Joel Jacobsen

The ever-present (for lawyers) danger of thinking that legal categories have real-world significance (see post 392) is shown again by Emily Bazelon and Rachael Larimore's Slate article about false accusations of rape.  The author's never get around to explaining what makes an accusation "false," so I'll do it for them.

Many states still require the prosecution to prove "lack of consent" beyond a reasonable doubt.  That's the usual lawyer's way of phrasing it, and the phrase shows up in the article.  But the phrase disguises its own meaning.  What it really means is that violently coerced sex is presumptively lawful.

In jurisdictions that require the prosecution to prove lack of consent, the law presumes the lawfulness of any sexual act, no matter how violent, and even if accomplished with a gun or knife.  Men are allowed to force women (and other men) to have sex - unless a prosecutor can prove a negative beyond a reasonable doubt many months or years later.

In practical terms this means that, with limited exceptions, rape is lawful in America.  The numbers prove it.  The National Violence Against Women Survey, sponsored by the Centers for Disease Control,  found that "[o]nly 19.1 percent of the women and 12.9 percent of the men who were raped since their 18th birthday said their rape was reported to the police." 

Of that number, less than half, and according to one study as few as 19%, are referred for prosecution.  Of that number, only a certain percentage - between 46% and 72%, depending on the study - is actually prosecuted.  (These last figures are taken from this article by Rebecca Campbell et al.) 

All told, Campbell et al. summarize, "only 14% or 18% of all reported sexual assaults are prosecuted."  If we use only the higher numbers, that's 18% of 19.1%, which works out to 3.4%.

Given these numbers, it's entirely accurate to say that 29 out of 30 times, violently coerced sex is non-prosecutable.  And what's the difference between that and non-criminal? 

Words.  That's the only difference.

The "false" claims of rape Bazelon and Larimore are writing about include 96.6% of all rapes plus the actual incidents when a person, acting out of spite or neurotically seeking attention, fabricates an entire encounter. 

Of course false accusations occur - people are capable of anything.  But by the same token, false recantations occur, and I think it's safe to say they are far, far more common.  The legal system goes out of its way to provide reasons for falsely recanting.  Judge Peter Paul Olszewski Jr., the Luzerne County buddy of gangsters and gangster judges (see post 390), ordered a victim to undergo an involuntary psychiatric examination.  What to guess what crime was (allegedly) committed against her?

Now try to imagine him ordering an involuntary psychiatric examination of a man whose memory was spotty after he was beaten outside a bar.  Can't do it, can you?

I've long thought that rape crisis centers are tort suits waiting to happen.  If a counselor recommends that a victim of rape report it to police, or cooperate with a prosecutor, I think the counselor could be vulnerable for intentional infliction of emotional distress. 

Three of the four elements could hardly be contested: a counselor who encourages participation in the criminal justice system is likely causing what clinicians call "secondary victimization," and no counselor with any experience could fail to foresee that result.

Here's the abstract of one study of "predominantly low-income, African American female veterans and reservists."  (Black, poor, female - three strikes.)  About two-thirds of the rapes occurred in civilian life.  The researchers found:

Most victims who sought help from the legal or medical systems (military or civilian) reported that this contact made them feel guilty, depressed, anxious, distrustful of others, and reluctant to seek further help. Secondary victimization was significantly positively correlated with posttraumatic stress symptomatology.

We can only assume that the 19.1% of victims who report their victimization to authorities are either iron-willed and prepared to endure a war of attrition (like the woman Judge Olszewski was persecuting - the case against her [alleged] attacker has dragged on for four years already), or else they don't understand what they're subjecting themselves to. 

Falsely recanting is be the only way to stop the ordeal.  It's precisely equivalent to a torture victim falsely confessing.

An objection can be raised to that 19.1% figure.  That's 19.1% of women (and 12.9 of men) who say they were raped.  But we have only their word for it.  How can we know they're telling the truth?

The obvious rejoinder is: what would be the point of lying to the researchers conducting the survey?  What advantage would it confer on the liar?  Besides, doesn't it seem psychologically more plausible that people would conceal pain and humiliation than that they would boast of it? 

(In fact, researchers consistently find that adults underreport their experience of sexual abuse in childhood, as can be determined by comparing their recollections to contemporary protective services records.)

The less obvious but, I think, more pertinent rejoinder is: That's the point.  Of people who believe themselves to be the victim of one particular serious violent crime, more than 80% conclude they're better off not reporting it.  In terms of their own psychological health, almost certainly that conclusion is justified.

One reason it's justified is the high likelihood that the legal system will conclude that the man was allowed to use violence to force her to have sex, because she "consented," in the only-in-Law-World sense that the prosecution was unable to prove beyond a reasonable doubt that it didn't happen like that.  If the prosecution can't prove that beyond a reasonable doubt, her claim of rape was "false" whether or not it accurately reflected reality. Reality is irrelevant.

When Bazelon and Larimore talk about false claims, they're talking about a legal label and not the behavior of human beings.  Unfortunately, they don't seem to have recognized the difference.