Monday, July 5, 2010

Rebuttal to comment of Kate Green MP, who opposes anonymity for the presumptively innocent accused of rape

Kate Green, MP, has written an essay opposed to anonymity for the presumptively innocent accused of rape. Here is her essay, with False Rape Society's rebuttal interspersed.  The original essay is found here: Here is her essay:

This week parliament will debate the government's intention to extend anonymity to defendants accused of rape. This unheralded policy has been challenged by Labour MPs but the fight must be kept up

This proposal appeared nowhere in the Conservative or Lib Dem manifestos, but turned up out of the blue in the coalition agreement in May. Labour MPs (and some MPs from other parties) were horrified, and have been mounting a vigorous campaign against it, led by Caroline Flint.

It's a tribute to the determination of Caroline and others that the debate is happening now. For ministers seemed, at least at first, to be incapable of understanding what the fuss was about. Contradictory, dismissive and ill-informed answers were offered to the challenges Labour MPs laid out. While claiming that they shared the concern about the shockingly low level of successful rape prosecutions, ministers appeared unwilling to understand how this idea could make matters worse.

FRS: The conviction rate is actually quite high, and the MP's suggestion that it is not is dishonest. The Home Office, and politicians seeking to jack up rape convictions, have long cited the attrition rate for rape, which is the number of convictions as a percentage of number of reported crimes. That rate is 6%. But, the Home Office, and everyone, uses the conviction rate (the number of convictions secured against the number of persons brought to trial for that given offence) for all other crimes. The result has been to make it appear that law enforcement is terribly, and uniquely, ineffective when it comes to rape. Please re-read that and make sure you understand it. The UK has insisted that only 6% of "rapists" are convicted, as opposed to the correct figure: 58%. Stern Review, see page 45. Rape is the only crime judged by the attrition rate. All others – murder, assault, robbery, and so on – are assessed by their conviction rates. This is dishonesty of Biblical proportions. The Stern Review noted that use of the attrition rate instead of the conviction rate "may well have discouraged some victims from reporting." Stern Review, see page 45.

While we can readily imagine the horror of being accused of a crime one has not committed - any crime, but especially this violent and vicious crime - the importance of public protection surely must come first.

FRS:  The single most important way to protect the public is to refrain from using the apparatus of law enforcement to imprison, or to destroy the good names of, innocent people.

As Baroness Stern in her review of the handling of rape complaints pointed out, many rape victims are often especially vulnerable: young, sometimes with learning difficulties, or without strong family support. Many victims are ashamed of what's happened, particularly where rape has taken place within the family unit or within a close community. They may be pressed to cover up the attack, or face outright rejection of their claim that a rape has taken place.

FRS: The previous three sentences are a non-sequitor. They have nothing to do with the debate over anonymity for the presumptively innocent.

All this contributes to reluctance among rape victims to report attacks, increasing the risk that the accused attacks again. Extending anonymity at any stage of the legal process would add yet further risk, both for the victim, and for potential victims too.

FRS: The gaps, or more accurately, the chasms in this logic are blatant and breathtaking. 

First, the MP's assertion impliedly conflates rape accusers with rape "victims."  By branding an accuser a "victim," the MP 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.

Second, 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.

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

Fourth, 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.

Fifth, the suggestion that the government's proposal sends a message to rape victims that they will not 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 incapable of making that distinction.

As the lord chancellor himself acknowledged, victim and accused may often be known to one another, increasing the likelihood that they continue to come into contact after an attack has taken place. If the accused is assured of anonymity, the risk of that happening, and of interference with and threats to the victim, is surely heightened, especially given that a substantial proportion of those ultimately convicted of rape at some stage are released on bail.

FRS: There is precisely no evidence of this occurring beyond the MP's serene ipse dixit.  None, in fact. The assertion that an anonymous man accused of rape will seek out his "victim" more than a man who is not anonymous is speculative in the extreme.  Has anyone ever expressed this "fear" with respect to the many accused rapists who are already afforded anonymity in the UK?  Namely, teen boys and certain men whose identities cannot be revealed without necessarily revealing the accuser's identity? 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. I am not familiar with any serious concern that anonymity for them causes the dire things predicted by the MP.

What's more, whether or not victim and accused are known to one another, anonymity would inhibit the reporting of other and further attacks. Victims are more likely to come forward when they hear others describe experiences that replicate their own.

FRS: Again, this assertion, which, too, is speculative in the extreme, is a slender reed on which to hang a policy that sacrifices the good names and reputations of countless innocent men.

It's not clear why rape should be treated differently from other offences, where these arguments are apparently accepted, and anonymity for the accused would never routinely be the case.

FRS: It is difficult to believe that this assertion is posited in a serious vein.  False accusations of rape are qualitatively, and quantitatively, different than any other false allegation. Aside from murder, rape is widely regarded as the most loathsome offense in the entire criminal law canon.  In some cultures, rape is regarded as more offensive than murder.

But that is only part of the problem. 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.  The overwhelming evidence suggests that false rape claims are a very serious problem. See footnote one, below.

So we're forced to the conclusion that at the heart of this proposal was an unspoken but underlying assumption that those who claim to have been raped should not readily be believed.

FRS: It is correct that a rape accuser should not "readily" believed over the denials of the man or boy she accuses, and the MP's implied assertion that they should underscores how terribly gender-politicized the crime of rape has become. Rather, each claim of rape should be treated with seriousness and the accuser should be accorded dignity and respect.  This does not mean it should be "readily believed." Moreover, this has nothing to do with the reasons for extending anonymity to the presumptively innocent accused of rape.

Indeed, all too often they are not believed - as the appalling saga of the police failure to apprehend John Worboys as he raped scores of women over the years more than amply proves. Instead, anxiety about possible false accusations appears to have gripped the government's thinking, reflecting a perhaps populist assumption that victims are wickedly and deliberately falsely accusing their attackers, or are unreliable and irrational in their reports. What's more, society is still too ready to assume that a woman who has been raped is herself in some way responsible for the attack.

FRS: As we near the end of the screed, the MP's essay devolves into off-the-shelf mantras from the sexual grivance industry, as she flails away with impertinent, overblown emotional pleas. None of these assertions, of course, have anything to do with the policy interests underlying the need for anonymity.  What we are left with is an MP who frankly can't stand the fact that society would dare lend support to a class of victims routinely ignored: innocent men falsely accused of rape.  She posits a zero-sum game: tending to the needs of the presumptively innocent somehow takes away from the needs of rape victims. No evidence supports that. 

A radical change of direction of policy must not be founded on prejudice and myth. The opportunity for full consideration of the issues is vital if there is any suggestion that policy needs to be changed. It's to be hoped that the agreement to a debate in parliament will lead to a full risk analysis to allow for a proper review of the evidence to take place. Ministers must guarantee that will happen - there will be no shame on them if they back down on this proposal now.

FRS: Is it "radical" to protect the reputations of innocent men?  In this entire essay, there is nothing more than a perfunctory acknowledgement of the harm to men falsely accused of rape. And even there, the MP treats them as no more deserving of society's protection than a man falsely accused of stealing a pack of gum.  The fact is, further research will not advance the question at issue, but the MP likely knows that.  The vast majority of the persons opposing anonymity for the presumptively innocent 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.  Publicly naming men accused of rape causes serious problems for countless men who turn out to have been falsely accused. No further studies or "risk analysis" will either lessen or justify their pain.  To treat their victimization as an actuarial statistic is morally grotesque, and is a sad barometer of how terribly gender politicized this serious issue has become.


Footnote 1: 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.)