Over the course of the past few years there have been a great deal of sexual assault cases that were highlighted in the news and social media, from a veritable parade of celebrity accusations to the recent Stanford case. In light of these cases, I’ve seen an awful lot of advocacy for changing policy to make conviction easier for those accused of sex crimes. So I’d like to address that suggestion.
This is the Innocence Project, which aids in and documents the DNA exonerations of the falsely convicted. There are 342 false convictions you can read about, which have been documented and detailed on their website and can be filtered for various criteria, such as the type of crime, the reason for false conviction, the race of the defendant, and so on.
Of those 342 false convictions, 267 were from sexual assault cases, almost 80% of their cases. That’s 267 people who were locked away for years of their lives (many of them for decades) for sex crimes that they did not commit. 267 innocent people who were stripped of their jobs, esteem, freedom, and in many cases most of their lives.
And bear in mind, these 267 people are just the wrongfully convicted who have been exonerated by DNA evidence. The most common cause of false conviction is a misidentification of the perpetrator by a witness, which has been shown in many studies to occur up to a quarter of the time when witnesses are asked to identify someone from a lineup. Now consider that in order for an innocent convict to be exonerated due to DNA evidence, the true perpetrator’s DNA must have been present at the time of the crime and investigation, collected, and still be intact and accessible after the wrongful conviction in order to be compared with the DNA of the wrongful convict. According to one survey of American prosecutors, only 41% had policies at their offices for the collection and preservation of DNA evidence. Only 33% had policies for retaining that evidence after conviction. Now consider that a majority of respondents reported that half or fewer of their cases made use of DNA evidence at all (including sexual assault, the most common type of case to use DNA). The short list of exonerated convicts at the Innocence Project are the lucky few, undoubtedly the tip of the iceberg. Imagine how many more aren’t so lucky, who are rotting away in jail for crimes they didn’t commit, praying for the long-shot that someone will find evidence to clear their names.
None of this is to say, by the way, that the complainants lied in all these cases. In fact, I’m not sure any of these people were put away due to explicit perjury (though knowingly false accusations do, of course, happen). Eyewitness misidentification (which constitutes about 70% of those 267 cases) is a very common but honest mistake. Nobody’s memory is perfect, especially after a traumatic event. Other reasons for false conviction include wrongfully obtained confessions and errors in the forensic science. There are plenty of things that can go wrong in the court process. People are fallible. Mistakes are made.
So the argument to maintain or strengthen due process is not an argument that people who report rape are lying. It’s an argument that the courts are fallible, that witnesses don’t have photographic memories, that sometimes the system fails us, and sometimes the presumption of innocence is all we have to stand between an innocent man and conviction.
And by the way, the data of this project flies in the face of the idea that we live in a culture that’s okay with rape of women, sweeps it under the rug, or isn’t upset enough about it. This is a list of people whose very existence defies the narrative that we don’t try hard enough to put men away for rape. We care so much about making sure rapists get their dues that we’re putting away, at the very least, hundreds of innocent people to that end. And remember that those falsely accused make up almost 80% of our exonerated numbers. Which is to say, by a landslide, we are finding more innocent people incarcerated for rape than for any other violent crime. And now we as a society are entertaining the idea of continuing to erode the right of the accused to due process and the presumption of innocence. So stop telling me the criminal justice system doesn’t have enough sympathy for (female) rape victims.
I get that there is an under-reporting problem. I get that some people run into bureaucratic issues or are mistreated by the criminal justice system. I get that sexual assault is a difficult crime to prove due to the nature of the evidence, and often that means the attacker goes free. And these are all legitimate problems that merit serious attention and real solutions. But we must work toward solutions that don’t come at the expense of the innocent. Rape victims will not be served by non-rapists going to jail. That doesn’t help anyone. We need to find solutions that better shed light on the truth of cases, rather than those which merely lower the threshold for conviction. The last time we lowered that threshold and started taking accusers at their word without affording the accused his due process, a lot of men of the same colour started hanging from trees. “Listen and believe” just doesn’t cut it.