In her Boston Globe column, and also reprinted on her blog, Cathy Young writes:
Feminism has achieved real and important progress in the treatment of sexual assault victims. A couple of generations ago, a stripper at a party with athletes would have been viewed by many as fair game. That this is no longer the case surely makes us a more decent society.
Whenever I see Cathy say something nice about feminism, I know the word “but” is fast approaching. Sure enough…
But even some people who applaud this change believe that in some cases, the pendulum has swung too far. Many feminists seem to think that in sexual assault cases the presumption of innocence should not apply. Appearing on the Fox News show ”The O’Reilly Factor,” Monika Hostler of the North Carolina Coalition Against Sexual Assault declared that her role was ”to support a woman or any victim that comes forward to say that they were sexually assaulted.”
To O’Reilly’s question, ”Even if they weren’t?” Hostler replied, ”I can’t say that I’ve come across one that wasn’t.”
Cathy is conflating two things that should be kept separate: an individual citizen’s own opinion, and our Court system. Yes, agents of our Court system are required to presume innocence, but unless she’s sworn in on a jury, Ms. Hostler doesn’t share that requirement. As I wrote in an earlier post:
I believe very much in “innocent until proven guilty.” If and when the police make arrests in this case, I want the accused rapists (whoever they turn out to be) to have their day in court, to be able to present a defense aided by legal council, and to be presumed innocent until proven guilty beyond any reasonable doubt. Then, and only then, should they be sent to prison for what I hope is a long miserable stay.
But “innocent until proven guilty” is a courtroom standard. My opinion is not the same as a courtroom… Nothing about the American system of justice requires ordinary citizens to refrain from having opinions; and it’s not inconsistent to want Courts to adhere to “beyond any reasonable doubt” while holding my personal opinions to a less stringent standard.
Cathy thinks that rape victims’ advocates should not assume that a rape happened until it’s been proven beyond any reasonable doubt. How, exactly, does Cathy imagine that would work? Victim advocates don’t have the resources or the training to conduct independent investigations. Courts can take years to reach a “guilty” verdict – assuming there’s ever a trial, which there isn’t for most rapes. Should advocates refuse to help victims (pardon me, alleged victims) until a “guilty” verdict is handed down?
Here’s what I imagine rape victim advocates would do if Cathy Young ruled the world:
ADVOCATE: (picks up phone) Hello, rape crisis hotline. How may I help you?
WOMAN: (Distraught) My… I… I think I’ve been raped. This guy I know, Edward, he held me down and forced….
ADVOCATE: (Interrupting) You mean he allegedly held you down and forced you.
WOMAN: What?
ADVOCATE: I have to presume Edward’s innocent until he’s been proved guilty beyond all reasonable doubt. Please go on.
WOMAN: Okay… He, well, I kept saying “no, please don’t.” But he ignored what I said and ripped off my skirt –
ADVOCATE: You mean Edward allegedly ignored and allegedly ripped off your skirt. I’m keeping open to the possibility that you’re lying. Now, please hold, while I get Edward’s attorney on the line so he can cross-examine you. If your story remains credible after adversarial cross, then we can begin talking about dealing with post-traumatic stress syndrome.
WOMAN: Umn… Could I talk to someone who’ll believe me?
ADVOCATE: Before a trial takes place? What do you think this is, Nazi Germany?
Ms. Hostler was correct when she said “it’s my role as an advocate to support the woman or person who comes forward to say they were sexually assaulted.” She’s not there as a judge, or a jury member, or an officer of the court; her support will not send any accused rapist to prison. She’s there to support rape victims. Being adversarial, skeptical or cynical about the stories she hears will not help rape victims. Going on O’Reilly and saying “why yes, Bill, I think some of the so-called victims who have come to me for help are total liars” will not help rape victims.
What does help rape victims is knowing that there is one place in the world where they can go and be believed and taken seriously. That is Ms. Hostler’s role.
And suppose that there are a couple of liars who come to Ms. Hostler’s agency and say “I was raped” when they really weren’t. So what? It makes no sense for victim advocates to treat 100% of the victims they help with skepticism and doubt, impeding their ability to help actual victims, in order to catch out the occasional faker. It’s not a rape victims advocacy center’s job to divide rape allegations into those that can be proved true and those that can’t be proved – that’s what courts are for.
Even if Cathy had fairly quoted Ms. Hostler, Cathy’s argument would be wrong, for the reasons given above. But as it happens, Ms. Hostler wasn’t quoted fairly (there’s a transcript of the interview here). Here’s the important bit:
O’REILLY: You don’t believe as an American citizen that you should give anyone the presumption of innocence. Is that what you’re telling me?
HOSTLER: Oh, absolutely. But my role in sexual assault is to support a woman or any victim that comes forward to say that they were sexually assaulted.
“Oh, absolutely” can be interpreted to mean “oh, absolutely, the courts shouldn’t presume the defendant is innocent. But my role is to support the victim.” That’s how Cathy seems to interpret it.
But if that’s what Hostler meant, why start the second sentence with the word “but”? A sentence starting with “but” usually contrasts with the previous sentence in some way – that’s what the word “but” means. But there’s no contrast here, so the “but” is out of place.
I think Hostler meant “oh, absolutely,” meaning “Oh, absolutely, defendants should get the presumption of innocence in court. But my role as an advocate is to support the victim.” If so, the word “but” makes much more sense, because there’s a contrast between the two sentences.
Another statement Hostler made in the same interview clarifies her attitude:
O’REILLY: Now for the top story tonight, convicting two Duke lacrosse players in the court of public opinion. An organization called the North Carolina Coalition Against Sexual Assault apparently believes Reade Seligmann and Colin Finnerty, the two Duke students charged with rape, are guilty. […]
HOSTLER: Bill, I wouldn’t say that I think that those particular boys are absolutely guilty. But what I do think is that woman was raped in that house on that night.
Clearly, Hostler doesn’t dismiss the possibility that the two accused rapists are innocent.
It’s ironic that Cathy is criticizing Hostler for not giving the two accused rapists any benefit of the doubt. Ms. Hostler does give them the benefit of the doubt; it’s Cathy, assuming the worse of Ms. Hostler even though the interview as a whole doesn’t justify Cathy’s assumptions, who is unreasonably refusing to give the benefit of the doubt.
Wanting to remove all doubt, I emailed Ms. Hostler. She says “of course” she believes that courts should presume defendants innocent until proven guilty. With all due respect to Cathy, there was enough textual evidence in the interview itself to raise doubts about Cathy’s interpretation, and Cathy should have made that clear in her column. Not only did Cathy’s column fail to inform her readers of the presence of doubt; Cathy’s quotations omitted the elements of the original interview which would have enabled her readers to notice the ambiguity for themselves.
Although I’m sure it wasn’t on purpose, the effect is that Cathy has unfairly smeared Ms. Hostler before a national audience. I hope Cathy uses a future column to correct her distortions and apologize to Ms. Hostler.
Let’s consider, one last time, Cathy’s accusation that “many” feminists want to do away with the presumption of innocence in rape cases. The one example she gave falls apart on examination. Without resorting to quoting undergraduates (a desperation tactic Cathy’s used in the past), I wonder if Cathy can support her accusation at all?
***PLEASE NOTE***
Comments for this post are open only to feminist and pro-feminist posters. Non-feminists may respond to the identical post at Creative Destruction.
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We used to have a counsellor at our school who actually was a “Cathy Young rape victim advocate.” Two 14-year-old female students were raped by a group of guys in a car. They met them because they’d missed the last bus home from the mall, so they hitchhiked.
“Well, what did they expect would happen getting into a car full of guys. They should be ashamed of themselves! Stupid girls.”
Great post! I’m glad to read *about* these articles, because I’ve stopped reading them directly. They burn my eyes.
I’ve come across this attitude in other places and blogs as well. And my standard answer is, shall we just expect women who volunteer as fucking RAPE CRISIS COUNSELLORS to throw rocks at the women and girls who come to them?
Honestly. I don’t see this willful misinterpretation of the presumption of innocence in other cases.
Hellloooooo misogynists and self-hating Stepford ifeminists–the presumption of innocence is for juries. People hold opinions, and they have the right to express them. Certainly I don’t hear the “presumption of innocence” crowd in rape cases hold others to this standard in other criminal cases.
It can’t be repeated enough. Believing that Jane Doe was raped does not require an assumption of a specific person’s guilt.
convicting two Duke lacrosse players in the court of public opinion
I’m so sick of this. I have yet to see anyone pointing a finger at anyone else and saying “Him! He’s guilty as hell. Fry him.” All I can find are statements that the victim is guilty as hell. Who’s convicting them? Show me one citation, Bill.
I believe the distortion was intentional because of this passage near the end of her column:
I’m sure the scope of this professor’s statement is “in a court of law” which Cathy likely understands perfectly. But she uses that statement and her distortion of a rape advocates position on “innocent until proven guilty” so victims’ advocates will be seen as opponents of justice.
She paints us as if we are on a warlock hunt.
Despite all of Cathy’s “I want justice for rape victims” rhetoric, her implication is that men should be “innocent until proven guilty” while women should be “guilty until proven innocent.”
i wonder how many “conflate-beliefs-with-courtroom-standards” people believe that OJ was guilty despite the verdict? surely that case highlights how everyone has opinions way before the court decides anything.
a. i agree with all of you that this is ridiculous and we shouldn’t expect rape crisis counselours to do anything of the sort.
b. that said i think a lot of this hangs on our definition on the word “advocate” and “counselor”. i’ve been a rape crisis counselor for an anonymous hotline on a college campus. i fielded calls from women who thought that they had been raped, women who thought they had had “a bad hookup”, and once even a guy who was *terrified* that he might have raped someone. in each and every case my job was to be an advocate for that person — to help them through how they were feeling about the situation, listen to them, help them make decisions, present them with options so they could decide what they needed to do to keep themselves safe. it wasn’t my job to tell the women who had been raped that i wanted DNA evidence to continue the call, and it *equally* wasn’t my job to tell the woman who had “a bad hookup” that she had been raped, or to tell the guy that he needed to learn how to talk in bed, or his sex life would suck for a long time.
we ask lawyers to be advocates for people, to help them tell their stories in the court so that they can receive a fair trial. rape crisis advocates should (and do) have similar standards of professionalism, that involve listening, and believing.
Great post- I love the Ampersand-Toon-minus-drawings in the middle.
Polymath- you have it exactly right. The thing is there’s a difference between a person’s opinion and the court’s opinion. Extending to the OJ Simpson verdict, the fact that many people personally believe him guilty means only his reputation is sullied. If a court had found him guilty, his individual rights would be severely hampered in punishment. This is why presumption of innocence is so important to the legal system. To extend this to personal opinions is a display of extreme ignorance as to the purpose of our legal system.
Polymath;
Or William Kennedy Smith.
So not only is the conviction rate for rape woefully low because, amongst other reasons, women are smeared as lying sluts, but now women shouldn’t even have access to crisis centres because they lie just that much?
Actually, while reading this I kept having a tangential thought about how abortion is under attack but that this is masking the true issue of attempting to punish women for sex by getting back to basics and removing contraception.
It seems that as soon as some traction is made into attacking the first layer of defence on a women’s issue, the true colours shine through as they start hacking away at the next layer of rights. And my oh my, but isn’t it an attractive shade of misogynist beige.
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“It is important to defend the interests of women as victims, but not to go so far as to accord women complaining of rape a presumption of honesty and objectivity.”
If it is right to accord the defendant the presumption of innocence in the court of law, why is it “going too far” to accord women complaining of rape a presumption of honesty and objectivity in the court of law? This guy is proposing a double standard to begin with, and Cathy Young is trying to make this double standard even more extreme by taking it beyond the court of law.
Not really Kali, honest and objectivity are fairly relative (as is innocence I suppose), people do lie about things and objectivity is hard to achieve if you have a stake in a matter (not just this, look at research or programming etc). To assume any witness is both honest and objective means you start by biasing the jury against the defendant (the accuser cannot be honest if they are accusing an innocent person), so its really a causality thing, the accuser cannot be assumed to be honest because to do so means that the claim is valid and correct rather than potentially correct. Its really a semantic point but still a valid one in my mind.
We perhaps shouldn’t assume the accuser is lying however we should also not assume that they are being 100% truthful (few people are 100% truthful and objective all the time if ever). Advocates should give aid however to immediately side with one side does seem a little irresponsible given that (I think) their word can be used in court. I think the advocates should provide a neutral safe place for women with no incrimination of either side (look at victim and perception studies, the view of an event can be totally changed by asking the wrong questions or accidentally creating events, the one I saw was a police chase, with the questions: What colour was the gate the car passed, and Did the vehicle ever pass a gate. People asked the first question generally believed that there was a gate in the chase).
Sarah:
In the US at least, victims’ advocates are NOT witnesses at rape trials, even though some defense attorney’s have tried to gain access to the confidential interactions between victim and victim advocate. To demand that victim advocates remain neutral is like demanding that defense attorneys and prosecutors remain neutral.
And to further say there should be no recrimination on either side is to make victims’ advocates deny the harm done to victims. “Oh, he raped, stabbed and left you for dead? Hmm, that would be terrible if it’s true.”
Yeah, that would really help rape victims.
The reason’s this:
What’s really interesting is that – in practice, and for all the fetishism that surrounds it – we don’t actually operate under the presumption of innocence in any area of criminal law. The classic example is pleading insanity. If you want to be found not guilty, you have to demonstrate to the court you’re insane. But that’s incompatible with the presumption of innocence; under which the prosecution would have to demonstrate that you’re sane in order for you to be convicted.
There are lots of examples of these evidential presumptions where the presumption of innocence is reversed and the defendant has to prove something not to be convicted. And there are strong arguments that it’s a good thing, because either convicting criminals would be very difficult or general laws would have to be put in place which would convict people who weren’t blameworthy (like doing away with the insanity defence).
I think Cathy’s right that “many” feminists want to do away with the presumption of innocence in rape cases. An instance where this has happened is in Section 75 of the UK’s Sexual Offences Act 2003, put in after lobbying by feminists. Here a series of circumstances exist where the defendant has to prove his innocence. That’s not a bad thing. There’s an intelligent debate to be had on this, not that it’s happening on her blog.
Nik, what situtions would you have the accused prove their innocence in rather than having the accuser and prosecution prove their guilt?
Sarah, advocates and counsellors DO give sexual assault survivors a neutral and safe space. But this crap about how they’re witchhunters for taking these women at their word when they say they were raped doesn’t do much to protect that space.
Sexual assault seems to be the only crime in which the presumption of innocence for the accused automatically translates into a presumption of guilt ““ in this case, filing a false police report and possible perjury ““ for the victim.
No I would say it should be that way for all, a presumption of innocence for the accused must imply that the accuser is not telling the truth. Every accuser should have to prove that the accused did the crime not the other way round, to not put the accuser on trial implies that the accused is guilty. Would you deny an accused the right to cross examine the accuser?
Most crimes are less subjective than those commonly discussed here (rape involves two people’s idea of consent, sexual harassment again two people’s ideas of appropriate). What is sexual harassment? Is it a passing comment, a joke you weren’t meant to hear, a comment on your body? Crimes that involve emotions are hard to prove, murder etc normally have a corpse which does wonders for the Jury. I think you have to take this into account, Juries are not psychological experts and cannot read the mind of the attacker and attacked so they can only base judgements on the cold hard facts.
So you say we should presume the accuser to be a liar, BUT since these things are so subjective, they might have just misinterpreted something?
Come on.
Sarah:
Nonsense. The prosecutor has every right to imply that the accused in guilty during a trial and it is the prosecutor who must prove that the defendent is guilty as charged not the alleged victim.
The alleged victim doesn’t go on trial without having specific charges filed and getting all the rights that go to a defendent in a criminal trial. To say that alleged rape victims are the ones being tried is to subvert our justice system in the name of justice. It also opens the door to slander against victims that you would never tolerate if directed against the defendent.
The assumption of the defendent’s innocence comes in at a trial primarily during jury deliberations. Suppose a jury is 80% sure that the accused is guilty as charged. In a criminal case the jury must presume innocence beyond a reasonable doubt and therefore come back with a not-guilty verdict. Whereas a jury in a civil case can rule against the defendent.
“The idea of the presumption of innocence is that the prosecution has to prove that you committed the crime. The defendant is presumed innocent, and the prosecution then has to demonstrate guilt to the court. You can’t have this and presume that the complainant is honest and objective. ”
Not really. You can have a presumption of innocence for both the defendant and the victim, while keeping the burden of proof on the prosecutor. A presumption of innocence does not mean certainty of innocence, or there wouldn’t be a trial at all. The very fact that there is a trial means that “presumption of innocence” is actually about keeping an open mind, not about presuming dishonesty behind everything that contradicts the presumption of innocence.
It is amazing just how difficult it seems to be for so many people to understand the difference between the field of law and the field of counselling.