Monday, October 22, 2018

True Or False? On Accusations of Sexual Violence in The Kavanaugh Era.

(This post is really the third in my series: On the Kavanaugh Nomination And Women's Reproductive Rights.  Or Back to the Basics. But that title is a little boring and uninformative by now.  The first two posts can be read here and here.)

1. Introduction

Our Dear Leader recently noted how scary this time in the US is for young men, because false allegations of sexual violence are so commonplace!  He, himself, has received a whole wheelbarrowful of them!

At about the same time, Bret Stephens, a right-wing columnist at the New York Times, had a few thoughts about such false allegations in the context of Brett Kavanaugh's alleged sexual misconduct:

A few moments have crystallized my view over the past few days.
The first moment was a remark by a friend. “I’d rather be accused of murder,” he said, “than of sexual assault.” I feel the same way. One can think of excuses for killing a man; none for assaulting a woman. But if that’s true, so is this: Falsely accusing a person of sexual assault is nearly as despicable as sexual assault itself. It inflicts psychic, familial, reputational and professional harms that can last a lifetime. This is nothing to sneer at.
The second moment, connected to the first: “Boo hoo hoo. Brett Kavanaugh is not a victim.” That’s the title of a column in the Los Angeles Times, which suggests that the possibility of Kavanaugh’s innocence is “infinitesimal.” Yet false allegations of rape, while relatively rare, are at least five times as common as false accusations of other types of crime, according to academic literature.

That "five times as common" argument means that about 5% of rape accusations were found to be false or baseless (1) in one study.  Other (properly done) studies have quoted figures ranging from 2% to 8%.

Let's set aside the question whether Brett Kavanaugh actually did what Christine Blasey Ford and others have accused him of.  Let's, instead, consider this heightened concern with possible false accusations which is very evident both in the context of the Kavanaugh hearings and in the changes Betsy deVos created when she scrapped the Obama-era guidelines on how colleges should handle sexual violence accusations.  The most crucial of these changes is this:

The most controversial portion of the Obama-era guidelines had demanded colleges use the lowest standard of proof, “preponderance of the evidence,” in deciding whether a student is responsible for sexual assault, a verdict that can lead to discipline and even expulsion. On Friday, the Education Department said colleges were free to abandon that standard and raise it to a higher standard known as “clear and convincing evidence.”
The higher bar for evidence means that fewer students accused of sexual assault will be found responsible.  It's less likely that someone falsely accused would be found responsible, but it's also more likely that someone guilty of sexual assault will be found not responsible.  The overall effect may be to cause fewer accusers to come forward (on the basis of why-bother).

So what is going on here?  Is this truly a scary time for young men, and if so, what times have not been scary for young women?  And what do Stephens and his friend in the above NYT quote mean when they say that they would rather be accused of murder than of sexual assault?

The next section of this post will analyze the fact that most forms of sexual violence have few, if any, witnesses, and what that means about true and false allegations or the lack of them.

The third section of this post is my attempt to understand various cultural-legal views of rape and of rape victims, as well as to look into the reasons why so few women (2) have traditionally come forward with rape accusations.

Although these two sections are limited to rape (for the sake of simplicity), what they cover applies to many other forms of sexual violence, too, and forms the background for understanding the recent concerns about the likelihood of false accusations.

2.  He Said, She Said:  When Perfect Evidence Of Rape Does Not Exist

Rape can be a difficult crime to prove in court.  It rarely has eyewitnesses (3),  and the defense often uses the counterargument that any sex which took place was consensual.  Similar defenses can seldom be used for other crimes, such as homicides,  robberies or burglaries.

The following table shows the possible conclusions in a hypothetical court case about a rape.  Because of the lack of perfect evidence, four outcomes are possible:

happened did not happen
found guilty true positive false positive
found innocent false negative true negative

The two columns are the events that a rape either took place (first column) or that it did not take place (second column) (4).  The two rows are the findings of the court.  In the first row the defendant is found guilty, and in the second row the defendant is found innocent.

The four cells cover all possible outcomes.  In the "true positive" cell the court correctly judges that the defendant is guilty, and in the "true negative" cell the court correctly judges the defendant to be innocent.  Those outcomes are fine.

The outcomes in the other two cells are, however,  of great concern:  The "false positive" cell covers all those cases where an innocent person is unfairly sentenced, while the "false negative" cell covers all those cases where a guilty person is let go (5).

It's the "false positive" cell in the above table which worries men like Donald Trump and Bret Stephens, but not the "false negative" cell. 

Because the majority of sexual violence cases (6) are never reported to the police, in one sense the "false negative" outcome (a guilty person is never taken to court and remains free) is likely to be numerically many times larger than the "false positive" outcome (an innocent person is languishing in prison). 

This is true even if Trump and Stephens fear the reputation effect of those false accusations which never reach the court but leak into the public sphere.  In fact, I would argue that the recent debate about the #metoo movement and Brett Kavanaugh's guilt or innocence can also be seen as a debate about the relative pain caused by sexual violence perpetrators who are not punished at all versus the fear that innocent men are punished for sexual violence they never committed (7).

Time to return to the original question I posed by using Our Dear Leader's mouth:  Is this a particularly scary era for young men, and if so, which eras have not been scary for young women?

3.   Rape, A Heinous Crime? 

A good place to start this third section, on the history of rape definitions and the treatment of rape victims, is  by returning to Bret Stephens' statement about sexual assault:

A few moments have crystallized my view over the past few days.
The first moment was a remark by a friend. “I’d rather be accused of murder,” he said, “than of sexual assault.” I feel the same way. One can think of excuses for killing a man; none for assaulting a woman. But if that’s true, so is this: Falsely accusing a person of sexual assault is nearly as despicable as sexual assault itself. It inflicts psychic, familial, reputational and professional harms that can last a lifetime. This is nothing to sneer at.

Stephens can't think of any excuses for assaulting a woman?  I want to immigrate to his reality right now, though  I bet it's very Victorian, where the assaults are swept under the long-fringed tablecloths of all those little tables in the dark interiors, among the ferns. 

But if we set that weirdness aside, Stephen's point is that sexual assault is a horrible crime.  Therefore,  it follows that falsely accusing someone of sexual assault is an almost equally horrible crime.

This reminds me of a television debate I once watched about rape.  One expert argued that in every culture rape is viewed as a truly heinous crime.  He meant that all cultures abhor rape and all members of all cultures are taught that rape is very very wrong.

I remember throwing things at the screen when I heard that, because there's a trick he used in getting to that particular conclusion.  The conclusion is true, of course, but only because of the way rape has traditionally been understood in all cultures:

To paraphrase American right-wing politicians, historically there has been "legitimate" rape and there has been "non-legitimate" rape (8).

The most legitimate type is a very violent stranger rape, preferably taking place in clear daylight, the victim is a young virgin on her way back from church/mosque/synagogue, dressed extremely modestly, the rapist leaps out of bushes, with a knife between his teeth, and the victim is left seriously mutilated.

Other types of rapes have had less legitimacy.  Indeed, if we remove parts of the above description, even my example of a "legitimate" rape begins to sound less legitimate.

Suppose the virgin was out late at night, alone, even if she was coming home from church.  What was she thinking?  Women shouldn't be out alone at night.  Surely she contributed to her rape.

Or suppose the victim wasn't a virgin.  Maybe what took place was consensual?  If she had fucked men before, she might have done so willingly here, too, even a stranger.

Or what if she wore a tight dress?  Wasn't she advertising?  How could we know that she didn't want to have sex?  If you are not selling, don't advertise (9).

Or suppose she knew her rapist.  Maybe it was one of the ministers in her church.  She could have been the Jezebel who seduced a man of god into a great sin.

And what if she knew her rapist and went with him to his house or apartment?  Wasn't she consenting to sex by doing that?

Still,  as long as the victim has been left seriously hurt, most cultures have agreed that a rape probably happened.  The use of physical force makes rape more "legitimate."

Linked to that is the common expectation in older legal codes about rape that the victim should have fought the rapist by physically resisting: biting, scratching, kicking and screaming.  If evidence of such resistance was lacking, a rape accusation could be  seen as less "legitimate." That fighting a rapist could turn a rape into a rape-and-murder is an awkward aspect of that expectation.

My point in creating that long list of exceptions is to clarify that when someone calls rape a heinous crime they are not referring to all forced intercourse:  They have in mind a certain kind of "legitimate" rape, and what that is can vary between cultures.

Marital rape was only recently criminalized and is still legal in ten-or-so countries.  Many view acquaintance and date rape as less "legitimate" than stranger rape.  And ISIS, to pick an extreme example, declares that forced intercourse with infidel women captured as slaves is legal and not rape at all.

An important consequence of all the qualifications that various cultures have applied to the meaning of rape is that rape accusations (10) would have always been quite rare, even if actual rapes were quite common.  This could also mean that false accusations were even rarer (11).

But there was a much stronger reason for the silence of those women or girls who were raped in the past:  Rape turned them into soiled goods, reduced their chances of getting married (one of the few "career paths" for women in, say, medieval societies where most occupations put obstacles in their way) and brought dishonor to their families (in some cultures).

Early rape laws resembled property laws.  The person who was truly harmed when a girl or a woman was raped was her father or her husband: the man who was regarded as her "owner".

Those laws were not concerned with the pain and suffering inflicted on the victim, but on her reduced "marital market value."  This explains why a possible outcome of a rape trial could be that the rapist would be ordered to marry the woman he had admitted to raping (12).  That's the Pottery Barn rule:  "You break it, you buy it."  Alternatively, the woman's family could sometimes obtain monetary compensation for the rape.

All this sounds like ancient history in today's Western democracies.  But I would argue that the shame many rape victims  still feel has its roots in that old concept of the damage that rape was assumed to cause.  And those feelings of shame have made it less likely that a rape would be reported to the police and have contributed to the silence that only recently has broken.

The goal of this section of my post has been to demonstrate why the "false negative" findings, in the wider sense of most rapists going free, have been the rule for much of the history.

It's not only the "false positive" findings (false accusations of sexual violence) that should be of concern to us, but also the much larger "false negative" ones:

The easier it is for rapists not to get caught or sentenced, the more rapes a society will have.  The more narrowly "legitimate rape" is defined,  the greater the normalization of other types of rapes and forms of sexual violence (the "boys will be boys" defense and other similar ones).   And because men, too, can become the victims of sexual violence, a greater willingness to report such incidents shouldn't be interpreted only through the lens of a possible increase in false accusations.

But that's what Our Dear Leader, the president of us all, does!  


(1)  The study Stephens quotes doesn't measure false rape accusations but false and baseless rape accusations.  The distinction matters, and Stephens should have clarified it:

False rape accusations are those where no crime is judged to have taken place, while baseless accusations are those where something is judged to have happened, but the event does not satisfy the legal requirements of rape.  Note that the judging in that study is by the police.  These are not cases which were prosecuted.
Those who evaluate the accusations as false (or baseless) or true in various studies may, of course, themselves be wrong and/or biased.  Also, that an accusation is retracted does not always mean that it was false.  This is a famous example of one case where a retracted accusation concerning stranger rape turned out to be true when a recording of the rape by the rapist was found.

As an aside, burglary claims were found to have the same false or baseless accusations rate as rape in the study Stephens quotes.  The authors of that study, however, regard such accusations less serious in the case of burglary, because the harm only accrues in the form of wasted police time and insurance fraud, whereas in the case of rape:

False allegations of rape, however, are more harmful. Besides wasting police time, they cause public unrest, and innocents could be convicted or suspected of a rape they did not commit.
That study did not, of course, evaluate what the harmful effects of unreported true rapes might be (though of course public unrest is unlikely) or what the harmful effects are if a true rape claim is judged to be a false or a baseless one, with the local community then stigmatizing the accuser who had come forward.  I guess that stigmatizing could also be a form of public unrest?

(2)  The reasons why male victims of rape don't come forward have historically been somewhat different, varying from the fear of being labeled as gay to the expectation that the victim wouldn't be believed, given that norms of masculinity clash with the idea of being the victim of sexual assault.

(3)  And if those eyewitnesses exist, the natural question is why they did not prevent the rape.  Today some rapes can be proven to have taken place because the rapist(s) recorded them and then posted the videos online.  But even then the recordings may not cover those parts of the rape where force or threats were used.

As an aside, all said here about proving rapes in court would also apply to convincing someone that a rape has taken place.  That someone could be the investigating police officer or some other authority figure.

(4)  Remember that those doing the judging here don't know, beforehand, which of the two columns is the right one.  That's what they try to establish with the court case.

As an aside, the same four cells in that table would apply to court cases about all types of crimes, though the percentages of cases falling into each cell may differ.

As a second aside, I have read that prosecutors don't like to prosecute sexual violence cases because of that difficulty of procuring convincing evidence.  This could mean that a smaller percentage of sexual violence cases advances to the court level than of other violent crime cases.  Even then the court doesn't necessarily get it right

(5)  The Anglo-Saxon court system, at least, regards the possibility of sentencing an innocent person as a worse outcome than letting a guilty person go free.  This means that the system is geared toward producing more "false negatives" than "false positives."

(6)  See, for example this article and this.

(7)  It's partly the traditional "courting" and "seduction" rules which raise the anxiety in some men.  If men must move first, how can they make sure that they get clear consent?  And what if they are misinterpreted?  Most men, fortunately, can tell that difference instinctively, and if not, this video can be helpful:

But yes, the traditional forms of courting really are outdated and should be changed.  And no, in case anyone wonders,  online pron does not provide reliable guidance on what women want in sex.

(8)  The term "legitimate" may not be the best in this context.  "Real" might have been better, but there's no exact word for the concept I'm grappling with here.

(9)  I have read this very statement online more than once! Its weird implication is that any woman who is, say, out in public while dressed for a party should be willing to have sex with any random man she happens to meet.

(10)  In the sense of a raped woman contacting the legal system to report that she had been raped.

(11)  It's tough to make theories about this.  False or baseless allegations could be some small constant percentage of all rape allegations, in which case men today would, indeed, be somewhat more likely to be falsely accused than in the past, because more rapes, overall,  are now reported to the police.

But that's just a guess.  I can think of several alternative theories producing larger or smaller levels of false accusations under various scenarios,  but I don't have the data that would let me conclude which might best fit reality.

Then it's good to remember that even people who are guilty of some crime often argue that they are innocent.  In other words, understanding which accusations are false in various time periods can be very difficult, and, to give an example, Donald Trump stating that he has been falsely accused is not any kind of proof that the accusations against him actually are false.

As an aside, male victims today are also more likely to report the assault they experienced, but for some reason the recent right-wing concerns tend not to see men in the role of perhaps benefiting from the #metoo movement.

(12)  It's still the law in at least nine jurisdictions, globally,  that rape cases can be settled by having the rapist marry the victim.

A fascinating rape trial from the 17th century Italy is about the rape of young Artemisia Gentileschi, who later became a well-known baroque painter.  It was her father who sued the man, Agostino Tassi,  for raping his seventeen-year old daughter, and what the father wanted was either that Tassi would marry Artemisia or pay
a sizable dowry to the Gentileschi family to compensate them for the decrease of her worth.