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  • FRIDAY APRIL 25 2008 10:30 AM

Rape, Power and the Law

Submitted by TheFuckOffKid

Edited by TheFuckOffKid

Tags: Rape, Law, Courts

My local paper has been talking about the law a bit lately, particular concerning the intersection of the crime of rape and the legal system.

The first of the pieces of interest was columnist Paul Sheehan's rant about the growing intrusion of law and litigiousness into society. Australia is becoming, says Sheehan, a society under the rule of lawyers, not laws.

What goes on in our courtrooms and tribunals bears only a passing resemblance to the moral code by which the vast bulk of society lives and which maintains social cohesion.

This stark divide was distilled, unintentionally, in the April issue of the Law Society Journal, in a review of The Making of Me, by Tegan Wagner, the story of her gang rape, her ordeal with the legal system and her efforts to reclaim her life. The book is reviewed by Andrew Haesler, SC, who happens to be one of the three senior barristers who cross-examined Wagner, then 17, over a period of three days.

After offering faint praise, Haesler writes: "Her desperate desire for affirmation and self-righteous tone irritates, in a way the parents of a teenager would know. Tegan is not a dispassionate observer. Her critique of the trial process suffers as a consequence …

"Tegan claims she was raped by three brothers. Only two were convicted. I acted for the brother who was acquitted. There were sound reasons for that acquittal. Tegan's 'fairer' system would have seen my client jailed for a very long time. Her rapes were unjust and wrong, but so, too, would be the conviction and long-term imprisonment of an innocent boy."

Excuse me while I go and vomit.


You can read Sheehan's reasons for vomiting if you read the article in full. You will also see him noting a recent local legal controversy, in which barrister Tania Evers has been referred to the Legal Services Commission for aggressive cross-examination of an alleged rape victim. This is the same Tania Evers who in recent years spoke publicly of
the erosion of an accused's rights in sexual assault cases. We'll come back to Evers' shortly, and the issue of whether the complaint about her -- and the leaking of it to the media -- are part of a political power struggle going on in legal and government circles.

But let's contextualise first. We need to think about at least three issues regarding the prosecution of rape.

Rape is a difficult crime to prosecute. It's an inherently difficult crime to prosecute, regardless of whether or not the legal system is horribly sexist, precisely because rape is a crime that involves an act that for most people, most of the time, is consensual and pleasurable. At any given instant of time, millions of consensual sex acts are going on around us. Determining which ones are the non-consensual (criminal) ones is hardly going to be straightforward. It's not a typical problem for a homicide detective to have to consider whether or not the murder victim really wanted to be killed and hence their death was the deliberate result of a consensual act. (Yes, yes, I know it's possible, but it's not that likely.) But it's a fundamental issue surrounding sex crime allegations.

Add to this, the longstanding tendency of Western legal systems to start with the presumption of innocence of the accused. This is an important presumption because it's easy for a powerful legal and/or political system to railroad anyone it wants if the system is set up to allow that to happen. The presumption of innocence is an insurance policy against the worst aspects of human nature in the political arena.

Add to this, the very real issue of false rape allegations. Researcher Eugene Kanin famously reported that in his case study of a small metropolitan community, 41% of reported rapes turned out to be false allegations. (For (in)famous cases, think Kobe Bryant, or the Duke lacrosse team.)

Balance all of this against the possibility that a woman (it won't always be a woman, but mostly it will) really has been violently raped and is seeking redress against her rapist. How should the legal system operate given all of these considerations? What latitude should prosecuting lawyers get? What about defence lawyers? How aggressive should they be allowed to be? How much control should a judge exert during a cross-examination?

According to legal columnist Richard Ackland, these questions are at the heart of a stoush going on in New South Wales legal circles.

At the heart of the strife is a concern that the leadership of the [NSW Bar Association] has too readily acceded to government wishes to corral aggressive cross-examination, specifically in sexual assault trials. A significant proportion of the bar council and much of the rank and file want the leadership to stand up to the Government. Indeed, that was one of the points implicit in Gleeson's resignation.

It was leaked to the media last week that a defence barrister, Tania Evers, has been referred to the Legal Services Commission by the Director of Public Prosecutions, Nicholas Cowdery.

The leak may have had the purpose of exerting leverage to get the bar to relent and pass new conduct rules designed to make it a disciplinary offence for a barrister to cross-examine witnesses in an intimidating, oppressive or humiliating manner, or to seek to stereotype a witness.

The only trouble was that the story about Ms Evers's cross-examination was over-egged. It claimed she had cross-examined a 15-year-old complainant in a sexual assault case for three days and that the judge aborted the trial because it had "gone completely off the rails".

But the cross-examination ran for less than two days and it was not the reason the trial was aborted.

Putting the rights or wrongs of the Evers cross-examination to one side, what the leaking and counter-leaking do signify is a subterranean struggle to change the "culture" of the bar. It raises the intriguing question whether accused can get a fair trial if defence barristers are prevented from reducing alleged victims to jelly in the witness box.

It could be that if these rules came into force everyone might be pleasantly surprised to discover that the job can still be done without counsel belittling, insulting, humiliating and generally crucifying prosecution witnesses.


See, while judges can intervene with discretion in instances of aggressive cross-examination, they are loathe to do so if they think it'll create avenues for appeal. So the state government is trying, with some force, to decrease the power of the (quite powerful) barristers, and give more to the judges.

That's what it comes down to, in the end. The issue of how lawyers comport themselves in sexual assault cases boils down to a pitched battle between senior lawyers and government ministers over the relative distribution of power and influence.


TheFuckOffKid was never prouder of his girlfriend than when she was a juror on a rape trial.

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Comments
commonman

commonman

USA
August 2003

APR 25, 2008 10:50 AM

Rape is a tough crime to prosecute, especially because there are so many cultural issues that influence each prosecution. When I was working in the criminal justice system, I got to view the results of many rape trials and pleas. Almost all rape trials what had white defendants and victims had short, lenient sentences, while cases involving black men usually ended up having long and harsh sentences, no matter who the victim was.

Rape cases often boil down to accusations with little evidence to back them up, so wealthy or well-off educated whites get to use their social connections to prove their relative lack of guilt, and the underprivileged get harsh punishment for similar or lesser crimes.

I do dispute your 41% figure on false rape reports, however. One study does not a trend make, and there is ample evidence that many rapes go unreported. National Crime Victimization Survey (NCVS) data estimates that there were about 270,000 rapes in the US in 2006, while Uniform Crime Report (UCR) data from the FBI shows that there were about 91,000 arrests for forcible rape in he same time period. Generally, the rule of thumb for false rape accusations when I worked for the system was 5% to 10%.

TheFuckOffKid

TheFuckOffKid

NEWSWIRE

Australia

APR 25, 2008 03:47 PM

commonman said:
I do dispute your 41% figure on false rape reports, however. One study does not a trend make, and there is ample evidence that many rapes go unreported.


bald_eagle said:
If you look at that "study" carefully, you'll see that it examined only 45 "false" accustations out of 109 total accusations. That simply is not statistically significant, in comparison to the total of rapes committed. (See the numbers show in commonman's post above.)

It should also be noted, as the study admits, that the "false accusation" tag comes from a single criterion - that the complainant recanted. Reluctant witnesses may recant to avoid the treatment that they will receive.

This is supposedly dealt with in this case by the fact that the investigators were suspicious in the first place. Self-fulfilling prophecy. If you treat the woman with skepticism, she is more likely to recant to avoid more such treatment.


I don't want the central point of the story to get drowned out by the issue of "false rape claims".

- No trend was claimed. No statistical significance was suggested. Kanin studied a "small metropolitan community" (less than 100000 people), and that was explicitly stated. The only issue is that the possibility of "false rape claims" cannot be dismissed as a non-issue.

- The "false allegation" tag did come from only one criterion -- the toughest one available. That the complainant recanted. Not that the charge was dropped for lack of evidence, and not that the defendant was found not guilty at trial. The complainant actually admitted that they made it up, and that their revised story (typically) fitted the story offered by the accused.

If you read Kanin's piece (you know, properly) you see that the "false allegations appear to serve three major functions for the complainants: providing an alibi, seeking revenge, and obtaining sympathy and attention." The individual cases discussed are worth reading.

The core of my story is about how the ongoing balancing act between respecting the rights of the victim and the rights of the accused in rape cases can boil down to a struggle of power-politics between different players in the legal system.

SPOILERS! (Click to view)
Not about whether 41% is statistically significant or not.

commonman

commonman

USA
August 2003

APR 25, 2008 05:20 PM

TheFuckOffKid said:
The core of my story is about how the ongoing balancing act between respecting the rights of the victim and the rights of the accused in rape cases can boil down to a struggle of power-politics between different players in the legal system.


I think that's exactly what the legal system is. Prosecutors struggling for power over judges (i.e. mandatory sentencing). Defense attorneys struggling for power over prosecutors and the police (i.e. Miranda). The rich using their power to screw with the system to ensure minimal or no punishment (too many examples to count). And the poor, having no power at all, getting shafted over and over again.

Women who are raped, I have been told more than once by victim's rights advocates, are raped three times: By the rapist, by the doctors/nurses who collect the evidence and the police who investigate, and by the courts. The real possibility (however small) of false testimony means that rape victims can't be protected from cross-examination.

Every defendant should have rights. Unfortunately, this means that the defense attorney (or barrister) is practically required to attack the rape victim as a witness, often the sole witness, to a crime. It sucks, but I don't see how else it can be done.

TheFuckOffKid

TheFuckOffKid

NEWSWIRE

Australia

APR 25, 2008 05:58 PM

bald_eagle said:
I'm curious as to whether there is an Australian equivalent to the 'Rape Shield Law' that most states here have. That is, a complainant can't be questioned as to her previous sexual history (with narrow exceptions).


JOCELYN SCUTT: Rape shield laws were brought in around Australia in the '70s to enable judges in rape trials to focus on what was relevant evidence and what ought to be admissible.

And they were drafted from a perspective that said disposition of complainants, so-called, in sexual matters, sexual reputation and sexual experience ought not to be allowed into the courtroom unless in certain circumstances where it had direct relevance to what the matters in issue were -- that is, the allegation of rape.


Source
[Trivia: the journalist who presented this story, Maxine McKew, left the ABC and went on to run for Parliament directly against the then-Prime Minister John Howard. In November's election, she won his seat in an historic upset.]

I think what's being fought out here is not so much about "rape shield", which is to do with what facts/evidence can be brought to the attention of a jury. I think it's more about the style of cross-examination that is permissible. How aggressive is too aggressive, more or less.

While the rape-power nexus is widely recognised and discussed (often in the context of how wealthier, privileged people can "get away with it" more easily, an observation not only confined to the offence of rape), I hadn't really stopped to think about it in terms of power in the courtroom -- a battle between players in the legal system, vying for influence (and the wealth that may flow from that). Ackland spells it out precisely in those terms, which was insightful for me, which is what I wanted to share.

Subrosa

Subrosa

San Francisco, CA
July 2004

APR 25, 2008 06:30 PM

TheFuckOffKid said:
- No trend was claimed. No statistical significance was suggested. Kanin studied a "small metropolitan community" (less than 100000 people), and that was explicitly stated. The only issue is that the possibility of "false rape claims" cannot be dismissed as a non-issue.


If that were the issue you were getting at, one would think you could cite more than one study. Maybe that would help ameliorate the glaring methodological and epistemological problems with this one. There are other studies out there. Why cite this one at the expense of others? Wouldn't it be more complete to provide a range of numbers here?

- The "false allegation" tag did come from only one criterion -- the toughest one available. That the complainant recanted. Not that the charge was dropped for lack of evidence, and not that the defendant was found not guilty at trial. The complainant actually admitted that they made it up, and that their revised story (typically) fitted the story offered by the accused.


Please cite the part in the study that matches the italicized portion of your paragraph. Because I read it (you know, properly) and didn't see that. I saw this:

In addition, the
investigating officers provided any requested
supplementary information so that we could be confident
of the validity of the false rape allegation declarations.


But that's not at all the same thing. Am I missing something? Because the confidence of that particular researcher in the "supplementary information" provided by the police is not a measurable statistic, nor does it show that the "revised" story typically did anything other than mollify someone who may or may not have been predisposed to such mollification.

The core of my story is about how the ongoing balancing act between respecting the rights of the victim and the rights of the accused in rape cases can boil down to a struggle of power-politics between different players in the legal system.


That's fine and we can talk about that, I suppose. There just doesn't seem to be much to talk about. Yes, it's difficult to strike a balance. Yes, many folks have tried certain ways to strike that balance, and all of those methods have problems. What would you yourself suggest? Because what I'm missing from this piece is a point of view other than "it's hard" and "some people are doing it wrong."

SPOILERS! (Click to view)
Not about whether 41% is statistically significant or not.



I hope we both know the answer to that question.

thefreak

thefreak

NEWSWIRE

Gardner, MA

APR 25, 2008 07:12 PM

Subrosa said:

TheFuckOffKid said:
- The "false allegation" tag did come from only one criterion -- the toughest one available. That the complainant recanted. Not that the charge was dropped for lack of evidence, and not that the defendant was found not guilty at trial. The complainant actually admitted that they made it up, and that their revised story (typically) fitted the story offered by the accused.


Please cite the part in the study that matches the italicized portion of your paragraph. Because I read it (you know, properly) and didn't see that. I saw this:

In addition, the
investigating officers provided any requested
supplementary information so that we could be confident
of the validity of the false rape allegation declarations.


But that's not at all the same thing. Am I missing something? Because the confidence of that particular researcher in the "supplementary information" provided by the police is not a measurable statistic, nor does it show that the "revised" story typically did anything other than mollify someone who may or may not have been predisposed to such mollification.


(EDIT - I missed what you meant by the italicized portion. Still reading.)

-TM

TheFuckOffKid

TheFuckOffKid

NEWSWIRE

Australia

APR 25, 2008 08:18 PM

From Kanin's paper.

Rape recantations could be the result of the complainants' desire to avoid a "second assault" at the hands of the police. Rather than proceed with the real charge of rape, the argument goes, these women withdrew their accusations to avoid the trauma of police investigation.

Several responses are possible to this type of criticism. First, with very few exceptions, these complainants were suspect at the time of the complaint or within a day or two after charging. These recantations did not follow prolonged periods of investigation and interrogation that would constitute anything approximating a second assault. Second, not one of the detectives believed that an incident of false recantation had occurred. They argued, rather convincingly, that in those cases where a suspect was identified and interrogated, the facts of the recantation dovetailed with the suspect's own defense. Last, the policy of this police agency is to apply a statute regarding the false reporting of a felony. After the recant, the complainant is informed that she will be charged with filing a false complaint, punishable by a substantial fine and a jail sentence. In no case, has an effort been made on the part of the complainant to retract the recantation. Although we certainly do not deny the possibility of false recantations, no evidence supports such an interpretation for these cases.

Alibi Function
Of the 45 cases of false charges, over one-half (56%, n = 27) served the complainants' need to provide a plausible explanation for some suddenly foreseen, unfortunate consequence of a consensual encounter, usually sexual, with a male acquaintance. An assailant is identified in approximately one half of these cases. Representative cases include the following:

An unmarried 16-year-old female had sex with her boyfriend and later became concerned that she might be pregnant. She said she had been raped by an unknown assailant in the hopes that the hospital would give her something to abort the possible pregnancy.

A married 30-year-old female reported that she had been raped in her apartment complex. During the polygraph examination, she admitted that she was a willing partner. She reported that she had been raped because her partner did not stop before ejaculation, as he had agreed, and she was afraid she was pregnant. Her husband is overseas.


I agree that we're inevitably filtering things through the eyes of (a) police and (b) a lone researcher. I have no problem subjecting them to the same analytical rigour that we would any such study in whatever field. I'm a little more wary of treating them the way climate researchers get treated by many -- as in, well, they must have an agenda.

Subrosa said:
That's fine and we can talk about that, I suppose. There just doesn't seem to be much to talk about. Yes, it's difficult to strike a balance. Yes, many folks have tried certain ways to strike that balance, and all of those methods have problems. What would you yourself suggest? Because what I'm missing from this piece is a point of view other than "it's hard" and "some people are doing it wrong."


Not much to talk about?

Well, OK, I know we're small and far away, but the most powerful lawyer lobby group in the most populous state in my far-away nation seems to think it's a bit of a big deal. They're apparently in uproar, as a high-profile barrister is reported to a governing body, and the reporting of said lawyer is leaked, in the middle of a high-stakes contest between government and the lawyer establishment.

Call me parochial, but that struck me as non-trivial when I read it.

I didn't approach this to editorialise strongly one way or the other because I'm far from expert enough to do so without feeling silly in the process.

But where do my inexpert sympathies lie?

It raises the intriguing question whether accused can get a fair trial if defence barristers are prevented from reducing alleged victims to jelly in the witness box.

It could be that if these rules came into force everyone might be pleasantly surprised to discover that the job can still be done without counsel belittling, insulting, humiliating and generally crucifying prosecution witnesses.


Right there. smile

Subrosa

Subrosa

San Francisco, CA
July 2004

APR 30, 2008 12:08 AM

TheFuckOffKid said:
From Kanin's paper.

Rape recantations could be the result of the complainants' desire to avoid a "second assault" at the hands of the police. Rather than proceed with the real charge of rape, the argument goes, these women withdrew their accusations to avoid the trauma of police investigation.

Several responses are possible to this type of criticism. First, with very few exceptions, these complainants were suspect at the time of the complaint or within a day or two after charging. These recantations did not follow prolonged periods of investigation and interrogation that would constitute anything approximating a second assault. Second, not one of the detectives believed that an incident of false recantation had occurred. They argued, rather convincingly, that in those cases where a suspect was identified and interrogated, the facts of the recantation dovetailed with the suspect's own defense. Last, the policy of this police agency is to apply a statute regarding the false reporting of a felony. After the recant, the complainant is informed that she will be charged with filing a false complaint, punishable by a substantial fine and a jail sentence. In no case, has an effort been made on the part of the complainant to retract the recantation. Although we certainly do not deny the possibility of false recantations, no evidence supports such an interpretation for these cases.

Alibi Function
Of the 45 cases of false charges, over one-half (56%, n = 27) served the complainants' need to provide a plausible explanation for some suddenly foreseen, unfortunate consequence of a consensual encounter, usually sexual, with a male acquaintance. An assailant is identified in approximately one half of these cases. Representative cases include the following:

An unmarried 16-year-old female had sex with her boyfriend and later became concerned that she might be pregnant. She said she had been raped by an unknown assailant in the hopes that the hospital would give her something to abort the possible pregnancy.

A married 30-year-old female reported that she had been raped in her apartment complex. During the polygraph examination, she admitted that she was a willing partner. She reported that she had been raped because her partner did not stop before ejaculation, as he had agreed, and she was afraid she was pregnant. Her husband is overseas.


All of which doesn't address hardly any of the obvious problems I alluded to with the methodology of this study to begin with. However, I do see where it says the recantations typically "dovetailed" with the story proffered by the accused, so I retract that point and apologize for missing it the first time around.

I agree that we're inevitably filtering things through the eyes of (a) police and (b) a lone researcher. I have no problem subjecting them to the same analytical rigour that we would any such study in whatever field. I'm a little more wary of treating them the way climate researchers get treated by many -- as in, well, they must have an agenda.


Um... OK. I'm really not assuming they must have an agenda. I'm looking at the methodology and the results and seeing a lot of things that don't make me feel good as to the accuracy of the study even within its narrow scope.

Look, I understand that there ain't a whole lot of ways (read=none) to measure with 100% objective scientific accuracy whether a reported rape happened, but I would argue that this study is a poor attempt at it. I could go into the many reasons why I think this if you want me to (I'm sure you can guess several of them already), but I'd rather repeat my question from above: Why did you include THIS particular study at the expense of others? Wouldn't a broader range of studies be more accurate?

In a little bit of searching I found the following numbers: 25%, 25, 6 and 2%, 8% and (a different) 8%. Now, I'm not arguing for or against the accuracy of any one of these particular cited statistics. Those that were studies (from what I could tell by skimming them) had similar if not the same methodological problems as the Kanin study. But I am wondering what was it about the Kanin study that made you include it in your piece? If the article was, as you say, not intended to editorialize strongly in one way or another, it seems an odd editorial choice to include only the statistic on the one end of the spectrum.

I get that you were trying to put across the idea that the number of false reports was non-trivial, but I think the reason you got more responses on that point than on anything else so far is because the point seemed at odds with the tone of the rest of the piece.


Subrosa said:
That's fine and we can talk about that, I suppose. There just doesn't seem to be much to talk about. Yes, it's difficult to strike a balance. Yes, many folks have tried certain ways to strike that balance, and all of those methods have problems. What would you yourself suggest? Because what I'm missing from this piece is a point of view other than "it's hard" and "some people are doing it wrong."


Not much to talk about?

Well, OK, I know we're small and far away, but the most powerful lawyer lobby group in the most populous state in my far-away nation seems to think it's a bit of a big deal. They're apparently in uproar, as a high-profile barrister is reported to a governing body, and the reporting of said lawyer is leaked, in the middle of a high-stakes contest between government and the lawyer establishment.

Call me parochial, but that struck me as non-trivial when I read it.

I didn't approach this to editorialise strongly one way or the other because I'm far from expert enough to do so without feeling silly in the process.

But where do my inexpert sympathies lie?

It raises the intriguing question whether accused can get a fair trial if defence barristers are prevented from reducing alleged victims to jelly in the witness box.

It could be that if these rules came into force everyone might be pleasantly surprised to discover that the job can still be done without counsel belittling, insulting, humiliating and generally crucifying prosecution witnesses.


Right there. smile


I didn't mean to suggest that it was not something to be worried about. Moreover, I'm certainly not remotely knowledgeable with the ins and outs of the Australian legal system to say what should be done in this situation. I will say that in America, we do have (as was discussed above) shield laws and the like to address some of these issues, and contempt and sanction threats for others. Of course, the line will still be crossed and crossed often with impunity and that is unfortunate.

I guess I just wanted to know, in the context of what I understood (or misunderstood) your editorial slant to be given the inclusion of the Kanin study, what you thought should be done. If anything. If you're not sure, that's fine, I just was a bit lost as to how I should be feeling about this. If that makes sense.

SPOILERS! (Click to view)

Or perhaps I'm focusing too strongly on that point because it grates on me for personal and non-personal reasons. That's a possibility as well.

SockPuppet

SockPuppet

I'm lost
July 2006

APR 30, 2008 03:39 PM

FWIW, I approve of this thread.

TheFuckOffKid

TheFuckOffKid

NEWSWIRE

Australia

MAY 01, 2008 04:02 AM

SockPuppet said:
FWIW, I approve of this thread.


Thanks. My life is frantic at the moment but I'll be back to try and wrap up a few loose ends soon enough. smile

Madeleine

Madeleine

SUICIDEGIRL

Canada

MAY 03, 2008 04:19 AM

Rape, as a crime of power and, frequently, an abuse of authority, is often difficult to prove a reality when the victim is perceived as putting herself under the authority of her rapist. Women are far more likely to be raped by someone they know - a relative, friend, neighbor, etc. - than by a stranger. Yet our culture and justice system often discredit claims of rape and abuse when the attacker is someone the victim knew and trusted. Courtroom power struggles and a faulty legal system aside, rape will continue to be a heatbreaking fact of life for a good segment of our population for a very long time. Education and empowerment can provide answers, but rape is not just about a few maladjusted miscreants - we as a culture need to take responsibility for both the victims and the perpetrators.

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