The Politics of Feminism and Women’s Law: A Response to Zerlina Maxwell’s Editorial “No Matter What Jackie Said, We Should Generally Believe Rape Claims”

Posted on December 9, 2014

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Implicit in the headline of this op-ed is that even “wrongly accused” men are “perps.”

The only complimentary thing this writer can find to say about attorney Zerlina Maxwell’s December 6 column in The Washington Post is—yeah, scratch that; it has no redeeming qualities.

The editorial is not only intellectually callow but morally vacuous. Even its research and computations are careless.

Ms. Maxwell’s piece concerns a story published last month in Rolling Stone Magazine about a purported gang rape at the University of Virginia. The story was swiftly lofted upon a current of hot air then failed to maintain elevation because of a number of holes.

By Ms. Maxwell’s pained logic, the story’s having nosedived is all the more reason why allegations of rape should be accepted wholesale.

Many people (not least U-Va. administrators) will be tempted to see this as a reminder that officials, reporters and the general public should hear both sides of the story and collect all the evidence before coming to a conclusion in rape cases. This is what we mean in America when we say someone is “innocent until proven guilty.” After all, look what happened to the Duke lacrosse players.

In important ways, this is wrong. We should believe, as a matter of default, what an accuser says.

Default means negligence, which Ms. Maxwell equates with propriety. According to feminist algebra, negligence = propriety is a balanced equation.

Note that Ms. Maxwell isn’t actually making an argument for policy reform. We already do, by default, believe what an accuser says, hence outraged and anguished accounts like the ones you’ll find here: “Stop False Allegations of Domestic Violence.”

Ms. Maxwell fails to appreciate that our crediting what a rape accuser says “as a matter of default” means the slope is greased all the way to the bottom. Accepting allegations of rape on faith means accepting on faith all allegations that relate to or imply violence.

And the grease flows sideways, also, not just top-down.

According to the same policy, women  too, are victimized by false allegations, false allegations made in criminal, civil, and family court (as well as to government agencies like Child Protective Services)—and the standard applied in non-criminal procedures is already much reduced from “innocent until proven guilty.” Women unjustly lose their good names, their livelihoods, their children, and their homes (and that’s just the abbreviated list). These are among the consequences of equating allegations with facts “as a matter of default.”

false-rape-letterMs. Maxwell concludes: “Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.”

She asserts that rape leaves a “lasting psychological wound” but that the fallout from being falsely accused of rape is minor and ephemeral. “The accused would have a rough period,” she allows. “He might be suspended from his job; friends might defriend him on Facebook.”

Haunting is not only that people like Ms. Maxwell can appeal to pathos to make their case or that they can make such an appeal despite demonstrating no faculty for empathy; haunting is that their appeals nevertheless succeed.

Ms. Maxwell says the “cost of disbelieving women…signals that women don’t matter and that they are disposable.” No, it signals that no one is any more disposable than anyone else.

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