When an acquitted William Kennedy Smith emerged from the Florida courtroom last December declaring his faith in the system, a viewer could only query, “Why?” There stood a young man who was indicted for rape and forced to spend over one million dollars defending himself on the basis of the word of one person, the word being uncorroborated by either physical or direct evidence and in fact contradicted by both. An ordinary investigation of these accusations should have resulted in findings that the trial disclosed. Not only was there reasonable doubt that Smith committed a crime, there was not even probable cause that a crime had been committed.

At first, disappointed feminists interviewed after the trial blamed the reasonable doubt standard as the barrier to a criminal conviction. Then omitted evidence of Smith’s earlier sexual activity became the scapegoat. But when ABC newsman Morton Dean asked a correspondent, “Do you think William Smith will file civil charges against the woman for making false accusations?” we knew the game was over.

Of special interest were the grave reactions to the verdict by counselors in rape crisis centers. Some network correspondents intoned of “dark days” for women and “rape victims” in particular as a result of the jury’s failure to believe the accuser. None of them mentioned constitutional rights of the accused, the rules of evidence, or the state’s burden of proof Incredibly, even the prosecutor in her closing arguments indicated to the jury that Smith’s attempt to discredit his accuser was somehow dirty pool. Clearly, politics and gender have destroyed the integrity of our judicial system in cases involving charges of rape.

Last year was the bicentennial of the Sixth Amendment, which identifies rights of criminal defendants. The Sixth Amendment entitles a defendant, among other things, “to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor.” The Fourteenth Amendment, which came along in 1868, guarantees that any person, including a criminal defendant, shall not be “deprived of life, liberty, or property, without due process of law.” A criminal defendant, in short, gets to defend himself.

Over the past several decades, the dominant liberal elites have lectured us ad nauseam about the rights of criminal defendants. An October 1991 article in the Indianapolis Star, ominously entitled “Some fear court will change rights of women, minorities,” reported that in the 1990-91 term, the Supreme Court “killed or damaged nine legal precedents [and] eight of those rulings were victims of the court’s continuing trend of reducing the rights of criminal defendants while expanding the power of police and prosecutors.” And so we are relentlessly lectured about the rights of the accused: how important they are in protecting the innocent as well as the culpable, how ’tis better that guilty men go free than that one innocent man be imprisoned unjustly, and how in any event crime is caused by socioeconomic factors for which society bears primary blame. Crime is the price we must pay for creating an unjust society.

Then the liberal elites discovered rape, which led inexorably to rapists, which led in turn to arrests in ghetto neighborhoods and trailer courts, which automatically invoked all sorts of real and imagined presumptions as to the individual’s innocence—which then headed down a collision course with modern feminism. Suddenly, feminists developed both an appetite for law and order and an increased penchant for hypocrisy. Here is the problem. If the power of the state over the individual sends chills down your spine, if you explain the causes of crime in terms of sociology rather than free will, and if you find crime not only an inevitable product of an unjust society but an understandable and even justified response, as a sensitive and sensitized individual, how are you to approach the sorry fact of victimized, violated women?

The tension between competing sensitivities in our liberal elites has resulted in contorted reasoning, corrupted language, and violation of principle on the subject of rape. Their challenge, of course, is to switch their sympathies from the quixotic struggle of the accused to that of the powerhouse state and all its agencies—the police, the prosecutor (the accusing witness now known as the prosecutrix), the attorney general, and ultimately the governor—without seeming to abandon their high-minded allegiance to the railroaded underdog.

Faced with all sorts of uncomfortable contradictions about their view of rape and rapists, feminists and their uneasy comrades began by establishing a hierarchy of victimization, making sure to place women at the very bottom, lower than any group whose unfortunate characteristics might be compatible with being male. Consequently, in any contest about who is most aggrieved, women must appear to be the sorriest of all specimens. Feminists effected this plan by in part dismantling and redesigning the definition of rape so as to universalize this violation of the female. A member of the Women’s Studies department at Mount Holyoke, for example, has instructed her students that rape is “any unwanted sexual contact.” A November 1991 Teen magazine author obfuscates, but tries to leave the impression that rape is considerably less invasive than it is. As she writes in an article titled “Acquaintance Rape,” “if someone you know does something sexually to you against your will, then you have been violated.” But Susan Brownmiller’s definition, as put forth in her 1975 book Against Our Will, still seems the most accurate: “If a woman chooses not to have intercourse with a specific man and the man chooses to proceed against her will, that is a criminal act of rape.”

The payoffs for promoters of a loose definition of rape are threefold. First, they can use the redefinition to exaggerate the number of rape victims so as to include nearly every female; virtually every heterosexual male, not just the poor and minority convicts who end up in prison, might therefore be considered a rapist. Second, they can preempt any queries as to the accuser’s credibility by hurling epithets such as “sexist” and “insensitive” at those who want a closer look at her story. Those who fail to rush to condemn the accused therefore play into feminist hands. Finally, because their promiscuous accusations have so diluted the impact of the word “rape,” feminists can indignantly complain that the male power structure does not take “rape victims” seriously.

The legal definition of rape varies slightly from state to state, but at a minimum the law requires the state to prove beyond a reasonable doubt that the accused knowingly or intentionally had sexual intercourse with a member of the opposite sex when that person was compelled by force or was deemed incapable of giving consent to such an act. Proof of the elements cannot be fudged. In other words, holding a girlfriend’s hand against her will is not rape. Seduction, however irresponsibly engaged in, is not rape. Feminist lobbying, however, has had an impact. In Indiana, as well as in some other states, the law now allows prosecution of a husband for the rape of his wife, though a charge of assault more accurately describes the act. Some state legislatures have taken this idea so far that, as stated in Missouri law, even “a woman can be guilty of rape under this provision.”

It seems reasonable enough to require some sort of evidence that all of the elements of this violent crime have been committed before sentencing a person to prison. Yet the modern feminist responds to this observation with two retorts: one, that rape is whatever I say it is, and two, that an accusation should be tantamount to a conviction. Consequently, most legislatures, looking for that rare opportunity to appeal to both their law-and-order and feminist constituencies, have rigged the rules of evidence so that those accused of rape cannot present to a jury evidence in their defense. The “rape shield statutes” prohibit the defense from submitting relevant evidence of the prosecutrix’s past sexual conduct and are particularly dangerous because a conviction for rape can rest on the testimony of the accuser without any corroborating physical evidence. Designed initially to avoid planting the notion in the juror’s mind that a woman with an active sexual history is either more likely to lie under oath or to give consent to sexual activity than a person without such a history, trial courts now routinely deny defendants the right to rebut the state’s case. Evidence showing their accuser’s bias, and in some states even evidence of past consensual sex between the accuser and accused, is often prohibited.

Courts justify such outrages by invoking a “societal interest” in seeing that victims feel protected enough by the judicial system to report sex crimes. As one federal judge pontificated in 1991, “The right of a petitioner to present relevant and competent evidence is not absolute and may bow to accommodate other interests in the criminal trial process.” Other than determining guilt or innocence based on relevant and competent evidence? Furthermore, even the exceptional bit of admissible evidence that will reveal the prosecutrix’s past sexual conduct must overcome all sorts of procedural hurdles of advance notice and special hearings in order to get before a jury.

Arguing that rape is grossly underreported, the supposedly antiestablishment feminists have used their leverage with the government to bolster the power of the state over the criminal defendant. But some evidence suggests that rape may be an overreported crime. Ask Gary Dotson, who served 12 years in prison (four of them after the prosecutrix recanted) for a rape he did not commit, if women fear alerting authorities to this crime. The Marion County (Indianapolis) Justice Agency reports that only slightly more than half of Class A (using a deadly weapon or deadly force) rape cases resulted in conviction in 1990, and only 28 of 82 Class B, frequently acquaintance rapes, resulted in conviction during the same period, with 31 of them resulting in acquittal or dismissal. Yet, a book aimed at teenagers entitled Date Rape, by Frances Shuker-Haines, advises, “Your job is to believe your friend [when she says she has been raped]. If she feels she was raped, she was raped. Don’t question it.”

While a source of satisfaction to feminists, the rape shield statutes apply in criminal trials only. For example, newspapers and attorneys bringing civil defamation suits can ignore these statutes in their quest for relevant and competent evidence pertaining to the parties’ behavior. Three years ago, Ms. reported that males accused of rape were filing suits for defamation of character, intentional infliction of emotional distress, and malicious prosecution against their accusers. The woman’s sexual history will be fair game in such suits.

But the First Amendment is the real source of feminist distress in rape cases. Feminists want the accuser’s identity suppressed by the media for the reasons the rest of us want it published: her identity is relevant to assessing the integrity of her charges and her moral character, otherwise known as her credibility. Commentators from law-and-order prosecutors to left-wing writers have beseeched the media to lay off accusers, explaining, as did the U.S. Attorney for the Southern District of Indiana, “The ultimate issue of guilt or innocence is one for a jury, which has the opportunity to hear all relevant evidence in the case.” But, of course, all relevant evidence is precisely what the jury will not hear. Dishonest and incompetent though they are, the media now offer the only avenue the public has to learn the full truth surrounding rape charges. Even the ACLU opposes anonymity for accusers.

At last we come to the presumption of innocence that criminal defendants supposedly enjoy, and again liberals are of two minds on this subject. On the one hand are the feminists, feisty with their newly minted definitions and sensitivities, accosting anyone who withholds judgment on the validity of the charges until all the evidence is in. On the other hand are the few ultra civil-libertarian types who insist that society must declare a criminal defendant innocent of all charges until a verdict of guilty is read. Wrote one very liberal Indianapolis Star columnist on the feminist reaction to Mike Tyson’s rape indictment, “Those who would call someone a criminal because the state says so are swinging a rope.” Actually, the presumption of innocence is nothing more (but nothing less) than an evidentiary presumption at trial. An accusation cannot act as a conviction, but it would not have been unconstitutional, for example, for the federal boxing commission to hold its own hearing of the evidence in the Mike Tyson case. If the evidence had seemed convincing, Tyson’s title fight could have been canceled without upsetting the presumption of innocence to which he is entitled as his criminal trial begins.

The trends in our law and culture with regard to rape remain inconsistent and contradictory, but two things are clear. As the definition of rape becomes looser, convictions become harder to obtain, and as society becomes freer in the sexual activity it will tolerate, the state becomes more protective of what sexual behavior it will allow. Caught in the middle of these trends and societal interests are the accused rapist and the accuser. Fair trial, anyone?