Wednesday, November 18, 2009

A major rape myth: rape victims recant or don't report because rape trials are a 'second rape'

Stick with me on this longer-than-usual post. It sums up many of the injustices the presumed innocent (who too often turn out to be falsely accused) face in the rape milieu.

Twenty-five years ago, the appellate court judge for whom I was working was sitting in oral argument on a case that posed the following question: whether the rules of evidence should be construed to admit evidence of rape trauma syndrome (in the form of a nurse's testimony that victims of rape will report the crime in ways different than victims other crimes, including delaying reporting rape for years). For no other crime was similar evidence admissible. The judge pointedly asked the prosecutor making the argument why rape differs from a case where a robber holds a gun to an innocent man's head and threatens to kill him. The answer was incoherent. Certain "studies" were mentioned in a sort of mumble, but the response was the legal equivalent of gobbledygook. The prosecutor's bottom line was that the judge would just have to take it as a leap of faith that the two situations are different. The judge didn't buy it, because that's not how good law is made. He saw through it as an attempt to politicize the rules of evidence.

Nothing has changed in the past quarter century. The rape milieu is replete with such nonsense, and there are constant attempts to foist counter-intuitive "rules" on us -- rules that aren't applicable to any other crime, that don't ring true, and that are wildly inconsistent with the experience of most people. These rules are invented solely to "prove" what can't otherwise be proved: that a rape supposedly occurred.

A comment on another post in this blog raised one such "rule" -- the old myth that women recant because they do not want to experience a "second rape" -- the supposed victim blaming trauma that sexual assault accusers are subjected to every step of the way in the judicial process. A corollary is that women simply don't report rape for precisely the same alleged fear.

No evidence that "second rape" is a significant problem, and the very term trivializes actual rape

There is, of course, no evidence that this alleged fear is widespread or that it is keeping significant numbers of women from pursuing rape claims. The very analogy to a second "rape" trivializes the brutality of rape, but that sort of inane hyperbole is consistent with the anti-intellectual habit of feminists and the sexual grievance industry of trivializing rape to arrive at the ends they desire. Example: they talk of "rape continuums" that includes "sexist" comments made by men and boys. They seem oblivious to the fact that equating such conduct with "rape" eviscerates that crime of its horror. Personally, I think they believe using a word like "continuum" makes them sound intelligent.

Proof that "second rape" is a myth: it doesn't stop false accusers from coming forward

But their "second rape" theory doesn't hold up. False rape accusers in great numbers have no hesitation accusing one, two, three or more innocent males of rape, despite the fact that they haven't been raped and will undergo the same "trauma" of a rape trial as an actual rape victim.

The reason women don't report rape: it didn't happen

The principal reason some women don't report rape even after they've told someone they've been raped is that they really know it wasn't rape or, at the very least, they aren't sure. Many women falsely claim they were rape because they are embarrassed when it becomes known they slept with a male they think their friends find undesirable; others are afraid their parents will find out; still others are afraid their boyfriends will find out. Rape is a handy excuse to -- presto -- transform a lovemaking session into a male crime to which the female didn't consent. Sometimes, the girl's friends or family insist she must press charges (that's what happened in the horrid Hofstra case -- the boyfriend urged her to press charges), occasionally to test if she really was raped. In assessing why a woman isn't pressing charges, one needs to assess her possible motives. Almost always, women who don't press charges have a motive to lie, but this is never discussed by the sexual grievance industry in connection with an alleged failure to report.

Some women don't report because they weren't sure it was really rape. Although secretly, they might not have wanted to have sex, they know that their outward manifestations of assent probably did not convey that point. And if they weren't sure it was "rape," how on earth is it fair to assume their "rapists" knew?

Women who recant subject selves to greater risk than women who proceed with the rape charges

Even more far-fetched is the notion that women recant to avoid a rape trial. Think about it: women who recant know that they, themselves, could be subjected to charges for filing a false rape report and that this could cause them to be jailed for months or even years. Example: the Kanin study noted that the women who recanted were advised that they would be charged if they proceeded to recant. They recanted nevertheless. So, are we to believe that women who recant would risk going through a trial in which they are not the accuser but the defendant, and that they would risk going to jail themselves, rather than be subjected to rape trial in which they are the accusers? Sorry, it's not plausible. Not even in the wacky, topsy-turvy rape milieu.

The "second rape" theory is a myth: rape accusers are afforded every advantage to help them convict alleged rapists

Finally, the entire "second rape" theory -- that the judicial process metaphorically rapes women -- is a lie. For no other serious crime is reporting as easy.

▲Sexual assault counselors, paid for in part with tuition and tax dollars of the presumed innocent male accused of rape, hold the accuser's hand every step of the way as they guide her through the process. No similar resources are afforded the presumed innocent (who, too often, turn out to be falsely accused). At best, they are afforded a notoriously overworked and almost always out-gunned, public defender who is furnished to provide the appearance, but not the reality, of a fair trial.

▲In case you haven't noticed, men and boys are routinely arrested for rape on the basis of the accuser's word alone, without even listening to the male's side of the story, and even if the accuser's story is far-fetched and can be disproved merely by checking out a video of the interaction. A female's accusation of rape alone constitutes "probable cause" for arrest to far too many law enforcement officers. When a female claims she was raped but a male denies it and claims she's committed the crime of making a false police report of rape, there are conflicting claims of criminality, yet on the basis of no other evidence the male alone is arrested and often subjected to humiliating medical procedures.

▲The mere allegation of rape by any female, without any other evidence and no matter how far-fetched, invites a man's name to be splashed all over the newspaper, TV, radio and Internet for the world to titillate at the details of his humiliation. Men and boys falsely accused of this vile crime have been beaten and killed and have killed themselves; they've been fired from their jobs and lost their businesses; they've lost their wives, their girlfriends and their long-time friends. Rarely do they ever come out of it whole, and for many, the ghost of a false rape claim trails them for the rest of their lives. Good luck to them landing a good job even twenty, thirty years after-the-fact. All that a prospective employer needs to do is Google the name of a man falsely accused to learn of the accusation -- and that is usually enough to kill any chance of landing that job because most employers can't risk even the remote chance that the claim was true. In contrast, the accuser retains lifelong anonymity, either by law (UK) or by agreement of news sources (U.S.).

▲Using polygraphs to test the credibility of rape claimants is verboten. Feminists and sexual assault advocates object to their use on women who allege rape. To be eligible for VAWA funds, states and territories must certify that they prohibit polygraph testing of victims. VAWA provides: "No law enforcement officer, prosecuting officer, or other government official shall ask or require an adult, youth, or child victim of an alleged sex offense ... to submit to a polygraph examination or other truth telling device." (And please note the use of the term "victim" -- VAWA has convicted the male accused of the crime even during the polygraph stage!) In contrast, using polygraphs on men accused of rape is routine, and often if men don't submit to them, even flimsy charges won't be dropped. Moreover, polygraphs are routinely used to insure that sex offenders (predominantly male) are adhering to the terms of their probation, and this is considered sound public policy. A refusal to take the polygraph will land the person refusing to submit to it in jail.

▲If a college woman accuses her male classmate of date rape and they were both drinking, he will be charged with rape and with underage drinking. In contrast, she won't be charged with rape, and -- get this -- under the rules many colleges have adopted, she can't even be charged with underage drinking. You see, the colleges don't want to dissuade women from coming forward. (There's no possibility of abuse here, is there? If a young couple is busted and they're about to be charged with underage drinking, all she needs to do is cry "rape" and throw her male "friend" under the bus so she won't be charged with underage drinking. Nice, don't you think?)

▲In a rape trial the woman is fully protected by rape shield laws that prohibit any admission of evidence regarding the woman's prior sexual history with persons other than the defendant; in contrast, in a trial of a false claim, the male would not enjoy any of the rape shield protections his false accuser enjoyed when he was on trial for rape. His entire sexual history is often "fair game."

VAWA pays the legal bills of alleged victims of sexual assault. VAWA pays none of the legal bills of men accused of rape, the presumed innocent -- even those who were falsely accused.

Unlike any other criminal charge, including murder, assault, even planning the World Trade Center attacks, a rape trial in federal court and in various states allows evidence of the defendant's commission of prior offenses (specifically, his prior offenses of sexual assault) to show that he has a propensity for committing the crime at issue. Under this rule, which is unique in all of American jurisprudence and widely condemned by legal scholars, the jury is to be informed of the defendant's prior acts whether or not the defendant takes the stand. Even accusations of prior sexual offenses that occurred years before -- and even crimes for which the defendant was acquitted -- are admissible if the alleged act is proven by just a preponderance of the evidence (far lower than beyond a reasonable doubt). This is sometimes all a jury needs to convict the man or boy of the crime at issue.

But it's rape accusers, not the presumed innocent, who are being "raped" by the system, right? And I have a bridge in Jersey to sell the deluded souls who buy into this.