“I can’t breathe,”
January 29, 2015 8:30 AM   Subscribe

On Trial for Rape by Ann Brocklehurst [The Walrus Magazine]
"Late last year, in a Toronto courtroom, a young woman faced off against the university student whom she accused of raping her in a school parking lot. The media ignored the story. This is a series about a criminal rape trial that took place in Toronto late last year. The trial lasted eight days; the judge announced his verdict earlier this month." —Ann Brocklehurst
posted by Fizz (78 comments total) 22 users marked this as a favorite
 
*Trigger Warning.*
posted by Fizz at 8:37 AM on January 29, 2015


I just finished the second part...Holy crap, how the hell is any of that relevant? I mean they had a hearing to decide if it could be brought up and they actually decided it could be?
posted by If only I had a penguin... at 9:01 AM on January 29, 2015


That was an interesting read, and didn't go in either of the directions I was expecting. Just another reminder that real life is complicated and messy and ambiguous situations abound. I'm very glad not to have the responsibility that the judge took on, of trying to winnow out the truth from the lies of scared teenagers.
posted by RedOrGreen at 9:51 AM on January 29, 2015 [13 favorites]


“The media ignored the story. Our reporter was there for every moment.”

Say what now?
posted by MysteriousMan at 10:12 AM on January 29, 2015 [2 favorites]


I'm very glad not to have the responsibility that the judge took on, of trying to winnow out the truth from the lies of scared teenagers.

Yes, well put. It's hard not to feel that in the end he made the only defensible decision (when the defense conclusively demonstrates that the accuser has told a number of significant lies in what is essentially a "he-said, she-said" case, I don't see how you could argue that anything has been proven "beyond a reasonable doubt"). Still, ugh--rather him than me.
posted by yoink at 10:13 AM on January 29, 2015 [2 favorites]


Say what now?

I think they mean that the media did not report on the story while it was in progress. At some point in the write up the reporter says that she was the only reporter following the case. But, yes, they'd have done better to say "apart from our reporter, the media ignored the story."
posted by yoink at 10:15 AM on January 29, 2015 [1 favorite]


Would the case have been significantly improved with a lot of media attention? I can understand wanting sexual assault and rape culture in general to be more high-profile, but on an individual level—whichever way the verdict goes—is life going to be significantly improved for the accuser via the addition of a media circus? I'd think that might make people less likely to report sexual assault rather than more.
posted by Kadin2048 at 10:19 AM on January 29, 2015 [1 favorite]


I think one thing (perhaps the only thing) that remained unambiguous at the end was that Toronto Police did appear to have treated the woman with respect and take her seriously. That's good to hear.

Also, though I agree that it's hard not to see reasonable doubt here, I'm left with the nagging thought that the things she lied about were not about the sexual incident in question, whereas the things he lied about were. Although, of course, the lies he told were imulsive lies in a moment of fear, while hers were under oath. But then again, if the assault was as she described, then his known lies may not have been under oath, but obviously he did lie under oath about the assault.

Ai, yes, I am very glad I'm not a judge.
posted by If only I had a penguin... at 10:27 AM on January 29, 2015 [5 favorites]


One thing that I have read rape-prosecution advocates call for (and it makes sense to me) is for prosecutors to stop looking at each individual rape case as a crime that needs to be prosecuted in isolation, and rather investigate suspected rapists the same way they'd investigate suspected bank robbers or drug dealers. Then, they wouldn't have to put victims up and ask judges to basically rule on just "Which person do you trust more? The accuser or the suspect?"

I'm really, really uncomfortable with the last paragraph of the final entry:
I’ve also been asked, as this story of Matthew and Ava became public, what was the point of all this intrusion and lurid detail? Sometimes I respond with something banal and high-minded about the importance of due process and how every individual sexual assault case is different and life can’t be reduced to a Twitter hashtag. But in the end, I think it’s best—and, perhaps, necessary since no one involved wants to talk further—just to let this very cautionary tale speak for itself.

Court dismissed.
My understanding is that false rape accusations against a specific person are rare, at least in the United States. To take the outcome of a randomly-chosen court case and ask the readers to "let the cautionary tale speak for itself" is pretty irresponsible. Isn't a reporter's job to provide context to what they're reporting on? If not, what is the point of wasting our time?
posted by muddgirl at 10:47 AM on January 29, 2015 [16 favorites]


My understanding is that false rape accusations against a specific person are rare, at least in the United States. To take the outcome of a randomly-chosen court case and ask the readers to "let the cautionary tale speak for itself" is pretty irresponsible.

You stated very well what I was unable to put into words.

These kinds of stories only perpetuate the kind of horrid rape culture mentality where so often people point and say: "See....see....a false accusation, and she lied about things."
posted by Fizz at 11:12 AM on January 29, 2015 [10 favorites]


This sounds like a tragedy for everyone involved.

I'm puzzled, though, that her bruises could be admitted into evidence without an expert to opine on them.
posted by feckless fecal fear mongering at 11:15 AM on January 29, 2015


My understanding is that false rape accusations against a specific person are rare, at least in the United States. To take the outcome of a randomly-chosen court case and ask the readers to "let the cautionary tale speak for itself" is pretty irresponsible

That seems problematic on several fronts. To start with, should a journalist really say "hey, I'm going to follow this story through to the end" and then, if the results don't conform to a preconceived narrative about what is or isn't "typical" discard it? That would seem pretty unethical.

The second problem, though, is that the whole viral media thing about the prevalence of false rape reports is just hopelessly simplistic. There are, basically, no solid statistics on how many false reports of rape are made (here's a useful Wikipedia entry on the various studies that have been done). Anyone saying with absolute confidence that "N% of accusations of rape are false" is simply telling you what they prefer to believe, not what can be demonstrated by any reliable study.

And the reasons for this are obvious. How on earth would you determine such a number? The case in the FPP, for example, would end up on nobody's list of "false reports of rape." I mean, it might be false, but the trial was not to determine beyond a reasonable doubt whether or not the accuser was lying about the rape, it was to determine beyond a reasonable doubt whether or not the accused was guilty. The judge makes it very, very clear that he is not determining that rape did not occur; he is determining that he cannot prove that it did beyond a reasonable doubt.

Those super-low numbers of "false accusations" that people like to cite are, then, those unbelievably rare cases where the police didn't just drop a case when they failed to find corroborating evidence but actually turned up sufficient evidence to accuse the complainant of making a false complaint. That is, necessarily, an extremely rare case: just as truthful rape complaints are inherently hard to prove because they so often devolve into "he-said, she-said" so, equally, malicious rape complaints are equally inherently hard to prove. For every case that can be proven to be false we must, surely, accept that there are at least several more that were simply dismissed for lack of evidence either way.
posted by yoink at 11:17 AM on January 29, 2015 [15 favorites]


One thing that I have read rape-prosecution advocates call for (and it makes sense to me) is for prosecutors to stop looking at each individual rape case as a crime that needs to be prosecuted in isolation, and rather investigate suspected rapists the same way they'd investigate suspected bank robbers or drug dealers. Then, they wouldn't have to put victims up and ask judges to basically rule on just "Which person do you trust more? The accuser or the suspect?"

Repeat Rape And Multiple Offending Among Undetected Rapists[PDF], David Lisak and Paul M. Miller
Pooling data from four samples in which 1,882 men were assessed for acts of interpersonal violence, we report on 120 men whose self-reported acts met legal definitions of rape or attempted rape, but who were never prosecuted by criminal justice authorities. A majority of these undetected rapists were repeat rapists, and a majority also committed other acts of interpersonal violence. The repeat rapists averaged 5.8 rapes each.
posted by the man of twists and turns at 11:19 AM on January 29, 2015 [7 favorites]


My understanding is that false rape accusations against a specific person are rare, at least in the United States.

I've heard this bandied about a lot with a great deal of certainty. But how can such a thing be determined? How do we know which accusations are false and which are true? Obviously, this statistic couldn't be derived from conviction rates, because I'm sure a not-guilty verdict is not exactly rare. So how do we know this?

On preview: looks like yoink addressed this...off to read his wikipedia link.
posted by Edgewise at 11:34 AM on January 29, 2015 [2 favorites]


That seems problematic on several fronts. To start with, should a journalist really say "hey, I'm going to follow this story through to the end" and then, if the results don't conform to a preconceived narrative about what is or isn't "typical" discard it? That would seem pretty unethical.

No, if a reporter is going to report on a story, they should provide context, exactly like I said. Why did the reporter (and their editor) find this particular story compelling enough to spend 8 days covering and who knows how much time writing? Why is it called a "cautionary tale?" What exactly am I supposed to be cautious about?

The second problem, though, is that the whole viral media thing about the prevalence of false rape reports is just hopelessly simplistic.

First off, I didn't say "false rape reports." A false rape report does not necessarily mean that a suspect is identified. I said, "False rape accusations against a specific person." I agree that it is very difficult to come up with a number, but I don't see how it could be higher than the estimates generated by various surveys.
posted by muddgirl at 11:48 AM on January 29, 2015 [2 favorites]


I don't see how it could be higher than the estimates generated by various surveys.

My comments were restricted to complaints lodged against named assailants. And if you go look at the discussion on the Wikipedia page I linked to you'll get a good sense of how the number could be considerably higher than the one that has recently become viral.

I'm not sure what you mean by saying that the number couldn't possibly be higher. That seems like saying that the real incidence of rape couldn't be higher than the number of actual convictions. Just as there must be multiple unproven rapes for every proven one there would, logically, be multiple unproven false charges of rape for every proven one. That is why studies which restrict themselves solely to proven false charges must, logically, be undercounting the actual number. In the end, the only honest position is that we do not know and literally cannot know (until the day, I guess, when someone invents a lie detector that actually detects lies) the true percentage of false rape claims.
posted by yoink at 11:56 AM on January 29, 2015 [3 favorites]


There's one part of the story which I can confirm, and that is that police officers in Toronto take sexual assault complaints seriously. If the complainant might be lying, Toronto police leave that for the courts to figure out; they're generally not looking to pre-judge the truth of the victim's story, but (as in this story) to support them.

So if you're looking for a jurisdiction which could provide meaningful numbers on true-vs-reasonable-doubt complaints, Toronto might be a good candidate.

On the other hand, the behaviour of Toronto police might change the behaviour of both rapists and victims here compared to other jurisdictions where rape isn't treated seriously and/or victims are blamed and persecuted. It might be the case that in other jurisdictions, both the incidence of rape and the proportion of false reports is higher, since anyone who comes forward with a formal complaint under those conditions is likely to be an outlier who isn't constrained by societal pressures or possible consequences.
posted by clawsoon at 12:05 PM on January 29, 2015 [1 favorite]


I think the false rape issue is analagous to the voter-fraud issue. One side looks at gaping holes in the system and assumes a lot of illegal activity must be happening, because the opportunity exists, ignoring the lack of obvious motivation for someone to do such a thing (make false rape allegations, vote illegally). The other side points out the lack of solid evidence on actual rates of the behavior, forgetting that absence of evidence (false rape allegations, illegal voting) doesn't mean that it doesn't happen, but may mean that the system isn't good at detecting and reporting cases unless they reach a high threshold of proof.
posted by fraxil at 12:12 PM on January 29, 2015 [11 favorites]


TL;DR: “All I can say is that I’m left with a reasonable doubt. I find (Matthew) not guilty on all counts.”
posted by Chocolate Pickle at 12:16 PM on January 29, 2015 [2 favorites]


One side looks at gaping holes in the system and assumes a lot of illegal activity must be happening, because the opportunity exists, ignoring the lack of obvious motivation for someone to do such a thing (make false rape allegations, vote illegally).

I don't know, I can easily imagine motives for both of those. Not to say that I think we have false-rape-accusation and voter-fraud epidemics.
posted by Edgewise at 12:19 PM on January 29, 2015


So if you're looking for a jurisdiction which could provide meaningful numbers on true-vs-reasonable-doubt complaints, Toronto might be a good candidate.

Why? That seems completely backward. The more supportive police are, the less traumatic the process of laying a rape complaint is, the less interested in posing skeptical or probing questions the police are then, surely, the easier it is to lay a false complaint, no? That seems just self-evident. That's not a reason for the police not to behave that way--I should add--but it seems like an unavoidable corollary. The more "victim-oriented" the police are the lower the perceived risk for someone who chooses to lay a false complaint.

ignoring the lack of obvious motivation for someone to do such a thing (make false rape allegations, vote illegally).


Those are hardly comparable. If you want to get candidate A elected over candidate B, casting an illegal vote is almost certainly not going to achieve your desired outcome even if you get away with the crime, while the penalty you face, if caught, is pretty severe and the chances of being caught are reasonably high.

If you want to punish some specific person by accusing them of rape then if you get away with it and are successful in getting them prosecuted you achieve your goal very admirably: they get branded a sex-offender for life and probably serve jail time. The chances of your being caught, meanwhile, are pretty low and the penalties you face if caught are not draconian.
posted by yoink at 12:19 PM on January 29, 2015 [1 favorite]


Right, I agree that there are differences in both the type and intensity of motivation, and the level of risk, but they have in common a lack of hard data which leads both sides spin as they please. Certainly, false rape allegations do happen and do ruin the lives of some innocent people, mostly young men.
posted by fraxil at 12:29 PM on January 29, 2015 [1 favorite]


The more supportive police are, the less traumatic the process of laying a rape complaint is, the less interested in posing skeptical or probing questions the police are then, surely, the easier it is to lay a false complaint, no?

Notice that I said proportion. The idea here is that if the police are more supportive, false complaints will go up a bit, but factual complaints will go up a lot.
posted by clawsoon at 12:30 PM on January 29, 2015 [3 favorites]


Why did the reporter (and their editor) find this particular story compelling enough to spend 8 days covering and who knows how much time writing?
-
As this series has published, I’ve gotten some pushback from people questioning why I opted to write about a case in which the woman lied. The answer is that it was randomly chosen. A reporter walked into a courtroom. There was no agenda. I have no idea how representative the case is or isn’t, but what I can tell you is that defence lawyers will typically say that the way that sexual assault issues are framed by activists and discussed in the media is not reflective of their clients’ realities.

Seems kind of passive aggressive, honestly. I'm not saying but....
posted by Drinky Die at 12:35 PM on January 29, 2015 [1 favorite]


I was somewhat surprised by this:
... [the Judge] appears less understanding, however, about why Matthew deleted all of his and Ava’s BBM activity and Facebook messages after the police left his house.

“We will never know (why), and it looks terrible—especially the proximity in time,” says the judge. “When people do lie, it’s invariably, in this building, to place themselves in a better light.”

Is it really that surprising that a scared kid might go and delete all of the texts and messages? I'm not saying it strengthens his case. But I don't find it difficult to believe that this was a poor decision by a kid in mid-freakout.

Overall, I thought the writer portrayed both parties in a fair an balanced manner, ie, I didn't believe either one of them.
posted by doctor tough love at 12:36 PM on January 29, 2015


The idea here is that if the police are more supportive, false complaints will go up a bit, but factual complaints will go up a lot.

That may well be true. The problem is that there is still no mechanism, in Toronto or anywhere else, for deciding which is which. The case in the FPP is a perfect example: it could be a false complaint, but there's nothing in the trial record which helps us settle that question.

In the end, the only thing we can say for sure is that the vast majority of people found "guilty" are not victims of false accusation (not, of course, all of them), and that some reasonably large but indeterminate number of other people found "not guilty" were also, in fact, honestly accused. Beyond that it's just guesswork.
posted by yoink at 12:37 PM on January 29, 2015 [1 favorite]


I find it kind of surprising they didn't serve warrants on FB and RIM for the data--I have never, ever believed that something deleted on FB actually disappears, it just disappears from public view.
posted by feckless fecal fear mongering at 12:38 PM on January 29, 2015 [6 favorites]


Reasonable doubt seems a tricky standard to apply to events that happen in private.
posted by idiopath at 12:39 PM on January 29, 2015 [1 favorite]


I dunno...I"m so troubled by the bruises. He says they were caused by positioning her, but is that really possible? I mean think of figure skaters, who are frequently lifted by their arms. They're supporting a persons whole body weight by the grip on someone's arm and they don't bruise. Unless she's on blood thinners or something, isn't it wierd that she would bruise just from him helping to position her?
posted by If only I had a penguin... at 12:42 PM on January 29, 2015 [2 favorites]


Reasonable doubt seems a tricky standard to apply to events that happen in private.

I believe that many if not most crimes happen "in private." What would be a better policy for all those private crimes?
posted by Edgewise at 12:44 PM on January 29, 2015 [4 favorites]


"First off, I didn't say "false rape reports." A false rape report does not necessarily mean that a suspect is identified. I said, "False rape accusations against a specific person." I agree that it is very difficult to come up with a number, but I don't see how it could be higher than the estimates generated by various surveys."

It reminds me of a question my fiancee was asked (she's a medical librarian) about how many women miscarry without them or their doctor knowing that they're pregnant. She couldn't get the woman asking to understand the trouble in collecting that data.

"I"m so troubled by the bruises. He says they were caused by positioning her, but is that really possible? I mean think of figure skaters, who are frequently lifted by their arms. They're supporting a persons whole body weight by the grip on someone's arm and they don't bruise. Unless she's on blood thinners or something, isn't it wierd that she would bruise just from him helping to position her?"

Also speaking of my fiancee, she bruises incredibly easily and often has no idea what led to big bruises on her. She's got normal circulation and everything, just a skin tone that shows bruises and a propensity toward subdermal hematomas. So, possible though not necessarily probable.
posted by klangklangston at 12:49 PM on January 29, 2015


"I believe that many if not most crimes happen "in private." What would be a better policy for all those private crimes?"

Few crimes hinge on something that is incontrovertibly legal in almost all circumstances — while still stigmatized — but that can become illegal purely on a single word being communicated between two parties. The only thing that I can think of that would be comparable is a "theft" versus "gift," but that's often got much more material evidence surrounding it.

But even that has to be considered in the context of, what, thousands of years of male supremacism explicitly treating the testimony of women as less credible. (Which is part of why I tend to support guidelines requiring positive consent to be explicitly demonstrated rather than negative lack of consent. I tend to think that framing encourages [mostly] men to be more cognizant of the subjectivity of their partners, and gives rapists less cover.)
posted by klangklangston at 12:56 PM on January 29, 2015 [8 favorites]


Few crimes hinge on something that is incontrovertibly legal in almost all circumstances — while still stigmatized — but that can become illegal purely on a single word being communicated between two parties.

This isn't quite true of rape, either. It would be more accurate to say that it becomes legal based on a single word communicated (spoken or implied) between two parties. There is no word required to make rape illegal.
posted by If only I had a penguin... at 1:05 PM on January 29, 2015 [2 favorites]


I believe that many if not most crimes happen "in private." What would be a better policy for all those private crimes?

Most places of business have cameras, and it's slowly going to happen for police as well. If we didn't live in a world where the video would inevitably end up online, videotaping yourself at all times would be a pretty good idea.
posted by Drinky Die at 1:10 PM on January 29, 2015


I"m so troubled by the bruises. He says they were caused by positioning her, but is that really possible

I don't want to sound like I'm saying anyone is right or wrong, but yes. I have given and received bruises in non-bdsm contexts where I and my partner had no idea it was happening.
posted by lumpenprole at 1:13 PM on January 29, 2015 [1 favorite]


"This isn't quite true of rape, either. It would be more accurate to say that it becomes legal based on a single word communicated (spoken or implied) between two parties. There is no word required to make rape illegal."

No, sex is legal in almost all circumstances but still often stigmatized. The single word can make it rape.
posted by klangklangston at 1:16 PM on January 29, 2015


Well, affirmative consent laws are becoming a thing. In some places, you need to somehow clearly communicate consent to make sex legal.
posted by Drinky Die at 1:24 PM on January 29, 2015


Klang, Canada requires affirmative consent ("without consent" (consent = the voluntary agreement of the complainant to engage in the sexual activity in question) not "by force" or "against the person's will"). It is legal in almost all circumstances because most of the time when people are having sex it's consensual. It's the word "yes" said or communicated that makes it legal. There is no requirement that a person communicate "no" for something to be rape. It's the absence of a word that makes it illegal.

The definition of consent in the criminal code and the requirement that the person accused of sexual assault show that they actually "reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting." if they want to argue they thought there was consent (oh, you thought there was consent. Did you ask?) demonstrate that it is the yes that makes it legal, not the no that makes it illegal.
posted by If only I had a penguin... at 1:34 PM on January 29, 2015 [1 favorite]


In some places, you need to somehow clearly communicate consent to make sex legal.

"Somehow?" It's not like you're trying to communicate with Pluto or a deep-sea submersible. It shouldn't be some giant mystery how you can possibly clearly communicate or ascertain consent.
posted by KathrynT at 1:46 PM on January 29, 2015 [8 favorites]


I said somehow because in another thread where it came up there was some debate about whether or not the communication has to be verbal. The word was used to signal that any method of communication would be acceptable as long as it was clear and intentional. Sorry for the confusion.
posted by Drinky Die at 1:49 PM on January 29, 2015 [2 favorites]


And thanks for the additional info on bruises Klang and Lumpenprole. As someone else said, it would have been good if they'd brought in an expert on bruises.
posted by If only I had a penguin... at 1:52 PM on January 29, 2015


The whole thing reads to me as if the reporter (and her bosses) thought there would be a story there. There was no story, so they reported the non-story. The bruises trouble me, and I too wish there had been some expert evidence regarding them. I hope the explanation is that the prosecution didn't think there was any point - that the defence's explanation was plausible.

At the end of the day, there may be a rapist walking around who knows that he can get away with it, and is better-equipped to do so. I have the impression that the (alleged) victim's lies were fatal to the prosecution. If so, there's also a victim that has (I hope) learned that lying during a criminal prosecution is a very bad idea.

Alternatively, there may be a different group of victims walking around: a family that lost around $100,000 because of a malicious and/or panicked false accusation.

Both these things are bad. I wish there were a better way to handle them.
posted by Joe in Australia at 1:58 PM on January 29, 2015 [1 favorite]


I hope the explanation is that the prosecution didn't think there was any point - that the defence's explanation was plausible.

You know, I was thinking they might not have gotten an expert because expert testimony is inconvenient and expensive. You have to find an expert, get their expertise recognized by the course, then pay them for their court time, possibly travel expenses, and of course their actual examination of the evidence and possibly report-writing. And they're "experts" so they'll charge a tonne.

But then I was thinking: Bruises must come up a lot in criminal prosecutions and even investigations. SHouldn't either Toronto Police or the crown attorney have a bruise expert on staff, just constantly reading up on bruise research and examining bruise evidence? Do they take blood as part of a rape kit (for pre- and post- STDs)? If so, I would think they could get some ballpark estimate of that person's tendency to bruise on that day. They have blood splatter experts (I mean, that's what several years of watching Dexter implied), so why not bruise experts? I would think and hope that bruises come up more often than blood spatter.
posted by If only I had a penguin... at 2:05 PM on January 29, 2015


No, sex is legal in almost all circumstances but still often stigmatized.

This is arrant nonsense: sex with a person below the age of consent is not legal; sex with a mental patient is not legal; sex with a person too drunk to give consent is not legal; sex with an unconscious person is not legal; sex with a person in custody is not legal; sex with a person under anesthesia is not legal; sex with someone with whom one has a supervisory relationship is often not legal even if they are beyond the age of consent; sex for money is mostly illegal; and so on.
posted by jamjam at 2:05 PM on January 29, 2015 [3 favorites]


I think the false rape issue is analagous to the voter-fraud issue.

I think that's not a fair characterization. There is, to a first and even second approximation, literally zero in-person voter fraud. It doesn't exist. It's a made-up issue. But even the low end estimates of how many rape accusations are false put it in the mid single-digits. That's low, sure, but it is in no sense non-existent.

"Low" is also a judgment rather than an absolute. If I told you that you had an 8% of dying tomorrow you sure wouldn't feel like that's particularly low.
posted by Justinian at 2:09 PM on January 29, 2015 [1 favorite]


The problem with "false rape accusation" is that we've not, as an internet, come to a consensus on what "false", "rape", or "accusation" mean.

If we take the phrase to mean only situations in which the entire allegation was fabricated maliciously by the accuser, then of course we probably will find a low incidence among cases that actually show up in court.

But the other day I was driven to look up an article I'd read (here, for the curious) which tackled instead the question of "how many people convicted of rape are demonstrably innocent of it?" They took a look at every case over a 15-year period (in the US state of Virginia) in which the defendant was convicted, and physical evidence was retained. The result:
The two most important numbers in the bullets above show the rate at which convicted offenders were eliminated as the source of questioned evidence and that elimination was supportive of exoneration. This occurs for 8 percent of all sexual assault convictions in the sample and for 15 percent of all sexual assault convictions where a determinate finding was made. We note again that additional facts about the case not included in the forensic file may ultimately include the convicted offender. However, given that these are sexual assault cases where the profile was determined to be male and excluded the convicted offender, we anticipate this will be relatively rare.
A range of 8%-15% is a bit frightening.

And then there are cases where reasonable people may disagree with the use of the term "rape". I'm reminded of a Dan Savage column a few years back (which I can't find at the moment) in which a woman wrote that she'd begun having sex with her boyfriend one morning, interpreting his grunts and other reactions as consent, only to discover partway through that he was actually still asleep, and was worried she'd raped him (and notably, "affirmative consent" laws probably would not have prevented her behaviour, presuming that the affirmation is allowed to be sufficiently vague, as proponents seem to say it is, and given that multiple partners have told me I talk in my sleep, that one worries me a bit). Many of the most hotly-debated cases involve grey areas of this sort. Misinterpretations of a reaction, or arguments over whether someone who'd been drinking was incapacitated (it appears quite a lot of uni rape cases come down to subjectively determining whether someone was too drunk to consent, not whether they did affirmatively consent), or whether both parties were drunk, or any number of less-than-clear situations.

Ultimately this makes me worry that the law -- never at its best when shaped into a blunt instrument -- is insufficiently subtle, and that we are doing our damnedest to make it even less so. Insofar as we've tried to avoid the "it's not rape rape" argument, we've also left ourselves, from a discussion standpoint, with only one label to apply to a whole spectrum of things which really would benefit from a bit more nuance and distinction, where for other crimes we do maintain that level of nuance and our discussions and resulting policy seem to be the better for it.
posted by hrwj at 2:18 PM on January 29, 2015 [3 favorites]


It's worth noting that in Canada the statute refers to 'sexual assault,' which does ameliorate the blunt instrument factor, as it covers a wide variety of things.
posted by feckless fecal fear mongering at 2:21 PM on January 29, 2015


"I believe that many if not most crimes happen "in private." What would be a better policy for all those private crimes?"

Few crimes hinge on something that is incontrovertibly legal in almost all circumstances — while still stigmatized — but that can become illegal purely on a single word being communicated between two parties.

That does not make rape "special" (apologies for word choice). Plenty of crimes happen in private, and are hard to prove. Presumption of innocence is not contingent on such details. It bothers me when people want to undermine basic rights for their favorite calamity (such as terrorism). These kinds of rights are difficult to maintain, but they're also important. You won't know what you're missing until someone uses your precedent to erode some kind of right that you feel is actually worth keeping around. Trying to cast a given situation as a unique exception is anything but unique.
posted by Edgewise at 3:21 PM on January 29, 2015 [2 favorites]


"But then I was thinking: Bruises must come up a lot in criminal prosecutions and even investigations. SHouldn't either Toronto Police or the crown attorney have a bruise expert on staff, just constantly reading up on bruise research and examining bruise evidence? "

It's my understanding that bruises are pretty inconclusive in general unless they're really obviously shaped or located. Often all you end up knowing is that there was some sort of pressure to the area that caused burst blood vessels, and tying that to a specific incident or trying to type them is often beyond the limits of medical science.

"Canada requires affirmative consent"

Gotcha. I'll take my Ameri-splaining demerit.

"This is arrant nonsense: sex with a person below the age of consent is not legal; sex with a mental patient is not legal; sex with a person too drunk to give consent is not legal; sex with an unconscious person is not legal; sex with a person in custody is not legal; sex with a person under anesthesia is not legal; sex with someone with whom one has a supervisory relationship is often not legal even if they are beyond the age of consent; sex for money is mostly illegal; and so on."

No, it's not. Your list of exceptions does not disprove the statement that sex is legal in almost all circumstances but still often stigmatized.

From the General Social Survey, we'll take the conservative number (women over 18) who claim that overall, they have an average of 55 sexual encounters per year. Multiplied by the number of women over 18 in America, that comes out to about 3.9 billion sex acts per year.

According to the National Crime Victimization Survey, which RAINN cites as reliable, there are 293,066 rape victims per year (age 12 or over). Because we're doing this in the most flattering way to your contention, we'll ignore the difference in age, and we'll follow RAINN's generalization that this can be translated into rate (e.g. their "one sexual assault every 107 seconds" claim). That's 0.007percent of sexual encounters that are illegal.

We can simultaneously realize that anyone being raped is too many while still remembering that illegal sexual encounters are not anywhere near the norm for sex acts in America. (I couldn't find the Canadian equivalent statistics quickly enough to do them too.)

So no, sex is legal in almost all circumstances but still stigmatized.
posted by klangklangston at 3:22 PM on January 29, 2015 [1 favorite]


@Justinian, I don't want to derail the thread, but you're simply wrong about voter fraud. The arguments that "it doesn't happen often" or "mostly, it doesn't really matter" are defensible; the argument that it never happens is flat wrong. Note, however, that the two defensible statements fit neatly into the unsettling nature of the dispute that fraxil highlighted. The fact is that we are far from having anything like well-grounded knowledge of the incidence of false rape claims or in-person voter-fraud; therefore, people retreat to their priors and substitute heat for light in these arguments, since hard facts are not available.

I think that the Walrus articles are really interesting. They are also really unsettling because they remind us that we'd like to pretend to a lot more knowledge about the nature of what happens in life than we really do. Nobody has a strong grasp of what really happened that night, with the exception of the two people involved, and there's some possibility that neither of them do either.
posted by Mr. Justice at 3:27 PM on January 29, 2015 [2 favorites]


the argument that it never happens is flat wrong

I said that to a first approximation in person voter fraud never happens. That's the kind of voter fraud which is being used to curtail voter rights. And what I said is true. To a first approximation it simply does not happen. 31 incidents out of one billion ballots. That's zero.
posted by Justinian at 3:30 PM on January 29, 2015 [1 favorite]


But, hey, even if you want to argue 30/1,000,000,000 isn't basically zero the point is not impacted; false accusations of sexual assault are not equivalent to voter fraud. 30/1,000,000,000 isn't reasonably comparable to 8%. Or 15%. Or, hell, 2%.

So the point is the same either way.
posted by Justinian at 3:34 PM on January 29, 2015 [1 favorite]


So uh, from following this thread, it seems like there's two lightsaber dueling narratives going on.

1. this is a case, it's a thing that happened, it is seemingly reported with no spin/bad ulterior motives

2. it backs up that whole MRA "OMFG TEH FALSE RAPE ACCUSATIONS ARE A LOOMING MENACE" gambit.

What i'm mostly confused on is what duty did the reporter have that wasn't fulfilled here? giving more context on how unusual cases like this are?

Because i you pay attention for more than the cliffs notes version of this, it seems like there's a lot more of this that's just like, this is depressing reality welcome to it you can glean. The way the court approached it, her lying, etc. There's systemic nastiness here and "shame on them for publishing this thing that backs up people i don't agree with" is a bit dismissive imo. The real meat of this story is how the system responded to the situation throughout the process, not just the final outcome that backs up some ugh narrative.

It's a worthwhile story to get out there even if you don't like the ending. Or rather, don't like how other people will take the ending.
posted by emptythought at 4:16 PM on January 29, 2015 [5 favorites]


Note that this case did not establish that a false rape accusation was made. It established that there was a reasonable doubt that a rape may not have happened.

I am of the opinion that it is a good thing that we have an adversarial justice system that assumes innocence. I am convinced that these things also make rape harder to prosecute. There is often nothing a victim can bring to a trial other than their own testimony. No witness. Nothing physical that differentiates saying no from consent.
posted by idiopath at 5:09 PM on January 29, 2015 [3 favorites]


"Because i you pay attention for more than the cliffs notes version of this, it seems like there's a lot more of this that's just like, this is depressing reality welcome to it you can glean."

I only had to do one brief court day as part of journo school, but from talking to a lot of court reporters, "this depressing reality" of messy, inconsistent and fundamentally opaque competing testimonies is, like, at least 50 percent of all cases (rape or otherwise) that go to trial. The majority of clear-cut stuff never makes it in front of juries or judges, and the stuff that does is either incredibly murky or just depressingly horrible and mundane.
posted by klangklangston at 5:26 PM on January 29, 2015 [2 favorites]


klang: Sorry, for some reason I thought I remembered you being Canadian.
posted by If only I had a penguin... at 5:32 PM on January 29, 2015


I'm from Michigan, so I know my mickey from a two-four.
posted by klangklangston at 5:41 PM on January 29, 2015 [2 favorites]


I'd like to urge some caution in using the 8-15% statistic from the study hrwj quoted. It refers to "sexual assault cases where the profile was determined to be male and excluded the convicted offender" - in other words, cases in which a sexual assault happened but DNA evidence showed that the wrong guy was convicted. That's different from - and really says nothing about - rates of false accusations in situations where the identities of the people are known but those two people disagree as to whether the sex was consensual.

There are two types of false accusations: the "someone else did it" situation and the "it was consensual" situation. It's important to distinguish between the two IMO, especially when it comes to evidence about the rates at which they happen.
posted by heisenberg at 6:18 PM on January 29, 2015 [11 favorites]


That's true. I have no idea if the rate in those cases is higher or lower than the statistic though. Which leaves us back at square one I guess.
posted by Justinian at 6:32 PM on January 29, 2015


There are two types of false accusations: the "someone else did it" situation and the "it was consensual" situation. It's important to distinguish between the two IMO, especially when it comes to evidence about the rates at which they happen.

Well, yes, if you read my comment you'll notice it began with:
The problem with "false rape accusation" is that we've not, as an internet, come to a consensus on what "false", "rape", or "accusation" mean.
And then contrasted one possible definition which produces a very low number, and another possible definition which produces a higher number. This is the inherent problem: one can obtain high or low numbers according to one's preferred narrative, by manipulating the definitions.

So one person who claims "false accusations" are rare will cite to research investigating cases in which no sexual act whatever occurred and the accuser was alleged to have fabricated the entire story for malicious purposes, because those do seem to be rather rare.

Another person who claims they're not so rare will cite to research investigating the rate at which people who've been convicted of rape are exonerated, because those seem to be (depressingly) rather more common (hence my mention of an example, as I don't see that type of statistic bandied about as often).

And it's almost certainly possible to get whatever results one wishes through other definitions as well; for example, cases where everyone agrees that a sex act occurred between A and B, but there is disagreement over whether it constitutes rape (as in the case of the woman who wrote to Dan Savage worried about having sexed her sleeping boyfriend -- I recall it made the rounds of the gender sphere and many people earnestly wished to call it not rape). Or the subset where the debate is over the intoxication level of one or both parties. And on and on and everyone produces a number that fits the position they're arguing.
posted by hrwj at 6:35 PM on January 29, 2015 [1 favorite]


Didn't mean to suggest that you didn't understand or appreciate the distinction, hrwj. Sorry it came across that way.
posted by heisenberg at 6:50 PM on January 29, 2015


@Justinian -- I was misled by your use of the word "literally" in your post earlier today, by which I have come to realize that you mean "figuratively." Kindly excuse my error.
posted by Mr. Justice at 8:08 PM on January 29, 2015


If it's good enough for the OED it's good enough for me.
posted by Justinian at 8:12 PM on January 29, 2015


I guess my own view is that it's easy to overestimate the dangers of impersonation vote fraud, but it is very strange to assert that its incidence is literally zero. Some might not even view its incidence as "low." It's a matter of priors. For instance, some people with what I consider to be relatively unsophisticated priors might assume that only reported impersonation fraud counts as impersonation fraud. Those who make that assumption might consider whether they also believe only reported rape counts as rape. Such people also consider whether they are too quick to dismiss fraxil's point about "the lack of solid evidence on actual rates of the behavior, forgetting that absence of evidence (false rape allegations, illegal voting) doesn't mean that it doesn't happen, but may mean that the system isn't good at detecting and reporting cases unless they reach a high threshold of proof."
posted by Mr. Justice at 8:35 PM on January 29, 2015


Mr. Justice, I'm not clear what you're getting at. Of course we cannot know with precise certainty the actual, factual incident rates for in-person voter fraud or so-called false rape accusations. However, that does not mean that we have no understanding whatsoever of the scale of each event's incident rates. Do you have a factually-based argument to show that in-person voter fraud in the US is actually several magnitudes more common than anybody has ever supposed? Or, does your argument rest solely on the ability of people to use their imagination?
posted by Sticherbeast at 4:29 AM on January 30, 2015 [1 favorite]


I am not sure what a factually-based argument even means in this context. What actually happened in the Canadian case under discussion? Nobody knows. We don't have a system to determine perfectly what actually happened; all we have is a system that rests on basic intuitions about appropriate proof and appropriate punishment. Because we have many other alleged-rape incidents in which the answer to the question of what is actually known is very controversial, it is very difficult to create grounds for justifiable numerical estimation of incidence. So I am not sure that we have anything like a strong understanding of the scale; respectfully, the size of the incidence is not as obvious to me as it is to you. Somewhat relatedly, we don't have a good mechanism for detecting voter impersonation; it seems to me that it is a mistake to draw inferences about the numerical incidence of voter fraud just from the number of complaints or convictions. I confess that I am not sure what you mean by the ability of people to use their imaginations, but I hope you are not suggesting that the kind of healthy skepticism & caution about jumping to conclusions that we generally see from scientists and rationalists is out of place when trying to draw conclusions about what we know about, for example, crime. Or elections. I admit that I am quite open to the idea that in many domains "we don't and can't know what the hell is really going on," but I also admit that it has some very odd implications.
posted by Mr. Justice at 7:54 AM on January 30, 2015 [1 favorite]


Mr. Justice: one difference is that we have surveys where people can anonymously report the incidence of sexual assault (for example we know that the rate of sexual assault in male prison is very high despite low prosecution rates). There is no comparable "ballpark incidence rate" that we can find for in-person voting fraud.
posted by idiopath at 8:02 AM on January 30, 2015


Justinian and others are absolutely correct to point out that studies of in-person voter fraud in the US show that it occurs, when it even occurs, at an infinitesimal rate. Can you find any studies, etc. which show that the rate is more common than that? Or, are you just relying on your imagination: "well, it could be much higher, so who knows?" Scientists, statisticians, etc. deal all the time with things we cannot directly know: it does not mean that anything goes. There is nothing rational about rejecting what the people actually studying the material have come to determine.

I mean, I don't know for sure how many windows there are in New York City, just as I don't know for sure how many ferrets there are in Ljubljana, but I am quite confident in saying that there are more of the former than there are of the latter. I can say this based on the facts I know about windows, ferrets, New York City, and Ljubljana. Somebody saying otherwise has a lot of explaining to do.
posted by Sticherbeast at 8:03 AM on January 30, 2015 [1 favorite]


I think there are some difficulties here which I will try to illuminate.

1. I absolutely agree that you can learn something from anonymous rape reports. Regrettably, due to the nature of vote fraud, we don't get anything like anonymous vote fraud reports. So there's probably a sense in which vote fraud incidence is more inherently mysterious or harder to track. If that is idiopath's point, of course I agree.

2. I am not sure all the participants in this thread appreciate the implications of moving from the theory that vote fraud is literally zero to the implications that it's infinitesimal. As noted before (to paraphrase), it ain't infinitesimal if it happens to you. It is irrational to care very much about vote fraud if it affects 20 votes and there's a 2000-vote margin. It makes more sense if there's a 20-vote margin. There are plenty of important elections with 20-vote margins, if you count an election for the state legislature as an important election.

3. Yes, of course there are studies that suggest that impersonation fraud is significant enough to sway election results. They're produced, for example, by Hans von Spakovsky at the Heritage Foundation. No, these studies are not a figment of my imagination. No, I am not suggesting that anything goes. No, my approach is that not that I think we should reject what the people actually studying the material have come to determine.
posted by Mr. Justice at 8:45 AM on January 30, 2015


They're produced, for example, by Hans von Spakovsky at the Heritage Foundation

Spakovsky is a dishonest, racist crank hired by (at varying times) GOP administrations and right-wing think tanks to massively inflate voter fraud statistics, and his research has been discredited repeatedly, including by those he cites as his sources. The Heritage Foundation is a right-wing think tank with links to former GOP administrations that has a history of hiring dishonest, racist cranks in order to make it look like things like voter fraud happen way more than they actually do.
posted by zombieflanders at 9:25 AM on January 30, 2015 [4 favorites]


I have spoken to HVS and read articles by him, and I think it is outrageous and groundless to call him or his work dishonest and/or racist.
posted by Mr. Justice at 12:37 PM on January 30, 2015


"I have spoken to HVS and read articles by him, and I think it is outrageous and groundless to call him or his work dishonest and/or racist."

Well, since he specifically referred a reporter to talk to a source of his and his source says that he told Spakovsky something different than what Spakovsky said he did, that's dishonest. And since he's pushing a policy with documented disparate negative racial impacts to combat a functionally non-existent problem, it's reasonable to say that he's pushing racist policies. While calling him "a dishonest, racist crank" may be more declarative than you'd prefer, he's quacking like a dishonest, racist crank who works for a right-wing partisan organ. Be outraged if you like, but the dude's at best a delusional hack and not a credible source on in-person voter fraud.
posted by klangklangston at 12:45 PM on January 30, 2015 [3 favorites]


So eventually I hope we can get away from groundless name-calling and start talking about things like facts and evidence. But several of the recent contributions to this thread suggest that groundless name-calling is the coin of the realm on this page. Of course it is absurd to suggest that Jane Mayer and Mother Jones are neutral and objective sources while arguing that the Heritage Foundation is too partisan to take seriously. Of course it is absurd to subject Spakovsky to high levels of scrutiny while suggesting that the thesis that there are "documented disparate negative racial impacts" to voter ID is a simple and uncontroversial one.

What I find most interesting about the disagreement here is that, as I wrote above, it is the kind of thing that makes people retreat to their priors. Some of us here have just a little more self-knowledge about this stuff than others. For others here, voter impersonation is a functionally non-existent problem. Voila, the discussion is over! The fact that you feel strongly about this is unconvincing to me.
posted by Mr. Justice at 1:40 PM on January 30, 2015 [1 favorite]


I have spoken to HVS and read articles by him, and I think it is outrageous and groundless to call him or his work dishonest and/or racist.

Eh. I linked to direct evidence of his dishonesty, and by all objective accounts the laws he pushes are far more effective in suppressing votes of PoC than they are in preventing individual or mass voter fraud.

So eventually I hope we can get away from groundless name-calling and start talking about things like facts and evidence. But several of the recent contributions to this thread suggest that groundless name-calling is the coin of the realm on this page. Of course it is absurd to suggest that Jane Mayer and Mother Jones are neutral and objective sources while arguing that the Heritage Foundation is too partisan to take seriously.

They cite their objective sources, who unlike Spakovsky, back the assertions made in their name.

Of course it is absurd to subject Spakovsky to high levels of scrutiny while suggesting that the thesis that there are "documented disparate negative racial impacts" to voter ID is a simple and uncontroversial one.

Well, it's mainly complicated and controversial to people like Spakovsky, who get caught red-handed manufacturing evidence or lying about it.

What I find most interesting about the disagreement here is that, as I wrote above, it is the kind of thing that makes people retreat to their priors. Some of us here have just a little more self-knowledge about this stuff than others. For others here, voter impersonation is a functionally non-existent problem. Voila, the discussion is over! The fact that you feel strongly about this is unconvincing to me.

This is an issue that I've been following closely for years now. Every single study showing widespread voter fraud of the types Spakovsky gets apocalyptic about seem to have been discredited, misinterpreted, or just plain baseless. If you've got evidence that people like Sabato or Levitt are lying or that Mayer, Drum, Benen, and everybody else citing their work is misrepresenting it, by all means lay it out for us. But that's cold, hard data, no matter how strongly you yourself feel about it.
posted by zombieflanders at 1:57 PM on January 30, 2015 [2 favorites]


Of course it is absurd to subject Spakovsky to high levels of scrutiny while suggesting that the thesis that there are "documented disparate negative racial impacts" to voter ID is a simple and uncontroversial one.

Except that yes, actually, it is both simple and uncontroversial: Voter ID laws disproportionately affect people of colour.

Although this all seems a pretty wide derail for a post about the possible sexual assault of a young girl and the context in which this happened, maybe?
posted by feckless fecal fear mongering at 2:04 PM on January 30, 2015 [2 favorites]


Bringing it all back around, the highest estimate for in-person voter fraud is still magnitudes lower than the lowest estimate of so-called false rape accusations. Uncertainty is the only feature they share.
posted by Sticherbeast at 2:07 PM on January 30, 2015 [2 favorites]


@zombieflanders: Voter ID is an issue you've been following for years now? Seriously? How carefully? Do you really think that voter ID suppresses the votes of people of color? How do you explain what happened in Georgia: imposition of voter ID laws, followed by an increased black vote?

@fffm: No, it certainly isn't uncontroversial to say that voter ID laws disproportionately affect people of color. The evidence suggests otherwise (see immediately above). The tainted statistics that the Brennan Center produced on this question were produced by a flawed small-sample poll, extrapolated using Census data, and reweighted with invisible, scrutiny-proof methodology. Got anything besides Brennan Center data?

(I agree with you that we are approaching significant derail.)

@Sticherbeast: What you say may be true, but it is difficult to see its relevance. Again, the magnitude of impersonation fraud doesn't have to be especially high to swing an election. That's something that diminishes everyone's constitutional rights.

To all: this is a great education for me. It illuminates that there are several posters on this page who don't see the problem with applying corrosive skepticism to the views of others but behave as if they are essentially unfamiliar with well-grounded criticisms that have been applied to their own position. As I suggested before, it's a controversy in which people rapidly retreat to their own priors.
posted by Mr. Justice at 4:01 PM on January 30, 2015


[getting mired in a discussion of Voter ID laws and their effectiveness seems like a pretty big derail for this thread about a campus rape case]
posted by mathowie (staff) at 4:13 PM on January 30, 2015 [4 favorites]


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