Friday, May 04, 2007
A Question of the Standard of Proof
Every so often it gets asked in feminist left-blogostan: "why are men so concerned with being falsely accused of sexual crimes? what kind of misogyny leads to this paranoia". Well, it really isn't misogyny at all -- there does seem to be a lower standard of proof required for a sex crimes conviction than other convictions for crimes of similar gravity and consequences to the party found guilty, which lower standard not surprisingly makes anyone at all paranoid of being wrongly accused of anything, all the more concerned:
Consider the case of a robbery. Suppose Mr. X is accused of stealing from his aquaintance (sp?) Ms. Y. Y testifies that X stole from her. Surveillance video places X and Y in a room together when the alleged crime took place. But there is no other evidence that X took anything from Y -- no property of Y has turned up in the posession of X, etc. And Y, maybe because she was traumatized by the crime, maybe because she was high at the time (I'm a poet and I do know it), gets some key, verifiable facts about the evening wrong -- and hence, we don't know if we can even trust Y's testimony.
If this is the case as the prosecution presents it, would any jury rule X guilty (beyond a reasonable doubt)?
OTOH, suppose the same level of evidence exists against X engaging in lewd and lascivious conduct with Y: i.e. X is known to have been alone with Y but the testimony of the, at the time of the alleged crime, drug addled Y is the only evidence of the crime occuring. Then juries will and do rule people in X's situation guilty. People say "well, what's X doing alone with Y? he better have a pretty good explanation ..." Which doesn't that shift the burdon of proof a bit: the jury is not instructed "you are to find guilty if X doesn't have a good explanation for being alone with Y" -- the burdon is not on the defense to provide an explanation, is it?
Of course, one could argue that, in light of the accusation by Y, given the inappropriateness of X placing himself and Y alone together, it would require quite an explanation by X to instill a reasonable doubt in the accusations made by Y. Many feminists, for example, would say "why do you not believe what Y has to say? why would Y lie? especially given the stigma that will attach to Y being a victim of a sex crime?"
However, to me, as fair as it is to say that "if X didn't wanna be accused of a sex crime, he shouldn't have placed himself in the situation in which he placed himself" (of course, the real issue, assuming X to be innocent and noble in intention is our stupid drug laws that would mean X would have caused Y to experience the harm of getting arrested by doing what should have been the right thing and leaving a person in trouble, who fears for what's happening in her home, with the police!), this leads down to some slippery slopes down which this feminist doesn't want to go:
(1) shift the burdon of proof onto the defense?: doesn't that in fact give the defense extra motivation to effectively place the alleged victim on trial, so to speak? is that the direction in which we want to go -- to say to defendants, we'll ship you to jail unless you can convince us your accuser is lying? That just provides motivation for attacking the accuser, don't it?
(2) arguing that people alleging sex crimes never lie because of the stigma attached?: do we really want to argue that such damaging stigmas have any social benefit (i.e. preventing false accusations)?
The whole notion that the burdon of proof somehow shifts or that them poor wimins never lie sounds to me like patronization and anti-feminism, not feminism.
OTOH, how can we make sure dangerous sex offenders, who do their evil often without independent witnesses around and often without leaving evidence of the crime even being committed (which evidence is otherwise generally required to prosecute a crime -- I doubt you could prosecute an assault charge without the alleged victim having bruises ... but you can prosecute a sex crime without physical evidence), are locked away where they can't harm us without weakening our standards of proof in ways that not only lead down a slippery slope eroding our Constitutional protections but also are, frankly, patronizing toward women (treating them as poor creatures incapable of any guile cause they are too innocent) and otherwise open things up for more victim blaming and justification of backwards, misogynistic social stigmas?
Consider the case of a robbery. Suppose Mr. X is accused of stealing from his aquaintance (sp?) Ms. Y. Y testifies that X stole from her. Surveillance video places X and Y in a room together when the alleged crime took place. But there is no other evidence that X took anything from Y -- no property of Y has turned up in the posession of X, etc. And Y, maybe because she was traumatized by the crime, maybe because she was high at the time (I'm a poet and I do know it), gets some key, verifiable facts about the evening wrong -- and hence, we don't know if we can even trust Y's testimony.
If this is the case as the prosecution presents it, would any jury rule X guilty (beyond a reasonable doubt)?
OTOH, suppose the same level of evidence exists against X engaging in lewd and lascivious conduct with Y: i.e. X is known to have been alone with Y but the testimony of the, at the time of the alleged crime, drug addled Y is the only evidence of the crime occuring. Then juries will and do rule people in X's situation guilty. People say "well, what's X doing alone with Y? he better have a pretty good explanation ..." Which doesn't that shift the burdon of proof a bit: the jury is not instructed "you are to find guilty if X doesn't have a good explanation for being alone with Y" -- the burdon is not on the defense to provide an explanation, is it?
Of course, one could argue that, in light of the accusation by Y, given the inappropriateness of X placing himself and Y alone together, it would require quite an explanation by X to instill a reasonable doubt in the accusations made by Y. Many feminists, for example, would say "why do you not believe what Y has to say? why would Y lie? especially given the stigma that will attach to Y being a victim of a sex crime?"
However, to me, as fair as it is to say that "if X didn't wanna be accused of a sex crime, he shouldn't have placed himself in the situation in which he placed himself" (of course, the real issue, assuming X to be innocent and noble in intention is our stupid drug laws that would mean X would have caused Y to experience the harm of getting arrested by doing what should have been the right thing and leaving a person in trouble, who fears for what's happening in her home, with the police!), this leads down to some slippery slopes down which this feminist doesn't want to go:
(1) shift the burdon of proof onto the defense?: doesn't that in fact give the defense extra motivation to effectively place the alleged victim on trial, so to speak? is that the direction in which we want to go -- to say to defendants, we'll ship you to jail unless you can convince us your accuser is lying? That just provides motivation for attacking the accuser, don't it?
(2) arguing that people alleging sex crimes never lie because of the stigma attached?: do we really want to argue that such damaging stigmas have any social benefit (i.e. preventing false accusations)?
The whole notion that the burdon of proof somehow shifts or that them poor wimins never lie sounds to me like patronization and anti-feminism, not feminism.
OTOH, how can we make sure dangerous sex offenders, who do their evil often without independent witnesses around and often without leaving evidence of the crime even being committed (which evidence is otherwise generally required to prosecute a crime -- I doubt you could prosecute an assault charge without the alleged victim having bruises ... but you can prosecute a sex crime without physical evidence), are locked away where they can't harm us without weakening our standards of proof in ways that not only lead down a slippery slope eroding our Constitutional protections but also are, frankly, patronizing toward women (treating them as poor creatures incapable of any guile cause they are too innocent) and otherwise open things up for more victim blaming and justification of backwards, misogynistic social stigmas?
# posted by alberich @ 11:21 AM 
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I wonder how much personal expierence you have with this situation, because I see some flaw in your argument.
That flaw being the entire pre-trial brewhaha that survivors of sexual assult must endure before any case comes before a judge and jury.
I am not a lawyer or a government official of any sort, but what I AM is a first response sexual assualt advocate - I am often the first person a survivor will see after their attack.
Bearing this in mind, I will tell you of all of the survivors that have walked through my front door and endured a rape kit (which is not nearly as pleasant as even a standard GYN appointment) and then they get the fun game of "proove myself the the cops" -who are more likely than not arrogant asshats that have little compassion for even the most battered woman or girl. (To that end, I have worked with some fabulous cops that did a tremendous job).
Then, the case gets handed off to an overworked detective that will only give their best attention and detective-esq skills to the most obvious and easiest prooved cases.
Then, the case (no matter the shape) at some undetermined point in the future, will make its way to the prosecutors office for yet another game of "look for proof" where that person will ultimatley decide IF the case is good enough to take to court.
And all this happens only if the survivor herself doesn't withdraw her compliance with the system. It is true that an aggressor can be prosicuted without survivor compliance, HOWEVER this can only be done in casses that have rock-solid DNA evidence and lots of witnesses. In practice, unless the survivor will get on the stand (after the aforementioned circus she must travel through to get to the courtroom)there will be no conviction.
During this process with the police and court systems, the survivor is typically harrassed by friends and family of the agressor and given opinions of "this wouldn't have happened if you had just..." by her own friends and family (especially family). Along with outside blame, there is almost always self blame "I should have just..." and the reliving of the event in question where she will often talk herself out of the crime "Did I say no? I can't remember now..."
So, for all of this (which I've really only touched on) I say that the actual chance of a false accusation really is quite rare in practice. If I had to hedge my bets on a case that I wasn't involved in and knew very little about, I would always side with the survivor.
Not to say that false accusations don't happen, but I'd be willing to bet they most likely involve a high profile person (on either side of the case)and/or an overzelous MEDIA person that clinches onto a story and spins it out of control.
The sad fact is that few sexual assault cases ever make it into court and when they do, odds are really stacked for the accused, and when sentancing comes down, it is most often a horribly inadequate sentance.
I'm out of time now, so I have to go and I'd also like to add that I really (really) wish spell-check was a feature of the comments section.
That flaw being the entire pre-trial brewhaha that survivors of sexual assult must endure before any case comes before a judge and jury.
I am not a lawyer or a government official of any sort, but what I AM is a first response sexual assualt advocate - I am often the first person a survivor will see after their attack.
Bearing this in mind, I will tell you of all of the survivors that have walked through my front door and endured a rape kit (which is not nearly as pleasant as even a standard GYN appointment) and then they get the fun game of "proove myself the the cops" -who are more likely than not arrogant asshats that have little compassion for even the most battered woman or girl. (To that end, I have worked with some fabulous cops that did a tremendous job).
Then, the case gets handed off to an overworked detective that will only give their best attention and detective-esq skills to the most obvious and easiest prooved cases.
Then, the case (no matter the shape) at some undetermined point in the future, will make its way to the prosecutors office for yet another game of "look for proof" where that person will ultimatley decide IF the case is good enough to take to court.
And all this happens only if the survivor herself doesn't withdraw her compliance with the system. It is true that an aggressor can be prosicuted without survivor compliance, HOWEVER this can only be done in casses that have rock-solid DNA evidence and lots of witnesses. In practice, unless the survivor will get on the stand (after the aforementioned circus she must travel through to get to the courtroom)there will be no conviction.
During this process with the police and court systems, the survivor is typically harrassed by friends and family of the agressor and given opinions of "this wouldn't have happened if you had just..." by her own friends and family (especially family). Along with outside blame, there is almost always self blame "I should have just..." and the reliving of the event in question where she will often talk herself out of the crime "Did I say no? I can't remember now..."
So, for all of this (which I've really only touched on) I say that the actual chance of a false accusation really is quite rare in practice. If I had to hedge my bets on a case that I wasn't involved in and knew very little about, I would always side with the survivor.
Not to say that false accusations don't happen, but I'd be willing to bet they most likely involve a high profile person (on either side of the case)and/or an overzelous MEDIA person that clinches onto a story and spins it out of control.
The sad fact is that few sexual assault cases ever make it into court and when they do, odds are really stacked for the accused, and when sentancing comes down, it is most often a horribly inadequate sentance.
I'm out of time now, so I have to go and I'd also like to add that I really (really) wish spell-check was a feature of the comments section.
# posted by 
: 4:34 PM
: 4:34 PM
If I had to hedge my bets on a case that I wasn't involved in and knew very little about, I would always side with the survivor. - Amy
But that's not the legal standard, now is it? Unless the argument is that it's not reasonable to doubt a survivor's story because of the hoops the survivor has gone through.
But doesn't that reasoning implicitly say that those hoops have a legitimate function? Which legitimization is a frightening thought to those who hate what those hoops due to rape/sexual assault survivors (and you are correct to note my lack of personal experience).
*
In the case on my mind, though, unless there were statements taken, etc., which were not entered into evidence (and which then should have been entered into evidence as they would have gone to the credibility of the accusations), there wasn't quite so much brewhaha pre-trial, although, to repeat, I would not exactly be in a position to know.
Actually, and this might support your point, the presumed survivor didn't even report the crime. She and the defendant were spotted on a surveillance tape and then the question was raised and investigated -- what were they doing in that location at that time?
The survivor took some time, after being told she was seen on a surveillance tape, to tell what happened ... which is consistent with a really traumatized victim. But it's also consistent with someone who could be in major trouble for smoking a bunch of pot and then sneeking out of the flat where she was supposed to have spent the night after a babysitting job.
If she was subjected to more than the amount of questioning indicated in the trial ... then it would certainly have been evidence that "she's really sticking to her guns here ... it's unreasonable to believe she'd go that far to avoid being in trouble", and I would have appreciated if the prosecutor provided some evidence regarding how many times she had to retell her basic story.
But I am also uncomfortable with the idea of using "jumping through hoops" as a weeding out process to separate out false accusations.
To me this is a horrible problem -- and I wish we wouldn't have to deal with it. But perverted criminals are out there. As are people willing to make false accusations. So what are we to do?
But that's not the legal standard, now is it? Unless the argument is that it's not reasonable to doubt a survivor's story because of the hoops the survivor has gone through.
But doesn't that reasoning implicitly say that those hoops have a legitimate function? Which legitimization is a frightening thought to those who hate what those hoops due to rape/sexual assault survivors (and you are correct to note my lack of personal experience).
*
In the case on my mind, though, unless there were statements taken, etc., which were not entered into evidence (and which then should have been entered into evidence as they would have gone to the credibility of the accusations), there wasn't quite so much brewhaha pre-trial, although, to repeat, I would not exactly be in a position to know.
Actually, and this might support your point, the presumed survivor didn't even report the crime. She and the defendant were spotted on a surveillance tape and then the question was raised and investigated -- what were they doing in that location at that time?
The survivor took some time, after being told she was seen on a surveillance tape, to tell what happened ... which is consistent with a really traumatized victim. But it's also consistent with someone who could be in major trouble for smoking a bunch of pot and then sneeking out of the flat where she was supposed to have spent the night after a babysitting job.
If she was subjected to more than the amount of questioning indicated in the trial ... then it would certainly have been evidence that "she's really sticking to her guns here ... it's unreasonable to believe she'd go that far to avoid being in trouble", and I would have appreciated if the prosecutor provided some evidence regarding how many times she had to retell her basic story.
But I am also uncomfortable with the idea of using "jumping through hoops" as a weeding out process to separate out false accusations.
To me this is a horrible problem -- and I wish we wouldn't have to deal with it. But perverted criminals are out there. As are people willing to make false accusations. So what are we to do?
I wonder how much personal expierence you have with this situation, because I see some flaw in your argument.
That flaw being the entire pre-trial brewhaha that survivors of sexual assult must endure before any case comes before a judge and jury. - amy
Just another follow-up (in case anybody's lurking 'round): the same argument could be made about the accused ... that he didn't plea out means something? Also, if there is meta-evidence about the likelihood of people who are making false accusations going through to trial, that may have helped me decide as to whether my doubts were reasonable. But no such concrete evidence was presented.
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That flaw being the entire pre-trial brewhaha that survivors of sexual assult must endure before any case comes before a judge and jury. - amy
Just another follow-up (in case anybody's lurking 'round): the same argument could be made about the accused ... that he didn't plea out means something? Also, if there is meta-evidence about the likelihood of people who are making false accusations going through to trial, that may have helped me decide as to whether my doubts were reasonable. But no such concrete evidence was presented.
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