Tuesday, February 23, 2010

Polygraphs are just fine for the men accused and convicted of rape claims; off-limits for the women who do the accusing

This post is not about the pros and cons of using polygraphs. It is about a vile double standard that permeates rape law on account of good old fashioned gender politics.

Polygraphs Just Fine For Men Accused Of, and On Parole for, Rape

Men accused of rape have little choice but to submit to polygraphs when requested, because a refusal could be used against them in deciding whether to charge them. And sometimes when men take polygraphs, they fail when they shouldn't, thus providing DA's with a possible justification to proceed with a case that should be dropped. And sometimes police tell men that they are failing a polygraph test, which elicits a false confession. See, e.g., this case from the Innocence Project ("Between sessions of questioning for the polygraph test, Deskovic [a 16-year--old boy] was questioned further by investigators, who told him he was failing the polygraph test. After six hours of questioning, Deskovic confessed to the crime" he did not commit.)

Moreover, persons on parole for sex offenses -- almost exclusively male -- are forced to submit to polygraphs as a condition of their parole. A recent news story highlighted one state's use of polygraphs to insure registered sex offenders are telling the truth: "Many sex offenders on parole or probation in New Hampshire take lie detector tests to help make sure they aren't violating their rules . . . . Each day, some of the state's 600 sex offenders on parole or probation go to an unassuming office in Concord to take a polygraph test. No questions about their lives are off limits, from their whereabouts to secret fantasies they may have. . . . . For some, even the threat of the test is sometimes enough to make them reveal information before a lie is exposed by the polygraph. . . . . When offenders show up for the test, they can choose not to go through with it, but they would then likely be in violation of their parole conditions. . . . . They said that about 10 percent of the time, the polygraph catches violations serious enough to send an offender back to prison. . . . . Most states now have sex offenders take polygraph tests, but in some locations, the offenders have to pay for it themselves."

The 2nd U.S. Circuit Court of Appeals, for example, has upheld the use of polygraphs for this purpose, saying that polygraph testing "produces an incentive to tell the truth, and thereby advances the sentencing goals." The vast majority of states require polygraphs for sex offenders on parole.

The Women Who Accuse Men of Rape: Exempt From Polygraphs

Polygraphs are considered sufficiently reliable when men accused of rape and men convicted of rape and other sex offenses are asked to take them. But the women who did the accusing are exempt from taking polygraphs.

How did this double standard come about? Politics, of course. Rape victims' advocates lobbied state and local governments "to ban or discourage police from asking rape accusers to take polygraph tests. They have contended that women will be discouraged from reporting sexual assaults if police don't simply take them at their word, without question." S. Taylor, KC Johnson, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, 378 (2007).

We recently explained how this and the avalanche of other rape reforms that were supposedly intended to encourage women to come forward haven't worked. At all. Underreporting has gotten worse, not better. Alleged underreporting is wielded like a sword to continually push for more and more and more rape reforms, and some of the reformers won't be satisfied until rape accusers are permitted to be both judge and jury in the trials of their own accusations.

But the exemption has the force of Federal law behind it. 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."

(By the way, notice how the law is worded: it calls the accuser a "victim" of "an alleged sex offense." Not "an alleged victim.")

A Gross, Intellectually Dishonest, and Unjust Double Standard

The double standard cannot be justified on any rational basis. If polygraphs are sufficiently unreliable for rape accusers, they should be deemed sufficiently unreliable for the men accused and the men convicted of sex offenses. As noted above, innocent men sometimes lose their liberty because of polygraph tests. And it is repugnant that men on parole for a rape charge can be sent back to prison because they "failed" a test that is not good enough for the women who put them there in the first place, and that is not even admissible in a court of law. The mischief and evil caused by these tests in some cases may counsel against their use in any case.

But polygraphs seem to be here to stay. Since we insist that the men accused and the men convicted submit to them (and pay for them, too, in many instances), then we must insist the same of their accusers. Period. Let us be clear: no one is interested in causing undue stress to persons who have traumatized by a rape. But is a polygraph more stressful to a rape accuser than a stint in jail is to an innocent man falsely accused? The question scarcely survives its statement. And if you don't think it's common that innocent men are jailed for rapes they didn't commit, spend several weeks (that's how long it will take you) reading through this Web site to see the actual news accounts of that very thing happening, and read the objective studies that put false rape claims approaching fifty percent.

If a polygraph test can keep an innocent man from languishing in jail, accusers should not be exempt from taking them. And if the insistence that rape accusers submit to a polygraph test keeps some hypothetical rape victim from "coming forward" resulting in a rapist remaining at large (and there is no evidence that this would happen), as terrible as that is, that result is preferable to allowing an innocent man to be jailed for a crime he did not commit.

No valid, moral, or defensible rationale justifies exempting rape accusers from submitting to polygraphs if the men they accuse and the men their accusations convict have no real choice but to take them. Exempting rape accusers alone only serves to exalt a politicized agenda to jack up rape convictions over any concern for innocent men falsely accused of rape. But that, after is, is really the purpose of this immoral double double standard, isn't it? To jack up rape convictions, the wrongly accused be damned.