Prosecuting rape allegations

This story has been causing quite a blog buzz: a 19-year-old Oregon woman has been convicted of filing a false police report after accusing her former boyfriend and two other young men of rape.

The standard take on the story is summarized in the headline at Seeing the Forest: Rape Victim Found Guilty. (This post also has a list of other blogs reporting on the story.) The standard reaction is outrage:

The Heretik: "We ignore women when they are raped, then we rape them again with 'the law' when the law lets them down."

Bitch Ph. D.: "Gross."

Shakespeare's Sister: "I’ve spent the entire day burning up from the inside out about the Oregon case in which a rape victim was found guilty of filing false charges after prosecutors decided not to purse a case against her attackers. I feel like the sun itself has settled in my gut and any moment I’ll just explode into a puff of smoke and ash."

Seeing the Forest: "This one is beyond belief. A judge decides that since he doesn't know who to believe he'll convict the woman for filing the charges in the first place."

This last summary, by the way, is really "beyond belief," because it makes it sound like the judge was hearing the woman's rape complaint, concluded that she wasn't telling the truth, and then turned around and sent her to jail. Of course, it doesn't work that way. The District Attorney's Office prosecuted the case after dismissing the charges against the men.

Here's what The Oregonian says:

The Washington County District Attorney's Office declined to prosecute the case against the men. Robert Hermann, the county's district attorney, said prosecutors reviewed all the information and statements but didn't think they could prove a rape allegation.

Ted Naemura, the assistant city attorney who prosecuted the case, said the woman's false accusations were serious enough to lead to charges. The young men faced prison sentences of at least 7 years and a lifetime labeled as sex offenders. In addition, police spent considerable resources investigating the accusations.

Beaverton has no policy about prosecuting such cases, but reviews each one on its merits, Naemura said. The city prosecuted a similar case a year ago in which a judge ordered the woman to pay $1,100 in restitution for the city's investigation costs, said Officer Paul Wandell, a Beaverton Police Department spokesman.

The bottom line, Naemura said, is that people can't use the criminal justice system to further their own ends.

Now, if a woman who has brought a rape complaint was convicted of making a false charge simply because her allegations couldn't be proven, that is bizarre and outrageous. However, given how uncommon it is for false reporting charges to be pressed against rape complainants, it's very likely that the prosecutors had some grounds to believe the charges were actually false, not just hard to prove. The judge evidently agreed.

We know very little about the facts of the case or the trial. From The Oregonian, we know that the woman, who was 17 at the time of the incident, said she was sexually assaulted in her 18-year-old boyfriend's home by the boyfriend and his two friends while getting dressed for a party. The three young men said that the sexual acts were consensual and initiated by the young woman.

After a day-and-a-half trial, Municipal Judge Peter A. Ackerman on Friday convicted the woman of filing a false police report, a class-C misdemeanor. Ackerman explained his decision, saying there were many inconsistencies in the stories of the four, but that he found the young men to be more credible. He also said he relied on the testimony of a Beaverton police detective and the woman's friends who said she did not act traumatized in the days following the incident.

On the basis of this account, a lot of bloggers have concluded that the judge simply chose to believe the men over the woman, and that he was influenced by a lot of stereotypes about rape victims. Maybe. Again, we don't really have enough information to decide. Bloggers are also relying on the account of Kevin Hayden at American Street, who was present at the trial, but Kevin himself notes at the end of his post:

(My report cannot be truly objective as I’ve known the victim since she was a baby. I was sufficiently upset at the proceedings that, in the hallway outside the courtroom, I told the prosecutor and lead detective that they were “miserable pricks” and “a disgrace to their profession.”)

Let's put the shoe on the other foot here. Suppose a man in a he said/she said case had been convicted of rape, and the judge explained that despite many inconsistencies in the stories he simply found the woman to be more credible and besides, a detective confirmed that right after the incident she acted like a typical rape victim. Suppose a strongly critical, pro-defendant account of the trial came from someone who freely admitted that he was not objective due to being a close friend of the defendant's.

Would anyone be furious about this?

By the way, the bloggers who are writing about this (with one exception) seem to take it absolutely for granted that the young woman in this case is indeed a rape victim, and that the young men are guilty. Why the presumption of guilt? Because "women don't lie about rape"? Well, sometimes they do, and the trouble is that no one really know how often. The Oregonian article refers to a Portland Police Bureau study which "found that 1.6 percent of sexual assault cases were falsely reported, compared with 2.6 percent of auto theft reports"; the source it cites is Heather Huhtanen, Sexual Assault Training Institute director for the Attorney General's Sexual Assault Task Force. I tried to trace this figure and found two citations, one to the Nebraska Domestic Violence & Sexual Assault Coalition newsletter, the other to a law review article (the study was apparently done in 1990). I don't know how the study was done. FBI statistics show that nationally, 8 to 15% of rape charges annually are classified as "unfounded," though not all these charges are necessarily false. Some studies, including one by the pioneering date rape researcher Eugene Kanin, have shown an even higher rate of false rape allegations; for more discussion, see here and here.

Yes, if the young woman in this case was indeed sexually assaulted, what happened to her was terrible. But I think, for instance, that what happened to this man was also terrible:

The New York Times

March 1, 1997

Rape Charge in Internet Case Dismissed at Prosecutor's Request

By JOHN SULLIVAN

Charges against a businessman accused of raping a woman he met over the Internet were dismissed yesterday at the request of the Manhattan District Attorney's office.

Paul K., the defendant, was allowed to go free after a brief hearing in Criminal Court in lower Manhattan. Mr. K. had been free on bail before the hearing.

Prosecutors said they requested the dismissal after investigating the claims of the accuser and reviewing evidence in police custody, including extensive records of computer communications.

Martha Bashford, the assistant district attorney handling the case, said the matter was complicated by "lack of candor" on the part of the accuser, whose name was not released. Ms. Bashford said that after Mr. K.'s arrest on Sunday, prosecutors were able to review computer communications between the suspect and the accuser and a message the woman left on Mr. K.'s answering machine.

Prosecutors said that there is currently no plan to bring criminal charges against Mr. K.'s accuser.

After the hearing before Judge Paul G. Feinman, Mr. K. simply said: "I'm relieved it is finally over."

However, his lawyer, Paul Goldberg, had harsh words for the police officers who investigated the case. Mr. Goldberg said officers had evidence from the outset "that Mr. K. was not guilty of any crime."

"She left a message on his answering machine about how much she enjoyed his company," Mr. Goldberg said.

Mr. K., the owner of a company that installs expensive home theaters, was charged with rape on Sunday after his accuser collapsed in Pennsylvania Station in Manhattan and told police officers that she had been attacked the night before.

The woman, who is a graduate assistant from Syracuse, met Mr. K. over the Internet and traveled to Manhattan to meet him. She said that, after having dinner at Mr. K.'s West Village apartment, she was imprisoned and sexually assaulted.

By the way, while I am not naming the victim in this case (the victim, mostly likely, being Paul K.), but the Times did. Not only that, but when he was arrested, the Times also published a photo of him being led away in handcuffs.

And what happened to this man, who was apparently false accused of rape by two women, neither of whom was punished, was pretty terrible too.

And there are other cases in which men have spent time behind bars on charges that later proved to be false (not cases of mistaken identity, but actual false charges).

There is a notion that it's almost unthinkable that a woman would make a false accusation of rape because bringing a rape complaint to the justice system is not anyone's idea of fun. But first of all, it's not exactly unheard of for people to do irrational things, often for stupid and petty reasons. We don't find it implausible that someone would commit murder to avenge a trivial wrong or avoid the exposure of an embarrassing personal secret; and yet somehow, we draw the line at a false accusation of rape? And furthermore: has anyone considered the possibility that things that may be excruciating to a real rape victim (e.g., having to face her attacker, to repeatedly and publicly recount the facts of her rape) may not be all that traumatic to a fake victim?

Feminism has accomplished a great deal in challenging once-dominant rape myths (it was only 30 years ago that juries in rape caes, in many jurisdictions, were explicitly instructed that evidence of the accuser's "unchaste character" could be used to impeach her credibility). But it won't do to replace them with the "women don't lie" myth. This idea, for one, runs counter to a basic principle of American justice: the presumption of innocence and the obligation to acquit if there is any reasonable doubt of guilt. Back in 1977, when feminist-initiated rape law reforms were in their early stages, Columbia University law professor Vivian Berger -- generally a supporter of these reforms -- cautioned against "sacrificing legitimate rights of the accused person on the altar of Women's Liberation." And that's something to keep in mind.

In this case, of course, the young woman was the accused, not the accuser (at least in the case that has just ended). The presumption of innocence should have been on her side, and she should have gotten the benefit of the doubt. I don't know whether that happened at trial or not. There will be an appeal, and we'll see what happens. But in the meantime, I think we ought to tone down the rhetoric and try to find out more about the facts.

I don't buy the overheated rhetoric of some men's rights activists that these days, all it takes to send a man away to the penitentiary is a woman's accusation. (Only 45% of rape arrests result in conviction -- though, conversely, people who see this relatively low figure as evidence of sexism against women should pause to ponder that conviction rates for robbery are similar, and conviction rates for aggravated assault are far lower.) But sometimes the pendulum has swung too far. When researching my book, Ceasefire, I came across a number of cases in which men were convicted of rape or sexual assault on the testimony of an accuser with serious credibility problems, and on evidence that seemed to leave plenty of room for reasonable doubt (and in some instances, because relevant evidence was suppressed under a very broad application of rape shield laws). And yes, there are other cases in which women who were clearly victims failed to obtain justice because of sexist prejudice. It's a big country and a complicated legal system; opposite trends can coexist.

The problem is that when there's injustice toward a female victim, there often follows (rightly) an outcry. (Like when a brain-dead jury acquitted a guy who had broken into a woman's home and raped her at knifepoint because she talked him into wearing a condom, and they somehow concluded that this signified consent.) When there's an injustice toward an accused male, the only outcry is from men's rights activists who are widely seen as a bunch of kooks.

The bottom line: we should be able to care about female victims of rape, and male victims of false accusations. To quote my own article on the subject:

To recognize that some women wrongly accuse men of rape is no more anti-female than it is anti-male to recognize that some men rape women. Is it so unreasonable to think that a uniquely damaging and stigmatizing charge will be used by some people as a weapon, just as others will use their muscle as a weapon? Do we really believe that when women have power -- and surely there is power in an accusation of rape -- they are less likely to abuse it than men?

Two more of my articles on related topics:

Kobe's rights: Rape, justice and double standards (Reason)

How much should we know about the sex life of Kobe Bryant's accuser? (Salon.com)

Side note: The Oregonian article on the case also contains the assertion from the above-cited Heather Huhtanen (Sexual Assault Training Institute director for the Attorney General's Sexual Assault Task Force) as saying that "about 10 percent of Oregon victims of sex crimes file reports with police."

Yet according to the Bureau of Justice Statistics, nationwide in 2003, nearly 40% of female victims of sexual assault in the National Crime Victimization Survey had reported the crime to the police. This is lower than for all violent crimes (the overall violent crime reporting rate was 49.9% for women and 45.7% for men), but a far cry from 10%.