False Rape Investigation Model: Between Belief And Disbelief

The following comment might seem to some people to be advocating for genuine fairness because of the tone of the comment, but even before I found out that the author of this comment posts at a blog called The False Rape Society, I knew it came from a rape denialist.

Archivist has left a new comment on your [Abyss2hope] post “Solid Evidence Important In Rape and False Rape Ca…“:

It is infuriating that some law enforcement officials bring preconceived biases to investigations of claims of sexual assault. Each case needs to be treated seriously, and objectively. It is not up to a police officer to “believe” or “disbelieve.” He or she is supposed to gather facts and use his or her training to come to objectively verifiable conclusions.

Both the macho, instinctive disbelief of rape claimants exhibitted by less sophisticated police forces, and the knee-jerk uncritical acceptance of every word a rape claimant utters, as I see in my practice on college campus, are wrong and counter-productive. If we can get to the point where the only thing that matters is the truth and not someone’s attempt to twist and pound every case to fit a political agenda, everybody – rape victims and the falsely accused would be much better off.

What he finds infuriating isn’t preconceived biases as he claims, but preconceived biases which are in conflict with his preconceived biases or which give his preconceived biases a bad name. He ends with an attack on political agendas, but he clearly has a political agenda which is predicated on not believing those who report rape until they have proven themselves to be true crime victims and until they have disproven the possibility that they have committed a crime by reporting rape.

His proposed objective methodology is indeed sophisticated, but sophistication doesn’t automatically make something right or effective. His demand for objectivity is a false one.

Unspoken but clear from his comment is that rapists are assumed innocent under this model. However, rape victims are not assumed innocent, they are assumed to be likely false reporters until they are proven to be genuine rape victims. This is an intentionally imbalanced way of thinking about rape reports which “objectively” taints all rape victims who have not had their rapes proven in court.

Under his model the police must avoid treating rape victims as genuine crime victims until the crime has been proven. Not surprisingly this model is predicated on seeing us as a false rape society where all rape reports must be instantly doubted and the chances that someone was really raped is about 50-50.

If this model were a valid investigative model then it would be standard operating procedures for all crimes. When you call the police to report that you’ve been mugged, the investigating officer should neither believe you nor disbelieve you.

When you describe your mugger’s tattoo which includes his first name, the officer should not assume you are describing a genuine mugger or even a stranger. Rather than being observant about the details of the tattoo, which smart muggers would hide, you might be able to describe it so well because you’ve seen it many times before.

The investigator must keep an open mind and not believe anything you say without proof of that statement.

If this mugger is found with your wallet, the mugger shouldn’t be assumed to have stolen your wallet. The mugger should be approached in a non-judgmental way in case you were stupid and gave this man your wallet of your own free will and called the cops because you later regretted your actions.

If the mugger has drugs on him or in him, you must be viewed as someone who might have exchanged drugs with him. Instead of a mugging this might be a drug deal gone bad in which case this is really a breach of promise case, not a mugging. Remember, you are not yet believed.

This model says that you are simply being treated in a neutral manner, but that neutrality always injects doubt, even where there is zero evidence which indicates that your report of a mugging is in any way doubtful.

Rather than resulting in the truth which Archivist says is the only thing that matters, this model uses supposed objectivity to give criminals multiple opportunities to make baseless claims against you. Since you are not assumed to be a real crime victim these baseless claims leave you in limbo unless or until you can prove them all to be false.

This model is deliberately unfair and biased in the guise of being fair and unbiased.

Crime victims are far worse off under this model which directly contradicts Archivist’s claim, but the rightfully accused are definitely better off. Because so many rightfully accused would be able to get away with calling themselves wrongfully accused this model doesn’t make the genuinely wrongly accused any better off than they are when investigator begin with the belief in the report made against them.

If the truth of what happened is all that matters then all investigators need to believe all claims of rape until there is solid evidence that the claim is false.

If and when there is enough supporting evidence to bring charges, the suspect should be charged. If and when there is enough contradictory evidence showing that the crime never happened, the person who claimed to be a crime victim should be charged.


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58 comments for “False Rape Investigation Model: Between Belief And Disbelief

  1. July 24, 2008 at 12:10 pm

    I haven’t anything “productive” to say other than I really, really enjoy reading your posts. You make such great, solid arguments.

    Although I would of added “CHECK MATE, ASSHOLE” as your concluding sentence, but maybe that’s just me….

  2. Ismone
    July 24, 2008 at 12:50 pm

    Brilliant. I always try to discuss rape in relation to other crimes, to make people realize that we put ridiculous requirements on rape survivors.

    But this is better than my best. I will use it (with attribution, I promise)!

  3. July 24, 2008 at 12:52 pm

    Wow! This may sound totally naive but I had actually never thought about the fact that our ‘innocent until proven guilty’ system implictly suggests that accusers are then ‘liars until proven truthful’. As you point out, that is clearly NOT how we treat accusers in most situation, which suggests it means something when we do treat them that way. That’s such a powerful insight!

  4. July 24, 2008 at 12:59 pm

    SimpleJewel… I agree with adding “CHECK MATE, ASSHOLE” to the end of the post. Very fitting. :)

  5. July 24, 2008 at 1:27 pm

    All this talk about “false rape claims” is making me very sad. I recently left a community of people who are very good at taking standardized tests (High IQ society) because after I had the gal to say that I had been raped, but that didn’t make me think that I should carry a gun, a debate began and raged on for several weeks as to whether I was sufficiently raped. A few people defended me, but the loudest voices on the board were those calling me a liar. I was doing damage to victims of “genuine rape” (whatever that is), and am not “a real woman who has experienced real rape”. It was very upsetting, and after trying to “set the record straight” (and being called a drama queen for defending myself and my good name), I had to leave. I’ve never seen misogyny so present and so accepted as it was in this instance. The moderators of the board refused to do anything about it because what was important to them was the ethos of “anything goes” on the message board, and that’s more important than making an atmosphere in which members are comfortable. (I am not the only person who left this message board over this issue.)

    This debate over whether I was lying about being raped or not was actually more traumatic than the (date) rape itself (partially because I know what’s going on now, as opposed to then when I was so disoriented by what happened that the only thing I knew was that was the worst date of my life and I felt seriously violated). I have a good support system, though, and getting away from people who automatically think I’m making a false allegation because in their minds agreeing to a date is agreeing to sex.

    So… I’m finding all this talk to be rather depressing, but even so I’m glad that those of us who have been accused of making false accusations are being defended so eloquently.

  6. Charlie
    July 24, 2008 at 3:58 pm

    If the accused is assumed innocent until proven guilty and this in and of itself is absolute, then how can someone believe the alleged victim? The way the system works, at least from my perspective, is that there is always doubt as to whether or not the accused is guilty. This is how it is supposed to work, because the burden of proof is on the accuser and not the accused; therefore if the accused is assumed to be innocent by the law, it is natural that one would question the alleged victim. The problem is that if only one side is questioned then there is an obvious bias, but being a victim, one would play to the emotional side of people, which in may ways overrides any sort of plea directed towards one’s reason. It is not the police’s job to be indifferent, but the courts. The investigative process depends on an assumption of guilt in many cases, otherwise warrants would not be served without proof the person had committed the crime. In this way the courts are required to hold two perspectives, but in many cases they only hold one. They are supposed to assume guilt when giving out warrants, but innocence when the trial takes place. There is a definite bias against the accused and so some of this may be a backlash. The greatest problem is that rape in and of itself is an emotional occurrence and this emotion is brought into the case. In many ways, the essence of rape is put on trial as much as the person being accused.

    I may very well be wrong and correct me if I am. I apologize for any perceived biases and for the slight disorganization of the above statement in advance.

  7. Ashley
    July 24, 2008 at 4:05 pm

    Rachel, I’m so sorry for your negative experience. The trolls have to come out from under their bridges once in awhile, but it breaks my heart that you should have to defend yourself in such a situation. Date rape is rape, as is marital rape, because all rape is “real” rape. Good luck and I hope things get better for you.
    And yes, “checkmate, asshole” is entirely appropriate. ;)

  8. July 24, 2008 at 4:48 pm

    Thanks Ashley. I’ve found a lot of support in the feminist community (and indeed from my irl friends, and especially my boyfriend) so things are definitely looking up. :)

  9. dananddanica
    July 24, 2008 at 4:56 pm

    great writeup. I have a question or two about the last pargraph:

    ” If and when there is enough supporting evidence to bring charges”. Between the time an accusation is made and there is enough evidence to bring charges, should the name/identity of the accused be concealed just like the name/identity of the victim? If not, why not? I understand that a threat may be out there but I still bang my head against the innocent until proven guilty idea, even before being charged officially shouldnt this be even more true and protective of the accused?

    “If and when there is enough contradictory evidence showing that the crime never happened, the person who claimed to be a crime victim should be charged.” Charged with what? A false claim of a misdeamenor and a false claim of a felony should fall under the same guideline? How will there be enough contradictory evidence showing the crime, in this case rape, never happened? I’ve read of a number of times where that was the case but it seems just as hard to prove that a rape did happen as if it didnt happen. As an aside, how can rape be proven between two adults with no witnesses and no bruises/tearing/wounds? Can one persons word ever be worth more than anothers past the point of guilty beyond a reasonable doubt? I apologize if I’m being thick on that last point but I just dont get it and it makes me alternately angry/fearful/frustrated.

  10. July 24, 2008 at 6:58 pm

    Dananddanica, on publishing suspects names, the same policies should be true for rape as for other violent crimes.

    I’m opposed to creating a special category or special punishment for filing a false police report or for perjury when the crime is rape. This is certainly not the only serious crime where people can be falsely accused, but reporting those other crimes doesn’t get the same backlash that reporting rape gets.

    Most of those who talk about false convictions for rape seem to believe there has never been a false charge made against a rape victim. They show no concern about what happens to rape victims who are not only disbelieved but wrongfully charged with a crime.

    There needs to be enough contradictory evidence to prove that the report of rape is false beyond a reasonable doubt. Lack of evidence, guesswork or a hunch isn’t good enough to convict someone of rape and it isn’t good enough to convict someone who reported being raped.

    Issues of proving criminal events through testimony exist through our entire criminal justice system. Cases without witnesses (victim didn’t see attacker) are often described as being weaker rather than stronger. It’s only the warped thinking about rape cases which causes some people to assume that victim testimony should be assumed to be non-credible and therefore meaningless.

    Defense attorneys in rape cases have focused on the rape victim’s underwear to attempt to discredit the victim and frame her as a liar. This is nonsensical and only works because so many jurors will see a bit of lace and make baseless judgments about the owner of that underwear.

  11. July 24, 2008 at 7:16 pm

    Rachel, I’m saddened to hear about the unfounded attacks launched against you. So many people who claim to be against unfounded or false accusations when it comes to rape are awfully quick to make unfounded and false accusations against those who disclose having been rape victims.

    They have become the very thing they claim to be against.

  12. dananddanica
    July 24, 2008 at 10:47 pm

    good points marcella. I too would be opposed to creating a special category or punishment for filing a false police report/perjury for rape cases though I am not opposed to differentiating between filing a false report that someone stole your trashcans and someone raped/assaulted/attempted to murder you. I do see a difference in misdeamenor and felony accusations and also a difference in motivation, again accusing someone of stealing your trash cans should be different than saying they molested their child to hurt them in a custody case or saying they raped you as the effect is so much greater. Perhaps aggravated perjury or something?

    Is it warped thinking for me to think that rape victim testimony is credible but not credible enough to convict barring other evidence? I understand that defense attorneys have done horrible things and that all cases where it comes down to one persons words over another are oftentimes considered weak. I dont understand how a lot of people say that stranger rape is much more rare than other -types- of rape (i know all rape is rape but I dont know another way to categorize the circumstances of rape such as spousal, acquantance, date) and that these other types of rapes are much, much harder to prosecute and then say the conviction rates are far too low. Yes they seem low to me too but if you had 100 rapes between partners on a college campus, how high do you honestly think the conviction rate would go?

    Its just hard for me to wrap my head around as the effects of a rape or molestation allegation are quite horrible (of course they in no way compare to being the actual victim but its still there). Is there another category of crime where a sentence of 10, 20 years or life can hinge on the word of one person vs another where both parties agree the underlying act took place? That doesnt quite seem to work with the mugger argument totally for me, I’ll just have to work on that.

    “Most of those who talk about false convictions for rape seem to believe there has never been a false charge made against a rape victim” But what about those of us who don’t believe that, who might even one day be called feminist allies and understand a lot of the issues involved in this and never blame the victim (not even inmates who a lot of people of various ways of thinking seem to care little about)? I would love to see better funding, better laws, reformation of police procedure, heck I even tend towards prison abolition. I wan to see all rape kits processed period and a myriad of other things yet I still don’t agree with some feminists on the first issues I spoke about all the time.

    Lastly on this another question: A lot of my friends and I are heavily into BDSM, I know this will sound foolish but wouldn’t it be easier to get off on a rape charge if say your partner was a submissive and regularly had bumps bruises and a lot of other markings? Do rape shield laws prevent this entirely from being introduced at trial?

  13. July 25, 2008 at 11:03 am

    Dananddanica, I don’t have much time right now, but individual testimony is used in many serious felony cases including murder cases where the defendant’s life may be at stake.

    If rape victim testimony is credible then it is credible enough to convict. To reject this is to declare open season for rape with the criminal justice system’s blessing.

  14. Sarah
    July 25, 2008 at 11:07 am

    I’d love to know what planet he lives on where “knee-jerk uncritical acceptance of every word a rape claimant utters” is the norm. Because that’s very far from my experience.

  15. dananddanica
    July 25, 2008 at 1:59 pm

    marcella, can you define credible for me please? I just dont get it, if I have sex in the evening with a woman and in the morning (or whenever) she alleges I raped her and I say I didn’t, how the heck can I be convicted of rape barring any other evidence? The investigators could very well take her recollection of events as credible, go through the process as they should and still end up with nothing. Should they be able to get an indictment on a felony assault charge with absolutely no evidence? Its hard as I think they should but if I accused someone of hitting me but didnt have any witnesses or bruises/marks how should that play out? Should they be arrested and put in jail, unable to make bond (as most of my family would not be able to) only on my word?

    Is individual testimony used in murder cases on its own? Can a witness send a murderer to jail soley upon their word without any other evidence?

    I know this means open season and all that but I dont see a way around it with our guilty beyond a reasonable doubt criminal justice system unless you value the word of one person highly over another. How can that work? I understand that in a lot of rape cases there is evidence, circumstantial or better but it still seems a bit off to me and I dont know a way around it. To be coldly analytical about it, yes it would be open season as if I was careful enough I could rape without fear of legal (though perhaps civil) reprisal but in the end, how to work around that?

  16. July 25, 2008 at 3:28 pm

    Charlie (6) wrote: “If the accused is assumed innocent until proven guilty and this in and of itself is absolute, then how can someone believe the alleged victim?”

    If you use the twisted definition of innocent until proven guilty that many people put forth as a justification for automatically disbelieving rape victims then you cannot believe any crime victim or any witness to any crime until a defendant has been convicted.

    However, this twisted definition is not the same as the legal definition of innocent until proven guilty which relates to issues such as probable cause, reasonable belief and burden of proof.

    The legal burden of proof is not on the accuser, it is on the state or the federal government if the alleged rape is considered a federal offense. And this legal burden of proof relates only to legal cases brought against the person accused.

    The common misuse of innocent until proven guilty rejects reasonable belief of those who are seen as crime victims except when their reasonable belief favors those accused of rape who claim to be the real victim. If the person really believed their definition of innocent until proven guilty then they could not declare someone who reported rape to be guilty of a crime unless or until that person has been proven guilty in any criminal court.

  17. July 25, 2008 at 3:39 pm

    Marcella, I just wanted to say that you’re great and I love you and this is why I wanted you to blog here. You are seriously the best person I have ever seen at deflecting rape apologism arguments and I can’t tell you how much I appreciate that, both on a personal level and as someone who regularly writes about sexual violence. That is all.

  18. Anne
    July 25, 2008 at 3:41 pm

    1) “Is it warped thinking for me to think that rape victim testimony is credible but not credible enough to convict barring other evidence?”

    In a way, yes. If a man was mugged and the case came down to the mugger saying “But he gave me his wallet. He’s just changing his mind now.” and the man saying “I never gave him my wallet” would you have this same doubt and reaction? Would you say the testimony of the victim was not credible enough? Make a special note of what Jennifer commented above “As you point out, that is clearly NOT how we treat accusers in most situations, which suggests it means something when we do treat them that way.”

    2) “I dont understand how a lot of people say that stranger rape is much more rare than other -types- of rape (i know all rape is rape but I dont know another way to categorize the circumstances of rape such as spousal, acquantance, date) and that these other types of rapes are much, much harder to prosecute and then say the conviction rates are far too low.”

    First, stranger rape IS rare compared to other types of rape. There are statistics on this – it’s not an opinion – so I’m not sure why it’s hard to understand.
    Secondly, you say you also don’t understand why date/marital/acquaintance rape are much harder to prosecute. Look at what you’ve just written about rape. You don’t think a rape victim’s testimony is credible enough. Your opinion is the majority of people’s opinions. We have an uneducated (on the topic of rape) population who buys into rape myths, generally think all accusers are liars if their rape doesn’t fit into a very narrow definition, and so on. When the people handling a case don’t believe it, they’re not going to do their best if they even try at all. Then, if it gets far enough that there is a trial, guess who is going to be the jury? It’s very easy to see why the majority of cases are hard to prosecute and conviction rates are low.

    3) “Its just hard for me to wrap my head around as the effects of a rape or molestation allegation are quite horrible”

    Can you tell me what happens to those accused of rape (I’m not talking about those accused of harming children)?
    Considering most women never report their rape and when they do the chances of it going to court are low and the chances of him being convicted are low – tell me what happens to the guy who rapes his girlfriend and she doesn’t report it but tells her friends? Do they lose their jobs or get kicked out of school? Do they get death threats? Are they unable to find jobs because the hint of the accusation scares employers? Is every detail of their life (sex life, in particular) combed through and used against them? What happens to them if an accused person goes to trial and there isn’t media coverage – what does this person experience? As far as those accused of rape who go to trial and get media coverage – what do they experience? I’m asking in all seriousness.

    The rates of false report of rape is no different than false reports of other crimes – it’s low. But the difference is that we don’t immediately accuse victims of other crimes of lying. There is no hand-wringing or worry about the accused being innocent and having his life thrown away solely on the word of someone else. When the crime is rape suddenly everything is different.

  19. Alara Rogers
    July 25, 2008 at 4:28 pm

    Logically speaking, we should always assume a woman is telling the truth about being raped, while reserving the possibility that she is not, because the actions of the parties in a case where the woman claims a specific man raped her (who she knows) and where he claims he did not make the most sense in the circumstance that he actually did. To believe otherwise is to assume that women are especially and uniquely likely to be irrational and/or liars and that they are so *only* in the circumstance of rape accusations.

    Consider this thought experiment. What motive does a woman have for lying that rape occurred when it did not? Well, perhaps she wants revenge. But if women in particular are so obsessed with revenge that they will bring court cases against innocent people as a general thing, you would expect to see many women accusing innocent women of stealing from them when the accused is an estranged friend. This doesn’t happen. And we can easily tell that men are more interested in revenge on women than women are interested in revenge on men from the fact that men murder women for revenge far more often than women murder men, so we would expect to see that there would be many cases of men bringing false accusations of, say, theft against former girlfriends, but that doesn’t happen either. So it is unlikely that the reasonable, normal person is bringing a court case in order to get revenge.

    Could she be protecting her reputation? Possibly, if she is married or belongs to a subculture that places a high value on virginity. But in such a case, she would be claiming rape as an explanation for a sex act that has already been revealed by someone else. If she reveals the sex act herself in the course of charging rape, or she belongs to a subculture that does not overly stigmatize female sexuality, or she has previously demonstrated herself to be open about having casual sex, then she cannot be “protecting her reputation” by making a rape charge, so this motive disappears.

    Could she be mentally ill? Possibly, but the average person is not mentally ill. In the absence of any evidence that she is delusional we must assume that she is not. So this is not a likely motive.

    If the accused is a celebrity, could she be trying to force him to pay her hush money? Possibly, but most accuseds are not celebrities, so this motive cannot apply to the majority of cases.

    So, we have found that in the majority of cases, a woman has no reason to lie and say rape occurred when it didn’t. Does a man have motive to lie and say rape didn’t occur when it did? Absolutely! It keeps him out of jail!

    Thus, while the legal system must presume that any person accused of anything is innocent, the scenario where the woman is lying that the man raped her makes much, much less sense than the scenario where the man raped her and is now lying about it. Our criminal justice *should* presume that women who make such accusations are telling the truth until some sort of proof comes to light that they are not, and the standard of proof needed for “we cannot prosecute this man for rape because we can’t prove beyond a reasonable doubt that he did it” would be much much lower than the standard needed for “we can prove beyond a reasonable doubt that this woman maliciously lied to harm this man.”

  20. Alara Rogers
    July 25, 2008 at 4:37 pm

    I should also add that in the scenario where the woman is mentally ill, she makes a very attractive target for rapists precisely because the mentally ill are *never* believed about anything as much as the mentally well are, so while the possibility that she is delusional exists, there is also a strong possibility that she was targeted for rape because of her illness and the cover it would give the rapist. Also, if the man is a celebrity, the woman could possibly be lying to get money out of him, but celebrities are well known to behave like overly entitled assholes, both male and female celebrities commit crimes and expect to get away with it, and so a person’s celebrity status actually makes them more likely to be a rapist, not less. So it *still* makes sense to assume the woman is probably telling the truth — even if she has motive to lie, it is still statistically likely that the person she is accusing may have raped her.

  21. July 25, 2008 at 4:58 pm

    dananddanica wrote: “Is there another category of crime where a sentence of 10, 20 years or life can hinge on the word of one person vs another where both parties agree the underlying act took place?”

    Assault, attempted murder and murder to name just a few. When the defense of “it wasn’t me” cannot be used, a common defense is the claim that the defendant was acting in self-defense when that person shot another person or the claim that the gun went off accidentally.

    In the case of murder, the evidence might be a 911 call the victim made right before being shot or a sole witness may testify that the defendant took careful aim and deliberately pulled the trigger.

  22. Sailorman
    July 25, 2008 at 5:18 pm

    dananddanica,

    no, not really: that’s one of the things which makes rape unique, and which tend to make juries and judges more cautious about rape convictions.

    the ones marcella mentions are usually pretty fact specific analyses, and obviously in the murder instances the decedent cannot testify. Self defense cases also tend to look at the outcome: if A beat the shit out of B, then A is going to have a hard time claiming self defense. And finally, self defense isn’t GOOD, or beneficial the way that, say, consensual sex is–it’s merely a necessary evil.

    Rape without physical violence is really one of the few crimes in which the underlying act can be viewed in such incredibly different ways, based on the claims of two competing parties. That is what makes it such an incredibly hard crime to prosecute.

  23. July 25, 2008 at 6:37 pm

    “Innocent until proven guilty” has stood the test of time.

    What about the damage that comes with being labelled a suspect? Hard to wash that off.

    Due process and no rush to judgement arent concepts to be thrown out at will.

    Remember how they came about, to counter the forces of tyranny. Do you want that back?

    Justice will never be perfect. It would be great if all guilty were proven wrong and all innocents walk. If anything our culture is leaned towards incarcerating the guilty.

    Lady Justice’s scales are balanced and blind. We stray from that at our own peril.

  24. July 25, 2008 at 6:38 pm

    I meant leaning towards incarcerating the accused.

  25. July 25, 2008 at 6:51 pm

    What about the damage that comes with being labelled a suspect? Hard to wash that off.

    Because you know what is totally easy to wash off? Being called a lying whore who totally wanted what might possibly have been the most traumatizing experience of her life. Feeling like the whole world disbelieves you, or thinks that if you’re telling the truth that the crime wasn’t bad enough to warrant “ruining a man’s life,” after having already experienced the trauma of being raped? Yeah, I can totally see how that must be much easier than a few feminists online pointing to the evidence and expressing their opinion of your probable guilt.

  26. July 25, 2008 at 9:51 pm

    Being accused of rape, even of little girls, does not ruin a man’s life. Just look at Ian huntley: got arrested, got his name in the papers and all, several times, and it never did a jot of harm to his reputation. All rapists have to do is say (now repeat after me, lads) is,”She’s a lying slut, and anyway, she was gagging for it” Believe me, it worked a treat for your man many times, and it’ll work a treat for ye lot.

  27. July 25, 2008 at 10:01 pm

    Perry Mason wrote: “Due process and no rush to judgement arent concepts to be thrown out at will.”

    But they have already been thrown out when it comes to the treatment of those who report rape. Rape victims get slandered by many of the same people who insist that we resist rushing to judgment. Women who have not been charged with any crime are described as deserving the death penalty because the rape suspect is popular. Others who report rape face death threats or murder plots.

    Apparently, tyranny is bad unless it is the tyranny rape victims face because people insist that most rapes should not be prosecuted — because most rape cases are just too hard — and thousands of rapists must be allowed to run free until they leave their victims dead or maimed so that everybody knows instantly that a crime really happened.

  28. perry mason
    July 25, 2008 at 10:16 pm

    MC, Tyranny is bad in any form.

  29. July 25, 2008 at 10:24 pm

    But Perry Mason what you were describing as creating tyranny does no such thing. Yeah, being charged with rape is stressful, but that ain’t tyranny.

  30. July 25, 2008 at 10:52 pm

    Sailorman wrote: “the ones marcella mentions are usually pretty fact specific analyses, and obviously in the murder instances the decedent cannot testify. Self defense cases also tend to look at the outcome: if A beat the shit out of B, then A is going to have a hard time claiming self defense. And finally, self defense isn’t GOOD, or beneficial the way that, say, consensual sex is–it’s merely a necessary evil.”

    This contrast is meaningless. If you shoot someone in self defense you are not a murderer. If you truly had consensual sex with someone who claims rape you are not a rapist. However, if the defenses are false ones in both cases then 2 serious crimes were committed.

    Yet when the felony is rape then a false defense causes many people to believe that the case should be immediately dropped. There are many non-sex crimes where if the person is not guilty then they did nothing wrong or even did something good.

  31. perry mason
    July 25, 2008 at 10:58 pm

    MC Here’s how it’s tyranny. Someone is innocent but they are arrested. Held in a cell until booked. Have a restraining order slapped on them pro forma. Their freedom is taken away. All before they have had a chance to make their case. The way the law is set up today its “better safe than sorry”. Municipalities are afraid of lawsuits and err on the side of caution even if it means harming the innocent. If you believe that our Constitution makes this country great you are in for a rude awakening. It causes them problems at work through background checks even if there is no conviction the arrest shows up in our law and order society. If the arrest hits the paper they and their family are shamed in the community. Shame of this magnitude pre-trial is a pretty strong punishment even before any trial remember. They are deprived of life, liberty, property. That is the definition of tyranny. Something that was overthrown in the USA.

    A rapist is a sociopath. Someone who violates another person’s boundaries.

    A knowing false accuser is a sociopath as well. And at this time in this country there are huge unconstitutional loopholes in the legal system that allow them to perform violence by proxy ie. use the state to harm another. Its a hard charge to prove but we need to try. Just as every rape claim should be tried.

    To deny these sociopaths exist and ruin lives is as bad as having a negative view of a rape victim coming forward. Men and women make the justice system together. Deny men’s experience of injustice long enough and the breaking point wont be pretty.

    The punishment should fit the crime. If a false accusation can lead to 10 years or more in jail why shouldnt a malicious false accusation carry the same charge?

  32. Alara Rogers
    July 25, 2008 at 11:08 pm

    The punishment should fit the crime. If a false accusation can lead to 10 years or more in jail why shouldnt a malicious false accusation carry the same charge?

    Well, it should. And in the world where a poor black woman could accuse the white son of a Senator of raping her, and when the DNA evidence comes back proving they had sex, and she has bruises and tears in her vagina, and he says “Yes, we had sex, but she totally wanted it!” and she says “He’s lying, he raped me!”, the *evidence* is used to make the conviction, not the belief that sons of Senators must be upstanding citizens and poor black women must be liars and probably prostitutes, then maybe this could be implemented.

    Right now, though, there is no way to tell the difference between a woman who is maliciously falsely accusing a man, and a woman who was genuinely raped but her social status makes her less credible than her rapist, because our system actually *assumes* that women are probably lying.

    When the system assumes that women are probably not lying, and the fact that it is much more likely that a man lied about committing rape than a woman lied about being raped, for the reasons I explained above, *then* it would be possible to fairly go after false accusations and treat them as real crimes. But as long as most women who accuse men of rape are treated as if they have probably made a false accusation, even though most of them have in fact been raped, it would be impossible to identify the actual false accusers from the women who have been treated poorly by the justice system. And if that’s the case then women who are actually rape victims will be even less likely to come forward, and rape will be even *more* common. Or rape will be treated by vigilante justice, which is far, far worse for innocent men than being falsely accused by the justice system is.

  33. July 26, 2008 at 1:20 am

    PM, in your first comment on this post you wrote: “Justice will never be perfect.” But you accept this reality selectively. When this lack of perfection hurts rape victims, that’s just what happens under a system of innocent until proven guilty.

    When this lack of perfection hurts innocent defendants accused of committing rape, that’s tyranny because you can relate to these people. You demand harsher punishment for those who falsely report rape, but give no consideration that rape victims are also falsely accused and can be falsely convicted based on one person’s lie or a coerced retraction.

  34. July 26, 2008 at 1:41 am

    One interesting side effect of making the false reporting of rape a felony would be that this would cause more of these cases to go to trial. And at this trial the alleged rapist loses all the protections which come from being the defendant. The alleged rapist could be required to testify under oath and could face the same type of treatment currently given to those who report rape.

    There are some rape cases which are widely considered false allegations where this sort of trial would be fascinating because of who could be required to testify. With the protections reversed all sorts of questions would finally be answered. Every technique and approach which courts allow to be used against rape victims could be directed at this alleged victim.

    Of course rather than seeing the situation from rape victims’ perspective, this would be marketed by those who demand this change in law as another way the system hates men.

  35. July 26, 2008 at 3:00 am

    Marcella, Archivist has been trolling around the SAFER blog too. I always wonder: who are the people who get obsessed with rape denialism? What is their freakin’ deal? Christ on a cracker. Why why why? I could ponder this until my teeth were ground to dust. Anyway, it’s nice to see you methodically poking holes in his arguments.

    Great post.

  36. dananddanica
    July 26, 2008 at 6:45 am

    alara, what if we switch the races and positions there and make it a black man raping a white woman? The history of that is scary enough to make me worry.

    Marcella,
    Thank you very much for your responses, very enlightening. I struggle often to make my points clear and your reponses were very well put, you should definitely be a poster. At the end of the day though I just cant make it work in my head that barring any other evidence the word of one person should be able to put another in jail or in the example of self-defense, exonerate someone from a murder. I know how I -feel- it should go and perhaps you can school me some more on the legal side of things though I fear I have asked too much of you already. To personalize it again, as that helps me sometimes, if behind closed doors, only me and a woman, or a man as I sleep with both, have sex and in the morning my partner claims rape with no physical evidence of any kind other than fluid in one orifice or another, I don’t see how that could result in a conviction beyond a reasonable doubt, isn’t my testimony also credible on its face? What are the motivations for my partner to lie? I dont know, there could be many as pointed out earlier in this thread, should that not also be a part of the investigation or should the victims claims be believed on their face and not mine?

    Should then rape victims be questioned about why theyre making the claim in much the same way you pointed out alleged perpetrators would be in your last post? I’m all for what you bring up in your last post and more trials, especially in cases that for lack of a better term come down to only she said/he said, he said/he said, she said/she said.

    I guess the crux of it is for me, only having the word of one person, combined with “why would they possible lie?” doesnt add up to conviction for me. I want it to not be like that but I cant make it so in my head.

    pm,
    “A rapist is a sociopath”. I dont think all rapists are sociopaths, some are but if they all were the % of americans who would be sociopaths would be startingly high. I believe a statement like that is a form of cover for rapists though thats just my ill-informed opinion.

    Thanks again to you marcella, and the other posters, for taking time out of your day to respond to my questions, I really appreciate it.

  37. dananddanica
    July 26, 2008 at 6:50 am

    marcella,
    Last thing, about being charged with rape. I mentioned it earlier but I don’t understand why some people write it off, as just stressful for example, or think that I’m equating an accusation and all that comes with it with actually being raped. I’m not, separate things. I believe the experience of being accused of rape or molestation is excruicating. Luckily I have never had it happen to me but it did happen to my brother, who subsequently lost his job, couldn’t bond out, lost his kids etc. When it finally came out that the mother was simply using a molestation charge as a tactic, she was not punished and he actually had an arrearage of about 2000 dollars in child support that he couldnt pay while he was in jail, just one example but to me it goes well beyond stressful. I think just calling it stressful is classist in a way as just like female victims of rape and DV, if you dont have the resources to manage a lawyer, bond, etc. the system can fuck you over pretty well.

  38. July 26, 2008 at 9:39 am

    Dananddanica, I wasn’t minimizing the impact of being falsely accused when I called it stressful in response to the statement by Perry Mason that being wrongfully accused is proof of tyranny. Stress can be excruiciating.

    When people assume that cases with no forensic evidence and no witnesses other than the alleged rapist and the alleged rape victim are just one person’s word against another that is a recipe for injustice and a sign of incompetence in these types of cases.

    Unfortunately, many people who investigate rape cases are incompetent in this area. Worse many people who have seen the impact of this incompetence use that observation as a reason to fight efforts to get investigators competent because they view this focus as being anti-male. Instead of seeking competence their goal is to replace incompetence with lawlessness.

    I’ve seen this call by several people in this thread.

    This makes as much sense as using the unreliability of an officer’s report of how a driver’s breath smelled to fight having the police get precision instruments.

    Those who believe that drunk driving laws are wrong and should be abolished are likely to want the police to be stuck with methods which are known to be unreliable because that makes it easier for drunk drivers to invoke reasonable doubt and be found not guilty even though they were guilty as charged.

    For these people the suffering of the genuinely wrongfully accused becomes fodder for their political agenda as it helps makes the drunk driving laws look tyrannical and it allows the genuinely guilty to pose as wrongfully accused.

    The solution is not to simply let all drunk drivers run loose until they maim or kill someone.

    Those who suffer are innocent people hurt by drunk drivers and sober drivers who are wrongly assumed to be drunk. Those who hate drunk driving laws will attempt to pit these 2 groups against each other when the change would benefit both groups.

    Competent sex crime investigators have special training on how to get beyond the stereotypical he said, she said argument. What I have learned about this isn’t something I can express in a couple of paragraphs any more than someone could express how to tell the difference between a malignant and benign tumor in a couple of paragraphs.

    Most of the time the person who suffers from this incompetence in rape cases is the rape victim, but this injustice gets repeatedly minimized as a simple by-product of our wonderful system of innocent until proven guilty. Those who tell stories of how false allegations ruin lives frequently ignore cases where rape victims were so traumatized by a mix of incompetence and open disregard (or open disdain) that they committed suicide.

  39. Sailorman
    July 26, 2008 at 11:15 am

    Competent sex crime investigators have special training on how to get beyond the stereotypical he said, she said argument.

    Um….

    bollocks.

    Don’t want to be rude here. But I’ve worked in prosecution offices, I’m friends with a lot of prosecutors, and with a lot of cops. There is no magic pill or Special Training which permits people to find the “real truth” (whatever that means) of what happened. There is only a process of gathering information and eventually coming to believe one person’s account more, or less. Sure, it’s based on testimony, and often (not always) on specific physical evidence, but in the end it’s an issue of belief.

    Yeah, sure, an experienced investigator is better at finding the truth than a newbie. They are more likely to catch inconsistencies, say, or to realize which questions to ask. That is why we should have better investigators for rape. But there will always be a surprising number of cases (including the majority of adult rapes without physical violence) in which the eventual conclusion is NOT based in an obvious inconsistency in the testimony, or on physical evidence. Rather it will be based on a societally mediated analysis of whether someone’s experience or claims “ring true,” which (because society is generally fucked up) is where the whole “asking for it” or “short skirt” defenses come in.

    Anne:

    Anne says:
    July 25th, 2008 at 3:41 pm – Edit

    1) “Is it warped thinking for me to think that rape victim testimony is credible but not credible enough to convict barring other evidence?”

    In a way, yes. If a man was mugged and the case came down to the mugger saying “But he gave me his wallet. He’s just changing his mind now.” and the man saying “I never gave him my wallet” would you have this same doubt and reaction? Would you say the testimony of the victim was not credible enough? Make a special note of what Jennifer commented above “As you point out, that is clearly NOT how we treat accusers in most situations, which suggests it means something when we do treat them that way.”

    That’s an common and atrocious example. Why? Because people don’t do that. We don’t give away our wallets, right? I don’t know anyone who has given away their wallet to a stranger.

    Sex is not a wallet.

    Conviction rates are low in part because of the complexity of sex and the fact that voluntary sex is extremely common. Using the “wallet example” serves only to cloud the issue.

    Try fraud, which is a better example. That’s a claim which usually involves conflicting oral testimony about what happened and who said what: did Nancy promise to pay an extra $500, or not? Did Jane guarantee that Nancy’s neighbor would like the new fence?

    Aaaaand… unsurprisingly, claims of fraud based on oral representations are viewed with skepticism precisely for that reason. It is not nearly as poor treatment as the way we treat rape victims, but is closer to that than the way we treat theft victims.

    2) “I dont understand how a lot of people say that stranger rape is much more rare than other -types- of rape (i know all rape is rape but I dont know another way to categorize the circumstances of rape such as spousal, acquantance, date) and that these other types of rapes are much, much harder to prosecute and then say the conviction rates are far too low.”

    Simple:

    Physical evidence rules.
    Good circumstantial evidence is also powerful.
    Personal testimony by a party can be the least powerful.

    The more that the evidence matches a common “non rape event”–i.e., the more that the evidence can be used to support the claims of the victim and accused–the less likely the conviction.

    Stranger, violent rapes are the easiest to prosecute. It’s easier to convince a jury it was rape when the woman is beaten up,or the rapist has scratch marks on his eyes, and so on. And if it’s a stranger the defense of “we just like violent sex” is hard to show. Personally, I am always most disappointed in this category: this seems like the one where we should really be convicting a very high percentage of actual rapists, and we do not. The “not guilty” verdicts in these cases can really be jaw dropping.

    Stranger nonviolent cases are harder. They are harder to prove because the “non rape event” is less rare: some people DO have sex with strangers they meet in bars. But they are much more difficult to win, especially because of the incorrect perception that “no fighting” = “consent.”

    Acquaintance violent rapes are next. They are hard to prove as described below, but the prosecution has the benefit of physical evidence which supports the accuser more than the accused.

    Acquaintance nonviolent rapes are much harder to win. Think about it: All of the physical evidence, and much of the circumstantial evidence, supports BOTH the victim’s story AND the accused’s story. yes, she came over; yes, we had drinks; yes we had sex; yes, it was that bed; and so on. The “non rape event” is theoretically common. These are won and lost on circumstantial evidence; “yes, we were friends but had never had sex and I would never have wanted to sleep with him” and so on.

    Acquiaintance nonviolent rapes with prior sexual history between accused and accuser are nearly impossible to win, though they sometimes are won. Think about it: All of the physical evidence, and much of the circumstantial evidence, supports BOTH the victim’s story AND the accused’s story. The “non rape event” is not only theoretically common, but has actually occurred already.

    The conviction rates ARE far too low, insofar as most rapists don’t get convicted. Most people in the field understand why the rates are low, but that doesn’t make the rates better. It makes perfect sense that acquaintance rapists won’t get convicted often, but they’re still rapists, if you get my point.

    The problem is how to fix it.

  40. July 26, 2008 at 1:22 pm

    Sailorman, you are twisting my words. Competent investigations of rape cases where there is no forensics evidence are not about magic pills and they are not just about not being a rookie cop or not being a rookie prosecutor. Plenty of veterans in the legal system are incompent when it comes to rape cases where the alleged rapist isn’t a stranger.

    This isn’t just my opinion.

    That you keep insisting that all these cases are only about “he said, she said” reveal that you don’t know what you are talking about when it comes to rape cases.

    You say people never hand over their wallets willingly, but people do this. I’ve seen people do this. I’ve had men hand me their wallets and ask me to put them in my purse. This happened often when I would go with friends to our favorite swimming hole beginning almost as soon as I started carrying a purse. The guys liked to swim in their cutoffs, but they didn’t want to get their wallets wet.

    I was no thief, but according to you if one of those men went home and reported his wallet stolen and it is found in my purse I’m as good as convicted.

    That doesn’t inspire confidence in your investigative insights.

  41. Alara Rogers
    July 26, 2008 at 1:27 pm

    Acquiaintance nonviolent rapes with prior sexual history between accused and accuser are nearly impossible to win, though they sometimes are won. Think about it: All of the physical evidence, and much of the circumstantial evidence, supports BOTH the victim’s story AND the accused’s story. The “non rape event” is not only theoretically common, but has actually occurred already.

    But isn’t there a significant difference between the incident where rape has been alleged and the previous agreed-to-be-consensual incidents? To wit: The woman says it was rape.

    Either she is lying or he is. The question is, who is more credible? And if you assume that men and women are equally credible at baseline, then the person who says a crime happened when it didn’t is more unusual than the person who was accused of a crime who claimed it didn’t happen when it did.

    It’s not like fraud because in fraud, the false accuser has a strong motive — monetary gain. The false accuser in rape has very few possible credible motives, many of which can be instantly thrown out in the majority of cases on the basis of evidence (if she can not be shown to be delusional, and if he cannot be shown to be a wealthy celebrity, then the “she’s crazy” and “he’s rich so she wants to force him into a settlement” defenses go away.)The entire reason this doesn’t happen is that we believe men to be more credible than women, so the fact that it is inherently more unlikely for a person to lie about being a crime victim than to lie about committing a crime doesn’t come up, and it should.

    I would tend to think that if there is evidence of sex, and she says it was rape, and he says it wasn’t, it was rape unless he can present compelling evidence that she had motive to lie. Because if he’s a rapist, he already has compelling evidence to lie. “He said/she said” is *not* equal — she said he committed a crime and stands to gain nothing by saying so, he said he didn’t and stands to escape jail or a felony record by saying so. The motivation for saying “He raped me” is not equal to the motivation for saying “She wanted it.” (This would be true if a man accuses a woman of raping him as well.)

  42. Sailorman
    July 26, 2008 at 1:38 pm

    I was no thief, but according to you if one of those men went home and reported his wallet stolen and it is found in my purse I’m as good as convicted.

    That doesn’t inspire confidence in your investigative insights.

    Christ.

    Marcella, will you drop the ad homs? Or will you do me the courtesy of rereading my damn post, where you should have noticed the phrase “If a man was mugged and the case came down to the mugger saying “But he gave me his wallet. He’s just changing his mind now.”

    Sheesh. This was your reading error, not a failure of my, um, “investigative insights.” You’re so hot to take a stab at me that you’re not even respondig to what I am saying.

    I know what I’m talking about quite well. I’m actually attempting to have a discussion about it. That you choose to respond to my arguments with a simple “you’re wrong” is not an indictment of my position, especially if you’re not actually reading what I say.

  43. July 26, 2008 at 2:26 pm

    Sailorman, I read your post the first time. I’m not hot to take a stab at you as you put it. You put forth a statement of fact that simply isn’t true and built a position based on that fallacy. When I give you one example from my personal experience which disproves your claim which is the basis of a longer argument, you cannot accept that it might be your claim, and the argument based on that claim, which I am opposing and which is wrong.

    You hold quite a few positions which I find troubling and dangerous when it comes to non-stranger rape cases. You take my criticisms of those positions as ad hom attacks when they are not.

    During my time as a victims advocate I watched how well trained sex-crime investigators worked and they had far better investigative techniques than you describe as being the best case investigation.

    You wrote: “There is only a process of gathering information and eventually coming to believe one person’s account more, or less.” But this is a false statement. Rape cases with no forensic evidence can be proven and have been proven where it isn’t just a matter of who to believe more or less. Yet you position this as an impossibility.

    I find that deeply troubling.

  44. reader
    July 26, 2008 at 4:54 pm

    Marcella: When I give you one example from my personal experience which disproves your claim

    Nope. You misread Sailorman’s post. What he said was:

    Sailorman: I don’t know anyone who has given away their wallet to a stranger. (boldface is mine)

    He specified “to a stranger”. You cited an example of when an acquaintance asked you to hold his wallet. Your statement does not disprove anything — it’s irrelevant.

  45. July 26, 2008 at 6:47 pm

    Reader, the problem with your analysis is that using the model which was suggested in the comment I quoted in my post, no part of the mugging victim’s claim should be believed based on testimony alone. That includes whether the person who has the wallet is genuinely a stranger.

    Some of the guys I swam with as a teen were guys I didn’t know or only knew on sight and not by name so I would have had no way to prove that all these guys were acquantances.

    Sailorman tried to disprove my analogy by selectively picking statements which he treated to be proven facts in the mugging scenario even though they are based on testimony alone. In rape cases when a woman says she was raped by a stranger, Anarchist’s (correction the commenter goes by Archivist) model says that the police should neither believe nor disbelieve her.

    That automatic mismatch is telling about how different crime victim reports are assessed differently by many people when there is no evidence that the person who reported being a crime victim filed a false police report.

    Sailorman’s decision to accept the alleged mugging victim’s claim as fact would put me in exactly the position I described. Proven guilty. Yet in his discussion of “non rape event” he clearly follows Archivist’s model. Worse, if the rape victim cannot prove rape but she isn’t proven to be a liar then Sailorman clearly labels her rape as a “non rape event.”

  46. Alara Rogers
    July 26, 2008 at 9:55 pm

    Try fraud, which is a better example. That’s a claim which usually involves conflicting oral testimony about what happened and who said what: did Nancy promise to pay an extra $500, or not? Did Jane guarantee that Nancy’s neighbor would like the new fence?

    Aaaaand… unsurprisingly, claims of fraud based on oral representations are viewed with skepticism precisely for that reason. It is not nearly as poor treatment as the way we treat rape victims, but is closer to that than the way we treat theft victims.

    Except… there is a huge monetary motive to claim fraud when there isn’t. There is *no* similarly great and universal motive to claim rape when there wasn’t. If rape was a tort that involved paying the victim huge sums of money, maybe, but it’s a criminal act that involves the victim receiving no benefit except maybe the satisfaction of the rapist being behind bars, so where’s the motive to lie about it?

    If women were generally inclined to make false accusations of criminal activity for emotional reasons — something often brought up in the notion that women lie about rape, as in “Well, maybe they had sex and she regretted it in the morning” or “Maybe she wants revenge on him for dumping her”, then we would expect to see women using this tactic — false accusations — a *lot* in cases of broken female friendships (which often leave the participants just as heartbroken as broken romantic relationships do.) So you would see a lot of “She stole my expensive vase from my house! Look, I have receipts and photographs that it belongs in my house!” “No, I didn’t! She gave it to me!”

    But you don’t. Because women, as a group, don’t maliciously lie about crimes that didn’t happen to them in order to get revenge on a person that they feel wronged them emotionally. It doesn’t happen. If it did happen, we would see it appear in other crime stats as well, because women would use that tactic in situations other than men they’d had sexual relations with. But oddly enough, we don’t. Women don’t report that other women stole from them, where the other woman claims it was a gift, in any significant number. This strongly implies that women do not claim crimes that didn’t happen as a method of revenge or because they regret an action, any more than men do, which strongly implies that the rate of false accusations of rape is exceedingly low, low enough that we can assume that the average person who says she was raped in fact was and the only question may be, is she recalling accurately *who* the rapist was, and might there be a mitigating circumstance where a reasonable person would have been unaware that she didn’t consent?

    (Please note, my notion of a mitigating circumstance would be VERY VERY much stricter than what the courts have actually ruled to be mitigating circumstance. There is no mitigating circumstance for having sex with a 10 year old. “I thought she was 18” is simply not believable; if you’re so dumb you can confuse 10 year olds and 18 year olds, you should be locked up for stupidity if not for rape. There is no mitigating circumstance for sex with an unconscious woman. There *are* possibly circumstances where a drunk woman who acted as if she was wide awake, quite enthusiastic and interested in sex, and sober enough to be in control of her own body, might still have a blackout and mistakenly believe she’d been raped in the morning because she didn’t remember enthusiastically agreeing to sex, but I’d need to see evidence that the agreement was enthusiastic and vigorous, not semiconscious mumblings of “uh-huh” that the guy took for full consent.)

  47. July 26, 2008 at 9:57 pm

    This statement by Sailorman (39) has a basic but critical flaw: “Acquaintance nonviolent rapes are much harder to win. Think about it: All of the physical evidence, and much of the circumstantial evidence, supports BOTH the victim’s story AND the accused’s story. yes, she came over; yes, we had drinks; yes we had sex; yes, it was that bed; and so on.”

    This is how a person accused of rape is likely to describe what happened if the defense is “she consented.” However, this description is not a list of what happened from the perspective of the person who reported rape if a rape really happened.

    While a rapist would say, “we had sex” the rape victim might say, “I felt dizzy after the first drink, things went blank and when I woke up, I was naked in his bed and when I screamed telling him to stop he just kept raping me and telling me to loosen up because he knew I wanted it.”

    These 2 descriptions are in no way parallel or easily interchangable. Yet Sailorman’s summarization of acquaintance rapes negates this reality. By doing so he creates a false picture. Consent gets implied in the single description of what happened ( “yes we had sex”) as if it has been proven.

    That explains why Sailorman views fraud as the better analogy. And of course when people think about acquaintance rape in these terms the charges will seem doubtful at best and any conviction will seem to be a likely miscarriage of justice.

  48. dananddanica
    July 27, 2008 at 6:54 am

    again interesting responses. I appreciate it all but I just think it will take me time to get through it, to come to an understanding that sits well with me. If I switch it around and make it one of the crimes marcella listed earlier in response to a post of mine, assault, it becomes even murkier for me. If I had a girlfriend currently and behind closed doors she hit me and I called the cops claiming assault/dv how would that turn out? As things stand right now I wouldn’t hold out a lot of hope that I wouldnt be the one going to jail as I’d probably be about 100 pounds heavier, a foot taller and could be described as a scary lookin’ dude. If a competent DV investigator took the case, he could find out about all the things leading up to the assault and could have had me examined the night of, finding no marks. How the heck could I get an assault conviction on my girlfriend? I have no reason to lie and a ton more reasons to keep quiet about it as in my world making that kind of call would be seen as quite the bad act, I’d know no one would believe me and I’d be setting myself up for ridicule so should the investigator take that into account, weigh my word as more valuable than hers and lock her up for 1-3 on the assault charge? Would never happen in the world I inhabit. To be clear im not equating assault with rape but I just dont see how its any different in for the purposes of this discussion.

    At the end of the day it seems an argument is being made for testimony and “why would she/he lie”? adding up to a conviction in the types of cases I’m talking about, I just dont see how that should be. The problem for me is I don’t see how to “fix” that as again, I could rape at will given the parameters im setting and never serve time for it if each case was viewed in a bubble. So is the possible result of making this mainstream knowledge yet another thing to add to “why would she/he lie” to make the victims testimony more credibile than mine?

    As far as the mugging thing goes, I see the corollary though I might be seeing it incorrectly. In the case of a mugging, both people agree that ownership of the wallet was tranferred, they just disagree over how. In the case of rape, if both agree sex took place, it seems to become a disagreement over how (though I know the victim wouldnt see it as sex even though some rape victims dont realize theyve been raped to well after, not drugs or anything just not seeing it for what it was). But I dont see the act of sex and a transferring of a wallet as quite the same, does anyone ever start to hand over their wallet because they want and then is mugged? How would that work?

    I’ll leave it with me just not being able to see 100% what you are marcella, I just dont see how one persons testimony can so outweigh anothers barring any evidence of a bad act. Witness testimony in a murder is different as there is a body, witness testimony in an attempted murder or assault charge won’t give you an automatic conviction if there is no evidence of the attempt or the assault as reasonable people could disagree on what happened. Why should witness testimony for a rape victim be sancrosanct more than any other crime? I feel it should be, they should always be believed but i dont think that. I think that the investigation should be run as if the victim is 100% truthful until proven otherwise but I think that investigation can come to a cold stop if no other facts come to light and it does come down to the victims testimony against the perps.

  49. July 27, 2008 at 10:06 am

    Dananddanica, when you judge testimony as being more credible based on your perception that it is obvious that a crime occurred you are showing that it is actually easier for people to lie and get away with it — or alternatively to tell the truth and not be believed — in those situations than in the situations you worry about where investigators might doubt that any crime at all occurred.

    This matches the exonerations of people wrongfully convicted of murder or stranger rape which many people use to try to undermine all rape cases. So if a child who lives with you or near you is raped and murdered that’s when you are at greatest risk of being falsely charged and falsely convicted.

    Yet when those cases are being discussed those who like to shout “innocent until proven guilty” remain silent. At one blogger’s site where this was a big theme another rape was reported at the same place and when it came out that the suspect was black and the alleged victim white, that was all the evidence they needed to dismiss that case as not worth thinking about. The case fit their expectations for a real rape and that’s all they needed to know.

    The family of JonBenet Ramsey was only recently announced to be off the list of potential murderers. Imagine what would have happened if an investigator got an innocent family member to agree to be interrogated and that person broke down and falsely confessed. Would you believe that a confessed murderer was innocent?

    In the example you gave the most likely outcome is that the cops will charge nobody because what happened will be viewed as an argument which got out of hand and in which nobody was injured. This might be true even if the woman who assaulted you told the cops, “He asked for it.”

    In date rape cases where the defendant has admitted that the alleged victim didn’t consent juries have still let these rapists go.

    Many people continue to view date rape as nothing more than a dispute where no crime happened because nobody was injured. If she ain’t maimed or dead, he ain’t guilty.

    You have fears about being denied justice, but I don’t believe the laws and enforcement of those laws should be based on your fears so that thousands of rape victims are undeniably denied justice.

  50. Sailorman
    July 27, 2008 at 5:00 pm

    Would it kill you to, you know, actually address what I write? I mean, look at the last few posts:

    -you write on wallets

    -I point out why that’s a bad analogy in my view, and suggest that fraud is better (note: better, not ideal) and I also say that fraud “is not nearly as poor treatment as the way we treat rape victims, but is closer to that than the way we treat theft victims.” (again: closER. BettER. There is no perfect analogy for rape other than rape, but the wallet analogy really sucks.)

    -You mischaracterize my wallet comment for some reason.

    -I point out that you did so. You don’t apologize for it. You don’t address the issues I raised in my wallet comment. You don’t concede the possibility that one or the other of us is simply miscommunicating. Instead, you again assign me your own personal “what Sailorman is doing is…” (which incidentally is pretty much the worst interpretations of my post) and go off on it.

    -Then, you do the same for fraud. AGAIN, you apparently ignore the rest of my sentence that provides the all-important context.

    I am continually amazed at your deliberate mischaracterization of my views in this thread. I think “any conviction a miscarriage of justice?” WTF? I have said hundreds of times that rape convictions are difficult; that they are biased against victims. I have written plenty on rape. Hell, I wrote on this very subject back in 2007, myself: http://moderatelyinsane.blogspot.com/2007/09/more-on-bias-neutral-improvements-for.html We have exchanged many comments. Why are you–just now–acting as if you’ve never read any of my stuff, i’ve never read abyss2hope, and as if I’m some MRA “all men are innocent” writer?

    We need to understand and acknowledge the issues which make it difficult to convict rapists. We need to understand and acknowledge the extraordinarily difficult problem of trying to convict people in situations where the physical and circumstantial evidence do not necessarily support conviction–even though a crime occurred.

    If we don’t understand them, we can’t fix them. If we don’t acknowledge them, and pretend that the evidence is different, we will fail to be persuasive when discussing the evidence. You can talk all you want about the fact that a jury or observer “should” come to X conclusion, or deliver Y verdict. But unless you know WHY they do it, your opinion isn’t going to change their mind.

  51. dananddanica
    July 28, 2008 at 6:31 am

    “In date rape cases where the defendant has admitted that the alleged victim didn’t consent juries have still let these rapists go.”

    That needs to change, I agree with you on that but I wasn’t discussing cases where the defendant admitted to a lack of consent.

    “Many people continue to view date rape as nothing more than a dispute where no crime happened because nobody was injured. If she ain’t maimed or dead, he ain’t guilty.”

    Many people do feel that way, I’m not one of them though for me there is a clear distance between maimed or dead and no physical evidence at all.

    “You have fears about being denied justice, but I don’t believe the laws and enforcement of those laws should be based on your fears so that thousands of rape victims are undeniably denied justice.”

    I dont get this, the two dont need to be in conflict. I agreed with the first part I quoted, said where I disageed on the second and with this one, you seem to again be going for the larger argument where I am still discussing cases that lack physical evidence. Is the system as a whole fucked up? Yes. Are there many, many things I would agree with you on as far as handling and invesitgation of rape cases? Yep, ive already listed a few. But my fears of being denied justice in the cases I am talking about don’t seem so inconsequantial to me and again it does not need to be an either/or proposition from the outset.

    I still dont get in the types of cases I’m talking about, behind closed doors, no witnesses, no physical evidence, how an allegation of rape could result in me going to jail and I understand the difficulties that result from that but I dont know how to fix them.

  52. July 28, 2008 at 10:25 am

    Danandanica, if you didn’t commit a sex crime with no witnesses and no physical evidence that allegation wouldn’t result in you being convicted. The evidence to prove the charge beyond a reasonable doubt simply wouldn’t be there.

    Ignoring all rape cases of this type based on your fear of a false conviction would not save you from what you fear, but it would prevent the possiblity of true convictions in thousands of rape cases each year. This would leave more rapists feeling entitled to rape and it would leave your reputation more tainted if someone made a false allegation against you when they consented because your assumption means that you can never prove that you weren’t rightly accused under these circumstances.

    Your denial becomes meaningless. Same goes for anyone you know who claims to have been wrongfully accused where DNA or other physical evidence doesn’t clear them. Studies have shown that confessions can and are induced when the person confessing is innocent so retractions without the evidence to prove them also become meaningless.

    However, if you did commit a sex crime there is a real possibililty under these circumstances that even with the defense “she consented” you could be convicted and properly so — if the investigators know how to get all of the relevant evidence in cases such as this and if they recognize what is meaningful.

    Many people who commit sex crimes rationalize away lack of consent so that if they are rightfully accused they view themselves as wrongfully accused and they can and do make statements to friends and others which incriminate them. Others simply feel above the law so even though they are guilty they have no fear of being convicted. Some of these rapists go online and brag about their conquests.

    If police assume there is no evidence except the victim testimony they won’t even bother looking for evidence of guilt which in some cases isn’t hard to find and which will be admissible in criminal court.

    Many people who commit crimes like this are serial rapists and prosecutors have successfully argued to try a series of crimes together to show a pattern which is no different from murder cases where a widow or widower accidently shot his/her last 3 spouses.

  53. July 28, 2008 at 8:49 pm

    Sailorman, please knock off the personal attacks.

    You claim that mugging is a bad analogy because you either don’t understand the point of my analogy (you seem to have tunnel vision as you ignore the actual point of my analogy as you try to debunk it) or you assume all reports of muggings to be valid. But false reports of muggings do happen.

  54. July 29, 2008 at 10:28 am

    Sailorman, in case you are still confused about my response to your “correction” of my analogy I’ll explain further.

    You wrote: “I point out why that’s a bad analogy in my view, and suggest that fraud is better (note: better, not ideal) and I also say that fraud “is not nearly as poor treatment as the way we treat rape victims, but is closer to that than the way we treat theft victims.” (again: closER. BettER. There is no perfect analogy for rape other than rape, but the wallet analogy really sucks.)”

    The core problem here is that I was CONTRASTING the way investigators treat those who report having been mugged to the way investigators treat those who report being raped — despite the fact that both crimes have been falsely reported.

    Your closer, better analogy wipes out this contrast and then you attempt to silence all discussion of the contrast I highlighted in the original post.

    That’s dismissive, disrespectful and intellectually dishonest.

    And of course when I don’t let your repeated “corrections” stand as gospel I’m the one attacking you.

  55. Sailorman
    July 29, 2008 at 11:11 am

    I still dont get in the types of cases I’m talking about, behind closed doors, no witnesses, no physical evidence, how an allegation of rape could result in me going to jail

    Because your credibility and statements may be insufficient, in comparison to the credibility and statements of the accuser, to raise the defense of reasonable doubt.

    It is not so difficult to imagine that we will reach a conclusion based on no more than a credibility analysis, without physical evidence. We do it every day. The guy on the street corner who claims that the FBI killed his wife may actually be right, but I don’t regard him as credible enough to believe him.

    We do the same in the courts as well. Judges grant restraining orders on a frequent basis, on the substance of generally-conflicting oral testimony. Same with rape.

    Just remember, as well, that the LEGAL definition of rape is a very small subset of the MORAL definition of rape. The defendant does not need to use his credibility to prove he was a “good guy” or that he acted morally. He only needs to use what credibility he has to convince the jury to buy into one of the various “escape clauses” in the rape law.

    That is why convictions based only on testimony are incredibly hard to get.

  56. Sailorman
    July 29, 2008 at 12:04 pm

    The core problem here is that I was CONTRASTING the way investigators treat those who report having been mugged to the way investigators treat those who report being raped — despite the fact that both crimes have been falsely reported.

    OK, let’s talk just about this for a moment.

    Yes, both crimes have been falsely reported. No debate there. But that language tells us nothing about the issue.

    The variance in the TYPE of “false” reports are going to be different between mugging and rape. If you only look at one subset of false reports–as you seem to be doing–then you will reach the wrong conclusion. The variance can probably explain much (though probably not all) of the difference in reactions to the accusations.

    I have written on the different types of “false” accusations, at http://moderatelyinsane.blogspot.com/2007/05/false-false-false-false-or.html

    So, let’s start with “maliciously false,” a.k.a. “subjectively and objectively false.”

    What %age of mugging reports are maliciously false?
    What %age of rape reports are maliciously false?

    You and I both agree, IIRC, that these %ages are likely to be close to identical. And small, FWIW.

    Where we run into the problem is LEGAL falsity, e.g. “subjectively true, objectively false.” You can read more about that definition on the linked post.
    what %age of mugging reports are legally false?
    What %age of rape reports are legally false?

    It seems obvious that mugging reports will tend to match more accurately to the legal ability to convict the mugger. Why? Well, because mugging is fairly simple: you threaten someone or beat them up, and you take their money. Society’s expectation of what mugging is, is a good match for the law. If someone says “John mugged me and took my wallet” then the assumption is that, if the story is true, John should be convicted. And that assumption is generally right. Moreover, it rarely has anything to do with what the mugger says. There aren’t many escapes for mugging other than “I didn’t do anything;” there are not may loopholes.

    Rape is different. Why? Because society’s expectation of what “rape” means is a BAD MATCH for the law. There are many, many, situations in which someone says (and feels) “I was raped” and the law does not agree. This in fact is one of the larger issues in rape prosecutions. For an example, see http://moderatelyinsane.blogspot.com/2006/10/analysis-of-oregon-rape-law.html

    So even though pretty much everyone who says “John raped me” will, in their heart, believe that this is true (just like everyone who says “John mugged me,”) for the rape victims this is less likely to be accurate. It’s not based on malice. They are not responsible for knowing the intricacies of rape law, so even if it turns out that what they thought was rape isn’t something that their state has chosen to define as a crime, it’s not their fault. Bit the fact that this is more likely is, probably, an effect on investigators.

    Finally, there is the issue of convictions. Rapes are, well, hard to prove. Rape convictions are hard to get. Prosecutors or investigators who have limited resources are not always willing to invest significant resources into crimes which are more difficult to solve. This is a problem, but is nonetheless what happens. And if they do go into an investigation at the beginning, they are similarly more likely to terminate an investigation, or to decline to bring formal charges, if it reveals that a conviction is unlikely.

    Again, this isn’t fair or good. But be that as it may, police DO feel that way; I have heard them grumble about (non-rape) cases where they felt their work would be “wasted” by the prosecutor.

    So there you have it.

    Now, before you go attacking me for saying, I dunno, that we shouldn’t investigate rape cases or something… I do not like this. That is why I have written posts, for example, on language of rape laws.

    But I think my summary reflects reality NOW. And I think that it is important to accept, not deny, what is really going on. How else are you going to fix it to make it work? If you blame the wrong party (be it the prosecutor, police, judge, jury) then you will put your attention in the wrong place, and it won’t get fixed.

    And I think it’s important not to confuse the issue, like I think you were doing here.

    Do both mugging and raping victims make false reports?

    Sure. But not only is it not the whole explanation, your post actually leads people to the wrong conclusion.

  57. July 29, 2008 at 10:10 pm

    Sailorman, you are again missing the point of my entire post or you simply choose to nullify my point. Either way you continue a pattern of condescension, inaccurate summarization and nullification of any POV which says anything you don’t want to hear.

    All your percentages do is justify wrongly treating rape victims as likely false accusers. That you then figuratively pat these rape victims on the head and tell them they are not malicious in their false reports does nothing but make you appear to be on the side of rapists as you instruct them on how to use rape loopholes to avoid legal accountability for the rapes they commit.

  58. July 30, 2008 at 10:50 am

    Sailorman, this is your warning. You are now on moderation, and if you continue making comments which suggest that women who have been raped weren’t actually raped because of what the law says — completely irrelevant to whether or not a woman actually was raped seeing as how “spousal rape” is still legal in many places — you will be gone all together. Talking abot how “understanding and acknowleding” the reasons behind the low rate of convictions is not the same as talking about how women are inaccurate about whether or not they were raped. Clear? Good.

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