically, the Jovanovic case is only an example of MacKinnon-like ideas ruling the day if MacKinnon-like ideas include favoring the misapplication of rape shield laws. But no one favors that.

    Jovanovic’s conviction was due to the misapplication of rape shield legislation, which is a feminist idea made law.

    Yes, but the built-in exemptions to the shield laws are also feminist ideas made law.

    In any case, I’m confused by your reference to Jovanovic. Certainly, the lower court totally misapplied the law, and so the conviction was properly vacated; and it’s also true that the prosecutor acted unethically. But that doesn’t establish that she wasn’t raped.

    Why do you say the charges never should have been brought? How do you know that he shouldn’t have been convicted?

    I don’t read the cited text the way you do.

    Keeping in mind the interview as a whole, I think my reading of the host’s attitude is accurate. But I admit this is a subjective question.

    Comment by Ampersand — May 20, 2006 @ 12:02 am | Reply

  20. Ampersand:

    So “In a patriarchal society, all heterosexual intercourse is rape,” while not her actual words, is not so far from what she argues.

    Actually, there’s a huge distinction. You’re like a Republican…

    That’s an insult.

    …arguing that when Gore said he was instrumental in legislation which brought about the creation of the internet, that’s not so far from saying “I invented the internet.”

    You misquoted my quotation. I included elipsis with the intention that this would indicate that it was the entire sentence which as far as I can see is not far from her views. (I couldn’t remember it verbatim, and couldn’t be bothered to look up. In retrospect, I should have, as it’s obvious that my intention wasn’t clear)

    The view attributed (and quote commonly misattributed) to MacKinnon in Professing Feminism is:

    “In a patriarchal society all heterosexual intercourse is rape because women, as a group, are not strong enough to give meaningful consent.”

    Here’s your rendition of the idea:

    “they just doubt that full agency (and thus full consent) is possible within an oppressive system. In other words, their critique of the sex we have is that it isn’t consensual enough.”

    I call penetrative sex which isn’t fully consensual “rape”. What do you call it? What is the huge distinction here? I agree that there’s a huge distinction (comparable to “I created the internet”) between this and “all heterosexual intercourse is rape” (or “all sex is rape”) taken out of the context of the entire sentence, but it was never my intention to suggest this. Sorry if you took it that way.

    As for which ideas have power and currency in society, it’s not an all-or-nothing proposition. Obviously, feminists have had a very great influence on policy and law in the U.S., including the creation of rape shield laws.

    While to date, antifeminists have not, (which is, in large part, their own fault for being mostly a bunch of loonies. That doesn’t mean that there’s no worthwhile cause here.)

    But the other side’s ideas – the idea that women who report rape (especially if they’re the “wrong kind” of women, such as strippers, prostitutes, drug addicts, etc) are not to be trusted, the idea that attacking the character of alleged rape victims is appropriate outside of very narrow courtroom circumstances, and the idea that rape shield laws have gone too far – are also influential and commonplace. That these ideas are not expressed in legislation does not mean they have no currency.

    I don’t dispute that they have currency in society at large, just as yours do. I dispute that they have a currency government which yours don’t. Here’s your claim again:

    But the ideas [Barber] advocates do have a hell of a lot of currency and influence. The ideas he advocates are the ideas which drive one of the most powerful part of the right-wing coalition that is ruling all three branches of our government. He has, in fact, far more power than I do in a winner-takes-all representative democracy, because he has some representatives who have actual power to affect policy.

    Not only are his ideas (with respect to rape) “not expressed in legislation”, they’re not expressed in anything that Goverment does. Prove me wrong with a cite. Feminist ideas don’t just appear in legislation. They appear in police training manuals, in the violence against women program, and so on.

    The egregious conduct of the defence in the OC case is, by contrast, precisely the kind of thing the state enacted those laws to try to prevent.

    Gee, and it worked so well, didn’t it?

    About as well as the “built in exemptions to the shield laws” worked for Jovanovic.

    But this is all beside the point. We’re arguing about which ideas have political currency, not whether they worked in any particular instance.

    It’s a victory for US feminists – and for justice – that rape shield laws, in one form or another, exist in all states.

    Show me a comparible antifeminist victory?

    But defense lawyers still use the “make the alleged victim’s life hell” technique, and still do all they can to put accusors on trial.

    If feminist ideas really had won, defense lawyers wouldn’t dare do stuff like that, for fear of pissing off the jury.

    This is a strawman; I never suggested that feminist ideas had won.

    That said, it hardly matters to a defence lawyer if you piss off feminist jurors. If their view is that “women don’t lie about rape”, they’re going to find your client guilty no matter what you do. No wonder they play to the antifeminists in the gallery.

    How on Earth do you connect the Jovanovic case to MacKinnon’s ideas? (Vivian Berger is the feminist scholar generally credited with rape shield laws).

    Then substitute Berger for MacKinnon. I named MacKinnon as a feminist whom I know has influenced public policy. You’ve just named another one. That supports my case. Can you name an antifeminist who has had successes like this?

    Logically, the Jovanovic case is only an example of MacKinnon-like ideas ruling the day if MacKinnon-like ideas include favoring the misapplication of rape shield laws. But no one favors that.

    Somebody did favour that, because they were misapplied.

    As I said, I didn’t cite Mackinnon for her ideas specifically, but for her influence on public policy. It’s feminist ideas in general that ruled the day in that case. “Believe the victim”, “Women don’t lie about rape”. “I doesn’t matter what the victim did” Ideas that essentially deny the presumption of innocence, and leave the accused without a defence, which is what happened to Jovanovic. Virtually everybody claims to support the presumption of innocence, but you can find any number of people on the net for whom a mere accusation is sufficient proof, and it is frankly fantasy to suggest that all of these people are going to leave their beliefs behind when they step into a jury box.

    Yes, but the built-in exemptions to the shield laws are also feminist ideas made law.

    To me, they look more like wiser heads prevailing.

    In any case, I’m confused by your reference to Jovanovic. Certainly, the lower court totally misapplied the law, and so the conviction was properly vacated; and it’s also true that the prosecutor acted unethically. But that doesn’t establish that she wasn’t raped.

    Another strawman. I never said that it was established that she wasn’t raped.

    I refered to this case as an example of where a feminist idea manifested in law has had a harmful effect. Whether intended by feminists or not is beside the point. Am I allowed to do that? Or is Feminism to have its own shield law in the courtroom of debate?

    Why do you say the charges never should have been brought? How do you know that he shouldn’t have been convicted?

    It’s my view, based on the verifiable facts of the case (basicly the facts set out in the appellate decision I cited) that the prosecution could not in a fair trial have proved beyond reasonable doubt either lack of consent, or lack of a reasonable belief in consent. In coming to that view I give no weight at all to various unsubstantiated claims made on internet websites.

    Comment by Daran — May 20, 2006 @ 6:40 am | Reply

  21. Indenting bolixed up here too. 😦

    Comment by Daran — May 20, 2006 @ 7:11 am | Reply

  22. Bolixed blockquotes de-bolixed.

    Sorry for deleting the ellipses, Daran – I honestly don’t know how that happened.

    You didn’t answer my question about what books by MacKinnon you’ve read. Although my nutshelling of her views was an honest attempt on my part, it also cut out tons of nuance and detail from MacKinnon’s argument; it is not a substitute for having read the original arguments in their full context.

    Lies from Professing Feminism about what MacKinnon says carry no persuasive weight with me. If you want to argue against MacKinnon, do it by quoting MacKinnon, not by quoting anti-feminist distortions.

    I call penetrative sex which isn’t fully consensual “rape”. What do you call it?

    That depends. Are we conceiving as “rape” as a strict either/or state, or as degrees along a continuum? And what does it mean to say something is fully consensual? For example, suppose that a wife doesn’t feel free to say “no” to her husband because of well-founded fear he’ll force her if she doesn’t go along. I’d call that rape.

    But what if she has sex because she’s afraid that he’ll divorce her if she says “no,” and she is intimidated by the prospect of earning a living or afraid of losing her kids? I wouldn’t say that she’s acting from a position of free, unconstrained agency, but is it rape? What if a lifetime of societal training has taught her to give in politely, and that she has a duty to allow her husband to have sex with her no matter how unpleasant she finds it?

    In law, rape is an either-or question. But in academic discussions of consent, agency and social power, things aren’t that simple. There are degrees of consent and nonconsent. And unless you’re willing to acknowledge that complexity, I don’t think it’s possible to have an intelligent discussion of MacKinnon’s ideas in this area.

    * * *

    That said, it hardly matters to a defence lawyer if you piss off feminist jurors. If their view is that “women don’t lie about rape”, they’re going to find your client guilty no matter what you do.

    But I don’t think that is the typical feminist view. I don’t think it’s true that many feminists nowadays – aside perhaps from some student feminists speaking in hyperbole – would say “women don’t lie about rape,” period. Rather, feminists typically argue that false accusations of rape are rare, not that they never happen.

    In any case, you’ve in no way undermined my point, which is that defense attorneys don’t feel that they’ll lose out by using the “she’s a slut” defense; this, I believe, is because the sort of ideas expressed by LSB and others still have a lot of traction in our society.

    I realize that doesn’t address your point about government actors expressing anti-feminist ideas. Are you talking about the narrow field of rape shield laws, or more generally? In either case, I’ll answer later – right now I’m out of time.

    Comment by Ampersand — May 20, 2006 @ 6:05 pm | Reply

  23. With all due respect to you feminists, I think your unwavering support of Mary Doe is misguided. You seem to be backing her only because she’s a woman, just like the New Black Panthers are behind her only because she’s black. Both groups are apparently ignoring the actual evidence. So let me lay out the facts for you in a way that will get you to take notice.

    Fact: If a rape took place, it happened between 12:10 and 12:30.

    Fact: Seligman called for a cab at 12:14, got picked up by the cab at 12:19, and made an ATM withdrawal at 12:24. The cab then took him to a restaurant and then to his dorm. Even though he was at the location of the party from 12:10 to 12:19, He made numerous cell phone calls during that time.

    Fact: Finnerty claims he was not at the party, which is supported by the fact that he is not in any of the photos of the players taken at the party.

    Fact: David Evans did not have any marks on him when he was examined, so the appearance of his DNA on one of her fake fingernails is probably not from a scratch. Evans lives in the house where the party was, so it is logical to assume that items containing his DNA would have been in the garbage where the woman’s fake nails were found by authorities. Additionally, if she removed them voluntarily and threw them in the garbage can, it would explain the lack of any of the lacrosse players’ fingerprints on the nails. If they had broken off in a struggle, they would have likely landed on the floor, whereupon one of the players would have had to pick them up to throw them in the garbage, which would probably have left fingerprint evidence.

    Fact: The Mary Doe identified Seligman and Finnerty with 100% certainty, though both men have solid evidence showing they could not have done it.

    Fact: Photos of the dancer prior to 12:10 show she was already bruised, so she had to have arrived at the party with the bruises.

    My take on the evidence is that perhaps her boyfriend brutalized her sometime before the party, but due to an alleged money dispute and/or lude comments made at the party, as well as maybe a desire to protect her boyfriend, she decided to say she was assaulted by the Duke players instead of her boyfriend.
    On the point of Mary Doe’s ID of Evans, she may have gotten into a dispute with him at the party because he was hosting the party, so she may have fingered him to get back at him. (Incidentally, I think it’s extremely bizarre that she thought he had a mustache.)
    There are numerous other issues that damage her credibility, but I will not go into them. I just want you to realize that virtually every piece of evidence contradicts her story. Feminism is a good thing in general, but you are hitching your wagon to the wrong horse here.

    Comment by Common Sense King — May 21, 2006 @ 2:20 am | Reply

  24. Fact: If a rape took place, it happened between 12:10 and 12:30.

    Fact: Seligman called for a cab at 12:14, got picked up by the cab at 12:19, and made an ATM withdrawal at 12:24. The cab then took him to a restaurant and then to his dorm. Even though he was at the location of the party from 12:10 to 12:19, He made numerous cell phone calls during that time.

    That is the timeframe according to the accuser. At first glance it would appear that this young man has an airtight alibi. However, it is not uncommon for accusers to recall the “correct” time later on. Perhaps she got the timeframe wrong. It is possible, although it would appear rather convenient to a jury if the timeframe suddenly changed to allow this young man to be present alleged assault.

    Fact: Finnerty claims he was not at the party, which is supported by the fact that he is not in any of the photos of the players taken at the party.

    Absence of evidence does not translate into absence of presence. He could have been at the party and simply managed not to get photographed. It was a small house with a lot of people inside, so it is possible and plausible that he was missed.

    Fact: David Evans did not have any marks on him when he was examined, so the appearance of his DNA on one of her fake fingernails is probably not from a scratch…

    Actually, I cannot really argue with this point. He does live there, so any DNA evidence gathered is essentially inconsequential.

    Fact: The Mary Doe identified Seligman and Finnerty with 100% certainty, though both men have solid evidence showing they could not have done it.

    As I stated before, perhaps she had the timeframe wrong. Also, Finnerty’s lawyer has not released anything concerning his client’s alibi, so we can only take his word for it.

    Fact: Photos of the dancer prior to 12:10 show she was already bruised, so she had to have arrived at the party with the bruises.

    True, however, that does not mean she was not assaulted. She could have been previously bruised and then assaulted at the party. Of course, if the bruises are consistent with what the rape examiner saw, that would be problematic for the state.

    I cannot say much about your speculation because it is just that—speculation. Any number of things could have happened, but we have no means of knowing the truth. Certainly the accuser’s credibility is a major issue given the inconsistencies with her statements and the evidence that has been presented. It is possible that the state has some sort of ace up its sleeve, but I highly doubt that. At the end of the day, this will probably boil down to he said/she said, and at the moment the players have enough evidence to raise a phenomenal amount of reasonable doubt. That said, it is still possible that the accuser was raped by the players. Fairly unlikely (as it would require a massive conspiracy between 47 players, the other party goers and their lawyers), but possible.

    Comment by toysoldier — May 21, 2006 @ 12:09 pm | Reply

  25. Ampersand:

    You didn’t answer my question about what books by MacKinnon you’ve read…

    I don’t recall you asking that question, and can’t find it in the comments above. Nevertheless, I’ll answer it: None. Nor have I read any books about her, whether critical or supportive.

    Although my nutshelling of her views was an honest attempt on my part, it also cut out tons of nuance and detail from MacKinnon’s argument; it is not a substitute for having read the original arguments in their full context.

    Lies from Professing Feminism about what MacKinnon says carry no persuasive weight with me. If you want to argue against MacKinnon, do it by quoting MacKinnon, not by quoting anti-feminist distortions.

    I’m not arguing against MacKinnon. I just remarked that her views as you representeded them weren’t very different from her views as Professing Feminism represented them. The word “So”, which began my remark clearly linked it to your representation. Similarly in post 20 I explicitly compared “your rendition of the idea” to the quote.

    You haven’t answered my question: “what is the huge distinction [between your rendition and the quoted sentence]?”, “huge distinction” being your words. If you concede that there isn’t one, then it seems rather unfair to characterise one version as “honest” and the other as “lies” and “distortion”.

    I call penetrative sex which isn’t fully consensual “rape”. What do you call it?

    That depends. Are we conceiving as “rape” as a strict either/or state, or as degrees along a continuum?

    I consider it to be binary, but with shades of grey.

    And what does it mean to say something is fully consensual?

    It’s consensual if

    both (or all) parties have expressed their willingness to engage in the activity actually engaged in, and
    no party has done so because they fear that if they don’t, another person will do something detrimental to the party’s interests which the other person either does not have the right to do or does not have the right to base their decision to do so upon the party’s participation in the activity.

    I’m not entirely satisfied with that, but it will do for now. That definition is binary with grey areas which lead directly to grey areas in rape.

    For example, suppose that a wife doesn’t feel free to say “no” to her husband because of well-founded fear he’ll force her if she doesn’t go along. I’d call that rape.

    Agreed, if she consents for that reason. The husband has no right to force her.

    But what if she has sex because she’s afraid that he’ll divorce her if she says “no,” and she is intimidated by the prospect of earning a living or afraid of losing her kids? I wouldn’t say that she’s acting from a position of free, unconstrained agency, but is it rape?

    No it isn’t. He has the right to divorce her on grounds of sex-denial. To call it rape is to deny him that right.

    None of us have free unconstrained agency in this or any other possible world. If that were to be the criterion then all heterosexual sex would be rape. All homosexual sex would be rape. In a Patriarchal or in a non-Patriarchal society as feminists view them, all sex would be rape, and everyone who engages in it, would be both rapist and rapee.

    What if a lifetime of societal training has taught her to give in politely, and that she has a duty to allow her husband to have sex with her no matter how unpleasant she finds it?

    Still not rape.

    In law, rape is an either-or question. But in academic discussions of consent, agency and social power, things aren’t that simple. There are degrees of consent and nonconsent. And unless you’re willing to acknowledge that complexity, I don’t think it’s possible to have an intelligent discussion of MacKinnon’s ideas in this area.

    The only thing I’ve said about Mackinnon’s ideas (as distinct from what I said about your rendition of her ideas) is that She and Dworkin “have expressed some remarkable negative and prejudicial views about men and about consensual sex”. Take for example this quote:

    Politically, I call it rape whenever a woman has sex and feels violated. You might think that’s too broad. I’m not talking about sending all of you men to jail for that. I’m talking about attempting to change the nature of the relations between women and men by having women ask ourselves, “Did I feel violated?”

    I concede that I have not read the original source, but to my knowledge this is a complete and accurate quotation. I consider it to be remarkable, prejudicial, and negative.

    All this is rather a digression from my original point, which is that feminists have influence where antifeminists don’t.

    That said, it hardly matters to a defence lawyer if you piss off feminist jurors. If their view is that “women don’t lie about rape”, they’re going to find your client guilty no matter what you do.

    But I don’t think that is the typical feminist view. I don’t think it’s true that many feminists nowadays – aside perhaps from some student feminists speaking in hyperbole – would say “women don’t lie about rape,” period. Rather, feminists typically argue that false accusations of rape are rare, not that they never happen.

    I didn’t say “never”. “Women don’t lie about rape” is virtual boilerplate on rape awareness sites as a quick Google will show. Yes, feminists argue that false accusations are not just rare, but *very* rare. We’ve already discussed how flimsy the basis is for that claim.

    If you were falsely accused of rape, would you honestly want to face a jury of feminists? I wouldn’t.

    In any case, you’ve in no way undermined my point, which is that defense attorneys don’t feel that they’ll lose out by using the “she’s a slut” defense; this, I believe, is because the sort of ideas expressed by LSB and others still have a lot of traction in our society.

    I haven’t been arguing against that. What I said was this:

    I also agree with you about the lack of substance, but for a different reason. This discussion lacks substance because those we criticise lack substance. They are a powerless marginalised group, empty vessels making a lot of noise. Dworkin and Mackinnon, by contrast were and are influential feminists who opinions have influenced public policy.

    The claim is that they have no influence on public policy, not that their ideas have no traction on society at large. Feminists have both influence on government and traction upon society.

    I realize that doesn’t address your point about government actors expressing anti-feminist ideas.

    Here’s what you said:

    But the ideas he advocates do have a hell of a lot of currency and influence. The ideas he advocates are the ideas which drive one of the most powerful part of the right-wing coalition that is ruling all three branches of our government. He has, in fact, far more power than I do in a winner-takes-all representative democracy, because he has some representatives who have actual power to affect policy.

    I don’t see how to construe that other than a claim that the particular ideas under discussion – that rape complainants are lying bitches, etc. – have influence on public policy.

    Are you talking about the narrow field of rape shield laws, or more generally? In either case, I’ll answer later – right now I’m out of time.

    I’m talking about the “women don’t lie about rape” vs. “she’s a lying bitch” agendas. I think it’s true more generally, but obviously a wider claim would be harder to defend.

    Comment by Daran — May 22, 2006 @ 4:53 am | Reply

  26. The real question would be, how can a DA allow a drug abusing criminal stripper ruin the lives of innocent boys just so she can get out of being arrested again and so he can get elected.

    Comment by name — November 6, 2006 @ 11:50 am | Reply

  27. If I were admin on CD, I’d zap, or at least edit, the above post by “name”, just as I’d zap a similar post which imputed wrongdoing to the defendants in this case. Both sides are entitled to be presumed innocent and it is possible to respect this, while expressing one’s ideas.

    I don’t want to see CD be a vehicle for slander.

    I have edit privileges, but I think I’d be going beyond my authority if I imposed my view unilaterally. What do the others think?

    Comment by Daran — November 6, 2006 @ 6:18 pm | Reply

  28. […] May 15: I think that if you’re a feminist taking a stance about those who treat rape complainants automatically as liars, that creates a moral obligation to be concerned also about those who treat the accused as automatically guilty whether on your own blog, or elsewhere. Otherwise, you’re just a partisan hack. […]

    Pingback by Feminist Critics — April 16, 2007 @ 8:19 pm | Reply


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