Sunday, December 04, 2005

Another Perspective on False Accusations: The Threat to Feminist Justice

Shakespeare's Sister alerted many in the feminist blogworld to a horrific case, in which a 17-year was convicted for making false allegations of a rape. Kevin Hayden, a friend of the victim, writes at American Street more of the details of the trial. The case sounds frightening and I too am outraged about this miscarriage of justice.

I have, nonetheless, hesitated to write my own blog entry on this subject, for fear that what I am about to say will be misconstrued or deeply offend my fellow feminist bloggers. Nonetheless, I must admit to myself that my best writing comes from when I am taking a slightly different perspective on an issue and pointing out perhaps where I disagree with some standard views among feminists. However, perhaps, by the time I get to the end of this post, I will end up sounding more alike than different from many feminists on the subject of rape.

First off, I hope that Antheia (where are you?) will weigh in on this, since she is the author responsible for the excellent post on surviving rape. Her piece really illustrates the complexity and long-lasting effects of rape on women. What I like about her piece is that it illustrates how personal rape responses are. How one responds to rape is not easily categorized, interpreted, or labelled. Shakespeare's Sis points out that a rape survivor should not need conform to an "appropriate level of traumatization" to be considered credible, and I agree.

I absolutely cannot disagree one iota with the view that there is no typical rape response. I also find it concerning that the courts would invent such a standard as a means to question the credibility of the asscuser.

My post, however, is going to take off on a slightly different tanget about issues of credibility, and partiality in rape /sexual assault cases. In rebuttal to the overblown fear that women make false accusations against men all the time, Shakes writes:

Yes, there are some women (and men) who file false rape charges. They are, however, rare, usually quickly identified as false, and are almost always thrown out long before trial. In truth, many genuine victims of rape never see their cases reach trial due to lack of evidence; a genuine rape victim is exponentially less likely to see her attacker prosecuted than an erroneously charged man is to be prosecuted.

What I want to talk about is my experience of women who filed false rape charges. Yes, I have direct experience of this. At the college that I work, I have had the opporturnity to participate in our own internal hearing board for cases of sexual misconduct and harassment. I have also been asked to be an advisor to the accused in these hearings. I won't go into the details of cases in which I knew the accuser, who was a man, was falsely charged and wrongly found responsible of violating the college policy of sexual misconduct.

But what I do want to point out is the real danger that feminists run of deligitimizing all of our efforts to win justice for women who have been raped, assualted, or harassed. What I have learned in the years that I have worked at my college is that we altered our own internal policy on rape in such a way that is literally partial to any woman who makes an accusation of rape.

The documented policy on consent and what constitutes a violation of sexual misconduct, is written in such a way that it is relatively easy to get a conviction of sexual misconduct, in particular sexual assualt, based solely on the accusation and testimony of a woman (even if she appears confused or changes testimony in the hearing). We have a consent policy that specifies that any sexual interaction requires willing and verbal consent. If at any point, verbal consent (i.e. "yes I would like to do that") is not gotten from either participant before any sexual interaction, whether it be hugging, kissing, touching, etc., then the sexual interaction is non-consensual. Non-consent is a sufficient criterion for a finding a violation of the sexual misconduct policy. Moreoever, the documented policy reads that a sexual interaction is sexual assault if it results in a reasonable apprehension of sexual assault.

The evidence standard for these hearings is incredibly low. An accusation is enough to go to a trial. The trial also is scheduled 10 days after the accusation is made. Usually, the accused is being simultaneously investigated by the local police and D.A. As we all know, most cases of date rape are "he-said-she-said," hence they take a long time to complete their investigation and often have little to go on. The D.A. can also sit and wait to see what comes out in any internal college hearings.

The college, however, does not allow the accused to have any legal counsel in the hearing. This means that a 18-22 year old man is asked to defend himself against a rape charge without any of the protections of due process that we extend to any other citizen in our country. Anything that this student may innocently say can be used against him in the criminal case.

Now, in some ways, we might want to applaud my college and many others who have responded swiftly to feminist concerns and made the hearing process less horrific for rape victims. However, after years of thinking about this, I have come to realize that the primary reason why the college has stacked the hearing in favor of the female student is because they want to get any student who has been accused of rape off campus as soon as possible to avoid any future lawsuit. The process is rushed through to a hearing, with little time for the accused to have any sort of real counsel and preparation. The hearing board is fundamentally impartial. It consists of three students, all of which are usually aware of any rumors that already are circulating about the case, and who are often pressured (by means of a voice vote) to come to an outcome that the administrators want. The chair and another voting member of the board are staff of the very office responsible for writing policy and procedures on these hearings.

Now, there are many, many scenarios in which a false accusation of rape can go forward and easily lead to a convicition in this process. Consider the following example: A young woman, who decided that the sexual encounter that she had with a male student was sexual assault after the event. The two students were dating and had sexual interactions many, many times. On that evening, neither student actively sought verbal consent before penetration. Now let's say that the accused goes before the board and when asked: "did you get verbal consent before penetration" and he says "no," then he is ineluctably found guilty. It doesn't matter what the specific circumstances are that evening. It doesn't matter that these students had a dating relationship.

There are lots of other ways that the system is set up, internally, to favor the female who brings charges. I can go into them, but I want to make a more philosophical point.

While rape is horrific, real and pervasive, what is also pervasive is awkward, young sex between students who prior to college have gotten no real sexuality education. If a young woman comes from a strict, conservative high school, where she was taught that pre-marital sex, contraception and abortion are immoral, then she is generally wholly unequipped to be self-possessed about her sexuality or take responsibility in making healthy choices about sex. Let's say that such a young woman, nonetheless, engages in sexual activity, like many who arrive on college campuses do. Let's say that she has sex with her boyfriend, and then decides that she has committed a sin, she could bring accuse her boyfriend of rape. The female students learn, upon arriving at campus, how the process works and know that a hearing is relatively easy to get. The case also comes down to who is more credible, and the college has responded to criticisms that rape victims respond in all sorts of ways, so that a rather non-falsifiable narrative that women are always passive and victims pervades the hearing board of all cases. I honestly know of no case in which a man was not found guilty.

So, in an attempt to correct the multiple and repeated failures of our legal system with rape, sexual assault and sexual harassment charges, many college campuses have moved to the other extreme of favoring the female. The college policies, likewise, operates with a narrative of female sexuality as fundamentally passive and helpless. Any accuser's credibility is unassailable, because the college extends the view that any victim of a sexual misconduct (which is not necessarily a rape, but any non-consensual sexual interaction) is suffering from a version of the Post-Traumatic Stress Disorder. And, the PC attitudes pervasive prevent almost anyone on the board from challenging the accuser's credibility.

My point is this: A system that is partial to any party is unjust and illegitimate. The students, many of whom are feminists, often tell me that they think our own process deligitimizes the convictions of rapists, when it also convicts innocent men.

My insight is that if we alter our systems of justice to make it easier to get a conviction, we run the risk as feminists of losing all credibility and, more importantly, of failing to get justice.

I want to offer another observation about the danger of partial legal systems, and here again, I am focusing on college campuses. This system, in its current state, can be used relatively easily for a "lynching." A gay student, who does not want to come out of the closet, can win an easy conviction of another openly gay student. A student who does regret losing her virginity can easily win a conviction of the man who she chose to lose it too.

Now, not all cases that come before the hearing board are false accusations. Perhaps, only a few are, but the fact that the system is structurally flawed, that is, that it is partial, is a real threat to all feminist justice. Many students, male, female and feminist alike, deeply mistrust the outcomes of our hearing board.

My last point is this. Any judicial system that sacrifices any innocent people, because it leans toward favoring the accused or the accuser is unjust. To see a system convict an innocent student is traumatic and shakes ones faith in justice. This is what has happened in the case of the 17 year-old who has been convincted, wrongly, of a false accusation. This is also the case if an innocent man is convicted by a false allegation of rape.