The Detective’s Advice

Rape CollageHere we go again.  Another season, another high profile case of sexual assault.

“The family of the woman who identified Florida State quarterback Jameis Winston as the man who sexually battered her criticized the Tallahassee Police Department Wednesday, saying a detective warned against proceeding with the case because Tallahassee is “a big football town” and she would be “raked over the coals.” [USAT]

The bad news is that the detective may very well have been correct.  We’ve seen this movie before.  The current story may bear comparison to the 2010-2011 case of sexual assault coming from the University of Missouri (ColTrib) in which a prosecutor opined: “It’s the big story. The local press starts calling me at home. And it’s very unpopular to accuse a football player.” {The System, Jeff Benedict, Armen Keteyian, Random House 2013}

The allegations also call to mind one of the incidents involving Steeler’s QB Ben Roethlisberger, the allegation of sexual assault in Milledgeville, GA in which the scene wasn’t secured, the QB wasn’t interviewed, and evidence disappeared:

“Roethlisberger’s accuser elected not to continue with the case, as her lawyer explained, “…a criminal trial would be a very intrusive personal experience for a complainant in this situation, given the extraordinary media attention that would be inevitable. The media coverage to date, and the efforts of the media to access our client, have been unnerving, to say the least.”  [SBNation]

While the high profile cases hog the headlines, there were 243,800 cases of rape/sexual assault in the U.S. in 2011. [BJS pdf] All too often the accusers in these cases face some of the same hurdles, albeit in a less dramatic environment.

The myth of the Wanton Woman:  The basis for this myth is the male fear that a woman impregnated by a family member, friend or acquaintance may “cry rape” in order to force a marriage or to justify an abortion.  Indiana state representative Eric Turner (R) made headlines with this memorable comment on the floor during a 2011 debate over an abortion related bill:

“I just want you to think about this, in my view, giant loophole that could be created where someone who could — now I want to be careful, I don’t want to disparage in any way someone who has gone through the experience of a rape or incest — but someone who is desirous of an abortion could simply say that they’ve been raped or there’s incest.” [OTB]

Then there’s the ubiquitous false accusation statistics, the “2-8% stat,” which keeps popping up during discussions of rape and sexual assault.  Ah, there are Jezebels out there who for reasons of revenge, retribution, or rationalization level assault charges against innocent men, and though there may be such persons (and they usually make the news because the instances are relatively rate) — there is at least one importance distinction to be made:  There is a crucial difference between an “unfounded” charge and a “false” charge.

A false charge may well be just that — a false allegation related to family dynamics and/or  personal animus which renders the accusation completely untrue.  However, when the statistics are compiled the number of reports of rape and sexual assault are listed, and then compared to the number of rape or sexual assault prosecutions the statistics can be misleading.

The problem is obvious and immediate — a rape or sexual assault may have indeed happened BUT (1) the rape was reported too late to satisfy prosecution guidelines or requirements, (2) there may be discrepancies in the victim’s story over time, (3) a lack of corroborating evidence, (4) a lack of cooperation by witnesses, (5) the victim may have been inebriated or under the influence of drugs, (6) the victim may have a history of prostitution, (7)  the victim may be uncertain about the chronology of events in the case, (8) the report may be made in the wrong jurisdiction, or (9) an inaccurate address may have been supplied by the victim. [Kanin, MNedu pdf 1993]  In short, because a rape or sexual assault accusation may be “unfounded” according to the prosecution it may still be a “true” statement concerning the actual incident in question.

For every 100 rapes and sexual assaults reported to authorities 10 lead to an arrest, 8 cases are prosecuted, 4 will lead to a conviction. [RAINN] What we don’t know from the statistics is how many of the cases which were not prosecuted because they fell into one or more  of the 8 categories listed above at the national level.   We can see from these numbers that it is little wonder women are reluctant to press for prosecution.

The Myth of the Misunderstood Male:  There’s a range of problems encapsulated in this mythology.  A common defense is a some variation on “she really wanted it.”  In other words, it was consensual.  She wanted it because “she was a sexual temptress, and rape doesn’t happen to nice girls.” [UIC edu] Consent also has some more nuanced legal implications than most pundits are willing — or able — to analyze.

There is a difference between “legal” and “factual” consent.  Consider the situation in a statutory rape.  An under-aged girl may indeed factually consent to intercourse, but she may not legally do so.   Or, there may be some nuanced difference between “attitudinal” consent and “expressive” consent.  These raise the questions related to what the woman says and what the woman does in the situation.  Then there’s “actual” vs. “imputed” consent in the mix.  Did the victim overtly express, or act in such a manner to preclude the “consent” defense, or by her lack of words or actions did she imply that she opened the door to a consent defense? [Westen,OSU pdf]

In short, there was no rape because… it never happened, or in case it did someone else did it, or it wasn’t a rape because she wanted it.  She was in the wrong place? She was in the emotional, mental, or physical condition? She was dressed inappropriately… for a medieval resident of a nunnery… The man was just “misunderstood.”

The Myth of the Absolute Believers: Another myth associated with accusations of rape and sexual assault concerns who must be believed.  The oft cited tenet “innocent until proven guilty” is appropriately applied to the defendant, and correctly asserts that the legal burden of proof is on the prosecution.  However, this doesn’t mean that the victim is necessarily being untruthful.   The burden of proof requires that the prosecution can establish beyond a reasonable doubt that a crime was committed, that the perpetrator did it, and that the defendant did it intentionally.

That the prosecution cannot set forth a case which meets all the legal requirement in the court room doesn’t mean that the victim of the crime was a lying sexual temptress, of questionable repute, when the report was made to the authorities.

The Myth of the Locker Room Culture:   In some circles, there is a mythology of the Locker Room Culture which supposedly excuses the excesses of athletes (or in some instances members of the military) by asserting a variation on the Boys Will Be Boys defense.   Fortunately, the statistics from the Department of Justice in a March 2013 indicate that the rate of sexual violence against female victims in the U.S. has declined from 5 per 1000 in 1995 to 1.8 per 1000 as of 2005. [BJS pdf]  This cuts both ways, on one hand the decline indicates that rape is not as prevalent in American society as we might come to believe by reading only the headlines.  On the other hand, it does not serve to diminish the significance of   rape cases reported or detract from the argument that there are instances in which the Misunderstood Male defense is inapplicable.

The decline does not, for example, provide any succor to those involved in the Steubenville incident about which a grand jury has reconvened, or to the Maryville, MO attack.  That there has been a decrease in the number of reported instances of rape and sexual assault doesn’t speak to the efforts of adults to excuse the behavior or to obstruct any investigation of the incidents.

Arguing that a “rape culture” exists doesn’t address the actions of the participant in the crime, but relates to the willingness of others to accept, excuse, obstruct the investigation, or manipulate the results of rape or sexual assault allegations.

That reports of rape and sexual assault in the U.S. military show an increase doesn’t necessarily demonstrate a system tolerance for those crimes.

“The 3,553 reports of sexual assault complaints filed in the first three quarters of 2013 are already more than the 3,374 for all of fiscal year 2012. The 2013 numbers also represent a 46 percent increase over the same time period in 2012.” [ABC]

The increase may indicate that service members are now more willing to come forward with official complaints.   The public outrage over the Steubenville, Maryville, and military headlines may be good news — demonstrations that our society at large is less willing to tolerate the old Boys Will Be Boys mentality than in previous eras.

Courage and Integrity

It takes courage to make a statement to authorities about a rape.  As with all prosecutions the victim must replay the traumatic event, except in the case of sexual assault it is highly, horribly, personal.  It takes courage from law enforcement personnel to take on the force of opinion from some sectors of the community when investigating an allegation of rape or sexual assault.  It takes courage on the part of prosecutors to bring charges when the outcomes may have impacts beyond the immediate well being of those directly involved.

It takes some integrity to believe both that the defendant is innocent until proven guilty and that the accuser may be equally honest about the nature of the incident reported.  It takes integrity to hold institutions (schools, military units) accountable for the safety of their constituents.   It takes integrity to avoid jumping to the conclusion that because an accuser or defendant is unwilling to testify in court we should necessarily assume he or she is being dishonest.

A bit of courage and integrity in these cases, in all cases, would be useful as we seek to diminish the scourge of rape and sexual assault from our society.   There was a kernel of truth to the detective’s warning that prosecutions are difficult — for all concerned — it will take some courage and integrity to make the system work for the victims as well as for those accused.

*Recommended references:  Kanin, “False Rape Allegations,” UMN edu 1994. (pdf) Lisak, et. al. “False Allegations of Sexual Assualt: An Analysis of Ten Years of Reported Cases,” Northeastern University, Sage Publications list. Vitchers, “Crying Rape” On Innocent Men Doesn’t Happen As Often As You Might Think,” PolicyMic, May 2013.  Gross, “False Rape Allegations: An Assault On Justice,” Forensic Examiner, Spring 2009 (15).  Planty, Langton, et. al “Female Victims of Sexual Violence, 1994-2010,” Bureau of Justice Statistics, March 2013.

Peter Westen, “Some Common Confusions About Consent in Rape Cases,” Ohio State U. Law, 2005. (pdf) Hansen, Alcohol Intoxication in Rape Allegations and Legal Defenses,” PotsdamEdu.   Vachss, The Charge of Rape, The Force of Myth, Common Dreams via Daily Camera, 2003.

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