Both of the writers, Christopher Wareham and James Vos, are putative ethicists. Not lawyers. Not here. Not anywhere. They don’t even teach law. Which naturally frees them from the constraints of facts and reason, an enviable position to be sure.
Conviction rates for sexual assault against women are shockingly low, to the extent that, even in a developed nation such as the United Kingdom, only 6 per cent of rape allegations result in a conviction, a far lower rate than for any other violent crime. As The Guardian columnist Julia Bindel puts it, ‘rape might as well be legal’.
What are the chances you might actually click on the 6% link? The writers must be betting slim, since it kinda makes them look idiotic.
Of those cases that completed to the point of guilty or acquittal at the magistrates’ court or Crown Court in 2011, just under two thirds were convicted. This is eight percentage points higher than 2005.
The foundation upon which everything that follows is built is, facially, false. But that’s only relevant in a factual society, and since we’re post-factual, actual numbers are too obviously sexist to be reliable, so just make up whatever percentage satisfies the “rape might as well be legal” cry. For the win!
Upon this sound, if truthy, premise, the writers go to town:
Disturbingly low conviction rates have many explanations, but one contributing factor is the ‘beyond a reasonable doubt’ standard of evidence employed in criminal cases. This standard requires that the jury not have any reasonable doubts about the defendant’s guilt in order to convict. Doubts they have that are frivolous or hypothetical should be put aside.
Well, no. Not even close to correct, but then, the writers, not being lawyers, can’t be held to substantive accuracy, because that would be mean. While “frivolous” doubts, whatever that means, might fall outside reasonable doubt, hypothetical most assuredly does not. In fact, it’s a foundational basis for the burden of proof, since without it, the burden would fall on the defendant to prove the hypothetical, rather than the prosecution to prove guilt.
The standard is also incorrectly applied due to the prevalence of rape myths– prejudicial, stereotyped or false beliefs about rape, rape victims and rape perpetrators. These myths involve blaming the victim and sympathising with the perpetrator, along with the common belief that women, motivated by jealousy, revenge or spite, falsely claim rape after consensual sex.
‘Testimonial injustice’, a concept developed by the feminist theorist Miranda Fricker at the University of Sheffield, is a systematic, insidious tendency to unjustifiably and often unintentionally downgrade the credibility of women’s testimony. Testimonial injustice and rape myths function together to render unreasonable doubts reasonable in the minds of judges and juries. Even judges can buy into the most egregious stereotypes about women’s sexual behaviour.
The TL;dr here is “believe the victim,” backed up by the laundry list of excuses for failed testimony and choices that undermine credibility because they undermine credibility. When a woman gives great testimony, the guy is guilty. When her testimony is awful, the guy is guilty. Because he’s guilty or she wouldn’t have accused him.
The writers recognize the historical background of Blackstone’s ratio, which embodies a choice that it is better to acquit a guilty person than convict an innocent. They just don’t agree.
This move is too quick though, since it neglects the harms of false acquittal.In considering whether or not a standard of proof is justified, we should consider not just the harm done to the one man wrongly convicted, but also the harm done by the 10 men wrongly released. This means that the justification for a standard of proof should also consider the accrued harms of false acquittal to the initial victim, to future victims of those criminals and to society.
Well, sure, false acquittal isn’t a good goal, though this argument conflates harms. The crime has already been perpetrated. Conviction doesn’t un-perpetrate the harm, but rather denies the victims whatever vindication is derived from conviction. But there’s more:
The harms of false acquittal to future victims and their loved ones amplify and extend this harm. Indeed it has been suggested that the trauma of sexual assault is greater than that experienced by war veterans.
This is predicated on the debunked Lisak study, but false studies aren’t as evil as false acquittals, enabling the writers to again indulge their truthiness, which in turn leads to what the authors contend is a downward spiral:
All this is without consideration of the social harm of false acquittal. One is that false acquittals contribute to a vicious circle: a lower chance of conviction leads to a lower likelihood of reporting.
A vicious circle operates in another respect, too: false acquittals reinforce rape myths. When a man is found not guilty on the basis of reasonable doubt, this creates the impression, wrongly, that he was in fact innocent and the accuser was a liar.
The culprit in all this catastrophe of proof? The burden of proof, beyond a reasonable doubt. But then, the writers only argue that it should be eradicated in crimes against women, because they’re special. Like breast cancer is worse than prostate cancer or lung cancer, rape is worse than murder, so keep the burden for murder and reduce it for rape.
But there is an argued conceptual ledge to this slippery slope of truthiness.
Unfortunately, this standard contributes to a low conviction rate in cases of sexual assault, which is often physically indistinguishable from consensual sex. This means that a verdict can hinge solely on testimony. When two people tell stories convincingly, each story casts some reasonable doubt on the other.
In the absence of physical evidence to distinguish rape from consensual sex, the evidence falls into the “he said/she said” hole, which will invariably fail to suffice for proof beyond a reasonable doubt. While the arguments can be framed as being greater concern for the suffering of the wrongfully convicted than the victim, that’s just playing the same game, but coming out the opposite way.
Rather, the law has made a choice, similar to the choice of driving to the right or left, but in this instance, a choice that has some rational merit: if a crime has been committed, the prosecution of the perpetrator is a palliative measure to the victim and protective measure to society. Neither of these purposes are so definitive or utilitarian as to overcome the certain and inexcusable harm to the falsely accused and wrongfully convicted.
Thus, on the one hand, we have potential harms and benefits, and on the other hand we have clear and certain harms. The law has chosen the latter as more worthy of protection. And if the rationalizations proffered by the writers were anywhere close to reality, they would apply with the same force to all other crimes. After all, it’s no easier on the victim to be murdered than raped. But hey, that’s fact-based and logical, and has no place in the writers’ proposal.
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Even a preponderance standard would never actually satisfy the “epidemic of rape” crowd. What they really want is a conclusive presumption of guilt, with a conviction on every accusation. Nothing else does the “victim” justice, and every accuser is a “victim.”
Of course. The next arg is that preponderance fails to fix the “match” of he said/she said, neither side achieving a preponderance and therefore inadequate to assure conviction of the guilty.
No, no, no. Every accuser is a “survivor.” Get your terminology right.
And this is why sex bots will be big in the coming years. Buy stock now.
Sex bots will be too objectifying and will still make women “feel” exploited, so they will have to be prohibited.
“Testimonial injustice” – 2 words, 8 syllables –> 4 syllables per word
The higher the syllable-to-word ratio, the more bullshitty the concept has to be.
It could have been “evidentiary injustice” just as easily: the patriarchal demand for material and relevant proof of allegations that deny and diminish a woman’s lived experiences.
“…since it neglects the harms of false acquittal…”
The arrogance is just astonishing. “Yes, we looked at this situation, and it is clear to us that in the 250 years since Blackstone formulated his position, legal experts have failed to consider the effects of false acquittal. We are here to rectify the situation.”
“What’s that, you say, the Wikipedia page has John Adams’s argument regarding false acquittals? Sorry, we missed that one.”
Typical mansplaining ad hominem attack.
Five words, twelve syllables, high BS content.
To paraphrase Stalin, these 10 men, how many divisions do they command? To imagine that Blackstone’s ratio weighs the harm of wrongly imprisoning a man against the harm of his supposed crime is to miss the point. The real harm it seeks to prevent is not just the harm done to one individual by one wrongful incarceration, but the harm that would be caused to multitudes by a state that can imprison anybody, for any reason, with no real impediment to check it. A system that can imprison a man for rape on any woman’s say-so is a system that can imprison a man for any reason whatsoever, by the simple expedient of having a woman say so.
After your post on the “Safe Transfer Act”, I made the mistake of commenting on the numerous posts by keyboard SJW’s on the articles Facebook page. I used to believe that I can find common ground with another person’s point of view, and I could walk someone through the merits of my position. That illusion is completely shattered. I am struck by civilians (non-lawyers) in ability to make an argument with facts and look at the intended and un-intended consequences of their policy positions. These SJW positions really trouble me, because these people are casually calling for the over throw of due process. The rights of the accused (4th and 5th Amendment) have shrunk quite a bit with recent Supreme Court decisions. The last thing this country needs is a “court of feelz” asking for less protection for the accused.
In the old days, non-lawyers might consider deferring to lawyers on such matters, recognizing that they might be a bit light in their grasp of the issues and consequences. But since feelings are good enough today, there is no need. They know what they want, and that’s all they need to know.
It remains a matter of utter astonishment to me, that someone might find themselves pitted against the full armoury of the state on someone’s say-so, unless you think that “progressive” means “lets go back about 200 years”. You’ve told me off in the past Scott, but please keep banging on about this stuff.
And best wishes for the season, for you and yours.
Thanks, Grum. To you and yours too.
Oh shit, “, one someone’s” should lose the comma, and spell “on” correctly. please please please?
I’ve been typing for 30 years, but I’m still not good at it…
I fixed it. It’s my pleasure to help.
I first thought they’d arrived at that 6% by factoring serial factoids — something like (% of reported rapes that are ‘recorded’) * (66% of recorded rapes resulting in convictions) = 6% of reported rapes lead to convictions, but I couldn’t get there based on the data supplied. (That ‘just under two-thirds’ citation, BTW, refers to recorded *sexual assaults*, not just rapes.) However, I suspect the authors are guilty of sloppy linking rather than having flubbed their central statistic by an order of magnitude.
[Ed. Note: Off topic dive down the rabbit hole deleted.]
Of course, none of this suggests the authors’ conclusions and proposed remedies *aren’t* shit — just that their 6% figure may not be so invalid as first appears. Interestingly, the number of reported rapes more than doubled from 2011-12 to 2015-16, which analysts on both sides of the question believe indicates the public’s increasing trust in the judicial system — most notably its promise to end what had been seen as a pervasive culture of disbelief among police and prosecutors. Unfortunately, Wareham and Vos seem not to have received that memo….
Or the growth of the common perception of rape untethered from any legal definition, combined with the glory of being a “survivor,” makes women more inclined to report being raped even though they weren’t. You left that out of your “analysts…belief” part. Must have been an oversight, because you couldn’t possibly have been that flagrantly deceitful or so blindly biased as to “believe the victims,” right?
Why do you think you’re going to slip such flagrant bullshit past me?
“Down the rabbit hole?” Bullshit. The original post claimed that 6% statistic was made up to further a feelz-y, #justbelieveher bias, suggesting the real figure to be closer to 66%. I pointed out the data for 2015-16 found only 7.5% of reported rapes resulted in a conviction. Given that 80% of reported rapes are ‘no-crimed’ by the police and thus never recorded, let alone brought to trial, a two-thirds conviction rate would mean every reported rapist was convicted at least thrice. While that doesn’t necessarily mean everything that followed was facially false, it also doesn’t mean the authors of the original article deserve being tarred as fabricators pandering to the SJW shibboleth. They pointed to the wrong report; you mistakenly referenced an admittedly confusingly phrased statistic giving the percentage of recorded (not reported) sexual assaults (not rapes) that result in a conviction. Letting it stand uncorrected would be, well, awfully post-factual.
(That said, the middle third of my original comment undeniably bore enough of a rabbit-hole mouthfeel to justify your skipping it, unread.)
Why do people persist, after going down the rabbit hole, that they’re not going down the rabbit hole, as if I want to deal with the 37 bits of irrelevant stupid their dive down the rabbit hole raised? Okay, one bit:
So assuming your numbers (and characterizations of your numbers) are accurate, 7.5% of the 20% of reported rapes the police didn’t “no-crime” resulted in convictions. In the types of numbers real people use, that means a conviction rate of 35%, not 6%, because the 80% that were “no-crimed” don’t count because they weren’t rapes to begin with.
Now, is there a reason I want to waste my time on this horseshit because it popped into your head? No. No there is not. Write your own fucking blog if you want, but keep this stupid crap out of mine.
I fear you are laboring under a misapprehension I am arguing, when I am merely informing. While you may be correct, and the UK judicial system is made up of unreal people, the fact remains they count reported and recorded crimes as I described, leading to the claim that fewer than 6%[1] of reported rapes result in a conviction. You may disagree with the methodology, in which case you should take it up with the current Lord Chancellor. (I should warn you she’s not a lawyer, though.)
Again, the authors initiated this failure chain by [presumably] linking to the wrong one of many similarly titled reports on sexual offending served by the Government Digital Service website. I, too, was confused by the cited statistic not appearing anywhere in the document; however, rather than go with my feelz, I chose to dig a little deeper.[2] Given your obvious distaste for authors who begin their arguments with erroneous assumptions,[3] I thought I should pass along what I found. But, as you’ve noted, trying to make the world a little less stupid rarely turns out well….
As I mentioned in both replies, that you screwed the pooch by conflating reported rapes and those brought to trial takes nothing away from the absurdity of the authors’ argument or suggested solutions. Similarly, that they pulled the 6% figure not from their collective butts but from a government publication does not sanctify some of their other, less-supportable assertions.[4] Possibly, had you realized at the time you had screwed the pooch, you may have turned the snarkiness knob down a notch or two, but hey! this ax isn’t going to grind itself.
Speaking of, it must have been the noise of that darn grindstone that drowned out the final words of my initial comment. Otherwise, rather than chasing the straw bunny of irrelevant extrapolation, you would have realized I was pointing out the most recent numbers from the Ministry of Justice largely obviated the authors’ argument — or. at least suggested the public’s lack of confidence in the legal system was already on the mend. And while I would not wish to cast aspersions on your charmingly cynical read as to why the number of reported rapes doubled in the past four years, unsubstantiated and culturally presumptive though it may be, it *is* the case Ministry officials and rape
victims’ rights advocates alike credit the public’s increased faith in the police for the rise.[5]
Informing, not arguing, you know.
As a wise man once said, sometimes, before you can help your brother stick to the point, you need to remove the rabbit from your own hole….
__________
1. Or 7.5%, or 8%, or whatever, depending on year.
2. In the process evidently leaving behind something resembling a rabbit hole.
3. “The foundation upon which everything that follows is built is, facially, false. But that’s only relevant in a factual society, and since we’re post-factual, actual numbers are too obviously sexist to be reliable, so just make up whatever percentage satisfies the ‘rape might as well be legal’ cry. For the win!”
4. I was surprised you let this most egregious of bullshit from their closing paragraph pass unscathed: “Indeed, given the high probability of false acquittal, civil trials have increasingly become a first port of call for female victims of sexual violence in the US.”
5. I guess I could have cited my sources, but we all have Google.
Two weeks later, a lengthy comment about which I don’t give a shit to eat up my time because you aren’t the center of my universe. So I ask myself, do I have any fucks to give? I answer myself, no.