Make Sex Crimes Criminal Again

By David French

Wednesday, September 19, 2018

Sadly, it’s too late for generations of American women. We blew up the culture, replaced it with a form of sexual anarchy, and are now trying to cobble together a zombified version of the old mores, a skeletal version of the traditional morality that our nation’s elites used to scorn so heartily. Looking back, we can hardly imagine the sheer foolishness of our cultural endeavors. Looking at the present, we can’t easily comprehend the scale of the mess we’ve made.

Looking forward? Perhaps there’s a better way.

But first, let’s discuss a bit of history. For centuries — for millennia — the crime of rape has rightly been defined as one of the worst violations of criminal law. The penalty for this crime, running across cultures and religions, has often been death. Indeed, the death penalty for rape was a hallmark of early-American criminal-justice systems. In short, while nations and regions may have long devalued women and violated the most basic commitments to equality, they have at least understood the basic truth that rape is a heinous, vicious crime.

Crime. Let’s dwell on that word for a minute. In the present era of alleged moral enlightenment, a terrible thing has happened. We stripped away moral prohibitions against extramarital sex, celebrated youthful experimentation, combined it with similar celebrations of drug and alcohol use — even at early ages — and then have been shocked — no, stunned — at the sheer amount of groping, grabbing, coercion, and assault.

The result has been the heartbreak we see all around us. Women are emerging from their teen years and early 20s scarred, and they’re moving into workplaces that sometimes feature the same culture they found on campus. There, they find still more grabbing, groping, coercion, and assault.

But here’s the strange thing. Even as the culture began to wake up to the sheer scale of the problem, important institutions responded by essentially decriminalizing crime. We took some of the worst crimes in the criminal-justice system — not just rape but also sexual assault — and urged women to avoid the law entirely. From campus to the workplace to the military, institutions constructed parallel tracks of “adjudication” of terrible allegations — imposing consequences without due process while also contributing to a culture of impunity for the worst predators.

Whether you’re a college student, a young accountant, or a corporal in the Marine Corps, turning to law enforcement has often become the last resort in the process of addressing sexual assault. You can now make confidential reports, start confidential processes, and impose confidential punishments that don’t look much like justice at all.

Are summary proceedings really the best way to adjudicate the worst violations of bodily integrity?

If a person is a true sexual predator, does expelling him from the state university and sending him to community college protect the public or impose any recognizable form of justice?

At the same time, by lowering the barrier to reporting, lowering the penalty for crime, and lowering the burdens of proof, we’ve created kangaroo courts that define misconduct too broadly and punish it too easily.

Even worse, the very act of setting up these confidential processes and creating these fake courts is a tacit admission on the part of authorities that there is something somehow unfair about legal prosecutions amid the party culture they helped create. I mean, can’t we just take care of this quietly and get back to the four-year (or five-year, or six-year) party? These young people are liberating themselves. Of course there’s collateral damage.

If someone steals from you, beats you, or invades your home, you don’t start a “confidential process.” You call 911. If you steal from someone, if you attack him, if you invade his home, your fear isn’t a sit-down and a confidential mediation in a dean’s office. Your fear is a prison term. A true predator isn’t terrified of Human Resources. He moves on to his next job and his next victims.

I fully acknowledge that law enforcement presents an imperfect solution to a deep and profound problem. And past horror stories — such as Elizabeth Bruenig’s powerful account today of law enforcement’s timidity after a terrible, credible high-school rape reported a dozen years ago — remind us of the need for reform. A young woman reported an alleged rape immediately after the incident, her claims were supported with considerable physical evidence, yet prosecutors declined to go forward. And, for her trouble, she endured terrible abuse at school. It’s an undeniably harrowing story. So, no, there are no easy, complete answers to our current challenge.

But let’s think for a moment of a different kind of future — one where we relentlessly tell boys and girls that all that groping, grabbing, coercion, and assault aren’t just wrong, they’re criminal. And we tell them that when crime happens, the first thing you do is call 911. You can seek counseling. You can go to Human Resources. But when a boy pins you down at a party, covers your mouth, and grabs your clothes, he will at the very least find himself in front of an officer in blue.

In this different world, it’s less likely that — 36 years from now — we’ll be debating events first uncovered in therapy, decades after they allegedly happened. Instead, we’ll be looking at scanned copies of contemporaneous police reports and reading current witness statements. Mistaken identity will be less likely and so will be escape from justice.

Moreover, by creating a public record, it becomes possible to hold broken institutions publicly accountable. Bruenig’s story, while deeply troubling, also relates how failures of justice led to reform. But how can we know when justice fails if justice isn’t even tried?

There’s no “one free grope” any more than there’s “one free punch” or “one free theft.” Drill that into our kids’ brains. Teach it in school. It’s extraordinarily difficult to repair our moral law once it’s lost. But the criminal law is still there. It’s in the books. It’s time to make crime criminal again.