Monday, November 11, 2013

Rape accusers have the right to be taken seriously, not to be "believed"

Advocates for sexual assault victims, gender academicians, and feminist writers often insist that women are entitled to be believed when they cry rape, but that women aren't believed because of the prevalence of popular "rape myths," including so-called "victim blaming."  According to the meme, women, cognizant of these "rape myths," know they won't be believed, and as a result usually don't report that they've been raped. The hurdles to obtaining justice can be removed if only the public, police, judges and juries would "believe the victim."

Entire books could be written about the factual inaccuracies underling this meme. For example, the fact that fear of not being believed is no longer a major reason for not reporting (see the testimony of Scott Berkowitz, the founder of RAINN, on this point here). Further, it is possible to believe the accuser while still engaging in so-called "victim blaming" (the hanging trees in the Old South surely were filled with young men accused of raping daughters even though the daughters were "victim blamed" for putting themselves in harm's way).

But there is a more fundamental problem with this meme that necessitates that all persons of good-will insist it be scrapped: the "right to be believed" does not comport with fundamental notions of fairness or our most cherished due process rights.

A woman who cries rape has the right to be taken seriously; to be treated with respect; and to be supported if she avers that she is suffering trauma or other effects of sexual assault. A woman who cries rape does not have the right to be "believed."

The insistence on believing the "victim" assumes that an accuser is a "victim" and turns on its head the long-settled consensus of civilized people that it is far more important to protect the innocent than to convict the guilty. This sentiment was most famously articulated by the celebrated English jurist William Blackstone, but its roots extend back at least to the Book of Genesis, when God was deciding what to do about the evil in Sodom and Gomorrah.

If it isn't obvious to objective third parties whether a rape claim is valid, that's rarely because the claim is being viewed through a lens of misogyny. Rape is unlike other serious offenses in that its only physical evidence is often the same as the evidence resulting from an act of making love. The latter occurs on a routine basis every day around the world in numbers so enormous it can't be quantified. Most rape claims are of the acquaintance variety where an act of love-making is often a plausible alternative to a felonious violation. Law enforcement personnel often are left with murky "he said-she said" cases that don't lend themselves to quick and tidy denouements. The absence of corroborating evidence to establish guilt or innocence in "he said/she said" rape cases underscores the necessity of being ever more vigilant of the possibility of punishing an innocent person for something he did not do.

This blog, and our predecessor blog, are replete with examples of cases where women who cried rape were believed -- wrongly as it turned out, and often with seriously negative consequences to the victim of the false claim. The problem is not that we don't believe the "victim," it's that we too readily rush to judgment and believe the accuser, often with horrific consequences.

Sexual assault victims' advocates do victims no favors by touting an entitlement to be believed. By insisting that every claim of sexual assault should be "believed," these advocates are giving victims of sexual assault dangerously unrealistic expectations that can never be met. When accusers realize the system won't deliver -- because it can't deliver -- what they've been told they deserve, they assume a misogynistic system is coddling rapists. That assumption, of course, is as puerile as it is wrong. Worse, it is likely putting off women from reporting rape. When we bombard young women with the message that rape victims can't get justice because they aren't believed, is it any wonder they don't bother to report?

It is a tenet of the Community of the Wrongly Accused that every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. The latter concern too often is absent from the public discourse. What we need are more adult voices grappling with these issues in sincere, reasonable ways, not simple-minded incantations designed to foment a public outcry to get tough on rapists. Mark A Godsey of the Innocence Project recently said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

That there is no entitlement to be believed should not be at all controversial. What is astounding is that this meme has been repeated so frequently without serious challenge.