The Kavanaugh hearings drove the problem of sexual assault way up on the national agenda. Should we believe women complainants and thus disbelieve accusee men? Start By Believing, an activist group with cells all over the country, would seem to hold yes. A prominent law academic is explicit on this matter. A sexual assault complaint, writes Professor Sherry Colb, “is an eyewitness account of a credible person. The denial of the accused rapist, by contrast, is entitled to little evidentiary weight as it is fully explained by a desire to avoid conviction.” If complaints result in shockingly few arrests and convictions, the argument goes, it is rank misogyny in police and DA offices that is responsible.
I have engaged these arguments in a recently published piece entitled “Why Not Believe Women in Sexual Assault Cases?” (Touro L. Rev. 2018 v. 4 p. 101) So I limit myself here to just mentioning a few of the unique factors at play in the sexual domain, especially the guilt, regret, and fear of a romantic partner’s wrath that make evaluating a sexual assault charge far more difficult than, say, one of robbery.
My piece relied largely on writing by academics, with my principal source being law professor and former dean Joan Howarth, who has had extensive first-hand experience sitting on assault tribunals at the university level. Because of the emotional immaturity of an appreciable number of young women, she warns, “`we believe you’ does not translate fairly into individual adjudications.”
To my great surprise, given the volume of work on sexual assault, I found no other professorial opinion founded on such hands–on experience. I was more perplexed to find no accounts by police or DAs, since they, arguably, have the best purchase to speak to complainant credibility.
I think I know why. While drafting my article, I looked for higher-ups among these groups–as well as decision-makers in college sexual assault proceedings–to test my thinking against that of investigators. In every case but one, I was stonewalled; either they simply would not talk to me or they told me candidly that such conversations were not authorized. I can only conclude that charges of sexism are so explosive in our #MeToo world that a code of silence has to be imposed–anything to minimize the risk that a loose-tongued employee will question the reliability of complainant accounts, an opinion that were it to appear in blogs or on the front pages, could bring down an organization’s leadership.
Fortunately, I found someone willing to stand up and speak frankly. A high-ranking police officer in a major metropolitan area, this interlocutor has supervised hundreds of sexual assault investigations by more than 30 police officers over a number of years.
The following interview took place over about two hours earlier this winter and was preceded and succeeded by a number of phone conversations. The material below is not a verbatim account; I have had to rearrange the free-floating dialogue for clarity of exposition. But what follows is as fair and comprehensive account of the interview as I can manage, given that I did not tape it out of fear that the conversation would be stilted. To make sure that I got it right, I asked my interlocutor to look over my draft. No one in the law professoriate can fail to understand why the servant of the people does not want to be identified.
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Who are the complainants demographically?
They run the gamut of race and class, the numbers being proportionate to the population at large. In age, they run from 18 to 40. Eighty percent or so are by people who are known to one another; 20% are by strangers. The latter are the easy cases once we find the culprit.
Let’s focus on the harder cases. Do students make up a share of the complaints you see?
Mostly not. Those cases seem to be handled by the universities, at least in my jurisdiction.
How exactly do these cases come to you?
Quite often after the Event the woman does not know what to do. She wonders whether she made some bad decisions long the way. Should she have posted risqué pictures on social media? Made a Tinder date at the man’s apartment or her own? Likely, she says nothing except to those very close to her. Through our new FETI program (Forensic Investigation Training and Interviewing) program, we are trying to get these women to go public quickly. Often, however, complaints are filed days, weeks, months, and in some cases years later, when one or more friends or an anti-rape activist convinces her that she was assaulted and that it is her duty to come forward. The woman will often yield to this kind of pressure, among other reasons, because, sad to say, she seeks the psychological comforts of victimhood, of survivor status, where she is not alone in her predicament and has a cause to rally around.
What a story. What happens after a woman files a complaint with your office?
We take these complaints seriously; there are a lot of bad actors out there. We open a file and take down the information, asking specifically about marks left on the body and about witnesses. Most often there are none of either. We then grill the accused. We search databases for a criminal record. We want to get at the truth. You might be interested to know that it is not unusual for us to send a detective across the country to interview the accused.
What does the accused say?
He will most frequently, and not incredibly, claim that the sex was consensual. Since intercourse is most often preceded by consensual play, this puts us in a difficult position. Rape kits have proved helpful in a number of cases, but the existence of semen says nothing about whether the sex was consensual.
And if there is no corroborating evidence?
This happens most of the time because sex takes place in private and no bruises or other indicia of assault are present. We try to set up a “controlled call” with the accused. This requires the woman to phone the accused and try get him to implicate himself. Sometimes this works, but sometimes the woman refuses to go along. This gets in the way of our investigation. Other times the man insists on a meeting. We are cautious here; we are concerned that the woman will be hurt. But we do this because there is no other way. In such cases the woman goes wired up.
What happens if in the end the investigation is stymied?
Absent peculiar circumstances, we have to explain why we cannot go forward. This is sometimes hard on complainants, but they usually see that we have tried.
Really? How many complaints would you say end up in arrests?
Maybe 30%.
You know that the law does not require corroborating witnesses.
Of course, but some kind of corroboration is necessary when a man presents credible evidence of consensual sexual play, say through TV monitors or witnesses. We cannot arrest the accused on just the woman’s say-so.
Is this why cases attrit to the extent they do?
There is more. A large number of women complainants simply do not understand the legal system in general or the requirements for sexual assault, in particular, including the difference between pressured and forced sex. They often think, for example, that just feeling violated establishes sexual assault. Or that if they have consumed a great deal of alcohol—which they have in maybe two-thirds of cases–they cannot be blamed for having consented. Of course, this is silly. They often drink precisely to get in the mood for sex. The man, moreover, has drunk the same amount as she has. Of course, if the woman has passed out there can be no consent.
What happens when the woman is determined to press her case?
Many women are shocked to find out that they will have to confront the accused in court and thereby open themselves up to the risk not only of having their views challenged but also of having details of their behavior exposed. They will then often recant or simply refuse further cooperation. They might do the same when they find out that the accused, whom they know, might be incarcerated. I am not speaking for all women of course. A good number of complainants follow through til the end, hence the 30% data point.
A feminist might wonder whether you have women investigators on staff and, if so, whether they come down differently in these cases from the men.
We have women detectives, but there are no differences I can think of. Police in this area are so well trained professionally that complainants speak comfortably and candidly to them.
As a follow-up to this interview, I would like to talk to some of these women some time. Would you put me in contact with some of them?
Gladly.
Are there differences between how you look at these cases and how DAs do?
No, we work very closely with them and are almost always on the same page.
Why have you stuck your neck out to talk so frankly to me?
It is important to alert the public to the fact that the sexual assault data—including the one-in-five claim–are wildly inflated. Notwithstanding claims by activists, women need to know that the world is not as harsh as many claim it to be. There are dangers out there, of course. But to the extent of such danger, women can and have to look out for themselves as when they get intoxicated and are alone with a man in an intimate setting. This raises expectations and this may make the woman feel more guilty if she does not follow through. We need to educate women that, because of difficulties of proving the case, the authorities may not be able to help much in these cases.
Are you “Blaming the Victim?”
Not at all; I am saying only that we are helped best when we help ourselves.
Source: https://lawprofessors.typepad.com/crimprof_blog/2019/04/guest-post-by-dan-subotnik-a-high-ranking-police-officer-looks-at-sexual-assault.html