Creative Destruction

April 11, 2006

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

Filed under: Feminist Issues — Ampersand @ 3:37 am

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.

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5 Comments »

  1. I’m not sure what stories you have followed, but here in Chicago those kinds of statements are made all the time about drug cases. In fact, if you follow trials on just about anything, whenever it boils down to a person’s credibility there is always questioning of whether the accuser or the prosecutors or the police are telling the truth, especially in cases involving poor, minority males.

    This concern is consistently brought up in murder trials, robberies, assaults, theft, fraud, etc. During many of these cases the same problem of he said/she said comes up. The difference between rape cases and other cases is that unless the person making those statements are cops, the defense is allowed to question the person’s credibility and no one sees a problem with that.

    However, the issue of he said/she said is a broader societal issue. The reason few people outside of certain groups question other cases involving credibility issues is because of who is accused: lower-class males, mainly minorities. It is far less likely that a cop will not believe a woman who claims rape than a cop will not believe a 12-year-old boy who claims the drugs aren’t his. Few people care if the boy is actually innocent. He’s from the inner city, black and that’s what “they” do so he must be guilty. The presumption of guilt happens immediately, and short of some monumental piece of evidence, few people will change their minds.

    It is simply unfair to the thousands of people who are accused of other crimes to present credibility as a “women’s issue” involving rape cases only. There is no targeting of women in terms of lack of credibility more so than any other group. One needs only to look at the who is incarcerated to prove that.

    Comment by Toy Soldier — April 11, 2006 @ 11:30 am | Reply

  2. 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.

    I’m sure that investigators wouldn’t argue with you. As I understand it, people are rarely convicted after committing their first crime; it’s the repeat offenders who eventually get caught because of how hard it is to meet the burden of evidence for court.

    Comment by Adam Gurri — April 11, 2006 @ 4:53 pm | Reply

  3. 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.

    There are several pertinent differences between your example, and a he said/she said rape case.

    Firstly, the defendant in your scenario is making what some might regard as an extraordinary claim. Extraordinary claims require extraordinary proof, and certainly some corroboration even to raise a question of reasonable doubt.

    In a rape case, by contrast, where intercourse is admitted and the defence is one of consent, the defendant is making an essentially very ordinary claim – that he and the complainant had consensual sex, something that hundreds of millions of couples do every day.

    Secondly, officer Jane would be laughed out of court if she testified that she didn’t report the matter for several days and that by then there was no trace of the alleged coke. Yet rape victims are encouraged to report sometimes years after the event when there can no longer be any forensic evidence that sexual contact took place at all.

    Why does no one say “drug dealing is a serious charge; it is easy to make, difficult to defend”?

    It’s not that easy to make. Officer Jane would have to obtain some coke in the first place. Drugs in the possession of the police are tightly controlled, so unless she found the drugs in the first place while investigating someone else, then concealed them, she would have to be in conspiracy with other police officers. Both these scenarios requires premeditation, preparation, and expose the officer to risk of discovery. A credible (or at least not obviously incredible) false rape allegation requires no more preparation than a good hard consensual fuck.

    Moreover, I don’t think anyone would dispute that if the police are fabricating evidence, the charges are 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?

    A lot of people do fret about such things. However, this issue is usually framed in terms of police corruption rather than the presumption of innocence. Different framing – essentially the same issue.

    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.

    I agree. There is no principled reason that the process of a jury hearing testimony and weighing credibility becomes so suspicious and deplorable in the minds of feminists when the decision goes in favour of the defendant.

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

    The fact that so many cases brought essentially on police evidence result in an acquittal is evidence that juries don’t unquestioningly trust the police.

    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.

    Brought up by whom? It has been feminists who have historically raised the issue of the low conviction rate for rape, feminists who have claimed, on the flimsiest of evidence, that false complaints are rare, and it has been feminists who have been sucessful in campaigning for changes in the way rape cases are treated by the police and courts. There is, however, little evidence that feminists in general share your concern about ‘sending someone to prison based on assessment of credibility, … based on factors that should be irrelevant (race, gender, class, looks, etc).’ For many feminists, the mere fact that the complainant is female and the accused is male is sufficient to declare him a rapist, You only need to look at the comments and guest posts on your own blog to find many illustrative examples.

    Under these circumstances, it is hardly surprising that people who disagree with the line feminists take on this issue should meet them on the battleground of feminists’ own choosing. This comment in no way endorses the often deplorable tactics used in these discussions.

    Comment by Daran — April 11, 2006 @ 5:49 pm | Reply

  4. What distinguishes rape from many other crimes is that the essence of rape hinges on consent. I’ll continue this line of reasoning in a moment but I want to touch on some features that distinguish various types of rape. With most stranger rape we can see that there is an assault component that becomes part of rape and the assault is distinguishable from the issue of consent in the sexual act. For many, or some, date rapes the assault is absent and the rape issue focuses squarely on consent. We would hope that the evidence of assault in a rape case would lend credence to the accusation that consent for sex was not given. Also, the evidence of assault can be evaluated alone, and apart from the issue of consent.

    Now back to my main line of thought. I’m trying to think of other crimes which are illegal acts only when one person claims to not consent but are legal acts when both people consent. Theft may be one – “officer, Joe really did give me this TV set as a gift” and there might be a few other acts which all boil down to consent, but assault isn’t one of them – police will break up fights even if both participants are voluntarally engaged.

    The problem with rape and the evidence that is collected after the accusation is made is that absent evidence of another crime, like assault, all the evidence shows is that a sex act took place.

    Rape is different from the drug possession case you reference because possessing drugs isn’t legal in the absence of police accusation. Sex is legal, sex without consent is illegal. There is evidence that sex took place but the evidence doesn’t speak to whether consent was given or not.

    Maybe you can explore the rape-theft comparison and draw some fruitful insight on how the issue of consent is addressed for these two crimes.

    Comment by TangoMan — April 11, 2006 @ 5:54 pm | Reply

  5. I think it’s interesting that no one has yet referred to the examination at the hospital.

    When the nurse says that the examination was consistent with rape, this often means that they have found vaginal tears.

    In extreme cases of gang rape these tears lead to vaginal fistulas and incontinence.

    I’ll continue this line of reasoning in a moment but I want to touch on some features that distinguish various types of rape. With most stranger rape we can see that there is an assault component that becomes part of rape and the assault is distinguishable from the issue of consent in the sexual act.

    Legally, this is actually not true. The act of forcefully restraint, or not allowing an adult person to leave, is a crime. People can be charged with kidnapping for that act.

    Comment by geoduck2 — April 11, 2006 @ 8:56 pm | Reply


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