One of the criticisms of the Spanish Inquisition was that there was no presumption of innocence. To be brought before a tribunal on charges of blasphemy meant that your soul was already in trouble. New converts to the One True Faith were subject to a lengthy set of questions about religious observances and their knowledge of the saints. The oral exam in Catholic dogma, accompanied at times by a more physical type of pressure, was intended to answer the big question: Was the accused capable of being restored to the holy flock or was he too corrupted by Jewish or Protestant blood?
A similar question haunts the proceedings of sexual misconduct panels at colleges and universities. Is the accused young man capable of being restored to the community or is he too corrupted by rape culture?
Rape culture is the term developed by radical feminists in the late 1970’s to describe how societal forces created women to be sexually dominated and men to want to dominate them. According to this argument, made famous by Catherine MacKinnon, all heterosexual sex is rape. Women are corrupted by rape culture into thinking they want to participate in their own sexual subordination. Men are corrupted by rape culture into desiring non-consensual sex. Given the pervasiveness of rape culture, the accused, therefore, must be guilty as charged.
The Obama Administration’s directives to colleges and universities operate under the presumption of rape culture. According to a report issued in January of this year from the White House Council on Women and Girls, sexual assault happens on college campuses because “our culture still allows it to persist.” In a move seen as pressuring colleges to increase their efforts against on-campus sexual assaults, the White House late last month introduced guidelines on how to identify and prevent these crimes on campus. We have to change the culture by prosecuting more young men for rape.
In order to make it easier to find young men guilty of rape, the Office of Civil Rights at the Department of Education has changed the standard of evidence under Title IX from “clear and convincing” to “preponderance of the evidence.” Under that same rule change, a single instance of rape constitutes a “hostile environment.” Not only is the pressure to convict increasing, but the mechanisms of due process are being eroded. The question is no longer, “did he do it?” But how can we prove that he was not corrupted by rape culture?
Although we don’t often hear about the gentler side of the Inquisition, many of the cases that appeared before New World’s Holy Office ended in reconciliation. Conquistadores who blasphemed or married more than one woman or who mistreated their Indian peons were made to stand barefoot during mass or parade through the village in penitential clothing, even if their family had Sephardic blood. Inquisitors trained in natural law, such as the Dominicans and Jesuits, assumed that rituals of reconciliation would bring reason back to its guiding position, reducing any corruptive influence brought about by blood.
When it comes to prosecuting sexual assault, we have the assumption of guilt without the mechanisms for reconciliation. The standard defense that the sex was consensual is eliminated by the logic of rape culture. If societal forces make her desire to be dominated and make him desire to rape, then she can never truly consent to heterosexual sex. He can say it was consensual but if she says otherwise we must convict. Otherwise, we are allowing rape culture to persist.
“There may even be room for standing barefoot holding a candle at the back of the auditorium. But what isn’t working is the assumption of guilt because of rape culture.”
The problem is that due process operates under the assumption of autonomous individuals who can be held responsible for their individual actions, not for their bloodlines or culture. Due process says that each person accused must be judged by their individual actions, not by their gender. Due process says that each person must be presumed to be innocent regardless of their chromosomal configuration. Due process can’t address rape culture because it shouldn’t accept that influence.
Right now we have a political demand to deal with social forces using legal mechanisms with no capabilities to address the real harms. We have an inquisition, pretending to operate under liberal processes, without any understanding of reconciliation. In other words, we have the worst of both worlds.
If we truly believe we have a rape culture, we shouldn’t be using liberal techniques that operate on the level of the individual actor. Rather, we might want to consider some more ritualistic methods for addressing bad sexual encounters. Bystander interventions are one such method. There may even be room for standing barefoot holding a candle at the back of the auditorium. But what isn’t working is the assumption of guilt because of rape culture. These efforts corrupt our legal system, making it even less just than an inquisition.
Meg Mott is a professor of political theory at Marlboro College in Marlboro, Vermont.