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Systems that force us to lie

I’ve written extensively about the Dominique Strauss-Kahn case. I’ve said almost everything I had to say on the subject. That was until Friday when the case fell apart and I resorted mostly to third party quotes and small sound bite commentary because I was too angry to properly articulate my thoughts.

See, my views about the victim prevent me from any objectivity in this case. Honestly (and this is why I would have never been a good journalist), I have no sympathy, empathy or even good thoughts for Dominique Strauss-Kahn. Not just because of the rape accusations but also because of his betrayal of the socialist ideals he was supposed to uphold as a prominent member of the French Socialist Party. His ideals that went through the drain when he accepted to become head of the IMF, one of the most subjugating, neo-imperialist institutions imposed on the Global South.

And now, of course, there is no longer a case against him. However, and this is where I’d like us to focus, there is no longer a case because, it is claimed, the victim lied on issues unrelated to the rape allegations. Let that sink in for a second: a woman who is an asylum seeker/ refugee, who hails from one of the poorest countries on earth (where the IMF played a big role in promoting the prevailing poverty and economic hardships that afflict her homeland) was found to have lied in order to get on with her life.

IPS reports on the developments and touches on this:

“All of those things do not have anything to do with whether or not she was raped,” said Human Rights Watch’s Marianne Mollman in an interview with IPS.

“I would like to see one single person who has never told a lie in their life,” she added.

And see, with all due respect to Ms. Mollman, she is missing the point. This goes much further than pointing at the collective and trying to wash away the impact of the current development by claiming that “we all lie”. The core of the problem here is slightly different: some people’s survival, their very own sustainability sometimes depend on a lie. We judge these lies based on parameters that never contemplate this need for survival. We apply a normalized quasi religious stance: lying is bad! But hardly anyone questions why the lies are necessary, why we live in a system where certain people must lie in order to get access to privileges that are always afforded to members of the dominant culture.

Someone might lie on their application for food stamps or other survival related benefits; someone else might lie to law enforcement about their status as an undocumented immigrant; yet another person living somewhere where abortion is illegal might lie about undergoing a procedure because admission might as well represent the concrete possibility of doing jail time; a young person might lie about past drug offenses because admitting to them would mean they will never get a good job prospect. I could build a list of survival related lies that would fill a complete encyclopedia. The lies that the oppressed tell in order to make their lives slightly less oppressive.

And of course, the system punishes these lies by attacking and defiling the only thing the liars can claim as their own: their bodies. An immigrant woman is allegedly raped and the punishment for her lies is to remove her access to justice. Not even the pretension of justice will be afforded to her, oh no. This is the point where all pretension is abandoned and we clearly inform the victim that she has voided her access to justice when she lied in order to survive.

Again, with all due respect to Human Rights Watch spokesperson Marianne Mollman, not all lies are equal. Why is nobody holding Dominique Strauss-Kahn accountable for the lies that the IMF told those of us who were subjected to their policies and adjustment plans? Those lies that promised prosperity, development and abundance but instead led to misery, broken lives and even death? Why are the survival related lies of a chambermaid punishable by denial of justice whereas the lies of the alleged perpetrator are rewarded with a political career?

38 Comments

  1. Julian Morrison wrote:

    This case isn’t over yet, and he faces fresh charges from Tristane Banon in France. Justice may yet prevail.

    Monday, July 4, 2011 at 9:54 am | Permalink
  2. jy wrote:

    Hmm. I don’t disagree with much of what you’re saying here. But my understanding is that the case is falling apart because the prosecution thinks the jury will be too dumb to distinguish between lies of necessity and lies not of necessity. Specifically because she is said to have lied about being raped in her home country in order to gain access to this one. That may have been a lie of survival, but it still sets a precedent for lying about rape.

    Monday, July 4, 2011 at 10:12 am | Permalink
  3. Millicent wrote:

    Why is nobody holding Dominique Strauss-Kahn accountable for the lies that the IMF told those of us who were subjected to their policies and adjustment plans? Those lies that promised prosperity, development and abundance but instead led to misery, broken lives and even death? Why are the survival related lies of a chambermaid punishable by denial of justice whereas the lies of the alleged perpetrator are rewarded with a political career?

    Yes. Sing it.

    Monday, July 4, 2011 at 11:12 am | Permalink
  4. RGR wrote:

    Have you seen Silvana’s blog post? here: http://silvananaguib.tumblr.com/post/7162973245/dsk-what-do-you-propose I am wondering what your thoughts are. These bits especially:
    “The fact is that previous lies do weigh on witnesses’ credibility. They just do. Just because someone has lied before doesn’t automatically mean they’re lying now. But it’s relevant. It is. No matter how many times you say that victims don’t have to be perfect, you can’t change the fact that in a rape case, a victim is not just a victim. A victim is a witness. And credibility of witnesses is relevant at trial. Are you going to suggest that defendants not have the right to call into question every witness’ credibility with whatever means they have available? Are you going to suggest that victims not have to testify at these trials? … I really would like to know what it is that everyone who is up in arms about this case would suggest be changed about the way criminal trials are conducted in rape cases that you think would solve this problem. Just because it sucks, doesn’t mean it’s wrong. It arises from the constitutional rights that all people who are accused of crimes have. It arises from the right to liberty, liberty the state can’t deprive you of without a really good reason. You are talking about locking someone up in a prison for years. Don’t you think the government should have some high hurdles to clear before they can do that to a person?”
    Then she, of course, talks about how the united states has an overincarceration problem, which is obviously caused by millions of white directors of IMF who get locked up for rape, rite? All of those rape accusations which successfully go to trial and result in imprisonment, rite? Yeah, those.

    Monday, July 4, 2011 at 11:12 am | Permalink
  5. sam wrote:

    I think the bigger problem isn’t the lies of ‘necessesity’ as you discuss here (which, I agree with you, can be justified), but their bigger problem (and cause for concern in presenting the case with her as their only eyewitness) is that she apparently specifically lied to them about the circumstances and her actions directly following the sexual assault by DSK. I think they could, maybe, try to explain to the jury about why she lied in the past, but the fact that she has admitted to lying to them and the grand jury about the actual events following the rape makes her an incredibly unreliable witness, and it’s not so much even explaining her earlier lies of necessity to the jury, but that they have trouble now believing her themselves. Again, because she admitted that she lied directly to them.

    And I say this as someone who still believes that DSK is a sexual predator, and that he (probably) did something here.

    Monday, July 4, 2011 at 11:18 am | Permalink
  6. RGR, what I think about that quote? Eh, reactionary, what else?

    Trials should be based, whenever possible, on forensic evidence (and according to sources there was plenty of that) and accounts of the facts pertaining to the case, not on past life experiences of victims. I already asked this: why are DSK’s lies not relevant to the case? Why isn’t his affiliation to an institution questioned the world over for its policies that promote inequality and grief taken into consideration? I am not trolling, I am genuinely asking why one’s “sins” are worthy of condemnation, while the other person’s are worthy of a political career. And why is mainstream media not bringing up those issues even further? Also, if we are talking about past “lies”, what about DSK’s past accusations of harassment and inappropriate behavior that have now come to light? Those no longer matter? His credibility does no longer suffer because of them?

    Monday, July 4, 2011 at 11:23 am | Permalink
  7. Sophie wrote:

    Like JY, I agree with the point you’re making; this woman has more than once been put in a position where the system offered her little choice but to lie (she even specifically says she was coached regarding her asylum application), and that these lies of necessity are now being turned around and used against her in an attempt to destroy her credibility on an unrelated matter is just… broken, in so many ways.

    However, another lie that has come to light – and possibly the most damaging one for the prosecution – is what she reported as happening immediately after the incident. At first, she told authorities that she ran out into the corridor, waited there (??? the details on this are a little unclear), and then went directly to her supervisor to report the rape. Now, she’s saying that she partly finished cleaning DSK’s room, went to another room (for which, IIRC, the card-key records do not match up), cleaned that one, and then returned to DSK’s room to finish cleaning there, because she didn’t want to get in trouble for running late.

    This lie in particular, about major details of the incident, has probably all but obliterated both her ‘credibility’ as a witness, and any hope whatsoever of ‘beyond reasonable doubt’.

    And yet? Without speculating one way or the other about DSK’s guilt, I can understand why she might have told that lie, too. Because who cares that rape affects everyone differently, right? Who cares that some trauma victims react immediately, while some just pick up where they left off and carry on with their daily activities? Because dammit, if you aren’t acting Traumatised Enough, or exactly as we arbitrarily decide a rape victim ought to act, then clearly you’re either just lying or overreacting.

    If she’d started out saying that, well, after she was raped, she just kept cleaning for a while, including returning to DSK’s room, before eventually reporting him to her supervisor… nobody would have believed her. This whole ‘it was consensual and a plot to set him up/she only decided afterwards to try and use it for financial gain’ attitude we’re seeing would have been pinned on her from the start.

    If this is the case (and granted, I’m purely speculating), it’d make it, surprise surprise, yet another lie she had to tell to even try to make it through a broken system – and another one that the system is simply going to use to tear her down.

    Witness credibility is important. I’m not debating that. But when you have to lie about the circumstances of a rape just to make people believe it happened, and then those untruths are held up as proof that you’re lying about having been raped, something is really, really broken.

    Monday, July 4, 2011 at 12:01 pm | Permalink
  8. Raven Rant wrote:

    I can’t believe that even on this site, nobody is mentioning that DSK lied to police about this incident. He initially claimed to have an alibi. He wasn’t there, had no contact with the maid. When DNA comfirmed that his sperm was on the maid, his story changed to, “It was consensual.”

    Why does his obstruction of justice, his lies to investigators, not destroy his credibility?

    Why are credibility tests applied exclusively to the victim?

    BTW, anyone who has suffered a sever trauma knows that your memory of the aftermath of that trauma is foggy and disjointed. Professionals who deal with the severely traumatised are well aware of this.

    Unless you are a nun with medical proof of your virginity prior to your rape, don’t expect justice in a US courtroom.

    Monday, July 4, 2011 at 1:07 pm | Permalink
  9. Raven Rant wrote:

    Sorry about the typos.

    Monday, July 4, 2011 at 1:10 pm | Permalink
  10. ugsome wrote:

    Hear hear hear, loud whistles and stomping. I live in France and oh, how this case is making me sick to the bottom of my soul. And all he has to do to return to the political scene is lay low for a year or two, just do some consulting or teaching and be ready for the call, and he’ll be as good as new. Revolting.

    Monday, July 4, 2011 at 1:56 pm | Permalink
  11. ugsome, actually some people are already requesting that the internal elections of the Socialist Party be postponed so that he can participate and run for president. So, you know, not even wait for a year.

    Monday, July 4, 2011 at 2:25 pm | Permalink
  12. curmudgeonly wrote:

    Flavia, as to your question:
    “I already asked this: why are DSK’s lies not relevant to the case?”
    Because the State has the burden of proof in criminal cases-he is presumed innocent, and does not have to prove his innocence. Unless he testifies, he is not questioned or cross examined, and unless those lies he’s told as director of the IMF and during the whole of his miserable, scandal-laden, assaulting ladies kind of life, are relevant to the case, they will not come in under evidentiary rules. Our system gives a lot of protections to defendants in criminal cases.
    Am I being too literal? i understand the spirit of your question, and i agree with the rage and frustration behind it. For what it’s worth-I am a prosecutor, and I would feel unable to try this case (assuming the facts out to the public are complete, which..eh…). I would not tend to disbelieve her story, and I honestly don’t know if I do now. But I would be unable to try this case. It would make me sick to allow a serial rapist to go free, but each case is evaluated on it’s own merits, when it comes to the guilt or innocence phase of the proceedings. His background is not legally relevant, although as a human being, I find it very personally and logically relevant. His credibility is zilch. But without a legally credible witness…what can we do?

    Monday, July 4, 2011 at 3:12 pm | Permalink
  13. curmudgeonly, my question was more rhetorical than anything else. What angers me is the disparity in approaching lies and who is considered worthy of justice.

    Monday, July 4, 2011 at 3:18 pm | Permalink
  14. curmudgeonly wrote:

    And, just to add: I heartily agree with your point here, if that’s not obvious. It’s a pretty easy go of it if you’re a straight white cis-male from a country where you’re not being relentless oppressed a persecuted, and that reflects in our justice system, 9 times out of 10. Not o beat a drum into the ground or anything, but…yeah. She is getting screwed, because no matter what her past, this case should be about what she says happened with DSK at that time. But it won’t be. Once she takes the stand, it would not be.

    Monday, July 4, 2011 at 3:18 pm | Permalink
  15. curmudgeonly wrote:

    Yeah, like I said, I wondered if I was reacting too literally, and I get your broader point. I am a bit of a lawsplainer, sorry :)

    Monday, July 4, 2011 at 3:20 pm | Permalink
  16. Alison wrote:

    Thank you, Flavia. I too have had a hard time reading/speaking about this case because of my anger and frustration about the circumstances, about how out-of-control our rape culture has gotten. It disgusts and saddens me to new depths that for some, the only proper way to treat the oppressed is with more and more and more oppression. Ugh, I can hardly even form these thoughts without wanting to scream :(

    Monday, July 4, 2011 at 6:36 pm | Permalink
  17. Goldenblack wrote:

    One of the bits I admit I’ve never understood in a court case is how a witness is supposed to perfectly recall things in perfect order repeatedly or be dismissed. I know this is the ideal, but I’ve been a first on-scene responder a few times now in accidents. Usually I can remember what is happening better than others because I’m not the traumatised or injured one, but when faced with a shocking image, I tend to short circuit a bit. Did I notice glass on the road? Sure, I was walking over it, trying not to fall on the unstable surface. Glass all over the victim? No, he was talking, responding, and I was checking for concussion and serious bleeding first. The minor cascade of safety glass in his hair was unnoticeable to me at the time. Even later, I’m not sure if I didn’t mentally put it in because I wasn’t looking for it, but then I realised I had blood on me so it was likely he’d taken minor cuts.

    So if someone who isn’t involved directly can’t be absolutely certain of things happening in the right order, why the hell is a traumatised person expected to? I understand we require witness credibility, but I’ve rarely seen someone who was traumatised get things in the right order the moment just after the event – their body’s simply pumped way too full of adrenalin and ‘oh god survive’ chemicals. Sometimes they do have better recollections afterwards, sometimes they don’t, but it’s not unusual for stories to change a bit.

    I suppose I expect details to be unclear on both sides. I’m not sure why it means a rape victim is usually wrong. This isn’t a standard applied to car accidents in general – we understand people in car accidents go into shock and wander around and get their time and events messed up.

    Monday, July 4, 2011 at 7:44 pm | Permalink
  18. Spiffy McBang wrote:

    There’s another thing that erodes her credibility, mentioned here: http://www.nytimes.com/2011/07/02/nyregion/one-revelation-after-another-undercut-strauss-kahn-accusers-credibility.html?_r=2&partner=rss&emc=rss A conversation she had with a boyfriend in jail was recorded and translated, and in it she says, “Don’t worry, this guy has a lot of money. I know what I’m doing.”

    This doesn’t mean the rape didn’t happen. It’s certainly plausible that she was raped, worked the sympathetic victim angle to make sure she had the attention of the authorities, but deep down wanted to cut into DSK as hard as she could. But under the circumstances in which she said this, where she almost assuredly didn’t intend for the prosecutors to find out she was thinking about the money, it looks absolutely awful and makes her accusation much more difficult to support. At minimum this is a source of very reasonable doubt, and the evidence needed to convict would be overwhelming even in a society that treated rape cases with all due seriousness.

    Tuesday, July 5, 2011 at 1:29 am | Permalink
  19. Joel Reinstein wrote:

    If you’re looking to raise your blood pressure further, check out Bernard Henri-Levy’s latest comments. Apparently, the rich are now the persecuted class of society, and the treatment of DSK has been “pornographic.” He laments the degradation of a man with “singular vision” and talks about how his Honor Must Be Restored. And, apparently, feminists have taken the word of the maid as being infallible.

    Tuesday, July 5, 2011 at 1:56 am | Permalink
  20. Mejoff wrote:

    Just like this shit.
    http://www.telegram.com/article/20110608/NEWS/106089913/-1/NEWS07

    You know, I’m not convinced either way on this case. By all accounts they are both deeply dishonest people, and it’s her word against his. But his advantages in such a confrontation don’t stop with rich, respected, and white. The man is a career politician, it’s his job to lie better than the person across the room.

    Tuesday, July 5, 2011 at 5:42 am | Permalink
  21. Oh yes, I wrote about Fattman a couple of weeks ago. I mentioned he seemed to be the kind of politician who would have a long and prosperous career. The article you linked to only strengthens my conviction that this isn’t the last time we are going to hear about him.

    Tuesday, July 5, 2011 at 6:00 am | Permalink
  22. samanthab wrote:

    Actually, Spiffy, that is a paraphrase from an unnamed source. It’s not a direct quote as you claim. There’s really no way to know how liberal an interpretation that is or isn’t without a direct transcript.

    Tuesday, July 5, 2011 at 8:48 am | Permalink
  23. Lu wrote:

    @#4, “The fact is that previous lies do weigh on witnesses’ credibility. They just do. Just because someone has lied before doesn’t automatically mean they’re lying now. But it’s relevant. It is. … [Y]ou can’t change the fact that in a rape case, a victim is not just a victim. A victim is a witness. And credibility of witnesses is relevant at trial.”

    Correct me if I’m wrong, but every victim of every crime is also a witness. But in no other type of crime (at least that I can think of at the moment) is the system so heavily invested in proving that the accusation is false. Not only is the accused “presumed innocent,” the accuser is presumed to be lying until proven otherwise.

    Tuesday, July 5, 2011 at 12:11 pm | Permalink
  24. Elle wrote:

    @#23 No, it is not true that every victim of of every crime is also a witness (e.g., burglary, arson, and other property crimes are typically committed when the victim is not present). I think it is worth mentioning that rape is a crime in which victim testimony is often the only evidence that a crime has been committed — forensic evidence for consent is hard to come by.

    Our society is deeply flawed in the way it thinks about rape, and cultural shift is probably the only way to truly address that. But in the mean time, how are we to find justice in the courts? I don’t think we do ourselves any favors when we fail to acknowledge that rape cases are tough to prosecute for reasons that aren’t the result of rape culture (although rape culture certain exacerbates the situation), but are the result of a criminal justice system that has a number of safeguards intended to prevent the conviction of the innocent.

    The RICO act has given prosecutors a lot of power to get convictions in cases that would be nearly impossible to pursue without it. I think that the answer to the question posed by the post link in #4 probably looks something like that. RICO lets prosecutors talk about a pattern of criminal enterprise and I think that we should be able to write laws that give prosecutors similar leeway to give juries evidence about patterns of sexual misconduct in rape trials.

    Until we change the legal framework for rape prosecution, of course defense attorneys will go after victim credibility. That is always the weak point in the case. If the jury doesn’t believe the victim, if the jury has “reasonable doubt” about the victim’s integrity, the case will fall apart.

    I am not a legal beagle, so I don’t know exactly what that would look like, but I think that there is a solution to be found to the problems involved in prosecuting rape cases.

    Tuesday, July 5, 2011 at 3:37 pm | Permalink
  25. Spiffy McBang wrote:

    @Lu: Along with what Elle said, it’s also obviously much more common in rape cases for the victim to be the only witness (outside of the perp). Other cases are much more likely to involve third-party witnesses with no stake in the outcome. I hate the methods used to wreck a rape victim’s credibility in most cases, since it so commonly revolves around irrelevant shit (e.g. prior sex life), but if she’s the only one who was there, that does supply the logic for a defense team wanting to do it.

    @Samantha: If it was noteworthy enough to help undercut an ongoing investigation, it’s hard to believe the paraphrase isn’t generally correct. It would be different if some unnamed source released that “information” and it led to the case falling apart afterwards, but this is in the context of the case falling apart and the writer getting a quote regarding why. I dislike anonymous quotes, but there’s nothing in this instance to suggest BS outside of the possibility that literally anything might be BS.

    Tuesday, July 5, 2011 at 5:04 pm | Permalink
  26. Lu wrote:

    Right, I’m not saying that I don’t see the logical reason for destroying a witness’s credibility. (Thanks to you, Elle and Spiffy, for your replies.) I would quibble that “witness” is not synonymous with “eyewitness.” Certainly a burglary victim can say what was missing, when they left the house, and the condition they found it in when they discovered the crime. And would they be believed, or would it be far more likely that the defense would try to assassinate their character in order to cast aspersions on their testimony?

    Tuesday, July 5, 2011 at 6:11 pm | Permalink
  27. Martha wrote:

    “I am not a legal beagle, so I don’t know exactly what that would look like, but I think that there is a solution to be found to the problems involved in prosecuting rape cases.”

    I am a lawyer, so let me just say… no. There is no solution to that and it will never happen in the criminal justice system.

    The problem you have is that if we presume defendants are innocent, we ARE automatically presuming that accusers/victims are lying. There is no escaping that. There is no way around it or reform.

    We require the accuser to convince the prosecutor that it’s possible to convince 12 random strangers that a man did rape a woman.

    It’s generally hard to be convicted of any crime, including rape. The vast majority of prosecutions for EVERYTHING result in guilty pleas entered pursuant to plea bargains, because it’s almost always too hard for the prosecutor to convince a jury of some elements – but then again, defendants don’t want to risk it. So there’s a plea bargain.

    This happens with rape often, too. Men plead guilty to assault or a similar lesser crime than rape because rape prosecutions are particularly difficult, but the penalty for a rape conviction is far higher than assault.

    Forensic evidence is actually quite rare. ~80% of rape accusations occur in the absence of any forensic evidence at all, and often is inconclusive – you might be able to tell if a victim had sex in the last 24 hours, but not if it was consensual or not.

    Back to the original point, if there were a solution at all, it might be for more women to bring civil suits for sexual assault. They would lack the resources of the prosecutor’s office. They would almost certainly be required to spend a lot of time and energy pursuing the case. On the plus side, a lawyer would probably take such a case on a contingency fee basis. The downside is that defendants with no assets would have nothing to lose.

    The two real pluses would be that a victim would get her day in court, even if she never collected on the judgment (another downside, I guess: prison is not an option in a civil case). And the burden of proof would much lower: simply a “preponderance of the evidence”, (ie, more likely than not) and not the much stricter “beyond a reasonable doubt”.

    But it seems victims do not often pursue such civil claims against their attackers. It may be that lawyers don’t think such cases are likely to succeed, or that women are counseled against doing so for other reasons.

    Tuesday, July 5, 2011 at 6:15 pm | Permalink
  28. Spiffy McBang wrote:

    @Lu: “I would quibble that “witness” is not synonymous with “eyewitness.””

    I don’t want to delve too far into semantics, but I think it’s worth mentioning that even if you’re technically correct, I’m pretty certain those terms are synonymous in most people’s minds. If someone is asked if they were a witness to any type of crime, they’ll perceive it as being asked if they saw (or possibly heard) it happen.

    Anyway, defense attorneys are going to go after the weakest link in any accusation against their clients. In your burglary example, it’s unlikely anyone would question what the victim saw when they got home because it’s much harder to question whether the crime occurred than to simply create doubt as to whether a particular defendant committed the crime. And you could easily see this happen in a case of rape by stranger, where it’s simpler to sympathize with the victim while drawing doubt over the guilt of the defendant. Since most rapes aren’t by strangers, though, we end up having to deal with credibility attacks.

    @Martha: “The problem you have is that if we presume defendants are innocent, we ARE automatically presuming that accusers/victims are lying.”

    This is slightly diverging from your point, but in terms of trying to find ways to reduce rape or find some kind of justice for rape victims, maybe what we need to do is push the understanding that these cases are hard to prosecute even when a rape has occurred. Get people to understand that legal innocence does not necessarily equate to total and complete innocence. I’m trying to figure out a good way to do this, because I’m tired of dealing with schmucks who are constantly pointing to a lack of charges or convictions to defend anyone who’s ever accused of sexual assault.

    “But it seems victims do not often pursue such civil claims against their attackers. It may be that lawyers don’t think such cases are likely to succeed, or that women are counseled against doing so for other reasons.”

    Maybe there’s just not enough to be gained? I can understand a woman going after a rich, famous guy- even though someone like that is more likely to withstand the losses of any civil suit defeat, she can still get more out of him and feel like she did some damage or received appropriate justice. If it’s just some guy with a day job, it would be a lot of work for potentially little gain. Or, alternately, she could absolutely destroy him, but a lot of people feel shitty about doing that kind of thing, no matter how deserved. So I imagine for many there’s just no real upside. Perhaps we should push righteous vengeance as a worthy rationale… >_>

    Tuesday, July 5, 2011 at 7:21 pm | Permalink
  29. samanthab wrote:

    Spiffy, what was undoubtedly b.s. was your identification of a paraphrase from an anonymous source as a direct quote from the witness. You fail by your own standards to be someone with a credible perspective.

    Tuesday, July 5, 2011 at 7:31 pm | Permalink
  30. orlando wrote:

    “but there’s nothing in this instance to suggest BS outside of the possibility that literally anything might be BS.”
    Not so: what suggests it is a vast and ongoing history of rape reporting that seeks to discredit the victim. Proof? Look at how the phrase used in the original report, “in which she discussed the possible benefits of pursuing the case” has been re-written elsewhere as “possible financial benefits of pursuing the case”. Benefits could mean anything from “how much do you think he would pay to make this go away?” to “it’s going to be a horrific experience to testify, but if he’s convicted at least he won’t have the chance to do it to anyone else for a while”, but you know which of those options the reader is supposed to infer. Nasty, insidious, unethical reporting is always on the side of the perp.

    Tuesday, July 5, 2011 at 8:15 pm | Permalink
  31. aravind wrote:

    Lu @ #23: [Seemingly exclusively in cases of rape] the accuser is presumed to be lying until proven otherwise.

    A thousand times, this.

    I had a conversation with a perhaps well-intentioned but privileged Frenchman on this matter and his argument boiled down to that. Rape is a different crime, where investigation or other trial proceedings can’t occur until after it’s been “effectively” (in whose eyes!?!) proven that a rape occurred. Basically, it’s unsubstantial until anything other than the words out of the victim’s mouth points towards non-consensual sex.

    Ugh, just ugh.

    Wednesday, July 6, 2011 at 2:53 am | Permalink
  32. Lu wrote:

    @Spiffy 28:

    “In your burglary example, it’s unlikely anyone would question what the victim saw when they got home because it’s much harder to question whether the crime occurred than to simply create doubt as to whether a particular defendant committed the crime. And you could easily see this happen in a case of rape by stranger, where it’s simpler to sympathize with the victim while drawing doubt over the guilt of the defendant.”

    I don’t follow your reasoning at all. First, in the part of your response I didn’t quote, I don’t think the fact that a witness is a witness is up for argument, regardless of what you think most people’s concept of it is. I’m not a lawyer, but I don’t see how “what most people think” it means is relevant in a court of law.

    Regarding the part I did quote, the same thing is going on here. Your impressions of whether people are more likely to believe a burglary has occurred is not really related to the issue, which has to do with the use of the adversarial process to tear down the plaintiffs in defense of the accused. My argument is that rape cases are far and away worse and harder on the alleged victims than any other type of crime, and I think it’s because we as a society are invested in maintaining the fiction that rape might occur theoretically, but when it comes down to a particular case, it’s always “he said, she said.” It’s “hard to prove” not just because of the presumption of innocence, but also because of the presumption that b****es lie.

    Wednesday, July 6, 2011 at 11:40 am | Permalink
  33. Lu wrote:

    p.s. Sorry–by “harder on the victims” in the last para, I meant (in this context) during the prosecution of the case.

    Wednesday, July 6, 2011 at 11:42 am | Permalink
  34. orlando wrote:

    All this aside, the woman came away with ripped clothes, bruising and a torn shoulder ligament; why isn’t this an open-and-shut case of assault, even if they can’t aim for a rape conviction?

    Wednesday, July 6, 2011 at 8:52 pm | Permalink
  35. Martha wrote:

    Orlando: it’s exactly the same problem. It’s no easier to convince someone that DSK injured her and tore her clothes when the two of them were alone. You have to sell a narrative to people. For the defense, the narrative is “this is a scam artist who torn her own clothes and is exaggerating/faking a shoulder injury.” No one saw what happened so it’s no easier to convict him just of assault.

    It may be that he pleads to assault if both sides think the chance of a sexual assault or attempted rape conviction are sufficiently significant-but-uncertain.

    Thursday, July 7, 2011 at 11:19 am | Permalink
  36. Spiffy McBang wrote:

    As an aside, here’s an example of an article that, in my opinion, is guilty of trying to discredit the victim:

    http://www.thedailybeast.com/articles/2011/07/01/dominique-strauss-kahn-accuser-s-prison-connection.html

    There are actually more details to support the defense there than in the NYT article, but they’re buried farther down. The first three paragraphs set it all up, and they start with the implication that this “camcorder test” is a completely reasonable expectation for any rape victim to meet. Every witness to a crime needs consistency, but memories are imperfect at the best of times. For the prosecution to apply this test should be thoroughly questioned, not held up as perfectly rational treatment of a rape victim.

    Thursday, July 7, 2011 at 3:43 pm | Permalink
  37. Kate in SF wrote:

    This is great. Someone just asked me to write about the issue and I said I couldn’t think what to say that hadn’t been said. I’m going to send her this.

    Thursday, July 7, 2011 at 8:22 pm | Permalink
  38. Spiffy McBang wrote:

    Er. If it seems like I was ignoring the criticisms of what I said, I wasn’t. I made a fairly lengthy comment in response to a few people but it doesn’t appear to have passed muster. Which, alright- it could have been denied for any number of reasons, whether because something I said was touchy (tried not to do that, but I don’t think I managed it) or just because whoever deleted it didn’t want to risk this turning into a fight.

    But I’m not sure how to say what I wanted to say appropriately- if there’s a way- so I guess I’ll just say I disagree with the perspectives of Lu, Orlando, and Samantha, and leave it at that. I just don’t want anyone to think I’m ignoring what they say.

    Thursday, July 7, 2011 at 8:35 pm | Permalink