Friday, March 8, 2013

Hubris and misguided advocacy: Harvard gender studies professor Kimberly Theidon trivializes the victimization of the wrongly accused

Beneath a long and tedious Harvard Crimson article called Sexual Assault at Harvard, Harvard Professor Kimberly Theidon, who teaches a course called "Gender in Conflict," writes the following:

". . . the rates of false accusation pale — indeed, pale to the point of transparency! — when compared to the rates of rape and other forms of sexual violence that do take place."

Prof. Theidon seems to think it is necessary to insist that wrongful claims are a myth in order to underscore the problem of rape. Our response:
Your attempt to trivialize the victimization of the wrongly accused by blithely insisting there aren't enough of them to worry about is both troubling and hurtful. Your insistence on playing gender "Oppression Olympics" is not helpful. We can support rape victims without pretending the wrongly accused are a myth. We need to move beyond the '70s, Ms. Theidon. Here's the reality: FBI statistics show that false reporting of sexual assault is multiple times greater than the average for all crimes. (The Politics of Sexuality, Barry M. Dank, Editor in Chief, Vol. 3 at 36, n. 8.) While the percentage of unfounded claims for all crimes has been traditionally set at two percent, a scholarly law review article debunked the canard that only two percent of all rape claims are false by tracing this number to its baseless source. (E. Greer, The truth behind legal dominance feminism’s “two percent false rape claim” figure, 33 Loyola L.Rev. 947 (2000).) Moreover, the last time the FBI reported on "unfounded" rape claims (meaning the claim was false or the elements of the crime could not be met) was 1996 (it never reported on "false" claims per se), and the FBI found that unfounded rape claims were were 15% of all claims -- that's 7-1/2 times the rate for all crimes as a whole. (See Dr. Bruce Gross,False Rape Allegations: An Assault on Justice, Annals of the American Psychotherapy Associaton, Dec. 22, 2008.)

That 15% figure, as it turns out, is in line with Dr. David Lisak's landmark research for his 2010 Violence Against Women study where he found that 14.2% of all claims that could be classified one way or the other -- either as false claims, or that were referred for prosecution or disciplinary action -- were, in fact, false claims. Please understand that this figure represents only the claims we know are false. The majority of all rape claims can't be classified as either rape or non-rape, much less false claims -- so the exact percentage of false claims is unknowable, but we know the actual percentage of false claims is no less than 14.2% and almost certainly higher, and possibly much higher (among other things, it is reasonably certain that a portion of the claims referred for prosecution or disciplinary action are false, based on what we've learned from the Innocence Project and the National Registry of Exonerations). Do you know how many wrongly accused that works out to? Yet you cavalierly dismiss them because, presumably, they don't fit your preferred narrative.

A leading feminist legal scholar has acknowledged this irrefutable fact: ". . . 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). Another legal scholar has explained that the politicization of rape renders it impossible to discern the extent of underreporting. See, J. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 N.E.J. on Crim. & Civ. Con. 37, 49-51 (2009).

All of us would do well to battle the social evil of rape and to support the wrongly accused. It's not a zero sum game, Ms. Theidon. The Community of the Wrongly Accused website is replete the true life horror stories, ripped from the headlines, of these "rape myths" -- the men and boys who aren't even worthy of discussion according to Ms. Theidon. The 21st Century academy has no place for this sort of angry, gender get-evenism.

My blog, Community of the Wrongly Accused, is the world's leading site that gives voice to the wrongly accused. We have received kudos from the Innocence Project; just in the past couple of weeks, the National Registry of Exonerations, the BBC and the CBC have sought our assistance. We've received notes from young men telling us our site was critical in their decisions not to take their own lives. And, yes, we advocate for women with zeal equal to our advocacy for men. We recently spoke out strongly in defense of Sara Reedy -- she's the woman who was wrongly accused of making a false rape claim.

Many rape victims support our work at COTWA because they know that every rape lie diminishes the integrity of every rape victim, and every wrongful conviction undermines public confidence in the way rape is handled and makes juries more reluctant to convict even those deserving of conviction. Instead of pretending this social evil isn't a problem at all, you should be working to deter false accusations and wrongful convictions, not just for the sake of the victims of false claims, but for the sake of rape victims.

The community of the wrongly accused does not appreciate Ms. Theidon's self-satisfied dismissal of their victimization.

Prof. Theidon couldn't let it rest. She starts off well, by noting that she "appreciates your website and commitment." Then she veers off into dark territory:
. . . [she] insists on examining men as victims of SV and GBV and not only perpetrators. Here I refer you to the documentary "Gender against Men," in addition to Chris Dolan's many publications. Does that not seem more statistically significant — men as victims of these forms of violence — than your skewed take on the innocence project?
We responded by asking, among other things, "if it is proper to trivialize the victimization of one group just because the victimization of another group might be 'more statistically significant'?"

(Prof. Theidon would do well to read a primer on the critical issues the wrongly accused face:

Then, someone named William Ryan left a comment that is among the most startling and least informed, to put it charitably, we've seen in a while, and that's saying a lot. Here is his/her breathtaking cornucopia of distortions parroting debunked mantras:
First off, legally schools ought to be applying this standard anyways: So your legal arguments don't actually apply.

Second, you don't go to jail, you get kicked out of school for six months. This is a pretty small harm in comparison to the damage visited on the victim by the rape and by being forced to be around their attacker if he is not forced to leave school. We already have this standard in civil court -- at the point where you can be fined millions of dollars when proven guilty under this standard, I fail to see how six months off from school is a so much worse harm.

Third, it's especially necessary in rape cases to counteract the fact that otherwise the victim's testimonty is automatically discounted hugely relative to the assailants -- a fact which, given the relatively few onlookers of most rape cases, makes it especially hard to cnvict without it.

Lets be real, if you aren't doing something you shoud not be doing, this won't apply to you. Women almost never falsely report -- most people put these instances at less than 2%, and in those circumstances it's very likely you won't be convicted because if you didn't rape them then there should be no evidence that you raped them. You're letting a problem which doesn't exist stop you from dealing with a problem which 1/4 of women in college are incredibly hurt by.
COTWA's response:
Your comment is replete with with distortions, and it is impossible to know where best to begin. Very briefly:

On the first assertion, that schools SHOULD use the "preponderance of the evidence" standard, you would do well to read FIRE's discussions of this standard (it has written extensively about it) as well as the recent report of The American Association of University Professors (AAUP) which states, inter alia: "The AAUP advocates the continued use of “clear and convincing evidence” in both student and faculty discipline cases as a necessary safeguard of due process and shared governance."

Your assertion that the punishment for an adjudication of sexual assault on campus is "pretty small harm" is woefully unschooled. "The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” said Prof. Cynthia Bowman of Cornell. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont of Stanford said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.” Even attorney Brett Sokolow, probably the most prominent victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

As for your unfortunate reliance on the long-ago debunked two percent figure, see here: [we referred him/her to our comment to Prof. Theidon, reposted above].

You assert that the lower standard of proof "preponderance of the evidence" is necessary because the absence of corroborating evidence makes it it especially hard to convict without it. You have it backwards. The absence of corroborating evidence to establish guilt or innocence in "he said/she said" cases is scarcely a valid justification for making it easier to punish the presumptively innocent. Rather, it underscores the necessity of being ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

"Lets [sic] be real," you posit. "If you aren't doing something you shoud [sic] not be doing, this won't apply to you." 
You would do well to spend a few weeks reading through the true life horror stories, ripped from the recent headlines, at Community of the Wrongly Accused to appreciate how terribly unschooled you are on these issues.