Wednesday, June 2, 2010

Refutation of the Motion Opposing Anonymity for Defendants in Rape Cases


In the UK, Early Day Motion 105, ANONYMITY FOR DEFENDANTS IN RAPE CASES, introduced on May 26, 2010 by Fiona Mactaggart, reads as follows: 

"That this House believes that the Government's proposal to grant anonymity to defendants in rape cases sends a message to juries and rape victims that the victim is not to be believed; fears that this could inhibit the effective prosecution of serial rapists; is further concerned that this will reverse the progress made on the prosecution of rape cases noted in the independent Stern Review; is further concerned that the Government has put forward the proposal without any research, evidence or examination of these issues; and calls on the Government to withdraw its proposal."

The motion is grounded on a series of faulty premises and does a grave, markedly unjust disservice to the presumptively innocent accused of rape who, too often, turn out to have been falsely accused.  The following highlights several of the more egregious errors in this motion: 

I. The Motion Is Unconscionable Because It Fails To Acknowledge The Damage Of False Rape Claims To Innocent Men

The motion is unconscionable because it fails to acknowledge the harm to innocent men accused of false rape claims. It fails to recognize that rape is perhaps the most loathsome offense in the entire criminal law canon; that in some cultures, rape is regarded as more offensive than murder; and that rape is universally considered worthy of the most severe societal censure and condemnation.  Worse, because of the nature of a rape claim, where the only physical evidence of an alleged criminal act is often precisely the same physical evidence of an act of love, a false rape accusation is almost impossible to fully disprove, so even when falsely accused men are cleared of rape charges, they often spend the remainder of their lives tainted as the possible perpetrators of the most detestable crime known to mankind.

False accusations of rape have severely stigmatized more human beings than false accusations of any other crime. The public scorn from false rape claims has caused innocent men and boys to be killed and to kill themselves; to be beaten, to be chased, to be spat upon, and to be looked upon with suspicion long after they are cleared of wrongdoing. They lose not only their good names but often their jobs, their businesses, and their friends. It is often impossible for the falsely accused to ever obtain gainful employment once the lie hits the news: for the rest of his life, a falsely accused man will have prospective employers Googling his name and discovering the horrid accusation.

II. The Motion Is Premised On A Bias That Rape Accusers Are Rape Victims

The motion manifests a disturbing and telling bias that presumes a defendant is guilty of rape based solely on an accusation.  This is evident by its failure even to acknowledge the reality of false rape claims, and in its express language. Specifically, it asserts that the Government's proposal "sends a message to juries and rape victims that the victim is not to be believed."  (Emphasis supplied.)

By branding an accuser a "victim," the motion impliedly asserts that a rape accusation is true based solely on the allegation, before a scrap of evidence is admitted at trial, much less an adjudication of guilt is handed down.  Such a description is grossly unfair to the presumptively innocent who are accused of such crimes since, by necessity, they must be guilty of rape if their accusers are, in fact, "victims." This description also trivializes rape by including among its victims women who might only be false accusers.

III. The Proposal Does Not Send A Message That The Rape Accuser Isn't To Be Believed.

The assertion that the government's proposal "sends a message to juries and rape victims that the victim [sic] is not to be believed" is factually erroneous.  The proposal sends no such message any more than anonymity for rape accusers sends a message that rape accusers are to be believed over the men and boys they accuse. 

The message conveyed by anonymity for rape defendants is that the harm of publicly identifying innocent men who are falsely accused is severe and unconscionable, not that women are liars.  It is a gross stereotype to insist that the general public is so obtuse that it will make such generalizations about rape accusers and rape defendants.

IV. Granting Anonymity Will Not Unduly Inhibit The Prosecution of Serial Rapists

The assertion that the government's proposal "could inhibit the effective prosecution of serial rapists" is a snare and a delusion.  The proposal does not prevent the naming of serial rapists, it would simply forbid publicly naming men who have only been accused but not convicted of rape.  A suspect would be identified if he is convicted.

Moreover, anonymity will not inhibit the prosecution of serial rapists. The vast majority of rapes are committed between acquaintances where the identity of the perpetrator is not at issue.  The number of cases where rape victims might be helped to identify their rapist by seeing a man's picture on the television news is minuscule.

It is well to note that many accused rapists are already afforded anonymity by the UK news media: teen boys and certain men whose identities cannot be revealed without necessarily revealing the accuser's identity. It can scarcely be denied that some teen boys and some men whose identities are already shielded must also be serial rapists.  Nevertheless, the identities of accused males who fall within these two classes are shielded because, as a matter of public policy, the benefits of shielding their identities is deemed to outweigh publicizing them.  That is so despite any inhibition of the effective prosecution of serial rapists.

Would anonymity for men accused of rape hinder police investigations any more than anonymity for rape accusers hinders police (not to mention innocent men) from learning that a rape accuser has made false rape allegations in the past? The question scarcely survives its statement. Yet, society grants anonymity for women who accuse men and boys of rape because such anonymity is thought to serve other useful purposes, just as anonymity for men would serve important purposes, even if police might prefer to have them publicly named.  The interests of law enforcement should never trump the interests of innocent men in not having their good names destroyed by rape lies.

V. The Proposal Will Not Reverse the Progress Made For Rape Victims, It Will Benefit Rape Victims

There is no basis whatsoever to believe that women will not come forward if the men they accuse are not publicly named.  The one has nothing to do with the other. For example, there is no basis to believe that fewer women come forward when their rapists are teen males whose identities will not be made public, or when their rapists are men whose identities can't be revealed because such revelation would necessarily identify the women. 

Moreover, justice for rape victims does not depend on the public shaming and humiliation of the presumptively innocent, much less the public shaming and humiliation of countless innocent men who are snared by false rape claims.

In fact, it is likely that more women would "come forward" if the men they accused were anonymous. When a woman accuses a male acquaintance of rape and he is publicly identified, it often isn't difficult to infer who the accuser is. It is reasonable to assume that most rape victims would prefer not to have their identities revealed by inference when they accuse an intimate acquaintance of rape.

VI.  More Research Would Not Be Helpful

Various studies have been conducted on false rape claims, and every single one that was not conducted by interested and biased persons have revealed that false rape claims are a serious problem. But as discussed in the next section, the exact percentage of false claims is neither known nor knowable, and no further studies will ever pinpoint that percentage with exactitude.

The majority of persons backing the motion opposing anonymity belong to the party that has been in power for the past thirteen years. In all that time, that party was content to not examine the issue it now claims requires more study, for reasons patently political. 

Further studies will shed no light on any issue of material importance.  Publicly naming men accused of rape causes serious problems for countless men who turn out to have been falsely accused.  No further studies will either lessen or justify their pain.

VII. The Motion Ignores That False Rape Claims Are A  Significant Problem

The motion ignores the fact that the overriding evidence suggests that false rape claims are a significant problem, and that the victims of false claims are not rarities. No one knows for certain the percentage of false rape claims. A leading feminist legal scholar recently acknowledged: ". . . the statistics on false rape accusation widely vary and 'as a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.'" A. Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 595-600 (November 2009) (citation omitted). 

But it is erroneous to assert that only a tiny percentage of rape claims are false because no one can make that assertion with any degree of certainty.  The prevalence of false rape claims is neither known nor knowable. Here is why: for every rape claim reported, only a relatively small percentage can be definitively called "rape." This is beyond dispute.  Approximately fifteen percent end in conviction and of those we know that some innocent men and boys are convicted. We also know that some claims reported (the numbers vary depending on the study) are outright false. But in between the claims we are reasonably certain were actual rapes, and the ones we are reasonably certain were false claims, is a vast gray area consisting of a group of claims that cannot properly be classified as "rapes" -- because we just don't know. That's the nature of a rape claim. The claims in this vast gray middle area often suffer from evidentiary infirmities. For example, for some such claims, while the claimant herself might think a rape occurred, her outward manifestations of assent did not match her subjective disinclination to engage in sex, so it wasn't rape.

Regardless of what the actual number might be, every impartial, objective study ever conducted on the subject shows false rape claims are a serious problem. As reported by "False Rape Allegations" by Eugene Kanin, Archives of Sexual Behavior Feb 1994 v23 n1 p81 (12), Professor Kanin’s major study of a mid-size Midwestern U.S. city over the course of nine years found that 41 percent of all rape claims were false. Kanin also studied the police records of two unnamed large state universities, and found that in three years, 50 percent of the 64 rapes reported to campus police were determined to be false (without the use of polygraphs). In addition, a landmark Air Force study in 1985 studied 556 rape allegations. It found that 27% of the accusers recanted, and an independent evaluation revealed a false accusation rate of 60%. McDowell, Charles P., Ph.D. “False Allegations.” Forensic Science Digest, (publication of the U.S. Air Force Office of Special Investigations), Vol. 11, No. 4 (December 1985), p. 64. See also, "Until Proven Innocent," the widely praised (praised even by the New York Times, which the book skewers -- as well as almost every other major U.S. news source) and painstaking study of the Duke Lacrosse non-rape case. Authors Stuart Taylor and Professor K.C. Johnson explain that the exact number of false claims is elusive but "[t]he standard assertion by feminists that only 2 percent" or sexual assault claims "are false, which traces to Susan Brownmiller's 1975 book 'Against Our Will,' is without empirical foundation and belied by a wealth of empirical data. These data suggest that at least 9 percent and probably closer to half" of all sexual assault claims "are false . . . ." (Page 374.)

Conclusion

Falsely accused men should not be regarded as unfortunate collateral damage whose pain is to be tolerated in the name of fighting the "more important" war on rape. The victimization of our daughters should not be deemed more worthy of our protection than the victimization of our sons.  Anonymity for the presumptively innocent is opposed precisely because rape has become unnecessarily gender politicized and too many are willing to sacrifice the falsely accused on the altar of political correctness simply because they are male.