Notes for Reporters Covering Rape Cases

Mother Jones, this is for you:*

1. In court, opposing parties each put on their theory of the case, backed up by evidence. Their theories of the case are never identical; that is why they are in court. But just because the defendant puts on a theory that differs from the plaintiff’s theory does not necessarily mean that the plaintiff is lying. And of course, just because the plaintiff alleges something doesn’t mean that it’s true, and the defendant is not necessarily lying if they deny it. But of course the defendant is going to say that the allegations are false; that is why they are in court. And they will put on evidence to suggest that the allegations are false — that is why they are in court. It may, in fact, be that the allegations are false; it also be that the allegations are true. It might be somewhere in between; some might be false and some others might be true. But in an adversarial system, each side puts forward different theories backed up by evidence precisely so that the finder of fact can get the closest to the truth (it’s worth noting here, too, that the Jamie Leigh Jones case detailed in the Mother Jones article is a civil suit and not a criminal case, so the standard of proof is not as high as “innocent until proven guilty,” as it is in criminal cases). That the defendant’s evidence challenges the plaintiff’s claims is exactly how this works every time, and it’s unreasonable to conclude that the mere existence of some doubt-casting evidence demonstrates untruth on the part of the plaintiff (any more than it’s reasonable to conclude that the existence of some evidence supporting the complaint demonstrates the total liability of the defendant).

2. If a victim says “I think I was roofied because I had a few drinks and have no recollection of what happened, except I woke up and someone (or multiple people) had sex with me without my consent” and the response is, “Actually she was probably drunk,” that doesn’t really indicate that she’s lying. Maybe she was drunk instead of drugged! Still not ok to rape her, I think?

3. Lack of DNA evidence from multiple men doesn’t mean “no gang rape.” That prosecutors were only able to find DNA from one man doesn’t necessarily mean there weren’t other assailants; it does mean that prosecutors are doing the responsible thing and only trying the case where they have evidence to back up their theory.

4. Not making a specific legal allegation in your filings the first time around doesn’t mean that what you now want to allege didn’t happen. It means that you lost your opportunity to allege it in court. Different lawyers can look at the same set of events and come to different conclusions about what charges to file; it doesn’t mean that the facts themselves are any different.

5. An attorney mistakenly indicating in a legal document that a victim’s “pectoral muscle” was torn when he meant her “pectoral capsule” is, again, not the best proof that the person with the torn pectoral capsule is a liar. Especially when the attorney owns up to the mistake.

6. Finding vaginal and anal fissures, bruising and redness that could be explained by consensual sex if the person in question were on certain medications that could make her skin more susceptible to trauma is, again, the defense’s way of dealing with the physical evidence that an alleged rape victim had vagina and anal fissures, bruising and redness. That is their job, to show that there could be other explanations. They are apparently doing a successful job at it! But again, it doesn’t mean that a victim’s story — that she was bruised, that she had vaginal and anal tearing, etc — is a lie.

7. Recovery from PTSD is a process. That a victim alleges she has had certain psychological symptoms in the past 6 years does not mean that she has had all of those symptoms at all times.

8. If you find yourself writing this paragraph, you should just stop:

Jones’ medical records are full of information that could cause jurors to question her credibility. Perhaps most significantly, about two months before Jones went to Iraq, according to court records, she told her doctor that she might have had sex with someone; she’d had several drinks, passed out, and couldn’t remember what had transpired.

How exactly does that damage her credibility? Because the only credible rape victims are women who have never gotten drunk, or never been assaulted before?

9. Women can be raped more than once.

10. Drunk women can be raped.

11. If you’re so drunk you’re blacked out and have no recollection of what happened, you are too drunk to consent to sex. The fact that you were drunk instead of drugged isn’t a case-busting bombshell.

12. A book deal or a movie about you doesn’t mean you weren’t raped, especially under these circumstances — where the allegations occurred well before Jones was in the public eye. Seriously, no one suggested that Elizabeth Smart wasn’t kidnapped just because her family wrote about the ordeal.

13. Articles weighing the claims and the evidence are great. No publication is required to believe everything an alleged rape victim says. But defining “the evidence” as only the evidence put on by one side (here, KBR)? That’s not good journalism.

UPDATE: Last year, Megan Carpentier broke down the KBR “facts” about the Jones case, many of which are rehashed in the Mother Jones article. Check it out.

____________________________________________
*Standard lawyer disclaimer: This is not legal advice. This is my own personal opinion about journalistic responsibility.

About Jill

Jill began blogging for Feministe in 2005. She has since written as a weekly columnist for the Guardian newspaper and in April 2014 she was appointed as senior political writer for Cosmopolitan magazine.
This entry was posted in Law, Sexual Assault and tagged , . Bookmark the permalink.

45 Responses to Notes for Reporters Covering Rape Cases

  1. Meredith says:

    I hit publish on my own rant about this seconds before I saw you covered it better! I got a weak-ass response from MJ that totally dodged my “why does your article read like KBR talking points?” question.

  2. Tim says:

    Very sad, but I suppose I shouldn’t be that shocked that Mother Jones is taking the side of KBR. The oceans of money the plutocracts have to slosh around are corrupting just about everybody.

  3. Florence says:

    I can *not* believe this was published in Mother Jones. MOTHER JONES.

  4. Cara says:

    I expected a whole lot better from Mother Jones than “but the alleged rapist says it was consensual” and “psh, it wasn’t even that violent” and “she was drunk so she probably wanted it.” I guess I’ve learned a valuable lesson.

  5. AshleyLynn says:

    I’m still trying to understand the purpose of the article in the first place. Was it it explain why the case may be falling apart? If so, it fails miserably in its job. It’s all well and good to update on the progress of a case…as long as it doesn’t fall into victim blaming territory, and this one does.

    And it’s pretty overt, too. I am slowly teaching my husband about feminst-y type things and frequently send him articles saying “this is an example of (insert idea/topic here). He’s catching on, because today he sent me a link to the MJ article with the subject line “Is this what you would call victim blaming?”

  6. zuzu says:

    Even if she were drunk, and even if that made a difference vis-a-vis the rape, how exactly does that explain her imprisonment in a shipping container?

  7. P.T.Smith says:

    I didn’t make it past the “if she loses this case, she totally fucked up any chance of actual rape victims getting justice” sentences.

  8. Florence says:

    They say she wasn’t in a shipping container, but she was “put in a secure location”.

  9. matlun says:

    If I could control the reporters reporting on rape cases, the one rule I would introduce would be “don’t do it”. If we just could avoid the whole trial by media circus a lot would have been gained.

  10. Helen says:

    Count me in among the people who are just so disappointed that this should appear in a news outlet like Mother Jones.

  11. Lauren says:

    I just called and cancelled my subscription to Mother Jones. I urge anyone who receives the magazine to do the same, and remember to let whomever you talk to know exactly why you are cancelling. The woman that I reached seemed confused at first when I explained why I no longer wanted their publication in my mailbox, so I really hope that I won’t be the only one letting them know how inexcusable this is.

  12. Florence says:

    The article (AT MOTHER JONES!) ends with the implication that her entire case is fictional and that she’s just a big ol’ famewhore. Just, WTF. Apparently her story was needed when we were fighting Bush’s oil wars, but now that all that isn’t sexy anymore, MJ will just dress up a stereotypical victim-blaming opinion piece as a factual article for page hits.

    This is fucking shameful. And it’s an extra slap in the face that it’s from one of the most respected liberal, feminist-leaning publications in existence. I’m dying to know how MJ defends this editorially.

  13. Stetson says:

    I’m glad you wrote this. While I was somewhat frustrated by the knee-jerk response of some of the commenters, this article does offer a thought-provoking rebuttal.

  14. Anon Ex-MJer says:

    Until earlier this year, I worked for MJ for a few years (not in the Editorial dept), and when I read this today, I was pretty pissed…but sadly not wholly surprised. While overall they are fairly progressive and respectful in what they write about and how they do it, there have been many instances of questionable editorial oversight, or lack thereof. Certain people in the Edit department hold their own opinions or judgments in much higher esteem than those of anyone outside the department (or even of those lower down on the ladder within it), and there have been times where someone has gone to them with concerns only to be essentially told to shut up and deal.

    Sadly, it is a business they are in, and so the page views, links, clicks, likes, etc sometimes seem to become more important than the actual content.

    I do want to add though, in response to Tim’s comment (#2) – there is no financial influence at MJ from any corporation like KBR. It’s a nonprofit 501(c)3 that survives off of subscription and newsstand sales, advertising and donations, most of which are low-dollar gifts from readers and website traffic. (Of course they do also have “major donors” but for MJ, that just means wealthy libs from the Bay Area who pitch in a yearly gift in the thousands). This story was not written because they wanted some sweet cash from KBR’s coffers, I can promise that.

  15. GM says:

    “There is no eyewitness testimony or other physical evidence in the case supporting the allegation that Jones was attacked by multiple people.”

    Oh, no? The rapists didn’t turn themselves in? Liar.

  16. Mojave_Wolf says:

    Not clicking on the link because don’t want to give them the hits, but great points! If I had a Mother Jones subscription and this article is one fifth as awful as it sounds, I would be cancelling the sub. I’m not quite sure why so much of the media seems to have gone on a full court press against rape victims lately, and I’m even less sure of why the progressive media is joining in, but it’s as disturbing as it is enraging.

  17. Antoinette says:

    I have just unsubscribed from Mother Jones in protest of this sickening promotion of rape myths and rape culture — and posted a link this well written post in the comments section for the MJ article. I also highly recommend the HBO documentary “Hot Coffee” – Ms. Jones is one of the four people profiled in the documentary and she honestly and frankly discusses her civil claim against KBR and discusses the horror she has endured.

    Also interesting how the MJ article even slams Senator Franken for demanding that defense contractors should not be permitted to avoid tort liability for such heinous acts through forced arbitration clauses in employment contracts.

  18. Avida Quesada says:

    I agree with all.
    The issue with 11 is that there is people that don’t look too drunk act almost normal and then they don’t recall what happen. And I am not talking about sex only.

    My recommendation to heterosexual men will be avoid women that have drink like the plague. Even as we face the same issue men face (raping some one) we dont face same risks (legal and social). That’s due to biology, culture, politics and the law.

    The problem is that in our culture (Occidental) people drink all the time. So is complicated.

    So my point is like : If she is too drunk to consent is rape, if she is too drunk but don’t looks like, still rape, but the guy is not (necessary) a rapist. People that do stuff when drunk and then they don’t remember (like driving at high speed or dancing on a table) are a social danger and should be presented as such.

    It’s very common for men to experience the same issue, they rise with some one and they don’t remember how. The general reaction of most men is different.
    The facts are the same.

  19. Florence says:

    Antoinette: I also highly recommend the HBO documentary “Hot Coffee” – Ms. Jones is one of the four people profiled in the documentary and she honestly and frankly discusses her civil claim against KBR and discusses the horror she has endured.

    Agreed, I saw this documentary this week and was blown away by her testimony.

  20. Ariel says:

    The only thing I would add is this: a rape charge, by definition, implies nonconsensual sex. This means that BY DEFINITION, the defense is going to try to put forth evidence proving consent. This often takes the form of making a case that the person bringing the charges was sexually active. Remember: just because you consent to some sex doesn’t mean you consent to all sex, and the defense bringing up multiple partners doesn’t in fact prove consent in the case being tried.

  21. Azalea says:

    This is a clear example of what I was getting at in the other thread concerning Casey Anthony’s verdict. When there is no hard proof there is overwhelming doubt (unjustifiable doubt in my opinion) of guilt or some cases a crime. As you said, someone saying they were raped does not mean they were raped, it is an allegation until it is proven. However, when there is SO much that points in the direction of guilt (she SAID she was raped, she had bruising, she was placed in a “secure” location, her rape kit was done in a military hospital and they cover up rapes all the time and her arbitration was funded by people who had something to lose if she could prove she was raped) it is pretty disingenious and yeah victim blame-ish to just taunt “well you can’t prove it so it isn’t true.”

    Hopefully the trial will offer much more than that article did and the case against her rapist(s) is strong enough that she gets a ruling in her favor.

  22. Brandy says:

    Antoinette:
    I also highly recommend the HBO documentary “Hot Coffee” – Ms. Jones is one of the four people profiled in the documentary and she honestly and frankly discusses her civil claim against KBR and discusses the horror she has endured.

    Funny, the author of this article was also in that documentary. http://motherjones.com/politics/2011/06/hot-coffee-lawsuit-movie

  23. Antoinette says:

    Brandy: Funny, the author of this article was also in that documentary. http://motherjones.com/politics/2011/06/hot-coffee-lawsuit-movie

    I did not realize that at all — that’s really quite shocking. Although I guess it demonstrates that no one is immune to the indoctrination of our society’s rape culture; however, you would think someone who understands the legal process would not be so easily duped by highly paid KBR attorneys who have been hired solely to convince a jury that Ms. Jones is a lying whore.

  24. Torva says:

    I would love to see a petition go to Mother Jones, and other publications that consistently allow the propogation of rape myths to be printed under the guise of credible journalism (or in this case, progressive journalism… WTF?!). People need to realize the facts of just how many accusations are actually made up (2%), as opposed to how many rapists go without a day in jail (93%). Perhaps if they won’t educate the public, a campaign of open letters and petitions will.

    Thanks to Feministe to publishing this point-by-point breakdown of how ridiculous MJ was to publish this horrendous article. On #10 specifically, not only can drunk women be raped, but drunk men can be raped – drunk anybody are unable to consent to sex, period.

    Avida – what you said pertains to both genders, even if both parties are drunk. It’s a dangerous line to play with, legally.

  25. Rose says:

    I read the article…wow…just wow. That is one of the worst slut shaming hit pieces I’ve ever seen in my life and at almost 41 years old that’s saying a lot.

    I’m not sure what the worst part is. The way she repeats every KBR talking point as though it’s fact. Or is it the way she both implies that Ms. Jones is mentally ill (therefore, she made up the rape as mentally ill women often do!) but then accuses her of having too productive a life since this happened (she got her Masters degree, got married, had two children and became a crusader for contractors’ rights – hardly the behavior of a truly traumatized victim, who I suppose should be cowering in a corner shaking and weeping for the past 6 years – therefore she’s not acting crazy enough – she lied about the rape!)

    I only wish I had a subscription to Mother Jones so I could cancel it.

  26. Sergey says:

    “unreasonable to conclude that the mere existence of some doubt-casting evidence demonstrates untruth on the part of the plaintiff”

    “that doesn’t really indicate that she’s lying.”

    “not the best proof that the person with the torn pectoral capsule is a liar.”

    “But again, it doesn’t mean that a victim’s story…is a lie.”

    Aren’t you a lawyer? The assumption is innocent until proven guilty. That means that yes, until she can PROVE what she’s saying, it gets dismissed just the same *as if it were a lie* regardless of whether or not its true. An unproven true statement OUGHT to be equally insufficient as a lie to convict someone…that’s how the system works. Presumption of innocence.

    No one has to prove that she’s lying – she has to prove that she’s not lying.

    I think it’s ok to cover a criminal case from the perspective of what matters in getting a conviction – I don’t see that this strays from that.

  27. Yonmei says:

    I’d been on Mother Jones mailing list for a while. I just unsubscribed, and sent them a message saying their support of KBR against a rape victim was why I’d unsubscribed.

    I think honestly, if they had any political motivation, it was an easy way for MJ to look “even-handed” – look, we object to their military contracts, BUT supported them against that crazy lying bitch who said she’d been raped and then shut up in a storage container, that PROVES we’re completely impartial!

    • Jill says:

      I think honestly, if they had any political motivation, it was an easy way for MJ to look “even-handed” – look, we object to their military contracts, BUT supported them against that crazy lying bitch who said she’d been raped and then shut up in a storage container, that PROVES we’re completely impartial!

      I think that’s part of it. I also suspect that in the wake of the DSK stuff, publications want to be the first to get the “she’s not credible” scoop. Those articles were a huge coup for the New York Times, and I wouldn’t be surprised if this were an attempt by Mother Jones to get the same kind of story.

  28. Florence says:

    Antoinette: I did not realize that at all — that’s really quite shocking.Although I guess it demonstrates that no one is immune to the indoctrination of our society’s rape culture; however, you would think someone who understands the legal process would not be so easily duped by highly paid KBR attorneys who have been hired solely to convince a jury that Ms. Jones is a lying whore.

    Literally, KBR’s defense as laid out in this article is that Jones is a crazy, lying whore. The author seems to agree.

  29. Antoinette says:

    Jill: I think that’s part of it. I also suspect that in the wake of the DSK stuff, publications want to be the first to get the “she’s not credible” scoop. Those articles were a huge coup for the New York Times, and I wouldn’t be surprised if this were an attempt by Mother Jones to get the same kind of story.

    If that’s the case – what a truly tragic commentary on the sad state of journalism. And truly disheartening considering MJ called out the NY Times for their reprehensible reporting on the sickening gang rape case in Texas involving an 11 year old child. I guess if victim blaming and slut shaming gets readers over to the NY Times and the NY Post – why wouldn’t MJ similarly betray any semblance of journalistic integrity?

  30. samanthab says:

    Well, and the implication that mentally ill people don’t know if they have been raped or not is pretty gross. And she’s inaccurately characterized the use of Lamictal; it’s to treat a number of things, albeit many of those are off-label. That’s a pretty easy bit of research, but it looks like if KBR didn’t hand it to her, she’s not going to report it. Vile.

  31. zuzu says:

    Sergey:
    Aren’t you a lawyer? The assumption is innocent until proven guilty. That means that yes, until she can PROVE what she’s saying, it gets dismissed just the same *as if it were a lie* regardless of whether or not its true. An unproven true statement OUGHT to be equally insufficient as a lie to convict someone…that’s how the system works. Presumption of innocence.

    No one has to prove that she’s lying – she has to prove that she’s not lying.

    I think it’s ok to cover a criminal case from the perspective of what matters in getting a conviction – I don’t see that this straysfrom that.

    It’s not a criminal case. It’s a civil case. Jones had to fight to get this case heard in court and not by an arbitrator.

    And, yes, Jill’s a lawyer. So she knows that civil cases have a lower standard of proof. AND the defense in a civil case can’t just sit back and do nothing, like they can in a criminal case, because depending on the claims, there are shifting burdens, or the defense has raised affirmative defenses which they must prove. And, yes, they’re going to try to show that she was a bad employee and that she was lying and try to cast doubt on her performance.

    But again, there’s a lower standard of proof in a civil case. OJ was acquitted of murder by a criminal jury because the prosecution couldn’t prove its claims beyond a reasonable doubt. But a civil jury found him liable for killing Nicole Brown Simpson. They only had to find that it was more likely than not that he was guilty.

  32. zuzu says:

    Mind you, the danger for an employer of raising a “she was a crazy lying bitch” defense is that it can backfire. Because if she was such a crazy lying bitch and you knew that, why did you retain her as an employee?

  33. EG says:

    Aren’t you a lawyer? The assumption is innocent until proven guilty.

    That is the assumption that must be made by jurors in a criminal case in the context of deciding that case. That particular standard does not apply to bloggers on the internet or to reporters.

    Further, just a reminder that witness testimony–even witness testimony coming from a woman–does count as evidence.

    • Jill says:

      Aren’t you a lawyer? The assumption is innocent until proven guilty.

      That is the assumption that must be made by jurors in a criminal case in the context of deciding that case. That particular standard does not apply to bloggers on the internet or to reporters.

      As Zuzu said, it also doesn’t apply in civil cases. Which is what the Jones lawsuit is.

  34. Laurie says:

    Also, I would dispute Sergey’s implication that the presumption of innocence means a presumption that the victim is lying. A subtle point, perhaps, but an important one, I think.

  35. Kristen J. says:

    zuzu:
    Mind you, the danger for an employer of raising a “she was a crazy lying bitch” defense is that it can backfire.Because if she was such a crazy lying bitch and you knew that, why did you retain her as an employee?

    Bah, you aren’t cynical enough. It can easily be blamed on affirmative action hiring. Yes, indeed. Been there. Seen that. Wanted to vomit during the deposition.

  36. zuzu says:

    Looks like Jones lost.

    I wouldn’t be at all surprised if there were an appeal, or a motion for judgment notwithstanding the verdict.

  37. Azalea says:

    zuzu:
    Looks like Jones lost.

    Jury wasn’t convinced there was enough proof to say she was raped by Boarts. Just as with the Casey Anthony verdict, I think this is bullshit.

    I wouldn’t be at all surprised if there were an appeal, or a motion for judgment notwithstanding the verdict.

  38. Azalea says:

    Azalea:

    Zuzu please accept my apology for getting the blockquote thing wrong! The last parapgraph is my own everybody, zuzu did not type that.

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  40. I’m just sick over this. For all the gains we’ve made (that aren’t getting taken away), the treatment of women victims in the press isn’t one of them. The situation Helen Benedict wrote about in VIRGIN OR VAMP: How the Press Covers Sex Crimes, written in the 1990s, is still very much with us. I did expect better of Mother Jones, and they now know why I’m unsubscribing.

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  42. Yonmei says:

    FWIW, I’ve just realised Andrew McKinney, the lawyer who defended Charles Boartz, is McKinneyTexas, one of the regular right-wing commentators on the Obsidian Wings (I don’t think he’s a front-page poster, but he certainly comments there a lot). I’m not outing him – he discusses the case and pretty much admits that he ran a defense based on attacking Jones’ character, in the tail-end of comments on the Obsidian Wings thread on “PZ Myers: Scientist. Atheist. Mensch.”

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