What Sasha Said

by Belle Waring on July 7, 2011

This is a good post about why rape victims are likely to lie…about the circumstances of the rape in order to make their rape conform to the narrative they think the cops/prosecutors/jury needs to hear.

Thanks to prevailing rape mythology, many people also have very definite ideas about what happens before, during, and after a “real” rape. Real rape victims want no sexual contact of any kind with their attackers and make this crystal clear right from the start. When attacked, they don’t just say “No;” they scream, fight, yell for help, and/or try to escape. Ideally, the victim will duke it out with her attacker to such an extent that she is left with obvious physical injuries. After the rape, she will be visibly distraught and in tears, but this will not prevent her from reporting the attack right away. In the days and weeks following the assault, she will spend a lot of time in the shower and be too traumatized to appear to function normally.

Some rapes do indeed happen like that; most don’t. And the more a rape departs from this script, the harder it is for the victim to be believed and taken seriously. She didn’t fight or try to escape? She must’ve wanted it. She wasn’t crying or visibly upset right after the rape? She’s probably lying about being attacked. She was seen laughing and seemingly having a good time just days after being raped? It couldn’t have been that bad.

Rape victims know this. Realizing that many people won’t understand why you acted in a way that doesn’t fit their preconceived notions of “how rape victims act,” or worse, knowing that many people will automatically disbelieve you because of your background or even blame you for being attacked brings some rape victims to the conclusion that there’s only one way they’re going to see their rapist punished: lie.



There is an interesting (but painful) discussion of a rape case in which the jurors, having acquitted the accused, tell the press they believed the woman had been raped, but had other concerns, because the woman had been in the situation to begin with in order to buy drugs. It’s a little hard to see in what universe ‘we, the jurors, agreed this person got raped’ doesn’t amount to a guilty verdict for rape, but life is unlovely at times.

Realistically, though, imagine you got raped, and it happened to be on an evening on which you went out with friends and got mildly lit up. Then the cops ask you if you’d had anything to drink. Are you going to answer “two beers” (protip: cops know this particular formulation means you drank half a bottle of Wild Turkey and had 2 xanax.) “Nothing at all”? You’re going to look dumb when they talk to your friend who, all innocent, mentions you having a glass of wine. “No, officer, but we did hotbox that one Philly Blunt before we went inside”? See how shit is getting awkward with a quickness?

Every single damn thing they ask you is going to be like this. Unless an 7-ft-tall man with a Snidely Whiplash moustache, whom you had never met, knocked you out from behind with one swift move of the ether-soaked handkerchief, and you were wearing a T-shirt that said “I don’t want to have sex with any of y’all motherfuckers, nay, not unto the least of you,” there’s going to be some incentive to shade the truth at times. Even then, what if the defense finds out you had this poster on the wall at the guest room at your grandma’s place when you were a kid? What then?

{ 179 comments }

1

Vance Maverick 07.07.11 at 3:51 am

And also what M LeBlanc said, at the same time. “What do you propose?”

2

Myles 07.07.11 at 5:06 am

The problem isn’t that the accuser is lying about the circumstances of the alleged rape. That happens. And it doesn’t really materially affect the case.

The problem is that the accuser made a phone call to her boyfriend the day after she made the accusations, in which she discussed the financial payoffs of pursuing charges against DSK. I couldn’t care less whether she did or did not lie about specific details, but the latter detail changes the picture completely. That makes her testimony worthless, because she then has a huge monetary incentive to invent facts.

This case is finished.

3

JP Stormcrow 07.07.11 at 5:36 am

This case is finished.

And thus is the substance of Belle’s post, which as you may have noticed did not even mention the DSK case, left in shambles.

4

JP Stormcrow 07.07.11 at 5:39 am

Burt Reynolds taller younger brother! A tragic early death it turns out–killed in the Eastern flight 66 crash in New York.

5

NomadUK 07.07.11 at 7:08 am

which as you may have noticed did not even mention the DSK case

Well, no, but the blog entry it links to in the first line does, and makes it clear that the DSK case is the inspiration for that post.

6

Henri Vieuxtemps 07.07.11 at 7:22 am

Hmm, Myles, suppose you’ve been hit by a car, drunk driver. You call your friend and say ‘I’ll sue the sob and take him for all he’s got’. Does it mean the accident hasn’t happen?

7

Belle Waring 07.07.11 at 7:45 am

Henri: obviously! Planning to sue the bastard starts waves which travel back in time and makes the wreck not happen.

8

Walt 07.07.11 at 8:44 am

You don’t think that would hurt you at trial?

9

Belle Waring 07.07.11 at 8:51 am

Hurt you at trial does not=truth about state of affairs in reality. Crazy, I know.

10

Walt 07.07.11 at 8:59 am

It has no effect on the plausibility of the story at all? The day after the accident, Myles is talking about his big payday. This doesn’t increase the odds in your mind that Myles is engaged in fraud?

11

Belle Waring 07.07.11 at 9:00 am

Honestly, if I were a juror I would consider the evidence that a man had called his friend after the wreck and said “I’ll sue this MF into the ground” to be weight on the scale of the conclusion that the drunken wreck happened as alleged. Why else would he be so sure he is going to win money, unless he is utterly sure the other driver was drunk and wholly at fault? If the other driver was in a Bentley, the wreck victim might think, hey, this prick has money, maybe I’ll profit from this otherwise unfortunate state of affairs. This may incline me to think him mercenary, and I suppose it’s conceivable he might exaggerate his injuries, but I see no reason to conclude the other driver was sober and driving impeccably. It’s almost neither here nor there, no? What matters is that Bently guy blew a .8 after the wreck.

12

Belle Waring 07.07.11 at 9:05 am

I’m not talking about deciding on damages to be awarded, but on the factual question of whether the wreck happened as alleged. I’m likely to consider the state of the cars, how drunk the Bentley guy turned out to be when the cops got him in.

13

bob mcmanus 07.07.11 at 9:31 am

In a car crash you always have other witnesses, at least to the physical evidence that the crash actually happened, and often evidence as to fault (rear end or side damage, etc.)

We need a better analogy, say a fight or assault with no evidence of harm or any witnesses. Honest question.

If I walk into the police station or go to a lawyer, saying Belle attacked me (Bob M) and beat me up, but have no marks bruises or witnesses, how far do I get?

14

bob mcmanus 07.07.11 at 9:40 am

Or if I say Belle stole my car, and there is no car in her possession, nor eyewitnesses to the act of theft or Belle’s possession of the car. Does Belle get arrested and indicted?

15

dsquared 07.07.11 at 9:54 am

I am not anticipating a really interesting, thought-provoking and sensible comments thread.

16

Henri Vieuxtemps 07.07.11 at 9:57 am

They do have bruises, and sperm, and other stuff.

With a car accident it’s the same: you may or may not be faking your injuries (complaining about neck pain, for example). But I don’t see how your intent to get as much money as possible indicates whether you’re faking or not.

17

Ebenezer Scrooge 07.07.11 at 10:53 am

1. Rape hinges on the victim’s state of mind (and perhaps reasonable communication of that state to the alleged rapist.) This is irrelevant to car crashes, where only the perpetrator’s state of mind is relevant, if at all. It is highly relevant to the DSK case, especially. Her statement about suing the bastard is ambiguous as to her state of mind, but by no means irrelevant.
2. The Burt Reynolds-oid poster is cute, but wouldn’t be admissible in most states. Modern rape shield laws prohibit introduction of evidence of the victim’s sexual behavior, unless it is unusually relevant to the case. It’s a shame that it doesn’t extend to other irrelevancies, such as drug purchases.
3. Dsquared is, as usual, correct. But I can’t help myself.

18

Belle Waring 07.07.11 at 11:17 am

Modern rape shield laws are as full of holes as swiss cheese, and prior sexual behavior gets introduced in court all the time in real life.

19

Belle Waring 07.07.11 at 11:31 am

I honestly don’t know what would happen if Bob McM walked in uninjured and claimed to have been assaulted–slapped around, say. Evidence of that would subside pretty fast. The cops would conclude that the assault wasn’t very violent or serious, but I think they might haul Belle in all the same.

I’ve had a homeless guy try to grope and kiss me in a bullshit “I’m a big hippie who’s going to cheer you up with a hug!” way. He did get in and touch me, kiss my cheek maybe as I turned my face away, and I had to push him off me. I said if he touched me again I would “break his fucking face.”(I’m not sure I could do that, actually, but it sounded good.) If I had gone and reported him to the cops would he have gotten in trouble despite my not being injured? I think yes if I had gotten the phone numbers of the witnesses, one of whom approached me to say she was impressed . Relatedly, how much sexist bullshit do chicks have to deal with in real life? A lot. Because that was only one of the two times I’ve gotten partially groped by a homeless guy! The first time was in New York it was a really crazy, smelly, old guy and it was so repulsive; when I grabbed his face to force it away from mine I felt something turn, a tooth in his rotten mouth.

20

Belle Waring 07.07.11 at 11:39 am

This is usually the part of the thread where I start to think that guys suck. Just stop jerking off next to me on public transit, OK? Is that so much to ask? I guess that hasn’t happened to me for almost 8 years, but that’s because I moved to the cleanest, law-abidinest-ist city-state in the world.

21

dsquared 07.07.11 at 11:46 am

But I don’t see how your intent to get as much money as possible indicates whether you’re faking or not.

If you were up against an insurance company lawyer that was taking an aggressive approach to its back-pain claims, I think that if they had evidence that you were thinking about the compensation, they’d do as much with it as they could.

As far as I can see (and with sickening inevitability, I am drawn into a thread for which I have very low hopes indeed), the problem isn’t anything in the law at all – Belle’s “unlovely” example shows what the problem is, which is that a) juries really don’t want to convict for rape and b) juries have very different ideas about rape from what the law actually says. And b) is a subset of the general truth that “the general public” from which the pool of jurors is drawn, is pretty much by definition not able to think outside its culture. There are no legal-system quick fixes, the culture is the problem.

22

Ebenezer Scrooge 07.07.11 at 11:50 am

Belle@18:
You’re trying to say that the Burt Reynolds poster would be admissible in a modern court? Or are you just trying to say that we live in a highly imperfect world?

23

Andrew F. 07.07.11 at 11:57 am

Yes, someone really raped might lie about various things afterwards, but that misses the problem with the DSK case.

The problem is not “accuser lied” so therefore “no rape.”

The problem is one of motivation and credibility. Accuser claims X; accused claims Y.

Accuser has monetary incentive to claim X. What is the probability that the accuser would deceptively claim X to pursue that monetary incentive?

Evidence: history of opportunistic criminal behavior for financial gain; phone call to boyfriend stating “I’m fine” and noting that there is a lot of money to be made.

Conclusion: accuser seems to fit profile of person who would deceptively claim X.

Impact: accuser’s credibility destroyed.

Result: Case no longer meets “beyond a reasonable doubt” standard. Should be voluntarily dismissed, unless very strong physical evidence exists.

Also: one may as well note that Myles’s predictions in this instance, surprisingly, have received substantial confirmation.

24

Marc 07.07.11 at 12:03 pm

The general point that Belle is making is perfectly fine. However, the specific case of the alleged assault by DSK is not a good example of this. I really encourage people to read the letter from the prosecution to the defense. The woman in question, for example, admitted to fabricating an entire asylum case out of whole cloth. She lied repeatedly about numerous things completely unrelated to the rape.

Unpleasant people can be innocent, and women can invent rape charges and lie about them. These things may not be common but they can exist. I find the linked column vile, to be blunt.

“Some women lie under traumatic circumstances about irrelevant things” is not the same as “the woman in question is a pathological liar”. Excuse-making for this case is coming across an awful lot like excuse-making in the Duke lacrosse rape case. It;s hard to avoid the conclusion that for the linked column “rape culture” means “all men accused of rape are automatically guilty”.

25

tomslee 07.07.11 at 12:10 pm

Oddly, from what I have read the next-day phone call about pursuing damages actually adds to the case that a rape occurred. If there was anything in the call that suggested a setup or that her encounter with DSK was something other than an assault, it would be public. Instead, the publicity is limited to her talking about pursuing damages.

26

dsquared 07.07.11 at 12:38 pm

It;s hard to avoid the conclusion that for the linked column “rape culture” means “all men accused of rape are automatically guilty”.

It is in fact, really easy to avoid this conclusion.

27

Andrew F. 07.07.11 at 1:01 pm

The linked column largely fits with Marc’s assessment. It concludes:

I expect that the DA’s office will drop the charges against DSK any day now. Sure, they still have the DNA evidence to prove that sexual contact took place, but since DSK’s attorneys are going with a consent defense (as defense lawyers always do when there’s DNA evidence), the victim’s testimony is essential. And her credibility is shot. So that’s the end of the case.

And that’s how it goes in a rape culture.

The column’s author doesn’t understand why the accuser’s (“victim” begs the question) credibility is destroyed either. This has nothing to do with “good victim” vs. “bad victim” in a “rape culture.” It has everything to do with assessing the credibility of a witness with an enormous monetary incentive to lie and who has a robust history of criminal deception for financial gain.

On a broader level, the rush to judge DSK as guilty bears disturbing parallels with the Duke lacrosse case. Privileged white males accused of rape by minority women; media laps up morality tale; blogosphere joins in; facts suddenly indicate otherwise.

Everyone stumbles. Moralistic narratives are not always the best guide to reality.

28

Andrew F. 07.07.11 at 1:02 pm

Sorry, And that’s how it goes in a rape culture is a part of the column.

29

bob mcmanus 07.07.11 at 1:15 pm

26:The LeBlanc column linked at #1 above is very fair and honest.

Once again, I’m not saying she’s lying about being raped. I think she probably isn’t. But that’s my gut, that’s my instinct, that’s based on being a rape survivor and knowing how tough it is to accuse someone (I never did). …M. LeBlanc

It’s kinda hard to find an “out” here for a random man accused, if this is a common criteria for public judgment. I can’t and won’t argue against LeBlanc’s or Belle’s “gut” or “instinct.” Do we want people like this on a jury in a rape trial?

30

Sober 07.07.11 at 1:23 pm

While rape victims may want/need to lie, no matter what – lying is not proof or evidence that a rape *did* happen.

It appears that many readers have an opinion (based on whatever) and go on from there to explain why a rape victim would lie, then to assume that lies are proof of rape.

Sorry – a lie is not proof of rape.

31

Belle Waring 07.07.11 at 1:29 pm

Ebenezer: the latter. And it’s not Burt Reynolds, man, it’s Wendell Ladner. And also, I had doubts about the Duke case from the start, because the line-up was conducted so badly, and ATM receipts indicated that one of the accused couldn’t have been present. There’s no reason to go around assuming I was denouncing them all as rapists from the first instant.

“Rape culture” doesn’t mean “all men accused of rape are guilty,” it means “rape is tolerated to a surprising degree in our culture, and we should work to change that.” We don’t need to change the rules of evidence so much as we need to change people’s attitudes towards rape, so that they could recognize that prostitutes can be raped, and women can be raped by men they’ve had sex with in the past, and it’s unacceptable to have sex with people who are passed out drunk. That agreeing to go to a man’s apartment doesn’t equal a blank check for any sexual activities he wants. That a woman could start to have sex with you, and then you do something that hurts her, and she says “stop that hurts,” and then you fucking stop, and if you don’t, you just raped somebody. That we shouldn’t accept anything less than enthusiastic participation as consent to sex. Stuff like that. Maybe having discussions about the topic could help? Perhaps even on the internet?

32

JP Stormcrow 07.07.11 at 1:48 pm

NomadUK@5: Well, no, but the blog entry it links to in the first line does, and makes it clear that the DSK case is the inspiration for that post.

Well sure, and I certainly would not have responded the way I did if Myles had prefaced his remarks with something along the lines of “As to the DSK case which inspired the blog post you link …” or anything which acknowledged that Belle’s post was not arguing the particulars of the DSK case but rather an attempt at the broader conversation she describes in 30.

MArc@24: The woman in question, for example, admitted to fabricating an entire asylum case out of whole cloth.

I assume you would not dispute that blog post similar to the one linked could be written entitled, “When Asylum Seekers Lie”?

boyfriend (various)

What evidence do we have that this is at all an accurate description of their relationship? A caution that we all should keep in mind is that the public statements and actions of the DA’s office serve the institutional and political needs of that institution–the powerful-man railroading scum are not suddenly become disinterested purveyors of sweetness, light and unvarnished truth. (Nor the reverse of course.)

33

Walt 07.07.11 at 2:01 pm

It’s obviously true that we live in a culture that tolerates rape to a surprising degree. In a just world, the jurors in that case (in the original post) would be shot in the head on national TV as part of a national program of consciousness raising and healing.

But based on the information that’s been leaked (which may all be bullshit), the DSK is one of the few cases where I can see a case for reasonable doubt. At the moment the case makes a bad example to draw larger points about rape culture.

At the same time, I do have to wonder if the prosecution is deliberately blowing the case for reasons of political pressure.

34

Henri Vieuxtemps 07.07.11 at 2:06 pm

If the story as described here is correct:
http://powerwall.msnbc.msn.com/politics/the-maids-prison-connection-1693846.story

A source directly familiar with the hotel’s key records shows the maid used her card to get into Strauss-Kahn’s suite 2806 at 12:06 p.m. on May 14, swiping the card at least twice before it opened. A colleague in room service told investigators that shortly before noon, he knocked on the door of Strauss-Kahn’s suite and no one answered. The room-service staffer says he told the maid the room was empty before she entered. The maid has consistently alleged the attack occurred between that time and around 12:28 p.m., when Strauss-Kahn officially checked out of the hotel.

…it’s hard for me to imagine consensual sex (which is, apparently, what the defense claims) under the circumstances, within a 20-minute period, and between two complete strangers. But maybe I’m just too old-fashioned.

35

Belle Waring 07.07.11 at 2:22 pm

Impromptu proposition of hotel maid whom you accurately assume to be a sex worker on the side? Not impossible. Only creepy. But the DSK team is adamant that no money changed hands, so that defense seems unavailable, unless they’re going to say he ripped her off by refusing to pay afterward…would be an odd defense strategy. I suppose it could be dragged in as the reason she falsely (according to the defense’s theory) accused him?

36

Walt 07.07.11 at 2:32 pm

My impression is that really is the defense strategy, that he ripped her off.

37

Style 07.07.11 at 2:37 pm

I imagine the defense would be that he propositioned her (perhaps through his alleged charming seduction method of pulling off her clothes) on the assumption that few women resist his charming seduction methods, she consented on the assumption he would pay. A dispute arose! A problem with this narrative is that he left a valuable cell phone in the room that was not stolen by any disgruntled prostitutes.

38

Myles 07.07.11 at 2:46 pm

Well sure, and I certainly would not have responded the way I did if Myles had prefaced his remarks with something along the lines of “As to the DSK case which inspired the blog post you link …” or anything which acknowledged that Belle’s post was not arguing the particulars of the DSK case but rather an attempt at the broader conversation she describes in 30.

Dude. Seriously. This is ridiculous. Belle wrote a post referring to a) rape and b) rape victims lying. In which the substance of her post clearly rests to some degree on there being rape in the DSK case. If the existence of rape is in doubt, then the whole thing falters. It’s like people meta-analyzing the Duke Lacrosse case and what it tells us not necessarily about Duke Lacrosse but about society at large. Well it doesn’t tell us anything about anybody, because the thing never happened.

1. Rape hinges on the victim’s state of mind (and perhaps reasonable communication of that state to the alleged rapist.) This is irrelevant to car crashes, where only the perpetrator’s state of mind is relevant, if at all. It is highly relevant to the DSK case, especially. Her statement about suing the bastard is ambiguous as to her state of mind, but by no means irrelevant.

This is basically what I’m trying to say, but much better expressed.

If I had gone and reported him to the cops would he have gotten in trouble despite my not being injured? I think yes if I had gotten the phone numbers of the witnesses, one of whom approached me to say she was impressed.

As above. There’s no great likelihood that you were consensually being groped by the guy in the first place. There’s a pretty substantial possibility, given what we’ve later discovered about the accuser, that indeed that what happened was consensual and she’s just claiming it wasn’t. Sex can be either consensual, or non-consensual. That sex took place is no guide to its consent or the lack thereof. So far we have bruises, which can be faked. And the word of the accuser.

Look: I think what happened is that sex took place with the expectation of monetary reward. DSK, being a bastard, refuses to pay up (either out of ego or whatever). The maid, knowing very little of the legal system, is outraged and wishes to pursue legal remedies (foreigner goes to America; foreigner sees that America is litigious; foreigner figures in order to get anything done in America, you sue). She sees that rape is taken very seriously indeed, and treat this basically like she treated her asylum application: faking the little details in order to get (what seems to her) the honest end result. The problem, in this case, is that she might well have faked the whole detail about consent, which isn’t a little detail at all, but if no rape had actually taken place, ever, it would seem like a minor detail to the accuser. So in a sense she had been wronged and she’s reacting to it. Maybe she feels after the fact of non-payment that she’s been raped, when at the time she felt no such thing.

Also: one may as well note that Myles’s predictions in this instance, surprisingly, have received substantial confirmation.

To be honest, I thought DSK would get off on a technicality. I had no clue that the prosecution’s case would be full of this many holes.

Moralistic narratives are not always the best guide to reality.

Amen.

39

bob mcmanus 07.07.11 at 2:47 pm

But based on the information that’s been leaked (which may all be bullshit), the DSK is one of the few cases where I can see a case for reasonable doubt. At the moment the case makes a bad example to draw larger points about rape culture.

I have doubts about the Assange case also, and I don’t like coincidences. The timing of the DSK accusation really really sucked, as did Geithner’s instant public demand for DSK’s resignation. Geithner was not at all worried about what further information would come out because he knew that the accusation would be completely effective. If there is a third sometime soon, then there will be a pattern. I also don’t like that this is such an incredibly easy button to push.

I am on the side of the angels, and I just think it damages the credibility of the anti-rape community to go “all-in” on every single case. I could be wrong, and maybe I should trust other’s judgement more, that rape-victims will be helped most by the absolutist maximalist position.

40

bob mcmanus 07.07.11 at 2:50 pm

Look: I think what happened is that sex took place

At this point, I have no clue as to what happened in that hotel room, and am willing to say so. DSK probably deserves the benefit of a reasonable doubt, based on what has come out so far.

41

Marc 07.07.11 at 2:56 pm

If the revelations in the DSK case don’t raise the prospect of his actual innocence for someone I question whether there is anything that would. Bringing up legitimate issues in the context of a clearly dubious accusation is not a winning tactic.

42

Steve LaBonne 07.07.11 at 3:03 pm

Dsquared@21:

As far as I can see (and with sickening inevitability, I am drawn into a thread for which I have very low hopes indeed), the problem isn’t anything in the law at all – Belle’s “unlovely” example shows what the problem is, which is that a) juries really don’t want to convict for rape and b) juries have very different ideas about rape from what the law actually says. And b) is a subset of the general truth that “the general public” from which the pool of jurors is drawn, is pretty much by definition not able to think outside its culture. There are no legal-system quick fixes, the culture is the problem.

From my court experience (as an expert witness) I think this is right on the money.

I think that there is just about zero probability that DSK is innocent, given the power imbalance between him and the victim, and his long history of abusive relations with women. But for the reasons dsquared adduced, a conviction will be very hard to obtain.

43

Steve LaBonne 07.07.11 at 3:10 pm

Marc, there’s always a “prospect”. The question is whether it’s a plausible or likely one. In this case, I would say surely not (which is not the same as to say that I think the case can be successfully tried- there may well be enough reasonable doubt for me to say that an acquittal would actually be the correct result from a legal standpoint), but that doesn’t mean I believe for one minute that a hotel maid voluntarily had sex with an old, ugly stranger. Pull the other one, it’s got bells on.

44

Belle Waring 07.07.11 at 3:14 pm

I’m not certain DSK is guilty, and the general point about the victims of actual rapes having perverse incentives to shade their stories to match up with that of a “real” victim doesn’t stand or fall on whether he is guilty. It’s a general point.

Myles, this happened in Berkeley, CA, where people do spontaneously hug on the street in a spirit of cheering one another up with hippie love; he could argue that the last 8 women and men he hugged were cheered and had a happier day, and he had no reason not to think I would feel the same way. Another woman might have hugged him back; can we really be so certain he was ill-intentioned and that I was an unwilling victim of physical contact? Well, as it happens, yeah, because I’m telling you this. Was that hard to understand? I submit that it was not. Good night y’all.

45

MPAVictoria 07.07.11 at 3:15 pm

“I think that there is just about zero probability that DSK is innocent”
Really? Zero? Not one or two percent?

46

tomslee 07.07.11 at 3:20 pm

Really? Zero? Not one or two percent?

I guess that’s why he wrote the two words in front of “zero”.

47

Steve LaBonne 07.07.11 at 3:22 pm

MPAVictoria, the ONLY plausible alternative would be a prostitute / john deal gone wrong. But I have seen no hint of that from any side, so I currently rate it as quite unlikely. As to the the probability that the maid found him irresistibly hot, what do YOU put that number at? I think it’s asymptotically close to zero.

And I certainly would never maintain that there are no or hardly any false rape complaints, because in my 10 years doing forensic casework I’ve seen several (KNOWN to be false by the alleged victim’s own admission, by the way). But I don’t think this is one.

48

P O'Neill 07.07.11 at 3:23 pm

There could be an associated discussion of why persons accused of rape lie. Although the DSK case is now at the point where there are multiple problems, the apparent indifference of the NYPD to get a statement from him in the first hours in detention looks bad now. That’s the point where the accused, if he chooses to talk, sets out a story that can be contradicted later. DSK maybe knew enough to shut up until his lawyer got there so perhaps it’s moot but he also apparently thought he had diplomatic immunity so it’s not like he said nothing.

49

Modulo Myself 07.07.11 at 3:41 pm

Basically, anyone who subscribes to the belief that with sex there’s a real potential for consensual stuff to unwind and become rape, after the fact, simply because a woman changes her mind is part of the rape culture. I mean, it must happen, but it’s abundant bullshit that the pro-consent community has to devote time to worrying about it happening.

50

Myles 07.07.11 at 3:43 pm

the apparent indifference of the NYPD to get a statement from him in the first hours in detention looks bad now.

It would be somewhat unethical to trick legal statements out of people without their lawyer being present, given that he’s bound to be psychologically unbalanced at that point in time, right after the arrest.

51

JM 07.07.11 at 4:07 pm

Perhaps our visceral reaction to the crime of rape is simply highlighting something about legal proceedings that aren’t necessarily intuitive or acceptable to those of us who haven’t spent lots of time in a courtroom?

I’m reminded of a quote I can’t find right now, about Roman trials. In this case, the defendant was so confident of acquittal that, the author emphasizes, he went into the courtroom well-rested, recently shaved and bathed. Why was this important? Because Romans awaiting trial, apparently, would let themselves get as scruffy as possible in order to evoke sympathy.

I personally know a rape survivor who began laughing hysterically after the assault, she was so freaked out. The rapist told everyone at school about this, in order to make impossible for her to establish a narrative that faithfully reflected the fact that a crime had been committed.

She never pressed charges.

52

JP Stormcrow 07.07.11 at 4:17 pm

Myles@37: If the existence of rape is in doubt, then the whole thing falters. [emphasis added]

What is “the whole thing” that falters here? This post? Any discussion of the general topic of why victim’s might lie? Everyone shut up until that 7-foot Snidely Whiplash violent stranger rape happens? … after it is proven beyond all doubt that is. And fer chrissakes the potential seeds of “doubt” and resulting behavior are central to the whole discussion.

53

dsquared 07.07.11 at 4:19 pm

I am on the side of the angels

lucky, lucky angels.

54

JM 07.07.11 at 4:23 pm

“something … that aren’t”?

I hereby forfeit my grammar-nazi privileges for the remainder of the week.

55

rea 07.07.11 at 4:26 pm

It would be somewhat unethical to trick legal statements out of people without their lawyer being present, given that he’s bound to be psychologically unbalanced at that point in time, right after the arrest.

Sho9rt of an effective invocation of Miranda rights (and sometimes not even then), I’ve never known the police to hesitate about this, ethical or not.

56

yeliabmit 07.07.11 at 4:27 pm

@Myles: “It would be somewhat unethical to trick legal statements out of people without their lawyer being present, given that he’s bound to be psychologically unbalanced at that point in time, right after the arrest.”

It’s unethical, but highly effective, which is why it is done routinely by police. Indeed, this is why many constitutions contain fundamental rights to silence and to legal counsel upon arrest.

57

MPAVictoria 07.07.11 at 4:36 pm

“MPAVictoria, the ONLY plausible alternative would be a prostitute / john deal gone wrong. But I have seen no hint of that from any side, so I currently rate it as quite unlikely. As to the the probability that the maid found him irresistibly hot, what do YOU put that number at? I think it’s asymptotically close to zero.”

Good point. I misread your comment as say there was zero chance and not a very close to zero chance. My mistake and my apologies for misreading you. I would put the probability at very close to zero as well, but not zero.

58

BJN 07.07.11 at 4:38 pm

@38

You know, as a representative of Team Anti-Rape, I have to admit we made a tactical error on this one. We were all sitting in our non-phallic meeting house talking about ways of taking virile men down a peg, when we heard the story. We immediately took to the airwaves en masse, making such outrageous claims as “we don’t yet have all the facts” and “many housekeepers are sexually assaulted” and “it is a good thing that the police acted on credible evidence.” Unfortunately the Resistance Against Puritan Ethics Squad was already out there in full force, gutting our case with agents like BHL and Ben Stein.

Seriously. None of us knew what went on because we weren’t there. Everyones first reaction was “holy shit.” the second reaction was predictable victim blaming, and the response after that was purely reactive to that. What do you propose TA-R do? Help tear up the accuser’s reputation on the hope that the jury will convict anyway?

59

politicalfootball 07.07.11 at 5:28 pm

Moralistic narratives are not always the best guide to reality.

And yet, you insist on engaging in your own moralistic narrative, hanging your argument on the accuser’s “robust history of criminal deception for financial gain.”

Another way of saying this, absent the moralistic narrative, is that a desperate person lied to stay in the U.S. I’m going to make a guess that you’ve told a lie or two under considerably less dire circumstances. And if we are going to deny credibility to people who stand to gain financially from rape, then it’s open season on impoverished women. (Which, of course, we do and it is.)

Hard to know what happened in the DSK case, and sure, the various narratives do have an important impact on the victim’s credibility. But DSK has hardly been exonerated.

60

dsquared 07.07.11 at 5:30 pm

As to the the probability that the maid found him irresistibly hot, what do YOU put that number at? I think it’s asymptotically close to zero

since he has a wife who is not only funding his defence on a rape charge, but specifically funding a defence based on him hiring prostitutes, I think we cannot rule out the possibility that, although I do not see it myself, DSK is not wholly without personal magnetism.

61

Marc 07.07.11 at 6:06 pm

@57: I’d settle for thinking, perhaps, that men can sometimes be falsely accused of rape. As a second matter, I’d ask for an acknowledgment that the word of someone with a demonstrated pattern of lying about important matters in a criminal case is worth very little, and this is relevant to the truth of a rape charge.

62

bekabot 07.07.11 at 6:20 pm

“Dude. Seriously. This is ridiculous. Belle wrote a post referring to a) rape and b) rape victims lying. In which the substance of her post clearly rests to some degree on there being rape in the DSK case. If the existence of rape is in doubt, then the whole thing falters. It’s like people meta-analyzing the Duke Lacrosse case and what it tells us not necessarily about Duke Lacrosse but about society at large. Well it doesn’t tell us anything about anybody, because the thing never happened.”

63

bekabot 07.07.11 at 6:26 pm

“Dude. Seriously. This is ridiculous. Belle wrote a post referring to a) rape and b) rape victims lying. In which the substance of her post clearly rests to some degree on there being rape in the DSK case. If the existence of rape is in doubt, then the whole thing falters. It’s like people meta-analyzing the Duke Lacrosse case and what it tells us not necessarily about Duke Lacrosse but about society at large. Well it doesn’t tell us anything about anybody, because the thing never happened.

This is not true. The stories a society tells about itself and about things other than itself are huge clues as to the makeup of that society. If I know that a certain culture has formulated “Rumplestiltskin” and if “Rumplestiltskin” displays certain outstanding features, then the features displayed in (and by means of) “Rumplestiltskin” can inform me as to the characteristics of the society or culture which formulated the story, whether the events described therein actually took place or not.

Please overlook the erroneous post above.

64

bob mcmanus 07.07.11 at 6:31 pm

57: Good answer. I apparently frequent different blogs than you do, and barely know who BHL or Stein are, because I saw little defense of DSK or suspension of judgement in the first few days. I was there myself, guilty, guilty guilty.

The problem I am having is that was no change in position on the blogs I read as more information came out, which made me wonder if “Thou Shalt Not Publicly Doubt the Accuser No Matter the Facts, Because then All Accusations Will Be Doubted” was the tactical rule. Most are still saying they think DSK is guilty (as opposed to “don’t know”) and when asked on what basis, have answers like LeBlanc’s in 29 above, “just because”

65

Steve LaBonne 07.07.11 at 6:44 pm

Well, Bob, I don’t need your permission either to form or to express an opinion. And mine (unlike, I would wager, yours) is based on, among other things, years of relevant professional experience, not on “just because”.

66

jack lecou 07.07.11 at 6:50 pm

I think the question you really have to ask yourself is whether you regard rape as a serious crime that should actually be a prosecutable offence.

As someone said up thread, whether or not a rape has occurred ultimately depends on the victim’s state of mind. The only person who is able to testify to that is really the victim herself: did she or did she not consent. Once you have established that an accused rapist did, in fact, have sexual contact with his accuser (often not contested), the only remaining question is whether or not you want to believe her about consent.

Obviously, as it stands, our society usually doesn’t want to. And often does so for all kinds of spurious reasons. Even when it’s a question of “credibility”, well, as Belle points out here (and as should be obvious) there’s really no way any given rape victim (or victim of any other crime) is going to actually be pure as driven snow in all matters, or even able to keep every detail of testimony consistent.

So it’s a question of whether we think false claims of rape are actually a real problem, particularly relative to the scale of the problem of rape itself. Unless we want to decide that rape is a crime that can in practice only be committed against saints – that raping “dishonest” women is de facto unprosecutable and without consequence – we might want to consider just taking women at their word more often. Even women who might have told a lie about something else.

67

MPAVictoria 07.07.11 at 7:07 pm

jack lecou
Not that I disagree with you but do you think such standards should be applied to other crimes? Or just to rape?

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bob mcmanus 07.07.11 at 7:13 pm

And mine (unlike, I would wager, yours) is based on, among other things, years of relevant professional experience, not on “just because”.

“Years of relevant experience” as applied to this specific case and these particular facts looks close enough to “just because” to me. I hope we don’t instruct our jurors to take their personal history, knowledge of other cases, and personal prejudices as dispositive when deciding guilt or innocence, rather than the evidence presented in court.

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Steve LaBonne 07.07.11 at 7:16 pm

“Years of relevant experience” as applied to this specific case and these particular facts looks close enough to “just because” to me.

That’s your problem, not mine. By the way, I did comment on specific aspects of the this case. But thanks for playing.

70

Marc 07.07.11 at 7:17 pm

@64: Steve: frequently in error, never in doubt.

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Matt 07.07.11 at 7:18 pm

So it’s a question of whether we think false claims of rape are actually a real problem, particularly relative to the scale of the problem of rape itself. Unless we want to decide that rape is a crime that can in practice only be committed against saints – that raping “dishonest” women is de facto unprosecutable and without consequence – we might want to consider just taking women at their word more often.

This is a claim I’m never quite sure I understand. The normal burden of proof in a criminal trial is “beyond a reasonable doubt”. It’s a high burden, and meant to be. It’s not very well formalized, and perhaps can’t be. I think juries (and judges) often get it wrong, and some smart people think it’s too high a standard. (The philosopher Larry Laudan, most well known for his work on philosophy of science, is perhaps doing the most interesting work on this.) But, if we think this is the right standard, and that it should be understood to be a high standard, than I don’t think it will do to take the statement I quote as-is.

Meeting this high standard doesn’t mean that testimony alone cannot suffice. But it does mean that the testimony must be credible to a pretty high degree, when that’s the only substantial evidence. Note that this applies to all cases where testimony alone is the evidence. But, the quoted language seems to be in tension with the high burden of proof we have in criminal cases. There is obvious a sense in which false claims of rape are a massively less serious problem than rape itself- there are certainly many, many fewer cases of false claims of rape, for example. But what this means for the proper burden of proof is not so obvious, I think. A traditional thought is that it is “better that 10 guilty men go free than that 1 innocent one be wrongly convicted.” I’m not sure that’s right, but I’m also not sure that it’s especially wrong in the case of rape. For Jack (and Maybe Belle), what burden of proof do you suggest for rape cases, and why should it be any different from other cases? (That’s meant to be a real, not a rhetorical question.)

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Henri Vieuxtemps 07.07.11 at 7:21 pm

I don’t understand what’s there that impressed Bob so much. An immigrant, refugee from Africa, hotel maid – obviously there’s going to be some dirt to dig up. In this segment of society you don’t survive by following the rules, and the DA is not your friend.

For example, “the woman had lied about her income to maintain her public housing” – what’s that? By this standard almost no one with that level of income can be trusted, ever. Dickensian stuff.

73

Marc 07.07.11 at 7:24 pm

Jack: One certain consequence of your approach would be a dramatic escalation in false charges (think of the dynamics of, say, divorce cases) and the usage of spurious rape charges by the authorities against targets they don’t like.

The USA has gone punishment-crazy enough in its criminal system. It’s this factor, and not some willful blindness to the nature of rape, that motivates me here. Innocent people really do end up in prison. DNA evidence has directly exonerated a lot of men who spent years of their lives in prison convicted of rapes that they didn’t commit.

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Steve LaBonne 07.07.11 at 7:25 pm

It needs to be said clearly that believing an acquittal (or dropped charges) is the correct legal outcome to this case is not at all incompatible with believing that DSK’s claims that the sexual activity in question was consensual are, to say the least, implausible. (I currently hold both beliefs.) That is because the legal standard, quite rightly, is difficult to meet, as emphasized by Matt.

75

bob mcmanus 07.07.11 at 7:27 pm

70: I hope you clicked on the link at #1, because LeBlanc deals with exactly that question in her post.

She and others are also working on civil court alternative or additions over at Unfogged, although that discussion is nowhere near any kind of resolution, and is a typical messy Unf thread.

76

mpowell 07.07.11 at 7:32 pm

@64 Steve, you’ve given good reasons for why you think DSK is guilty in this case. The implausibility of a consensual sexual encounter has to rank pretty high up there (though on the other hand, I have always wondered how you would really go about receiving a non-consensual blow job). So I wouldn’t necessarily assume that Bob’s comment is directed at you, though I will let him speak for himself if he wishes. Personally, I have read the argument, recently and in the past, that a person is very dubious that false rape accusation happen and the explanation is often: “well, I would never do it”. And the problem with this argument is that even if making a false rape accusation is totally inconceivable for that one person, there are enough messed up people and pathological liars out there that it is not an acceptable argument in my opinion to deploy as a means of achieving a proof of guilt beyond reasonable doubt in every case. But it always seems to me that there is a lot of mistrust and unfavorable interpretations between participants whenever this kind of discussion comes up. Maybe I am guilt of that as well, I dunno.

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LizardBreath 07.07.11 at 7:35 pm

I have always wondered how you would really go about receiving a non-consensual blow job).

I keep on seeing this, and it’s not really that strange. Threats and intimidation. Having the option to bite someone’s cock doesn’t do much to protect you if you’re afraid they’re going to injure or kill you if you piss them off.

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bob mcmanus 07.07.11 at 7:36 pm

The reason I am concerned about the public rush to judgment in the DSK case was that there were some immediate and irrevocable consequences: for DSK, for France, for Greece, and possibly for all of Europe. Understanding this does not require my conspiratorial mindset. I dislike the predictability of the coverage and reaction, because what is predictable can be leveraged.

As I said, I hold myself to blame here too. I too wanted the mighty to fall, and my feminist credentials acknowledged.

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jack lecou 07.07.11 at 7:36 pm

Not that I disagree with you but do you think such standards should be applied to other crimes? Or just to rape?

I think that if there are analogous crimes where the victim’s consent is key, then yes.

For example, if a robbery trial centers on the accused’s claim that a purportedly stolen item was a “gift”, I would think the accuser’s testimony should be given at least EQUAL weight to that of the accused.

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bob mcmanus 07.07.11 at 7:37 pm

…doesn’t do much to protect you if you’re afraid they’re going to injure or kill you if you piss them off.

C’mon, LB,we are generalizing away from the specific case again.

DSK was not going to murder the maid in his hotel room.

81

ScentOfViolets 07.07.11 at 7:37 pm

It needs to be said clearly that believing an acquittal (or dropped charges) is the correct legal outcome to this case is not at all incompatible with believing that DSK’s claims that the sexual activity in question was consensual are, to say the least, implausible.

Since you seem to have some experience in this venue, perhaps you could explain something to me: why is it so hard to come up with verdicts that simply amount to saying there is no way to tell who is lying and who is not, who is at fault and who is not? Is this a uniquely American thing?

ISTM that the problem with rape cases is not the casualness with which a serious crime is treated, but that it combines both a serious charge with little in the way of substantiating evidence. Iow, for any crime – not just rape – for which there were serious penalties, I’m going to be less likely to vote for a conviction if the only evidence is of a he said/she said sort.

82

jack lecou 07.07.11 at 7:40 pm

This is a claim I’m never quite sure I understand. The normal burden of proof in a criminal trial is “beyond a reasonable doubt”.

Sure. But I don’t see that as necessarily problematic. I think the question is whether you consider “this woman could just be falsely accusing this man of rape” to actually be a particularly reasonable doubt.

We seem to have settled on the idea that it’s almost ALWAYS a reasonable doubt, even when there’s really no reason to consider it so, and even a lot of evidence pointing the other way.

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bob mcmanus 07.07.11 at 7:48 pm

81:We seem to have settled on the idea that it’s almost ALWAYS a reasonable doubt

No, we haven’t. I am willing to stipulate that false accusations of rape are vanishingly rare, and I would tend to believe the victim in almost all cases.

But is that dispositive in this particular case, or any particular case? Is that how we form judgements in other criminal cases?

I am also willing to stipulate that mothers killing their children is also vanishingly rare, but I didn’t use that when reading or thinking about the Anthony trial.

84

jack lecou 07.07.11 at 7:50 pm

Jack: One certain consequence of your approach would be a dramatic escalation in false charges (think of the dynamics of, say, divorce cases) and the usage of spurious rape charges by the authorities against targets they don’t like.

I’m not convinced that that would necessarily be the case, and even if it were, I’m not really convinced that it would be a worse situation than now.

The USA has gone punishment-crazy enough in its criminal system. It’s this factor, and not some willful blindness to the nature of rape, that motivates me here. Innocent people really do end up in prison. DNA evidence has directly exonerated a lot of men who spent years of their lives in prison convicted of rapes that they didn’t commit.

In regard to both this and the part about authorities trumping up charges, note that I qualified this with it having actually been established that a sexual encounter really took place – i.e., cases where it strictly comes down to the question of consent.

I think we can still have a high bar for other sorts of evidence. I’m quite skeptical of both eye-witness testimony and dodgy forensic techniques, for example. But I feel like it’s perfectly consistent to say that we could be skeptical of a victim’s identification of a given suspect while nevertheless more or less trusting her on the matter of consent.

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Steve LaBonne 07.07.11 at 7:51 pm

Since you seem to have some experience in this venue, perhaps you could explain something to me: why is it so hard to come up with verdicts that simply amount to saying there is no way to tell who is lying and who is not, who is at fault and who is not? Is this a uniquely American thing?

I wish we had the Scottish “not proven” verdict, but we don’t. As a result, “not guilty” verdicts are always hard to interpret. Sometimes they mean “we don’t think the defendant committed a crime at all”, sometimes they mean “we think he’s probably guilty but there’s a sliver of reasonable doubt”.

There really are very few convictions in cases where there truly is little beyond “he said, she said”. But then, there are fewer such cases than you appear to suppose. The pre-DNA convictions that have been reversed by subsequent DNA evidence are generally ones in which an assault clearly occurred but the assailant was wrongly identified. Juries generally behave correctly- by acquitting- where intercourse definitely occurred but there is reasonable doubt about consent. Having said that, I have experienced inept cross-examinations in which counterproductive attempts were made to discredit solid DNA evidence (even though the defendant had admitted intercourse occurred and was basing his defense on consent), when the focus should have been entirely on the fact that my evidence has no bearing at all on the question of consent (something I will happily emphasize on the stand every time I’m asked). In DSK’s case, though, we have an accused who can afford the fanciest lawyers around, so ineffective counsel isn’t going to be a problem.

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Matt 07.07.11 at 8:08 pm

For example, if a robbery trial centers on the accused’s claim that a purportedly stolen item was a “gift”, I would think the accuser’s testimony should be given at least EQUAL weight to that of the accused.

Note that in a criminal case, the burden is on the prosecution to prove the charges. (Many people have been confused in the DSK about what a “presumption of innocence” is and when it applies, but it does apply in court.) This means that we must, in court, assume the innocence of the accused, and the burden is on the prosecution. If you have equally credible testimony on each side, and nothing more, that means a verdict of “not guilty”. Even if the testimony on the side of the prosecution is somewhat more credible, but not completely decisive, this ought to lead to a not guilty verdict, at least if you take “beyond a reasonable doubt” seriously, as I do. Again, this doesn’t mean that mere testimony alone can’t be enough to convict, just that it will be hard

We seem to have settled on the idea that it’s almost ALWAYS a reasonable doubt, even when there’s really no reason to consider it so

I’m not sure what you take to amount to a reasonable doubt, and it’s probably not reasonable to try to make a general statement. (There’s a reason that this is a “standard” rather than rule, after all.) But in the DSK case, from the publicly available evidence, I think that “reasonable doubt” is fairly easily met. (Note that this doesn’t mean that I think the woman is lying. If forced to choose, I’d say she probably isn’t, but only that there are enough problems with the testimony, including lying under oath in parts of this very case, that I don’t think I’d say the “beyond a reasonable doubt” standard had been met.)

Bob at 74- I didn’t read LeBlanc’s post, though I probably will. But there are already civil action options, with lower burdens of proof. I’ll have to see what she says, but bringing a tort action for intentional torts is not at all unusual (and almost certainly would have been brought here if the criminal case was successful.) Note that a tort case can be successful even in the face of a not guilty verdict- O.J. Simpson is the most famous case, though not the only one by any means.

There’s no way in hell I’m going to look at an unfogged thread on this, though. I can’t think of any bigger waste of time.

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salacious 07.07.11 at 8:11 pm

@65:”whether or not a rape has occurred ultimately depends on the victim’s state of mind.”

I just want to interject to point out that, legally speaking, this is inaccurate. Whether or not sex is rape depends on whether there are objective manifestations of consent or nonconsent, not on the internal state of mind of the participants.

88

leederick 07.07.11 at 8:16 pm

It must be pretty bad from the other side too. You’ve raped someone, been charged, and you’ve at least come to terms with the fact you may end up in jail for it – then the details of the case starts coming out and it’s not actually a fair representation of what you did, but something that most people would consider was worse. Maybe I’m hopelessly old fashioned, but I think people deserve to be convicted and punished for crimes they actually commited – rather than crimes they didn’t. I don’t really how see throwing stuff people didn’t do onto the scales and leaving out stuff they did do, and considering it okay as it all nets off as being justice.

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jack lecou 07.07.11 at 8:19 pm

If you have equally credible testimony on each side, and nothing more, that means a verdict of “not guilty”. Even if the testimony on the side of the prosecution is somewhat more credible, but not completely decisive, this ought to lead to a not guilty verdict, at least if you take “beyond a reasonable doubt” seriously, as I do. Again, this doesn’t mean that mere testimony alone can’t be enough to convict, just that it will be hard

Well, IANAL, but from my limited observation this doesn’t really seem to be the way it plays out in practice.

If a shopkeeper, even a somewhat sleezy one, claims someone stole a pack of cigarettes, and the accused thief says, no, they were a gift, I do not think many juries would take that claim seriously.

OTOH, if a prostitute* claims someone raped her, but the accused rapist claims the sex was consensual, I’m not sure anyone here would want to bet that the jury wouldn’t acquit.


* NOT making the claim that sex is a woman’s goods, or that prostitution is just like any other merchant transaction. There is a certain analogy that makes the example work though.

90

Myles 07.07.11 at 8:29 pm

For example, “the woman had lied about her income to maintain her public housing” – what’s that? By this standard almost no one with that level of income can be trusted, ever. Dickensian stuff.

I’m sympathetic to this, but lying about income to remain on public housing is actually not a good comparison, because lying (and lying on the scale she did) on your asylum application is actually perjury, not just lying.

And if Scooter Libby can be sent to jail (at least until the pardon) for simple perjury, I don’t see how it would be fair to let the accuser’s credibility stand on this. Lying is what human beings. Perjury is a body blow to the very essence of our legal system and to the rule of law.

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JM 07.07.11 at 8:44 pm

Perjury is a body blow to the very essence of our legal system and to the rule of law.

And that’s what I was saying @50. The enormity of the crime of rape is not necessarily reflected in the machinery of the judicial system. If an actual victim is a bad witness, and there is no other evidence available, the fact that rape actually occurred doesn’t determine the legal outcome. Naturally, we see this as an injustice, but it’s not a bug, it’s a feature.

Anglo-Saxon law (I forget which king’s) required a rape victim to cry out a specific formula, or rape could not be charged.

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Henri Vieuxtemps 07.07.11 at 8:48 pm

I could be wrong, but I have the impression that lying on your asylum application is what almost everybody does. There is a set of criteria, and a set of standard stories that meet these criteria, and you choose the one that’s close to your real story. The real story may be far more dramatic than any of the standard stories, but it’s messy, culture-specific, impossible to explain.

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Myles 07.07.11 at 9:34 pm

I could be wrong, but I have the impression that lying on your asylum application is what almost everybody does. There is a set of criteria, and a set of standard stories that meet these criteria, and you choose the one that’s close to your real story. The real story may be far more dramatic than any of the standard stories, but it’s messy, culture-specific, impossible to explain.

Whether or not a lot of people lie on their asylum applications doesn’t change the fact that doing so is perjury, and people who do so can be deported.

94

Jeff R. 07.07.11 at 11:01 pm

I find it hard to understand how defaulting, after the fact, on a prostitution arrangement doesn’t itself amount to Rape by Fraud just as much as the mistaken-identity varieties of that crime. (And, of course, this being a far more serious crime than prostitution itself, why police agencies wouldn’t routinely immunize vicitms in these cases.)

95

stubydoo 07.07.11 at 11:07 pm

If almost everybody lies on their asylum application, then then ain’t no point whatsoever in having a system of asylum. Certainly if they are going to lie to the level that this woman did in hers. The correlation between receiving asylum and deserving it would be precisely zero, so they might as well just stick with the Green Card lottery system.

Re the OP: A woman who tries a strategy of telling small lies in order to get through the big truth (i.e. rape) should certainly hope that I don’t end up on the jury. I hold the (perhaps heretical) view that people with a tendency to tell lies have a tendency to tell lies.

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Matt 07.07.11 at 11:20 pm

I could be wrong, but I have the impression that lying on your asylum application is what almost everybody does. There is a set of criteria, and a set of standard stories that meet these criteria, and you choose the one that’s close to your real story.

The largest part of my legal experience, outside of a judicial clerkship, and a significant part of my research, is on asylum and refugee law. My experience and impression is that this is, at least, a significant over-statement. What is true is that for many people, the part of their story that is most salient to them is not the part that is the most relevant for getting asylum. But this is a very different thing from that suggested above. There are dishonest attorneys (and other sorts of hucksters) who will help people do the sort of thing suggested here, and, as it seems was the case for the woman who made the charges in the DSK case, you can buy “canned” asylum stories. But honest experienced attorneys can often tell, and usually won’t take such cases. And in many cases, there is specific, particularized evidence available.

(Different countries have different systems, and I can’t speak about those except in the US and, to a degree, Canada, with much certainty. But I can say with a pretty fair amount of certainty that this characterization is, at least, significantly misleading, and dangerously so.)

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Myles 07.07.11 at 11:24 pm

on a prostitution arrangement doesn’t itself amount to Rape by Fraud just as much as the mistaken-identity

That’s easy: prostitution contracts, implicit or otherwise, are not enforceable in law. They have no legal meaning. It might as well be consensual sex. The extralegal aspects (i.e. the money) are, well, extralegal.

(And prostitutes themselves are entirely aware of this. This is, after all, part of why they charge such high prices. Because the risk of contractual default is built into the price, alongside other legal uncertainties. Economically speaking, if prostitutes are immunized, the prices of sex services should theoretically decrease.)

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yeliabmit 07.07.11 at 11:24 pm

@HV: “…I have the impression that lying on your asylum application is what almost everybody does.

I’m a Canadian immigration lawyer, and so I don’t know about US asylum claims, but “lying on your asylum application” is not what almost everybody does here. Some people are making it up because they have no other basis for remaining in Canada. Others are advancing a claim on one basis (fear of criminal gangs) when they actually have a valid claim on another basis that they don’t want to admit (homophobic persecution). Many simply don’t understand what a refugee claim is actually about — and I can’t blame them since most Canadians don’t know either — and are just telling a version of their story that emphasizes the things they think are most terrible or relevant. The problem is that they often emphasize the wrong things, and leave other things out, and these are viewed as lies of omission.

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Myles 07.07.11 at 11:27 pm

(Different countries have different systems, and I can’t speak about those except in the US and, to a degree, Canada, with much certainty. But I can say with a pretty fair amount of certainty that this characterization is, at least, significantly misleading, and dangerously so.)

And we should add that the woman has fabricated her application to such an enormous degree that her asylum could be reasonably invalidated.

100

yeliabmit 07.07.11 at 11:38 pm

@Myles: “And we should add that the woman has fabricated her application to such an enormous degree that her asylum could be reasonably invalidated.

What a triumph for the rule of law!

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stubydoo 07.07.11 at 11:53 pm

I think for the sake of immigrants, of Africans, and of women everywhere it is best for the conventional wisdom to be that the DSK accuser is unusual, and unusually bad. And I also think that it’s correct. I’m somewhat dismayed to see people making excuses for her, and trying to explain her behavior as normal.

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Kaveh 07.08.11 at 12:15 am

@95, “I hold the (perhaps heretical) view that people with a tendency to tell lies have a tendency to tell lies.”

You’re not making any kind of argument here, so IMO this barely even qualifies as a response to the OP. The OP submits reasons why a victim having told some lies is nonetheless very likely to not be lying about the bigger picture. Do you not agree with these reasons? Do you have evidence that the claim is wrong?

—————–

re the larger issue of false accusations of rape, we should consider the possible long-term trends and our long-term goals. Right now, in the currently existing rape culture, yes, a vanishingly small number of people would ever make false accusations of rape. Given the current (low) likelihood of false charges, simply giving a lot more weight to the alleged victim’s testimony would be an overall improvement. But if laws or legal standards regarding rape charges are changed in such a way as to make the alleged victim’s testimony carry more weight, would that still be the case? Or if the culture changes for other reasons, would that still be the case? What should the standards of evidence be in a culture where the issues are understood better, where alleged victims’ testimony and the issue of consent are taken as seriously as they ought to be? Not saying we should act as if that culture already exists, but I think we should be thinking about what we would do if it did; what our desired legal/cultural situation looks like.

But even this is a somewhat different issue from what seemed to me the main thrust of the OP, which is that a lot of the problem is not the law itself, but that our rape-permissive culture makes it difficult for the law to be enforced by juries. So a lot of this wrangling over what standards of evidence should be is misplaced, we should be thinking instead about how to raise awareness so that juries won’t let people off the hook even though there is no reasonable doubt they committed the crime (as in the OP’s example). Or, maybe, how legal terminology/language could be modified to account for our culture’s tolerance of rape. Is that pretty much an accurate reading of the OP and the issues it brought up?

I’m not even close to being a legal scholar or even knowledgeable about law, but it seems to me that idea of changing legal procedures/terminology to account for a cultural ‘bias’ that runs contrary to the spirit of the law is an interesting, discussion-worthy issue.

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Matt 07.08.11 at 12:27 am

So, I finally had the chance to read the M LeBlanc piece linked in 1 above, and it is very good, and I re-recommend it to people who have not read it.

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Andrew F. 07.08.11 at 1:21 am

On the stand, the accuser would have the same credibility as a criminal who is testifying in exchange for immunity. Unless there is strong physical evidence, the absence of which I assume for this comment, that’s weak stuff – not enough to persuade me outside a courtroom, frankly, much less inside a jury box.

Let’s take two explanations for the accuser’s alleged criminal deceptions:

(1) She was and is in desperate circumstances. For this reason she has allegedly lied to gain asylum, lied about her income, and laundered money for drug dealers.

Problem: Then the same forces would encourage lying about being raped by a wealthy individual – and her phone call, allegedly, indicates that the monetary value of the accusation was quite salient for her.

(2) She was in desperate circumstances, and so lied to gain asylum. She is no longer in desperate circumstances, but persons who experience that kind of adversity, and overcome it by manipulating the system, may continue to do so. This is why she, allegedly, was involved in money laundering, continued fraud, and so forth.

Problem: Same as above.

Some are confusing sympathy for a person whose circumstances encourage her to criminally deceive with an accurate assessment of such a person’s credibility.

I well understand why a person would lie for asylum, and would then continue to lie for cheaper housing. And let’s leave aside some of the less sympathetic stuff, like the alleged laundering thousands of dollars for drug dealers.

But guess what? That doesn’t make the individual any more credible, or the demonstrated comfort (and past success with) criminal deception any less damaging. Desperate circumstances and surviving in a corrupt system, frankly, require habits and traits that diminish credibility, particularly if the individual acts as though those circumstances still exist.

She may get a private settlement simply to make this all go away, but I wouldn’t rate her odds of success in a civil action as very good. Even at 1 in 10, though, DSK would be prudent to pay something to avoid the risk.

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P O'Neill 07.08.11 at 1:47 am

@80 DSK was not going to murder the maid in his hotel room.

No, but he had a pretty active imagination about what form a set up might take, well before the incident happened.

Ce 28 avril, DSK baisse gravement la voix : “Le Russe du FMI veut me faire tomber avant que je ne démissionne. Poutine est derrière, à la manoeuvre.” Quelques heures plus tôt, il a déjeuné avec des journalistes de Libération, fascinés eux aussi de voir le futur candidat abandonner son téléphone privé au vestiaire, pour ne garder que le portable crypté du FMI dans sa veste : cette fois, il s’inquiète d’être écouté “par Claude Guéant”, le nouveau ministre de l’intérieur. Devant ces journalistes, il se met même à imaginer à voix haute une sombre histoire de “femme violée dans un parking à qui on promettrait 500 000 ou 1 million d’euros pour inventer une telle histoire”.

Run it through the Google translate if necessary.

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Belle Waring 07.08.11 at 2:12 am

Careful readers of the thread may notice that in comment 31 I suggested, “we don’t need to change the rules of evidence so much as we need to change people’s attitudes towards rape.” As LeBlanc says (and do read the post) we don’t need to give the State more power to lock people up on flimsy charges. We need to give a woman more confidence to come forward with valid accusations of rape, secure in the knowledge that the police and DA’s will treat her complaint with seriousness and herself with dignity, regardless of who she or the accuser is, and that the press will not drag her through the mud, calling her a lying, syphilitic, crack-addled whore at the first opportunity.

Also, stubydoo, on behalf of women everywhere, thanks a million. Keep fighting the good fight on behalf of the powerless, brah.

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Marc 07.08.11 at 2:28 am

I don’t disagree with what you said at all Belle, and the LeBlanc article does strike me as extremely reasonable. The original post that you linked to, on the other hand, seemed to be a series of excuses in the service of a predetermined guilty verdict of an unpleasant defendant. It’s the latter that rankles, not the former.

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tomslee 07.08.11 at 2:48 am

DSK was not going to murder the maid in his hotel room.

Like too many other confident declarations in this thread, that is easily said from the comfort of an armchair.

My own comfortable armchair judgement is that the case would look very different if the maid and DSK swapped legal teams and financial resources.

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Henri Vieuxtemps 07.08.11 at 7:21 am

Yeliabmit, I have some personal experience, and a whole bunch of anecdotes, albeit from a long time (decades) ago.

Of course an asylum seeker doesn’t understand much of what’s going on, that’s a given. It’s like The Trial; rumors are flying around, you don’t know what to believe. Eventually you find a person who ‘knows how things work here’, tell him your story. Suppose she said something like: ‘I was persecuted by my neighbors because of my ethnicity. They burned my house, they raped me, my children were bullied and assaulted every day. I can’t go back there.’ “The person who knows” may respond: ‘it may work, but we have a lot of people with this kind of story being refused asylum here, because neighbors don’t count, they want to hear that you were persecuted by the authorities. Tell them that paramilitary burned your house, cops raped you, and teachers assaulted your kids, and you’ll be okay.’ So, that becomes her new story. I believe this is rather typical, or used to be anyway.

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Belle Waring 07.08.11 at 12:41 pm

Having someone credibly threaten to hurt you very badly can be enough to make you not want to be hurt, even if you are not scared you will actually be killed.

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Matt 07.08.11 at 1:43 pm

Having someone credibly threaten to hurt you very badly can be enough to make you not want to be hurt, even if you are not scared you will actually be killed.

Yes. And this is of course true, too, even if you think that it’s far from certain that you’ll be hurt. This is one of the things that always surprises me about people who suggest that, to be a “real rape” or to establish that a rape happened, one must have physically fought back.

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jack lecou 07.08.11 at 2:18 pm

Coming back to it in the morning, I think maybe I could have been clearer above.

Yes to everything Belle said about just treating women with some basic dignity and respect. For everyone but the jury at least, a presumption of basic respect and credibility doesn’t need to equate to a presumption of guilt.

Obviously, like a lot of stuff, this comes down to a question of privilege. The problem with rape cases is obviously that, by default, a woman has a lot less privilege than a man, so, quite aside from the rules of evidence or whatever, they face a huge built in disadvantage with the jury. That’s injustice.

The only way that dynamic usually varies is if the accused is someone with even lower status, say a white woman accusing a black or hispanic man, perhaps even one with a prior criminal conviction. I’d bet that about 90% of the cases where someone was railroaded but had the conviction eventually overturned with DNA evidence fall under that heading one way or another. That’s also injustice.

It’s not just rape either. I think the dynamic of the kind of examples I was talking about above, where a thief claims something was a “gift” or something, play heavily on privilege. That claim somehow looks very different depending on how you allocate privilege to the two hypothetical parties.

Obviously the only way you can fight back against that kind of thing is to educate and change some attitudes. Clearly juries are gonna do what they’re gonna do. But my concern is that in some ways this talk of “credibility” is being used to smuggle in privilege more or less through the front door. Opening the door too wide to debates about “credibility” gives juries (and the press, etc.) an easy out, a way to superficially justify their own preconceived notions – notions founded on privilege.

Just look at what’s happening here. A man like DSK obviously has loads more privilege than a hotel maid. And at least in the public sphere, like this thread here, the matter apparently turns on “credibility.” But this credibility question seems to have a particular flavor to it. Somehow, I think that if it were to come out that DSK were, say, cheating on his tax returns, we would be treated to a lot of arguments about how that’s really completely irrelevant to whether or not he raped someone. Which is sortt And yet, the accuser was supposedly caught lying on an unrelated matter and this is being suggested as a perfectly valid reason to disregard her on the matter of a rape.

I don’t know what we do about that exactly – a privilege blind justice system is obviously a big lift – but it’s worth doing, and worth trying to do in advance of progress made against privilege in other spheres. In the case at hand, I’d say we need to be really careful about how rules of evidence and jury instruction and the like treat the “credibility” question. I think I would even go so far as to say that I would favor somehow giving an explicit leg up of some kind to the underprivileged party, although I’m not at all sure how that would work.

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jack lecou 07.08.11 at 2:22 pm

Oops, this: “…Which is sortt And yet…”

Was supposed to get edited to this:

“Which is sorta true – everyone lies on something. Unless they’re completely pathological, it’s harder work to decide if they’re also lying on the matter at hand. And yet…”

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Belle Waring 07.08.11 at 2:41 pm

Agreed.

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Myles 07.08.11 at 3:05 pm

The very unfortunate thing, I think, is that it’s very difficult, and perhaps impossible, to give this woman the full justice due to her, even through the education of jurors, in a way that does not damage the essential architecture of our legal system. Our legal system is based on people not telling lies on legal documents, and bringing extremely drastic (compared to some other countries) sanctions if one’s found to be telling lies in a legal setting. No amount of understanding and education can change or soften this essential mechanism absent undermining it. The whole point of identifying is to say that the particular is not a reliable or good-faith participant in the legal system. If this effect is not realized, then functionally speaking perjury is meaningless.

Committing perjury, whether the circumstances might have militated for it or not, will undermine you in future court action going forward.

But this credibility question seems to have a particular flavor to it. Somehow, I think that if it were to come out that DSK were, say, cheating on his tax returns, we would be treated to a lot of arguments about how that’s really completely irrelevant to whether or not he raped someone.

I don’t think that’s a particularly apt comparison. Tax evasion isn’t even a crime in Switzerland. Cheating on your asylum application is a crime in every country on earth.

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Belle Waring 07.08.11 at 3:09 pm

Lying on your tax forms is perjury, dude. You sign things to that effect.

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jack lecou 07.08.11 at 3:12 pm

Myles:

In case you missed it, I’m a long way from being convinced that the “perjury” thing isn’t a giant red herring.

For example, I don’t think Scooter Libby’s perjury conviction should give us license to dismiss it out of hand if he were to step forward to say he’d been raped by someone.

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jack lecou 07.08.11 at 3:56 pm

The whole point of identifying is to say that the particular is not a reliable or good-faith participant in the legal system. If this effect is not realized, then functionally speaking perjury is meaningless.

I would also really question this assumption.

That’s like saying theft is a crime because we want to identify and exclude bad faith participants in the market system. Um… No.

Perjury is a crime because the act of perjury is damaging to the justice system. We make it a crime and impose penalties so that people will be discouraged from lying in court. It doesn’t follow that a convicted perjurer should never be believed again anymore than it follows that a convicted shoplifter should be banned from retail for life.

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MPAVictoria 07.08.11 at 4:22 pm

“It doesn’t follow that a convicted perjurer should never be believed again anymore “

Well of course not “never believed again anymore” but maybe viewed as slightly less trustworthy or less credible?

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Matt 07.08.11 at 4:33 pm

Lying on your tax forms is perjury, dude. You sign things to that effect.

Yes, but in the DSK case, the woman involved has, apparently, admitted to committing perjury to the grand jury who brought the indictment in this very case . That, as M Leblanc rightly notes, and ignored by others here, is a very major deal. Saying, “yeah, but people lie all the time” isn’t agreeing w/ what M Leblanc said, but disagreeing with it.

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jack lecou 07.08.11 at 4:53 pm

Well of course not “never believed again anymore” but maybe viewed as slightly less trustworthy or less credible?

Perhaps, but I should think would be highly dependent on the circumstances. The particulars of the incident where perjury was committed. Whether that actually seemed to have bearing on the separate matter now at hand. And I wouldn’t necessarily say that it should have more bearing than other sorts of insights into that person’s credibility.

Myles’ statement that such a person has been effectively outed as not being a “good faith participant in the legal system,” and must be treated as such or “perjury is meaningless” seems to go rather further than that.

I really think the Scooter Libby analogy is rather clarifying. Libby was convicted of a raft of crimes, including perjury, making false statements to investigators, and obstruction of justice. In general, I would characterize him as being rather unreliable, and I think that history would certainly factor into my opinion about, say, whether to hire him for a job, or my opinions if he were the center of another political cover-up scandal. Does this mean that he should be disregarded or his testimony considered somehow pre-tainted if he were to come forward with an otherwise credible account of being a victim of rape? Or, say, an accusation that his housekeeper was stealing from him? I think not.

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Myles 07.08.11 at 4:58 pm

Does this mean that he should be disregarded or his testimony considered somehow pre-tainted if he were to come forward with an otherwise credible account of being a victim of rape? Or, say, an accusation that his housekeeper was stealing from him? I think not.

As Matt noted, the maid lied to the grand jury in this very case. I think this, in addition to a previous history of rampant lying, is pretty conclusive evidence that her word isn’t worth very much, and that she has such a lie-to-truth ratio that we are probably better off ignoring what she says.

If you found out that Scooter Libby, in the midst of accusing his housekeeper of theft, is lying about his housekeeper, it really would be a different case.

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Myles 07.08.11 at 5:14 pm

By the way, I think I better address this:

Lying on your tax forms is perjury, dude. You sign things to that effect.

Very true. But again, as I noted, in some countries tax evasion isn’t a crime. So it’s not as universal as simple perjury, especially in cut-and-dry cases like asylum applications.

Also, the line dividing very aggressive tax avoidance strategies and illegal tax evasion strategies is sometimes a very fine one. Very often it depends on the quality and competence of your accountant. People actually making shit up on their tax forms is another matter entirely, and happens much less. The line between making shit up on your asylum application and not making shit up is not such a fine one. And the line between lying to a grand jury and not lying to a grand jury is certainly also not such a fine one.

(Also, I think we should note that outside the U.S., where the IRS is at times paranoid and fanatical, tax evasion is not taken that seriously in many other Western countries. In Commonwealth jurisdictions, for example, the tax man doesn’t have quite the annoying and bullying reputation it often does in the U.S., and is often willing to explain to the particular filer how far his or her tax avoidance strategy would be permitted in advance of actually collecting by force.)

124

ptl 07.08.11 at 5:17 pm

Myles,

“Whether or not a lot of people lie on their asylum applications doesn’t change the fact that doing so is perjury, and people who do so can be deported.”

Can be and may be, but may not be. Ayaan Hirsi Ali, American Enterprise Institute (green card granted after record of lies known) retains her Dutch citizenship and is funded massively (in kind: security) by the Dutch Government.

125

Lilypod 07.08.11 at 5:23 pm

Add another voice to those asking not whether we need to change rules and standards so much as examine whether the current ones are being applied differently in rape cases and, if so, why? As jack lecou outlined further upthread, there are analogous crimes with which you can compare the key issues:

If a shopkeeper, even a somewhat sleezy one, claims someone stole a pack of cigarettes, and the accused thief says, no, they were a gift, I do not think many juries would take that claim seriously.

No, because the default assumption is that shopkeepers generally do not give away their stock as gifts; and the likelihood of their doing so and then claiming differently for no reason other than malice, revenge, or remorse at their own generosity would be viewed as remote. Even if shopkeepers did give away items occasionally, a thief’s attempt to exploit past actions as a defence would be emphasised by the prosecution as just that – exploitation of someone’s good nature. What is “reasonable” about doubt in this case is a certain interpretation based on the default assumption: people generally don’t assume you have the right to take something unpaid from a shop, even if the shopkeeper has previously gifted you such an item.

However, if you scrutinise jury responses to the crime of rape, particularly as it relates to female victims, the broader societal default assumption would appear to be that females exist in a perpetual state of availability or consent, with the onus on them to communicate non-consent in ways society deems appropriate, or distinguish that they suffered a “real” rape; and despite the false reporting rates for rape being equivalent to or even below those for other crimes, the default assumption also seems to be that there is a greater possibility of false allegations being made. As such, “reasonable doubt” will be open to another interpretation, and you then end up in the situation where the conviction rates match the ones currently enjoyed and where:

We seem to have settled on the idea that it’s almost ALWAYS a reasonable doubt, even when there’s really no reason to consider it so, and even a lot of evidence pointing the other way.

So “this woman could just be falsely accusing this man of rape” then becomes a reasonable doubt, whereas I would contend that in an assault case “this man could just be falsely accusing the defendant and his injuries could actually be self-inflicted” would be a less reasonable doubt. But why? If false reporting for physical assault is in line with false reporting for rape, and a conviction has equally serious consequences, why the difference, all other things being equal (witness credibility, unsubstantiated testimony, lack of corroborating witnesses)? People have admitted to dousing themselves with acid and claiming assault, but nobody immediately shouts out the alleged-acid-burn-victim-equivalent of “Duke Lacrosse! Duke Laaaaacrosse!” each time an acid attack is reported. Headlines regarding crimes for which witnesses are sought also differentiate at an early stage about “reasonable doubt”: “Woman Allegedly Raped in City Park” versus “Man Beaten Up in City Centre”. I have no problem with the word “alleged” provided its use is not selective. It relates back to what dsquared noted about the culture being the problem, and it’s hard not to see a gender-related component.

It’s not a case of worrying that we’re asking the legal system to be less rigorous about the burden of proof in rape trials, or that we’re proposing lowering standards: it’s actually questioning whether the same standards currently exist in analogous cases with analogous false reporting rates – whether, for example, a jury is more likely to believe a man when he claims another man assaulted him. Or whether – despite believing such a man’s account – a jury may feel that the correct legal outcome should still be an acquittal due to lack of corroborating CCTV footage.

Despite the prevailing myth, rape trials do not come down to he said/she said. They come down to he [usually] said (and he may exercise his right to silence once a plea is entered)/she [usually] said/witnesses to the initial outcry said/the medical doctor who examined the alleged victim said/the responding police said/the forensic expert said, etc.

Agreed regarding the points being made about privilege.

I have always wondered how you would really go about receiving a non-consensual blow job.

Because I do not believe in discussing cases before the courts, bear in mind that these are general means by which attackers have secured non-consensual oral sex: coercion, blackmail, threats, use of a weapon/partner, physical force (infliction of pain, choking, straddling and pinning the victim, controlling air supply so that victim complies), etc.

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Myles 07.08.11 at 5:29 pm

So “this woman could just be falsely accusing this man of rape” then becomes a reasonable doubt, whereas I would contend that in an assault case “this man could just be falsely accusing the defendant and his injuries could actually be self-inflicted” would be a less reasonable doubt.

Uh, because rape is more serious than most assault, and thus we have to be stricter about convictions? It’s the same with with homicide convictions.

127

Lilypod 07.08.11 at 5:41 pm

@126: So, following your ‘logic’, if most people would argue that homicide is a grade more serious than rape and that we should be stricter still about homocide convictions, why are there more homocide convictions than rape convictions in the US (65%-80% for homocide – it varies state to state – versus 13% for rape)? Result of a quick Google search. I’m sure you could find differing figures, but the ones I’ve quoted would seem to be in the ballpark. Uh.

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jack lecou 07.08.11 at 5:50 pm

As Matt noted, the maid lied to the grand jury in this very case. I think this, in addition to a previous history of rampant lying, is pretty conclusive evidence that her word isn’t worth very much, and that she has such a lie-to-truth ratio that we are probably better off ignoring what she says.

I can’t say I agree with that at all.

There is no such concept as a “lie-to-truth” ratio that allows us to throw up our hands and stop considering each fact and statement individually. A jury that did that is being highly irresponsible.

I think that in general lying to the grand jury – unlike a completely separate matter like the asylum application – is probably at least somewhat relevant, but I think the nature of each specific statement, and the witness’ explanation for making them and changing their story, need to be considered.

Look back at Belle’s initial post. For a variety of reasons, the woman in the second to last paragraph might well have decided to lie to a grand jury about having used drugs that evening. And possibly a lot of other details to try to make the story fit. If she later gets caught out, or changes her story, does this mean her “lie-to-truth” ratio is shot and the jury just gets to shrug it’s shoulders and acquit? That would be pretty negligent in my book. (Of course, it’s probably what a lot of juries would do, but that doesn’t make it right.)

They actually need to decide whether to trust her new story, or rather, whether to trust the salient elements of her new story – like consent. The previous lies, and the general fact that she lied before might be a consideration, but so would whether the changed story elements were really salient, whether the specific motives for the previous lying seemed like they might still be in play on salient facts, etc. It should not just be “she’s a dishonest bitch, let’s go home.”

It really is the case that people often have things they’d like to hide, and make mistakes testifying to grand juries, etc. To treat this is sufficient reason to dismiss the rest of their claims is unjust. Particularly as a much higher standard of scrutiny often seems to apply by default to claims made by women accusing men of rape.

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jack lecou 07.08.11 at 6:08 pm

Regarding the LeBlanc piece, I think what the piece misses completely is any discussion of privilege. As such, it’s not really even asking the right questions.

The first thing I would propose is that all cases be treated equally. In some ways it’s really great that the police and prosecutor’s authority is here being used to thoroughly investigate the credibility of witnesses, and that info turned over to the defense.

Somehow, I don’t think that process is always pursued with quite the same vigor though. Like when the accused is a minority with a prior conviction and an attorney appointed by the public defender’s office.

But beyond that, it’s relying on a “credibility matters, it just does” crutch. As you can tell from the above, I think that’s a little irresponsible, and less than convincing. Credibility would be great if we could trust juries (or ourselves) to really make those judgments dispassionately and actually limit themselves to strictly relevant considerations. But as it stands, judgments about credibility are highly subjective and selective. They’re easily – invisibly – abused to smuggle in less savory judgments based on privilege.

In terms of concrete solutions, well, IANAL, but I believe the right to confront your accuser already has some limits. A defense attorney is quite correctly restricted from just bringing up any old thing about an alleged victim’s past. So one thing I would suggest is that, at a minimum, guidelines for judges as to what is and is not permissible for consideration under the “credibility” criteria might be made rather stricter. For example, I see no fundamental or constitutional reason why a judge shouldn’t be able to rule that questions about the victim’s testimony at an asylum hearing are irrelevant and inadmissible. That’s not a perfect solution, but it might be a start.

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Matt 07.08.11 at 6:21 pm

So you are suggesting changing the Federal Rules of Evidence, Jack? M Leblanc, who is a lawyer, is describing the rules pretty clearly. Do you think the rules should be changed generally, or just for rape cases? (Note that “impeaching the witness” is in fact a perfectly normal part of nearly any case that involves witness testimony as an essential part, as one of the best movies about the law, _My Cousin Vinny_, showed quite nicely.)

It would be surprising if the rules of evidence were perfect. Lots of people have objections to many of the rules, but much of the discussion here has gone on with a high degree of ignorance of what the rules are and why they are as they are. It’s not very edifying.

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jack lecou 07.08.11 at 6:37 pm

I think that, first of all, the discussion is incomplete without observing that existing rules are enforced and interpreted quite unevenly. M Leblanc’s piece seemed to be devoid of that acknowledgement, and it makes a difference.

And yes, I think the rules could probably be improved a good deal, especially with regard to reducing the potential for such unevenness, and with an understanding of the fallibility of jurors on certain matters (there is obviously a fine line between that and manipulating the flow of information to them to obtain a certain result). Right now, my instinct is to say that “credibility” could stand to be a quite narrowly defined category of evidence or testimony – probably much more narrowly than it is, although I can’t say I know much about the details as they stand.

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jack lecou 07.08.11 at 6:44 pm

I’d add that I think in general eye-witness testimony is probably given a lot more weight than it deserves. I’m sure I don’t need to tell anyone here how problematic it can be.

But it’s also important to distinguish between different things the witness might be more or less credibly aware of: I would give very little credit to a victim’s identification of exactly which alibi-less stranger raped her, but quite a lot to her testimony about whether or not she consented.

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Myles 07.08.11 at 7:45 pm

They actually need to decide whether to trust her new story, or rather, whether to trust the salient elements of her new story – like consent. The previous lies, and the general fact that she lied before might be a consideration, but so would whether the changed story elements were really salient, whether the specific motives for the previous lying seemed like they might still be in play on salient facts, etc. It should not just be “she’s a dishonest bitch, let’s go home.”

What you are describing isn’t how the legal process works or how it is supposed to work. You are describing what you think the legal system is like (and lots of people do this, I just dealt with someone a week ago who thought a bunch of quite absurd things about the legal system), and let’s just say this has no relation to reality whatsoever.

At this point, her testimony doesn’t really have value. How on earth would you even know that she isn’t lying this time? All prior history seems to point toward her lying this time, again and again. There’s no way to tell, and it’s certainly not the kind of stuff that could withstand the rigorous and serious test of reasonable doubt.

I literally have no interest in debating the veracity or falsity of various discrete parts of her testimony. There is just no way to tell. She could be lying about anything at any point in time. And in criminal prosecutions, I think we should remind ourselves, the benefit of doubt goes toward the defendant, not the prosecution. She shouldn’t get the benefit of doubt; DSK (the defendant) should. A case that is messed up on the prosecution side (as this one is), should be rightly dismissed.

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Sebastian 07.08.11 at 8:36 pm

“if most people would argue that homicide is a grade more serious than rape and that we should be stricter still about homocide convictions, why are there more homocide convictions than rape convictions in the US (65%-80% for homocide – it varies state to state – versus 13% for rape)?”

I have no idea what your percentages mean (65% of what), but in so far as your point says something about murder convictions vs. rape convictions, the problem is that murder convictions turn on a crime where the end product is pretty rare (a dead body caused by the accused’s actions) while a rape conviction turns on circumstances which have evidence of activity that are super-common (sexual activity between two people). When you do something that causes evidence of a dead body, you will almost always get a pretty close look over by the police. When you do something which causes evidence of sexual contact, you normally won’t. So the evidence in a murder case often tends to turn on something other than straight-up credibility and/or differing plausible explanations for what happened. (Yes a good defense attorney can come up with AN explanation for even very tight murder cases, but they usually won’t seem plausible. “I thought she was consenting” is always at least a marginally plausible explanation unless you have a tape of her screaming at you to stop or some other really obvious indication of non-consent.) And that is part of what the initial post is about–rape victims realize that their cases are going to be really crappy to prove *even when they were really raped*. And furthermore actual rapists know that it is going to be tough to prove rape *even when they actually are going out with the mindset of raping someone*.

Rape is tough to prove because a lot of the time, unless you are right up there watching it, the evidence it leaves behind is the same as evidence of regular sex between two consenting adults.

And that sucks for people who are raped.

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jack lecou 07.08.11 at 8:47 pm

What you are describing isn’t how the legal process works or how it is supposed to work. You are describing what you think the legal system is like

No, I think it’s clear I’m describing how I think it is supposed to work, or at least how it should be supposed to work.

I literally have no interest in debating the veracity or falsity of various discrete parts of her testimony. There is just no way to tell. She could be lying about anything at any point in time.

Anyone could be lying about anything at any point in time. That’s why it’s hard. If you are actually interested in getting to something resembling the truth of a matter, you have to sort through the known facts, weigh the credibility of contrasting testimony, consider histories and motives, and come to a decision. Given proof that someone has lied on a relevant matter in the past certainly demonstrates that you can’t necessarily presume a statement of theirs is true, but neither is it sufficient to presume that everything they have said before or since is false. It’s difficult, but ‘difficult’ or “there’s no way to know for sure” is not a very good excuse not to make the attempt.

Details matter.

I’ll also say that in the DSK case specifically, the “lies to the grand jury” do not seem to be anywhere near as damning as you are making them out to be. The reports I can find say that she contradicted herself on what she did immediately following the rape – whether she waited in the hall and then reported the rape or went on to clean another room.

That is exactly the sort of thing which I think jurors would be well directed to overlook. Even if it was a deliberate lie (rather than some legitimately blurry recollection following a trauma), I imagine she made it because she realized that, after being raped, continuing on to the next room would not seem like the “typical thing a rape victim is supposed to do” – even though there is in reality no such thing. So she glossed over that bit of detail to make her story more “believable.” Big mistake. Clearly she is a liar about everything for all time!

I’ll point you back, again, to Belle’s example. In that, or in the DSK case, I think that, in principle, the victim might be demonstrated to have (previously) lied about all sorts of peripheral matters, or even relatively foundational issues of place and event sequence and so forth, without necessarily ever casting a truly “reasonable doubt” on the pivotal matter of [lack of] consent.

That may not be the way it works out in the real world with real juries, but it’s certainly the way it should.

PS: someone can correct me if I’m wrong, but I believe the principal of the prosecution demonstrating its case as a whole “beyond a reasonable doubt” is somewhat different from the idea that a defendant should always be “given the benefit of the doubt” on any given matter. They overlap in many ways, but the one doesn’t necessarily imply the other. And the latter is not, AFAICT, a generally accepted principle our justice system.

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jdkbrown 07.08.11 at 9:15 pm

“Rape is tough to prove because a lot of the time, unless you are right up there watching it, *the evidence it leaves behind is the same as evidence of regular sex between two consenting adults*.”

Only if you discount the testimony of the person saying they were raped as evidence.

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Myles 07.09.11 at 2:23 am

Only if you discount the testimony of the person saying they were raped as evidence.

Which is precisely what we are proposing to do here (to a limited degree), because we have relatively reduced indication of the testimony’s reliability and veracity.

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Andrew F. 07.09.11 at 2:41 am

jack @112: The problem with rape cases is obviously that, by default, a woman has a lot less privilege than a man, so, quite aside from the rules of evidence or whatever, they face a huge built in disadvantage with the jury. That’s injustice.

This is false. Sympathy/credibility with the jury is not a function of superior privilege to the victim. Quite the opposite.

jack @135: The reports I can find say that she contradicted herself on what she did immediately following the rape – whether she waited in the hall and then reported the rape or went on to clean another room.

That is exactly the sort of thing which I think jurors would be well directed to overlook.

The defense theory would be that the encounter was consensual, and that the alleged victim – perhaps out of anger, perhaps out of greed – devised a scheme to extract monetary gain from the encounter. Behavior consistent or inconsistent with that theory is relevant. That includes her actions following the alleged crime, and it includes, especially, her honesty in describing the crime. How relevant is a question, primarily, for the jury. The exception occurs where the probative value of the evidence is outweighed by the prejudicial effect. And that exception does not really apply here.

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Andrew F. 07.09.11 at 2:42 am

Sorry, That is exactly the sort of thing which I think jurors would be well directed to overlook. should be in italics as well in 138 as they are part of jack’s argument.

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jack lecou 07.09.11 at 3:26 am

This is false. Sympathy/credibility with the jury is not a function of superior privilege to the victim. Quite the opposite.

That seems rather counter to my impression. This is why juries famously have such sympathy for, e.g., black defendants and rape victims?

Would you care to elaborate?

Behavior consistent or inconsistent with that theory is relevant. That includes her actions following the alleged crime, and it includes, especially, her honesty in describing the crime.

That’s fine. And I’m sure that’s an accurate description of the way it works.

What I’m saying is that, regardless of what the defense attorneys or the jury make of it – or how they ultimately choose to make up their mind about “credibility” – these facts really do not, in fact, substantively bear on the case at all.

Disregarding the question of what exactly happened between her and DSK while the hotel room door was closed, it seems to me that all of the narratives are just as consistent and plausible before the revelation of a change in story as after.

* Before the revelations, her story was consistent with someone who had consensual sex then lied about it in order to extort money AND it was consistent with someone who was raped.

* The altered story is consistent with someone having consensual sex and then lying about it to extort money AND it is still perfectly consistent with someone having been raped.

* The fact that she lied is consistent with fraudulently altering her story to make it sound like a typical rape narrative in order to extort money AND it is consistent with her having been raped and wanting to convince the grand jury by making it sound more like a typical rape narrative.

Looking at the matter dispassionately, with a realistic assessment of how people actually behave following having been raped, and how even ‘good’ people sometimes lie, I don’t see why any of this should actually change anyone’s assessment of her credibility or the truth or untruth of her charges. It ultimately adds zero new information.

Of course, as a matter of the world-as-it-is, I will concede that there is a very decent chance that the jury will seize on her change in story, and “atypical” behavior following the alleged rape as [further] proof that she is a lying, gold-digging slut. They may well have without the revelations. For all of the reasons outlined in the post and thread above though, this seems to me not to not actually be a very desirable outcome. One that, indeed, we might want to look into discouraging somehow.

(Note that apprehension about how the authorities and a jury would view her supposedly “atypical” reaction is presumably why she might have opted to alter her story in the first place. It’s certainly why others have done – or have never come forward. Great cycle this all sets up. Great for rapists anyway.)

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Andrew F. 07.09.11 at 11:55 am

jack, I think you’re correct in that those narratives were all logically consistent with the facts before and after the revelations.

I also agree that the lies, by themselves, about whether she cleaned a room after do not matter much. If that were the only problem, there would be no problem.

The problem is that these lies are going to be added to other criminal deception – immigration fraud, tax fraud, money laundering – and to portions of her taped conversation with her boyfriend.

So the probability of truth for the narratives has changed as a result of the totality of the new information.

jack @140: That seems rather counter to my impression. This is why juries famously have such sympathy for, e.g., black defendants and rape victims?

Your thesis was that if defendant X is more privileged than victim Y, the jury will have more sympathy for defendant X.

Most black defendants in criminal trials, remember, limiting ourselves to crimes involving violence against another person or the destruction/taking of property, are accused of harming a victim who is also black. So, even assuming juries do have less sympathy for black defendants, that’s unlikely to be explained by a disparity in privilege between accused and victim.

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Michael Drake 07.09.11 at 3:16 pm

“This is usually the part of the thread where I start to think that guys suck. “

But gals sometimes suck too, you know. And it’s not like rape defendants (whether truly or falsely accused) are accorded some great dignity either.

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ptl 07.09.11 at 4:18 pm

But gals sometimes suck too, you know.

(Falsely) accused by a woman. Defended by a woman whose PI was a woman. Case dropped by a female prosecutor. Represented by a female custody attorney.

And it’s not like rape defendants (whether truly or falsely accused) are accorded some great dignity either.

Yes, your system — pre-trial publicity, perp walk — sucks.

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jack lecou 07.09.11 at 4:47 pm

The problem is that these lies are going to be added to other criminal deception – immigration fraud, tax fraud, money laundering – and to portions of her taped conversation with her boyfriend.

That’s the problem, yes. It creates a narrative in which ad hoc judgments of “credibility” can roam free. But does it really add any new information as to whether her charges are likely to be true or not? I don’t see it.

Most black defendants in criminal trials, remember, limiting ourselves to crimes involving violence against another person or the destruction/taking of property, are accused of harming a victim who is also black. So, even assuming juries do have less sympathy for black defendants, that’s unlikely to be explained by a disparity in privilege between accused and victim.

Yeah, that’s one of the subset of trials where privilege [sometimes] might not come into play. It’s a largish one, sure, but what about the rest? For example, what happens to the relative conviction rate when the victim is white?

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Andrew F. 07.09.11 at 5:45 pm

The judgments aren’t ad hoc because we’re not making them after we know whether the alleged victim is telling truth. We’re simply using new information to conduct our analysis. We’re incorporating new variables.

I ask you whether the next card drawn from the deck is an ace of spades. You say there’s a 1 in 52 chance. Then I tell you that I’ve removed all the hearts from the deck. Now you say there’s a 1 in 39 chance. Nothing ad hoc about this.

As to relative conviction rates of white versus black defendants, I think that the issue of race is different from the issue of privilege. For example, a white woman claims to have been raped by a superstar black NBA player. The accused in that case has far greater privilege; but the racial factor may not be in his favor.

My first impression of the DSK case was that the disparity in privilege worked against DSK. The privileged European aristocrat accustomed to having what he wants, when he wants it, and to treating others as mere tools for the fulfillment of his desires, attacks a poor hotel maid who does not consent to his wishes. I even felt some pride at the DA’s decision to detain and arrest DSK, to refuse any special treatment, and to treat him like any other arrestee.

Anyway, my personal impression is that American juries don’t accord credibility on the basis of privilege (though they will for other reasons which may be equally silly). In fact I think obvious pretensions of privilege tend to irritate most Americans.

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jack lecou 07.09.11 at 6:50 pm

I ask you whether the next card drawn from the deck is an ace of spades. You say there’s a 1 in 52 chance. Then I tell you that I’ve removed all the hearts from the deck. Now you say there’s a 1 in 39 chance. Nothing ad hoc about this.

Is this like Myles’ idea of a “lie-to-truth” ratio? As near as I can tell, telling truth/lies isn’t like a deck of cards. It’s not like we get a lifetime allocation of 52 true statements or something. How does this analogy work?

What’s ad hoc is that, if I have decided the narrative I want to believe, one way or the other, ALL of these facts will only serve to reinforce that. AFAICT, there is nothing fundamentally contradictory or expository about any of them. So you can have the narrative where an unsavory criminal-type immigrant woman is trying to extort a guest at her hotel, or there’s a narrative where a woman – a poor, underprivileged one, mixed up in a somewhat unsavory life – is victimized by a rich guy used to getting his way and chooses to stand up for herself. The “information” you’re talking about adds nothing but a convenient palette of facts which we can arrange in whatever fashion validates our chosen narrative. Based on “credibility”… Or something.

As to relative conviction rates of white versus black defendants, I think that the issue of race is different from the issue of privilege. For example, a white woman claims to have been raped by a superstar black NBA player. The accused in that case has far greater privilege; but the racial factor may not be in his favor.

Privilege works on multiple dimensions. A rich NBA player obviously has wealth and fame – but that’s not necessarily the same thing as privilege, or at least it doesn’t always cancel out low values on other axes of privilege. And a black sports star’s privileged status, if any, on other axes is always somewhat fragile and provisional. The NBA player would be fortunate in that he could hire good defense attorneys, but as you note, the jury’s sympathies may still lie another way.

My first impression of the DSK case was that the disparity in privilege worked against DSK.

Privilege only works when it’s running under the radar, so yeah, displays of “arrogance” or media narratives that explicitly highlight the privilege issues that are in play can certainly upend things a bit. I opted not to note it above, but the other obvious exception to the privilege rule is when the privilege mismatch is SO wide that the privilege “outs” itself. A male college student raping a fellow student can often get a pass. A billionaire movie star oil mogul kicking a crippled black orphan girl, maybe not so much.

That visibility isn’t the case for the vast majority of rape cases though, where you’re dealing with mostly just male privilege, not male privilege AND wealthy jet-setting politically-connected diplomat privilege. Even so, I think it remains to be seen how it plays out. Depending on how DSK comes across in court, the jury may or may not decide to pay attention to all of that. My guess is his lawyers will try to minimize or neutralize the open perception of that privilege somehow, while nevertheless strumming a subtle tune on the underlying privilege strings. Emphasize the ‘innocent old man’ aspect, maybe (might not work so well here). There’s also always the “that poor hardworking, upstanding rich guy, always victimized on account of his wealth” narrative.

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jack lecou 07.09.11 at 7:05 pm

As to relative conviction rates of white versus black defendants, I think that the issue of race is different from the issue of privilege. For example, a white woman claims to have been raped by a superstar black NBA player. The accused in that case has far greater privilege; but the racial factor may not be in his favor.

I’ll note that you’re again you’re focusing on the subset where other factors, or complicated interactions of privilege, are confounding things. (Also note that nobody is saying that black people always get convicted if the victim is white. Or that white or rich people always get off scott free. There’s no hard and fast rule, just a nexus of hidden prejudices and default assumptions which congeals into a tendency for things to break one way or the other whenever other matters are murky enough to let it operate.)

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Lilypod 07.09.11 at 11:13 pm

Sebastian @134: Your opening point compares hypothetical homocide – a “dead body caused by the accused’s actions” – with hypothetical “circumstances which have evidence of activity that are super-common (sexual activity between two people)” as opposed to a hypothetical rape. So reasonable doubt in rape cases apparently even makes its way into hypothetical comparisons.

Your argument is that a rape conviction turns on circumstances that show evidence of an activity that is super-common and may be consensual and this is why it is tough to prove. A physical assault case also turns on evidence of something that is super-common: people presenting with injuries. Cases other than rape also hinge on consent and whether someone has bothered to obtain it. If people believe that rape is somehow just inherently different (and deserving of the stricter standard which the glaringly low conviction rates and underreporting would suggest), I think they need to examine where that belief is truly flowing from.

Which comes to what I think is one of the real reasons juries don’t want to convict in a rape trial: for many people, “I thought she was consenting” is “always at least a marginally plausible explanation”, even in “real rape” (“rape-rape”, ref. Whoopi Goldberg) and most definitely in not-so-rape-rape. If females are regarded as continually existing in a default state of consent and availability, then “I thought she was consenting” is always at least marginally plausible, because there’s always the danger that the alleged rapist didn’t get enough clues beyond “No” and the lack of voluntary, enthusiastic participation. Juries may actually believe that the alleged victim’s experience was rape, but conclude that the accused could perhaps not have realised. Oops-a-daisy. “He absentmindedly didn’t even notice that he was raping her. She indicated that she didn’t want sex, but he thought she’d respond if he kept going, so he went ahead anyway, and kept going and going, and they’d had drinks together earlier, and it’s so easy to mistake a willing, enthusiastic reaction for its opposite, especially if the other person is unconscious, and it makes me very uncomfortable to think of this guy having to live with the sex offender label for the rest of his life.” Seriously. There’s a difference between not “realising” you’re raping someone and not caring to realise.

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x.trapnel 07.10.11 at 1:01 am

Lilypod’s comments at 125 and 148.last seem to get at the heart of things. Folks’ judgements about what counts as a “reasonable” doubt are about as culturally-conditioned as you can get.

I also find it interesting that nobody seems to be picking up on the way that the accuser’s previous lies enhance her credibility: they gave her a very strong incentive to stay the hell away from police scrutiny. If I know my asylum application contained misstatements, and that I’d committed various other crimes, then coming forward with a rape accusation would involve vastly more downside risk than otherwise. Honestly, I find it hard to imagine someone taking such a risk with her precarious immigrant status, especially given how miserable the the process of making a rape accusation is in the best of circumstances.

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parsimon 07.10.11 at 1:52 am

I also find it interesting that nobody seems to be picking up on the way that the accuser’s previous lies enhance her credibility: they gave her a very strong incentive to stay the hell away from police scrutiny.

This is true. One wonders whether people tend to assume that she might have overlooked this because she’s not very bright, since immigrants (so the assumption might go) are not very bright.

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Andrew F. 07.10.11 at 2:15 am

jack, well your initial thesis didn’t leave room for other factors remember. It was all a function of privilege. Can you think of any example where the fact that the accused is more privileged than the victim, in itself, inclines the jury towards the accused?

Lilypod @148, and assault cases without persuasive physical evidence can be difficult to prove as well. I’m also very skeptical of the idea that juries believe the “default state” of women is consenting. I don’t believe that to be true.

X.trapnel, what type of person would risk the costs of a false accusation of rape for the potential benefits? Perhaps the same type that, after gaining asylum, would risk imprisonment and deportation by engaging in money-laundering, committing fraud for cheaper housing, and so forth.

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jack lecou 07.10.11 at 2:25 am

I also find it interesting that nobody seems to be picking up on the way that the accuser’s previous lies enhance her credibility: they gave her a very strong incentive to stay the hell away from police scrutiny.

I agree with your interpretation, but clearly this still falls under the heading of “it can fit whatever ‘credibility’ narrative you want.” If you’re disposed to, you can also just assume she was too stupid, naive, angry, criminally-inclined or whatever to consider that.

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jack lecou 07.10.11 at 2:52 am

jack, well your initial thesis didn’t leave room for other factors remember. It was all a function of privilege. Can you think of any example where the fact that the accused is more privileged than the victim, in itself, inclines the jury towards the accused?

It’s not really my thesis, and I was assuming, if not agreement, at least some basic familiarity with the concept of privilege, and the notion that it might affect juries. Saying that, all else being equal, privileged parties tend to get favorable treatment from juries actually strikes me as darn near tautological.

It’s not exactly a heretical idea either. And rape is probably one of the quintessential examples. Just a quick google while looking for something else turned up this article, touching on many of the same issues as this thread: http://www.abc.net.au/unleashed/2783280.html. One quote:

A study by Kathy Mack found that even in the select cases that make it to trial, conviction is rare, particularly where the victim and perpetrator know each other and there is no injury beyond the rape. In both the United States and Australia, convictions for rape are lower than for other serious crimes in part because juries insist on more corroboration than in trials involving other serious crimes, and typically see rape victims as less credible. A recent Australian study has found that being male, low income and politically conservative made a juror more likely to deem a rape victim as lacking credibility and the male accused as innocent.

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jack lecou 07.10.11 at 3:38 am

“…and it makes me very uncomfortable to think of this guy having to live with the sex offender label for the rest of his life.”

I don’t really have a point here, but I think it’s weird how the fact that everyone agrees, as a general principal at least, that rape is a really, super-duper, unconscionable crime actually seems to work against convictions.

Like when the fact that it’s so bad means that Johnny couldn’t possibly have done one (or three). “He’s a good boy – with a future! – he wouldn’t do something like that. And we wouldn’t want to brand him as a sex offender.” And Johnny himself completely agrees. “Gee whiz! Rape is really bad, I would never rape anyone. She was just really, really drunk when we had sex and must have regretted it in the morning…”

There seemed to be a couple people up thread arguing that rape being a serious crime meant there was a higher burden of proof too. Apparently many judges still give direction to this effect.

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x.trapnel 07.10.11 at 4:08 am

X.trapnel, what type of person would risk the costs of a false accusation of rape for the potential benefits? Perhaps the same type that, after gaining asylum, would risk imprisonment and deportation by engaging in money-laundering, committing fraud for cheaper housing, and so forth.

The latter things don’t involve coming forward to the police and putting yourself at the center of an adversarial inquiry, one that is certain to involve hard scrutiny of your past. If you honestly can’t see that–if you honestly can’t see how letting acquaintances use your savings account to deposit cash in, or lying about dependents, is completely different in terms of self-exposure from making an accusation of rape against someone known to be powerful–then I have no idea what to say to you.

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Pyre 07.10.11 at 11:39 am

As to “vanishingly rare false accusations of rape”

“Other research shows false rape claims to be as high as 43%.”* “One study** shows that between 1989 and 2003, 328 men and women convicted of rape were exonerated; over half of those had already served 10 or more years of their sentence, despite their innocence.”*

* http://oklahoma-criminal-defense.com/blog/2010/04/falsely-accused-false-rape-allegations/
** http://www.falserape.net/exon_report.pdf

In Spring 2009, the peer-reviewed journal Forensic Examiner had an article, “False Rape Allegations: An Assault On Justice”:

http://www.theforensicexaminer.com/archive/spring09/15/

“As with all of human behavior, there are numerous reasons why a person would lie about being raped. […] For some, it was to meet the overwhelming need for attention often associated with Munchausen Syndrome or Borderline Personality Disorder. […] Others filed false reports in an attempt to essentially ‘extort’ money from the accused, who was typically wealthy.”

You may recall just one year ago a massage therapist made worldwide headlines accusing Al Gore of sexual assault (also at a hotel), though she avoided pressing criminal charges in hopes of pursuing a lawsuit. Didn’t this case stir echoes of that one?

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Andrew F. 07.10.11 at 11:51 am

We’re dealing with risk on a continuum x.trapnel. A rational person, having gained asylum under false pretenses, would not risk ANY additional scrutiny by the government. She wouldn’t defraud the government of services and benefits. Nor would she engage in money-laundering. All of those things involve, some directly, some indirectly, contact with the government, and all of those things raise enormously the probability that one will be investigated. So we’re already beyond the behavior of a rational person. The profile of someone who rationally assesses risk doesn’t fit her past behavior, as alleged.

It takes a high level of risk acceptance to be a criminal. People who think this sort of behavior pays off will do some very brazen things. A high percentage of them will act impulsively and with poorly thought-out planning.

Lying to gain cheaper housing, after having already falsified your asylum application, is the risk-equivalent of walking into a casino, sitting down at a game about which you know very little (including the odds), and betting your life in this country for the prospect of winning a few thousand dollars. Toss in the allegations of money-laundering, and you now have someone who visits this casino on a regular basis. And then one day there’s a new game; it looks a little riskier, but there’s a huge payout if you win. And she only has a pressured few moments to decide whether to play.

If she is in fact lying, this was obviously an impulsive decision on her part. There was little time to plan. She didn’t think through the idea that DSK might dig into her past in Ghana, even if the NYPD would not; she didn’t think her bank accounts would be any part of the case; she didn’t think her public housing would be a part of the case. If she is in fact lying, then she saw an opportunity, perhaps was angry, and lacking the caution most of us have against criminal deception of this sort, she went for it.

All that said, perhaps you’re right. She was really raped, and really was worried about all that, and thought twice before going to the police. And the narrative I’ve presented above may conflict with other evidence that we haven’t heard about. Unless there is such other evidence, though, then because of her previous criminal deceptions – undertaken at great risk – the deception narrative here fits fairly well.

jack, if your thesis is tautological in that one aspect of being privileged is having the jury be more sympathetic towards you, then yes, of course I agree. However, apart from this, I cannot think of any privilege on the part of the accused that would spark the jury’s sympathy.

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JP Stormcrow 07.10.11 at 2:05 pm

Pyre, your first link is to what is essentially an advertisement for a defense attorney in Oklahoma which provides the uncited 43% claim, and I’m pretty sure you did not read the Exon report as you repeat the Oklahoma marketing copy’s mistake of “328 men and women convicted of rape were exonerated”. If you instead look at Table 1 on page 6 (deeply buried, I know) you see that 120 of the exonerations were for rape and 105 of those were based on DNA evidence which suggests something different than what you imply. Perhaps reading the section immediately following entitled “Why Do So Many Exonerations Involve Rape?”

The Forensic Examiner article does look to be on more secure footing, but not inclined to discuss in the context of your overall comment.

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jack lecou 07.10.11 at 4:00 pm

However, apart from this, I cannot think of any privilege on the part of the accused that would spark the jury’s sympathy.

I’m probably not the best person to give a Privilege 101 lecture, but privilege is not about “sympathy”, in this case it’s about the cultural assumptions and prejudices that inform a jury’s “thinking.” Did you read the quote? Good example. Lower income conservative men are much more likely to discount the woman’s testimony and assume she’s lying. What are the odds a few of them are on a jury, “sympathizing” with the accused? And they’re just more likely than other jurors. The baseline cultural assumption for the rest of the jurors is also to regard a woman accusing a man of rape with extra skepticism.

Juries demand that women show levels corroboration and credibility above and beyond the usual level required for “beyond reasonable doubt,” and I think they also tend to give a lot more credence to in depth explorations of a woman accuser’s “character” and past than anyone would ever really be interested in in non-rape cases – or perhaps that’s just what defence attorneys do. In any case, that’s all a lingering vestige of the not-so-long-past days of open sexism when the law explicitly required women to produce extra corroborating evidence – and encoded the notion that “a woman’s word” was not as good as a man’s. Expunged from the law, for the most part – some judges still keep it alive to a degree – but not culture.

Just look at the case in the article Belle linked to. That’s a bit above and beyond, but effectively, the jury decided they ought to retroactively condone and pardon rape, as retroactive punishment for a woman they deemed to be up to unladylike activities in other matters.

That’s male privilege. It’s not about the man, it’s about the jurors, and the whole cultural backdrop of default judgments, prejudices, assumptions and narratives that underpin their thinking, feeling and decision-making. Particularly, I think, their judgments when it comes to a fuzzy, poorly defined notion such as “credibility”.

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jack lecou 07.10.11 at 4:13 pm

So we’re already beyond the behavior of a rational person.

Who among us is rational?

Seriously, you’re making a lot of assumptions about what a more or less reasonable person would or would not do in her situation. Baseless ones, as far as I can tell.

You’re using big scary terms like “money laundering” and “defraud the government of services and benefits” to make her actions sound all very serious and criminal – but I’m guessing the actual decisions and actions she took at any given point didn’t really look that risky or unreasonable. Most were probably recommended to her by peers who were already “getting away with it” without much fuss. So, x.trapnel is right. Bringing a rape charge against powerful, high-profile man is a whole different story.

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stubydoo 07.10.11 at 5:37 pm

All these attempts to rescue this woman’s credibility would be more satisfying if they had a proper theory of how she decides which lies to tell and which truths to tell. x.trapnel’s theory is a nice try except that it amounts to saying that she carefully considered the ramifications, given her situation, but got those ramifications monumentally wrong. If she’s smart enough to realize that a false rape accusation is a dangerous game for her to play, then she’s also smart enough to know that making up peripheral lies about the incident itself adds to the danger. The theory would fit the facts much better if her lies had stopped at the point where the rape investigation began.
You could posit that she had no clue about the consequences of her law-and-truth-bending track record, or you could say that she knew exactly what she was in for, but to claim that her understanding of the situation was such that it makes a false accusation of rape highly unlikely, but does not prevent other lies in front of the authorities – seems pretty arbitrary to me.

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stubydoo 07.10.11 at 5:57 pm

Admittedly I know very little about what goes inside the minds of people who tell a lot of lies, but I would love to be enlightened.

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JP Stormcrow 07.10.11 at 6:24 pm

Just a reminder that most what we “know” is being filtered through the authorities in New York or interested parties. And when they’re spinning like this who even knows what to think.“I am told she is the most convincing reporter that most people have ever interviewed,” Ms. Fairstein said. “I am told that experienced, senior people cried when she told her life story, in each of the agencies.” And the ability of the police/DA to control the narrative of course speaks to Belle’s original point.

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JP Stormcrow 07.10.11 at 7:09 pm

Admittedly I know very little about what goes inside the minds of people who tell a lot of lies, but I would love to be enlightened.

Check out the big ethics on stubydoo!

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Myles 07.10.11 at 7:35 pm

You could posit that she had no clue about the consequences of her law-and-truth-bending track record, or you could say that she knew exactly what she was in for, but to claim that her understanding of the situation was such that it makes a false accusation of rape highly unlikely, but does not prevent other lies in front of the authorities – seems pretty arbitrary to me.

If one’s preconceived conclusion is that the accuser must necessarily be likely to be right and the accused must necessarily be likely to be wrong, then it is entirely natural to argue from the conclusion, rather than from the facts on the ground, no matter how illogical the end-argument is.

I am waiting for further revelations and, of course, the further twists and epicycles to be added in the defence of the accuser’s relevance and credibility when they come out. I am amazed at the multiplicative ways in which one can try to say someone has credibility while claiming that the argument is not related to credibility. Jesuitical arguments, it seems, are not without their secular descendants.

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Andrew F. 07.10.11 at 8:17 pm

jack, I disbelieve Sasha’s story, or at least disbelieve that it includes all the relevant facts. It’s possible, I suppose. Even if it did occur, I don’t believe it’s representative.

The nature of some of these cases will come down to accuser said/accused said. Scrutiny of the accuser’s credibility will be central.

As to the crimes she’s alleged to have committed, they are serious felonies. I’m not trying to game the vocabulary to make them appear more so. Committing them when you’re in the country on the basis of a falsified asylum application is pretty risky. Falsely accusing a high-profile man of rape? Also pretty risky – although she may not have known much about DSK at the time, other than that he appeared to be wealthy.

I can see other narratives here. She’s a vulnerable woman pressured into allowing dealers to use her bank accounts for money-laundering, into falsifying forms for government assistance, etc. DSK pressured, then forced, her as well. But it’s very difficult to tell from this perspective.

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jack lecou 07.11.11 at 2:50 pm

Admittedly I know very little about what goes inside the minds of people who tell a lot of lies, but I would love to be enlightened.

That’s very…righteous of you.

I would suggest that you stop trying to figure out “what goes inside the minds of people who tell a lot of lies” or “what ‘type of person’ tells a lot of lies” or whatever, and instead try to think about “what kind of circumstances or events might make a normal person say or do such and such a thing.”

I think you might find that’s a more reliable way of dealing with the world. The added advantage is that, in this case, we’re actually interested in “circumstances or events,” not “type,” so that avenue of thinking is going to be a lot more fruitful than asking “what type of person.” You’re also not going to predetermine your conclusion by imagining that you are dealing with a particular “type of person” that behaves in an abnormally predictable way.

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jack lecou 07.11.11 at 3:42 pm

jack, I disbelieve Sasha’s story, or at least disbelieve that it includes all the relevant facts. It’s possible, I suppose. Even if it did occur, I don’t believe it’s representative.

It’s not the only story like that out there. And anecdotes aside, the low conviction rate – even of the handpicked cases that go to trial – suggests there’s something going on. I’m not sure why you find the whole thing so implausible. We live in a society full of subtle (and not-so-subtle) prejudice. It’s not exactly as if it’s hard to find examples of people doubting the credibility of rape victims…

The nature of some of these cases will come down to accuser said/accused said. Scrutiny of the accuser’s credibility will be central.

Once again, I do not believe that “credibility” or “character” or “honor” or anything of the sort offer a reliable guide to the truth. Certainly not nearly as reliable as they are a channel for predetermined biases.

As to the crimes she’s alleged to have committed, they are serious felonies. I’m not trying to game the vocabulary to make them appear more so. Committing them when you’re in the country on the basis of a falsified asylum application is pretty risky.

You’re missing the point though. The seriousness of the crime doesn’t matter. Do you think she consulted a lawyer or something? No.

So you say “defraud the government of services and benefits” as if it was premeditated and fully informed, but what really happened? Well, maybe somebody she knows, who’s helping her navigate her way through the system, says, “Hey, if you put that you have children down on that form you don’t have to pay quite so much. Don’t worry, it’s no big deal, they never check, and you can borrow one of mine if they do.” The phrase “defraud the government of services and benefits” never crosses her mind.

Which isn’t to say it isn’t fraud – or that ignorance is an excuse, or that she didn’t know that she might be breaking the rules a little bit – I’m just saying that if you want to understand what’s going on with someone, it helps to try to put yourself in someone’s shoes. I don’t see that any of these things she’s accused of doing necessarily looked like a big federal case in the moment. They just don’t serve as very good evidence that she’s a serial liar or an up and coming grifter or something.

I’ll also point out that one of the things she’s accused of having done is fib about her income in order to pay less for housing. I wonder how many New Yorkers might be willing to fib about their income to pay lower rent? Suppose one of them was accused of rape. Do you think it should be brought up at trial? Is that something that factors into the “credibility” of the accused’s denial of the rape? What if they lied on their income taxes too. And about a speeding ticket. And after a detailed investigation, you discover several false statements on their resume. Does any of this make the rape charge more credible? How so?

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jack lecou 07.11.11 at 3:54 pm

I am waiting for further revelations and, of course, the further twists and epicycles to be added in the defence of the accuser’s relevance and credibility when they come out. I am amazed at the multiplicative ways in which one can try to say someone has credibility while claiming that the argument is not related to credibility. Jesuitical arguments, it seems, are not without their secular descendants.

There’s an old math joke about a horse drowning in a river that’s only an average of 2 feet deep. Seems like it applies somehow.

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Sebastian H 07.11.11 at 4:12 pm

“Sebastian @134: Your opening point compares hypothetical homocide – a “dead body caused by the accused’s actions” – with hypothetical “circumstances which have evidence of activity that are super-common (sexual activity between two people)” as opposed to a hypothetical rape. So reasonable doubt in rape cases apparently even makes its way into hypothetical comparisons.”

I don’t think so. It is enormously difficult to investigate every person in an entire city, country or the whole world when a dead body shows up. I don’t agree that “caused by the accused’s actions” is limiting the case in any way that adds to your case. Especially as I was responding to the suggestion that a higher murder conviction rate than rape conviction rate shows that women are subjected to a higher inquiry of their credibility in rape cases than in murder cases.

The problem is that a rape case is more likely to turn on credibility than a murder case. In a murder case, a witness to a fight which the prosecution contends led to a stabbing murder is likely to have her credibility attacked. However it is likely to be buttressed by things like the murder weapon, blood, the existence of a body. The amount of “reasonable doubt” that *turns* on the witness credibility is less than that in rape cases where often the entire question of whether or not there was a crime turns on the credibility of the witness.

I’m not arguing against the idea that the lower conviction rate suggests that rape cases are harder to prove than many murder cases (at least the solved ones, the unsolved ones don’t get to trial). I’m arguing against your suggestion that the major reason for the fact that they are harder to prove is that we subject women to a much high burden of credibility in rape cases than in other cases. The problem is that in many more rape cases than in murder cases, the entire case hinges on the credibility of a single witness. Furthermore, in murder cases there is independent evidence that a crime took place–the body with a knife through the heart or shot through the head demonstrates the existence of a crime, making it easier for the jury to go straight to “who did it”. Very often in rape cases the jury has to wrestle with “was there a crime at all” much more deeply than they have to with a huge majority of other cases.

Again, I fully agree that rape cases are difficult to prove, but it is because they are inherently difficult to prove beyond a reasonable doubt. And this goes to the point of the post: one of the reasons why rape victims alter their stories is because they know that if their stories don’t fit one of the classic patterns, it is going to come down to he said/she said and the guy (who actually raped them) is going to get away.

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Lilypod 07.11.11 at 6:45 pm

I’m also very skeptical of the idea that juries believe the “default state” of women is consenting. I don’t believe that to be true.

I disbelieve Sasha’s story, or at least disbelieve that it includes all the relevant facts. It’s possible, I suppose. Even if it did occur, I don’t believe it’s representative.

It’s not a case of jurors overtly thinking “I believe the default state of women is consent” as much as them operating under the influence of the idea as it manifests itself in the culture. They take their cues from what society sanctions (in both senses). Just as jurors acquitting white officers of assault, when faced with videotaped evidence of them beating an unarmed black suspect, may not be overtly thinking, “I believe black suspects deserve police brutality” or “I believe white privilege should remain intact”. Rather they will be rationalising for a reasonable doubt that the officers weren’t instead acting in good faith – fuelled by fear and believing that the suspect had a gun.

I think human nature means that most of us are not particularly excited about examining our own brands of privilege when we could be better employed resenting someone else’s. If you can foresee yourself in some way as more likely to be the accused in a rape case or do some identifying (“This could be me! / This could be my son/brother/husband!”), then you will probably more likely believe that the burden of proof should be higher in a rape trial, that low convictions do not hinge on prejudice but are merely the result of objective reasoning, and that alleged rape victims are the ones who enjoy unfettered privilege – wielding the power to destroy a life by a mere word. I can believe what Sasha said because it fits the very consistent, predictable pattern of what I have been noticing for the past twenty years, from when I first started paying attention. I don’t have the luxury of dismissing it as unrepresentative and could spend a spare lifetime detailing how representative it is of the punishing attitudes rape victims encounter.

Years ago, the case of a man who had raped his girlfriend and received a suspended sentence made headlines in my country because the victim was so devastated that she went public. As the debate raged, a defence lawyer went on the airwaves and dismissed the victim as a woman with “her knickers in flitters”. A caller argued that the victim had “got what she deserved”. A second, more cuddly caller clarified that the victim had “got what she asked for”. A journalist, reacting to criticism of the judge, published the latter’s sentencing remarks as an example of his fair-minded and reasoned approach. These cited the rapist’s guilty plea as a mitigating factor and included the comment that the plea had “exonerated the victim from any responsibility in the crime”. Justice, if not blind, at least suffering from double vision.

Afterwards, I met someone from the perpetrator’s and victim’s area who knew both in passing. She brought up the case and asked me, “Do you think he did it? You can’t know, but I feel he probably did do something to her.” Here is a tiny clue. He. Pleaded. Guilty. In a separate case, where the defendant had again pleaded guilty to the rape of a woman who ended up ostracised by half her community, a priest preached from the pulpit that there were always two sides to every story. If people are reluctant to believe the victim and punish the rapist, even when the rapist has admitted the crime, then low conviction rates have little to do with rape just being inherently difficult to prove beyond a reasonable doubt, although it certainly does mean that the burden of proof for rape is higher than that for other crimes if a guilty plea is not actually accepted as evidence. So, yes, people certainly wrestle with “was there a crime at all”, even when the accused is telling them that there was. It’s people judging not on the absence of consent but on whether non-consent should have any weight in the circumstances. If rape is the means by which the victim is punished for her behaviour, why on earth would you send the wrong message by punishing the rapist?

I don’t agree that “caused by the accused’s actions” is limiting the case in any way that adds to your case.

For murder, you ascribed actions; for rape, you described circumstances. So even when constructing a hypothetical comparison, you avoided the idea of a rapist in action. It’s a small point, but I found it telling in the context of the credibility issue, the hypothetical rape victim indeed appearing to be subject to a higher burden of it.

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Sebastian 07.12.11 at 1:28 am

“For murder, you ascribed actions; for rape, you described circumstances. So even when constructing a hypothetical comparison, you avoided the idea of a rapist in action. It’s a small point, but I found it telling in the context of the credibility issue, the hypothetical rape victim indeed appearing to be subject to a higher burden of it.”

What do you mean by this? For murder I described a dead body and said that it gave easier to buy independent corroboration of the existence of a crime. I had to describe circumstances for a rape *because most rapes are like that*. That isn’t the problem of the hypothetical, that is how the real world is. You can find it “telling” all you want, but I have to use the real world as it exists.

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Andrew F. 07.12.11 at 12:18 pm

jack @168: The alleged victim was recorded discussing DSK’s wealth with a boyfriend currently in jail for drug trafficking and, if I remember correctly, likely to be deported. So the notion that she’s simply naive as to the consequences of criminal acts doesn’t hold up.

As to your other questions, most people do not falsify financial statements to receive cheaper housing or allow their bank accounts to be used for money laundering. Like I said, I think there are narratives here which are consistent with her actually having been raped, but I don’t think “she committed her crimes because everyone was doing it, and didn’t think it was a big deal” is a strong alternative.

Lilypod @171: I don’t think jurors are particularly concerned about examining their own privilege or resenting someone else’s privilege. Will jurors draw upon their own lives to understand the evidence presented? Sure. For example, X says that she was talking down a dark street after work, trying to get home, when she was pulled into a park and raped. Y claims that though intercourse occurred, it was consensual, even though X and Y were strangers to each other. Y is also homeless, and at the time of the attack was apparently filthy. Jurors will draw upon their own experience in judging the plausibility of Y’s account. But that has nothing to do with examining privilege.

I’m not familiar with the case you related in your comment, but if there was genuine controversy as to what happened in that case, then I understand why a guilty plea is not taken by many to be conclusive. Every plea deal involves a guilty plea. Accepting a plea deal is, unfortunately, not necessarily an indication of actual guilt.

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Dragon-King Wangchuck 07.12.11 at 3:03 pm

Wow this is a long thread. Well it’s a day late, so maybe no one will read this and be able to tell right away that I didn’t read all of the comments before piping up.

From teh quote:

Some rapes do indeed happen like that; most don’t. And the more a rape departs from this script, the harder it is for the victim to be believed and taken seriously

And so, the DSK case – where it’s vitally important that teh maid phoned her boyfriend with dollar signs in her eyes – where she’s probably a hooker that got ripped off – where, I dunno what else but it sure sounds like exactly what Sasha said. If only teh maid had spent that time crying in teh shower instead of talking on teh phone,,,

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Lilypod 07.12.11 at 5:02 pm

Sebastian@172: What do you mean by this? For murder I described a dead body and said that it gave easier to buy independent corroboration of the existence of a crime. I had to describe circumstances for a rape because most rapes are like that. That isn’t the problem of the hypothetical, that is how the real world is. You can find it “telling” all you want, but I have to use the real world as it exists.

For murder, you described a dead body “caused by the accused’s actions”. A dead body in itself is not evidence of murder. It’s evidence of something also super-common: death. You made it clear in your hypothetical that the accused bore responsibility. In what you chose to compare it with (as opposed to “had to describe”), there is no accused and no assignation of blame: it’s “when you do something that causes evidence of sexual contact” as opposed to “when you rape a person”. So even in an imagined situation, there’s a refusal to allow for the existence of a crime. Which does reflect the real world as it currently exists.

Andrew F.@173: Jurors will draw upon their own experience in judging the plausibility of Y’s account.

If they don’t have any experience of rape, what they are most relying on is what is culturally accepted as being plausible. Until very recently, it was considered impossible (not just implausible) for a man to rape his wife. Male privilege, as it operates in relation to rape trials, will blame or discount the alleged victim and remove responsibility from the accused. It is highly suspicious of the alleged victim’s account and often does not even wait for it, instead being extremely good at immediately supplying multiple alternative narratives, even without familiarity or all the relevant facts.

I’m not familiar with the case you related in your comment, but if there was genuine controversy as to what happened in that case, then I understand why a guilty plea is not taken by many to be conclusive. Every plea deal involves a guilty plea. Accepting a plea deal is, unfortunately, not necessarily an indication of actual guilt.

The controversy was not as to what happened. The controversy was over sentencing policy. A plea bargain system does not exist in Ireland. However! I’m sure there’s reasonable doubt (held by someone somewhere) as to whether he knew ‘guilty’ didn’t mean ‘not guilty’.

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jack lecou 07.12.11 at 7:04 pm

The alleged victim was recorded discussing DSK’s wealth with a boyfriend currently in jail for drug trafficking and, if I remember correctly, likely to be deported. So the notion that she’s simply naive as to the consequences of criminal acts doesn’t hold up.

You seem to be doing it again. Now you’re jumbling together drug trafficking with lying on a housing form. Because it’s totally obvious to most people that those are basically the same level of criminality, right?

My claim isn’t that she wasn’t – in a general way – aware that serious criminal acts have serious consequences. It’s that the particular criminal acts in question – things like fudging a number on a housing form, or even letting some friends use her bank account – are the kinds of things that don’t necessarily seem like that big a deal unless you’re intimately familiar with the criminal code. She isn’t, AFAICT, accused of “obvious stuff” like dealing drugs, assaulting anyone or robbing liquor stores. Just things like filling out some forms wrong or giving someone her bank account password. And calling it “money laundering” doesn’t change the fact that the act itself may have been nothing more than lending someone her bank account password.

(All these are ‘criminal acts’ BTW, that AFAIK there has been as yet no conviction for, or even charges filed. Reasonable doubt applies to her too.)

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Andrew F. 07.13.11 at 10:19 am

Lilypod @175: If they don’t have any experience of rape, what they are most relying on is what is culturally accepted as being plausible. Until very recently, it was considered impossible (not just implausible) for a man to rape his wife. Male privilege, as it operates in relation to rape trials, will blame or discount the alleged victim and remove responsibility from the accused.

The spousal exemption was an artifact of the law, which was changed in fact because it was out of step with the decisions of juries and the views of the population generally. Moreover, the spousal exemption is an example of “legal impossibility,” which is something very different from “cultural plausibility.”

Nor do I see how “male privilege” (which, in relation to sex, is what exactly?) operates to discount the claims of an alleged victim.

Remember that we begin each trial with the presumption that the defendant is innocent. We begin by assuming that the defendant has done nothing. The victim’s testimony, if that is the only evidence, must rebut this presumption NOT by showing it’s “more likely than not” true that the defendant is guilty, NOT by showing even that the defendant is merely “probably” guilty, but by showing the defendant guilty beyond any reasonable doubt.

That’s a high burden. A victim’s testimony, if that is key testimony, is subject to scrutiny and skepticism because that is what the criminal justice system demands.

As to the Irish case, I’m not familiar with Irish law. A quick Google gives me the impression that plea bargaining is conducted, effectively, by the prosecutor agreeing to drop some charges and the defendant agreeing to plead guilty to other charges; though sentencing is entirely in the hands of the judge. In the US the average sentence for rape is around 12 years in prison. A suspended sentence would be highly unusual.

jack @176: My claim isn’t that she wasn’t – in a general way – aware that serious criminal acts have serious consequences. It’s that the particular criminal acts in question – things like fudging a number on a housing form, or even letting some friends use her bank account – are the kinds of things that don’t necessarily seem like that big a deal unless you’re intimately familiar with the criminal code.

Someone who didn’t sense that letting drug dealers deposit money into her bank account might be criminal, and a major problem? Are you intimately familiar with the criminal code? Do you think alarm bells might go off in your head if some friends involved in selling drugs asked if they could use your bank account to store the revenue of their activity?

Someone who didn’t understand that lying as to her financial situation, in order to gain substantial benefits, is wrong? And that it’s seriously wrong because of the value of the benefits she’s obtaining as a result of the lying?

It’s a real stretch. I think a better case would be that she was pressured into doing these things, or, frankly, that yes, she did do these things, and yes, she knew they were serious crimes, but that doesn’t change the fact that she was raped.

(All these are ‘criminal acts’ BTW, that AFAIK there has been as yet no conviction for, or even charges filed. Reasonable doubt applies to her too.)

The presumption of innocence applies to her as a defendant. As a witness, though, the jury doesn’t have to believe she did any of that beyond a reasonable doubt. The jury can think “well, it sure sounds like she did, and she probably knew that these crimes were serious… I don’t know for sure, but I feel that I should take this into account in deciding whether she’s lying about this.”

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Lilypod 07.13.11 at 3:06 pm

The spousal exemption was an artifact of the law, which was changed in fact because it was out of step with the decisions of juries and the views of the population generally. Moreover, the spousal exemption is an example of “legal impossibility,” which is something very different from “cultural plausibility.”

If you care to, explain how juries were able to make decisions in cases which were not being prosecuted. Or how a ‘legal impossibility’ can be created outside of a culture.

Nor do I see how “male privilege” (which, in relation to sex, is what exactly?) operates to discount the claims of an alleged victim.

I was writing about how male privilege operates in relation to rape, not sex, but easy mistake to make if you believe there’s no difference, and easy substitution to make if you’re just looking for a reaction.

As to the Irish case, I’m not familiar with Irish law. A quick Google gives me the impression that plea bargaining is conducted, effectively, by the prosecutor agreeing to drop some charges and the defendant agreeing to plead guilty to other charges; though sentencing is entirely in the hands of the judge.

Yes, an article which turns up via a quick Google search fully endorses the idea that it’s effectively conducted here in the manner above by noting how “some commentators not in practice suspect that some form of unregulated plea bargaining has at some stage occurred in this jurisdiction”. (Somehow.)

More bridges to cross? I don’t think so.

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Sebastian H 07.13.11 at 3:46 pm

“You made it clear in your hypothetical that the accused bore responsibility. “

I wrote:

“I have no idea what your percentages mean (65% of what), but in so far as your point says something about murder convictions vs. rape convictions, the problem is that murder convictions turn on a crime where the end product is pretty rare (a dead body caused by the accused’s actions) while a rape conviction turns on circumstances which have evidence of activity that are super-common (sexual activity between two people). When you do something that causes evidence of a dead body, you will almost always get a pretty close look over by the police. When you do something which causes evidence of sexual contact, you normally won’t. So the evidence in a murder case often tends to turn on something other than straight-up credibility and/or differing plausible explanations for what happened. “

You are deeply misunderstanding why I hypothesized the existence of a dead body caused by the accused’s actions. If the body became dead without the accused’s involvement at all, the accused can’t be guilty. Murder is the unlawful killing of a person. So if you are unconnected to the killing you can’t be guilty of murder.

The analogy with rape, is sex. Rape is sex, obtained without consent. If there is no sexual activity, there can’t have been a rape.

In a murder, very often the very existence of the dead body shows that there was *a* murder. A body with stab marks, usually means *a* murder. A body which has been strangled, implies *a* murder. A body which has been poured in concrete implies *a* murder. So a jury, in most cases (though not all), doesn’t have to get over the conceptual hurdle of whether or not *a* crime has happened. They merely have to decide whether or not the accused before them committed the crime which has almost certainly occurred. And when it isn’t obvious that the dead body implies a murder, a murder conviction is much harder to get.

In a rape case, a large part of the time, the physical evidence is very consistent with sex-with-consent. So a jury has to decide whether or not a crime ocurred at all, and in many cases they additionally have to decide whether or not the accused committed the crime if there was one.

And please note what I’m arguing about: you are suggesting that the very fact that murder convictions occur at a higher rate than rape convictions suggests that we as a society don’t believe rape victims as much as we believe witnesses in murder trials. I’m suggesting that the statistics you are offering show no such thing.

I’m NOT suggesting that rape goes unpunished at the same rate as murders or something. In fact I strongly suspect that more rapists get away with it, even at the trial stage, than murderers. But that is because rape cases are more likely to turn purely on credibility than murder cases, and pure credibility cases are more subject to “beyond reasonable doubt” than cases supported by a dead body with signs of being unlawfully killed.

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