In 1640 an ideological faction in England's House of Commons impeached the Earl of Strafford for treason. He was innocent. Evidence was lacking. Belief in his guilt was influenced by anti-Cavalier prejudice. After his successful trial defense, he was beheaded under an act of attainder. This is a legal statute declaring a person guilty without need for a trial. It is passed by legislative fiat, the way a tax is imposed. The king’s signature was extorted by mobs threatening his family. Such behavior might seem long gone. In fact it’s paralleled by today's self-professed "anti-rape activists." Accusations of rape are often made without sufficient evidence for a conviction. So "activists" turn to convicting without evidence.
The modern way of doing this obviously isn't attainder. Its "sexual consent" standards whose stringency is almost impossible to observe. Known as "affirmative consent," they mandate that explicit approval be obtained for each "elevation" of sexual activity during each sexual encounter. Whether the partners have a long sexual history together is irrelevant. So is explicit approval of "lower level" sexual acts during a particular encounter. Even the combination of both factors is meaningless. Acts engaged in without explicit approval qualify as sexual assault. Period. In principle, this applies if both partners later affirm their act was consensual but had taken place without ascertaining consent.
How was this point reached?
Until the 1970s, rape was the one felony for which convictions legally required corroboration of complainants’ testimony. Coerced sex constituted "rape" only if "utmost resistance" had been made. Juries were appallingly lax. Judges believed half of acquittals should have been convictions. Early reform of sex crimes law combated these shortcomings. The "utmost resistance" standard was replaced by a "reasonable resistance" one recognizing resistance is sometimes futile. Corroborating evidence was given the same importance as in other felony charges.
But achieving justice was never the only goal. Implementing feminist ideology was another. Pre-reform laws were a flawed attempt to keep the burden of proof on prosecutors. Feminists considered them “indicative of a patriarchal system of power and laws." Men were “privileged oppressors,” women “oppressed.” Catherine MacKinnon, for example, claimed “men are systematically conditioned not even to notice what women want." She wasn’t just overlooking the real reasons for miscommunication between the sexes. She was transferring to "sexual politics" the presupposition that "privileged" groups are abusively indifferent to “non-privileged” ones. The “privileged” are also seen as dishonest, the “non-privileged” as trustworthy. Facts of specific incidents are interpreted through such assumptions. Slogans like "believe women" are based in them. Their implication is that most rape accusations must be true.
Translating that assumption into increased prosecutions was easy. Margaret Cunneen, a leading Australian prosecutor of sex crimes, explained the change. Early in her career “police had a filtering process.” It was their job to assess the credibility of accusations before bringing them to prosecutors. Now police "are no longer permitted to do that.” Once a complaint is filed "There’s not much more investigation that goes on, there’s just a zeal to get to the end and to convict the charged person.” Similar changes have taken place elsewhere. Canada has "an automatic charge policy on sexual assault complaints." This means "police have no discretion and must lay charges if the complainant describes a sexual assault."
The result should be predictable—falling conviction rates. Cunneen began prosecuting rape just after the early reforms. At that time, rape acquittals were rare. Today they are soaring. In New Zealand, for example, the percentage of defendants acquitted in rape cases (69%) almost equals the percentage convicted of other crimes (71%).
"Anti-rape activists" refuse to accept that low conviction rates result from lack of evidence. If the accused are necessarily guilty, then standards of evidence must be the problem. Hence “affirmative consent.” Even worse is elimination of the need to prove beyond a reasonable doubt that "affirmative consent" hadn't been given. Washington's state Supreme Court ruled that "The burden is on the defendant to prove by a preponderance of evidence that the sexual intercourse was consensual." This isn’t saying prosecutors can prove the truthfulness of particular individuals making uncorroborated accusations. It’s saying all uncorroborated accusations constitute proof unless proven false. It’s simple presumption of guilt.
This goes beyond attainder. In principle, attainder required evidence of guilt. In practice, king and parliament could violate that principle with impunity. But even then, acts of attainder could only convict individuals specifically named within them. Today legislatures and courts decree that all people accused of sexual assault are to be convicted whenever the evidence proves nothing either way. And they elevate such conviction without evidence into a legal principle.
Legal codes and instructions to jurors need to be clear about the limited value of uncorroborated complainant testimony. They must specify: 1) The law merely allows that uncorroborated testimony can sometimes constitute proof beyond a reasonable doubt. 2) The presumption is that uncorroborated testimony doesn’t constitute such proof. 3) The burden is on complainants to prove their own veracity. 4) Without corroboration, probable veracity does not overcome reasonable double. 5) For uncorroborated testimony to constitute proof, two points must be proven. The first is the complainant’s honest intentions. The second is the accuracy of the complainant’s memory. If either is lacking, a jury must acquit.
