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June 23, 2014

"Unfounded" Does Not Mean "Found Innocent"

In reading coverage of various rape and/or sexual assault accusations, I've been struck repeatedly by the bizarre conflation of the term "unfounded" with the words "false", "false accusation", and "proven innocent" to describe accusations that never made it to court. Here's an example from today's reading:

Glenn Reynolds highlights a rather touchy story from across the pond, where Peter Lloyd, writing for the Telegraph, points out that the assumptions of both innocence and privacy are handled rather unequally in sexual assault cases. The primary case under discussion involves the handling of laws in the UK, but parallel debates are taking place in the United States today. Lloyd speaks rather passionately about what happened to Oxford University Union President Ben Sullivan following what turned out to be two unfounded rape allegations.

What does "unfounded" mean, here? What is being (strongly) suggested to us? To the average layperson, "unfounded" means "without foundation": "groundless, idle, false, unjustified, unsubstantiated". But insofar as the Editorial Staff are aware, courts do not find defendants innocent. Courts *must* acquit defendants whenever evidence sufficient to prove their guilt beyond a reasonable doubt (!) - that's a very high bar, by the way - has not been presented. But acquittal does not establish a defendant's innocence of the charges presented. It cannot do that. And this case never went to trial, so we don't even have so much as a thorough examination of the facts resulting in acquittal upon which to base the loaded term, "unfounded".

It seems ironic for folks who complain of the misleading conflation of sexual assault (which may or may not include forcible rape) with rape to commit such a similar - and likewise misleading - feat of verbal misdirection:

I suppose the first question would be, why do we – generally be default – provide anonymity to anyone involved in a pending criminal case? It seems to be restricted to sexual assault for the most part. You never see a robbery where the name of the accused thieves (or the bank, for that matter) are withheld from the public. But we can have a greater deal of sympathy for a rape victim, as such publicity can be tremendously painful on top of the damage already done.

But what about the damage to accused if the allegations turn out to be false? Ben Sullivan is one example in the UK, but America faces the same situations regularly.

Is Ben Smith really an example of a case in which the accusations turned out to be false? How do we know that? Where is the evidence?

The presumption of innocence works both ways, and those who wish that standard to be applied to their favored party will have more credibility if they do not - without strong evidence - declare rape accusers to be guilty of legal fraud and/or malicious prosecution.

What Sarah Pine (note: she is not the accuser in this story) did was reprehensible and contemptible. But if she was wrong to presume Smith's guilt, is it not also reprehensible and contemptible to publicly declare his accusers to be liars? Doesn't doing so conflate a lack of evidence sufficient to go to trial with proof that the accusations were false? Isn't this exactly the same offense so many on the Right been complaining about? If we can't even get the basics right (pun fully intended), what does this do to the credibility of our due process arguments?

In the discussion to one of Grim's posts, he posted a link to this story:

Reed first reported her rape to Los Angeles police in November 2012, a week after she obtained audio of her assailant apologizing for the assault. Reed had already reported the assault to the University of Southern California in August 2011, where both she and her assailant were students, and against which she would later file a federal complaint.

Reed said that the detective who picked up her case, Derek Fellows, led her to believe he would wait until he interviewed her before he sent the case to the district attorney. Instead, Reed found out in January 2013 that her case had already been forwarded without an interview or even an official statement from her about the incident.

Reed said that her subsequent attempts to provide more evidence, including a confession in writing and audio recordings of the assailant admitting his guilt, went nowhere. Fellows finally told Reed in an April 2 email that the DA had rejected the case.

"It's the opposite of transparent," Reed told HuffPost. "They closed the case without ever talking to me."

We need to be careful not to base our side of this painful debate on hype. There are real people on both sides, and I often think in our eagerness to refute Those Horrid Feminists we end up committing exactly the same offenses we're complaining so much about.

Less heat, more light.

Posted by Cassandra at June 23, 2014 08:32 AM

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Comments

So then, what are we left with as an alternative? To walk around forever labeling someone as "an accused rapist"? After all, he was never found "innocent", merely not guilty. How would someone go about clearing their name? Sue the accusers for slander?

Posted by: MikeD at June 23, 2014 11:12 AM

That's a good question.

First of all, I don't think it's up to 3rd parties (especially ones with an agenda) to clear anyone's name for them. Even if it were their job, I don't think using an inaccurate/misleading label is either the right way to go about it or sufficient to clear their name.

What's wrong with simply saying (if you're discussing the issue), "so and so was accused of rape, but the case was never brought to trial/the school ruled there was insufficient evidence for X." That's really the only context in which this would normally come up, and more information is better... if you actually have it, that is.

Either way, I don't think essentially making things up is the right answer, and I'm pretty sure misleading people or answering one unsubstantiated accusation with another isn't, either.

Suing an accuser for slander is one remedy - it's a civil remedy designed to protect reputations but I'm not sure such a case would succeed due to the difficulty of proving a negative.

There are a lot of problems in life that have no simple fixes and this is one.

The people we (we being 'the right') are generally most concerned with here are guys who get into drunken hookup situations. We tell girls who get into those situations and either really *are* assaulted or decide they've been assaulted that they should have avoided the situation in the first place. Or we tell them they should have kept their legs crossed, or that they should have shown better judgment in their dating partners. What should we tell young men who put themselves in those same situations? Is it wrong to say the same things to them? "You know, you put yourself in a bad situation and it really bites that you had to go through this but no one has the power to make it as though this had never happened."? That's basically the situation, here.

Anyone can say anything bad about a person. It's a danger of every day life.

We're not able to correct the record for a young woman who may really have been attacked but is slandered online by bloggers trying to make a rhetorical point, either. Is it fair for her to go through her life known as a "false accuser" and liar? I don't think so, and falsely accusing someone on the mere suspicion that they have falsely accused another person seems wrong to me.

It's not even plain to me (haven't read up on this particular story enough) that an official lack of anonymity policy for the accused was even the cause of what happened here. Did the school disclose his identity?

Or did it spread via gossip (the grapevine)? My personal opinion is that schools shouldn't discuss pending disciplinary matters with anyone until the matter has been investigated and adjudicated. And I'd be surprised if they do this often due to the fear of being sued. At the same time, do we want to tell schools that no matter what someone has been accused of, they can never take any action whatsoever until the accused has been declared guilty in a court of law?

That doesn't seem right to me, either.

Posted by: Cass at June 23, 2014 01:56 PM

If I understand it correctly, "unfounded",means exactly the same thing as "not guilty" in legal proceedings since it fulfills the reasonable doubt requirement. I tend to view such things from a literal perspective.

Posted by: Joatmoaf at June 23, 2014 02:55 PM

What's wrong with simply saying (if you're discussing the issue), "so and so was accused of rape, but the case was never brought to trial/the school ruled there was insufficient evidence for X."

There is a thing we hear people say, which is "A person is innocent until proven guilty." This seems to violate that idea, because it means that the accusation must always be treated as a kind of open question.

Maybe the right thing to do in these cases is to seal the names of both accuser and accused in cases of accusations of rape or sexual assault, and keep the seal on both names intact if there is not a conviction. The name of the accused could be published if there is a conviction; if the process uncovers an actual intentionally false accusation, the name of the accuser. There probably ought to be a separate offense for "knowingly and intentionally accusing someone falsely of a felony," because it's no jesting with sharp tools.

That doesn't fix the problem from the link I cited earlier, which you provide here: that guy would end up being protected from an infamy that he probably deserves. That case probably should have gone to trial, though: it may be one of those cases where the rules are mostly right, but the execution fell down.

Posted by: Grim at June 23, 2014 03:23 PM

I'll come at this one from a perspective of a former juror who has sat on a major criminal trial. Do you really want me to throw out the idea of reasonable doubt? I should convict solely because the prosecutor has brought the charge?

I can tell you exactly why the prosecutor didn't go forward with the one woman's accusation. The incident occurred in August 2011, and wasn't reported to the LAPD until November 2012. That alone plants a seed of doubt, and you can bet your last dollar the defense is going to water that seed.

Then again, as I mentioned, we can eliminate a jury and just go right to the sentencing phase after the accusation.

Posted by: Allen at June 23, 2014 04:14 PM

Who suggested doing away with reasonable doubt?

Posted by: Cass at June 23, 2014 04:28 PM

I only mention it because that's the whole basis for a conviction in a state brought criminal case. It's no surprise that universities have set up a quasi legal system for what is a criminal charge. They don't have to adhere to the same rules as the state.

I do understand the difficulty of securing a criminal conviction in a rape case (I've talked to some folks at our local woman's shelter). But, if we're talking about criminal charges we have to talk about it in context of our existing legal system. If you want to change the existing legal structure, fine by me, just convince a whole lot of other voters to go along.

The presumption is innocence. A not guilty verdict confirms that presumption. Even for some very bad people.

Posted by: Allen at June 23, 2014 04:45 PM

Why not some kind of a counter-accusation of filing a false claim?

Not just a mistaken one, not just one that can't be supported enough for the accused to be found guilty, but sort of a higher level of filing a false report?

That would help with the "they were accused" forever tainted thing without making "not enough to be found guilty" the equivalent of "innocent."

The poetic side of me says that the false accuser should be punished based on what their knowingly false accusation put the accused at risk of, but eh.

Might also cut back on the abuses I'm pretty sure everyone has heard about, and that I've seen first hand.

Posted by: Foxfier at June 23, 2014 05:26 PM

That's a great question, Foxfier. But filing a false police report is already both a federal and state crime. It's been around for ages.

The presumption of innocence, Allen, means only that the burden of establishing facts sufficient to prove criminal guilt rests on the prosecution. If the prosecution fails to meet that burden, the defense need not call a single witness or introduce a single piece of evidence: the defendant must be acquitted.

Hopefully we all understand that this does NOTHING to establish the innocence of the defendant. All it does is prevent the State from punishing him or her for that crime.

Both the stories I linked to today never made it into court. So talking about the presumption of innocence makes no sense here. It doesn't apply to what ordinary citizens believe or say - no duty is laid upon them and the defendant has no right to demand that every person in America presume his innocence (much less loudly declare or defend it!).

A not guilty verdict does NOT confirm the presumption - that's just not how the legal system works. When the existence of a single doubt force a jury to acquit even though there may be plentiful evidence of guilt, it makes absolutely no sense to declare that not having met such a high bar "proves" anything about innocence.

A not guilty verdict prevents the State from trying the accused again for the same crime and prevents the State from appealing (except in rare cases). But civil actions can be brought for the same offense in the same jurisdiction and a person acquitted of a state crime can be tried in federal court under the federal statute without invoking double jeopardy.

It's no surprise that universities have set up a quasi legal system for what is a criminal charge. They don't have to adhere to the same rules as the state.

There's a good reason for that. Universities can't send anyone to jail. The burden of proof and the penalties for criminal offenses can't be neatly severed from each other. The burden of proof is so high because the penalties are so severe.

Posted by: Cass at June 23, 2014 05:58 PM

If I understand it correctly, "unfounded",means exactly the same thing as "not guilty" in legal proceedings since it fulfills the reasonable doubt requirement. I tend to view such things from a literal perspective.

From a literal perspective, a legal standard that produces acquittals if there's even the smallest reasonable doubt (even if, as in the case I cited, there are both written and recorded confessions) can't reasonably be said to prove there was "no foundation" for the accusation.

I'd say a written confession is pretty strong evidence. So is a recorded confession.

It's not at all uncommon for information unknown to either the defense or prosecution to come out at trial. That's one reason we *have* trials in the first place, as opposed to the State not even bothering to take a statement or investigate an accusation and then declaring the matter settled for all time (and don't you dare suggest the accused might have done the dirty deed!).

In both cases, no trial occurred. In the second case, there was no investigation. I believe the prosecutor's decision is defensible, by the way. Tragic, but defensible. We don't live in a world with infinite time and resources.

But to claim that anything was ever proven about innocence or guilt (without so much as an investigation) is just perverse.

Oh, and Allen, I'm not convinced a jury might have considered a delayed report to be reasonable doubt. They might, or they might have listened to all the evidence that came out at trial and returned a guilty verdict.

As I said earlier, the decision not to prosecute is defensible but cannot be substituted for an actual investigation. It was a judgment call, not evidence.

Posted by: Cass at June 23, 2014 06:09 PM

Foxfier:

In addition to the State deciding to bring criminal charges against a false accuser for filing a false police report, the accused also has two civil remedies:

Abuse of process and malicious prosecution.

These torts have been around since the early 1990s (and I'm guessing much, much longer).

Posted by: Cass at June 23, 2014 06:16 PM

Well, in the case I had to sit on we found the defendant not guilty on one of the charges based solely on the fact that the defendant's actions didn't meet the standard of the statute.

So it's not just beyond reasonable doubt it's also that the prosecution must show that it meets the statute. It's one of the reasons why rape convictions can be difficult to obtain. The prosecution must also prove that the victim did not, or could not, consent according to the existing statute.

To my knowledge that's how the jury came down in the Zimmerman trial. The prosecution failed to show the defendant's actions met the statute for the charged crime.

That's why they usually go with lesser included charges. Unless the prosecutor's ego runs away with their reason.

Posted by: Allen at June 23, 2014 06:52 PM

... in the case I had to sit on we found the defendant not guilty on one of the charges based solely on the fact that the defendant's actions didn't meet the standard of the statute.

I think that's the right and proper thing to do :)

You can think the defendant is a scurvy scumbag and still acquit if evidence of his scumbaggery doesn't rise to the level outlined by the statute.

You can even believe with your whole heart that he did it and be forced to acquit.

That's what's so wrong in my mind with claiming that an acquittal "proves" innocence. It doesn't, because an acquittal can be secured without a single piece of exculpatory evidence and without demonstrating that the accusation was false.

Posted by: Cass at June 23, 2014 07:14 PM

There is a thing we hear people say, which is "A person is innocent until proven guilty." This seems to violate that idea, because it means that the accusation must always be treated as a kind of open question.

*sigh*

You typical White people are all alike!

Just decide who you want to "win" and declare the matter settled and beyond question. Works for me!

Posted by: Barack Obama at June 23, 2014 07:28 PM

"You can think the defendant is a scurvy scumbag and still acquit if evidence of his scumbaggery doesn't rise to the level outlined by the statute."

The hell you say!

Posted by: DL Sly at June 23, 2014 07:52 PM

Heh, I've probably flogged this horse enough. The funny thing is I believe in redemption and rehabilitation for some crimes. Some of my best employees were ex-cons.

After much practice, my first commandment: Be not unjust, for an injustice may be committed against you.

Posted by: Allen at June 23, 2014 07:54 PM

Just decide who you want to "win" and declare the matter settled and beyond question. Works for me!

Yeah, I've noticed how well that works for you.

Posted by: Grim at June 23, 2014 09:18 PM

"Unfounded" doesn't come from cases that made it to court. "Unfounded" is used in a law enforcement or investigatory context, and normally it really does mean "proven untrue." In other words, the default ("Somebody made an accusation and that's all we have") is "founded." A case may be "unfounded" if, for example, the accuser recants.

(Though even then not necessarily. I once defended a sex allegation, of which I'm not going to give the details, except to say - the accuser was very young; the physical evidence proved that the acts she described couldn't have happened; she recanted everything not too long after the allegation; but the state agency and Army CID still "founded" the case and "titled" my client. This was because the state social worker was angry that my client exercised his right to silence, and the Army deferred to her "expert" judgment.)

Posted by: Joseph W. at June 23, 2014 09:32 PM

I did quite a bit of Googling Monday morning on founded vs. unfounded and had inferred from that the term has nothing to do with court cases (that's why the title of this post used the term "found" innocent: I was trying to say that a classification by police (with or without the required investigation - I'll return to this later) is not the same as a court ruling after a trial. It's more like a preliminary investigation with very little outside oversight.

A trial is different from a police investigation in several ways:

- A trial is presided over by a judge whose job it is to make sure the law is correctly applied and who is supposed to be impartial. If he applies the law wrongly, that creates grounds for appeal and most judges don't like to be accused of reversible error. So there's built in oversight along with at least some incentive not to be unfair to the defendant. Not sure there's the same incentive not to be unfair to the prosecution - I don't know enough about whether a criminal 'not guilty' verdict can be set aside if there's significant judicial error. The only cause I read was proof that the judge had been bribed.

- Both parties are represented, and both sides can produce evidence and witness testimony.

- There's usually a jury, so the decision about whether the facts prove the elements of the crime is separated from sentencing - another control and a powerful check on the State's power.

- Trials are usually open to the public - yet another check on the power of the State.

None of these things are true of police investigations. That's why I think classifying an accusation as unfounded can't fairly be considered sufficient to establish innocence (absent, of course, some deal killing fact like proof the defendant was elsewhere at the time the crime was committed, or proof someone else committed the crime).

Most of the references I found yesterday concluded that federal stats on unfounded reports were pretty much worthless. An unfounded report could be ruled false or baseless (not the same as false). And there are plenty of well documented cases of police incorrectly classifying cases. In most cases, the problem was lax standards and pretty much zero oversight.

New York, New Orleans, Philadelphia, and Baltimore (right near where I live) have all had major scandals over this issue. From a story on the Baltimore investigation:

The young East Baltimore woman gave police a vivid description of her rape: A man snatched her off the street and used a pocketknife to force her into the darkness of Ellwood Park. Then the pregnancy test conducted during her medical examination came back positive. Police grew skeptical and confrontational. The details of her story changed with each telling. "They started making it seem like I had cheated on my boyfriend, got pregnant and wanted to hide it," she said recently as she hugged her son, now 9 years old. "I guess my details weren't as good as they were the first night." The woman stopped cooperating, and police classified the case as "unfounded," meaning they found the woman's report to be baseless. But it wasn't. Last year, Lawrence Mosley, a Baltimore man behind bars for another crime, was convicted of raping the woman, who was 19 at the time of the December 2000 attack. Not only did the woman testify in court, but DNA evidence from her rape kit — which had been kept and catalogued for nearly a decade even though police didn't believe her — was central to the trial. Mosley's DNA also matched evidence from the kit of another woman who had been attacked two days earlier under similar circumstances, according to police reports.

re: recanting accusers. It seems to me that if police do not consider written and recorded confessions by a suspect to be strong evidence of guilt, then a recantation can't be weighed more heavily. Recanting creates a credibility problem and a lack of evidence problem (since most rapes have no outside witnesses, the accuser's testimony comprises most of the evidence). But I would not consider recantation to be evidence of innocence. I can think of a lot of reasons an accuser might decide not to cooperate - including threats, family pressure, and simple stress.

Courts and police cannot simply ignore recanted accusations, and what happened to your client is clearly wrong. But in the case of young accusers (and most rape cases involve children or very young women), recantation and conflicting testimony are not at all uncommon. Again, they create an evidence problem but I think it's wrong to interpret them as "proof of innocence/proof of false accusation".

The physical evidence in your case seems far more compelling to me, and it's disturbing that it was set aside.

Posted by: Cassandra at June 24, 2014 07:41 AM

What's wrong with simply saying (if you're discussing the issue), "so and so was accused of rape, but the case was never brought to trial/the school ruled there was insufficient evidence for X." That's really the only context in which this would normally come up, and more information is better... if you actually have it, that is.

My objection to this is that human nature will hear "so and so was accused of rape" and an association will be formed that will say "rapist" in the listener/reader's mind.

For the record, I also object to suing/prosecuting the accuser because of the massive chilling effect this would have on other rape victims coming forward. Getting victims to come forward is already hard enough.

All that said, my objection is the idea that someone found "not guilty" of a crime shouldn't be called "innocent". Because "innocent" IS the default. To say "well, they found reasonable doubt that Joe Schmoe is a rapist, but that doesn't mean he isn't" is tantamount the the assumption that he IS a rapist, just an unconvicted one. And that OUGHT to be slander, in a just society. The accusation of rape is about as serious (in my mind) as the accusation of murder. And to taint someone with that is not something that society should take lightly. But by the same token, I do NOT want victims to suffer if the prosecution drops the ball and lets an actual rapist go free (which can indeed happen).

So all told, I favor Grim's solution of sealing the names of both the accuser and the accused, and only releasing the name of the accused in the event of a conviction.

Posted by: MikeD at June 24, 2014 09:39 AM

To say "well, they found reasonable doubt that Joe Schmoe is a rapist, but that doesn't mean he isn't" is tantamount the assumption that he IS a rapist, just an unconvicted one.

That's not really the case, though. First of all, reasonable doubt doesn't mean there's NO evidence of guilt - just that a reasonable person might justifiably doubt his guilt. That's a LOOOOONG way from his being proved not to have committed the crime.

Secondly, there's a HUGE difference between admitting he *might* be guilty and assuming he is definitely guilty. I don't assume anything about the guilt of someone who is acquitted (either that they are innocent, or that they're likely guilty). Such assumptions aren't reasonable, nor are they based on facts.

I admit what I know, and no more. And I don't claim to know more than the facts actually support.

In any event, I would have precisely the same objections to someone labeling an acquitted defendant "guilty" as I do to people labeling a rape accusation "false" and the accuser a "liar": "provide evidence for your claim or stop talking ignorant trash".

Absence of evidence is not evidence of absence.

Posted by: Cassandra at June 24, 2014 09:51 AM

Cass- the problem is that suing someone for damages is quite a bit different (especially if they don't have money) than thinking "Should I make this false accusation? If they find out I totally made it up to hurt him, I could go to jail for ___."
Abuse of process and malicious prosecution shouldn't depend on the victim having the money to sue, and the accuser caring enough about money to pause at it.

Posted by: Foxfier at June 24, 2014 10:36 AM

Foxfier:

Abuse of process and malicious prosecution are torts (civil actions). They are designed to 'make the plaintiff whole', either by compensating him for damages he suffered as the result of an act society recognizes as being wrong or by ordering some kind of injunctive relief (court orders to do or refrain from doing something). The remedies are generally monetary compensation or equitable relief ("fairness").

That's just the nature of torts. FWIW, the fear of civil actions is why many news orgs use such careful language when describing unresolved cases (alleged, accused, allegations rather than perpetrator, rapist, etc.) They're afraid of being sued for defamation.

Abuse of process and malicious prosecution are only some of the available remedies. As I mentioned earlier, there are also criminal remedies at both the state and federal level.

But individuals can't bring criminal charges (as many actual rape victims have found out). You have to convince the police, and then the prosecutor, to try the case, then you have to convince a jury or judge of guilt by providing evidence.

My point was that we already have laws on the books to deal with this situation and there are already a variety of remedies of the type you suggested in your first comment.

Are they perfect or guaranteed to work? Nope. But that's true across the board. There are no guarantees.

Posted by: Cassandra at June 24, 2014 10:58 AM

"Not guilty, of course. Where do I go to get my reputation back?" is the punchline to a joke for most people.

Posted by: htom at June 24, 2014 01:56 PM

Where do I go to get my reputation back?

Yanno, I can remember my sons looking at me like I had two heads and a forked tongue when I told them that their reputation was one of their most valuable possessions and they needed to take great care with it because once lost, it would be very hard to get back.

It sounds like such a stuffy thing to say. But if everyone were careful with their reputation, a good one wouldn't be worth anything at all. It would be taken for granted.

I am still having a lot of trouble wrapping my mind around the expectation that a person should not have to exercise any care in who they hang around with (or have sex with, apparently). Nor should they have to be careful about getting really drunk, or being alone with people of the opposite sex who are obviously drunk.

We have no problem lecturing young women all day and night about the need to be careful and the dangers of not doing so. What I don't get is, given all the hype over the terrible crisis of the minority of young men who get drunk and hook up with drunk girls, or sleep with people their hardly know, or do any number of the dumb things we find so unacceptable in girls, why we don't have the same expectations for our sons?

The answer isn't for girls to act like boys. The answer is that if you're old enough to have sex and drink, you need to act like an adult and exercise reasonable care.

I don't think I've read a single story yet about this happening to a guy who never drinks or hooks up. If this is really such a looming threat with life changing consequences, doesn't it make sense to actually treat it like one?

This really doesn't seem like rocket science to me.

Posted by: Cassandra at June 24, 2014 04:04 PM

Cassandra-
I know an entire shop full of guys who were accused of criminal sexual harassment, and would have had their careers ended and been forced out of the Navy, had the liar not been taunted by the other female in the shop that the accused woman's career wouldn't be ruined... so the liar accused the woman's fiance of rape. He was arrested and removed from his position at the start of the investigation....

Where they found out that at the time and place she claimed he'd cornered her in a warehouse, the guy was not only out of state, but was actually doing an aviation demonstration in front of a ton of high ranking officers.

The accusations were quietly dropped and in theory removed from the folks' records, but nothing ever happened to the false accuser and she even got what she wanted-- moved out of the shop to a position where she didn't have to do as much work. (She was evil crazy. Also my Navy assigned room-mate. Fun fun fun.)

So yes-- guys who don't drink and do nothing but work in the same general area as someone who wishes harm can be falsely accused of rape.

Posted by: Foxfier at June 24, 2014 07:39 PM

It seems to me that if police do not consider written and recorded confessions by a suspect to be strong evidence of guilt, then a recantation can't be weighed more heavily.

In the circles where I move (including the Armed Forces right now), "rape guilt ideology" is the norm (including the idea that rape accusations are 98% true - a falsehood that originates with Susan Brownmiller but has been repeated so often as to be believed implicitly). Accusations are gospel; confessions are unshakable. To "unfound" a case in these places you really do have to prove it false somehow, and even then law enforcement will stretch a mile to "found" and "title." (That way, someone else can take responsibility for not prosecuting.)

The one exception I know is in the prison sex assault statistics kept by the Bureau of Justice Statistics. Up through 2008 they had reports of prison sex assaults reported to prison officials. "Founded versus unfounded" was defined simply as "Did the prison officials believe it or did they not?" In the 2008 report, if I remember, they "unfounded" about 87% of the reports...unsurprising; prisoners do lie and they love to play the victim card.

Since 2008, the only reports I've seen have been prison sex assaults reported by prisoners in anonymous surveys. The rates are of course much higher and there is no "founded/unfounded" distinction; but there is no vetting whatsoever to see how many are true.

(btw, these "assault" statistics lump in everything from copped feels to full-on forcible buggery; so the physical evidence you might expect from the latter may not be present to make it obvious. I suspect a lot of the "unfounding" has to do with the character of the accusers, but the reports don't give details.)

Recanting creates a credibility problem and a lack of evidence problem

I've also heard that bears excrete their wastes in the woods.

(since most rapes have no outside witnesses, the accuser's testimony comprises most of the evidence).

Disagree. Real, forcible, non-dubious rapes have physical evidence as well...injuries, signs of a struggle, and so forth; and that certainly can be "the bulk" of the evidence, just as it is in homicides (where the victim can't accuse anyone). The dubious ones are the he-said-she-saids, the ones that physically look just like consensual sex, only the accuser is claiming she "just froze up" and couldn't resist.

I think it wouldn't be proper to tell you the details of some of the fact patterns I've seen go to trial and acquittal...but they're cases that really strained credulity, and the defense won only by bringing strong positive evidence that the thing was fabricated.

The current political climate being what it is, in my experience the defense has to disprove rape, or the factfinder will default to "she said so; believe her." The prosecution will be very aggressive about suppressing some kinds of evidence of innocence...e.g., that the accuser is mentally and emotionally unstable, or regularly acts the way the defendant said she acted.

That turns trial into a pure swearing contest, inviting the jury members to detect lies just by watching the witnesses' demeanor. But human beings are really really bad at that...like, coin-toss bad.

But I would not consider recantation to be evidence of innocence. I can think of a lot of reasons an accuser might decide not to cooperate - including threats, family pressure, and simple stress.

So, you think a woman who says "he did it" is evidence of guilt. But a woman who says "he didn't do it" is not evidence of innocence. What chance does the accused have?

You're forgetting the difference between "evidence" and "conclusive proof." A recantation could possibly be false...but it's still evidence.

It's gotten so bad that, a few years ago, Congress actually tried to reverse the burden of proof on consent in military cases. (Fortunately, the Court of Appeals for the Armed Forces put the Constitution over political correctness and said "no" to that one.)

Posted by: Joseph W. at June 25, 2014 12:10 AM

So, you think a woman who says "he did it" is evidence of guilt. But a woman who says "he didn't do it" is not evidence of innocence.

That is neither a fair nor accurate reading of what I wrote. What I wrote earlier was,

... if police do not consider written and recorded confessions by a suspect to be strong evidence of guilt, then a recantation can't be weighed more heavily.

In other words, why should one statement be weighed more heavily than another? Shouldn't the same standard apply to both - they're both evidence. I never argued otherwise if you go back and read what I wrote carefully. I'm saying they're both evidence.

If the police don't view non-coerced admissions of guilt to be strong evidence of guilt, what chance is there of a conviction?

What you're ignoring - I'm not sure why - is that even in cases where there is strong physical evidence of forcible rape (that's NOT what this post was discussing, by the way) it is extremely common for the victim's testimony to be inconsistent.

I am on record - strongly, for YEARS now - as arguing that there's a *big* problem with the way the military handles these cases. So I don't need to be convinced of what I myself have written about so many times. If I didn't care about it I would hardly have written about it so many times.

But balance is important, and I have noticed a trend lately of treating all accusations as presumptively false. That is what I objected to in this post, and the point was that people should keep an open mind and not assume more than they can reasonable deduce from the evidence.

That cuts both ways.

Posted by: Cassandra at June 25, 2014 07:23 AM

In other words, why should one statement be weighed more heavily than another? Shouldn't the same standard apply to both - they're both evidence.

I don't know the first thing about police work, but I do know about intelligence. And since this has often been a life-or-death matter, it's a problem I've taken very seriously.

The answer to that question is external to the statements. Treating them as 'both being evidence' is to put them in a logical category in which they are equivalent -- but that is just the wrong thing to do. The right thing to do is to develop angles on the statements that tend to provide clarity, or to corroborate, or to suggest motives for why the information has been provided that can help you evaluate its credibility.

I spent a fair amount of my time in Iraq talking intelligence officers out of recommending raids on people against whom they'd received apparently damning intelligence. Yes; but look at the question of from whom you received it! Look at their motives for providing it -- doesn't it eliminate a key rival? (Also, I think unrelated to issues of law and justice: Look at the structure of the tribe of which this person is a part, and the destabilizing influence of taking him out if you aren't much more certain of his wickedness.)

In any case, two statements from two people are not equal -- no more than two people are equals, as if they were some measure of flour or salt. Of course the better person may sometimes lie for their own advantage, being human; the worse person -- the one with four or five prior offenses, perhaps -- may sometimes be innocent of the particular offense.

But we are destroying people's lives, here, by acting if we do. So we ought to take some care to destroy only those lives that we can be reasonably certain deserve it. (Another concern improper to law and justice, but important in war: and if we can afford to.)

Posted by: Grim at June 25, 2014 09:32 AM

Of course, in intelligence work the subject is never really "cleared," which may be what you're after. A claim rejected today can become more damning tomorrow, or a year from now, or ten years from now, as new evidence approaches it. The hand of vengeance waits forever over each of its targets, and though it may never strike, never is it fully set aside.

Only the law does fully set aside the danger, after a while. So you're putting the hovering hand of vengeance in popular opinion: it was never resolved, and we can forever continue to evaluate our hate for a man who may, after all, have been guilty.

Posted by: Grim at June 25, 2014 10:15 AM

..we are destroying people's lives, here, by acting if we do

I think that's a bit of an exaggeration if we're talking about a ruling of founded vs. unfounded. Even if an accusation is founded, that doesn't mean it will go to trial.

And even if it goes to trial, that doesn't mean the accused will be convicted. And if he is convicted, it won't be solely on the weight of the founded classification, but because a jury weighed all evidence presented and decided that the elements of the crime had been established beyond a reasonable doubt.

I have to say that I am really shocked - deeply - to see such one-sided arguments. The entire criminal justice system is heavily weighted towards acquittal. And the stats bear this out - only a very tiny fraction of cases that make it to trial result in convictions.

Meanwhile, some of you seem not to understand how devastating it would be to be a rape victim, to do the right thing and go to the police and (contra Joseph's experiences) have them treat you as though you were the person who did something wrong. Or do nothing. Not process your rape kit (why the hell did you even submit to an exam if they weren't going to process it?), not interview you, decide that the extremely common and well documented phenomenon of traumatized people telling inconsistent stories isn't merely an impediment to the prosecution and a weakness in the case but actual evidence of wrongdoing?

Holy crap, people. If you're in this line of work, it's your *job* to know this isn't at all uncommon.

I'm making a very modest argument here: rape is sufficiently hard to prosecute (especially in he said/she said cases like the ones I linked to in my post where there's zero physical evidence and pretty much the whole case rests on whether a jury finds the accuser's testimony more believable than the accused's) that the conviction rate is EXTREMELY low. Logic tells us that a police investigation with little/no oversight isn't the same as a full blown trial where both sides are given the opportunity to present evidence.

Therefore, to treat a preliminary classification by police as actual PROOF of innocence makes very little sense.

NOWHERE have I argued that *anyone* would be justified in concluding from an unfounded ruling that the accused was guilty. My actual argument was that people should keep an open mind about the possibility that unfounded rulings don't mean the accused was innocent.

That's what actual federal records and investigations of large urban police departments have actually found - large numbers of cases where forcible rape occurred and yet the case was wrong ruled unfounded.

To dismiss this evidence and insist that "fairness" to the accused demands that we assume facts not actually in evidence is pretty stunning.

Posted by: Cassandra at June 25, 2014 10:24 AM

The entire criminal justice system is heavily weighted towards acquittal.

90% of cases -- at least at the Federal level, but I think the stats are similar in state crimes -- don't even go to trial, but are plead out. That's a 90% conviction rate before you even talk about a trial.

You may think that has more to do with them being actually guilty; but I think it has to do mostly with the way DAs structure their charges, so that it's too expensive a risk to go to trial. That's a difference in beliefs about the world that we won't resolve today.

I think part of your problem is that your audience can't imagine being guilty of rape, but they can easily imagine being victim of a false accusation.

So factor that in: just because you have good people around you (myself excluded, who am terrible), they're going to be worried more about the one problem than the other.

I want to destroy rapists. But when the axe falls, I want it to fall on the right neck. In a way that's because the rape was not my fault, but the axe is. And that's another problem you are confronting in your audience.

Posted by: Grim at June 25, 2014 10:38 AM

90% of cases -- at least at the Federal level, but I think the stats are similar in state crimes -- don't even go to trial, but are plead out. That's a 90% conviction rate before you even talk about a trial.

But it's not a conviction on the actual offense. And that skews the stats: we see all these lesser offenses and say, "See??? *Real* rape doesn't happen that often."

The entire point of a plea bargain is that the state offers a reduced charge or reduced sentence from what they think they could prove at trial based on the evidence they're got so far. The accused gets reduced risk of being convicted of a more serious offense and/or a reduced sentence. And the prosecutor gets to spend his/her already scarce resources on higher profile crimes and can say "at least the guy went to jail and this will be on his permanent record".

And the public gets a very misleading impression of the actual crime that was reported.

So one of the things in the links I reviewed yesterday (this is from the police auditing their own procedures) was that actual cases of violent, forcible rape were reduced to "sexual battery". That's bad, but certainly better than no punishment/charge at all. But it also illustrates quite effectively the stupidity of reading too much into a police classification than the facts support (see my earlier link where a no-kidding forcible rape by a serial rapist was ruled "unfounded", leading to his being allowed to keep attacking innocent women). In way too many cases, the required investigation never even took place. Evidence was never processed.

I'd call that a serious problem. Worse than a guy being accused of rape (but not convicted, or even taken to trial because the system is *rightly* weighted towards acquittal).

I think part of your problem is that your audience can't imagine being guilty of rape, but they can easily imagine being victim of a false accusation.

I think this is a major part of the problem. It's exactly the suggestion I'm seeing over and over again. The real irony in all this talk of reasonable doubt is that that's exactly what I'm asking for: that people remember and apply the benefit of the doubt evenly. Don't treat situations full of quite reasonable doubts as certainties or (as Obama puts it), "settled".

Treat individual cases... individually.

There's a reason Justice is depicted blindfolded and bearing scales: balance and impartiality are important. And part of the wrongness I'm trying so hard to bring out is that too many conservatives are mirroring the bias the Left has to almost always believe the accuser (which is just nuts, and actually harmful to society) with their own bias to almost always believe the accused (which is also nuts, and actually harmful).


Posted by: Cassandra at June 25, 2014 11:21 AM

I said we wouldn't resolve our disagreement on this today, but notice at least that we disagree. You think a plea bargain is the state offering mercy if you will plea to a lesser charge than the one you are actually guilty of committing; I think it is the state charging you with a vastly more serious crime than you committed, in order to threaten you with such a massive sentence that you'll accept the "bargain" of admitting to something you may not have done.

It has to do with a basic division between us about whether the system is basically honest, or basically corrupt. We won't resolve that quickly. But at least you can understand me when I say that I think the state is perverting its approach to charging in order to maintain high conviction rates.

So the study by police auditing their own procedures strikes me as flawed by excluding this possibility. The reduction of charges in questionable cases may be read the way you're reading it, but it can also be read as an inflation of charges in order to obtain a certain conviction on what the prosecutors think was the actual offense.

This is somewhat like the ordinary retail practice -- especially in diamonds for engagement rings, but really practiced everywhere -- of inflating the base price so you can offer a "massive discount" of 40 or 50 or even 60 percent. It's universal because it works, not because it's the right or rational way to approach the problem.

Posted by: Grim at June 25, 2014 11:31 AM

Foxfier: forgive me for taking so long to respond to your comment. I was getting a migraine last night and decided to sleep on it and re-read in the morning :)

So yes-- guys who don't drink and do nothing but work in the same general area as someone who wishes harm can be falsely accused of rape.

I believe you, Foxfier. But it's notable in this case that because the fiance hadn't put himself in that situation to begin with, there was no evidence that he raped her. Evidence matters, and in this case the system worked. It ain't pretty, but it works.

That pesky evidence issue works both ways with rape accusations of the drunken hookup variety: if the victim/accuser/whatever hadn't put herself in that position, that particular bad thing would not have happened. And if the guy who gets accused after a drunken hookup hadn't put himself in that position, that particular bad thing would not have happened, either.

Even in the military system (which is far less weighted towards acquittal), evidence matters. That's what the feminists are screeching about - they are upset that not enough guys are being convicted, even with insufficient evidence! They're bent out of shape that the system is working as designed most of the time.

Maybe every person accused of a violent crime should have the right to go free until proven guilty in a court of law. I'm guessing there may be a reason few countries allow that, and I'm guessing that may just have to do with the chastening effects of experience.

FWIW, I think the military in particular jumped the shark on sexual assault long ago, and academia is not far behind. But even so, the system worked here.

No system can prevent false accusations, and they don't just happen with rape. They happen to police all the time. My son was falsely accused very soon after he started working and was saved by the fact that the camera in his cruiser had the whole encounter on tape. Luckily the tape proved the accusation to be utterly baseless. But given all the outrage on the right over police abuses, do we REALLY want to make it harder to lodge complaints against them? Despite near constant worry about my police officer son (and deep disagreement that most police are as bad as the latest scary anecdote), I vote, "No".

False accusations are hardly unique to rape or sexual assault. The classics are full of similar stories, some involving rape, some involving other crimes. It's an age old problem.

The point I was trying to make was that most of the cases I read about on conservative blogs involve guys who did the same things we keep telling young women not to do because they're dangerous/ foolish/ reckless. Yet I don't see a lot of folks writing long posts or op-eds about how guys should exhibit some simple situational awareness: stop drinking so much, don't be alone with drunk people of the opposite sex, don't hook up with people you don't know, etc.

Duh :) This is obvious, obvious stuff. We see how dumb these behaviors are when it's a female, but are strangely unwilling to apply the same standard to our sons. I don't get it.

That danger was never in my mind when my boys were teens, but I absolutely taught them NEVER to be alone with a drunk girl and to exercise great care in their associations. I worried about their friends getting busted for drugs, for instance, in the company of one of my boys. I worried about my sons getting drunk and having unprotected sex. And those worries alone were sufficient for me to tell them they needed to avoid situations where a life altering encounter with the criminal justice system caused them a lot of pain and heartache.

The reason we're seeing the same problems (and the same obsessive focus on sexual assault) in both the military and academia is that they're both situations where large numbers of young men and women live and sleep in close quarters without any of the safeguards we used to employ to mitigate the obvious and extremely predictable risks.

In my day (waving cane feebly about) kids used to get kicked out of schools and colleges for completely trivial behaviors. Now, everything is LIFE ALTERING!!!!11! Well no kidding.

Jeez Louise - I learned that before I graduated high school - mistakes are often life altering. There's no way to simultaneously let kids act recklessly and protect them from the predictable consequences of their own choices. More freedom means greater responsibility.

One is tempted to observe that freedom is not quite the unadulterated good we like to claim it is. When it comes to sex, even adults don't handle it well. Which is kind of why conservatism has generally favored limits and consequences. And if we think freedom is the most important thing ever, then we need to accept that poor decisions have consequences. Even when they're not "fair". Or life altering.

I can think of several life altering mistakes I made as a young woman. They didn't ruin my life. They did make me more careful, and smarter, because they were very painful. That's how most of humanity learns - by burning our own fingers.

Posted by: Cassandra at June 25, 2014 11:35 AM

You think a plea bargain is the state offering mercy if you will plea to a lesser charge than the one you are actually guilty of committing; I think it is the state charging you with a vastly more serious crime than you committed, in order to threaten you with such a massive sentence that you'll accept the "bargain" of admitting to something you may not have done.

Grim, I know we disagree on this and I'm not sure why you cast everything in such Manichean terms.

I don't think the state is being "merciful" at all. Mercy has nothing to do with it, and subjective motives are almost impossible to know. Most of your opinions on this matter rest on your subjective feeling that police are bad and are out to get people, or have malign motives.

I don't assume anything about the motives of police. I assume there's a mixed bag: some want to do the right thing, others are corrupt. You can see the corruption when it hurts a defendant but seem unconcerned about that same corruption working the other way (letting bad guys go, harassing accusers, etc.).

At any rate, if your theory about plea bargains coercing innocent or "less guilty" defendants to admit to more serious crimes than they actually committed is correct, then I'd like to see you explain why convicted rapists have much higher recidivism rates (this is convicted rapists admitting that they committed additional rapes after being released) than other criminals?

Does being accused of rape turn a significant percentage of nonrapists into rapists? That could be so - I've seen firsthand that some men respond to suspicion by declaring they now have "no incentive to be good".

It strikes me that you often found your arguments in this area on your assessment of other people's motives. But you don't seem to consider motive in a balanced way, seeing only bad motivation.

This seems a categorical error of the "I trust terrorists more than I trust the military" type. You assume the worst of people who are willing to put their lives on the line to protect others. You like the military and don't like police.

I have a much different view, having seen firsthand over 30 years that people join the military for all sorts of reasons, just as they join the police for all sorts of reasons. And there are a fair number of extremely scummy people in the military. So I don't get your almost blanket trust for one and almost blanket condemnation of the other.

Posted by: Cassandra at June 25, 2014 11:59 AM

Most of your opinions on this matter rest on your subjective feeling that police are bad and are out to get people, or have malign motives.

My opinion of the police comes from having known some police, even as friends, over a number of years; my opinion of DAs comes from having worked as an intern in a DA's office as youth. I don't think the police are 'out to get people'; I just think they ordinarily don't apply the laws to themselves and their kind that they apply to others. But I generally like them at least as individuals, though I question their value and though I think they are corrupt in this way. I think that's a Christian approach: not to deny their corruption, but to forgive it, and them.

The DAs have agendas of their own. Specifically, if they hope to become judges some day -- as they often do -- it is to maintain high conviction rates. People usually act in their interests as they understand them. This isn't even corruption, exactly: it's a problem with the structure of the system.

That's to one side. The question you're raising is one of what we are to make of the outcomes of the system. I think you've got a problem with your audience, which is more likely than I am to support the system, but which has a problem relating to the issue you're trying to raise. In a way that may be hard to see because of our fundamental disagreement about the systemic issues, this is a sympathetic objection. Your problem is that your audience is too good to understand what you want to say, because they can't imagine it in themselves.

Posted by: Grim at June 25, 2014 12:17 PM

My opinion of the police comes from having known some police, even as friends, over a number of years

Without meaning to discount your experience (honestly - we all weigh personal experience more heavily than other people's experiences or external data), the statistician in me is prompting me to observe the small/non-random sample problem :p

I don't think the police are 'out to get people'; I just think they ordinarily don't apply the laws to themselves and their kind that they apply to others.

But that's hardly unique to police. Quite frankly, my husband is encountering that working as a civilian for the Marine Corps. He is getting a VERY different impression looking from the "outside in" than he did from the inside. And some of what he's encountering now is stuff I argued to him when he was on active duty. He had some difficulty seeing it then, though he wasn't blind to it. Different perspective, and again he was on the inside.

All communities favor their own and disfavor outsiders. All communities are biased to some degree. This isn't 'the system' unless by "system" you mean, "human nature - the way we're all made".

I saw this firsthand in the military when my next door neighbor was married to a senior officer in the medical community. They treated their own preferentially - it was easier for them to get appointments b/c the rules everyone else had to live with didn't apply to them.

That's pretty much what I'm complaining about in this post. A fair number of conservatives are applying a harsher set of standards to one group than they apply to people they're more naturally inclined to identify/sympathize with.

They totally see the problem with presuming guilt in men accused of rape absent very strong evidence. So do I! Lord knows I've written about that enough times.

But they don't see any problem in presuming accusers guilty of the crime of filing a false accusation absent very strong evidence. It's even weirder to me given the widely shared distrust of police. But all of sudden, their policies and rulings cannot be doubted or questioned???

Whatever happened to that principle of presuming innocence until proven guilty? It seems to be unevenly applied, here.

Posted by: Cassandra at June 25, 2014 01:07 PM

One more thought.

I've talked a fair amount about natural bias. I'm not excluding myself from that, FWIW.

This post is my attempt to set aside my OWN bias (I think it's too easy to accuse someone of rape, as I have written many, many times over the years) and look at things more objectively. That's hard for me to do, and even harder when I sense so much resistance to the argument I'm making, which is essentially the argument I make all the time:

1. It's hard to be objective, especially on an emotional subject like this.

2. If we want to be fair and principled, we have to make extra effort to play devil's advocate (as YAG so often does to great effect) and honestly look at the other side.

3. Doubt applied to principles isn't the kiss of death. Doubt (IMO) gives faith meaning. It gives conviction meaning. We're not simply parroting the party line - we're really trying hard to grapple with both sides of an issue and test our principles in a way that really tests them. This often requires considering arguments that get our (certainly, "my") back up a bit.

What impressed me so much in Taranto's column on this subject a while back was that you could test his thesis from both sides and it held up. That's a good argument.

Too often, I see conservatives making "preachin' to the choir"-type arguments. Of course other conservatives agree with them. But they're really not designed to convince anyone who didn't already agree.

I don't think we need more of that, so I try from time to time to offer something a bit different here.

Posted by: Cassandra at June 25, 2014 01:16 PM

I know how the headaches go, Cassandra. :D I figure I'm not entitled to a response, anyways-- rule of blogging. ;)

The thing is, I guess I wasn't very clear-- the only thing the guy did to "put himself in the situation" was to work at the same place as the psycho. It was just dumb luck that the time she chose was when he had an absolute, air-tight alibi, and he was presumed guilty from the get-go.

I agree that guys who actually do go out and sleep with rather random people are basically leaving their front door open with a big sign that says "I'll be back at 6:45 PM on Thursday," but the burden is so out of order that the only way to deal with a known problem person is... well, what that command did, which was to put her in an (easy) job, around a lot of people, with video cameras, and have the other females in the command (including me-- there were three of us) do any part of her job that involved being away from those cameras.

For making an obvious false accusation of rape and sexual harassment, she was punished...by getting the easier job she wanted.

Posted by: Foxfier at June 25, 2014 07:26 PM

The thing is, I guess I wasn't very clear-- the only thing the guy did to "put himself in the situation" was to work at the same place as the psycho. It was just dumb luck that the time she chose was when he had an absolute, air-tight alibi, and he was presumed guilty from the get-go.

No, you were very clear - I expect we were just trying to make different points. Yours, I think, was something like, "It can happen even if you did nothing wrong". I agree with this, but it's less likely to happen than if you take foolish risks. And most of the stories I see online are about guys who took a lot of foolish risks.

But you're right - I don't know any way to completely protect men against false accusations. And I do think the military has gone overboard.

The point I was trying to make is that my own spouse was accused of racial/sexual discrimination years ago. The accusation was completely baseless - he applied the same standards to a woman that he has applied to all Marines under his command.

That didn't protect him, but the system worked its slow process and there was plenty of evidence - because he had disciplined tons of white and male Marines for the exact same issue in the same way (and really, he was following regs to the letter anyway). And so it didn't go any further.

Doing the right thing and avoiding needless risks is some protection, but there's never guaranteed protection.

I agree that guys who actually do go out and sleep with rather random people are basically leaving their front door open with a big sign that says "I'll be back at 6:45 PM on Thursday," but the burden is so out of order that the only way to deal with a known problem person is... well, what that command did, which was to put her in an (easy) job, around a lot of people, with video cameras, and have the other females in the command (including me-- there were three of us) do any part of her job that involved being away from those cameras.

I couldn't agree more that that's terribly unfair, and actually hurts the women who are just trying to do their jobs because it stirs up resentment. That's what frosts me the most about stories like that - the women who pay are the ones who did nothing wrong.

Posted by: Cassandra at June 25, 2014 07:55 PM

But that's hardly unique to police. Quite frankly, my husband is encountering that working as a civilian for the Marine Corps. He is getting a VERY different impression... All communities favor their own and disfavor outsiders. All communities are biased to some degree. This isn't 'the system' unless by "system" you mean, "human nature - the way we're all made".

I'm aware of that. :) I think my position on this issue is one that's difficult to convey to you, because we lack some shared assumptions that are difficult to identify.

You asked me once what percentage of police I took to be corrupt; I said "most," or something to that effect. But that's not to say that I think the police are especially bad. It's to say that I think most people are corrupt in certain ways. Sin is universal, and investing people with power generally means corruption is nearly universal among those people.

There are places where the police are really necessary, and the corruption thus just has to be dealt with as well as can be -- oversight, safeguards, and heavy prosecution for serious violations by independent adversarial authorities are the usual approaches.

There are other places where we don't need police, and I think we should try to do without them wherever possible. These are both physical spaces (the western side of my county does quite well without police being actually present, although in theory the Deputies can be called if they were really needed), and nonphysical spaces.

By 'nonphysical spaces,' I mean that we should be careful about introducing the law as a mechanism for control in areas where it is possible to achieve an acceptable society without using the law against one another; failing that, we should where possible aim for contractual law rather than criminal law; and that maps out a lot of 'space' where the police would have no role.

I have other thoughts as well. But I think for a long time you've misunderstood my suspicion that most police are corrupt as a kind of hatred for policemen, which it is not. It's a logical consequence of exactly what you just said, the quote with which I began this response.

Posted by: Grim at June 25, 2014 09:44 PM

I think I'll have several posts in a row - there is a lot to respond to here.

if police do not consider written and recorded confessions by a suspect to be strong evidence of guilt, then a recantation can't be weighed more heavily.

If that is your context (and when you said you would "not consider recantations to be evidence of innocence," you were really ambiguous)...it's a huge "if." Police consider written confessions by a suspect to be conclusive, unshakable evidence, and will give the full-on Reid Technique to get them. I at least have never seen either a law enforcement or administrative agency fail to "found" a case if they have anything that smells remotely like a confession, no matter how ambiguous - in fact, I don't think I've ever seen such a case fail to get prosecuted, though dubious confessions don't always mean conviction. That leads me to doubt the story Reed is telling in the original post.

It may be this case is a strange outlier, and the police and prosecutors missed a chance for an easy felony conviction for reasons unknown to us (in that bastion of archaic patriarchy...Los Angeles). It may be true. But it smells damn fishy. Police and prosecutors like easy wins...and so much of the "corruption" among them is an eagerness to bend the rules to get more of those.

(If there was a lot of physical evidence against the accused, and he came in with a story that LA detectives planted it all, and scratched his face themselves to make it seem she'd struggled, I would be just as suspicious of that and maybe more so. But the "hard to swallow" detail this time is coming from the accuser, not the accused. It's like the military faker a few years back who claimed his bayonet training included exhortations to "get the sand n*g**rs." It tells people of a certain ideological bent what they want to hear; it doesn't fit the experience of people who deal with this often.)

My central point remains - in law enforcement and child protection agencies, at least by my experience, "founding" is the default and "unfounded" usually does mean "disproved," contrary to what you assert in the post. Disproved to the satisfaction of the agents in question, anyway - and knowing nothing about them, or Reed, I'm not going to pronounce too confidently on what really happened.

[T]he point was that people should keep an open mind and not assume more than they can reasonable deduce from the evidence.

With this, I agree completely.

Posted by: Joseph W. at June 25, 2014 11:09 PM

...we are destroying people's lives, here, by acting if we do

I think that's a bit of an exaggeration if we're talking about a ruling of founded vs. unfounded. Even if an accusation is founded, that doesn't mean it will go to trial.

Have you ever gotten one of those jobs where you have to list every time you were ever arrested, and what for? A "founding" or "titling" gets you into the same category (after all, an arrest requires only probable cause).

Now, imagine you were applying for one of those jobs and had to fill out "child molesting" in that blank. In a tough job market. Yes. This matters. "Destroyed life"? I hope not. But even if you didn't get to trial, it matters. Never imagine, not for a moment, that being "founded" for sex offenses is a lark.

Posted by: Joseph W. at June 25, 2014 11:23 PM

...we are destroying people's lives, here, by acting if we do.

I think that's a bit of an exaggeration if we're talking about a ruling of founded vs. unfounded.

I was, with that phrase, talking about staging a raid on their house with military forces, or making the intelligence decision to paint a person as an insurgent (or even actively allied with insurgents). The consequences of those decisions often destroyed lives, sometimes finally.

But your description is better for these matters, which is more relevant to the discussion.

Posted by: Grim at June 25, 2014 11:32 PM

You think a plea bargain is the state offering mercy if you will plea to a lesser charge than the one you are actually guilty of committing; I think it is the state charging you with a vastly more serious crime than you committed, in order to threaten you with such a massive sentence that you'll accept the "bargain" of admitting to something you may not have done.

Not necessarily. Quite a lot of plea bargains involve the person pleading to the exact crime he's been charged with; the prosecution is simply promising to do something for the accused in exchange for his plea.

In civilian court it may be recommending a reduced sentence (one of the first cases I ever worked on, as a clerk, was about a federal prosecution where the prosecutors broke a deal like this...there was no reduced or dropped charge, just a promise to recommend the minimum sentence, which they reneged on). In military court the central point of the bargain is typically capping the sentence, using the commanding general's authority to reduce sentences. (This is partly because military sentences are wide open - there are no restrictive "guidelines" and almost no mandatory minimum sentences, so the sentence can be given based on the moral impact of the crime - technical changes in the charged crimes often matter a lot less than a simple ceiling on the sentence.)

By the way, one great thing about the military system is that the judge closely questions the accused to make sure the thing he is confessing to meets all the elements of the crime he's pleading to...precisely to avoid someone saying "yeah, I did it," just to get the bargain.

Aside: As both prosecutor and defense counsel, I negotiated a fair number of "deals on mixed pleas." For example, letting the person plead to AWOL, agreeing to a judge-alone trial, and giving me the chance to prove the extra element of desertion (sometimes successfully, sometimes not); or letting a client plead to something I knew the prosecution could prove, but fighting like the dickens on the dubious parts. That gave us the best of both worlds as the person on trial could plead to what he was comfortable describing, and the sentence cap was mutually acceptable to all.

Now can a plea bargain lead to injustice? Sure...the guy can feel the pressure and lie about what he did, pleading to something he didn't do for the sake of the deal. But contested trials have at least as much potential for injustice, and I believe a hell of a lot more. Juries work in mysterious ways, their wonders to perform. Per my link above, trying to guess who's telling the truth based on demeanor is by no means a precise science; and if you've ever looked up the study "Convicted by Juries, Exonerated by Science" (which came out after DNA testing made it possible to re-check some verdicts), you'll lose any doubts you may've had on the subject. There's a reason lawyers call a jury trial "rolling the dice." Overall I prefer the lesser risk of having lots of plea bargains.

Posted by: Joseph W. at June 25, 2014 11:51 PM

Hi Cass,
What we should tell our young men:
'Be careful where you put your d*ck,'

Best Regards,

Posted by: CAPT Mike at June 26, 2014 03:13 AM

Grim,

I think part of the issue may be different thresholds of at what point one considers an official "corrupt." I suspect most people would draw that line at the point where the official in question isn't even trying to do their job the right way any more; they're doing things they consciously know to be wrong and just don't care, are paying so little attention to whether their pursuit of the mission crosses the line as to constitute willful neglect of right and wrong, or are neglecting the institution's stated mission entirely in pursuit of what they THINK it should be. You seem to use a much more exacting standard; while it's probably true from an absolute moral standpoint (in the end, the Good Book tells us that we're ALL corrupt, even the heroes), I'm not sure it's of much practical use in telling good (enough) stewards of the public trust from bad.

Posted by: Matt at June 26, 2014 03:50 AM

Joseph -

Great comments, all. That's one of the reasons I wrote about this - I always learn so much more than I would have gotten from just reading the original atory. And details matter - quite a lot, most of the time.

I think that you and I may have a different standard for "proven". I consider "proven to the satisfaction of the investigating officer" to be a far lower standard than "proven to the satisfaction of a jury in a structured trial process whereby both parties have the chance to present evidence". And even there, I keep in mind the things you said - trials aren't perfect either.

For me, the investigating officer's "proven" isn't good enough for me to consider anything no-kidding "proven". The article I cited earlier about the Baltimore "unfounded" scandal is just one of many articles I read on this the other day and from those articles it was clear that given the caseload in big cities, there just isn't enough oversight on this sort of thing.

As for the Reed story, I think it was you (too lazy to look) that said you would have rejected this case out of hand just because she didn't report it (to the police at least - she did report it to the school) right away. But from the story it sounds like she followed this up pretty aggressively. And I don't doubt that these things happen - I've seen them happen over the years.

There's the way the system is supposed to work, and there's the way it actually works, and they're often two different things. If the police sent her case to the DA before interviewing her (and it was incomplete, as the story suggests) then it doesn't surprise me that the DA rejected it. That was a common theme in the articles I read about 'unfounded" rape ruling scandals - procedures weren't followed, balls were dropped (no pun intended!), and cases that should have been followed up were shelved even when there was plenty of evidence.

I don't object to your having suspicions, but I worked briefly in a family law practice and was routinely appalled at some of the ways serious cases involving child abuse got screwed up at various points in the process. You'd think everyone would take a case involving a child seriously, but there was an article in the Post recently about a forcible rape of a toddler that just wasn't handled correctly at all. You'd think that kind of case would peg someone's outrage meter, even if the more ambiguous ones didn't.

I defended the police earlier because I think (as Matt's comment explained so well) that Grim is way too hard on them. But I've also seen them screw up pretty badly. Sometimes they just get worn down - they've seen so much bad stuff and deal with so many liars that they become a bit cynical. Generally this seems more likely to happen when they feel "there's no point" (IOW, if they go after someone, nothing will be done and it will just generate a lot of extra work on their part only to see the bad guy/gal go scot free). That has got to be demoralizing.

Is this corruption? Not sure that's the right word. People make mistakes, sometimes very bad ones.

Posted by: Cassandra at June 26, 2014 07:38 AM

One of my law profs years ago used a metaphor for the reasonable doubt standard vs the preponderance standard that is fairly standard but I'd never heard it before, and so I pass it along.

She used to say, "Think of a gauge on a scale from 0 to 100%. The gauge measures the evidence of guilt. If there's no evidence, the arrow points to zero. If there's an equal amount of evidence of guilt and conflicting/exculpatory evidence, it points to 50. If all the evidence points to guilt and there's not a single shred of conflicting/exculpatory evidence, the arrow points to 100."

What's the amount of evidence needed to meet the preponderance standard? Well, the evidence only needs to show that it's more likely than not that the accused is guilty, so 51% will do it. This is the standard used in most civil actions b/c no one's going to jail and at least theoretically, the parties are on a more equal footing (it's not the power of the State against the individual).

What about reasonable doubt? Here, it's not so clear and juries frequently don't draw the line in the same place. Technically, 99% of the evidence could point to guilt. But if there's the *slightest* reasonable doubt - even just 1-2%! - then the burden hasn't been met.

That is why I object so strongly to considering a not guilty verdict to be "proof" of innocence. And if a police ruling isn't subject to nearly the checks and oversight that a trial is, how could I fairly consider that to be conclusive proof?

99% of the evidence could point to guilt. But I'm been asked to ignore the 99% and place all the weight on that 1%. That makes absolutely no sense to me.

Posted by: Cassandra at June 26, 2014 07:53 AM

I defended the police earlier because I think (as Matt's comment explained so well) that Grim is way too hard on them. But I've also seen them screw up pretty badly.

It was one such event that caused me to begin to critique the role of police in our society. You've heard me talk about it before: the killing of my eye-doctor, a cheerful and non-violent professional, by police coming to arrest him on charges of gambling on sporting events that they'd entrapped him into. The killing I might have been willing to consider a 'screw-up'; the entrapment is harder. But the worse thing was the outcome, in which no charges were even brought against the officer who had violated any number of firearm safety rules and "accidentally" discharged his .45 into an unarmed and unthreatening man's chest.

So it is this problem of 'not holding themselves to the rules they apply to others' that is at base, but it has a deadly consequence with the police. It's not a small matter, nor a light one.

Now, I'm sensitive to the concern that this one event is an anecdote; that's why I'm interested in studies like Balko's that look at militarized police forces and their relationships to communities on broad terms. My sense is that these kinds of studies demonstrate that the problem is widespread, and the outcome of the police not being properly held to account is ordinary in cases of deadly misuse of force.

But I don't think, ultimately, that the problem is solvable except systemically. It's not a personal critique of a few bad officers, nor an assertion that 'bad people tend to go into the police,' nor even an assertion that police forces are worse on average than anyone else. If it were any of those things, one could say that we needed to make sure we had 'the best possible people' and the problems would subside.

What I think we need instead is to rethink the role of law and law enforcement in our society, and restructure to make the police and criminal law less prominent and less common. I'll admit that there are certain areas -- both physical and nonphysical -- where they are necessary, and proper. That's not at issue. What is at issue for me is limiting a structural, systemic danger to life and liberty.

Posted by: Grim at June 26, 2014 01:41 PM

Thank you Cassandra, both for writing this and for all that you do on this weblog.

For me, the investigating officer's "proven" isn't good enough for me to consider anything no-kidding "proven".

Nor for me either, not by a long shot. Even a case tried to conviction is not always "no-kidding proven" to me.

(I will say this: in my court-martial career, I only once walked away from a case morally convinced that an innocent man had been convicted. And even he would've been acquitted if I'd done my job better. That one disturbs my sleep sometimes, but it's still far better than things might be.)

The article I cited earlier about the Baltimore "unfounded" scandal is just one of many articles I read on this the other day and from those articles it was clear that given the caseload in big cities, there just isn't enough oversight on this sort of thing.

Entirely possible. Some Army CID agents have the opposite vice...they feel the pressure (or maybe it is their delight) to "get as many rape convictions as possible," and they act accordingly...keeping cases alive when the physical evidence disproves them, bullying witnesses who don't tell the story they want to hear, doing no investigation of points that would point to innocence, and (horror of horrors!) even lying to poor innocent defense attorneys. Reading stories about the "campus rape" moral panic sometimes makes me think the whole country's gone crazy in that direction.

Human nature being what it is, it's easy to react too strongly against whichever vice you last saw...like the old saying about generals fighting the last war.

(One thing I would very much like to see is a general requirement that witness interviews and especially suspect interrogations be audio-recorded...the technology is cheap as hell, and some states, like Alaska, already require it. I think that would make confessions a lot less controversial.)

As for the Reed story, I think it was you (too lazy to look) that said you would have rejected this case out of hand just because she didn't report it (to the police at least - she did report it to the school) right away.

Not guilty, yer honor! I never said it. That's a factor all right, but not conclusive all by itself.

The problem occurs when the "reporting" date suspiciously corresponds to the "motive to fabricate" date. E.g., when the accuser's husband/boyfriend finds out she was in bed with the accused, and then she trots out the rape story, that is going to raise my suspicions; likewise if the accuser's a Soldier and just got in trouble, and claims "victim status" when she wants the heat off herself, that's going to raise my suspicions. Or the child has been in trouble at home, or is bridling under parental restrictions, and then trots out a story that the "discipliniarian parent" did something bad years and years before...no, I won't reject it out of hand; I want to see all the evidence; but I will be seeing it with a very suspicious eye.

But I fundamentally believe in individual justice for individual cases, and I absolutely deplore politicizing (or "ideologizing") any part of criminal law, precisely because it leads to the kind of unthinking reactions you deplore in the post -- unthinking in either direction.

Posted by: Joseph W. at June 26, 2014 10:29 PM

What we should tell our young men:
'Be careful where you put your d*ck,'

I've never really understood why some women find guys who will sleep with anything on 2 legs attractive (or why so many guys seem to admire men like that so much)?

A couple of things I've always found attractive in men are self restraint and frankly, a bit of selectiveness (high standards?) :p

So I agree, Mike :)

Posted by: Cassandra at June 27, 2014 12:10 PM

I've never really understood why some women find guys who will sleep with anything on 2 legs attractive (or why so many guys seem to admire men like that so much)?

I think it needs a change of verb...young women find guys who can sleep with anything on 2 legs attractive, and young, lonely guys admire men like that because they themselves can't sleep with anything on 2 legs.

More seriously...male and female sexuality doesn't work alike. A woman who sleeps around becomes less attractive to men, at least for anything long-term; a man who sleeps around does not become less attractive to women. (When I say "attractive" I mean "sexually attractive, down on the instinctive level" - I'm not referring to conscious morals or mores, though those may line up.) Long ago, I think, Grim put it poetically - that "a man wants to be a woman's first love; a woman wants to be a man's last one." You've heard the bitter version: "Men who sleep around are studs; women who sleep around are sluts." Unfair...but nature didn't make us with fairness in mind. Like it or not, and I don't, I don't think it's that much of a puzzle.

I myself admire the same virtues you do, in men and women both, and think they should be raised accordingly. But in talking about these things (and chivalry, in the common sense of the word, too) I think it's always important to distinguish between what people "like" and what people "are sexually attracted to."

Posted by: Joseph W. at June 27, 2014 09:41 PM

I don't think I ever said that, Joe! I only speak for any woman when I have known her well and long, and then with some uncertainty. I would never presume to claim to understand every woman. Or even one woman, on everything.

Posted by: Grim at June 27, 2014 11:55 PM

It was someone in a discussion at your weblog, and I thought it was beautifully put. (And I don't think the "every" was meant to be taken literally...whoever said it.)

Posted by: Joseph Wilkinson at June 28, 2014 12:37 AM

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