Creative Destruction

June 6, 2006

Are 33% of convicted rapists exonerated by DNA?

Filed under: Feminist Issues — Daran @ 11:45 am

(Updated here.)

Betty Friedman (sic*), noted feminist author and co-founder of NOW, has had a posthumous epiphany of such magnitude that she has come back from the dead to post a critical comment to Cathy Young’s blog. Unfortunately, her new-found wisdom seems to be nothing more than the usual hodge-podge of antifeminist baloney. I may or may not address her other points in a future blog. Here I deal with the first:

In the recent decades over 33% of convicted rapist (sic) have been exonerated by DNA testing that found that they were not involved in the rape…

This claim is simply false. The origin of this and similar claimed figures is this Department of Justice Report, which says in pertinant part:

Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained (primarily by State and local law enforcement), the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive (usually insufficient high molecular weight DNA to do testing), about 2,000 tests have excluded the primary suspect, and about 6,000 have “matched” or included the primary suspect.1 The fact that these percentages have remained constant for 7 years, and that the National Institute of Justice’s informal survey of private laboratories reveals a strikingly similar 26-percent exclusion rate, strongly suggests that postarrest and postconviction DNA exonerations are tied to some strong, underlying systemic problems that generate erroneous accusations and convictions.

The exclusion rate here is 20% or 25%, depending upon whether or not you include non-conclusive tests. It certainly can’t be stretched to 33%. However, this is a side issue. More seriously, this does not stand for the proposition that 20% (or 25%, or whatever) of rape convictions have been overturned or are false. Rather it refers to “sexual assault cases referred to the FBI”. Most of these will not be convictions. Some of them won’t even be rape. Further, the authors themselves reject the contention that this figure can be extrapolated to the actual false conviction rate:

Some already have used the cases discussed in this report to argue that hundreds more innocent defendants are in prison. They contend that the current “exclusion” rate for forensic DNA labs — close to 25 percent — suggests that a similar percentage of innocent defendants were wrongly convicted before the availability of forensic DNA typing. Unfortunately, too many variables are contained in the “exclusion” rate to draw any meaningful conclusions from it. Furthermore, nothing about the cases reviewed here necessarily supports such a conclusion.

(My emphasis.)

In fact the authors of this report were able to find just 28 cases in which “convicted rapist[s] have been exonerated by DNA testing”. which is undoubtedly several orders of magnitude less than 33% of the total number of rape convictions over the period.

Moreover, only one of those cases – that of Gary Dotson – was a result of a false accusation as antifeminists typically frame the issue – i.e. a fabricated complaint. The others were convicted for a variety of reasons:

…Mistaken eyewitness identification, coerced confessions, unreliable
forensic laboratory work, law enforcement misconduct, and ineffective representation of
counsel, singly and often in combination, remain the leading causes of wrongful convictions.

Even a single case of false conviction based upon a fabricated complaint (or for any other reason) is, of course, a disaster for the individual concerned. However it is a gross distortion to cite this report (or a figure derived from it) as supporting the contention that false rape convictions are common or that false accusations are common, or that the latter are a significant cause of former.

…(which totally blows the feminist “only-2%-of-rape-claims-are-false” myth away).

The 2% figure is indeed a myth, as I have commented before and may blog about. But to cite one mythical figure to rebut another is as ironic as it is hypocritical.

*I suppose it is possible that this is the comment author’s real name, or otherwise not chosen as a reference to Friedan, but it would seem to be an unlikely coincidence, given how common this misreading of her name is.

17 Comments »

  1. the authors of this report were able to find just 28 cases in which “convicted rapist have been exonerated by DNA testing”.

    For what it’s worth, of the 180 people exonerated by The Innocence Project, I think roughly 100 had been convicted of sexual assault (among other crimes).

    Comment by nobody.really — June 6, 2006 @ 12:53 pm | Reply

  2. Also, according to a recent Continuing Legal Education class, at one point during the 1990s the majority of people on Illinois’ death row would eventually be exonerated. It’s a sobering thought, if true.

    Whatever the prevalence of false convictions, it is not obvious that this problem is peculiarly associated with the crime of rape.

    Comment by nobody.really — June 6, 2006 @ 1:05 pm | Reply

  3. …(which totally blows the feminist “only-2%-of-rape-claims-are-false” myth away).

    This is a bizarre piece of reasoning. Whether the false conviction rate is 33%, 25% or 3% doesn’t say anything about the false claim rate. A rape victim may misidentify his or her attacker or may not be able to identify his or her attacker, etc. That does not mean that the rape claim was false, only that the accusation against that particular person was false. IIRC, something like one in 7 people on death row have been exonerated by DNA evidence. That doesn’t mean that the people they were accused of murdering aren’t dead, only that the people convicted of those crimes weren’t the guilty ones.

    Comment by Dianne — June 6, 2006 @ 1:51 pm | Reply

  4. Were comments closed on this post?

    I’ve tried to post, but nothing shows up. I thought this was unmoderated.

    Comment by John Howard — June 6, 2006 @ 3:44 pm | Reply

  5. Have I been banned form commenting, or are comments not working?

    Comment by John — June 6, 2006 @ 3:45 pm | Reply

  6. Wow. I thought this was unmoderated? Wtf?

    Comment by John — June 6, 2006 @ 3:46 pm | Reply

  7. John, the blog is unmoderated. It does however have a spam trap which occasionally clobbers legitimate posts too. In this case, I think it was the word ‘sperm’ in your url and email.

    I have approved all your posts so far.

    Comment by Daran — June 6, 2006 @ 4:54 pm | Reply

  8. Sorry for overreacting, Daran. I have seen that happen to other people and always wondered what they were talking about, now I know how it feels.

    it’s 06.06.06.06.06.06

    Comment by John Howard — June 6, 2006 @ 6:07 pm | Reply

  9. […] Are 33% of convicted rapists exonerated by DNA? […]

    Pingback by Stuff You Should Read at PunkAssBlog.com — June 9, 2006 @ 8:16 pm | Reply

  10. […] In this post I indicate that I may blog about the mythical feminist figure of 2% false rape accusations. and also debunk the rest of “Betty Fried(m)an’s” nonsense. […]

    Pingback by Creative Destruction » My Blacklog — June 24, 2006 @ 4:20 pm | Reply

  11. See the parallel article here for details debunking Daran and sourcing the original comment, inlcuding a link to the original article on the USA Today website.

    Comment by DavidByron — February 2, 2007 @ 10:54 am | Reply

  12. See the parallel article here for details debunking Daran and sourcing the original comment, inlcuding a link to the original article on the USA Today website.

    All links gratefully received. See also my Rebuttal.

    Comment by Daran — February 2, 2007 @ 1:25 pm | Reply

  13. If 20% of DNA tests are inconclusive, 20% of DNA tests exonorate a suspect, and 60% of DNA tests implicate a suspect, one would suspect that among the inconclusive cases 5% would have been exonorated if the sample were better and 15% would be implicated if the sample were better.

    Presumably, almost everyone exonorated by DNA tests has the charges against them dropped. Presumably, almost everyone implicated by DNA tests is convicted.

    Presumably some case are brought in which DNA evidence is never submitted because, e.g., the police report is made too far after the fact or proper collection procedures weren’t followed.

    Generally speaking, around 95% of cases where someone is charged with a crime result in a plea bargain or convciction at trial.

    I will make a reasonable estimate of the percentage with no DNA evidence as 1/6th of cases (this is partially to make the math easy, but not grossly off).

    So, of the 100 people charged with rape and not exonorated prior to trial by DNA evidence, there are going to be 60 people convicted on the basis of DNA evidence, and 35 people convicted on the basis of non-DNA evidence, and 5 people who get off. We also know that almost all of the 60 with DNA evidence implicating them will plea bargain, that about 30 more people convicted will plea bargain and that about 10 more people will go to trial. People who are factually innocent overwhelmingly go to trial even if it isn’t in their interest to do so because the situation looks bad.

    We know that if DNA testing were better at least 15 of the 40 people charged in cases with no DNA evidence were guilty. We know that if DNA testing were beter that 5 of the 40 people charged with no DNA evidence are innocent, and it is safe to guess that 4 or 5 of them go to trial.

    I suspect that of the 20 people for whom there is no DNA evidence even submitted, not merely an inconclusive test result, that the guilty rate is probably higher than for the cases where there is DNA evidence. This is because prosecutors want stronger evidence if they can’t rely on a DNA test and don’t even have a good sample that could have been submitted. Suppose that 2 of the 20 in that group are actually innocent and that both go to trial.

    We have probably 7 innocent people going to trial, and probably 3 guilty people going to trial. Five people get convicted. Clearly at least 2 of those convicted of rape are really innocent. And, trials without DNA evidence aren’t perfectly accurate. There is a good chance that at least 1 of the 3 guilty people will go free, and so at least one more innocent person was probably convicted.

    If this is right, something on the order of 3/95 people convicted of rape are innocent. This is still closer to 3% than 4%.

    So, this data suggests that on the order of 3% of those convicted of rape are really innocent, and that half or more of those convicted at trial of rape are really innocent.

    It also suggests that of 120 people accused of rape, that perhaps 28 are really innocent. Thus, more than 22-23% of accusations of rape are probably inaccurate. While this is less than a third, it is a large number. Many false accusations are probably in good faith, but that does no good to the guy facing rape charges with no DNA evidence to bail him out — for innocent peole accused of rape in that situation it looks bad.

    My guess is that 8 out of 40, which is about 20% of people accused of rape in cases with no DNA evidence are innocent.

    The conviction rate for guilty rapists is probably close to 91/92 which is 98-99%. The conviction rate for innocent people accuse of rape is probably close to 3/28 which is about 10-11%. Convictions of the innocent probably outnumber acquittals of the guilty by 3-1.

    A third is probably a conservative number for the percentage of people convicted AT TRIAL of rape.

    Comment by ohwilleke — February 3, 2007 @ 6:37 pm | Reply

  14. 1 in 3 men convicted of rape are innocent. How else do you explain why convicted rapists have such a low recidivism rate when compared with other convicted felons? It can’t be because “rape is rarely reported!” because usually when a convicted rapist is arrested again it’s for something other than rape.

    Comment by truthteller — June 8, 2009 @ 4:45 pm | Reply

  15. True Dianne, but exoneration through DNA testing seems to indicate that not only were the men found guilty with no credible evidence presented, but that they were convicted with exculpatory evidence availible. That means that when a man is convicted that doesn’t make the rape claim true.

    Comment by John — April 11, 2011 @ 9:38 pm | Reply

  16. By rape claims I mean all rape claims. Even in cases where DNA shows a match, that only means there was sexual contact not that there wasn’t consent and we already proved that “victim” testemony trumps all else.

    Comment by John — April 11, 2011 @ 9:47 pm | Reply

  17. Rape, Rape culture & Sexual abuse

    http://mensrightsmelbourne.com/rape-rape-culture-sexual-abuse

    Comment by mensrightsmelbourne — March 29, 2014 @ 2:59 pm | Reply


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