More on rape victim advocates

Daran on Creative Destruction responds to my response to Barry, regarding my column on rape victim advocates and the presumption of innocence. There is also a lively debate about this in the comments section on my blog.

Again, here is the disputed section from my column:

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 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?” Hostler replied, ‘’I can’t say that I’ve come across one that wasn’t.”

Barry, Daran and some of my commenters feel I'm being unfair to Hostler because (a) she said nothing to indicate a belief that men accused of rape or sexual assault should not have a legal presumption of innocence in the courtroom, and I am conflating the presumption of innocence in a court of law with a presumption of innocence in public opinion (which is not a requirement); and (b) she never said that the accused are definitely guilty.

Yes, I understand the difference between a legal and extralegal presumption of innocence. I don't think that any commentator who says, "I think X is probably guilty," is violating the presumption of innocence. However, it is a well-known fact that statements which paint the accused as guilty in the eyes of the public are widely seen as problematic. Hence, media references to "the alleged murderer," even if the alleged murderer shot someone in broad daylight in front of dozens of eyewitnesses. Hence, rules that, at least in some states, bar prosecutors from "making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."

The "women don't lie about rape" party line definitely promotes and heightens public condemnation of the accused, contributing to a climate in which jurors, for instance, may be more likely to see the accused as guilty.

Daran, in fact, seems to believe that creating such a climate is the appropriate job of rape victim advocates. Here is his response to some of my rhetorical queries:

Should they write letters to the editor complaining about the overly prominent coverage given a false accusation?

That again would seem to fall within the remit of victims’ advocates. Such coverage could prejudice real victims’ cases.

Should they, when a woman recants a story of being raped, argue — with no evidence — that she may have been raped after all and may have recanted under pressure or out of fear?

Is Cathy claiming the opposite? Is she claiming, without evidence, that in every case where a woman recants, the recantation is true? That these women are 100% reliable? If this is not Cathy’s position (and I suspect it isn’t) then logically she must agree with the proposition, in which case what is her objection to a victims’ advocate saying so?

So coverage of false accusations of rape prejudices the cases of real victims? By making potential jurors (and, perhaps, prosecutors and law enforcement personnel) of the fact that some rape charges are false and making them more likely to give the accused the benefit of the doubt? In other words, by bolstering the presumption of innocence?

On the second point -- I am not, of course, saying that every recantation is true. However, it seems to me that unless there is some evidence that the recantation may be false, such speculation is uncalled for.

To my question:

Should they denounced the “abusive” tactics of a defense attorney who brings up the complainant’s history of false reports of rape?

Daran responds:

If the defence attorney’s activities are abusive then certainly they should be denounced.

I'm not sure if Daran misread my hypothetical question. Of course I believe that abusive tactics by defense attorneys should be denounced. If, for instance, a defense attorney brings back the complainant's history of sexual promiscuity, or past involvement in prostitution, I would happily join the rape victims advocates in their denunciations. I asked about bringing up past false accusations of rape, something that is directly relevant to an accuser's credibility if that's what the case hinges on.

What I'm talking about is the kind of case I discussed in my 2004 Salon.com article about rape shield laws:

In 1991, a Maryland real estate agent named Gary Hart (no relation to the politician) was accused of raping a waitress he had been dating. The woman claimed that their relationship had been platonic, and that Hart had attacked her while she was staying overnight at his apartment. Hart claimed that they had been sexually involved, and that the woman had gotten angry because he refused to take her along on a trip. The defense was able to bring in evidence that Hart's accuser had a history of emotional instability, had made several false claims of sexual assault to psychiatrists and police, and had on several occasions reacted to romantic rejection with outbursts of violent rage. Hart was acquitted.

The trial received extensive local coverage, and the use of the alleged victim's troubled personal history in the courtroom was widely treated as if it were a gratuitous smear. A letter published in the Baltimore Sun asserted that even if the woman had not been raped by Hart, she suffered "a brutal form of abuse ... inside the courtroom." This curious logic ignores the fact that if Hart did not commit rape, his accuser was guilty of a pretty brutal form of abuse toward him -- and that her reliability as a witness was key to the case.

One reason I tend to be a bit harsh on the sexual assault victim advocacy community is that I have yet to see a case in which these activists, as well as feminist groups, did not side with the alleged victim. (Some other cases of this kind, including the Oliver Jovanovic case in New York, are described in the article linked above.) I would apply the same standard to other advocacy group. I take a pretty dim view of fathers' rights activists who feel compelled to side with every father in every custody dispute.

In my Salon article, I cite other instances of anti-presumption of innocence rhetoric not just by rape victim advocates but by feminist attorneys and legal scholars:

For some feminists, the dogma that "women never lie" means that there is, for all intents and purposes, no presumption of innocence for the defendant. After the 1997 trial of sportscaster Marv Albert, defending the judge's decision to admit compromising information about Albert's sexual past but not about his accuser's, attorney Gloria Allred decried "the notion that there's some sort of moral equivalency between the defendant and the victim" -- forgetting that as long as the defendant hasn't been convicted, he and his accuser are indeed moral equals in the eyes of the law. Wendy Murphy has blasted Kobe Bryant's attorneys for feeding uncorroborated rumors about the alleged victim to the media maw. Yet, appearing on Fox News, she made the claim, highly prejudicial to Bryant and so far untested in a court of law, that the woman "suffered pretty terrible injuries" the likes of which she had not seen despite having prosecuted "hundreds of sex crimes cases."

I must say, with all due respect to Hostler, that I find it very hard to believe that in all her years in the sexual assault field, she has never seen someone who came forward with a claim of sexual assault that, in fact, had never happened. It's hard to believe simply as a matter of statistical probability. I'm not saying that she's lying; I suspect it's simply a matter of preferring not to see.

Personally, I think that the knee-jerk, virtually unconditional public backing of every woman claiming to be a rape victim, even when the evidence strongly suggests she may not be, can only backfire not only on the advocates but on women who really are victims of rape. Eventually, the activists' support for charges that turn out to be false or highly dubious will come back to haunt them -- and to undermine their credibility -- when they line up to support a rape victim who really is being unfairly attacked.

Correction: In my initial post I mistakenly attributed the response to Adam Gurri, not Daran; my apologies.