Monday, April 27, 2009

The Responding Injustice That Doesn't Just Happen

Cara responded to the Seattle Weekly story: The Lie That Just Happens by Laura Onstot and focused on how this article uses and misuses data related to the rate of false reports.

What I want to focus on are the systemic causes of the injustice against a man, called Dawit Bekele in this article, which are at the center of this story and look at how those same systemic issues allow lies and injustice to flourish from all directions.

The investigators and DA in this man's case are presented as people who made no errors, as people who were doing the best they could and as people who were merely blindsided by a false reporter. This is not true.

These types of errors are being made in numerous law enforcement agencies and the blame for these errors is being assigned to the wrong people.

Blaming those who actually file fraudulent police reports for systemic mistakes related to rape might feel good, but this scapegoating actually allows injustice to flourish in the name of fighting against injustice.

The justification for the arrest of this man highlights the first investigative error.

The Sheriff's department has staff who are specially tasked with determining whether or not an alleged victim is credible. [...]

Likewise, Bekele's accuser also underwent a joint interview with prosecutors and investigators, and also came off as credible, according to Ian Goodhew, deputy chief of staff in the King County Prosecutor's office. That's why prosecutors decided to file charges in the case.

Investigators began by trying to act as human credibility detectors and when nothing they heard made them think, "False report," they immediately moved to make their arrest and to collect evidence for a post-arrest investigation. Only, oops, that investigation proved the core evidence to be manufactured by the woman who reported.

What needs to be acknowledged by everyone is that this credibility process is unreliable.

Major decisions about arrests or investigations cannot be made based on this type of credibility test. When they are made this way this benefits those who are guilty -- no matter the guilty person's gender or status as alleged victim or alleged rapist.

That's malpractice and the blame belongs to those who decided to arrest first, check out the provided evidence second. Blaming the young woman who reported falsely for the choices of the police and the DA made is a dangerous mistake which makes no innocent person safer.

The police were right to investigate this woman's claim, and should have done so even if she failed their credibility test, but they were wrong in the way they proceeded with the investigation. The investigation should have verified the authenticity of the emails before the police considered arresting this man.

If there were safety concerns because of what this woman told the police then there were other ways of dealing with that issue. Also the credibility testing could have easily dismissed valid reports and valid safety concerns. This can leave a woman needlessly vulnerable to a violent man.

This case proves that not finding a motive for filing a false report is NOT proof of a valid report. Not so clear for many people is the corollary that finding a motive for filing a false report is NOT proof of a fraudulent report.

[Dr. Kimberly] Lonsway [Director of Research at End Violence Against Women International] says that it isn't only juries who need convincing—it can be difficult just to get police to launch a serious investigation into crimes like rape which depend heavily on a victim's testimony.

This is an injustice on the part of the police, but again it is women who fraudulently report rape who are held responsible for the choices made by investigators. The important difference is that in this particular scenario the failure is intentional.

And the responsibility for this failure belongs to the investigators who fail to investigate and those who allow those investigators to turn their backs on many who report rape.

Those who refuse to investigate certain rape reports are also likely to mark those uninvestigated rapes as unfounded or lacking evidence (which is what you will get every time a report is not investigated) and this bad data will then be used as evidence to justify repeating this type of intentional injustice.

More recently, the Pentagon's 2008 report on sexual assault in the military noted that of 2,700 reported sexual assaults, most from women, 39 percent were dropped as unfounded or lacking evidence.

Immediately before this quoted sentence was a reference to Kanin's 41% false statistic which while it is cited most often it is also provably without scientific rigor when it comes to measuring the rate of false reports.

Getting 41% of those who report rape to recant after being pressured by investigators who did not believe them is valid data, but it is not valid data for the rate of false reports. Kanin measured the effectiveness of skeptical investigators at getting their desired outcome without completing the investigation.

Connecting the Air Force report which does not measure false reports to Kanin's study which claims to do so, but does not, leaves the false impression that this Air Force data tells us something about the rate of false reports when it tells us absolutely nothing about the rate of false reports.

Omitted from this article are the systemic problems soldiers face when they report rape and the high rate of sexual assaults committed by one US soldier against US soldier. While this article is not about those problems, presenting data representative of those problems as evidence when discussing false rape reports without giving that data in the correct context is problematic at best.

For example, there was the case of the Air Force enlisted woman Cassandra Hernandez who reported being raped while intoxicated by 3 fellow airmen. Because of the way her case was handled she stopped cooperating and was subsequently charged.

One of the charges was for engaging in sexual activity with an Airman in front of two other airmen. Her 3 alleged rapists were given immunity from prosecution on the rape charges in exchange for testifying against her. After public outrage the charges against this woman were dropped, but those charges were not eliminated, only moved to an administrative action.

It's very likely that the Air Force investigators based the charges against Hernandez on their own credibility test which as Onstot showed in her article is an unreliable basis for filing charges.

When you mix credibility tests, misuse of data and assumptions about women's vs. men's honesty, you have created a toxic product that can't help but produce injustice. For many people, injustice against women in rape cases is seen as acceptable because, "a man's life is at stake."

Too many people dismiss the seriousness of rape and the seriousness of having investigators who enable most rapists in their jurisdiction by refusing to investigate certain rapes. Too many people who don't dismiss the seriousness of rape will view injustice against those who were raped as something unavoidable because of their beliefs about the near impossibility of proving rape unless the victim is maimed or dead.

Sir Matthew Hale's statement: "Rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused." is still commonly cited to defend ignoring many reports of rape. For around 300 years this quote was read to juries in many rape trials in the US and the UK.

But those who use this quote and cite Hale as an expert on the importance of credible evidence don't know or don't care that in 1662, he presided over the trials of 2 woman who were executed for practicing witchcraft based on flimsy evidence. Hale also made at least one statement that was used to deny the possibility of spousal rape.

If Hale was subjected to a credibility assessment on this matter today, he would fail.

Hale's concern for the innocent and his standard of proof were clearly selective. And yet he is a model for some of those in the criminal justice system who continue to approach allegations of rape in a way that injects injustice.

Investigators deciding not to investigate reports of rape isn't the worst that can happen to rape victims. The credibility test, done formally or informally, can lead to investigators who view themselves as compassionate toward rape victims to not only fail to investigate the original allegations, it can lead them to mercilessly go after non-credible reporters.

This can include lying to those who report rape, not informing them that they are now the only suspect, aggressively interrogating those who reported being raped. The investigator may claim that there is proof that this was a false report and that the only acceptable action is for the alleged rape victim to recant. The investigator may feel that threatening to file criminal charges is likely to get to the truth when it can instead lead a real rape victim to break down in the face of this injustice and say whatever that investigator wants to hear so that the unexpected nightmare, which can be more traumatic than the original rape, will end.

Only, oops, sometimes the confessions extracted from non-credible women are false and the original report of rape was true. Unfortunately, you won't know this by reading most stories about wrongful accusations related to rape or about wrongful criminal charges related to rape. Many news outlets that are careful to write alleged rapist don't bother with alleged false reporter.

Onstot refers to local and national high-profile cases where accusations fell apart but presents it as a fact rather than opinion that all the girls and women in those cases are guilty of filing fraudulent reports. No charges and no convictions are needed.

The only conviction in the Duke case involved the handling of the case not the original report. The only reason for the Duke case to, as an attorney said, "set the rights of women in this area back maybe 15 years," is because many people wanted those rights set back 15 or more years and the Duke case gave them the leverage they needed to see more women who are raped be denied justice.

Men have been exonerated for murder where witnesses or even the real murderer lied, but those exonerations don't set back murder investigations 15 years. The reason for this is that everyone genuinely gets that murder is a serious crime. The correct solution to these injustices is to improve how cases are handled -- to move murder investigations forward -- so everybody's legal rights and safety are respected. This is the correct solution in rape cases as well.

Women who have been charged related to what were believed to be false rape reports have been exonerated. Other rape survivors who have been wrongfully charged or wrongfully implicated in the press are not so fortunate. This leaves more than a taint, it makes those women more vulnerable to additional injustices. One false allegation against these girls and women can be used to support a second or even a third false allegation.

In this Seattle Weekly article Onstot almost gets to this injustice.

Lonsway and her training partner, Joanne Archambault, a retired police sergeant living in eastern Washington, do an exercise in which they distribute a series of alleged rape reports to small groups of people, asking them to decide the veracity of each. In most of the cases, there are enough inconsistencies in the victims' statements that the groups deem them to be false. But the reports were in fact generated after a serial rapist attacked women throughout California, Lonsway says. Each of the reports was initially dismissed by officers, until one investigator finally saw enough similarities among the different incidents to suspect the same person was behind the crimes.

After this paragraph Onstot gives those wrongfully disbelieved women no consideration. She doesn't know whether any of them were accused of being the only criminal in their case because they failed the credibility test. She doesn't know if any of them were threatened with prosecution and told scornfully that they were the reason real rape victims were often not believed.

The solution to both problems is for all reports of sex crimes to be fully and competently investigated no matter the credibility of the person reporting rape or the credibility of the person accused of rape.

The same is true when the details of the rape seem non-credible.

Lack of credibility doesn't protect people from being raped and credibility doesn't prevent people from raping.

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posted by Marcella Chester @ 7:29 AM   2 comments links to this post


At April 27, 2009 4:49 PM, Blogger JENNIFER DREW said...

Police scepticism and refusal to investigate women's complaints a man/men has raped them are common here in the UK.

The Home Office commissioned a report into investigation of rape complaints and researchers discovered many, many women who had reported to police a man/men had raped them were disbelieved. The police subsequently labelled these cases as 'unfounded' and hey presto we have a supposedly large percentage of women supposedly making false allegations of rape against innocent men!

Rape which is overwhelmingly committed by males against females is the only crime wherein it is always the female complainant who is under suspicion or disbelieved. All other crimes are treated by police as authentic unless after being investigated there is clear proof the complainant has lied.

But since rape is intrinsically connected to societal beliefs in male sex right to women and girls, any woman/girl reporting to police she has been subjected to male sexual violence is always viewed with suspicion and distrust.

Until such time as police officers, prosecutors, judges and juries recognise the ingrained bias women rape survivors are subjected to, justice will not be served.

The crime of rape can be investigated thoroughly without resorting to bias or discrimination but sadly that day has not yet arrived.

The US male-dominanted military is a classic example of how rape allegations made by female soldiers are commonly disbelieved and it is the female survivor who is subjected to punishment and blame never the alleged male rapist(s).

At May 03, 2009 11:28 AM, Blogger Marcella Chester said...

To John from Arizona, I responded to your rejected comment in my post, Gender responsibility for gendered crime.


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