Wednesday, September 27, 2017

Whodunit, and What Was Done in Rape Cases

by Sherry F. Colb

Years ago, I wrote an article entitled "'Whodunit' Versus 'What Was Done': When To Admit Character Evidence in Criminal Cases,"  published in the North Carolina Law Review.  In it, I discussed two types of cases that present themselves in criminal court. One is the "whodunit" case, in which everyone agrees that a crime was committed, but the prosecution and defense disagree about who committed that crime. The prosecution says that the defendant is the perpetrator and the defendant says that someone else, named or unnamed, is the real perpetrator. The other kind of case is the "what was done" case, in which the prosecution and defense agree about who the relevant players are (unlike in the whodunit case) but disagree over what happened. Here the prosecutor claims that the defendant did something criminal and the defense claims that it was the alleged victim (or perhaps no one at all) who did something criminal. In my article, I proposed, among other things, that propensity evidence (that is, evidence that a person has a particular character trait and therefore acted in a manner consistent with that trait) ought to be inadmissible in whodunit cases but admissible in what was done cases.

In this post, I want to use the "whodunit" and "what was done" framework to talk about the announcement by Betsy DeVos, Donald Trump's Secretary of Education, that the Department of Education would be rescinding the Obama rules (contained in a "Dear Colleague" letter), a rescission that formally took place on Friday. My column for this week discusses and defends two of the items that are found in either the Dear Colleague letter itself or in policies that some states have adopted for their campuses in response to the letter: the preponderance standard and the affirmative consent requirement. Here I want to explore the cost to the victim of sexual assault when she (or he, but I will use "she" because women are the much more frequent victims of sexual assault on campus) is not believed by the authorities to whom she goes for help.

One of the reasons that critics of the preponderance standard cite for having a higher standard is that the accused has a great deal to lose if found to have sexually assaulted the accuser, while the accuser has little to lose, one way or the other. It is true, I would acknowledge, that an accuser will not be expelled from school or otherwise disciplined by the authorities if the tribunal hearing the case rules against her, while the accused probably will be expelled and may have a hard time finding another school that will admit him if he is found to have committed a sexual assault. To suggest that the accuser has nothing to lose, however, ignores the meaning of a finding of innocence in the context of a "what was done" case.

In a "what was done" case, unlike in a "whodunit" case, the accuser is unlikely to be "mistaken" about the events in question. While a stranger-rape victim could easily err about the identity of her assailant, the same is not true for an acquaintance rape victim. The latter is typically in a "what was done" situation, where she knows who her alleged assailant was, and her story is typically very different from the story told by the accused, such that one or the other of the parties is almost certainly lying. An acquittal in a stranger rape case is accordingly less directly insulting to the alleged victim than it would be in an acquaintance rape case, because there is nothing culpable or evil about making a mistake (due to poor eyesight, a faulty memory, or the garden variety difficulty people have in making accurate identifications). In an acquaintance-rape "what was done" case, by contrast, the authorities who find the accused innocent are implicitly finding that the accuser is a liar. And campus rape cases are virtually always going to be "what was done" cases.

Being ruled a liar by the people in control of one's education is bad enough under ordinary circumstances, but a person who has been sexually assaulted is not living under ordinary circumstances. She is instead suffering from the trauma of a sexual assault and likely already blaming herself for what happened, because society teaches women to blame themselves for their victimization. Should she have worn different clothes? she wonders. Should she have been more assertive about her refusal to have sex? Should she have screamed? All of these recriminations are likely to come back at her with extra force after an official tribunal has decided that she was lying when she gave what were in fact truthful statements about being sexually assaulted. The tribunal is officially engaging in denial about what happened to her and thus implicitly telling her that what she is living is not really happening. In addition to being insulting and traumatic, this can be crazy-making. She knows (by hypothesis because we are assessing cases of mistaken rulings), that she was sexually assaulted, but those around her have ruled that no sexual assault took place and that she consented to whatever might have happened to her.

When women on campus find themselves stigmatized as liars and false accusers, they become part of a tradition of rape victims whose experience is negated by those around them. Not that long ago, as late as the early 1970's, men could rape their wives with impunity, because a rape committed by a husband against his wife was not considered a rape under the law. Every state has modified its law so that no state permits marital rape though some classify it (or some degrees of it) as less serious than other rapes, in terms of penalty or in terms of how much violence must be proved. Moreover, the thinking behind the exemption has not disappeared. That thinking holds that rape is a crime when the wrong person forces himself on a woman rather than a crime when anyone violates a woman's or a man's body against their will. A husband is the correct person, so people may be skeptical about a wife's claim that her husband raped her. Similarly, when women on a college campus go on dates with their male colleagues and otherwise indicate potential interest, they become "fair game."

It is almost as though the inquiry centers on "waiver" of a right not to be raped rather than consent to have sex. By acting out the part of the "correct" person with whom a particular man may have sex (perhaps by dressing provocatively or by going out on a date with the man), the woman is understood to have "waived"--forfeited--her right not to be sexually assaulted. By calling sexual assaults committed under these circumstances "not a sexual assault," then, the people with the power to say what happened simultaneously deny that what took place really took place and demote what took place to the status of something unworthy of outrage and punishment. The same magic was accomplished by the marital rape exemptions that polluted our laws until the mid-1970's: they held that when a man raped his wife, he didn't actually rape her, while simultaneously holding that a man forcing intercourse on his wife has done nothing worthy of anyone's attention or concern. Denial thus works as devaluation as well. (For more on the relation between denial and devaluation, you can check out my very first law review article here).

In one of my classes, I had a student who told me about being sexually assaulted by a classmate. She was having a difficult time when we were covering topics related to rape, because they brought back the whole experience for her. She told me that her assailant was not asked to leave or otherwise punished for his actions. I do not recall at this time whether there was a fact-finding proceeding at which the accused was ruled innocent or whether the official people to whom my student went with her accusation did not take the matter further. Either way, someone either did not believe what she told them or did not think it was very important (or both), and this had a very harmful effect on this student's psyche as well as her sense of safety and security.

It is, of course, true that sometimes an accuser makes up an accusation that is false, and that is why we have a fact-finding in the first place. Because the burden of proof is on the side of the accuser, there is in effect a presumption of innocence, though it (rightly) is not nearly as strong as it would be in a criminal trial, where the stakes for the two sides are more lopsided. But even in a criminal case with the beyond-a-reasonable-doubt standard--and thus even more so in a civil case with the preponderance standard--the presumption of innocence should not mean a presumption that the accuser is lying. People in the role of fact-finders should listen carefully to both the accuser and the accused and try to determine who is telling the truth. In doing that, they should consider the fact that any accused person has a systematic reason to say they are innocent, whether or not it is true. The accuser, by contrast, has no such systematic reason to lie. The so-called "swearing contest" between the accuser and the accused should therefore be no more of a contest than that which we have when a victim of a stranger rape says that the accused is guilty and the accused says he is not, a context in which people tend to think of the victim as an "eye witness" who is instantly credible.

As I acknowledge in the column, the Obama administration's campus sexual assault program was sometimes implemented in a flawed manner that resulted in injustice to accused men. That fact could have led to reasonable tweaks to the policy. However, by completely abandoning the approach, the Trump administration has taken a giant step in the wrong direction, as it broadly signals that campus sexual assault is not a serious problem. Bringing a heavy dose of skepticism to accusers in the acquaintance rape context is inappropriate, and such skepticism largely reflects the fact that some people continue to think that "real rape" requires a stranger with a knife who is uncontroversially the "wrong" person to be forcing sex on his victim.


Joe said...

Congrats on your 25th anniversary.

I guess when it comes to law articles, paper is always appropriate as a gift.

Asher Steinberg said...

Without commenting on which standard of proof I prefer here - I lean in favor of preponderance - it seems to me that raising the standard to something higher than a preponderance means that in cases where the accused is exonerated, the accuser is not "ruled a liar." The tribunal may, in fact, believe her story is true but not be certain. However, under a preponderance standard, the accuser is being ruled a liar, more likely than not, if the accused is exonerated. Exonerations will be less common under preponderance, but they will much more clearly carry an implication that the accuser lied.

greg rubin said...

I have some experience with these issues, and frankly I have absolutely zero faith in the system that Obama's administration created. I have worked directly or indirectly with sexual assault allegations at three separate Universities, and frankly the systems they have in place are all so terrible I almost can't believe that blowing the whole thing up isn't warranted.

From University presidents that ordered the review board to find the person responsible no matter what (yes a real case with email documents), to a school where the same person acts as judge, jury, prosecutor, and investigator The third school just quietly swept allegations under the rug... Anyone who filed a complaint was immediately offered a full ride scholarship if they withdrew the complaint (this at a $65,000/year school).

Discussing the standard of 'conviction' is really missing the forest for the trees because no school in my experience actually uses them anyway. Once school doesn't want to reports so they try to bury the complaint, meaning they can claim to be a 'safe' campus, to other schools who presume guilt and absent a showing you were out of the country will convict you. The real problem is we have people with no legal training uncharge of this, who have interests at odds with finding the truth, and massive financial impacts to the schools.

It leads to an absolute mess of conflicts of interest, being administered by people who simply do not care about legal standards.

Joseph Simmons said...

You write: "In a "what was done" case, unlike in a "whodunit" case, the accuser is unlikely to be "mistaken" about the events in question."

In your column you write of one of the mistakes made by a college in prosecuting sexual assault:

In one of the individual cases outlined in The Atlantic, for example, a female student accused a male student of sexual assault despite the fact that nothing that she claims happened between the two of them amounts to an assault under any remotely plausible definition

Based on additional details in your column you may be referring the the example the Atlantic offered in its first article, where the female student "said she told him she was feeling uncomfortable and thought she needed to leave" and "he cajoled her to stay—'playfully' grabbing her arm at one point, and drawing her in to kiss."

The female student then didn't merely tell college authorities but also reported the incident to the police and sought medical treatment. I have omitted other details from the article but to contend that there was not an "assault under any remotely plausible definition" suggests the student is at least very much mistaken (if not a liar). Based on the few facts I recite, I think many would contest your characterization that it is not remotely qualifying, whatever else we may know about the case. My limited recitation of facts is not to be sneaky, but to describe a problem of evidence and how mistake can exist in such a situation.

In the discussed case, the female student offered certain evidence as to her own intent and confused ideas that paints a favorable picture of the accused. In other cases we won't necessarily have those statements from an accuser even if they accurately reflect what happened. If we are to err away from calling an accuser a liar or suggesting her subjective experience of assault doesn't count because she is mistaken, injustice seems inevitable. There is a question as to how common such "mistakes" are - as we know: one side says it's all about confusion/mistake and the other contends, as you do, that mistakes are rare.

As often occurs, one side was overzealous. As a reaction, some on the other side of the aisle contend colleges should have no role in adjudicating these matters. (A bad idea that won't get serious consideration but it was invigorated.) The rescission will hopefully get us to a more sane place, ensuring some basic due process. Perhaps these colleges need to focus on educating on the value of affirmative consent and the responsibilities of both parties.

modusvivendi2 said...

@OP: I've long felt that preponderance and affirmative consent were strong aspects of the Obama-era guidance that ought to be kept, and that the Star Chamber-y theories (that people ought to be precluded from making a defense or frankly even knowing the accusations against them) were... um, not, and oughtn't. This post is at least some grist for the mill of that dichotomy.

@Asher: Even under a preponderance standard, a finding in favor of the respondent is not "ruling the complainant a liar." "Liar" means that you have intentionally made a false statement. A factfinder need not find that a complainant intentionally made false statements to find against her; it could find, just to take the most obvious examples, (a) that she was mistaken, (b) that she could not accurately remember what happened (not uncommon in cases involving intoxication), or (c) that the facts she testified to were true but did not meet the definition of sexual assault. None of those suggests that the complainant lied.