The Washington Post Opinion page has launched a combined assault on women's rights with two savage pieces blaming women for rape. Conservative columnist George Will claims that being a rape victim is a "coveted status" on college campuses, while an "analytical" piece written a day later explains that if women get married they will escape getting raped, except when they don't.

There is a level at which this is so viscerally offensive as to defy description. Will and the Post have clearly bought into an ideology in which women are expected to be subordinated, exploited, and victimized and to accept their victimization with cheerful gratitude for the few privileges they are vouchsafed by the men in their lives. And if for a moment they protest, they are ungrateful bitches. It is bad enough how we treat women in this country, but pretending they are at fault is the ultimate insult added to injury.

For what it is worth, the law, however crude and slow its workings, has gradually been evolving away from this contempt for women.

Rapists Are the Ones Responsible for Rape

In Federal Rule of Evidence 412, the law recognizes that in cases ranging from sexual assault to sexual harassment, the defense is generally not allowed to turn the tables on the victim by attempting to impeach her with evidence about her sexual history. The law recognizes, even if George Will and the Washington Post do not, that the conduct of the (alleged) rapist or harasser is at issue, not the conduct of the victim. Upon reflection, this only makes sense. If someone robs me of my wallet, we don't ask why I was carrying a wallet or why I had money in it. We prosecute the person who took it.

The Law Prohibits Sexual Misconduct

Whether it is rape or harassment, the law has evolved in the direction of greater protection of people from sexual assault or sexual misconduct. In some ways, the landmark Supreme Court case of Meritor Savings Bank v. Vinson in 1986, in which the Court recognized that a hostile work environment is an actionable form of sex discrimination after Mechelle Vinson was raped 50 times in the bank vault, seems terribly recent and somewhat inadequate. (The Court defined the concept of a "hostile work environment" based on Ms. Vinson's horrific experience.) But the line of cases that has followed Vinson have at least provided some avenue for redress to women (and men) subjected to sexual harassment in the workplace. The idea, however, that a claim of sexual harassment conveys some kind of "coveted status" is ludicrous in light of the long line of cases arising from retaliation against people who bring claims. Despite legal protection, it takes a great deal of courage for a victim to come forward and challenge her assailant and her employer over such a private matter.

A Belief in Equal Protection

One of our core Constitutional principles is a belief that all persons are subject to equal protection of the laws. This belief largely expreses itself in statutory form in cases of sexual assault or sexual harassment. But in thinking about these problems, we should perhaps return to our core principles. Even if our constitutional tests vary in stringency, we don't say (today) that white people should have more protection than black people or that men should have more protection than women, and we may even get to the point where we acknowledge that straight people should have no more protection than gay people. Unfortunately, the Washington Post has a crabbed understanding of our right to be respected in our persons regardless of whether we are single or married, male or female, sexually active or sexually abstinent. And this crabbed, balkanized view of who we are as a people, islands isolated by privilege rather than a great continent bound together as a whole, is a sad vestige of how we once saw ourselves.


© Charles Williamson Day, Jr., 2016. All rights reserved.

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