Some found it surprising that one of Arnold Schwarzenegger's most outspoken defenders against charges of groping and harassing women was Susan Estrich, the feminist law professor, who has, by her own account, "spent much of my professional life fighting to reform the law regarding rape and protect women against sexual harassment."

The week before the election she attacked the Los Angles Times for running an exposé about the charges. She complained that the paper had cited outdated accusations, which is a little odd when she herself has argued so passionately against the need for "fresh complaints," saying it often takes women a long time to conquer their fears and report a sexual crime; she also took the newspaper to task for seeking out women who hadn't come forward, when she herself has written extensively on how hard it is to come forward in cases of sexual assault. It may or may not be relevant to all this that she was one of the Democrats later named to Schwarzenegger's transition team.

One could ask how Estrich went from condemning Clarence Thomas' whispered vulgarities to defending Arnold Schwarzenegger's whispered vulgarities in a single decade. Is Estrich a hypocrite, a political opportunist? Or have her views really changed? And if so, what does that tell us about her and the kind of feminism she practices?

The biases I bring to the teaching of rape sit at the surface, the hard edges of survival. It is not just that I think rape is important; I also think about it from a certain perspective. You survive rape, but you never leave it behind.

That's no excuse to stack the deck, and I don't think I do. I do my politics, albeit with limited success, outside the classroom, not in it. Besides, I have too much respect for the intelligence of my students to think that a day with me, or even a semester, will really alter their fundamental views. Sometimes students change their minds, but they do that on their own. I just try to make them think.

If I err, it is in the direction of making it harder to accept the simplistic solutions some feminists have put on the table. I don't believe all heterosexual sex is rape. n10 I don't believe mens rea should be irrelevant. n11 What I have been fighting for, over these years, is not to give rape special treatment because it happened to me and to so many others, but rather to stop treating it specially; to get rid of both the rules and the prejudices that have narrowed the scope of the crime far more than the words of the statutes, and have uniquely increased the burdens and obstacles to prosecution. n12
...
Many of the traditional rules of rape liability were premised on the notion that women lie; Wigmore went so far as to view rape complainants as fundamentally deranged. n27 I don't buy that for a moment nor, I expect, do most of my students. Yet even if only one of a hundred men, or one of a thousand, is falsely accused, the question is still how we can protect that man's right to disprove his guilt. Assume for a moment, I tell my students, that it was you, or your brother, or your boyfriend or your son, who was accused of rape by a casual date with a history of psychiatric problems, or by a woman he met in a bar who had a history of one-night stands. Would you exclude that evidence? What else can the man do to avoid a felony conviction and a ruined life? Where do you draw the line? But if you don't exclude the evidence, will some women as a result become unrapable, at least as a matter of law? That is, will women [*519] who have histories of mental instability or of "promiscuity" ever be able to convince juries who know those histories that they really were raped? n28

She argued vehemently against using the victim's mental history or sexual past in court, but now she writes, "Imagine if it were your husband or brother. … Would you want to know if the woman making the accusation had been hospitalized for mental illness? Is there anything you wouldn't want to know about her?" She nakedly states the political motivations behind some of her shifts of position, explaining, "[T]he core of the dispute is not about what's welcome and what's unwelcome in terms of sexual harassment, but whose ox is being gored." Estrich has the grace to be honest about her reversals and the ambiguities they raise.

In short, I am arguing that "consent" should be defined so that "no means no." And the "force" or "coercion" that negates consent ought be defined to include extortionate threats and deceptions of material fact. As for mens rea, unreasonableness as to consent, understood to mean ignoring [*1183] a woman's words, should be sufficient for liability: Reasonable men should be held to know that no means no, and unreasonable mistakes, no matter how honestly claimed, should not exculpate. Thus, the threshold of liability -- whether phrased in terms of "consent," "force" or "coercion," or some combination of the three, should be understood to include at least those non-traditional rapes where the woman says no or submits only in response to lies or threats which would be prohibited were money sought instead. n335 The crime I have described would be a lesser offense than the aggravated rape in which life is threatened or bodily injury inflicted, but it is, in my judgment, "rape."...
Conduct is labeled as criminal "to announce to society that these actions are not to be done and to secure that fewer of them are done." n336 As a matter of principle, we should be ready to announce to society our condemnation of coerced and nonconsensual sex and to secure that we have less of it. The message of the substantive law to men, and to women, should be made clear.

That does not mean that this crime will, or should, be easy to prove. The constitutional requirement of proof beyond a reasonable doubt may [*1184] well be difficult to meet in case where guilt turns on whose account is credited as to what was said. If the jury is in doubt, it should acquit. If the judge is uncertain, he should dismiss.

The message of the substantive law must be distinguished from the constitutional standards of proof. In this as in every criminal case, a jury must be told to acquit if it is in doubt. The requirement of proof beyond a reasonable doubt rests on the premise that it is better that ten guilty should go free than that one innocent man should be punished. But if we should acquit ten, let us be clear that the we are acquitting them not because they have an entitlement to ignore a woman's words, not because what they allegedly did was right or macho or manly, but because we live in a system that errs on the side of freeing the guilty.