Chris
Chris lives in Austin, TX, where he once shook Willie Nelson's hand.
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Related:
Rape Trauma & Memory (Slate)
I was going to link it in the comments of Freddie, but I haven’t had a chance to get back there & sort through it all, so this will do.
FYI I agree with the conclusion of the article, we need to train police investigators about this, now, with annual refreshers.Report
3% of American Rapists go to jail, if not less than that.
I maintain that there must be some better way.
Possibly it’s not the legal system at all, but… something needs to be done.
If one can’t rely on a single person’s memory, maybe we can rely on multiple people’s? Perhaps separate incidents, each one taken to trial, can amount to some sort of “preponderance of the evidence” (if not for criminal charges, then for civil?)
I’d be all in favor of setting up cameras, but I realize that most people truly believe that their most private moments are not likely to wind up on the internet…Report
Where does that 3% stat come from? Is it working back from the long-discredited 1-in-5 statistic?Report
ltl,
2007 study funded by the U.S. Department of Justice surveying 5,446 undergraduate women and 1,375 undergraduate men at two large public universities in the South and the Midwest found that just 2 percent of sexual assault victims incapacitated by drugs or alcohol and only 13 percent of “physically forced” victims reported the crimes to law enforcement.
Enjoy. We arent even talking conviction rates, just reporting to law enforcement.Report
That Slate piece is a very good companion to this one.Report
Good summary Chris. People need to understand more about what memory is and isn’t. I’ve heard mental health pros say they believe memories can be completely “true”. Memories may good and pretty accurate in some cases, but that is the most they are even in the best of situations. Trauma is not the best of situations that is for sure. Side note: I had kid in my office today who swore his dad only tells him the “facts” about his mom, he never tries to influence him….ugghhhh.
That memory can be so spotty and imperfect is a real barrier to justice in rape cases. The advocate view of just believing what the victim says is only understandable within their specific role. They really push sense and professional boundaries when they don’t want to understand how memory works. Does that suck for victims that their memory might be so poor to make their testimony less reliable. Hell yeah, but it doesn’t make memories any better. Of course some people will remember better than others and some cases will be easier to remember but unfortunately that is where questioning, when done correctly, comes in.
People really don’t understand how easy it is to lead someone to create stories and memories. It is easy to encourage and reward someone for talking and “remembering” that false memories can be built. A good cop, questioning appropriately, can’t be to empathetic or she risks leading the witness.Report
greg,
yeah, and then you have police altering the witness’ testimony to make it more… “reliable” and less inconsistent. Which is also wrong.
Reconstructing an incident is the same thing as reconstructing a face from memories.
… but you also have the issue of the woman who was raped, but didn’t resist. didn’t say no. And her rapist walks free, nearly every time.Report
First, this is predictably excellent. More like this, please.
Second, I want to pick one nit:
this story becoming another rallying cry, along with the Duke lacrosse team, for those who prefer to believe that rape is not as serious a problem on college campuses and in the world at large as many women, and empirical research, say it is, and who prefer to assume that a substantial proportion of all rape accusations are false.
Though such people undoubtedly exist, I would caution you that this story will likely *also* be referred to by people like, well, me – people who DO believe rape is a serious problem, and do NOT assume a substantial proportion of accusations are false; but still argue against certain specific proposed changes to law or policy that we feel are unduly damaging to due process concepts, or pose the risk of resulting in a substantially-increased number of false accusations or false convictions; which, while fully-agreed to be rare when considered against the larger backdrop of un-charged or -convicted rape, are still potentially devastating to the accused and therefore highly undesirable.Report
First, thank you.
Second, I don’t mean to lump you together with those other folks. In fact, I don’t mean to lump anyone here with folks like that. I got what you were arguing in the previous thread, but I admit that cringe every time I hear “Duke lacrosse,” becuase I have seen it used as a cudgel so often.
I admit that my biases point me towards being overly uncautious when it comes to the accused in rape cases, as a sort of unconscious corrective to the tendency for rape victims to not be believed. I say this as someone who once had a woman quite seriously threaten to say that I raped her, in the midst of a breakup, so I know that false rape accusations are possible (she did not, thankfully, follow through, but she was more than unstable enough for me to take the threat quite seriously). But like I said, it’s an unconscious bias. The reason the conclusion thanks Tod is because I wouldn’t have included it, or even thought to, if he hadn’t provided feedback (for which, again, I think him; I know my writing is, uh, dense at times, if I’m being kind to myself).
However, when I think about it, I keep coming to the conclusion that the most fair solution is to approach the if and what questions separately from the who questions, because these are where the two most likely biased-induced error points lie, sometimes in conflict with each other but likely to produce terrible errors if care is not taken.Report
Virtually everything that gets put in to our legal system by way of “evidence” consists of testimony. Testimony consists of answers to questions by which lawyers, who intend to elicit a particular result from the process, ask witnesses who swear to truthfully recount their memories of particular events. Then, the lawyers and most of the time a judge asks twelve people to remember what people said about their memories, and then all of these people talk about what they remember being told what was remembered amongst themselves and come to a decision. We call this “deciding a case on its merits.” When it works as intended, the result is sometimes even given the noble label of “justice” (although usually only by the prevailing party).
Bear in mind that in a lot of cases, this ritualized recital of memories comes only after several preceding rounds of similar recital of memories — in a criminal case, the victim describing events to police (during investigations) and then prosecutors (during case preparation) and then to judges (during preliminary hearings); in a civil case, parties describing events to their lawyers, then answering questions in written form (often trying to describe minute facets of those memories in granular detail), then submitting to depositions, then talking with mediators, then talking with judges. All of that before a jury gets to listen to more talk.
All of that is assuming that the people involved don’t talk about these events socially with friends and family, which of course they’re going to, because by definition these are events important enough that someone wants the courts to get involved with them. That also assumes that the person is unwilling to actually lie in order to gain an advantage, which is not something that we can rely upon to be universally true. It also assumes that when people speak, they use terms and words that accurately communicate their memories to those who listen, which as we all know is decidedly often not the case.
If every time people talk about what they remember happening those memories change, then the idea that a legal system predicated upon evidence consisting of recounted memories is at odds with the idea that the legal system is also predicated upon the finding of the objective truth and application of principles to it.
For someone whose livelihood and vocation are within the legal system, this is deeply unsettling.Report
It is, in fact, deeply unsettling for many reasons.
It’s been a while since I’ve done so in writing, but my basic position is that the findings of cognitive science over the last 60 years are, in many ways, very disturbing, because they call into question many of our basic ideas about the way the world works in relation to us. It’s not just our memory, and our perception, but as anyone who’s read Lakoff can tell you, the way we think about every damn thing. What’s more, almost all of our thinking (cognitive psychologists frequently estimate around 95%, but that’s a number pulled out of their asses, and it could be even higher) is done unconsciously, and we’re completely unaware of it except to the extent that its results occasionally rise to the level of awareness.In a sense, we’re complete strangers to ourselves (there’s actually a book on the subject titled Strangers to Ourselves).Report
It’s not just the legal system, Burt, it’s everything. What we consider moral/ethical etc., etc., and depend upon to make sense of our universe, continually runs up against the biochemical facts that we don’t experience objective “reality”, we don’t remember objective “reality”, there is in all likelihood no such thing as conscious “choice” or “free will”, and we are mostly just passengers riding around in meat machines with layers of haphazard heuristic systems slapdashed together with baling wire over countless millennia.
Yet we must pretend otherwise.Report
The brain might be nothing more than an elaborate self-defense mechanism.Report
Nearly every lawyer should find this unsetteling. In the asylum process, the testimony of the applicant and the ability of the applicant to describe what happened to him or her and why he or she fears return to their home country is of great importance. There is usually not a lot of objective evidence because prosectuors tend to create a lot of paperwork or even if they did, don’t hand it over to their victims.Report
My own experience with trauma is that you don’t remember the whole cloth; you remember specific details. What you were wearing, a sound, a smell; some sensory detail.
When I was raped, I had this feeling of not being there; the cliche of ‘went someplace else,’ which I suspect is simply a shutting down of the mind for things to difficult to deal with. The details I remember are mostly the sensory details that kept pulling me back to the horror; and things that evoke those details can sometimes put me back in that moment. (This is true with the first time my pedophile assaulted me, too.)
I mostly don’t think about it. When I do, I’ll have a very bad, emotionally vulnerable day. I’m mostly strong and healthy, and I don’t require anyone’s pity.
But I get really, really angry when people are critical of victims not doing the right thing after; too. The best analogy I can think if is of a person who’s just received a severe concussion, you don’t expect them to be thinking clearly and logically. Yet we seem to expect this of rape victims. I struggle with the fact that victims often create mental scenarios that make it easier to deal with things (the letter I wrote; perhaps Jackie’s fabrication,) a way of patching the holes in their psyches as a result of their trauma. With war experiences, we see this behavior, we understand it; we treat it as a medical problem. With rape, it’s reason to disbelieve and put her on trial.
My guess would be that Jackie invented a date, and during the time she was supposed to be on it, was assaulted, and the whole concoction was to reconcile a lie and a truth. That brain shut-down process that happens during trauma creates opportunity for the subconscious to construct a reality of it’s own that might have very little to do with actual events.
Most of all, I remain offended at the notion of innocent until proven guilty; it does not work with rape; it may be justice (a legal process) for the alleged rapist, but it is not justice (fair and just treatment) for the victim.
This does not mean I think men shouldn’t have a right to defend themselves when accused; but how they defend themselves shouldn’t rest on destroying her character, either. I’ve talked with women who’ve been through a rape trial, and every one has said it was worse then the actual rape; most particularly, because it meant telling what happened over and over; not to mention having their private lives shredded in public. The first being a re-experiencing of the trauma over and over, the second, a whole new set of traumas.
Perhaps, justice, the legal proceeding, needs to incorporate justice — fair treatment — of the victim. I do know this: what ever happened to Jackie, there’s no justice to her in our discussion. She’s being victimized yet again. Over and over. I weep for her.Report
Most of all, I remain offended at the notion of innocent until proven guilty; it does not work with rape
This is the part I struggle with. It is a problem with rape, because so often guilt or innocence hinges on conflicting accounts of states of mind and verbal interactions. This makes the usual process highly problematic and biased against the accuser. However, I think the problems arise in large part because we take doubt about the accused’s guilt, in the case of rape, as doubt about the very existence of the rape in question. If we can separate those too, I think the system becomes much less rigged against the victim even if we assume that the accused is innocent until proven guilty.Report
Yeah, it is occasionally the case that one can have a rape without a rapist. (maybe moreso as the amount of alcohol or dope increases…). But there’s still rape.Report
However, I think the problems arise in large part because we take doubt about the accused’s guilt, in the case of rape, as doubt about the very existence of the rape in question.
@chris
P1. Jane’s sexual encounter was a rape
P2. If that encounter was a rape, Jane was the victim
P3. Jane’s sexual encounter was with John
Conclusion: John raped Jane
This seems like a valid argument. Since the accused often agrees with P2 and P3, the only way to resist the conclusion is by denying P1. So, I don’t see how we can separate the two unless circumstances put P2 and P3 into question. The rolling stones article in this case did that, but the kind of rape incidences we are interested in curtailing (i.e. date rape) do not permit us to question P3. P2 seems questionable only in very unusual circumstances since men tend to have a better alcohol tolerance than women. So, while they are logically separable, given the context, saying that Jane was raped in a given sexual encounter is to say that the person or people she had that encounter with raped her.Report
@murali I think the problem here is unclear consent; she didn’t think she gave it; he thought she did. In her mind, there was a rape, in his mind, there was consensual sex. That seems to me to be the whole point of affirmative consent laws; doing away with that muddy ‘she didn’t say no,’ gray area.
On the other thread, someone suggested varying degrees of rape; and drunken sex that suffers from this kind of confusion might be a very good reason for this.Report
@zic
I think the problem here is unclear consent; she didn’t think she gave it; he thought she did. In her mind, there was a rape, in his mind, there was consensual sex. That seems to me to be the whole point of affirmative consent laws; doing away with that muddy ‘she didn’t say no,’ gray area
Right, but that just feeds into P1. If she did in fact give clear consent, then it was not rape. If she did not give consent then it was. But the basic problem, that you cannot (at least in date-rape cases) deny that John raped Jane without also denying that Jane was raped, persists. Jane thinks she was raped because she believes that she did not consent to sex. John thinks Jane was not raped because he thinks that she did give consent. But all this amounts to is disputing whether P1 is true. It does not involve a case where all the premises are true but the conclusion false.Report
@murali
P2 seems questionable only in very unusual circumstances since men tend to have a better alcohol tolerance than women.
There are a few logical steps here that could be enumerated and examined, aren’t there?Report
@zic et al.
What would you say to the idea of different “degrees” of rape? I understand that the very notion of “real rape” has often been used in negative ways to harm the victims of rape, but I want to come at it from another angle.
It seems to me that the type of person who commits violent rape is very different than the type of person who commits non-violent rape (and by perhaps ‘non-violent’ is a poor term as rape is inherently violent, but I mean rape/sexual assault that does not involve violence beyond the unwanted sexual contact itself). If this is the case, it seems reasonable to treat them differently in the eyes of the law. And I think this true regardless of whether you see the primary purpose of the criminal justice system as rehabilitative, punitive, or protective.
And I say this as someone who, in his younger years, likely did engage in behaviors that could be described as rape or sexual assault today. I’ve relayed stories here before about drunken sexual escapades (none involving vaginal sex) between high schoolers of which I was a part. “Escapades” that could very easily fit the definition of rape or sexual assault. Leaving aside age, would anyone’s interests have been best served if I had been treated exactly the same as someone who raped a woman at knife point? I tend to think not.
The problem is that our legal system — as I understand it — does not make this distinction. And maybe this was a necessary step in order to see these acts which would not previously have been seen as rape to be seen as a form of rape. But given that we are still a society dominated by men — men who as @tod-kelly points out are likely to identify with the accused — we have created a system wherein the powers that be think, “Jesus christ, they’d lock me up for what I did when I was drunk in college! That’s ridiculous! Fuck all this rape nonsense!”
So what if we were to say that there are two (or maybe more) types of rape and that we are going to treat the perpetrators of them differently. If a rape accusation/conviction didn’t necessarily mean ending a man’s life as he knows it, perhaps we would be more willing to pursue them. I recognize there is something incongruous because the victim may have had her life irreparably changed and asking for what might seem like sympathy for her rapist seems wrong, I am not one to bend towards eye-for-an-eye style justice. If we could say, “We’re going to make sure the 19-year-old who took the drunk girl home that all but ensure he never does such a thing again but we’re not going to do it by locking him up for the next 60 years,” and, as such, are better able to pursue charges and convictions in these types of cases, isn’t that a net positive?
Sixteen-year-old Kazzy could have been put in jail and I never would have done what I did at that age again. But, thankfully, there were other means by which I was able to change my behavior and attitude. I did this without involvement of the criminal justice system but surely it can be an effective means of doing so for men not inclined to do it on their own.
Rape, in any form, is monstrous. But that doesn’t necessarily mean that all rapists are inherently and irredeemable monsters. If we can square that circle through providing different paths through the legal system for men accused of different forms of rape, I think we end up in a better place.
Thoughts? If I am dead wrong on this, by all means, tell me so.Report
Folks, there are degrees of sexual assault (rape).
E.g., Wisconsin’s:
Report
@michael-drew
Well, in any given date-rape scenario, it is more likely than not that the woman gets drunk faster (because of smaller body size) and ends up in a situation where she is unable to properly declare her lack of consent to sex. While it is possible that men can be date-raped by women, the probability is low. Perhaps if the guy is very small and the woman is very large.Report
@murali
It seems like you’re assuming they’ve drunk the same amount at the point when the sexual event takes place. It’s a low probability that he’s as drunk as incapacitated as her if that’s the case. But it’s not a low probability that that’s not the case.
“Date-rape” is probably a misleading term in this context, as, on a “civilized” kind of date with linen tablecloths and whatnot, yes, it’s likely that a man and a woman will have probably had approximately the same number of drinks. But the kinds of scenarios we’re covering with that term are more various than that. For example, a woman arrives at a party at a man’s apartment (or vice versa) at a point in time when the man has been drinking heavily and the woman has not (yet) or has had less than he has, whereupon they start to drink at approximately the same rate until she has drunk enough to become intoxicated and, ultimately, incapacitated. This is a typical kind of encounter that happens on American university campuses, and is the kind of scenario we’re trying to deal with. You’re using the term “date rape” for it not wrongly, but it’s possible that using that term has given you too narrow an idea of the kind of situations we could be considering in this discussion.
During a subsequent encounter they might plausibly be close to equally incapacitated, or he may be more incapacitate than her, even while she is indeed too incapacitated to clearly deny consent. Under some laws, even if she clearly gives consent it can still be illegal sexual contact as she is deemed literally unable to consent regardless of what her words or actions are. That’s what blackout drunk is. You’re not blacked out on the floor doing nothing, you’re blacked out doing things over which you have no control or memory.
In any case it’s not only in very unusual circumstances when only the woman is so drunk as to be decisionally incapacitated (though not therefore taking no physical actions of any kind, including possibly of a sexual nature).
Does this mean that it comes into doubt
whether, if there is a sexual encounter that is (sometimes by definition) a sexual assault (because one or more of the parties is incapacitated and legally if not physically unable to consent), who is the victim when multiple parties are incapacitated? In practice, usually not. But I’m not sure that is simply because men have higher alcohol tolerances. They frequently are as intoxicated/incapacitated in campus social settings in which sexual assaults occur as are the, because they drink more. We know who the victims of sexual assaults in those circumstances are largely because we’ve made a decision about that for other reasons.But, again, I’m mostly asking about your reasoning in the statement I quoted. I.e., you say that exactly because men tend to have a better alcohol tolerance than women, in any “date-rape” situation in which a rape occurs it will be questionable only in very unusual circumstances that the woman was the victim. I agree that in practice it is very unusual that that gets questioned. But it seems like there are missing steps, because there is always the possibility that the man drank much more, making his tolerance not determinative of who was (most?) incapacitated. Moreover, it doesn’t seem to me that it’s obvious why having a greater tolerance alone makes the question of who is the victim only very unusually questionable. those differing tolerances must be presumed to have some (highly correlative) effect on some relevant state that the parties are in at the time of the incident. I.e., men’s higher tolerance very likely means he is in State A at the relevant moment, while she in State B, where those states themselves or their relation determine who is the victim of a sexual assault if there is one.
So is State A “necessarily not incapacitated” while State B is “incapacitated”? Or is State A “incapacitated but less so than State B” while State B is “Incapacitated”? Or something else? And what is it about those states, or their relationship, that makes it clear who is the victim of a sexual assault and who is the perpetrator?Report
…And yes, we need to get our young-adult drinking culture under control in this country.Report
Thank you, @michael-drew .
My layman’s eyes started to glaze over and I lost the ability to actually discern a difference between the different degrees listed there, but I trust professionals can make sense of that all.Report
@kazzy
The spacing’s better at the link if that might help.Report
@michael-drew
Oh, it wasn’t the format. It was the text itself. I feel like I kept seeing very slight variations on the same phrasing that seemed like distinctions without a difference but, again, IANAL so I trust that those variations are meaningful and speak to the point I was attempting to make. Thanks again.Report
Murali,
there are definite situations where neither party is consenting. If one person, while asleep, fucks another person, also asleep — non-consensual sex (rape) happened, there are two victims.Report
Kazzy,
re: different sorts of rape, with different punishments.
Same argument as charter schools. Idea’s not bad, but I do not trust the reactionaries amongst us.
Start with “different sorts” of rape, and you wind up at the lower sorts being virtually unpunished, and unpunishable.
I do favor some sort of “alternative justice system” for those rapes that do not rise to criminally prosecutable. (If a guy deliberately makes it so that a woman can’t withhold consent, or doesn’t realize that sex is happening, so can’t withhold consent, these still ought to be pursued /somewhere/ that isn’t the court system — airing of grievances, reconciliation style).Report
zic, why doesn’t innocent beyond a reasonable doubt work for rape? The entire point of common law criminal justice, ideally, is that its better to let ten guilty people go free than jail one innocent person.
The feelings and needs of the victim are irrelevant whether the crime is arson, larceny, rape, or anything else. Thats supposed to be the case for all crimes. Its why the entire point is that the the accused must be proven guilty beyond a reasonable doubt rather than the accused having to prove his or her innocense. Making rape different from other crimes is only going to lead us to Kangaroo court.Report
The problem as I see it is that “innocent until proven guilty” starts with the accusation, unlike any other crime. The “Law & Order” folks (police and DA) assume guilty until shown otherwise; it;’s only when charges are filed that “innocent until proven guilty” applies.
But rape cases are different. The presumption from the get-go is often that the victim is wrong of the incident or the suspect. We really don’t do that for any other crime. This in spite of the fact that rape is an assault on one of the most important parts of our body.
==================================
Another way that rape is different is that there are no real degrees. If one person kills another, there are umpteen charges that can be filed, from murder to assault to reckless endangerment. There aren’t really degrees with rape — it’s eiter rape or sexual assault or nothing. That seems wrong to me.Report
Because part of being not-guilty with this particular crime is destroying the credibility of the person who is the alleged victim of the crime. Her past sexual history, drug and alcohol abuse, etc. all come into play. If she had sex with him (or someone else) the day before, that has nothing to do with rather or not he raped her; but that’s exactly how reasonable doubt is built. Because it’s he-said/she-said, his best defense is to destroy her credibility.
It rests upon the purity standards of the time when rape was a crime against her father, husband, or protector, and not her individual rights.Report
@zic I think what you are objecting to, correctly in general, is sleazy nasty defense tactics. Talking about the victims past behavior is about tarnishing her but that doesn’t mean it is wrong to consider the accused innocent until proven guilty. They are separate issues. That judges have allowed victims to be smeared is the problem, not that the accused have rights.Report
What you call sleazy defense tactics, others would call proper zealous advocacy. A lawyers supposed to do everything that is legal and professional to advance their client’s interests. This includes destroying the credibility of the other side to the jury.Report
@jeff-lipton
The idea of degrees for crimes (starting with murder) started in the late 1700s and early 1800s. Before then, there were only 6 felonies. There was also only one punishment for being found guilty of a felony and that was death. Second degree murder was a way of making sure less people received the death penalty and it spread to other crimes. The reason common law crimes are interestingly specific was because it was a way that judges could avoid giving out the death penalty. A good example of this is that common law burglary needed to happen at night and it had to be in the dwelling place of another so robbing a business during the night did not count nor did breaking in during the day time.
Now that burglary is punished with jail time, those distinctions are largely gone except for law school and the bar exam.Report
greginak,
“He deserved to get robbed” is not, AFAIK, an effect defense for a robber. Nor do murderers routinely describe how murder-worthy their victims are (although given SYG, I suppose “he looked like a thug and i was terrified so I gunned him down” is the murder equivalent of “she was wearing a short skirt”).
More specifically, it’s rather hard to imagine a defendant trying to bring up how often the victim had previously been robbed, or that the victim had been robbed by a friend just yesterday….
While a rape defense does not exactly use “She totally had it coming” as a defense, there’s a degree of attacking the victim that goes far beyond what occurs in other crimes. Attacking the credibility of testimony is one thing, but when it turns into a lengthy exploration of every sexual contact and the clothes the victim was wearing, that becomes a bit…weird.
And it starts not in the courtroom with the defense lawyer, but with the investigating police. If it was JUST defense lawyers, well — that’s one thing. But it’s been pretty well documented that police make a lot of initial judgements based on “What’s she wearing” and “Where was she” and “She doesn’t look that upset about it” to determine whether to bother investigating.
As noted — if I say my home is robbed, the police show up and listen to me list off what is missing. They don’t start asking if I’m sure I was robbed, I don’t seem as angry as I should be, was I sure I didn’t let the guy in and offer him my TV and now want it back…Report
@greginak @zic
Lee is right here. A lawyer is supposed to advocate for their client in the American system. If a client pleads not guilty to a crime, it is the job of a lawyer to convince a jury that the person is not guilty of a crime.
I am not sure that there should be an exception for shocking or notorious crimes because we think they are icky. Now we should support the victims of all crimes with compassion and respect and I believe free psychological counseling but liberal democracy demands a tough balance between the rights of the victims of crime and the rights of those accused of crime to have fair and impartial trial and to be represented by able and competent counsel.
If you can’t do both, liberty and democracy suffer.Report
@morat20 I know all that. Cops need to be properly trained how to question rape victims and that is also what SART teams are for. If a cop F’s up there job that is bad and should be corrected.That doesn’t really address the point i made. Some questions that victims may find painful are reasonable, like how much they had been drinking. That relates directly to their recall and the detail they may provide. You can bet that if i report i was mugged and i told the cop i’d just down 8 shots of tequila the cop might not trust my recall of the muggers that well. Plenty of other questions, like about dress, etc, are inappropriate.Report
Saul and Lee, yup lawyers should be zealous, i’m fine with that. The judges have some leeway about what to allow though. If the number of partners a rape victim has is allowed, well that is sleazy and shit smearing. If the judge is fine well that is on them. Do i blame a lawyer for pushing for everything they can do, no but i’m not going to avoid calling it sleazy either.
I understand their is a tough, well nigh impossible, balance to strike in these kind of cases. Lots of rape or dv or child abuse cases are impossible to prosecute due to that. I wish i had a good answer for how to do it better while still considering people innocent until proven guilty.Report
@greginak
I think you would win the Noble Peace Prize if you could figure that out…Report
Rape shield laws are a thing:
http://en.wikipedia.org/wiki/Rape_shield_law#In_the_United_States_of_AmericaReport
@leeesq “why doesn’t innocent beyond a reasonable doubt work for rape?”
I’ll chime in here.
Though I’m not sure that I would go as far as with zic that it “doesn’t work,”* it is indeed heartbreakingly problematic. And I think there are several reasons for this:
1. Assuming we are discussing adults, we are talking about an act — sexual relations — that are most often committed consensually. There isn’t a very good equivalent with other violent crimes. There is rarely a question as to whether or not someone was shot, or beaten up; there is but a question as to who did it. Rape throws a wrench into that system.
2. As a society we have a very fucked up view of sexual relations in general. This has lead to a very real, very damaging conclusion, historically speaking, that if we can only prove that a victim of rape can be proven to have had sex perviously outside of wedlock or made it known to companions that they were so unladylike as to have enjoyed sex that they are no longer worthy of protection under the law.
3. We seem unable as a society to hold two truths at one time when it comes to rape — and for that matter, arguably, almost anything that can potentially fall under the rubric of Boys vs. Girls.
4. Outside of violent rape, you can actually easily get in situations where you have a determined accuser and a determined accused where no one is in fact lying. If we are agreed that we are going to prosecute non-violent rape, this obviously creates enormous difficulties.
5. To some extent, I would argue (to great controversy, I am sure) those of us who have neither been raped nor accused of being a rapist tend to subconsciously try to slightly tilt the system towards something that should give us better protection under the law should the unthinkable happen. Most women, after all, can easily imagine being the victim; most men, likewise, can easily imagine being falsely accused; not that many of either are good enough at empathizing with the other. (Which is why, I suspect, that so much of vitriolic rape conversations seem to devolve toward a “sucks to be you” at best and a “you totally deserved what was coming to you” at worse for men or women who have been unjustly savaged by the system.
* Or, at least, as compared to any other system I can imagine — including either the terrible “boys will be boys” ones that came before, or the “the accuser is always right” proposals I sometimes hear as potential future options.Report
@saul-degraw for women (and for men who are rape victims, too) liberty suffers. Think of all the advice women receive about avoiding rape — how to dress, what to imbibe, where to go. That’s a huge infringement on liberty. Huge.
So do not start preaching about curtailing liberty; liberty is curtailed. Already. Women are speaking out about this to be safe, certainly, but also go gain liberty. Not all restrictions on liberty come in a jail cell.Report
Fantastic comment, Tod.Report
@tod-kelly – these were certainly some of the points I had in my never-posted piece. I agree that rape as a crime inherently has several features that our established legal/judicial system and process (and maybe even, as this post and the linked Slate one details, human nature and memory) are simply ill-equipped to deal very well with; as such, I am open to listening to people who say that one thing or another needs to be changed (for ex., enacting affirmative consent laws, or lowering standards of proof from “reasonable doubt” to “preponderance of evidence” in rape cases only, or whatever).
Though I have yet to hear an argument that has convinced me that we have correctly identified a prospective change that would help significantly without incurring what look to me to be very unpalatable possible tradeoffs or slippery slopes, I am not sticking my fingers in my ears and claiming that nothing’s broken either. I’m still listening.
Most women, after all, can easily imagine being the victim; most men, likewise, can easily imagine being falsely accused
Right now I am thinking of a woman and a man sitting across from each other.
She tells him, “Aren’t you lucky…you probably never have to worry about a life-ruining rape, and enduring an ensuing trial (in court and/or public opinion) and a lifetime of shame.”
And he responds, “Aren’t you lucky…you probably never have to worry about a life-ruining false accusation of rape, and enduring an ensuing trial (in court and/or public opinion) and a lifetime of shame.”
And they sit there, this vast unbridgeable gulf between them, feeling oh-so-very lucky together.Report
@tod-kelly, this might be true but I’m coming from this angle as a lawyer rather than a man. My instincts as a lawyer tells me that treating rape differently than other crimes is going to take us into a bad place fast when it comes to judicial process.Report
@leeesq we already treat rape-victims different than other crime victims; starting with what happens when a rape is reported and the victim first has interaction with the police. And it goes downhill from there. We know this; we’ve passed laws to try to stop some of the more egregious practices, but it still happens. There are thousands upon thousands of rape kits never processed; this is not only a problem for those victims, but a problem for people falsely convicted of those (and other) rapes; evidence in that back-log of kits has already cleared people, securing their release from prison for rapes committed by other people who are serial rapists.
A good friend of mine is a criminal defense attorney, and we had a lot of discussions about this whole concept. She agreed with you that an attorney’s job is to look out for the best interests of his or her client; but she also strongly believed that this was not always achieved by seeking a dismissal or not-guilty verdict, either, and felt a lot of attorneys erred in this way. Sometimes, someone is guilty, and their best interest is admitting that and accepting the best deal that they can get; she was pretty clear that she would not represent someone in trial who was obviously guilty and looking for a not-guilty verdict in a trial; but she’d go to bat for that person to get the best (lightest) plea bargain and sentence possible.
Getting a guilty client off simply because you can is as much a perversion of justice as poorly representing any client. At some level, it’s potentially morally reprehensible.Report
@leeesq “My instincts as a lawyer tells me that treating rape differently than other crimes is going to take us into a bad place fast when it comes to judicial process.”
You say that like we currently treat rape like we do other crimes.
I think this is a very incorrect assumption, and part of what zic is getting at.Report
@tod-kelly
I think part of @leeesq ‘s point is based on how the justice system works. Once someone is on trial, it’s about justice for the defendant; their innocence or guilt; it’s not about the victim. Because of that, the victim’s rights don’t receive enough consideration in establishing the defendant’s innocence or guilt; instead, they’re often sacrificed.
Justice has two meanings. One is the legal process, which is all about the accused person’s rights, particularly their right to confront their accuser. The other meaning of justice is social, it’s fairness, and that’s what’s sacrificed for rape victims in meting out justice for accused rapists.
Things are better than they were; the media is not supposed to divulge victims’ names, for instance. But the destruction of her character, her history, her dress, her imbibing are often used against her even though they have no real relation to the fact that s/he was forced to have sex.
I would be happy with the innocent until proven guilty standards of justice if the problems of police response and inappropriate testimony were seriously considered and applied by police responding to a victim and by judges in the courtroom. But the preponderance of cultural mores suggests that if she’s less than pure, it constitutes reasonable doubt; she get’s put on trial by the cops, and later, by the defense, and often, by the judge.Report
For clarity sake: who here, if anybody, is advocating that the standard of proof for criminal rape cases be lowered to “clear and convincing” or “preponderance of evidence” levels?Report
@will-truman I’m not.
Part of that is that is general slippery slope stuff, but a much bigger part of it is that I don’t actually believe the “beyond a rinsable doubt” has very much to do with why we have a hard time with rape cases.Report
@will-truman – sorry, should have been clearer. No one, here in these threads, is advocating that. But I have seen similar advocacy elsewhere, and I seem to recall visiting commenter “Mancheeze” advocating something along those lines in a past rape-related post.
As I said, I ultimately don’t agree with such positions, believing they would cause as many problems as they might solve. But it seems to me that the current system is suboptimally-serving roughly 50% of the population (yes, I know men can be and are raped, but you get my drift) when it comes to this *particular* crime, and while it’s possible that’s the best we can do, I’m not totally ready to give up yet. I *am* open to hearing suggestions, if there are better ones out there.Report
@will-truman for me, it’s a problem of how cases are tried; they victimize the rape victim again. If we could crack that nut and still provide the accused a fair trial, no, I would not change the standard of beyond reasonable doubt.
That said, when a crime is one person’s word against another person’s word, there will always be reasonable doubt, and we’ll never, ever have a rape conviction for date rape, or rape after a drink or two, either.Report
@zic, thats what I’m talking about. When a defendant is on trial for a criminal charge, the entire trial is about the defendant not the victim of defendant’s crime. Justice the legal process is related but still distinct from social justice. Many victim’s advocates are arguing from social justice but injecting this into process justice is going to wreck havoc on the system in bad ways.Report
zic,
*hugs*
“She’s gone to the other side
Givin’ us a yo heave ho
Things are gettin’ kind of gross
And I go a sleepy time”
Yeah, it’s rare to find artwork, life — anything, that even acknowledges what a rape can feel like. What it can be like for the victim, as — sometimes — the animal part of us says “stop struggling, just lie there, you can bite later.”Report
This is such a surreal thread. It is especially vexing when compared to the two torture threads. The defenders of torture say that terrorism is such a unique evil that normal apparatus of law enforcement and criminal justice are inadequate; therefore we have to enhance those techniques. And if you have a problem with that it’s probably because your soft on terror or you just don’t love America enough.
Do you guys not realize that you are using very similar arguments and the exact same logic that you are critiquing elsewhere?
2014 has been very interesting to me. I will always remember it as the year I learned that Emmett Till was a street harasser and Atticus Finch a sleazy defense attorney.Report
Do you remember the Kobe Bryant trial?
Tell me, was he innocent?
At trial, the judge allowed evidence of the accusers sexual activities in the three days around the incident; something CA rape shield laws allows. This, despite the fact that the sex involved was so forceful that her blood was on his clothing.
The court leaked this evidence to the press; not once, but three times; in complete violation of CA rape shield laws.
After she’d been identified, she began receiving threats and harassment, and finally, withdrew her complaint, for her own safety.
Bryant’s comment, after the fact was, (from the above link,) “I recognize now that she did not and does not view this [sexual] incident the same way I did . . . . I now
understand how she feels that she did not consent to this encounter.”
This is an admission of guilt– she did not consent. It’s also a window into the differing interpretations each person might have; she saying ‘no,’ he hearing consent based on initial intimacy. This isn’t simply about his rights to a fair trial, it’s about her right not to be put on trial.
I also think it’s important to remember that rape is a form of torture; it’s physical abuse and degradation. It’s used as a one of the tools to torture; just the threat of rape was reported in the torture report, remember?
So the analogy you’re trying to make — denial of right to justice for the accused — is some part of this; but only a small part. The other part is the rights of the victim; and despite years of trying to better balance those rights, we still don’t have a good balance. The rights of people tortured by the CIA were never balanced; there was never an attempt to balance. So while your comparison has some merit, it reflects as much on the problems of rape victims as it does on accused rapists.Report
zic, much of what you state here as fact is not, I believe, either factually correct or knowable; it also has omissions that seem to my mind to be highly relevant. (The Bryant case is the only rape public case I feel like I really know something about.)
I think this is what people who fear changing the system towrd favoring the accuser fear will happen.Report
@tod-kelly what I stated came from the study I linked. It’s well annotated in the study; so I’d have to ask what you think is not fact?Report
For starters, it was in Colorado, not California. Additionally, while it’s likely that wanting to be done with process was a part of the woman’s reacting her police testimony, so too was a very large cash settlement that we now know was being negotiated over much of the time leading up to her recanting.Report
Yes, I mixed the state up; that is wrong.
The cash settlement came because of a the civil trial; and that’s also addressed in the report. Of note is that she received worse treatment there; but I think the timing was of withdrawing the criminal trial was well before the cash settlement was reached to settle the civil trial, and in the same statement where Bryant said what I quoted above, he also said, “I also want to make it clear that I do not question the motives of this young woman. No money has been paid to this woman. She has agreed that this statement will not be used against me in the civil case.”
That’s a whole other layer of complexity, displayed spectacularly in the OJ trials; both criminal and civil court cases confuse the issue of defendant’s (and victim’s) rights in the public mind, yet the only remedy for a victim of a crime where the defendant is found not-guilty beyond reasonable doubt is a civil trail; something that attorneys here have pointed out in numbers of threads.Report
I’d also point out that my confusing CA and CO here turned into questioning all of what I’d said — exactly the problem of faulty memory Chris is trying to point out with the OP. (Bullwinkle’s Bunion is my trauma — barometric changes inducing migraine.)Report
Yeah, zic. I’m with ya here. I don’t understand what Tod’s objecting toin your comment (other than confusing CO with CA) or why he thinks the claims you’ve made are unknowable. I mean, at a certain level of analysis – a purely epistemic one, of course – none of us will ever know everything that happened during that incident. But why do we have to know everything before a judgment can be made? And in this case, you’re not even making a judgment, just reporting some of the facts.
If complete knowledge of everything is necessary before a judgment can be reached, then no one would ever by justified in making any judgments whatsoever.Report
I’m withdrawing my comment.Report
This may just be the point at which we agree to disagree. To say that the rights of the accused are only a small part of the process gets it entirely backwards. The whole point of a criminal trial is to make sure that, before we impose the weight of criminal justice system onto any individual convicted of a crime, we have given that person every opportunity to defend him or herself.
If you want to argue that the rules of evidence are flawed and need to be fixed. I can accept that. If you want to argue that the way police investigate rape claims is flawed. I accept that as well. I could even accept the idea that rape victims be provided with some civil venue in which to claim damages from the accused and where the bar is lowered to the preponderance of the evidence. The presumption of innocence, however, is integral to a liberal justice system.
And I will be honest and say that I have no idea if Kobe Bryant did or did not do what he was accused of doing. It may very well be the case that Bryant was able to use his considerable resources and fame to get away with rape. That is terrible, but the thing to remember that most people accused of rape are not Kobe Bryant. Most defendants do not have an effectively unlimited pool of resources from which to mount a defense. And most defendants don’t start from the position of people assuming that they, since they are rich and famous and good-looking, would never need to rape anyone.
Using Kobe Bryant to make a point about rape persecutions in general is a little bit like using O.J. Simpson to make a point about homicide prosecutions. For example, here is another rape case (http://en.wikipedia.org/wiki/People_v._Jovanovic) where rape shield laws were used to exclude evidence that ultimately proved the defendant not-guilty.Report
@j-r on the link you provided, you say, here rape shield laws were used to exclude evidence that ultimately proved the defendant not-guilty.
In fact, according to the link you provided, no such verdict was ever reached. The original conviction was overturned because it was deemed the evidence should have been available for his defense; his conviction was overturned, opening the door for a new trial to establish his guilt or innocence. She opted to recant her accusation instead of go through another trial. This isn’t proof of his guilt or innocence, and it’s isn’t proof that she made a false accusation. But it does reflect concerns that women’s past are often used to establish reasonable doubt; and the less sympathetic a woman is, the more likely that past will be used to discredit her.Report
I’m bemused that rules of evidence are getting conflated with presumption of innocence.Report
From the reporting on the story, it seems that Erdely was looking for something more spectacular than the usual when it comes to this matter. She apparently asked around different victim’s advocates groups on whether they had something out of the oridinary. That is how Erdely found Jackie. The UVa advocate group pointed Erdely to Jackie. A really unfortunate implication is that Erdely might have manipulated Jackie into remembering some things that didn’t happen or give the wilder version of Jackie’s actual situation by careful prodding. This means that Jackie not only underwent a traumatic experience in Septemeber 2012 but that a reporter twisted Jackie for her own means.Report
Chris, thank you for writing this. Whatever happened to Jackie, people’s imperfect reconstruction of memory is so important to understand in so many contexts, including inconsistencies in trauma victims’ memories and false eyewitness reports.Report
Great piece. And I think that you made the right choice in publishing it. I disagree with many of the conclusions that you draw, but the fundamental analysis is spot on and does not change that much with the newer reporting on the UVA case.
My point of view is this, though. The Duke lacrosse team case, the Tawana Brawley case, and the UVA case all ought to be rallying cries, but they ought to be a rallying cry of warning against the power of individuals and institutions that should have known better.
When I think of the injustice of the Duke case, Crystal Magnum is not the antagonist. Mike Nifong is, because this is a clear case of prosecutorial misconduct. When I think of the Tawana Brawley case, she is not the bad guy. She was a 15 year old girl caught up in a lie that spun out of control. I don’t even blame her parents for wanting to believe their daughter. I blame Sharpton and his crew for using that family for their own largely self-promoting purposes. And when I think about this UVA case, I don’t have much but sympathy for Jackie. My ire is for Sabrina Erdely and Rolling Stone for doing one of the shoddiest jobs in the recent history of journalism and then trying to throw the subject under the bus.
I draw lessons from all of these cases. And the lesson is not “don’t believe women who say that they’ve been raped.” The lesson is “be careful in how you act on those claims.”Report
Jr
Sorry but i dont know how you can say that crystal and tawana arent the bad guys. But for them there wouldn’t be any false allegations.Report
Great post.
My problem is that I look at something like this and I have no idea what should be done. I feel things very strongly… but I don’t know what to think about them.Report
Well, for starters, here’s the real problem, from various comments:
Zic
The best analogy I can think if is of a person who’s just received a severe concussion, you don’t expect them to be thinking clearly and logically. Yet we seem to expect this of rape victims.
Burt
If every time people talk about what they remember happening those memories change, then the idea that a legal system predicated upon evidence consisting of recounted memories is at odds with the idea that the legal system is also predicated upon the finding of the objective truth and application of principles to it.
For someone whose livelihood and vocation are within the legal system, this is deeply unsettling.
and Chris
It’s been a while since I’ve done so in writing, but my basic position is that the findings of cognitive science over the last 60 years are, in many ways, very disturbing, because they call into question many of our basic ideas about the way the world works in relation to us. It’s not just our memory, and our perception, but as anyone who’s read Lakoff can tell you, the way we think about every damn thing.
We ought to consider actual paid jury service, or some mechanism by which “folks who have had these things drilled into their head” is enabled and encouraged.
We should require our prosecuting attorney cadre to be certified in some basic cognitive psychology, instead of just a law degree.
That is, if we want the legal system to involve justice.Report
If these changes are to be adopted, they’ll have to account for the following difficulties:
1. These solutions seem to presume keeping up to date with current cognitive science. That presumption seems to mean that only those capable of keeping up with that science–i.e., certified experts–can be the determiners of justice if we want jurors with such ideas about cognition “drilled into their heads.” That can be a good thing but it can also be a bad thing and lead to eroding citizen participation. (Or not. I suppose we could have a certain number of juror slots dedicated to “experts” and a certain number dedicated to non-experts or non-specialists.)
2. A paid jury–presumably better paid than most juries currently are–with ideas about the difficulty of memory “drilled into their heads” could conceivably lead to a discounting of much of witness testimony. In practice, this could mean that accusers in rape trials will be even less successful or put more on the spot than they are now, because jurors would be even more critical.
3. It might be helpful for a prosecutor to be certified in some sort of psychology, although I find it hard to believe that any certification program, short of requiring prosecutors to be psychological professionals who keep up with the literature on cognition, would be more than a pro forma exercise. (And I suspect most experienced prosecutors, deep down, really do know at an intuitive level the vagaries of eyewitness testimony.) At any rate, I fear that certification by itself won’t take away the incentives prosecutors have to pursue those cases that are winnable and to plead out the rest.
4. “if we want the legal system to involve justice” actually restates the problems being discussed in much of this thread here. One way to look at the disagreements on this thread is to see that there are different definitions of justice, each worthy of at least some consideration. “Justice” could mean protecting the accused and thus erring on the side of letting some guilty go free. It could mean serving the very real interests of the victims and possibly erring on the side of letting some innocent people be found guilty. It could mean a systematic attempt to dismantle and disable the broader societal violence that informs these crimes (i.e., the campaign against “rape culture,” a culture that I believe is real and needs dismantling, although I’m not sure how or whether to use the state to do it). All those notions of justice have their passionate defenders in this thread, and most defenders of each don’t necessarily discount the importance of the others, they weight their relative importance differently. Introducing experts in cognition may or may not favor one of those three notions of justice, or it may favor a fourth notion, but I find it hard to believe that it can favor all of them at once.Report
These are all pretty good points, Gabriel.
The first one is procedural. The second one could certainly go both ways, especially given that the defendant doesn’t have to testify. The third… eh, I’ve found that most continuing ed programs work in the sense that they make these sorts of problems less systemic (they don’t “fix”, they just help). You’re certainly correct that the problem of perverse incentives when it comes to the prosecution is a huge (probably bigger) problem to tackle that needs tackling.
The last one isn’t really a problem, it just is what it is. True justice for some victims is blowing the head off of their attacker. Or the person that they perceive to have been their attacker. True justice for some victims is closure and the ability to move on. Plus a million shades of grey in the middle. I don’t expect the legal system to map to a justice system. But I do expect it to be at least a little closer to the ballpark, and it’s just a rank reality that memory and perception of presumptively accurate individuals are regarded as a much higher value for of evidence than video testimony. You see that in the acquittals we’ve been talking about recently, too, actually… the cop’s word trumps other witness testimony *and* the video recording. Understanding that a piece of testimony is not the “truth the whole truth and nothing but the truth” but instead “as accurate a reflection of your own perception of the events” is probably an important step.Report
Thanks for the response, @patrick . I do realize it’s way easier to poke holes in others’ solutions than to advance my own.Report
These are good suggestions, @patrick
But I think the problem starts much earlier in the process; beginning with how police record eyewitness testimony. For instance, when looking at people in a line up, they should record the person’s level of certainty. The fact that memory get’s rebuilt and changed each time we access it means that people who are often unsure about something initially grow more and more certain of it as they access that memory through time; and this is a particularly disturbing trend when it comes to identifying someone in the legal process. There are new recommendations along this line that might help address this some.
There are also problems with the way police interview victims, and I suspect that the delay between a rape and reporting complicates that. So understanding why rape victims delay in reporting seems important (along with why most rapes aren’t reported at all) seems important. Off the top of my head, I think it takes time for a lot of people to realize the bad sex they had wasn’t sex, it was rape. Shame, certainly. Fear of the legal system. The mitigating circumstances– inebriation (for minors, particularly, this will be linked to fear of the legal system). Being someplace they’re not supposed to be or with someone making out when they’re supposedly in a committed relationship. Parental condemnation. Wanting to protect the rapist (most women don’t want to be responsible for sending someone to jail,) and the social community that the victim and rapist share all weigh on a victim’s decision. If the victim’s a man, the additional burden of emasculation matters a great deal.Report
I have an additional concern about this idea, Pat, which is that one of the advantages of a current jury is that it is made up of random people. If we have set, paid juries, than either someone has to elect them or someone in the political system has to appoint them.
Imagine, for a moment, what jury trial verdicts would be like if jury members were trying to signal themselves as the most conservative/liberal R/D juror, rather than attempting to decide which side had the most compelling case.Report
You can still have a random pool of jurors. You just have a level of requirement to actually serve.
You’d have to pay people, of course, otherwise it would be too big of a burden.
But you grab a pool of N people, you put them through a week’s training, you give them an exam, and the folks who flunk out you send home, and then you send the rest along to the jury pool.
You could allow defendants to opt-out of trained jurors, or you could allow civil cases to go to the standard juror pool.
I see the difficulty of choosing jurors out of a pool of folks who want to be jurors for reasons that might not have anything to do with serving on a jury.
But choosing jurors out of a random pool and then training and screening them? We could do that.
It would cost a non-insignificant amount of money, but if we cut down on criminalizing some things…Report
We should require our prosecuting attorney cadre to be certified in some basic cognitive psychology, instead of just a law degree.
This one would be great. Detectives, too, for that matter.Report
We should require our prosecuting attorney cadre to be certified in some basic cognitive psychology, instead of just a law degree.
This one would be great. Detectives, too, for that matter.
I’m not against this, necessarily, but we should understand that this training may also provide the unethical ones with more tools to manipulate witnesses, to get the outcomes they want (see also: the psychologists that apparently enabled the US to more effectively torture captives).
Far more important that the defense understands cognitive psych, and can look for the “tells” of leading/manipulation in witness testimony; and that we codify, procedurally and legally, what is and is not allowable in terms of witness interviews/questioning etc.Report
Good point.Report
Yes, great post.Report
Perhaps the most important thing to understand about memory is that it is fiction,
I remember reading that once. Maybe.Report
Read it? I’m pretty sure I WROTE it!Report
Yeah, just like last week when you said you wrote War and Peace and Tolstoy poured that coke on your head.Report
That dude still owes me twenty rubles.Report
Last week I attended the New Zealand Sceptics Society Conference, and one of the presentations was by a neurologist. He noted that there are three common phrases used around memory that should make anyone cautions.
The first is “I know what I saw” because no, you don’t.
The second is “I clearly remember” because no, you don’t.
The third is “why would they lie?”, because they might not be lying about what they saw, they may have misremembered it or misinterpreted what they did see. This one is especially important when considering conflicting eyewitnesses.Report
A skeptics society? How do I know you were there and how can I trust what you say you heard?Report
It takes forever just to take roll call there; you have to say “present” and then provide three forms of notarized ID and a witness to personally vouch for you.Report
I call bullshit. The notarizations could have been forgeries. And the witness is probably unreliable.Report
I used to belong to a solipsist club. I eventually quit because It took up so much time, what with me being the president, sergeant at arms, treasurer, and recording secretary. (I was the parliamentarian too, but that was pretty light duty.)Report
I was in a nihilist club until we burned down the clubhouse on account of meeting there was becoming a thing.
After that I joined the Idealist Society. That was much easier, ’cause we only met in our heads.Report
AGENDA
8:00 – 11:45: Roll Call
11:45 – 1:00: Lunch Break
1:00 – 2:00: They Are All Out To Get You – Paranoia, Or Just Good Thinking?
2:00 – 3:00: Bigfoot: Just Some Guy In A Suit
3:00 – 4:00: “Loch Ness”? More Like “Sloppy Mess”, Am I Right, Guys?
4:00 – 4:15: Guys?…Guys?
4:15 – 5:00: Everything In This Agenda Is Exposed As A Damnable LieReport
@tod-kelly
Moving down here, would you advocate getting rid of the Confrontation Clause for criminal trials involving rape?
@will-truman
Amanda Marcotte wrote that the court of public opinion should revolve around a preponderance of the evidence standard:
http://www.rawstory.com/rs/2014/02/in-the-court-of-public-opinion-lets-try-preponderance-of-evidence-as-the-standard/
I suspect that getting anyone to agree on a standard of proof for the court of public opinion is a quixotic task.Report
I would tend to want clear-and-convincing to the extent that conviction in the court of public opinion would mean that jury members who voted to convict would look askance and critically at other jury members who came to a different conclusion.
IOW, if we’re going to want to be saying, “Not just I and my like-minded friends, but you and your perhaps different-minded friends really ought to regard X as a rapist (where the crimes are older than the statute of limitations) – regardless of the fact that you may indeed see it differently. In fact, you should not be seeing it differently, or expressing that you do,” then I don’t think people should be proceeding that way short of having clear and convincing evidence.
But if what people want to do is just make their own determination about whether someone is a rapist and let the balance of opinion in the court of public opinion fall where it might, then I don’t have a problem with individuals using a preponderance of the evidence standard for that, at the same time that I might continue to use clear-and-convincing for my on purposes.
KnowhatImean?Report
@saul-degraw I don’t know. I suspect not, but I would be willing to listen to arguments for why it would be a good idea.Report
There is a modified version if the victim of a sexual crime is a child. They have to testify but it does through closed circuit TV. I might be willing to support that as a concession but even that seems to tilt a trial even more away from impartiality. I think the Confrontation Clause is an important right for people* and really the Legal System as a whole. People have a right to face their accusers, otherwise it opens the door to easy hearsay.
*I dislike it when people call the 4th, 5th, 6th, and 8th Amendments as being for criminal defendants. They are amendments for all people.
Marcotte is no apologist for rapists but she also is a strong recognizer and advocate of the right for criminal defendants to have adequate representation and that lawyers are supposed to work their hardest for their clients.Report
Has anyone here been advocating for getting rid of the confrontation clause in rape cases? I’ve read most of the comments here and don’t recall it being mentioned.Report
I think I take that back. I guess restricting what questions can be asked of the accuser is a way of curbing some elements of what the confrontation clause is supposed to guarantee.
Is that what you were referring to @saul-degraw ?Report
The confrontation clause doesn’t guarantee the right to ask questions that are irrelevant, intimidating, and abusive.Report
@mike-schilling
I wasn’t saying it did. I was trying to get at what Saul was claiming on behalf of it, not that he believes the confrontation clause protects abusive questioning. But if we stipulate to all that, then I guess I have to reprise my original question. Who here is advocating for doing away with the confrontation clause?Report
In some cases, not just rape but I’m prepared to believe it is more common with rape, having to see or speak to your attacker is going to be traumatic however careful the court is about what can be said. It may even be so traumatic that a victim is not able to function as a witness and I’d say that also is a problem for the fairness of the trial.
I don’t know if that is enough to change the rules, especially given we can’t really claim this occurs only with rape and not with, for example, a severe beating but it is an issue.Report
@matty I know this is an issue in domestic violence cases; I’ve seen judges tell couples to go ‘work it out’ after one has just spewed about ongoing abuse.Report
The term “court of public opinion” is about as oxymoronic a term as there is. A court has a mission. It has rules of evidence and procedures and an overall structure and purpose. Public opinion has none of that.
Maybe we should just call the “court of public opinion” what it really is: the mob.Report
I agree (maybe not all the way to “mob,” so long as all that’s at stake is forming opinions of people, not doing anything about it, but certainly it’s not a court). I was just taking up the concept using the term that has come to denote it. It’s pretty close to an oxymoron, but traditionally I think it actually plays off the limitations of real courts to contrast the way the public forms judgments about people without such rules. As the term is actually commonly used, I would say that there are implied scare quotes around “court.” Usually, when people started using the term, they were emphasizing that the court of public opinion is not a court, rather often a rush to judgement.
You’re right that it’s somewhat troubling that the concept has been taken up in earnest as a kind of real alternative to real courts. So yeah, I’m with you there. People should be more self-aware about that, and they’re purposely not being.Report
@michael-drew I think the broader issue is how should each of us act in these cases. Let’s say you are hiring for a particular role, this job will often require the person to work alone with one other team member, a lot of your existing staff are women. Would you hire a rapist? I don’t think I would but what standard should I use to decide? Do I follow the criminal law and not worry about anyone without a conviction or is some other standard appropriate, if so what?Report
Maybe we should just call the “court of public opinion” what it really is: the mob.
“Just when I thought I was out, the court of public opinion drags me back in!” Dick Cheney, 12/9/2014.Report
@matty
No, that’s really not what anyone is talking about with the court of public opinion. The CoPO may affect those professional judgments (probably unfortunately), but they really aren’t part of it, I don’t think.Report
Stillwater’s excellent example aside, I find serious irony in the court of public opinion. For instance, Akin’s ‘forcible rape’ comment was definitely tried in the court of public opinion; and he lost a winnable election as a result. Which is a huge change from the mores in place when I was younger; where your dress, your history, etc. predisposed the court of public opinion (not to mention the actual courts) to presume a woman was lying if she said she was raped.
Mob mentality is interesting. I presume I’m perceived as a member of a mob; I’ve got my pitchfork ready to go because I freely state there are problems great enough with how we handle rape to suggest we mostly ignore it as something of a minor problem for some people; not a gross violation of an individual’s rights. Which brings up the interesting notion that one definition of “mob”might also be an oppressed class of people; and the overriding concern is maintaining the status quo of power balance, not actual equality.Report
@j-r
You will never be able to get rid of the court of opinion because people are people and have opinions on issues and things. It is simply human nature to wonder about whether a defendant is guilty or innocent and to form an opinion based on the facts at hand and your own personal biases and feelings. I think the only thing that can change this is the end of humanity.Report
Sorry to respond to this so late, but there are two things that have been nagging at me in all this, related to us automatically taking the reported changes in Jackie’s demeanor as evidence that “something happened” to her (even if not exactly the “something” that was reported), in the face of mounting evidence that large parts of her story simply cannot be corroborated.
One – *If*, as now seems to be possible, certain parts of the stories Jackie told her friends were, in part, the result of a misguided attempt to gain the attention of a boy that she had unrequited affections for: then this may ALSO go some way towards explaining the changes in her demeanor.
After all, we commonly accept that some people (especially young people) with unrequited loves or obsessions have been known to become depressed and withdrawn, and even to hurt themselves, or the objects of their affection.
Lest the prior be misinterpreted as “women are crazy”, let me be clear: the trope of the unrequited man who becomes deeply-depressed and threatens to hang himself (or does; or stalks/harms the object of his unrequited affection), is one that is fairly-common.
It is not a gendered thing, in the least, to say that some people that are in the throes of obsessive love, can be unduly (and to outside eyes, bizarrely) emotionally- or behaviorally-impacted if/when that love is unreturned.
Two – *If* at least parts of her stories were fabricated; and yet these fabrications were responsible for her (at least initially, positive) interactions with supportive friends, and campus Support Groups, and the campus Advisor, and later the RS reporter; I can imagine a lot of anxiety and cognitive dissonance occurring as a result of this.
If I am not a conscienceless sociopath, and I’ve told lies, or exaggerated certain things, to achieve a short-term goal like getting my crush’s attention; yet I am gaining, in my mind, partially or wholly unearned support from others as a result of my actions – then the guilt and strain and shame of that is likely to snowball on my mind and conscience.
Maybe especially so, if I didn’t even achieve my goal of getting what I was initially after – why did I even *do* all this then, and get myself in so far over my head?
I would expect that I *would* become depressed and withdrawn, as things stack up and my conscience weighs ever-heavier; and eventually, I might just want to wash my hands of the whole mess that I’ve gotten myself into, and leave school, as Jackie is reported to have wanted to do.
But this isn’t because “something happened to me”; it’s because I fear the eventual unraveling of my lie (and life) that I never thought would spin out of my control like this when I started.
I realize the above is probably going to be painted as “victim-blaming”. But it’s not meant to be.
Just saying that, to my mind, there are *other* perfectly-reasonable explanations that cover both “nothing like what was reported, appears to have happened, from all available evidence” and “well, tell me why she was acting like something *did*, then?”
I don’t think Jackie is some sort of sociopath; but if we are looking at her as, in part, some kid who was sick with love, and then might have gotten in way over her head because of that; then some things that seem otherwise-inexplicable without positing assault of some kind, seem perfectly explicable to me.Report
I think you’re right, anxiety at a fairly serious lie that has gotten progressively out of control, along with unrequited love, could explain her behavior. The note at the beginning of the post was written after thinking about the WaPo report that made this explanation possible.
I still tend to think something happened to her, but I’m far less confident in that belief than I was on Monday and Tuesday of last week when I wrote all but the last bit of this post.
I don’t think Jackie is some sort of sociopath; but if we are looking at her as, in part, some kid who was sick with love, and then might have gotten in way over her head because of that
Right, I’m not sure mental illness needs to be invoked at all, at least at the start. This is the sort of thing kids do, particularly when they’re in unknown environments, with people they don’t know very well, and have too much time to think about things. Now, much of what came later, particularly in dealing with the survivor group, might be different, but the initial acts trying to get someone to like and pay attention to her? That’s just kids being kids.Report
Thanks for the patient reply.
I think I am still turning this over in my mind, because it’s perfectly reasonable for people to ask “why would someone lie about something like this, and/or act like that?” and then supply the answer that best fits the larger rape narrative they want (one narrative that says people who claim rape aren’t to be be trusted; another narrative that says people would never lie about something so serious as rape, so there must be some “there” there), rather than one that might fit the narrative of the facts we know here and/or the way we know people have acted since time out of mind, when they are in obsessive love, or are under great stress (even if that stress is partly or wholly of their own making).
EDIT – in that first sentence, please change “perfectly reasonable” to “natural but perhaps regrettable”, as that more accurately captures what I am trying to say.Report
I think the biggest problem is that we have a limited amount of information. The WaPo reporting has given us info from 3 of her friends, primarily, which tells us a.) they think something happened to her, and b.) there was some fishy stuff going on because Jackie was clearly trying to catch the guy’s attention.
Everything else requires us to make a bunch of inferences, many of which I’m not comfortable making without further information. So I tend to side with the people who were there, and the people who were there, though they’re just kids, think something happened to her. These are people who were trashed in the Rolling Stone piece, so it’s not like they’re going to be feeling particularly pro-Jackie right now.
(It’s worth mentioning that the RS piece was so hard on Jackie’s female friend that it looked a whole lot like slut shaming, and worse, that the woman being portrayed as a shameful slut was not only excusing rape, but saying it could be fun.)Report
From what I understand, Erdely (sp?) violated a whole slew of journalistic practices when writing this piece, so many that trying to account for Jackie’s behavior and experiences that night, and even in advance of and subsequent to it, seems impossible. It seems to me that any account is just as likely, given what we know, as any other, all the way from “no one actually harmed her that night” to “she was a gang-rape victim”. Clearly, tho, given the testimony of her friends, she was experiencing real trauma. But that’s about it, as far as what folks can agree upon.
Personally, I think the more interesting angle here, and one which I’m sure lots of people have been pushing, is the behavior of Erdely in researching and writing this piece. What was she thinking? What were her motives? From what I understand she violated a whole bunch of standard journalistic practices – normative as well as procedural.
Seems to me Jackie might be a victim twice over in all this.
Or not a victim at all.Report
Stillwater,
putting it like that leaves the editors off the hook. What the hell were they thinking? This is the sort of “oh, my god…” thing that demands as many facts as possible, not your latest “I didn’t even write this” puff piece.Report
I don’t think there’s any doubt that Jackie is a victim in this. It’s clear Erdely took advantage of her, and it sounds like Jackie wanted out of the story but Erdely refused.
Another UVA rape victim interviewed by Erdely for the story tells a pretty damning story of how her interview went.Report
@stillwater
There are two things here; her reporting on the culture at UVA was actually pretty solid. The real misfortune is that that reporting is discredited because of the problems with the Jackie story.
I’ve thought a lot about how I’d have handled reporting this piece; a real issue is that any individual victim, unless she’s over 21, is likely to have issues with how she relates what happened because of drinking laws; she’s going to consider the trouble she might get into for underage drinking, and the trouble others might get into for supplying alcohol to minors.
A second issue springs from how you report victims stories; you generally don’t frisk them, but simply tell what the victim reported; in part because your job, as a reporter, is not to victim blame, but to report what the victims says. And that is outside journalistic standards of verifying. In a case like this; as an editor, I’d probably separate the two responsibilities — have one reporter working on the victim’s story, another working on verification.
Jackie reportedly wanted to not follow-through with publishing; I don’t know why this wasn’t done, but it should have been. If, before publication, someone wants to remove what they said from public record, this should be respected. Particularly a victim. That does not mean the reporter is without a story; they still have the interview material to inform other reporting, they can still watch any legal proceedings. But rape victims are supposed to be protected from the press, and that would/should include allowing them to change their minds about a story before press time. To me, this was the greatest problem in the reporting. Had they removed Jackie’s story, and instead focused on the problems of rape culture (I detest that phrase) and UVA’s methods of handling rape complaints, this would have been a very worthy piece.Report
zic,
for my part, If i was reporting on this, I’d go with the old troupe — “a picture is worth a thousand words.” People take videotape of themselves raping victims. Erase the face, and publish that. It’s rather hard to say “I don’t think this is a serious problem” once you see about 50 or so videotapes.
(so, some people would get some sick pleasure out of watching…? so what. we show car crash sites to teens, and they could get some sick pleasure out of watching that. [neither fetish is as weird as licking eyeballs. Thanks Japan.] )Report
@kimmi that is completely unethical.Report
zic, I haven’t read the RS piece. I haven’t really read anything about this story too carefully except the WaPo stuff. So I’ll have to concede your view that Erdely did some good work in her story. And I agree with the issues you bring up. It makes me wonder, tho, if Erdely was a bit too glaringly guilty of looking for facts to fit the policy (so to speak). The interview Chris linked to above informs that view.Report
zic,
what exactly is the ethics issue with it? The data is already published, it is “freely available” online.
[To be clear: I am not objecting to the idea that this is an ethical peril, merely wishing to see your reasoning.]Report
@stillwater I pretty much agree; her search for someone that brought real stuff to life discredited the real stuff; had she abided by the victims wish here, the reporting would have been better.
@kimmi journalistic standards do not and should not include using video/photos of crime victims where the law protects their identity, ever. This makes reporting on a lot of crime difficult; I’ve had to cover child sex-abuse cases where I struggled with this. In one case in particular, there were likely other victims, and I knew releasing details would help law enforcement better identify them. My editor and I discussed this at length. We read and re-read the laws in question. But at the end of the day, the privacy of the child in question overrode the help my reporting might have provided in identifying other potential victims for law enforcement.
As a reporter, you cannot just focus on the story; particularly when it comes to minors and to sex crimes. The ethics of privacy matter, not just for those victims, but for the fears other victims might have in reporting. As in rape, the fears of family privacy already present a big barrier to child-hood sex abuse.Report
One thing that jumps out is that so often, particularly for younger women, alcohol is involved in a huge number of rapes. Alcohol is also forbidden them due to their age. I was raped happened after we’d been drinking and smoking pot, both, and much of my thoughts about talking to anyone about it was that I’d get in trouble for those things; be blamed because of those things.
I suspect a lot of date-rape/alcohol rape of minors also happens when they’re doing something their parents wouldn’t approve of; out on a date when they’re supposed to be at a friend’s house, etc.
In looking at how we handle rape, for people under 21, consideration of how victims blame themselves or fear reporting because they were drinking/smoking, or violating parental rules bears some serious consideration. Leaving those details out will, for instance, create discrepancies in the story a victim tells; leaving them out also creates problems for a fair trail for defendant. It also adds to the problems of victims blaming themselves for their rapes.Report
zic,
when we make decisions as to which drugs are legally acceptable, we ought to pay attention to what they do to rapists and their victims. Alcohol, in particular, can make it hard to identify who the rapist was (particularly if the victim is unconscious).
Pot, on the other hand…
The urge for rape victims to lie, particularly to not get in trouble, ends a lot of cases. We should focus on telling the absolute truth to the authorities, because that’s the only way we get the criminals off the streets.Report
I just finished reading this, by the way, which is some pretty good reporting of a campus rape case. Nothing sensational, just anger-inducing reactions by unviersities ranging form indifference to outright hostility toward victims.Report
That link is a really disturbing read.
I also agree that it’s good reporting. Everything is attributed and qualified; someone ‘thought’ something; alleged something.
It’s hard to write like that; having it read smoothly and still maintaining narrative.
My biggest complaint with the piece is the sentence or two, the paragraph or two, tying the problem of Mock being able to simply transfer schools and the problem of serial rape; the vast majority of men are not rapists, despite fears that they might be accused of being raped. A stronger culture of identifying serial rapists would not only help diminish rape but help reduce the stigma many men face as potential rapists. The whole sex suffers for the actions of the few; all men bear this burden of suspicion and scrutiny because of the loathsome action of a few men when it comes to sexual assault.Report
That sounds suspiciously like another set of arguments I’ve heard on Fox News and from various conservative talking heads.Report
Luther is writing a book on the subject of college athletes and sexual assault, inspired, I believe, by the Vanderbilt football case. I suspect she’s ans angered by the Rolling Stones debacle as anyone.Report
@j-r
There are always cost/benefit gains and losses from public policy. And trying to identify them is, I’d argue, a good thing. One of the things that ought to be examined when it comes to sexual assault is the cost to men who don’t commit sexual assault. An example would be the lost opportunity to meet women and have potential consensual sex because of how women limit their behavior toward all men based on the actions of a few predators.Report
Thanks Chris. it also pretty much disagrees flat out with the joffe piece (which I didn’t finish reading, sorries, folks) about the consequences of someone being expelled for sexual assault.Report
From Chris’s link (which is really good, btw), there’s this:
From this point on, there is a real concern of the balancing of rights; her right to be physically safe in school, and to not be penalized for being the victim of a sexual assault vs. his right to justice. We get really confused here, because her right to education is a social justice; his right to fair trial is legal justice. The balance here is what’s under discussion. While I do not want to undermine his right to justice; the overwhelming evidence is that her right to education and safety have been ignored; and that very few actual rapists ever face social the justice system.
A university’s justice system is not legal justice; but it is very much a part of social justice.
These are hard issues; but I do feel too many people conflate a university hearing with legal; and I maintain that attending a university is a privilege. Women who fail to meet the standards of that privilege are also subject to expulsion; women do not have a right to attend if they violate the school’s standard. But their right to meet the standards of privilege to attend are the definitely the concern in the University system; that’s the Title IX violation; the place where she shouldn’t be the one who has to miss class.Report
I am only partway through it, but my reaction thus far is that colleges are seemingly about as qualified to investigate and resolve rape accusations as the Catholic Church was to investigate and resolve child abuse accusations; which is to say, not at all.
These things are accusations of serious crimes, full stop, and the response of schools upon being notified of them should be to call the police and let the police do a full investigation immediately, full stop. I understand the police have often done a shoddy job too but that’s no reason to hand it off to people and institutions with no training, conflicting loyalties and incentives, questionable accountability and transparency, and nebulous guidelines.Report
Read the story Chris linked in the previous comment.Report
@glyph I withdraw that, I misread you.
I have serious issues with compelling someone to bring charges to the police. Mandatory reporting is a serious responsibility, and that’s essentially what you’re calling for. I’d want to see a police force much better trained in handling sexual assault than I see now.
(While I was reporting, I had this constant off-record steam of snippets about sexual abuse by cops, particularly of attractive young women with drinking problems. I could never get anyone on record about it; I tried. The women in question knew the occasional bj that they gave kept them on the road, out of jail, and they didn’t want to deal with the public humiliation. Alcoholic women are often victims of a lot of sexual abuse.)Report
Part of the problem is that even if you go to the police, there’s a pretty good chance that the offender is going to be in class with, or in a dorm with, or at least on campus with the victim for an extended period of time before there’s a trial unless the university has some way of dealing with these cases. And the only way it can deal with them is to give both sides a fair shake. So it has to do something a lot like it’s doing now even if the police are doing a criminal investigation. This is part of why federal law actually says educational institutions have to do something, and tells them how to do it. There is training available, and there are people who do this for a living on campuses. That they fail says more about their priorities than it does about their abilities.Report
glyph,
I think you’re missing the forest for the trees here. This story is about is how universities (or a university, anyway) view and investigate rape claims.
I also think the way you frame the question is indicative of … something, I’m not sure what. You said “these are serious accusations” rather than “these are serious claims” or even “these are serious claims that have consequences for other people”.Report
@chris – maybe this particular example isn’t representative, but this is the section that is prompting my comment:
(emphases mine).
Now, I realize that in the real justice system, things are often in flux also, with setbacks and reversals for both sides; but this process they have set up sounds like it is giving both the accuser and the accused whiplash on a minute-by-minute basis.Report
@glyph
I’d have to go back to dig out the specifics, but my recall is that Morris’ repeatedly said the testimony presented as hers had been modified to reflect the opposite of her original testimony; and that — her testimony misinterpreted — was the reason for the whiplash. It was because officials at the school misrepresented her testimony, and she was a witness, not a victim, in the hearing, and so not able to be there when her actual written testimony was twisted.
The problem here was the schools from the get go.Report
Glyph, definitely. I believe Luther mentions that the UTC process was not in compliance with Title IX, and that the specific process they used is generally disliked by both accusers and accused alike. UTC knows the law, they even have the procedures in place to comply with it, but they’ve creates a system in which it is possible for the accused to choose which of the various types of disciplinary hearings they would like, and among the choices UTC has included this god-awful mess of a hearing process that is not in compliance.
So I definitely get your point, and UTC shows how incompetent they are, but the need for the disciplinary process remains. So the solution is not to remove universities from the process entirely, but to create a system of training and compliance so that universities handle these things the right way. Most important, it seems, is for there to be some sort of independent mediator. The university’s just looking out for itself in these things, so it can’t be relied upon to act in the itnterest of its students, be they accusers or accused.Report
@zic there’s no real reason for the whiplash. Morris’ initial testimony to the dean who initially receives these cases, but does not rule on them, mischaracterized her story to him in his official report. That was pretty damn slimy of him.Report
This bit fascinates me:
There is some link to the history of chastity here when it comes to rape; the less chaste, the more assumed reason she has to consent and then lie about it was the argument. I would assume that this would also work the other way, it’s as probable that a woman in an environment of highly-valued sexual purity would have more reason to lie about consent. So I sort-of agree that a woman’s virginity doesn’t bear here. It does at some level seem a greater violation; but that’s more an emotional thing than a rational one.Report