Monday, August 6, 2012

Sex crimes fall--and that's cause for concern?

After several decades of rape reforms, the consensus is that reporting rape is less personally intrusive than ever, but in the widely acclaimed book about the Duke lacrosse false rape case, Until Proven Innocent, KC Johnson and Stuart Taylor conclude that "[t]he pendulum" to assist rape victims "has swung too far," and now threatens innocent men and boys.*

The Community of the Wrongly Accused must be at the forefront in speaking out about injustice to rape victims. By the same token, we do rape victims no favors when we insist that "women can't get justice" and that insistence is premised on faulty or non-existent evidence. Such assertions undermine confidence in the way rape trials are handled and wrongly pressure society to adopt more draconian measures to combat rape -- measures that hurt innocent persons accused of rape.**

Latest example: the Oxford Mail reports that sex crimes have fallen by 16 percent in Oxfordshire, and the number of suspects accused or charged has gone up.  A news article reports: "There were a total of 488 sex offences recorded by Thames Valley Police between April 2011 and March this year compared to 581 in the last financial year." Yet, we are told that "campaigners fear it could mean victims are becoming too scared to come forward."  The news report states that Natalie Brook, of Oxford Sexual Abuse and Rape Crisis Centre, said: "The number of reported crimes is often low as many survivors will opt not to report, sometimes due to fear of not being believed, or because the chances of conviction are so low." Moreover, the news report states that some fear being blamed for abuse, and some are scared of the personal medical examinations involved.

The fact that rape claims are under-reported does not explain why the number of reported sex offenses is on the decline, much less that women can't get justice when they report. We have seen other priminent examples of this sort of misguided advocacy:

When the charges against Dominique Strauss-Kahn were dropped last summer, some victims' advocates claimed that rape victims won't come forward because the case proved that women who report rape have to be "perfect" to get justice. One newspaper reported: ". . . for many feminists and victims' advocates, the victory for Strauss-Kahn is a defeat for women who have been sexually assaulted or raped, and who may already have been nervous about coming forward."

This was dishonest. By publicly insisting that women can't get justice unless they are "perfect," they, themselves, improperly discouraged rape victims from coming forward. The accuser in the DSK case wasn't just not perfect; according to the very prosecutors who arrested and charged DSK -- and forced him to take a humiliating and high profile "perp walk" -- she was "persistently" and "inexplicably" untruthful to prosecutors, so unbelievable, in fact, that the prosecutors concluded she had no credibility.  See here.

For a long time in the UK, the Home Office and politicians allied with anti-rape activists, have talked about the success rate in prosecuting rape by disingenuously citing the attrition rate for alleged rape, which is the number of convictions as a percentage of number of reported crimes. That rate is approximately 6.5%. But, the Home Office, and everyone else, 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 – murder, assault, robbery, and so on. In fact, the conviction rate for rape is approximately 58%. Stern Review, page 45. The chasm between 58% and 6.5% represents dishonesty of Biblical proportions. The result of such dishonest advocacy has made it appear that law enforcement is terribly, and uniquely, ineffective when it comes to rape.  Importantly, the Stern Review noted that the wrongful use of the attrition rate instead of the conviction rate "may well have discouraged some victims from reporting." Id.

*Professor Richard Klein astutely asked: ". . . have the reforms that were designed to counter . . . inequities [in rape law] gone too far? Have the Due Process rights that must be afforded any individual charged with a crime been sacrificed when the charge is rape? Has the pendulum swung so far as to create a system of policies and laws that are fundamentally unfair?" An Analysis of Thirty-Five Years of Rape Reform: A Frustrating Search for Fundamental Fairness, 41 Akron L.Rev. 981, 1052 (2008).  Professor Klein gives a clue about the approach that should be employed to answer this question: "To fully answer that question, one must look at the reforms in their totality. It might well be the case that any single legislative reform was justifiable, but have the odds against the defendant become inappropriate and unjust in a criminal justice system that champions its unique place in the world because of its protections for those charged with crime?"  Id. at 1053. Professor Klein singles out several examples where the pendulum has swung too far, including the fact that in some jurisdictions, an accused can be convicted even if he had a reasonable belief that the woman consented, and even if there was no indication whatsoever of the lack of desire for the intercourse. Id. at 1053. By any measure, to imprison a man for many years because he was not a mind reader is morally grotesque.

**It is simply not possible to insure that all rapists are punished, short of treating every accusation as true, which is absurd. Of course, that does not stop many prosecutors from rolling the dice with an innocent person's life in cases of disputed evidence, often playing on race and gender stereotypes in the hope of "getting lucky" with a conviction, or more likely, a guilty plea to a lesser charge. Justice in rape cases should not resemble the Tony Awards where the better actor "wins."  See, for example,