Wednesday, October 10, 2018

Believing Men Who Lie About Rape

by Sherry F. Colb

Dr. Christine Blasey Ford needed a great deal of courage to come forward and accuse Judge Brett Kavanaugh of attempted rape. Such accusations predictably yield resistance, with allies of the accused saying that the accuser is either lying or mistaken (or crazy). Yet Ford brought her accusation nonetheless, saying that she felt it was her civic duty, and Donald Trump described her testimony as credible; at least that is part of what he initially said. He also observed that he himself has endured false sexual assault allegations, implying that he and Kavanaugh were like peas in a pod. 

Trump's expressly drawing a parallel between his own and Kavanaugh's experience was interesting. Trump, as we know, effectively confessed to sexually assaulting women in an Access Hollywood video that aired only weeks before the presidential election. The women who subsequently came forward were simply confirming that Trump had committed the criminal acts that he had described in the video.

Another sexual assault allegation against him was that of his ex-wife, Ivana Trump. Ivana reportedly gave a deposition during the Trumps' divorce proceedings in which she provided a graphic description of Trump brutally raping her. He was apparently enraged after having undergone painful scalp reduction surgery to cover a bald spot. He allegedly tore clumps of her hair off her head, tore her clothes off, held her down, and jammed his penis into her.  In her account of these events, she ran upstairs and cried for the rest of the night. When she returned to their bedroom, he reportedly menacingly asked her "does it hurt?" Ivana has since retracted this accusation, and one can decide whether the accusation or the retraction is more credible.

Whether one believes Ivana's detailed account or not, Trump does appear to engage in false sexual assault denials (while characterizing his own confessions as mere "locker room talk"). That's hardly surprising, given all of the other distortion and outright lying in which the president engages. Here, however, I want to set aside Trump's broader tendency to lie to focus on his false denials that he has committed sexual assault. He said he was innocent of sexual assault and called his accusers liars. Why in the world would he imagine that comparing himself to Kavanaugh would help exonerate Kavanaugh? 

To see just how peculiar Trump’s identification with Kavanaugh was if Trump’s real goal was to make Kavanaugh seem more sympathetic, consider the converse. Imagine that a woman named Donna falsely accused a man, Hans, of rape. Donna tells a friend on video that she falsely accused Hans because Hans got mustard on Donna's blouse one time and did not offer to have it cleaned. She adds that "when you're a star, they let you do it. You can do anything. Grab 'em by the balls. Just invent rape accusations. You can do anything, and everyone believes what you say!" The video becomes public so that everyone knows that Donna is a liar who falsely accused Hans of rape. Then, a couple of years later, Donna's friend Mara happens to accuse some other man, Ingram, of rape as well.

Would Donna come forward and say that she sympathizes with Mara, because men have sexually assaulted her too? That seems unlikely. After all, Donna is an admitted false accuser. Connecting her own experiences with those of her friend Mara would necessarily suggest to people that Mara's claim is as false as Donna's. To help her friend, Donna would deliberately keep her distance from Mara, precisely so that no one draws the conclusion that just as Donna falsely accused Hans, so then did Mara falsely accuse Ingram. 

Yet Trump felt no compunction about daring to step in front of the cameras and say that he understands Kavanaugh's situation because Trump too has been falsely accused of sexual assault.

Did Trump's expression of solidarity harm Kavanaugh? Apparently not. But why not?

There seems to be no pervasive stereotype about accused sex criminals wrongfully denying their own guilt such that Trump's lies might contaminate Kavanaugh by association. There is, by contrast, a ubiquitous stereotype of the "woman who cried rape." Like the boy who cried wolf, the narrative of the woman who falsely accuses an innocent man of violating her trains people to dismiss every complaint.

When asked what he says to young men in America as well as to young women, Trump replied that it is a very scary time for young men in America, where you can be guilty of something you may not be guilty of, but that women are doing great.  The most serious danger is of a false accusation, not that women (and some men) will be the victims of rape or attempted rape, nor that when they are, their complaints will be improperly dismissed.

The stereotype of women who falsely cry rape has been with us for a long time. Lord Mathew Hale, a prominent British jurist of the seventeenth century, said the following of rape complaints: "rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho' never so innocent." Reflecting his view, rape trials long required a cautionary instruction repeating or paraphrasing Hale's warning and/or telling the jury to give the victim's testimony greater scrutiny than that of other witnesses, an instruction that was apparently routine into the late twentieth century. When addressing rape, the focus of the law until very recently has been to guard men against false accusations.

Literature and film have contributed to the notion that when it comes to rape, otherwise ordinary women simply lie with impunity. Consider three classics from earlier periods that still play an important role in our culture.

I have long loved the book "To Kill A Mockingbird." It tells the story of an innocent black man on trial before a racist jury and the heroic attorney who proves his client's innocence. The story is gripping and became a classic film as well, and there are riveting subplots that contribute to the tension. But at the center of the action is a white young woman's false claim that the defendant raped her.

I bring this up not to indict the story. As I said, it is an excellent tale. And white people have invoked trumped-up charges of black-on-white rape (or far milder sexual battery) as a pretext for both criminal charges and lynchings. But lynchings between 1880 and 1930 more frequently rested on other grounds, such as political activism, labor organizing, insolence, and other defiance of white expectations of blacks.

To capture an audience that might sympathize with the wrongly convicted, a false rape accusation might have seemed the ideal dramatic vehicle, even though there were other options. And the choice reinforced the notion, echoed recently by Trump, that women falsely claiming rape was something that all good men should fear.

Another book with a brief subplot about a false rape complaint is "Of Mice and Men." I do not recall this subplot from when I read the book in high school, but one of my children recently brought it to my attention, because she too was assigned to read it for high school. The tragic character Lennie is an intellectually disabled man who is strong, child-like, and seemingly seized with the compulsion to grab things and hold on tight when he becomes excited or agitated. In one town where he and his friend and informal caretaker George worked, Lennie inadvertently frightens a woman whose dress he touches and refuses to let go. She then goes and "tells the law she been raped," lying about what actually happened.

The book is a classic work of fiction. In citing it here, I mean to take nothing away from that. It does, however, paint much more uncharitable portraits of the female characters than of the male ones. Lennie repeatedly touches animals and women because they are soft, and he then frightens, harms, or kills them because he cannot control himself when he is scared or upset. Yet the reader feels for Lennie and not for his victims. Things catch up with him after he touches the wife of the character Curley and then, trying to quiet her, inadvertently kills her. The female victim here, as we learn earlier in the story, was promiscuous.

In this book, the "accused" man is once again innocent.  He did not rape the first woman who accuses him. And though he did kill Curley's wife, he did not mean to kill her. He is intellectually disabled and means well. Steinbeck portrays him as a victim of the false rape complaint and the unintended death of a promiscuous woman, notwithstanding his violence toward defenseless people and animals. In the end, despite all of the carnage, we feel sad for Lennie (I remember crying when I read the book); he—and not his actual victims—is the real victim whom we mourn.

And a film, "Gone With The Wind," has in it an implied rape scene that is simultaneously denied. I focus on the film rather than the novel on which it was based, because of the film’s role in American culture. It set a great many records for viewership, including millions of people who watched it long after the Civil Rights movement ought to have problematized its view of slavery as a benevolent institution. And its message about women remains with us.

What is that message? Consider an iconic scene. Scarlett O'Hara is yelling and carrying on, and Rhett Butler picks her up and carries her up the stairs to their bedroom, against her will and with her struggling along the way. Because movies tended to be less graphic and explicit in 1939, the scene cuts to Scarlett lying in the marital bed the next morning, looking happy and satisfied, presumably because of what has just happened. 

The implication is quite obvious. Rhett stood up to his wife's insolence and carried her to where she belonged, in his bed. He took her to their bedroom against her will and forced her to have sex with him. And we are meant to understand that she enjoyed the forcible sex so much that she was glowing with fulfillment the next morning, perhaps day-dreaming about how much fun it was to get raped by the man she loved. This rape story is seen as so romantic that part of it appears in a trailer for the film.

This is not a typical false complaint story, because Scarlett's only complaint is her struggle to get free of Rhett and to cry out as he carries her up the stairs. The movie viewer comes to see even this form of complaint, however, as false, because she likes being forcibly raped after all, as we see from her smiling reaction. We are meant to think "how romantic!," and most people who saw the film likely did not even register this scene as involving a rape at all. Like a refusal to credit a rape victim's story after the fact, the refusal to take “no” (or even physical struggling) for an answer—because the man supposedly knows what the woman really wants—represents a form of denial, of the sort I discussed in my Verdict column.

I bring up the false rape complaint theme in literature and in film because through them we transmit "knowledge" throughout the population and over time. We learn that there is no need to listen to women who "cry rape" because we know from fiction that they lie about this sort of thing all of the time. The fact that it is all fiction and reflects prejudice rather than reality does not seem to diminish its persuasiveness.

Unfortunately, we do not have a body of fiction or other narratives to let us know that guilty men frequently falsely deny rape when they stand accused. There are not a lot of films in which a man commits a rape and the audience knows that he is guilty, but he denies the crime and everyone believes him, leaving him free to rape again. We do not have many books that highlight the effects of taking a stance of radical skepticism in response to complaints of sexual assault but not other crimes, demanding corroboration, and effectively denying that rape is a genuine problem. The boy who cried "I'm innocent!" is not part of our cultural narrative.

That Trump was able to say without intended irony that men face great danger now, meaning the danger of false accusations, is very telling. It reinforces the regular invocations of the presumption of innocence in connection with Brett Kavanaugh (as though he was being considered for a prison sentence rather than a seat on the highest court in the land), and the calls for corroboration and the characterizations of an eye-witness-victim's sworn testimony as unsubstantiated accusations. To understand the problem here, consider what happens when we presume innocence in the face of contrary evidence.

In a criminal trial, when we presume innocence, it means that we require jurors to render a "not guilty" verdict unless they hear enough evidence to conclude beyond a reasonable doubt that the defendant is guilty. The reason for this demanding standard of proof is that we believe (or at least we assume) that it is better that ten guilty people go free than that it is for one innocent person go to prison. What does a heavy burden of proof have to do with how many guilty people go free and how many innocents go to prison?

Whenever we use any instrument to make a determination, we have to decide whether our priority is to minimize false positives or whether it is to minimize false negatives. Think of a test for some disease. If the disease is potentially deadly and treating it is easy, cheap, and without side effects, we might seek to minimize false negatives down to zero, if possible. That could mean many false positives, but that is okay, because the downside of a false positive is a low-priced and harmless drug. If, on the other hand, the disease is painful but not life-threatening and the treatment is  expensive and somewhat unpleasant[MD1] , we would probably prefer to minimize false positives and treat only those who are extremely likely to have the illness, even though that would yield false negatives.

Which one is rape? Well, if someone goes on trial for the crime, then the downside of a false positive is substantial, because it would mean that an innocent person goes to prison. What if a guilty rapist falsely denies committing the crime and we believe him?

Far too many of our fellow citizens and their elected representatives appear to think that believing false denials has no cost. If a woman comes forward and tells us her story of being sexually assaulted, and her alleged assailant lies to us and says that he is not guilty, many Americans--including most of those in power right now—seem to take the position that there is no cost to believing the guilty assailant who lyingly denies his guilt. Many Americans take that position even when believing the accuser would merely have denied the accused a seat on the U.S. Supreme Court, not his money and not his freedom from incarceration. 

Well, what are the costs? One cost is to the specific victim whose words we dismiss as false. To her, coming forward was scary but she did it anyway, because she thought it would be empowering to tell the authorities about her attacker. When the authorities say, "sorry, we don't believe you," they send her back into the powerlessness, isolation, and rage turned inward that haunt many survivors of sexual assault. She also must continue to feel scared of her assailant, because, having gotten away with his crime, he develops a sense of impunity[MD2] .

Another cost of believing false rape denials is that when the system fails to punish (or worse, rewards) people who commit sexual assault, there is nothing to deter anyone inclined to commit this crime from doing so. An important function of the criminal justice system is to teach the people who are watching that those who carry out violence against others will have to pay for their crimes. Someone considering committing rape might think twice if he learns of a perpetrator receiving his just desserts. And likewise, if the perpetrator gets away with his violence, then those who obey the law only because they fear punishment will understand that they need not worry about consequences.

Treating false negatives as harmless makes no sense when the stakes are relatively low, but it does not even make sense when the stakes are high. Even in the criminal justice system, where the punishment is severe, we say "better that ten guilty go free” or "better that 100 guilty go free." We do not say "better that a million go free" or "better that everyone go free." We do not, in other words, simply refuse to prosecute or convict violent criminals at all out of a fear that someone sometime might be wrongfully convicted. We recognize, in the case of most crimes, that there is a limit to the number of guilty people that should go free. A government that fails to successfully prosecute any violent criminals for fear of potentially convicting an innocent person once in a great while will fail to protect the public, perhaps the most important of its responsibilities.

But somehow, when it comes to rape--especially acquaintance rape--this basic principle does not apply. Suddenly, the only cost for us to consider is the cost of believing a false accusation.  The cost of believing a false accusation of any other crime would, of course, be the same, but people generally do not worry that it "could happen to me" when considering another crime. Trump speaks to that fear that a false rape accusation "could happen to me" when he says that men, rather than women, are the ones in danger. Trevor Noah of The Daily Show has a fascinating discussion of this issue, the notion that men are the real victims. 

Rape, however, can happen to people too, and it happens far more often than false rape accusations do. Women and men are in denial about this when they fear for their husbands and sons but not for their their wives and daughters. There is no more reason to expect a woman to falsely accuse you (or your husband or your sons) of rape than there is to expect a woman or a man to falsely accuse you of some other crime. Yet few people lie awake at night worrying about being falsely accused of shoplifting or arson.

We need to hold rapists accountable for their behavior, and rapists need to know that they will be held accountable. That is what made the Kavanaugh/Ford moment so important. Had it gone differently, everyone who has ever suffered at the hands of a rapist or attempted rapist would understand that their suffering counts, that our society condemns it unequivocally when a credible victim comes forward to complain, and that the authorities react with retributive outrage. And perpetrators, not to mention teenagers, would learn under those circumstances that this is wrong, unacceptable, and subject to punishment.

We have, unfortunately, lost that opportunity this time. But sadly, there will be many more opportunities to get it right. And when societal institutions begin to punish acquaintance rapists and attempted rapists for their crimes, it will no longer be necessary for victims to seek justice for what happened to them by shouting #MeToo.