Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Believe the victim?

That was the essence of an opinion piece by the Plain Dealer's Regina Brett a month ago.  The column was prompted by the arrest of former International Monetary Fund head Dominique Strauss-Kahn for raping a maid in a New York hotel, but went deeper than that:  that week, the trial of Anthony Sowell began.  Sowell stood accused of killing eleven Cleveland women, and raping several others.  He was allowed to carry on his carnage for additional two years because the last victim who survived his predations wasn't believed by the Cleveland Police Department.  Subsequent investigation found that this wasn't extraordinary; the detectives charged with investigating sex crimes weren't given proper training, and were often openly skeptical, if not outright hostile, toward victim's claims.

That women claiming to have been rape victims should be accorded dignity and respect instead of hostility is certainly inarguable, but Brett went farther:  "When a man is charged with a sexual assault, we grant him the presumption of innocence. When a woman says she has been the victim of a sexual assault, let's grant her the presumption of belief."  That the two presumptions can't coexist isn't the only problem with Brett's piece; the collapse of the case against Strauss-Kahn in the past few days raises anew the question:  just how many false rape claims are made?

Perhaps the most commonly cited statistic on that is that only 2% of rape claims prove false, repeatedly endlessly in the legal and sociological literature.  It turns out to be bogus; this law review article dug into it and found that every claim in the literature is derived, directly or indirectly, from Susan Brownmiller's 1976 book Against Our Will, and Brownmiller's sole source, in turn, was a 1974 speech given by a judge, relating the findings of a New York City rape squad.  At the other end of the spectrum is a paper by Eugene J. Kanin, which studied the results of an unidentified Midwestern town over a ten-year period and found that 41% of all rape claims were unfounded. 

On the surface, the result is compelling, especially since a claim wasn't classified as unfounded unless the victim recanted after being told that she could be prosecuted for doing so.  But Kanin's study has been criticized, too.  First, he never reveals the name of the town, and relies solely on the police officer's reports, thus not allowing any confirmation or retesting of his results -- what's called peer review -- a major problem in scientific circles.  Secondly, the police department at issue made it a practice to require all those claiming to have been sexually assaulted to take a polygraph test.  This would certainly indicate a bias on the police department against women who made such claims (the use of the polygraph in such a fashion runs strongly contrary to current police practice), and demonstrates a confrontational attitude that might easily dissuade women from pursuing any legal action.

So what's the "real" number?  There are a number of other studies which find it somewhere between 2-8%, but getting to the bottom of it all is a problem, for several reasons.  First, there's a definitional question.  Some studies refer to "unfounded" claims, others to "false" claims.  The two are not synonymous; a claim can be determined to be unfounded simply because of a lack of evidence necessary for conviction.  (Obviously, an acquittal at trial does not equate to a finding that the charges were false, only that the State did not prove them beyond a reasonable doubt.  Casey Anthony could probably explain this distinction quite well.)  That definitional problem also pertains to the crime itself, with some commentators distinguishing between "non-stranger" and "stranger" rape, arguing that while women would have little reason to make a false claim about the former, that isn't true of the latter.

Which, of course, leads to the primary problem:  the politicization of rape.  That began with feminist objection to rape laws in the 1960's, which often required corroboration and proof of resistance.  The 70's saw the elimination of those requirements and the introduction of rape shield laws.  More recent feminist literature has argued for "affirmative consent" -- essentially, elimination of implied consent in place of requiring a showing that the woman expressly consented to sexual activity.  Basically, this substitutes "only yes means yes" for "no means no."  While that hasn't gotten any traction in the criminal law here, it's found a better reception in other countries, such as Canada, and on college campuses.

As might be anticipated, that's engendered a backlash, with blogs like False Rape Society chronicling numerous cases of false rape accusations.  Their definition of "false" is rather elastic, too, running the gamut from cases where the victim acknowledges that she made up the charge to cases where the evidence is deemed doubtful, even if the defendant is convicted.

But if you look at both ends of the spectrum, they're really fighting over the battleground of what we term "date rape."  Feminists have done an excellent job educating the public about stranger rape; it is now widely accepted that rape is an act of violence, not sex, and victim assistance units, better training of police sex offense units, and changes in the law have gone a long way to making true sexual predators the monsters they are; only intentional homicide is punished more severely.

Acquaintance rape, though, still confuses us.  To be candid, if "no" really meant "no," every man would recite his marriage vows as a virgin.  The vagaries of the mating dance are bad enough, but in many situations there's been an infusion of alcohol or drugs to further complicate the matter, and "he said/she said" is really "he perceived/she perceived," which may or may not bear any great resemblance to what actually happened.

In the 80's and 90's, the mantra was that children didn't lie about sexual abuse.  Well, it turns out they did, or they were mistaken, or they were led to believe that something happened which didn't.  The result was that a number of people were convicted of horrible crimes they didn't commit and went to prison for things they didn't do.

So yes, a woman claiming rape does deserve to be treated non-confrontationally, and with dignity and respect.  But as the Strauss-Kahn incident teaches us, even for what seems to be the most dastardly crime, some hesitation in the rush to judgment is warranted.


Recent Entries

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means