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Duly Noted

Tuesday, Aug 21, 2012, 3:04 pm

Todd Akin Redefines “Legitimate Rape”

By Lindsay Beyerstein

As if to prove my point about the dog whistle of "legitimate rape," Rep. Todd Akin (R-MO) has offered a conflicting explanation for what he meant when he said that victims of "legitimate rape" can't get pregnant.

At first, he said that he misspoke and said "legitimate rape" when he meant "forcible rape."

Now, Akin has reversed himself and said in an interview that he added "legitimate" to differentiate truthful allegations from all those false rape allegations that women supposedly make.

I bet Akin doesn't even realize he changed his position. The two ideas "forcible rape is the only real rape" and "women habitually lie about rape" are two sides of the same unfair coin. If you can't trust women, then you demand physical evidence of resistance before you will concede that a rape occurred.

"Rape is an accusation easily to be made and hard to be proved, and harder still to be defended by the party accused, tho’ never so innocent," English Chief Justice Matthew Hale famously stated in the late 1600s, setting the tone for hundreds of years.

The overarching theme in the history of Western rape laws is the fear of male legislators and jurists that women would "cry rape" over consensual sex. They could imagine themselves as the accused, but never as the victim.

If you don't know whether you're going to be the accused or the accuser, you have an incentive to demand fair standards. You want to be able to press charges if someone robs you, but you also want a chance to clear your name if someone accuses you of theft. If you think of yourself only as the potential target of an accusation, you have a vested interest in making accusations harder to prosecute.

All criminal justice is about checks and balances between the rights of the accused and the accuser. A certain percentage of all criminal complaints are false accusations, and the system has to sort the wheat from the chaff. Usually, the standard rules of evidence, the presumption of innocence, and penalties for perjury are deemed enough to guard against false accusations.

Sure, someone could lose some money and say his roommate took it. But nobody thought that was any reason to build forcible confiscation into the legal definition of theft.

The presumption of innocence alone is enough to defuse many weak or questionable allegations. If it's just the accuser's word against the accused, with no supporting evidence, the accused will probably be acquitted, if the case even goes to trial.

I can't think of a crime other than rape where preempting the very possibility false accusations has played such a big role in the definition of the crime.

Well into the 20th century, a rapist typically couldn't be prosecuted unless the woman proved she delivered the uptmost physical resistance. It's not that legislators and judges thought it was okay for a man to force himself on a woman who merely said "no," they just thought it was too risky to allow women to press charges against men if coercion couldn't be independently verified.

Akin and the anti-choicers want to control women's bodies because they cling to the notion that women are inherently untrustworthy and in need of patriarchal supervision.

 

 

 

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times' City Room. She also blogs at The Hillman Blog (http://www.hillmanfoundation.org/hillmanblog), a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.

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