The Duke scandal and the politics of rape charges

I'm currently on a trip to Israel and will try not to fall too far behind on blogging. To keep the blog fires burning, here's my latest Boston Globe column, on the scandal at Duke over the charges of rape against several lacrosse team members.

The noroious case of alleged rape at Duke University has an explosive mix of elements: gender, race, class, and charges of sexual violence. Three members of the school's lacrosse team, privileged young white men, are accused of sexually assaulting a stripper who is African-American.

The facts of the case remain murky. According to media reports, medical evidence seems to support the woman's claim of sexual assault, but no DNA match to any team members has been found, and two of the accused may have an alibi. The police report suggests that the woman was initially picked up when heavily intoxicated. The other exotic dancer who was on the scene initially disputed the alleged victim's claims but then changed her story somewhat, and apparently made inquiries about profiting from her role in the case.

In the current trial by media, charges of a rush to judgment abound. Women's advocates and many others claim that the alleged victim is being smeared as a slut by a sexist culture which holds that an ''unchaste" woman who is raped must have been ''asking for it." (Radio talk show host Rush Limbaugh charmingly referred to charges that lacrosse team members had ''raped some hos.")

Meanwhile, some say that the quick assumption that the players are guilty reflects antimale prejudice. Writes columnist Kathleen Parker, ''Reaction to Duke's sad chapter is but the inevitable full flowering of the antimale seeds planted a generation ago. Thus, we need little prompting to assume that where there's a guy, there's a potential rapist."

Feminism has achieved real and important progress in the treatment of sexual assault victims. A couple of generations ago, a stripper at a party with athletes would have been viewed by many as fair game. That this is no longer the case surely makes us a more decent society.

But even some people who applaud this change believe that in some cases, the pendulum has swung too far. Many feminists seem to think that in sexual assault cases the presumption of innocence should not apply. Appearing on the Fox News show ''The O'Reilly Factor," Monika Johnson-Hostler of the North Carolina Coalition Against Sexual Assault declared that her role was ''to support a woman or any victim that comes forward to say that they were sexually assaulted."

To O'Reilly's question, ''Even if they weren't?" Johnson-Hostler replied, ''I can't say that I've come across one that wasn't." Feminist pundits discussing this case, such as Wendy Murphy of the New England School of Law, exude an overwhelming presumption of guilt.

In some cases, activists have even protested what they believe is excessive coverage of false accusations of rape and innocently accused men.

False charges do exist. FBI statistics show that about 9 percent of rape reports are ''unfounded" -- dismissed without charges being filed. This usually happens when the accuser recants or when her story is not just unsupported but contradicted by evidence. Some studies, including one by pioneering date rape researcher Eugene Kanin, put the rate of false accusations at one in four or even higher.

The results can be devastating. In 1996, Los Angeles police officer Harris Scott Mintz was accused of rape by a woman in the neighborhood he patrolled, and then by his own wife as well. At a pretrial hearing, the judge pronounced that he had no doubt about Mintz's guilt. Then, his wife admitted that she made up the charge because she was angry at her husband for getting in trouble with the law; subsequently, Mintz's attorneys uncovered evidence that the first accuser had told an ex-roommate she had concocted the rape charge in order to sue the county and that she had tried a similar hoax before. By the time the case collapsed, Mintz had spent five months in jail.

To recognize that some women wrongly accuse men of rape is not antifemale, any more than recognizing that some men rape women is antimale. Is it so unreasonable to think that a uniquely damaging charge will be used by some people as a weapon, just as others will use their muscle? Do we really believe that when women have power -- and there is power in an accusation of rape -- they are less likely to abuse it than men? As Columbia University law professor George Fletcher has written, ''It is important to defend the interests of women as victims, but not to go so far as to accord women complaining of rape a presumption of honesty and objectivity."

If that's the lesson of the Duke case, then some good will have come of it after all.

An interesting comment from Eugene Volokh, who writes:

You are absolutely right to point out that there is substantial reason to think that false rape accusations are not highly uncommon. But the 9% number, it turns out, isn't reliable.

First, the number is supposed to be not just the "dismissed without charges being filed" number, but the number where the charges were dismissed because the police thought no crime had occurred. (Reports can, of course, be dismissed without charges being filed for many reasons, including that the perpetrator is never identified [no charges filed, though perhaps one might say that's not "dismissed"] or the victim refuses to go forward because of fear of retaliation or misguided affection for the perpetrator [no charges filed, and the complaint really is dismissed].)

But, second, and more important, I've looked at the raw data underlying this 9% number, and the result is stunning -- some jurisdictions report "unfounded" counts that translate into a rate of 20% or so, others report "unfounded" counts of *zero*, not just for rape but for all crimes, and others have rates in between. This suggests that some police departments are just not tracking or reporting this information (which would mean the actual rate is higher than 9%) and also likely that others are interpreting "unfounded" very differently (which would mean the actual rate can't be inferred at all from the data). So the result is garbage in, garbage out -- if many departments are not interpreting "unfounded" to mean what it's supposed to mean, which is that the police think no crime had occurred, then the average of those reports, many of which are unsound, is unsound, too.

So keep banging the drum; but I think the 9% number can't be part of a sound analysis.

Eugene makes an excellent point; there is definitely a need for more sound research on the incidence of false rape accusations (though, given the politics of the issue, it's not very likely).

A fascinating, and disturbing, new wrinkle in the case comes from the revelation that ten years ago, the accuser reported another rape, also by three men. Those men were never charged, possibly because the accuser backed out of the case; her own father has said that he thinks she was lying. Distrcit Attorney Mike Nifong says this will have no bearing on the present case:

Nifong said in a prepared statement that the decade-old allegation -- which the woman's father said was false -- likely would never arise in court thanks to the state's rape shield law, which generally keeps a woman's sexual history out of open court. A judge could decide that the previous case is relevant and set conditions for its airing, Nifong said.

Now, we don't know for sure that the 1996 rape report by the Duke accuser was false. But if it was, how on earth is that irrelevant to the issue of her credibility in the Duke case? How and when did a false complaint of rape become part of "a woman's sexual history," rather than a part of a woman's criminal history?

For more on the use and misuse of rape shield laws, see my 2002 column in Reason, "Excluded Evidence."