Rape isn't the only crime that pits one person's word against another's

It’s often stated that rape is unusual, and hard to convict, because it so often involves “he said/she said” testimony. One person’s word against another: he says it was consensual, she says it was rape.

But I don’t think that’s all that unique.

Imagine that Bob comes to trial for being a drug dealer. Officer Jane testifies that Bob offered to sell her some coke. Bob says that’s a lie, and that the coke on him when Jane arrested him was actually planted by Jane.

Why is it that no one would call this case “he said/she said,” as rape cases are so often called?

My example is not unrealistic; there’s been at least one high-profile case of dozens of innocent people (nearly all black, surprise surprise) being convicted this way.

So why doesn’t anyone say that drug possession is a unique crime because a person can go be sent to prison for drug possession, based solely on another person’s word? Why does no one say “drug dealing is a serious charge; it is easy to make, difficult to defend”? Why does no one fret about the damage to the principle of “innocent until proven guilty” when someone goes to prison for selling drugs based on someone else’s word?

I don’t think there’s a principled reason that the process of a jury hearing testimony and weighing credibility – which is routinely accepted in thousands of non-rape cases – becomes so suspicious and deplorable when the crime is rape. Rather, I think the difference is just evidence that our culture trusts cops but doesn’t trust women.

Now, as it happens, I’m not totally comfortable with sending someone to prison based on assessment of credibility, because “credibility” is something that is so easily given or withheld based on factors that should be irrelevant (race, gender, class, looks, etc). But it’s still appalling that this concern is constantly brought up in cases involving rape, but rarely or never in cases involving other crimes. If “she said/she said” is problematic, then it should be problematic in all cases, not just in rape cases.

This thread is for feminist and pro-feminist posters only. If you don’t think you’d fit into Amp’s conception of “feminist and pro-feminist,” and you wish to make a comment, you may do so at the Cross-post on Creative Destruction.

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62 Responses to Rape isn't the only crime that pits one person's word against another's

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  6. 6
    Kim (basement variety!) says:

    This post really speaks to why I mentioned in the Louise Nicholas thread that it is important to remember that a not guilty verdict is not a testimony of innocence.

    It’s sad but true that word v. word evidence is delicate business, but as you pointed out so accurately, the sort of caution in such cases should not be exclusive to certain types of cases, and neglected in others.

    It’s very frustrating as a woman to see this, and then to read buffoonish posts such as the one by ‘On the Level’ in the I Believe Louise threads, where police are given blanket benefit of the doubt, and women are simply being over dramatic about rape.

  7. 7
    Tony says:

    Biases aside, I think the example you give might be legally different. If the defendant admits to having the drugs but claims they were planted, I think that’s an “affirmative defense” that transfers the burden of proof to the defendant (though the defendant only has to prove the AD by preponderance of the evidence, not beyond a resaonable doubt).

    I think a better analogy would be to a suit for breach of a verbal contract where defendant claims s/he never said ‘yes’. In rape and contract cases, the burden of proof regarding consent falls on the plaintiff/prosecutor.

  8. 8
    Mike says:

    Amp says: ‘If “she said/she said” is problematic, then it should be problematic in all cases, not just in rape cases.’

    It is problematic in all cases. Your analogy isn’t very good. A better one would be if Joe says that he saw Bob with a bag of coke, and Bob denies it. Clearly Joes testimony alone is not sufficient.

  9. 9
    Ampersand says:

    First of all, Mike, do you consider yourself a feminist? If not, please continue the discussion at Creative Destruction, not here.

    Second of all, WHY do you think my analogy isn’t very good? In my analogy, it’s one person’s word against another’s. Why do you think that isn’t a parallel situation? Try making an argument, rather than just stating your unsupported opinion.

  10. 10
    Sarah says:

    Ampersand, he does make a good point. In the case you give there is evidence to support the word of the officer (and generally one would assume that an officer has little to gain out of a false arrest/conviction). However in rape cases the evidence that would give a police officer a conviction in your example (drugs) would not in a rape case (seminal fluid?). Also where I live most police stings operate with 2 members since a single officer’s word will not be enough, so if you and your best friend were in the room getting raped then you might have a better case.

    Rape is a problem, however its also devestating for the accused (note not rapist) and does have a significant benefit to reporting (instant sympathy, support, get out of wr0ng doings etc). I may be a femenist however I would agree that the low conviction rate is indeed correct for cases barring some other form of evidence (violence).

  11. 11
    Beste says:

    Amp,

    There is no post at Creative Destructioon to cross post at.

  12. 12
    norbizness says:

    I would tend to think that it’s the “seeing is believing,” in that in a drug case there is some physical evidence (the drugs themselves), often seized by a law enforcement official, where the chain of evidence is giving. If a cop tries to search somebody’s car based on an anonymous tip that the car’s carrying drugs, and none are found, the person isn’t going to generally be arrested, indicted, or convicted anyway.

    However, I think that if you take the reverse tack, the place where the analogy works is better: that physical evidence pointing towards guilt is more commonly ignored in rape cases, because of the inherent biases that jurors have (e.g. turning anything into consent). That’s why jury selection is probably the most important step in the process.

  13. 13
    norbizness says:

    Oh, and I definitely attribute Tulia to racism, a mania based on the insane Drug War, and perhaps most importantly, the fact that the person making the accusations was an undercover drug agent. If a female cop filed a rape charge against somebody, the same excuses for the perpetrator would be made, but those excuses would perhaps have a harder time gaining traction because of the built in pro-law enforcement bias.

  14. 14
    catswym says:

    >>Now, as it happens, I’m not totally comfortable with sending someone to prison based on assessment of credibility, because “credibility” is something that is so easily given or withheld based on factors that should be irrelevant (race, gender, class, looks, etc).

    i completely agree with you here.

    i served on a jury a few years ago where a young black man had been arrested because a cop saw him give “something” to someone else who (then) had drugs on his possession. this occured in a “high drug” area, according to the prosecution.

    the way this case was presented was: do you believe the white officer who has seen “this sort of thing” a thousand times, or do you believe the young black defendent who obviously lives in a “bad part of town”?

    what amazed me most was that a majority of the jury members thought we should actually convict the defendent because, as one juror put it, “you can’t trust someone like him–just look at him.”

    i think, in fact, that it comes down to who do you believe in a LOT of cases.

  15. 15
    Barbara says:

    “Rather, I think the difference is just evidence that our culture trusts cops but doesn’t trust women.”

    Assuredly you are right, but the lesson to be taken is that juries should be more skeptical of police officers.

    There are cases where, literally, the police are simply making it up as they did in Tulia. This has also happened in Philadelphia. I don’t know why this one has slipped out of public consciousness as it was probably worse than Tulia. Perhaps it was because the prosecutor herself did the right thing in investigating, unlike in Tulia where the prosecutor had to be forced to do anything at all. But over the course of five years many people were convicted for drug offenses based on the perjured testimony of Philadelphia police officers, resulting in the overturning of those convictions and many others that were probably legitimate but based on the testimony of the same police officers, and some of the police officers were themselves prosecuted.

    But those cases involve gross and reprehensible miscarriages of justice and the fact that they occurred at all should lead juries to be more skeptical of all sorts of eyewitness evidence that is backed up by equivocal or even no physical evidence. But no, it isn’t fair that women in particular should be disbelieved.

  16. 16
    Les says:

    Theft might be a good analogy. I say he stole my stereo. He says I gave it to him.

    I worry about efforts to move away from the “innocent until proven guilty” model. Unfortunately, there is a dark and deeply racist history of false rape accusation in America, which formed the justification for many lynchings. Secondly, if we do it one area, it will quickly spread to the more “important” areas of terrorism and kiddie porn and then generally spread to the system at large, in which, because we live in a patriarchy, it will still be difficult to convict people of rape, but much easier to convict them of property crimes and drug crimes.

    I think your point, though, is not to change the burden of proof for rape prosecutions, but rather point out that it is exactly the same as for any other crime, although it’s treated as if it is much higher. Conviction rates for rape are shockingly low.

  17. 17
    RonF says:

    I clicked on the cross-post link and I got “Sorry, no posts met your criteria.”

    “Rather, I think the difference is just evidence that our culture trusts cops but doesn’t trust women.”

    Interesting statement, given that in your very example the person whose word was taken to gain a conviction was a woman. How did that hypothetical case result in a conviction, then?

    Also, in your example, there’s physical evidence; the cocaine, and it’s directly pertinent to the crime. Given that your example is hypothetical, we don’t know what other evidence there might be. The accused’s fingerprints on the package? Prior crimes? How often are such convictions gained where it really is just one person’s word against the other with no other evidence present? What are the percentages?

    All remarks about this case have to be preceded with an acknowledgement that we don’t know all the facts yet, and that there are things that could come out that would justify a rape conviction. But from what’s presented so far, the main evidence that a rape occurred (as opposed to a physical assault) is this woman’s word. The fact that you or I may very well believe her anyway doesn’t mean that there’s sufficient evidence to judge that proof of rape has been established beyond a reasonable doubt (which, IIRC, is the legal standard that juries are supposed to use).

    Say you had a brother who was accused on such a basis. Say further that at the end of the trial it turned out (I reiterate that we don’t know if the following scenario is true or not yet) that there is no DNA evidence that could be tied to him and no witnesses other than the complainant that he ever laid a hand on her. Would you think it would be just to convict him of rape?

    Second scenario. Add to the above that there is plain evidence that the woman was beaten, and that there were witnesses that your brother was alone with her at some point. But there’s still no physical evidence that your brother had intercourse with the woman. Would you think it would be just to convict him of rape then?

  18. 18
    RonF says:

    This post really speaks to why I mentioned in the Louise Nicholas thread that it is important to remember that a not guilty verdict is not a testimony of innocence.

    Right on the money, Kim.

    As I’ve stated elsewhere, I’m involved in the Boy Scouts of America. If a Scouter is accused of child abuse, it is National Council policy that you are to be immediately called into your local Council office, relieved of your registration card, and instructed to stay away from Scouts and Scouting events. Pertinent to your comment is that if the charges are dropped, or if you are tried and found not guilty, it is National policy that it is up to the local Council to decide whether or not you are reinstated. They have every right to continue to blacklist you from Scouting, even though you have never been charged or convicted of a thing.

    The fact that someone has been tried and found “Not guilty” does not mean that they are innocent of a crime. It is also true that the fact that someone is guilty of a crime does not mean that it is legal to convict them of one.

  19. 19
    Fred Vincy says:

    I think the difference between rape and other crimes is that, at least at a certain level of generality, the conduct charged (i.e., sexual intercourse) is consistent with both completely legal conduct and with one of the most serious crimes in our criminal justice system. Obviously, in many cases, the conduct charged is so obviously violent or coercive that it is not consistent with consensual sex, but in a very large number of cases the difference between an innocent act and a serious crime is entirely in the minds of two people — did the victim consent and defendant reasonably believe the victim consented. Deciding in retrospect what two people were really thinking is a task that entails a substantial risk of error, and the result of error is enormous harm, in that a rapist goes free or an innocent person goes to jail.

    That is not to say that there aren’t serious problems in other areas of the law, but that those relating to rape may be more intractable. If we are concerned that police are framing drug dealers, we can impose police (and prosecutor) ethics training, increase penalties for perjury, allocate greater resources for defense counsel, etc. There is undoubtedly also room for improvement in rape prosecution (DNA evidence and rape shield rules both seem to have helped), but barring technological advances we may find that it is difficult to simulatanously increase the percentage of guilty defendants convicted and of innocent defendants acquitted.

  20. One important difference between he-said-she-said in rape and other criminal situations, and perhaps this is obvious, is that the subtext of the he-said-she-said dynamic in rape cases is inevitably a debate (okay, sometimes it is maybe just a shouting match) about underlying cultural values. In other words, a great deal more is at stake than whether or not someone is guilty of the crime of which he has been accused. I am not claiming that there are no underlying cultural values at stake in drug crimes, but I would argue…I think…that they are of a different order than those that are at stake in rape cases.

    If you want to read what I think is a truly chilling example of what I am talking about, check out this article from yesterday’s The New York Times. A brief quote from the article about the defendant’s testimony:

    Mr. Zuma, who turns 64 this week, said his accuser, a 31-year-old anti-AIDS advocate, had signaled a desire to have sex with him by wearing a knee-length skirt to his house and sitting with legs crossed, revealing her thigh.

    Indeed, he said, he was actually obligated to have sex. His accuser was aroused, he said, and “in the Zulu culture, you cannot just leave a woman if she is ready.” To deny her sex, he said, would have been tantamount to rape.

    If you can’t read the whole article because you’re not a subscriber, I have posted some more quotes and what I hope are coherent comments on my blog here.

  21. 21
    Barbara says:

    Fred Vincy is on the money. The “rape” difference is that the he said/she said distinction goes to whether there was any crime at all. There are cases (I’ve posted elsewhere, I won’t again) where both the accused and the accuser have essentially the same version of the events — they don’t disagree about what happened, they disagree about how those events should be interpreted.

    DNA evidence is not an essential element of sexual assault. I don’t know what type of DNA evidence was recovered from the victim, but if, for instance, penetration occurred with an object or the man’s fingers or mouth rather than through intercourse, that is still sexual assault (I looked at North Carolina law — in any event it’s probably not first degree rape because there was no weapon). It’s just harder to prove. There is also a chance to charge for aggravated assault without making allegations of rape.

    Presumably the prosecutor will tally up his evidence and figure out what charges might stick, but I don’t hold out a lot of hope for justice in this case.

  22. 22
    Ampersand says:

    ***** The link to the Creative Destruction post has now been fixed. Sorry about that, folks. *****

    * * *

    I really don’t find the “but there was supporting evidence!” distinction Sarah and others are trying to draw persuasive. In the case of rape, there is physical evidence that sex took place. But in both cases, the physical evidence doesn’t prove anything, in and of itself, and the trial comes down to one person’s word against another. And this is widely held to be objectionable only in the case of rape.

    Sarah wrote:

    In the case you give there is evidence to support the word of the officer (and generally one would assume that an officer has little to gain out of a false arrest/conviction).

    There is evidence to support the word of the rape accuser, too. But what that evidence means, in both cases, depends on whose word one accepts.

    And it’s obvious that cops do have something to gain with a false arrest and conviction; they gain prestige, praise at work, and a greater chance at promotions. Plus, in many areas, cops can be put under tremendous pressure to keep their arrest rates up.

    Also where I live most police stings operate with 2 members since a single officer’s word will not be enough….

    First of all, it’s clear from the Tulsa and other examples that this isn’t the case nationwide.

    Secondly, make the example a pack-rape, then. The alleged victim claims that Joe and Bob raped her; Joe and Bob swear it was consensual. The alleged drug possessor says two officers planted the drugs on him; the officers swear it was an honest arrest.

    In all these cases, the bottom line is that the physical evidence is consistent with either a guilty or a not guilty verdict, and so the decision has to be made based only on deciding whose word is more credible. But this is widely held to be unacceptable only in rape cases. With all due respect, I don’t think your arguments here have successfully removed this bottom line.

  23. 23
    Sarah says:

    Indeed, in his word vs hers (or indeed hers vs his, hers vs hers and his vs his) with no evidence that cannot be substantiated (ie: proof of sexual contact is not equal to rape) then the case should be dismissed as in my opinion it cannot be proved beyond a reasonable doubt. The UK is currently also looking at determining if intoxication (not comatose levels just drunk) should make consensual sex rape (ie: you wake up and go wtf?), again this seems wrong consent is consent… and how drunk is too drunk?

    Its a hard case to prove however just attempting to up convictions will likely make a lot of innocent people suffer from an unjust process.

  24. 24
    RonF says:

    … the trial comes down to one person’s word against another. And this is widely held to be objectionable only in the case of rape.

    While you have quoted a few examples where an authority figure’s word (e.g., a cop) has been taken over an accused person’s word, I don’t see where you have established that this is “widespread”. There are lots of trials in this country. Is there any research into how many of them have boiled down to one person’s word against another, and what the results have been? There are also arrests that don’t go to trial that we never hear about that may well include a lot of instances where it would have been a cop’s word against an arrestee. Are there any statistics on those? I’d have to see some research on this to accept your premise as having demonstrated that “word vs. word” is only viewed as objectionable in rape cases.

    I also would like to see examples of where an accuser’s word has been taken over the accused absent specific evidence against the accused when neither one is an authority figure. A college student accusing another college student of rape is not analagous to a cop producing a packet of drugs and accusing a street person of drug possession. A Duke lacrosse is not an authority figure, and unlike the cop is the defendant, not the plaintiff, in this action.

  25. 25
    Ampersand says:

    Sarah, do you also feel that if a drug case comes down to to hers versus his and his (i.e., the suspect says the cops planted the physical evidence), “then the case should be dismissed… because it cannot be proved beyond a reasonable doubt”?

    As for drinking and rape, there’s a difference between being too drunk to consent, and drunken consent. The former is rape, the latter is not. As usual, if men would hold themselves to an “enthusiastic participation” standard, this problem would go away.

  26. 26
    Barbara says:

    Well, Amp there are those of us who think that the standard should be higher in non-rape cases, for reasons that are quite evident in the Tulia case, regardless of what that means in cases of rape. Note that the “credibility” issue among these cases has one consistency: men in power are believed and women in general and men without power are not. But there are also rape cases in which “nice” women are believed over the testimony of “not nice” men even where those men have alibis, in some cases multiple disinterested accounts of their whereabouts.

    So this isn’t necessarily an issue of women “in general” being disbelieved so much as it is a tabulation or expression of a cultural pecking order in which the speaker’s relative power and privilege in society is accepted as persuasive evidence of greater credibility than the other speaker — hence, police officers are more credible than accused drug dealers with past offenses (not always but often admissible); elite white male athletes are more credible than black female exotic dancers; whites in general are more credible than blacks (assuming no glaring sociological disparity — like a white felon versus a highly regarded black physician), and so on. Thus, a woman’s claim of rape is most likely to be believed where the assailant is way beneath her socially — the jury can accept that the woman would never willingly have had sex with such a person.

  27. 27
    RonF says:

    Do you think there’s space between “I think this guy did this” and “It has been established beyond reasonable doubt that this guy did this”? That’s where a juror could believe the woman is telling the truth but still vote “not guilty”. By no means do I say that anyone has been proven innocent – but that’s not the standard for deciding innocence or guilt in American law.

    Do you think that this should change in the case of rape charges?

  28. 28
    Kaethe says:

    No, rape isn’t unique. Isn’t assault the closest parallel crime? The problem with the drug analogy you cited, to me, is the police involvement.

    For some reason I’ve noticed a lot of comments on this case focused exclusively on the rape and ignoring the assault. If three young men who had been drinking just decided to beat up someone, would any of these questions be asked?

  29. 29
    RonF says:

    Not these questions, Kaethe, but some others would:

    Will anyone other than the accuser testify that they saw anyone assault this woman?
    Will anyone testify that these three men were alone with this woman?
    Is there any forensic evidence that ties three particular men out of all the attendees at that party as having any contact with this woman?
    Is there any evidence that the assault that this woman apparently underwent (based on her physical condition) occurred at the party and/or in the house?

    I’m not offering an opinion about what the answers are. I’m saying that questions would still be asked to determine what happened where, and whether or not it can be proven that it involved particular people.

  30. 30
    Molly says:

    Well, here’s another case.

    Say someone goes to the police station, claiming a brand-new, $500 necklace has been stolen from her. The police investigate the person that she says is responsible, and discovers the necklace on her person.

    “But,” says the woman who has apparently been caught red-handed, “I didn’t steal it! She gave it to me as a gift!”

    Gift-giving is well within the bounds of reasonable conduct. But you don’t see anyone saying that theft is clearly wrongly prosecuted (even though false theft allegations run at a higher rate than false rape allegations), and you don’t see anyone saying that if you ever give gifts to anyone, clearly no one could steal from you. And hey, if you’re really altruistic and give gifts to a whole lot of people on a regular basis, that means you deserve to be stolen from and shouldn’t complain if it happens.

    If we ever saw those arguments in a trial regarding stolen property, I’d believe rape trials weren’t a special, misogynistic case. But I’ve never heard of anything remotely like that happening — have you?

  31. 31
    Ampersand says:

    Do you think there’s space between “I think this guy did this” and “It has been established beyond reasonable doubt that this guy did this”? That’s where a juror could believe the woman is telling the truth but still vote “not guilty”. By no means do I say that anyone has been proven innocent – but that’s not the standard for deciding innocence or guilt in American law.

    Do you think that this should change in the case of rape charges?

    Ron, please remember that this is a feminist-only thread. It has not been my impression that you’re a feminist. The alternative thread on Creative Destruction is now available.

    To answer your question, as I think I’ve already said in the “innocent until proven guilty” post, I see a distinction between “I think he’s guilty” and “I think he’s been proved guilty beyond any reasonable doubt.” So I could certainly imagine a case in which a juror could legitimately believe that a defendant is guilty and yet vote for not guilty. And no, I don’t advocate getting rid of “innocent until proved guilty” for rape cases.

  32. 32
    Barbara says:

    Molly, yes, it has happened. It’s not usually necessary to treat it as a criminal incident because civil redress is possible. For this reason it is more important that crimes against person be prosecuted than crimes against property.

    If you watch daytime court dramas (okay, I admit it, I do sometimes) you will see a significant number of disputes over whether payments were intended to be gifts or loans (that are not being paid back, hence the suit). Context is everything: if you really have given a lot of gifts in the past to that person it might indeed be difficult to prove that a particular conveyance was theft.

  33. 33
    Ampersand says:

    Molly, I was wondering about cases like that when I wrote this post. And you’re right, that’s a good parallel.

    The reason I went with drugs rather than theft as an example is that I knew of real-life “one person’s word against another’s” cases involving drugs, but I don’t know if there’s ever been a real theft case that hinged on the “it was a gift/no it was not” dispute.

    However, if it’s true that theft defendants don’t routinely try the “it was a gift story,” that in and of itself makes an interesting contrast with rape.

  34. 34
    acm says:

    I would tend to think that it’s the “seeing is believing,” in that in a drug case there is some physical evidence (the drugs themselves), often seized by a law enforcement official, where the chain of evidence is giving.

    I think that the parallel holds. nobody can argue that the person didn’t *have* drugs, merely whether or not he was *dealing* them.

    nobody can argue that the woman didn’t *have rough sex* (doctor’s exams are pretty good evidence, or there could be DNA evidence implicating the rapist), but they can disagree about whether or not *she wanted/accepted* it.

    in both cases, there is physical evidence, but only one person’s testimony about whether a criminal act was committed. and, presumably, the defendant’s statement that no such criminal act was intended or committed. and we believe one or the other.

    But you don’t see anyone saying that theft is clearly wrongly prosecuted (even though false theft allegations run at a higher rate than false rape allegations), and you don’t see anyone saying that if you ever give gifts to anyone, clearly no one could steal from you. And hey, if you’re really altruistic and give gifts to a whole lot of people on a regular basis, that means you deserve to be stolen from and shouldn’t complain if it happens.

    beautiful! those filthy gift-givers!!
    (although I suppose the church aid-worker insisting on working with the homeless might be accused of havin “asked for” his eventual mugging… sigh)

    good post, Amp. good discussion (generally).

  35. 35
    geoduck2 says:

    For some reason I’ve noticed a lot of comments on this case focused exclusively on the rape and ignoring the assault. If three young men who had been drinking just decided to beat up someone, would any of these questions be asked?

    I agree. Not only has the assault been ignored, but the theft of her belongings has also been ignored.

    For any assault and battery the victim is an eye witness of the crime.

  36. 36
    Barbara says:

    I had a boyfriend who was the victim of a he said/he said assault and battery dispute (well, it was kind of my word since boyfriend was knocked cold and didn’t remember much). But the fact that boyfriend spent the night in the hospital with a fractured skull and was a lot smaller than his opponent, and so on, more or less made a lie of the perpetrator’s claim that he felt threatened and was only acting in self-defense. But if two guys get into a fight and they are evenly matched it really can be difficult to get a conviction, heck, it can be difficult to even get police interest unless there are serious injuries. And, I expect, many men are just socialized to let it go even if they really were the victim of an assault. A woman who is the victim of an out and out assault with no sexual component probably has a much easier time getting a conviction. I think it just probably goes to the idea that it’s plausible the woman agreed to engage in sex but it’s highly implausible that she agreed to be beaten. I don’t know of any easy answers to change the perception on this issue.

  37. 37
    Tony says:

    Amp – to respond to post #4 (and assuming you meant me), I do consider myself a feminist, and think the two cases are different. In a rape case, the prosecution must prove that the alleged victim did not consent. In the drug case, it is not the prosecution’s responsibility to prove that the drugs were NOT planted: because “they were planted” is an affirmative defense, the burden of proof gets moved to the defendant. (Though I may be wrong that “I was framed” is an affirmative defense.)

    I do agree that ultimately it does come down to one person’s word against another’s, but the evidence isn’t supposed to be analyzed in quite the same way. Many other cases do some down to one person’s word against another’s, though.

  38. 38
    Ampersand says:

    Amp – to respond to post #4 (and assuming you meant me)

    No, I meant Mike – with all due repest, the fact that I addressed the question to Mike kinda implied that. :-)

    I really don’t think the distinction created by an affirmative defense is very relevant to the argument I’m making. No one who is complaining about rape and “he says/she says” says “no one should be convicted in a case where it’s one person’s word versus another, except in cases involving affirmative defenses.”

    I think it’s kind of a stretch to say that no one should be convicted based on just one person’s word except when there’s an affirmative defense involved. Is an accusor’s word somehow more reliable if it’s an affirmative defense? Although I can see how the distinction could be relevant in a courtroom, I don’t think the distinction is relevant to the particular argument I am criticizing.

  39. 39
    Tony says:

    Amp – I had read your point as critical of me, not Mike, so I thought you might have written ‘Mike’ by mistake. I have no particular interest in continuing to debate the relative importance of the affirmative defense issue (which I still think is a bigger deal than you’re conceding), but I agree that it’s still one person’s word against another’s and one reason people often don’t see it that way is that people find police officers more believable than alleged rape victims.

  40. 40
    RonF says:

    “Ron, please remember that this is a feminist-only thread. It has not been my impression that you’re a feminist. The alternative thread on Creative Destruction is now available.”

    Fine for next time, then.

    “To answer your question, as I think I’ve already said in the “innocent until proven guilty” post, I see a distinction between “I think he’s guilty” and “I think he’s been proved guilty beyond any reasonable doubt.” So I could certainly imagine a case in which a juror could legitimately believe that a defendant is guilty and yet vote for not guilty. And no, I don’t advocate getting rid of “innocent until proved guilty” for rape cases. ”

    Fair enough. I’d be curious to see others answer that question.

  41. 41
    Marcella Chester says:

    Sarah:

    Rape is a problem, however its also devestating for the accused (note not rapist) and does have a significant benefit to reporting

    How did you come up with the second half of your statement?

    In all my time as a volunteer victim’s advocate working with sexual assault victims, no victim I ever met saw reporting as a benefit. Reporting and going through the legal system takes endurance and courage and frequently ends without an arrest or without a conviction. Then there’s the risk that people will decide you aren’t a true victim and reported simply to gain some benefit.

    As a case I highlighted on
    my blog
    shows, not every accused rapist who is acquited is innocent.

    Where’s the victim’s benefit for reporting this case?

  42. 42
    RonF says:

    geoduck2, where was there a theft of her belongings? I must have missed that somewhere.

  43. 43
    JamesQ says:

    Hi Ampersand,

    When thinking of more rape cases, I believe there are three different scenarios in trial, which from what your getting at falls under the third type.

    1. Rapes cases where there is strong evidence that both sexual activity took place and that it was not consensual and there is strong evidence that ties someone to the case e.g. a likely perpetrator(s). Strong evidence I would say includes things like physical evidence beyond what would normally occur beyond ordinary sex (e.g. injuries or what is deemed to be the victim state by professionals just after the event occurred), eyewitnesses to at least a portion of the event itself or surrounded it that would state or imply that the sexual activity was nonconsensual, eyewitnesses to the victims state around the time period the alleged event took place (e.g. the person was incapacitated or too intoxicated to give meaning full consent), or evidence such as video or audio that recorded a significant portion of the event in question and there is some degree of implication that the sexual contact was not consensual. To my thinking in these cases where evidence is deemed, by let say by a judge, to be strong then the case should be prosecuted under a reverse burden of proof compared to today where the defendant most prove that the sexual act was consensual. This of course means that people who engage in rough sex or BDMS can be more easily prosecuted, but I only see that as being fair because otherwise “obvious” rape cases can be dismissed to easily as is done today.
    2. Rape cases where there is essentially no evidence that any sexual contact occurred let say for example a person alleges a year ago that another person raped them and there is no other evidence at all that corroborates whatsoever that the event took place and the accused denies any sexual contact whatsoever. Admittedly these cases probably almost never come to trial, but just as a matter theory in essential all of these cases they should be acquitted, unless the accused has a change of heart an admits to the wrong doing.
    3. The third type of rape is where there is at least some evidence that sexual contact occurred, but there is not strong evidence that either it was nonconsensual or there is weak/inconclusive or no evidence of who is probably the actual perpetrator(s). In this type of case I believe at least for now they should be judged under the current burden of proof. Now these types of cases would included he says/she said cases under discussion and the current duke rape case because there is only weak/inconclusive evidence that points to the perpetrators e.g. there is strong evidence that rape took place, but the question for now is who to prosecute for the crime. Now in case of he/she said rape cases, I believe that unless there is a finding to be a substantial creditability issue between the defendant and the accuser, most of the time I believe the cases should be dismissed for lack of implicating evidence. Of course, the question is what would be a substantial enough amount of difference in creditability. Let say for example a husband, who has a significant history of domestic violence, is accused by his wife that she was raped because he threaten her; however, there is no injuries, no evidence of her being traumatized, and there is no other proof of her being threaten other than her word, I would probably find her husband guilt in a civil case, but I not to so sure in a criminal case even though I am likely inclined to believe her. The question of course is certainty of guilt. For example, my gut instinct tells me I should probably be at least 70% certain in a civil case whereas I should be about at least 90% certain in a criminal case.

    Now, I agree with you Ampersand that the reason that the difference between the how society view the word of women versus that of police officers is that much more creditability and trust is given to officers than women. Of course, in any form of a state, expect absolutely anarchistic states, more creditability is attached to the authorities of the state compared to normal citizen; the question is how much creditability should be given. Now, to me the federal government of USA imposes way too much power in regards to drug crimes especially in term of the length of the sentence; therefore, if such heavy penalties can be imposed, how they can be issued must follow very stringent requirements. For this reason, I believe officers should be only able to issue a selling of illegal drugs charge, if they have corroborating evidence in the form of a video or audiotape that shows the transaction of the drugs taking place. Here is a piece of information that shows how insane the “war on drugs” is.

    http://en.wikipedia.org/wiki/Prohibition_(drugs)

    The sentencing statutes in the United States Code that cover controlled substances are notoriously intricate. For example, a first-time offender convicted in a single proceeding for selling marijuana three times, and found to have carried a gun on him all three times (even if it were not used) is subject to a minimum sentence of 55 years in federal prison. U.S. v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004).

  44. 44
    Raznor says:

    I dunno, it seems like reporting rape is great. You get to be famed as a slut, possibly your address will be published so that people you never met will get to tell you exactly what they think of you, and even if there’s a mountain of evidence, you probably won’t get a conviction! No wait.

    What makes rape so singularly difficult to prosecute is not just that it usually amounts to a “he said/she said” thing, but there is a built-in social bias against the accuser. For a raped woman to press charges – she is dooming herself to the life of a social pariah for the slim, slim hope that justice will be done. Hardly an easy thing, and certainly more difficult than planting drugs.

  45. 45
    nik says:

    The other thing that gets me is that you get lots of complaints about the media reporting rape, rather than ‘alleged’ rape, when the same standard never gets applied to any other crime.

    Barbara’s point about assaults is also good one. Many of these end up with both parties accusing the other of an unprovoked attack and claiming they were lawfully defending themself. I know a policemen who says he usually has to come back and arrest people who’ve made accusations of assault when the person they’ve accused makes a counter-accusation back at them. The case then normally ends up being dropped.

    Amp’s right about the “he said”/”she said” drugs cases. You can’t say much except that people’s doubt about the police planting evidence is less than their doubt about fabricated rape accusations. The different media profiles are probably explained by there being more “he said/she said” rape trials than “you planted it/no I didn’t” drugs trials. That and a different class profile of the people accused.

  46. 46
    quixote says:

    It’s about social power. People seem to be hard-wired to respect power and to disbelieve those of lower status. It takes, for most people, conscious awareness and a will to justice to avoid this. The cocaine example is a good one. Consider also the little whistleblowers standing against corporations. The disproportionate numbers of blacks on death row, and the disproportionate numbers of those whom DNA evidence showed were innocent. Why were they convicted to begin with? Because of the same old tripe: the powerless are not given the benefit of the doubt.

    Ideally, we’d all learn to give fairness priority over our animal brains. (Yes, I know. And pigs will fly.)

  47. 47
    Z says:

    Rape is a problem, however its also devestating for the accused (note not rapist) and does have a significant benefit to reporting (instant sympathy, support, get out of wr0ng doings etc).

    Obviously you have not reported or disclosed a situation where you were raped/abused. I believe more often than not the opposite is true — you are not believed, or if people DO believe you you’re vilified for not keeping your mouth shut. People generally LOSE more (family, friends etc) from disclosing rape than they could ever ‘gain’ from it.

    What you wrote is a fallacy and as a (genuine) rape/incest survivor I am insulted. You make a mockery of my struggle and the struggle of MANY survivors who are treated like cr*p for saying a word about it.

  48. 48
    Sheelzebub says:

    What you wrote is a fallacy and as a (genuine) rape/incest survivor I am insulted. You make a mockery of my struggle and the struggle of MANY survivors who are treated like cr*p for saying a word about it.

    Right. Fucking. On.

    I know several rape survivors. NONE of them reported their assaults, precisely because of these attitudes. They did hear all about how “women DO lie about this” (so by extension, they were liars), how they were stupid for getting into such a bad situation, and how “everyone” would believe them, even though their so-called friends didn’t.

    Here’s the thing–when it comes to drug crimes or theft, you don’t see or hear endless screeds about how OMIGAWDTHOSEWOMENLIE!!! You don’t hear about how well, people make false theft or vandalism reports to get revenge on the accused, and that the accuer always gets bucketloads of sympathy. You don’t have fucking pages of rhetoric and days of hysteria over these evil, nasty accusers. Nope. Only when the crime is sexual assault against women do you get to hear this drivel nonstop–only when it comes to rape and sexual assault against women do we see this kind of energy expended, and see all of this concern for innocent until proven guilty–to the point where even expressing outrage over a news story about rape gets your hand slapped. I don’t hear this preaching when it comes to say, thefts, or assaults, or vandalism. And that’s pretty telling to me.

  49. 49
    alsis39.75 says:

    Amp, could you please expunge RonF’s comments from this thread ? They clearly don’t belong here.

  50. 50
    RonF says:

    Alsis, I have refrained from posting in other threads that were denoted, and when I went to post at the other recommended thread, it was a bad link.

    Perhaps in retrospect, I should not have posted here even so. I’ll refrain in the future.

  51. 51
    Sebastian Holsclaw says:

    The analogy isn’t precise because there is an unequal weight of evidence given to a police officer pursuing her duties (presumably in a professional manner) and the accused who was found with illegal drugs on his person. Fair or not, many jurors will give much more weight to evidence given by the police unless they have reasons independent of the case before them to do so. In most rape cases the weight of credibility of the witnesses doesn’t play out to such a great difference (and when it does it can sometimes play against the accuser). An interesting test case would be a female officer who gets raped while starting on a drug sting. If her credibility doesn’t get the same lift it would if the sting had been successful but there had been no rape, your case would look stronger.

    Furthermore I’m not sure it is an analogy that does feminism much good. Sending someone to prison in a pure he said/she said drug case makes me a little bit queasy. If the analogy holds it almost weakens the case you want to make about rape rather than strengthening it.

  52. 52
    Raznor says:

    Sebastian:

    The analogy isn’t precise because there is an unequal weight of evidence given to a police officer pursuing her duties (presumably in a professional manner) and the accused who was found with illegal drugs on his person. Fair or not, many jurors will give much more weight to evidence given by the police unless they have reasons independent of the case before them to do so. In most rape cases the weight of credibility of the witnesses doesn’t play out to such a great difference (and when it does it can sometimes play against the accuser).

    I don’t see how this is substantially different than “I think the difference is just evidence that our culture trusts cops but doesn’t trust women.” – other than you don’t seem to make an assertion that society doesn’t trust women. Still you’re argument seems to be “our culture trusts cops more than it trusts women.” Which does not negate that in both cases we’re still at a “he said/she said” question.

  53. 53
    Barbara says:

    And the police know that they are presumed to be credible. Very often, where police perjury is shown to have occurred, the rationale is, “we know he’s guilty,” and if he’s not guilty of this crime he’s guilty of another just like it. Time and again.

    There is a strong argument that especially in drug cases, he said/she said evidence should be insufficient — they are nonviolent crimes that are recidivist in nature. If you don’t get the goods tonight, chances are better than even you’ll get them soon. Rape is different. It’s violent and does great harm and by nature is perpetrated without witnesses. Hoping you get lucky the next time someone is raped cannot be viewed the same as hoping you find drugs the next time you pull someone over after you see someone hand him a small package.

  54. 54
    Charles says:

    Um, Sebastian, do you actually count yourself as a feminist?

  55. 55
    Sebastian Holsclaw says:

    “Still you’re argument seems to be “our culture trusts cops more than it trusts women.” Which does not negate that in both cases we’re still at a “he said/she said” question. ”

    I think our culture trusts cops more than it trusts most non-cops (it used to be that priests were trusted in a similar fashion but I doubt that is true any more). That is why I don’t think it is really a good analogy to the he said/she said rape case where neither party has that societal trust (whether or not you think they deserve that trust isn’t the point I’m making). In cases where there is no special societal trust set aside for one of the witnesses, the he said/she said cases far more often lead to reasonable doubt. It may very well be that such societal trust ought not be placed in cops, but that just reduces the chance of convicting on that basis. It doesn’t really help us with the thorny question of how to deal with the very real problem of a case where a woman was raped, but the majority of the evidence can easily be interpreted different ways depending on which side of the he said/she said lens you look through.

    The gift case (which I had never thought about before this thread) is probably closer.

    “Um, Sebastian, do you actually count yourself as a feminist?”

    I believe that women face special obstacles (compared to those faced by men) based on societal expectations/beliefs which are not grounded in independent reality. I believe these should be minimized. I do not come to the discussion believing that such things do not exist, or if they exist that they aren’t important–which is what you would expect from a non-feminist. So I would count myself in the pro-feminist camp.

    But whatever I believe about myself, I will of course withdraw if any of the proprietors think I am detracting from the tone they wish to set.

  56. 56
    Holly says:

    Rape, is a crime missunderstood by societies, families, workplaces, the victims themselves! Rape is also about power, control, it is a criminal offence in most countries!
    As a society we have to educate, bring prevention and awareness to our youth about rape!
    As a society we sometimes have to understand rape is not a crime we have all the evidence to lay charges, let alone get an conviction!
    We need to be understanding of rape!
    I personally have not seen too much compassion, understanding for rape survivors.
    It is not always DNA evidence, it is sometimes good police work that helps in convictions!
    I have been raped, I have testified in court.
    It is degrading, horrible experience that changes one’s life for ever. Sincerely Holly Desimone

  57. 57
    Charles says:

    I’m totally not a proprietor, so pay no attention to me. From what I’ve read of yours elsewhere, I wouldn’t have guessed you to count yourself as pro-feminist (but only by extension, not by directly reading you writing things that seemed anti-feminist (or, at least, not any that I remember)), but I’m glad to hear I’m wrong.

  58. 58
    Elayne Riggs says:

    I thought the rape evidence vs. drug evidence analogy didn’t hold up because, in the latter, the substance produced is clearly illegal to possess. In the case of a rape, real or alleged, the evidence may POINT to illegal activity, but that evidence in itself (DNA, etc.) is not illegal. Even bruises, contusions, etc. may be INDICATIVE of rape, but possessing bodily injuries isn’t in itself illegal.

  59. 59
    Sheelzebub says:

    That’s why I use theft as an example–Susan can’t find his diamond earrings, sees Jane with them. She accuses Jane of stealing them. No way, Jane tells the cops. Susan gave them to me.

    Two stories. Both are possible.

  60. Pingback: Alas, a blog » Blog Archive » Some more Duke rape case links

  61. 60
    A woman says:

    It is a male vs. female problem.Mostly women are raped by men.I can’t believe we are still stuggling to get justice.At least there are charges made.If we could only get justice after being totally discounted by defence lawyers and the denial of the “blind,deaf,and dumb” people who get piggy-back rides or thier books carried by the “sweet,wonderful,good catholic,gentlemen!There are murder cases won without bodies or witnesses!To me there seems to be big time pre-planning and I can’t believe no one there did’nt know what was planned!If they get away with it I won’t be suprised!The court can’t say they are guilty untill proven but I have the right to discuss my opinion and the information about it.I may not be able to type or spell well but that dosen’t mean what I say is not worth lisening to.Wether a person is less educated,or a stripper,dosen’t mean they are not credible.Class makes it even worse.These white males have alot of money,and are so much better off.Why do males with power choose to abuse those who are less fortunate instead of using thier blessings to make life better for “the least of these”?Thier are some who are good but so many who are selfish and evil.The Duke lacosse team have behaved awfull,shamefull,and like neanderthals.Not like sweet,wonderfull,good catholic gentlemen.I don’t know how to change the problem but I’m glad to have my say.

  62. I have observed rape perpetrators coming from all races and economic backgrounds, I do not think it is just a “white” problem.