SIUE Criminal Justice faculty member Trish Oberweis has long been concerned with sexual assault, especially on college campuses. In this blog entry, Dr. Oberweis again takes up this long-standing concern. She wishes to thank former SIUE faculty member Carly Hayden Foster, now on the Political Science faculty of Luther College, for assistance in developing this consideration of a local sexual assault case and how it reflects light on taking women’s word for it. Does presuming innocence on the part of the alleged perpetrator require presuming incompetence or malfeasance on the part of the alleged victim?
–Alison Reiheld, Director of SIUE’s Women’s Studies Program
This autumn, Missouri House candidate Cora Faith Walker alleged that Steven Roberts, Jr., another House candidate from a different district, raped her. They were strategizing legislation together, in anticipation of a future in which they would both be elected to the Missouri House of Representatives from their respective districts, and would be collaborating on various projects. It was a late meeting, and one that Walker asserts ended in violence.
She reported the crime to police, who investigated it. On October 25, 2016, the special prosecutor appointed to the case, Tim Lohmar, declined to press charges. “There simply wasn’t enough credible evidence that sexual relations between these two people were anything but consensual,” he said. In other words, it was a he said/she said situation. How can we possibly sort out that sort of situation?
Well, I am not convinced that it is really that difficult.
Consider a different context. If a person looks out his window and sees someone he knows exiting his car with the car stereo in tow, he may react in surprise. He might run outside and try to prevent the thief from completing the crime. “Hey!” he might shout, “What are you doing?” He might demand that the stereo be returned, that the friend or that the acquaintance repair the damage, etc. On the other hand, his shock and confusion might temporarily freeze him up, and he might not do much at all, but stand dumbfounded for a minute or two, as the crime is completed.
Either way, upon failing to ward off the crime, he may ultimately resort to calling the police. They, of course, will come and take a report, listen to the alleged victim and take notes; perhaps they’ll ask a question here and there to be sure they’ve got the details right. All along, the unspoken assumption made by the officer is that this person most likely actually had a car stereo that was taken without his consent. This basic part of the story will be presumed true, at least initially.
Because the alleged victim recognized the thief, the police would be given a name, and be able follow up; they’d go and interview that person, try to find out what’s up. Upon talking to the accused, imagine the skepticism that would greet the alleged thief’s claim that, “He told me I could borrow his car stereo.” Police would surely wonder why the alleged victim would have called the police, if he had invited the acquaintance to enter his car and take the stereo. And, any experienced cop would realize that someone who’d just stolen a stereo has reason to lie–that skepticism is in order. It is pragmatic common sense to recognize that it is far more likely that the accused, not the accuser, is straying from the truth.
The task for the police is to sort out the probable from the improbable. It is improbable that a person is making up a crime allegation, and probable that someone caught committing a crime would lie about it. It doesn’t take police experience to understand that. And, statistics bear this out: only a tiny fraction of crime reports are false.
So, imagine that the accused person proclaims that he was allowed in his friend’s car. He asserts that he was invited on the basis that this very friend (now an alleged victim) had invited him into that car previously. The police would recognize immediately that this is irrelevant, in the same way that a repairman, invited in to a home for a repair has no business returning to that home and presuming that the invitation extends to some other time. For home entry as for car entry, this past permission to enter is immediately recognizable as irrelevant to a current instance. Such a claim not only does nothing to indicate that the accused is blameless in this situation, but the very leap in logic itself seems likely to affirm the truth in the accuser’s complaint. That is a plainly weird thing to say to prove one’s blamelessness in this scenario.
Of course, the actual truth could be that the owner of the car did invite the accused into the car and offer to loan him the stereo. Although unlikely, it is possible that the whole thing could be a false report of crime, designed to get an innocent person in trouble with the law. But the initial approach, derived from years of experience in handling reports of crime, is to take the report seriously and investigate faithfully the claims that the alleged victim is making. After all, an animal in the US with four hooves and a mane is best presumed a horse, and not a zebra. Police do not challenge the veracity of crime reports ordinarily and instead they begin with the presumption that they have been called for a good reason. Both experience and research support this practical approach. And besides, the task for police is to sort the field of probabilities, not to determine guilt or innocence. That responsibility falls to a judge and/or a jury.
Beginning from a presumption that a crime reporter is probably reporting some real event is the norm–unless the person who reports a crime is reporting a rape. In that instance, all too often, the victim’s claim is not taken on faith to be true. Concerns about a change of heart about a sexual encounter or some other self-serving motivation emerge promptly. Previous invitations too often become a cornerstone around which the investigation is built. The initial credibility granted to victims of nearly every other kind of crime—the presumption that the accuser is reporting something real—is not always extended to rape victims. Instead, they are met with mistrust until an investigation begins to support their claims. We start by meticulously searching for the zebra, rather than presuming that we’re looking for the horse.
So, when the person accused of rape says that he was invited, that the sex was consensual, the skepticism that greeted the car thief is frequently absent. Where the victim of the stolen property case was presumed to be faithfully reporting, it made sense to doubt any claim of being invited. Where the rape victim is presumed to be untrustworthy, it seems unfair to doubt the alleged rapist’s claim that sex was consensual. Although the thief’s claim that a prior invitation was evidence that he was allowed to take the stereo is plainly illogical and inappropriate, the rapist’s analogous claim that he was invited before, that he had some prior intimate relationship, builds a plausible defense for him and suggests that this is a “gray area”
that is too confusing to sort out. It becomes a he said/she said affair. The thieving situation does not degenerate to a he said/he said situation precisely because there is a default credibility given to the accuser, at least initially. That default credibility is largely missing for rape victims, even though research demonstrates that women falsely report rape in similar proportions to all other false reports of crime, which is to say “very rarely.” It is a zebra for any crime–not impossible, but certainly improbable.
While American culture holds dear its belief that the accused is innocent until proven guilty, we also ordinarily act with genuine belief that crime reporters are credible—innocent of false reports—unless some evidence mounts to undermine that presumption. This is standard, unless the accuser is a woman (or a child) and the claim is one of rape. Then, we start not at the ground zero of a credible reporter and the presumption that a crime has occurred, but rather we begin by questioning whether we have credible reporter and starting with the question of whether—or not—a crime has even occurred. This is fundamentally different than the set of assumptions that operate for other crimes.
This simple difference in perceived credibility results in police work that too often has the unique disposition for rape accusations that “it was his word against hers,” and therefore is not actionable. Not only does this harm the reporting survivor, who is denied her day in court, but it also sends the strong message to (future) rape survivors everywhere that their claims will be perceived as suspicious and unfounded, thus discouraging others from reporting. It emphasizes to survivors considering whether to report that evidence must not only support that claim, but must also contradict and discredit something that the accused says in order to be treated as a real crime. That is, for any other crime, the reporter is presumed truthful until evidence suggests otherwise, but for rape, the reporter too often must first prove her truthfulness and also some deceitfulness on the part of the accused before the claim can be taken seriously.
The end result is that all too often we close rape allegations without filing charges, saying that the evidence amounts to his word against hers. When is any crime different than that? Isn’t the stereo situation the victim’s word against the accused? Why, then, can we move forward in that case, but not when the crime is rape and the victim is female?
Remember that it is not the responsibility of either of the police or the prosecutor to determine whether the accused is guilty or innocent. That is the responsibility of the judge or a jury. The police are tasked with establishing whether there is probable cause to believe that the accused committed the wrongful act, and prosecutor must establish that there is admissible evidence to support that accusation. It is for the judge and jury to weigh that evidence.
Treating everyone who reports a crime as a credible person is not only fair, but it is supported by data that demonstrate the relative rareness of false reporting–for any crime, including rape. Treating everyone who reports a crime as truthful does nothing to change the presumption of innocence of the accused. But treating accusers as credible allows the criminal justice system to do its job for everyone who reports a crime. A presumption of credibility treats rape survivors seeking equal protection under the law equally.
We must reassess our approach to rape allegations, so that those who come forward with reports of the crime are not guilty until proven innocent.