The State of the Union for the Community of the Wrongly Accused is Bleak

I founded The Community of the Wrongly Accused (COTWA) to give voice to a largely ignored and forgotten class of people and to help them air their unique problems. Recently, an Innocence Project attorney wrote to us about our “amazing write-up on Brian’s story” (his words, not ours). He was, of course, referencing Brian Banks, and our post about it is found here:

http://www.cotwa.info/2012/06/bygones-be-bygones-unspeakable.html.

“Your write-up is far more comprehensive than any I’ve seen on the web,” the Innocence Project attorney wrote. Moreover, our blog recently was cited as a resource in the Duke Law Journal. See Matthew R. Triplett, Note, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 n. 9 (2012).

Our message has been gaining respectability, but sometimes I feel that our efforts are akin to rearranging the lounge chairs on the Titanic. Make no mistake, the state of the union for the wrongly accused is not good, and in this post, I am going to outline some of the major issues that everyone should know about.

First, a few days ago, an anonymous reader left an odious comment under a post at COTWA:

The promotion of the idea that many false rape claims occur and tarnish reputations only causes victims to feel like they won’t [be] believed, or the perpetrators will not be charged or convicted if they come forward. It is a thin line this website walks. . . . . It’s as if you think this website needs to exist or else the girls who cry rape (because that happens so incredibly often) will take over the planet and men will be bullied into a powerless, ashamed minority in the face of female tyranny and dominance. You know, like women are now?

The comment is a mile-marker of where we are, and of how far we have to go. COTWA is among a handful of outlets available to let the wrongly accused know they are not alone. We have received notes from young men who tell us that our blog was instrumental in their decisions not to take their own lives. Yet, people like this anonymous writer think that one unfunded, overworked blog to give voice to the unique problems of the wrongly accused is one blog too many. It would be good to have an adult discussion sometime about the delicate balance that is at the heart of our mission — the need to (1) eradicate heinous criminality by punishing the offenders while (2) insuring that the innocent aren’t punished with them — without being demonized. Sadly, that’s not going to happen so long as the people who dominate the public discourse on these issues mock and brand as misogynists anyone who dares even to discuss the second part of that delicate balance.

When sexual assault victim’s advocate Rus Funk was asked about false claims during a public forum, the newspaper account said Funk’s face visibly reacted. “Rape and domestic violence have the lowest reporting rates of all crimes,” he said, “and we do have a false reporting problem: too many women who have been raped say that they have not.” The audience, silent for most of the workshop, applauded. He closed this line of conversation with, “The false issue of false reporting is misogynistic and a result of societal hatred for women.”

http://falserapesociety.blogspot.com/2008/10/public-enemy-number-one-rus-funk.html

Then there was the college official at Elon University who openly stated that she doesn’t want false reports about sexual violence to be “highly publicized.” She coupled her comment with misinformation: “The federal percentage at which crimes are falsely reported is 2 percent.” http://falserapesociety.blogspot.com/2010/05/elon-university-doesnt-want-false-rape.html

Other members of what can aptly be called the Secual Grievance Industry (SGI) don’t want false rape accusers even to be charged, much less jailed. One recommended some form of therapeutic intervention instead, because anyone who would make a false rape claim must be “pretty distressed.” That same victim’s advocate is also on record as saying that courts should not take into account a sex offender’s substance abuse at the time of the offense, but if a false rape accuser abuses alcohol or drugs “there may be a confusion between historic issues that have been unresolved and a current need for help.”

http://falserapesociety.blogspot.com/2011/01/views-of-prominent-member-of-sexual.html

We could furnish a list of recent horror stories to illustrate the problems the wrongly accused face, but we think it’s more important to focus on the big picture:

Reducing Men to Caricature

The community of the wrongly accused is under unrelenting and remorseless assault. The SGI reduces men and boys to caricature in order to remake them in the image of a progressive’s stardust fantasy, beings whose raison d’être, apparently, is to help empower women. Less obvious, but equally true, the SGI also reduces women to caricature.

How does the SGI reduce men to caricature? Writer Jessica Valenti, one of the purveyors of the maleness-is-broken crowd, once wrote: “Rape is part of our culture. It’s normalized to the point where men who are otherwise decent guys will rape and not even think that it’s wrong. And that’s what terrifies me.”

In her Valedictorian address to a graduating class of UC Berkeley, a young woman said this: “Even here, this university, one in three women will be sexually assaulted by someone else at this university. And I see this as evidence that violence is systemic and there is no way to guarantee our own safety as long as other people are positioned as worthless and left vulnerable.”

Lying About False Rape Claims

How does the SGI intellectually support these peculiar, decidedly anti-intellectual, views? For one, its members minimize the prevalence of false rape reporting by dishonestly suggesting that there are no false rape claims beyond those that can be proven to be false. (We often see this as: “only 8 percent of all rape claims are false” — suggesting that the other 92 percent were actual rapes.) This ignores, of course, the fact that the vast majority of rape claims fall into a gray area where no one can say with confidence whether they were actual rapes, false claims, or mistakes.

Lies can sometimes have terrible effects. During the first wave of hearings over VAWA, the following canard found its way into the Congressional Record: “Estimates indicate that only 2 percent of all rape reports prove to be false, a rate comparable to the false report rate for other crimes.” (Report by the Committee on the Judiciary in connection with the Violence Against Women Act. Senate Report 102-197 (102 S. Rpt. 197), Pub. L. 102-197 n. 48 (Oct. 29, 1991).) Even though it was as wrong as can be, it was accepted as evidence to justify passage of VAWA.

And let’s also clear this up once and for all: it doesn’t matter to an innocent young man who sits in jail on a sex charge, often fearing for his life, if he got there by way of a lie or because his accuser was mistaken.

The SGI’s ‘Solutions’

Having created the straw man that rape is “normalized” and that young men are rapists-in-waiting, the SGI provides the “solutions” – all of which potentially imperil the innocent. Here are some of the more important and telling “solutions”:

(1) The Department of Education’s April 4, 2011 “Dear Colleague” letter: We’ve written extensively about the infamous letter that lowered the standard of proof for sexual assault cases (and only sexual assault cases) on campus to a “preponderance of the evidence.” This means that even if a college disciplinary board is 49.999 percent sure that a young man accused of rape didn’t do, he may be expelled. Having a reasonable doubt, or even a significant doubt, doesn’t cut it anymore for the accused.

This fact is what is most often overlooked in the public discourse of this issue: there is just one reason that most colleges formerly had standards of proof higher than this: to protect the innocent from being unfairly punished for things they didn’t do. The higher standards helped to insure that the school wasn’t making a mistake by expelling an innocent man. But the Obama administration doesn’t think enough young rapists are being nabbed, so it enacted this rule to make it easier to expel young men, the innocent be damned.

The potential effect on the innocent is staggering. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman of Cornell Law School said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that “there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian.”

http://www.cotwa.info/2012/04/law-professors-dear-colleague.html

Others don’t quite get it: a female student at the University of Maryland told her school’s student newspaper that letting someone guilty of a serious crime go unpunished would be more harmful than finding an innocent person guilty. “It’s obviously one of the big side effects, if it could result in an innocent person being found guilty,” she said. “But I think sexual assault is such a big issue that it’s worth the risk.” At least she is up front with her bigotry. Her sentiment — the same one underly the “Dear Colleague” letter, of course, flips on its head the long-settled principle of law famously expressed by the celebrated English jurist William Blackstone: it is “better that ten guilty persons escape than that one innocent suffer.” (Commentaries on the Laws of England, 1765.)

http://www.cotwa.info/2012/05/barbaric-it-is-worth-risk-to-punish.html

Brett Sokolow, currently, the most prominent victim’s advocate on American campuses, has said that “a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” Mr. Sokolow said the reaction borders on “hysteria.” He pointed out that expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

http://www.cotwa.info/2012/04/brett-sokolow-colleges-now-are.html

If Brett Sokolow expresses concerns, that means the rest of us ought to be terrified.

(2) Sexual Coercion: Colleges across America are punishing young men not for physically forcing themselves on women, but for nagging for sex. For decades, young men have been taught to ask for sex; now they are being punished for asking too much.

NCHERM, Brett Sokolow’s organization that advises colleges across America on their sexual misconduct policies, has a model sexual misconduct policy that has been adopted in whole or in part by colleges across America. It contains this breathtaking, other-worldly, example of sexual coercion:

Amanda and Bill meet at a party. They spend the evening dancing and getting to know each other. Bill convinces Amanda to come up to his room. From 11:00pm until 3:00am, Bill uses every line he can think of to convince Amanda to have sex with him, but she adamantly refuses. He keeps at her, and begins to question her religious convictions, and accuses her of being “a prude.” Finally, it seems to Bill that her resolve is weakening, and he convinces her to give him a “hand job” (hand to genital contact). Amanda would never had done it but for Bill’s incessant advances. He feels that he successfully seduced her, and that she wanted to do it all along, but was playing shy and hard to get. Why else would she have come up to his room alone after the party? If she really didn’t want it, she could have left. Bill is responsible for violating the university Non‐Consensual Sexual Contact policy. It is likely that a university hearing board would find that the degree and duration of the pressure Bill applied to Amanda are unreasonable. Bill coerced Amanda into performing unwanted sexual touching upon him. Where sexual activity is coerced, it is forced. Consent is not effective when forced. Sex without effective consent is sexual misconduct.

(Emphasis in original.) In NCHERM’s example, Bill “convinced” Amanda to give him a hand-job — he asked, and she agreed. She willingly stayed in his room for hours, apparently listening to his boorish and pathetic entreaties. Amanda had a reasonable alternative to engaging in the sex act but chose not to exercise it: at any time she was free to say “good night” and to get up and leave. Bill is allegedly responsible even though it was Amanda’s choice to stay.

Giving a horny college guy a hand-job because he wants it, or to shut him up, or because the woman wants to foster a relationship with him and sees that as a way to do it, is not sexual misconduct in any setting other than the academy. Bill may be many things – boorish, immature and even selfish – but based on the limited information available to us in NCHERM’s example, he is not a rapist and shouldn’t be punished because he asked for sex in a way Amanda later decided was offensive.

Mr. Sokolow has explained that “an agreement to have sex is a contract. Just like buying a car, buying a house, getting married, and any number of personal transactions.” http://ncherm.org/pdfs/2005NC3.pdf It is correct that consent in the rape milieu has its roots in contract law, and that’s where Mr. Sokolow’s example involving Bill and Amanda fails. In contract law, not all agreements formed with apparent assent are legally binding. Duress is the common law concept employed to invalidate contracts due to the absence of the kind of freely given consent that society has decided is necessary to bind people to their promises.

The classic example is a loaded gun pointed at someone’s head with a threat that “either your brains or your signature will be on the contract,” per Don Corleone. Pay attention to this: a contract is voidable for duress if (1) the victim’s manifestation of assent has been induced by an improper threat, and (2) the victim has no reasonable alternative except to manifest assent.

NCHERM’s brand of “sexual coercion” fails on both counts. Asking for sex, even repeatedly, is not an improper threat. Even more important, being able to say “no,” and having the freedom to get up and leave the guy’s room, is a reasonable alternative. But, as we noted above, the SGI doesn’t just reduce men to caricature. It is happy to reduce women to caricature as well. In the example above, Amanda is a helpless leaf in the wind and not a free moral agent capable of resisting the entreaties of a horny college guy looking for someone to rub his penis. That is as insulting as it is absurd. Big Sister – and NCHERM – and especially Brett Sokolow – need to get the hell out of the bedroom.

The coercion offense is also an affront to due process because it’s definition – “Coercion is unreasonable pressure for sexual activity” — is too indefinite to be fairly, uniformly, enforced. Rape law has never been a clearinghouse to redress every less than ideal sexual encounter. Nor should it be a guessing game based on free-floating standards of purported wrongdoing that punishes criminality “in the air.” What does “unreasonable pressure” mean in a culture where sex roles of pursuer and “hard to get” have been fairly divided along gender lines for eons? The guy can ask for sex, but he can’t ask too much, and he might be expelled if he crosses some indistinct, blurry line that’s about as clear as a dense New England fog. Does a “no” at 7:00 o’clock mean the topic of sex is off-limits? For how long? Until 10:00 o’clock? Midnight? The entire night? When does asking become nagging? Is a little nagging acceptable? At what point does a little nagging become excessive nagging? When will one more nag be enough to expel a young man? When does “seduction” magically turn into “coercion”? There is no mistaking midnight for noon, but at what point does twilight become night? As a policy, “sexual coercion” is an embarrassment. If it weren’t so dangerous to so many young men, it would be laughable.

(3) Enthusiastic Consent: Many colleges say that effective consent may only be obtained with “an unambiguous, verbal, positive and enthusiastic statement of consent for each sexual act . . . .”

The problem with this definition, of course, is that it will expel men for engaging in sexual relations even when actual consent is present if it wasn’t “enthusiastic.” This blinks at the fact that interactions in the bedroom have never been marked by carefully phrased language crafted from legal formbooks. Intimate relations are far more subtle, and are marked by looks, nods, gentle caresses, and barely decipherable grunts emanating from sweaty embraces.

The “sexual coercion” offense also ignores that some people don’t show much “enthusiasm” about anything. In any event, who, on earth, will decide if consent was “clearly enthusiastic” anyway? Men and women do not carry “enthusiasm” meters into the bedroom. How can a disciplinary board tell the difference between ordinary consent and consent that is “clearly enthusiastic”?

(4) Reckless Sex: A few years ago, legal scholars Ian Ayres and Katharine K. Baker wrote a law review article called A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599 (2005) in which they proposed a new law that would criminalize what they called “reckless sex.” It is defined as penile penetration, without a condom, in a first-time sexual encounter. It doesn’t matter if there was consent to the act itself, it would be a crime if there was not also consent to unprotected sex. If no condom was used, the male must prove that the woman “expressly asked to engage in unprotected sexual activity or otherwise gave unequivocal indications of affirmatively consenting to engage in sexual activity that is specifically unprotected.”

What was the purpose of this silliness? One of the purposes, the authors freely admit, is to “reduce the . . . prevalence of acquaintance rape.” Rapists are also more likely to engage in condom-less “reckless” sex, so this is a way of reducing acquaintance rape.

While in theory, both men and women could be charged with this new crime — and sentenced to up to six months behind bars — the authors make no apologies that the proposed law is aimed at young men. The authors freely admit that young women would have “de facto immunity” from prosecution: “While facially neutral with regard to sex, as a practical matter women will be largely beyond prosecution,” they concede. The act of male penetration would almost always excuse the woman from prosecution. The authors admit that this might seem unfair “because,” the concede, “women can be reckless too in instigating, precipitating, or just willingly consenting to an unprotected first-time sexual encounter.” So why do they persist in giving women de facto immunity? Or, as the authors put it themselves: “Why is it fair that the man who consents to unprotected sex must run the risk of prosecution, when the woman who consents to unprotected sex does not?”

First, they say this concern would be a problem if women lied about such matters, but few do, so it’s not. (Sigh.) Second, they say that since one of the aims of the law is to nab more acquaintance rapists, and the vast majority of acquaintance rapists are male, “from the perspective of making progress on acquaintance rape it is almost completely unproblematic to have a larger de facto immunity for women.” Third, and most important, “a woman would be much less likely to report a partner’s reckless behavior if by doing so she was subjecting herself to prosecution for the same act.” And punishing women for this crime “would aggravate the current underreporting of acquaintance rape.”

The authors also explain why they have intentionally drafted the model statute to have a mild punishment (just several months in prison) compared to rape: so that more young men will be punished. (No, we’re not making that up.) Law enforcement personnel would be more likely to charge young men for this crime if the punishment is not great, they insist. They write: “The more the behavior gets punished somewhat, the easier it will become to punish in general and the more people will be punished.” (And these two presumably teach young men at their universities.)

(5) Alcohol Impairment: Some colleges go so far to mandate that consent be “unimpaired” from alcohol or drugs. This ignores the difference between “incapacitation” and “impairment.” Brett Sokolow has conceded that “being impaired while engaging in sex in no way implicates Title IX. . . . incapacitated sex will implicate Title IX, but confusing incapacitation with impairment helps no one here, especially the students who are trying to understand their experiences.” The “impairment” standard puts innocent men at grave risk of being expelled because alcohol is usually present in college sexual encounters.

(6) No Anonymity for the Accused: Anonymity for the sexual assault accuser is firmly entrenched in the UK (by law) and the U.S. (by the policies of news outlets). It has been questioned and attacked even by some feminists because it resonates in chivalry and conjures up the image of the helpless damsel in distress. But there is no significant movement to end it.

Anonymity for the accused is a controversial issue, and there is very little chance it will ever be approved. The last time it was proposed in the UK a few years ago, it was soundly shot down by women’s groups. It is unfortunate that there is not at least an adult discussion about it, because there are important reasons for adopting it. Justice for rape victims does not depend on the public shaming and humiliation of the presumptively innocent, but, it seems, some victims advocates view such public humiliation of the presumptively innocent as punishment for being an accused rapist. For rape claims, the accusation becomes its own conviction in the court of public opinion because it is nearly impossible to undo even the most far-fetched accusation (that’s due to the he said/she said nature of the claim).

The stigma trails men throughout their lives, especially in the Google age, where news stories have a permanence and and accessibility they didn’t formerly have. Legion are the cases where those wrongly accused of rape have suffered unspeakable injustice — firings, divorces, loss of businesses, beatings and even death — due to the vile stigma of the claim.

We have real-world evidence that anonymity is not the bogeyman that many women’s groups claim. Many accused rapists are already afforded anonymity, without adverse effects to rape victims. In the UK, anonymity orders under Section 39 of the Children and Young Persons Act 1933 are frequently granted to teen boys accused of sex crimes. Moreover, men whose identities cannot be revealed without necessarily revealing the accuser’s identity are usually treated anonymously by the press in both the UK and the U.S. The identities of accused males who fall within these two classes are shielded because, as a matter of public policy, the benefits of shielding their identities are deemed to outweigh the detriments.

There is no evidence — none whatsoever — that granting anonymity to these classes of defendants has in any manner hindered the war on rape. Thus, in a real world setting, every hypothetical disaster that would supposedly occur if anonymity were granted has been proven to be disingenuous.

The most interesting facet of this issue is that, arguably, many more rape victims would “come forward” if the men they accused were anonymous. The vast majority of rapes, we are told, are of the acquaintance variety. When a woman accuses a male acquaintance of rape and he is publicly identified, it often isn’t difficult to infer who the accuser is. It is reasonable to assume that most rape victims would prefer not to have their identities revealed by inference when they accuse an intimate acquaintance of rape. We suspect that a fair number of women are not coming forward because they know their identities will become known when the identities of the men or boys they accuse are publicized.

What’s Next? On college campuses, watch for efforts to flip the burden of proving consent. Once the female proves that penetration or sexual touching occurred (and usually, there is no dispute about these), the burden would flip to the male to prove that she consented. Thus, if the college disciplinary doesn’t know what to make of the case and figures it could go either way, the male would be expelled. It would be the triumph on campus of politicized rage over Blackstone’s Formulation, due process, justice, and morality. Don’t think it can happen? The SGI has never stopped coming up with more and more intrusions on the rights of the presumptively innocent accused of sex offenses. Each time we think we’ve seen the end of it, they surprise us with something else.

Conclusion: For a long time, I’ve been pleading for the elevation of the level of public discourse about these issues. There are reasonable voices among victims’ advocates who acknowledge that both sides of the delicate balance we referenced at the outset — the need to (1) eradicate heinous criminality by punishing the offenders while (2) insuring that the innocent aren’t punished with them — need to be considered. Usually, those views are drowned out in the cacophony to help rape “victims” (and I put “victims” in quotation marks because the term is often misused to refer to accusers who have not been proven to be victims). Those reasonable voices must be engaged and encouraged. http://falserapesociety.blogspot.com/2011/12/time-to-elevate-public-discourse-about.html

The victims’ advocates who refuse to acknowledge that balance do a grave disservice not only to the wrongly accused, but to victims of sexual assault.

First, if potential jurors believe that the system doesn’t provide adequate safeguards for the innocent — and clearly in many cases it does not — they will be all the more wary of convicting accused criminals even when the evidence is compelling. That serves no one’s purpose. COTWA has no interest in protecting rapists.

Second, if rape victims are not coming forward because they believe that women do not receive justice, precisely who is scaring them away? The SGI, of course. Example: for a long time in the UK, the Home Office and politicians allied with anti-rape activists, have talked about the success rate in prosecuting rape by disingenuously citing the attrition rate for alleged rape, which is the number of convictions as a percentage of number of reported crimes.

That rate is approximately 6.5%. But, the Home Office, and everyone else, uses the conviction rate, the number of convictions secured against the number of persons brought to trial for that given offence, for all other crimes – murder, assault, robbery, and so on. In fact, the conviction rate for rape is approximately 58%. The chasm between 58% and 6.5% represents dishonesty of Biblical proportions, and the latter is cited to “prove” that rape victims don’t receive justice. The result of such dishonest advocacy has made it appear that law enforcement is terribly, and uniquely, ineffective when it comes to rape. Importantly, the Stern Review noted that the wrongful use of the attrition rate instead of the conviction rate “may well have discouraged some victims from reporting.”

There is so much we should do to instill sexual maturity in our young people in order to end less than satisfying sexual encounters. We should be teaching them about a host of issues: what “consent” really means; the proven “regret” asymmetry between men and women that makes the latter decidedly more regretful about hook-ups after-the fact; the terrible role alcohol plays in the hook-up culture; how sex without emotional intimacy breeds all sorts of problems, including rape and false claims and anything in between; and how those in fatherless homes are multiple times more likely to rape. Instead of educating young people about these issues, too often the SGI is content to shame and stereotype men, as a class, by, for example, hanging gender-divisive posters around campus.

The state of the union for the community of the wrongly accused is bleak and frightening. The injustices to innocent men and boys are often unspeakable. Men and women who are interested in our work are strongly encouraged to read our blog every day, and to become involved in the issues we discuss. COTWA needs your help to spread the word for the sake of the wrongly accused. They have few others who give a damn about them, and that’s a fact.

http://www.cotwa.info/