Sunday, April 18, 2010

Bias and the Justice System

A recent post on another site got me to thinking about this.

Considering the number of stories we run here, it should be obvious to most people that if there is a bias in the justice system, it isn’t against those who report rape. In fact, the justice system has done all it can to facilitate prosecution on behalf of them. Rape shield laws make it almost impossible to enter into evidence the past sexual history of the accuser (some even preclude the past history between the two). Some states don’t allow evidence showing prior false rape accusations. Fed. R.Evid. 413 and its state law progeny allow evidence of the accused's purported propensity to rape (the only rule of law that allows this) by allowing the admission of prior “rapes” into evidence (proven by a preponderance of the evidence, and including even those for which he was previously acquitted).

But consider this: based on the number of stories we run here, if there is such a bias against rape victims, how is it that so many people are arrested on charges of rape that turn out to be a false accusations?

Does law enforcement make mistakes when investigating some rape allegations that are true? I’m sure it does. After all, they are human. But the repeated accusation that the justice system is biased against rape victims is belied by the plethora of stories of people spending years behind bars for alleged rapes they didn’t commit. People like William McCaffrey and Anthony Cole. A bias in the system against rape victims would mean they wouldn’t have gone to prison.

I can’t speak to the experience of those who actually are raped, but I would presume that the vast majority (if not all) would like to distance themselves from such a traumatic event. Really, that is no different from someone who has been falsely accused of rape. The number of times, both in articles, and in emails we receive, the statement “I just want to put it behind me, and move on with my life” is said, shows this. But since those who lodge false accusations never experience that kind of trauma, they have no need to distance themselves from it.

Yet, in almost every story we run on this site, false accusers have been willing to submit to a rape kit, which we know is an unpleasant experience. So why is it, knowing how unpleasant the evidence gathering process is, that someone would be willing to file a false claim? It is because these people know that the system isn’t biased against them, but that it will actively believe them, work to support them, and prove their claim.

If not, no one would EVER go to jail, or even be arrested on a false rape claim. False rape claims flourish precisely because there is no bias against rape victims.