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Covering Rape.

G.D.

Samhita is rightly bothered by the unfortunate, predictable response (and ESPN’s non-coverage)  of the lawsuit against Pittsburgh Steeler’s QB Ben Roethlisberger for an alleged rape.

We can still evaluate the way the media portrays women when they bring about rape charges, the extent to which the general public will defend and accept athletes that have been accused (or down right guilty) of sexual assault, sexual abuse and/or domestic violence and lastly, why ESPN has failed to cover the story.

The story has only been out a few days, but people are already asking if she is “woman scorned,” or comments on news sites continue to decry that she is “crazy and imagined it.” Rape apologists will deny anything that makes their heroes look bad, but the evidence is clear, when a woman brings up a rape lawsuit publicly, she is considered guilty of lying or is deemed “crazy,” “delusional” or “money hungry” before given any legal proceedings whatsoever.

Specifically in the arena of sports, rape apologisms permeate in damaging ways. …

Whether ESPN did it intentionally or not, failing to cover this case indicates that they have already taken a side. Let’s not let the American public get away with another butchering of a public rape case.

ESPN’s silence looks especially damning when one considers just how much airtime they typically give to athletes’ legal issues. Still, I wonder if there is a just or equitable way to cover high-profile (or any) rape cases. Obviously, the “accuser is crazy/an extortionist” defense will be made by plenty of fans and people with a vested interest in the suspect’s exoneration, regardless of the facts (or a dearth of them). But the coverage is often unavoidably prejudicial the other way. While the accuser’s identity is (understandably and necessarily) protected, we see b-roll of the defendant solemnly arriving at the courthouse in an understated suit and being mobbed by a throng of reporters while the charges against him are outlined by the newscaster. He doesn’t speak on his lawyer’s orders. Mug shots surface. He seems…guilty.

These messy public conversations about an athlete’s guilt or innocence in rape cases reflect the way actual rape trials play out. When there is an absence of physical evidence — as is very often the case —  rape trials necessarily become about damaging the other side’s credibility. No matter the verdict in those cases, there’s plenty of fresh anger and little resolution. How, exactly, do we fix that?

(x-posted)

67 thoughts on Covering Rape.

  1. Why care about the accused suspect? He’s a millionaire. Plus he’s a football player. There might be a chance that he’s a decent human being, but generally, sports stars aren’t.

  2. there are so many issues going on with this case – the professional sports star angle, the race angle (some commentators argue it’d be different were he not white), and likely some class issues as well. this on top of the gender issues inherent in any rape story.

    given the depth of complexity, i’m pretty sure that the washington post’s decision to have a “forum” about how the story was being covered, featuring the opinions of 10 men (9 of them white) was not the nuanced approach needed.

  3. Poltiical Guinea Pig:

    This is some pretty bizarre reasoning. Let’s assume for a second that “sports stars aren’t decent human beings” — seriously, homie, wtf? — it doesn’t follow that “Sports Star X” is a rapist, or that rape cases should be tried in the media.

  4. I do think it’s kind of interesting that the guy is white. My sports knowlege isn’t conclusive, but how many other white football players are put on trial for rape? I can’t think of any right now, other than Ben Roethlisberger.

  5. Um. Don’t all high profile trials work like this? Why are we singling out the one kind of trial where people seem to more commonly presume innocence of the suspect and fault of the victim?

    Please forgive me if by some chance you did actually blog in this, but — where was the concern about Phil Spector getting a fair trial? Were we not concerned because it was a murder, and not rape, and therefore taken more seriously? Were we not concerned because we thought he was guilty (count me in this camp) and automatically feel more suspicion towards a rape accuser? Were we not concerned because a lot of people already had started to look at him as a weirdo rather than a hero? Because he’s not famous for sports? Really, why. Because if the concern was there, from anyone other than Phil Spector’s lawyers, really, I didn’t see it.

  6. We can still evaluate the way the media portrays women when they bring about rape charges, the extent to which the general public will defend and accept athletes that have been accused (or down right guilty) of sexual assault, sexual abuse and/or domestic violence…

    What does that mean? “… the extent to which the general public will defend and accept athletes that have been accused…”

    To me, that implies the general public should shun, ostracize or otherwise blacklist athletes “accused” of “sexual assault, sexual abuse and/or domestic violence,” which strikes me as assuming the guy is guilty simply on the basis that a millionaire male athlete is accused for sexual misconduct by a woman.

    Call me old fashioned, I suppose, but I like to wait for the jury to decide whether or not he actually did it.

    Hope I am wrong and simply read that passage incorrectly.

  7. (Er, in case it’s unclear: count me in the camp of thinking that Phil Spector is a murderer, not in the camp of being suspicious towards rape accusers.)

  8. Why is it interesting that he is white, shah8? I believe the discussion of race is appropriate here but your comments don’t make any sense. “How many other white football players are put on trial for rape?” The answer is the same number as the people who have brought these charges against the white football players. Anyone can file a civil lawsuit or press charges regardless of whether they are black or white. The race discussion is more about whether we treat white players differently than black players when they have been accused of sexual assault. There is a legitimate discussion there but let’s not get too off that topic by suggesting that white people aren’t put on trial for rape simply because they are white.

    Also, there are a lot of question marks that still need to be answered from both sides before anyone should be passing judgment. I think that this is a well written article that is more about trying to have a dialogue about how these things should be handled because it is such a damaging offense to both sides.

  9. I hate this. The jury can’t “decide whether he did it.” More often than not they’re just going to decide the typical “he-said-she-said plus-she’s-had-sex-in-the-past-anyway how-could-we-ever-know-if-she-really-consented” and that’s the best case scenario, where her life isn’t clawed apart looking to punish her for daring to impugn the name of our precious sport idol.

    If you don’t believe the woman, then just don’t form an opinion. But don’t say “well, innocent until proven guilty!” because THE JUSTICE SYSTEM DOES NOT HANDLE THESE ISSUES. It just doesn’t. It pretends to try, but it does not actually address *justice* for any of the parties involved.

    And you know what’s behind that – rape culture.

  10. personally, i my faith in the law enforcement and judicial system to handle these issues accurately and correctly extends approximately as far as i can throw it. and a lot of the time, the money involved from the athlete’s side is sufficient to get to a settlement between the parties without any jury or judge making a determination of fault. so waiting for the jury to decide is both something that might never happen and something that may or may not bear any significant relation to what happened. i mean, look at the recent gates incident for an example of how police reports that constitute official evidence are shaded and manipulated in one direction or another.

    personally, i think exposing your name to be cursed and hounded on websites and sports shows throughout the country as a gold-digging slut who changed her mind and is making all this shit up is a sufficient deterrent for false accusers. i also think giving women the benefit of the doubt and trusting their allegations turns out to be correct in a sufficient number of cases that i’m willing to risk trusting one false accuser rather than distrusting the 99 women bringing true claims.

  11. And honestly, I do believe a great many people are more readily prepared to assume a black man guilty of violence and rape than a white man, even when they are sport idols. There is no doubt the response is rabidly on Big Ben’s side because he doesn’t have racial issues weighing down his credibility. He’s a Good Boy, so we trust him. A black man doesn’t get the same benefit; many people assume he did it simply because duh, all black men are hypersexual and hyperviolent.

    I do think you can look at these things together. They don’t have to contradict one another. It’s about how society prioritizes certain concerns. Black men are victimized in one way, women in another; neither’s victimization cancels out the other’s. We can discuss both issues respectfully…

  12. @amandaw – so the only two options are “he’s guilty” or “just don’t form an opinion”?

    The disdain with which you write about “our precious sport idol” confirms which side of that coin you fall on. I don’t even like the guy, or a fan of him, but I don’t like condemning those simply accused of wrong doing.

    To be clear, I have no reason to believe she’s making this up but at the same time I don’t believe it to be fair to condemn the accused as guilty from the outset. That’s what investigations and trials are for. Justice may not be served but at least you have a better idea of what happened.

    It is a delicate issue, to be sure, but certainly there are more just ways of navigating it than the way in which you just did.

    @abby jean —

    i also think giving women the benefit of the doubt and trusting their allegations turns out to be correct in a sufficient number of cases that i’m willing to risk trusting one false accuser rather than distrusting the 99 women bringing true claims.

    Would you use the same logic with regards to the death penalty? That you are willing to risk executing an innocent person if you could execute 99 truly guilty ones? No? Didn’t think so.

  13. Part of the problem here is the absence of a criminal complaint with her civil suit. People tend to be more skeptical of rape allegations that don’t have that aspect to it.

    With anything I tend not to make a judgement call on the accused until I get all of the facts, which typically comes out in a criminal trial. Rape is a deplorable offense against anyone and nobody ever deserves it.

  14. I support full agnosticism on individual cases. I think the only thing feminist and other progressive websites can do is call out bullshit reasoning by talking heads (i.e. she waited a year, she must be lying; she’s only in it for the money) that serve as a dampener for people’s reporting of sexual assault.

    As for the race issue, I think I remember Mark Chmura (white TE, Packers) getting arrested (but not convicted) for statutory rape. When it comes to high-profile athletes, only Mike Tyson has been convicted.

  15. That’s what investigations and trials are for. Justice may not be served but at least you have a better idea of what happened.

    No. That’s what I’m saying. Our justice system as it is set up cannot resolve these cases, period. It is not prepared to do justice to either party.

    That’s why it’s crap to say “Well, just let the court decide – that’s totally fair.” It’s not. The court system is well known for its problems, from over reliance on incarceration to racial bias to a punitive and authoritative mindset (what matters is disobeying authority, not doing wrong).

    Sexual assault cases are not handled fairly in courts, period, and to rely on courts for “objective” analysis of these cases is to rely on precisely the system that supports rape culture. Women are assumed to consent unless proven otherwise, men are assumed to do whatever they want to women, and the only way to resolve a conflict between these two fucked-up things is in court, which is not equipped to deal with either of the actual fucked-up things at hand.

    For the record, I live in Pittsburgh and I’ve gotten to witness the reaction to this case first-hand. My language is an accurate assessment. This city idolizes this man, and tears down anyone who fails to idolize him similarly. I’m sorry if that’s uncomfortable, but it’s fucking *true.* And it’s a huge contributor to rape culture.

  16. Just for clarification, I’m NOT on Ben Roethlisberger’s side, but as someone who has been raped before ad my rapist almost going free because someone DID lie about being raped by him to get money from him I withold judgement. One false accusation taints ALL the other true ones in a court of criminal law where true justce for the offense is really served. Taking his money wont protect him from his next victm, taking his freedom will.

  17. That should read “Taking his money from protect his next victim FROM him, taking his freedom will.:

  18. FTR? I have no idea what Ben did. I have no idea if he did it. I’m not assuming he did. You don’t have to assume he’s guilty to criticize how we approach the issue.

  20. @mattortega – i think i was pretty clear that i was talking about assumptions in rape cases, not implementation of criminal penalties, much less irreversible ones like the death penalty. so your “gotcha” is not such a gotcha.

    i also think the difference between giving an alleged victim the benefit of the doubt and killing an alleged criminal is extremely vast in terms of who is doing it (me as private citizen, not government as law enforcement), effect on the civil or criminal penalties exacted in the case (my opinions tend not to have such a huge effect on damages awards from judges, what with me being a private citizen and all), and effect on the person’s life (roethlisberger will likely continue to not only live but make a handsome living as a sports celebrity even if i assume his accuser is correct). in other words, your analogy is shitty.

    what i’m saying, to be clear, is the crap levelled at a woman who alleges sexual assault or rape by a celebrity, whether she is making civil or criminal claims, is sufficiently evil and hateful and degrading that i consider it an adequate deterrent to prevent women from making false claims of this kind. for this reason, as well as my experience and knowledge of how law enforcement and court systems handle allegations of rape and sexual assault, even when famous people are not involved, i choose to credit these allegations. i don’t see what harm this could do to roethlisberger, as my crediting the allegations is extremely unlikely to affect the functioning of said law enforcement and justice systems, and even less likely to affect the behavior of fans and commentators spewing the humiliating vitriol at the victim.

    if you wish to argue, please engage with this actual argument instead of making silly and irrelevant analogies.

  21. @amandaw – “The court system is well known for its problems…”

    Agreed, and I wasn’t saying “just let the court decide” and leave it at that. My point was that I don’t think it to be fair to pin guilty immediately after the accusation is made. Maybe he didn’t do it, how the hell do I know?

    In the meantime, I don’t believe it fair to declare guilt and destroy this guy’s reputation, career and life (or anybody else accused of any crime) once an accusation is made. I don’t believe that to be any different than saying the accuser is a gold digger, slut, etc.

    I just find this quick reaction — to say “oh he’s guilty” built on assumptions held about rich white male athletes and anger at systemic injustices — to be very disturbing.

  22. I really really hope she is being honest and believe that she is being honest. I think it takes a horrible human being to diminish the true atrocity that is rape by lying about it, no less for financial or sympathetic gains.

    I don’t know yet how I feel about the fact there will be no criminal charges brought against him, so if he is her rapist- and giving her the benfi of the doubt- he is. Then other women are in danger of being raped by him because he will be enjoying his undeserved freedom. There has to be a better way, like a civil suit means an automatic criminal suit.

  23. In the meantime, I don’t believe it fair to declare guilt and destroy this guy’s reputation, career and life (or anybody else accused of any crime) once an accusation is made. I don’t believe that to be any different than saying the accuser is a gold digger, slut, etc.

    Ah, ok. Makes it easy to see where you’re coming from. No analysis of power differentials or institutional bias at all; main concern is about man’s career and reputation.

    Thanks for the clarification.

  24. @abby jean – RE: your 99 to 1 example.

    I guess we are different in that I don’t believe it is OK to convict someone innocent of a crime, whereas you are OK with that so long as it is a man and only a small percentage. I was quite shocked that you said you were OK with falsely convicting even just one person. Yikes.

    @amandaw – your earlier comment gave a strong impression that you believed her over him. My thinking is more in tune with your comment at 1:29pm in that I have no idea if he did it.

    As for ESPN not covering the accusation right away – there was some talk on sports blogs that it had something to do with ESPN’s massive investment in the NFL (media rights, mostly, and their joint venture in the Madden video game franchise).

  25. Guys, listen.

    You know who’s at fault when a false accusation destroys the credibility of true victims?

    It’s not the accuser. It’s everybody else who uses the bad action of the one to re-victimize the many.

    It’s rape culture. It’s the automatic distrust of rape victims. It’s the automatic shift to focusing on the wellbeing of a man’s career over the bodily autonomy and overall wellbeing of the victim. It’s the immediate shift to find some way to impugn the victim as not credible because (look what she was wearing/she’s had sex before/she’s a sex worker/she didn’t scream loud enough she must have wanted it/she isn’t a perfect innocent pure virgin). It’s the way all of these cases immediately become a discussion about the harm of false accusation rather than the harm of RAPE.

    You don’t have to assume the man is guilty to call out that stuff for the bullshit it is.

  26. It’s the automatic distrust of rape victims. It’s the automatic shift So why treat him like a criminal just because he’s accused of something?

    Someone earlier wrote that delving into an accuser’s personal life is enough of a deterrent against false accusations. I don’t believe that to be the case. The mere fact that false accusations are still made deem that statement false on it’s face, and those actions only hurt or otherwise make it difficult for victims of these heinous crimes to seek justice.

    I don’t know how else to be fair this early after an accusation is made. I’m sorry if I didn’t mark off all the boxes on the Feminist discussion checklist from institutional biases and power structures in my comments earlier. Apparently that disqualifies me from commenting.

  27. Sorry that previous comment is missing a closed blockquote tag. It should read as follows:

    It’s rape culture. It’s the automatic distrust of rape victims. It’s the automatic shift to focusing on the wellbeing of a man’s career over the bodily autonomy and overall wellbeing of the victim. It’s the immediate shift to find some way to impugn the victim as not credible because (look what she was wearing/she’s had sex before/she’s a sex worker/she didn’t scream loud enough she must have wanted it/she isn’t a perfect innocent pure virgin).

    So why treat him like a criminal just because he’s accused of something?

    Someone earlier wrote that delving into an accuser’s personal life is enough of a deterrent against false accusations. I don’t believe that to be the case. The mere fact that false accusations are still made deem that statement false on it’s face, and those actions only hurt or otherwise make it difficult for victims of these heinous crimes to seek justice.

    I don’t know how else to be fair this early after an accusation is made. I’m sorry if I didn’t mark off all the boxes on the Feminist discussion checklist from institutional biases and power structures in my comments earlier. Apparently that disqualifies me from commenting.

  28. @mattortega –

    ONE MORE TIME. i was saying what i believed was appropriate for my opinions about a case when brought to light. i was not saying that criminal or civil courts should have a presumption of guilt in allegations of celebrity rape or sexual assault. i was saying that when i personally hear these allegations, i personally choose to credit them. if that means that i find i have credited a story that later turns out to be false or fabricated, i’m ok with that. i’m much more ok with that than doubting a story that later turns out to be true.

    i don’t know why you’re so convinced the opinions that i personally have about a story are determinative of civil or criminal court dispositions, awards, or sentencing. i’m also unclear where i said that i wanted people to be falsely convicted. MY OPINION ABOUT WHAT HAPPENED IN THIS CASE OR IN ANY RAPE/SEXUAL ASSAULT CASE WILL HAVE APPROXIMATELY ZERO BEARING ON THE COURT’S ACTIONS IN SAID CASE. this is why i was careful to write “i credit those allegations” rather than “i believe the court should have a standard of crediting those allegations.” to be totally and completely clear, i am not a court.

    however, my crediting those stories in forums on feminist blogs may help support others who were victims of rape or sexual assault. and i think that’s immensely valuable, more so than raising the tiny spectre of doubt that the allegations may have been false. i saw you raising that doubt and that’s what i responded to – what we choose to do in these discussions, in these forums, NOT the functioning of the court system.

  29. abby jean – I don’t know how you got the impression that I believe your personal opinions are determinative of anything.

    And once again, I am not out here calling the accuser a liar or anything. As others have said, I have no idea what happened and for that reason, I question the fairness in suggesting Rothlisberger should be shunned by the general public because he stands accused of a crime. (And again, I wasn’t 100 percent certain that’s what the quoted passage was saying anyway.)

  30. ninetim, rape is something that this culture just doesn’t take seriously, and famous people typically don’t get charged with it unless there are transgressive (like race) or aggravating circumstances. So the fact that an otherwise popular player who doesn’t seem too distant or crazy (and white) gets hit with a civil suit is quite interesting to me.

    norbizness, thanks for the assist with Chmura. It seems like what with that assistant coach of Green Bay’s incident, as well as the party time crimes at the Twin Cities…

  31. Wow, this comment thread was annoying me, but I have nothing to add to amandaw’s rant just above other than my agreement. And my thanks for saying it.

    And it’s only logical to “ostracize” someone who’s been accused of rape. Because odds are very very high it’s true. So you avoid the guy and you’re careful around him for your own self protection. I’m totally ostracizing Ben Roethlisberger now. Somehow I don’t think he’ll notice, but if I do wind up destroying his career I apologize in advance.

  34. When there is an absence of physical evidence — as is very often the case — rape trials necessarily become about damaging the other side’s credibility. No matter the verdict in those cases, there’s plenty of fresh anger and little resolution. How, exactly, do we fix that?

    It is an unfortunate consequence of the “innocent until proven guilty” principle that in cases of rape, it is often impossible for a case to be proven “beyond reasonable doubt”.

    This is troubling, because very often the central evidence in such a case is the testimony of the victim herself. And an account of being raped should be conclusive on its own, if that evidence is accepted as valid. If the evidence is true, then it is clear that rape did happen.

    In order to say that a case is not proven beyond reasonable doubt, it is therefore necessary to say that this evidence is not true: that it is either a lie, or else mistaken (e.g. it was not the defendant but someone else who committed the rape).

    There are three possibilities:

    1/. The evidence is accepted as true – in which case the defendant has been proven beyond reasonable doubt to have committed the crime of rape;

    2/. The accuser is lying, in which case she is guilty of perjury (and possibly some other things)

    3/. The accuser is somehow mistaken about her testimony (which is hard to imagine unless rape drugs of some kind were used, in which case consent is not possible).

    So the trial becomes about trying to determine whether or not the accuser is lying. I have read accounts many times from rape victims who described the courtroom as feeling like she, and not her attacker, were the person on trial. With this analysis, we can see why that happens: it is because ultimately, the trial becomes about deciding whether or not the victim is guilty of perjury. But in that trial, the person accused of perjury is effectively presumed guilty from the start and has to prove herself innocent.

    My inclination is that juries should be instructed that unless they can find compelling reason to disbelieve the testimony of an alleged rape victim, then they should accept her words as being to the best of her ability the truth. This still leaves open the possibility of personal/credibility attacks on the accuser, but with proper rules in place (e.g. that past sexual activity is absolutely off-limits) I would hope that this would be limited to examining only the evidence itself as presented, and not a hominem attacks on the witness.

    ***

    How does that reflect on celebrity rape cases? Well, as the OP said, the media tends to run in effect its own version of the rape trial, only without many of the meagre safeguards that the legal system has in place. On top of which, there are those who have a vested interest – “I don’t want him to be guilty!” But the same principle applies. We should accept that, at least to the best of her ability, the accuser’s words are the truth, unless and until there is compelling evidence to say otherwise. This is not the same as assuming the accused celebrity is guilty, but does mean that the only fair alternative is to say “the case is not proven”. A famous celebrity will eventually recover his reputation if the charges are dropped or he is found not guilty. A rape victim whose attacker is found not guilty will often have a much harder job recovering her life, after media and court have declared her a liar and denied her experience’s validity.

  35. All else equal,* I think I prefer non-coverage from news organizations for rape-trials in progress. The victim probably does not benefit from public attention during the course of a trial. And, in the event of a guilty verdict, there’s plenty of time for public discussion prior to, and even after, sentencing.

    In the event of a not-guilty verdict, it seems like everyone would benefit from the story dying quietly. If the rape occurred, but there was insufficient evidence to convict, then the victim is not re-victimized via speculation about motive.

    Further, it seems like this would help society at large. The only times people would hear about a rape case would be when an accusation ended in conviction, which seems like it would help general victim credibility.

    Are there major advantages to reporting on trials-in-progress?

    *A relevant ‘else’ in this case is, “fluctuations in news-organization policy that seem to depend on the race of the accused.”

    ** On re-reading, it seems that this is a civil case. So, ‘guilty’ might not be the correct word.

  36. Sorry amandaw, enduring all of the crap you must endure to get a rapist locked away only to have someone come along and almost destroy your efforts to make a few bucks is BAD. The idea was ” if ONE lied, how many of the other accusers may have lied?” No doubt, any horrible crime needs to be addressed and calld out for being horrible. But then comes the part of who did it. You don’t grab a man who never raped you and accuse him of rape because rape as a horrible crime so SOMEONE must pay. You accuse the scumbag who did it and if you can deal with the bull that comes with putting a voice, face, reality into victimizing, you put him in jail.

    I will NEVER see it as ok and always take it very personally whenever anyone falsely accuses another of rape. Especially with the way it can harm he legal efforts of those who really were raped to get justice and the history in this country of falsely accusing black men of rape.

  37. Very thoughtful post, G.D.

    I’ve been troubled by the same questions. I told myself that because the accuser had the burden of proof and the accused was presumed innocent, it all balanced out. But the more I think about it, the more I see that might have been a cop-out.

  38. Cara:

    Um. Don’t all high profile trials work like this? Why are we singling out the one kind of trial where people seem to more commonly presume innocence of the suspect and fault of the victim?

    I need to stress that I’m not taking the stance that accusers are lying, only that the prosecution of rape trials is very, very different than the prosecution of armed robbery or even murder. I got to see a sexual assault case up close last year, and there was nothing about the way it unfolded for anyone that was encouraging about the way such cases are handled.

    (And as has been stated above, I don’t know if the innocence is presumed when “Celebrity/Sports Star X” is black.)

  39. SnowdropExplodes:
    Your proposed jury instruction would require a constitutional amendment; as it stands, such an instruction would violate the Due Process Clause. It’s one thing for us, as outsiders, to credit the accuser as speaking truthfully absent some compelling evidence to the contrary. However, in the context of a criminal trial, it is unjust (and unconstitutional) for the state to impose a burden on the defense to prove the accusation isn’t true, regardless of how heinous the crime is.

  40. Snowdrop Explodes — thanks for a much calmer, more detailed explanation of what I was trying to get at in saying that our justice system is just not set up to handle rape cases. This is why it is so troublesome to rely on conviction or lack thereof as proof of the accused’s guilt or innocence. The remedy for rape ultimately lies not in the courts, but in changing our cultural attitudes around consent.

  41. “it is unjust… to impose a burden on the defense to prove the accusation isn’t true”

    Try turning that around for a minute, too: it is unjust to impose a burden on the woman to prove her consent isn’t given.

    We will never see justice for sexual assault victims when we remain stuck in the paradigm of the court system.

  42. As of yesterday afternoon, ESPN was covering this. Not well–Colin Cowherd sexist blowhard was pre-emptively scolding anyone who might “jump to conclusions”–but they were covering it. And today, they have been showing Roethlisberger’s emphatic denials on SportsCenter.

  43. Your proposed jury instruction would require a constitutional amendment; as it stands, such an instruction would violate the Due Process Clause. It’s one thing for us, as outsiders, to credit the accuser as speaking truthfully absent some compelling evidence to the contrary. However, in the context of a criminal trial, it is unjust (and unconstitutional) for the state to impose a burden on the defense to prove the accusation isn’t true, regardless of how heinous the crime is.

    I am drawing here a distinction between the accusation and the evidence presented. Supposing a jury were inclined to disbelieve the evidence of a key witness in a case, but not for any reason relating to that evidence, only to the person giving it – would you consider that a fair way for the jury to arrive at a verdict? But equally, if someone gave evidence that was self-contradictory or otherwise clearly unreliable, then it would be fair to disbelieve it.

    A rape victim in court is giving evidence under oath. To say that her evidence is false is therefore either to accuse her of perjury, or else to say that she was not mentally competent to give consent (or else that some incident between the alleged rape and the trial has affected her memory adversely). It is directly to make a judgement (or assumption) not about the accusation, but about the evidence presented.

    The trial is already about assuming someone is guilty until proven innocent: as I explained, the way rape trials work (and indeed, have to work) under the current system means that a rape victim ends up being the person on trial for perjury, and she has to prove somehow beyond reasonable doubt that her account is valid. This, it seems to me, is the truly unfair burden (as amandaw says).

  44. ESPN’s silence looks especially damning when one considers just how much airtime they typically give to athlete’s legal issues.

    Damning? Why?
    I’d say “laudable” (if it’s still going on; I don’t watch ESPN.)

    The whole problem with these messes (other than the rape) is that people invariably make a shitload of bad assumptions. Things being as they are w/r/t rape, most of those bad assumptions tend to get made about the woman. I won’t repeat them here. But no matter which party they’re aimed at, they’re assumptions nonetheless.

    Refraining from making or publicizing ANY of that stuff seems to be an excellent tactic. After all: it may seem obvious that the “bad woman” stuff should stay out of the press, but it’s hard to make the suggestion that victim supporters should publicly speak without allowing the accused’s supporters to speak as well. Keeping publicity low seems to benefit everyone, doesn’t it?

  45. Just to clarify for the non-legal types: in a CIVIL case (one private party suing another private party, where the only remedy for rape is money damages) then the standard is “more likely than not,” i.e. “51% wins.”

    In a CRIMINAL case (where the government, not the victim is going after the accused, and where the remedy for rape is jail as well as damages) then the standard is “beyond a reasonable doubt.”

    When Victim’s testimony conflicts with Accused’s testimony (as it almost always does) then in order to convict Accused of a CRIME, the jury usually has to believe Victim beyond a reasonable doubt. that’s difficult to get, which is why rape cases are often not-guilty verdicts.

    but in civil court, if Victim is “more” trustworthy than Accused–not “beyond reasonable doubt trustworthy”–then she can win.

    i.e. it is common to win in civil court but lose in criminal court, but if you win criminally you will almost always win civilly as well.

  47. SnowdropExplodes:
    The jury is free to find a witness’s testimony not credible for whatever reasons it chooses in any case. Your proposed jury instruction, that “unless they can find compelling reason to disbelieve the testimony of an alleged rape victim, then they should accept her words as being to the best of her ability the truth” would put a thumb on the scale, and instruct the jury that they are to assume the complaining witness is telling the truth unless there is some “compelling” (which is a rather high standard) reason to believe otherwise.

    Testimony is not presumptively true, which is why we have things like hearsay rules that exclude, as a general matter, out-of-court statements admitted for the truth of the matter asserted – since they are out of court, the jury is not able to perform its function as a fact-finder, which includes determining how credible any given witness is, including the complaining witness.

    A trial for rape may be similar to a trial for perjury, as you suggest, and you are absolutely correct that the complaining witness has to prove beyond a reasonable doubt, in conjunction with whatever other evidence might exist, that he or she did not consent to the sexual activity in question. However, you are categorically wrong in suggesting that this amounts to “assuming [the complaining witness] is guilty until proven innocent” – a finding of Not Guilty as to the charge of rape does not prove that the complaining witness committed perjury.

    Were it the case that prosecution for rape was a binary proposition, in which either the defendant or the complaining witness was convicted at the end of trial (which, I might add, is a terrible idea), you would be correct that this places an unfair burden on the complaining witness’s defense. But that is emphatically not the case in a prosecution for rape in America. If a complaining witness is charged with perjury subsequent to an acquittal of the person he or she accused, the complaining witness/defendant is also entitled to the same presumption of innocence unless proven guilty, which means the state is put in the position of proving beyond a reasonable doubt that the testimony provided was false. They could put the formerly-accused acquitted on the stand to testify, but this person would essentially be force to prove that he or she didn’t rape the now-defendant.

  48. G.D
    To clarify I meant decent human being= having respect for women. Most professional athletes (even college atheletes) flunk this qualification.

  49. politicalguineapig: that clarification doesn’t make the statement any less bizarre or ridiculous. You just have some beef with athletes, which I suppose is your prerogative. What it’s not is a compelling reason to consider someone a rapist.

  50. The public and the media’s response to this case is disheartening in the worst ways. First of all, I think debating BR’s innocence/guilt is not my concern, because I wasn’t present during the alleged rape and I am not part of the case so my opinion on that doesn’t matter anyway.

    My concern lies with the way people get so defensive when anyone uses this case (or any rape case) to critique the way society is so eager to cast blame or deceit on the alleged survivor. It is disgusting. Pop culture figures like Perez Hilton are already implying that the woman in question is a liar/golddigger, and that kind of talk only reinforces our insidious rape culture. These implications are victim-blaming and slut-shaming. We are so quick to defend BR and demand that he receive a fair trail, but we are strangely silent when the woman in question is immediately suspect of deceit, promiscuity, and/or greed. That is public shaming in the worst way.

    We wonder why this woman pursued a civil suit one year after the alleged rape instead of pursuing a criminal charges. We wonder why the majority of rapes and sexual assaults go unreported and only 6% of rapists spend time in jail. Who wants to relive their most terrifying and dehumanizing experience(s), while also being publicly shamed, slandered, and cross-examined? Who wants to be blamed for something they DID NOT DO but something that was DONE TO THEM? Who wants to be suspected of greed, and have their entire sexual history judged and held up as evidence? Who wants to be told that they must have wanted it and it must’ve been consensual because he’s so handsome, he’s so wealthy, he’s so white?

    And when anyone uses this case as a “teachable moment” about rape culture, they are not calling BR a rapist. They are critiquing our society, not condemning an athlete.

  51. AnonymousCoward:

    I suppose it shuld come as no surprise to me that the law is not logic-driven here.

    I demonstrated how, logically, in order for a jury to find the defendant not guilty in a rape trial, they must at the same time be calling the alleged victim a liar, or mistaken. If she is a liar, then that is perjury: she lied under oath. On the other hand, if she is merely mistaken, then we must declare about what she is mistaken. Can a woman be mistaken about whether or not she consented to sex? Well, apart from the occasional radfem insisting that sex workers are so mistaken, I think most people would agree that women are generally aware of whether or not they consented. The only circumstances in which she might be unsure would surely have to be circumstances in which she was not mentally competent (e.g. due to drugs or alcohol) to give consent – in which case, it is still rape. So perhaps she is mistaken about the identity of her attacker? I suppose some rape trials have hinged on a jury being asked to consider that maybe it was someone else, and not the defendant, who committed the rape – for example, if the rapist wore a mask to conceal his identity or again, if the victim was drugged or so intoxicated by alcohol as to be unable to tell what was going on. However, I’m not aware of that being a common defence offered.

    So, while the law may not say that it is a binary scenario, if it is viewed logically as opposed to legally then there are only a few small areas that do not fall into the binary of “she lied” versus “he did it”.

    Your proposed jury instruction, that “unless they can find compelling reason to disbelieve the testimony of an alleged rape victim, then they should accept her words as being to the best of her ability the truth” would put a thumb on the scale, and instruct the jury that they are to assume the complaining witness is telling the truth unless there is some “compelling” (which is a rather high standard) reason to believe otherwise.

    You’re exactly right. But the fact is, you’re assuming that there’s no thumb on the other side of the scale, and that (as I believe is the whole point of this thread) is manifestly not the case. There is a very large, weighty, thumb on the alleged rapist’s side of the scale. Observe:

    http://www.smh.com.au/news/national/rape-myths-exposed-in-attitude-survey/2007/07/11/1183833575655.html

    http://news.bbc.co.uk/1/hi/northern_ireland/7643192.stm

    http://news.bbc.co.uk/1/hi/scotland/6938825.stm

    (the only links I was able to find for similar surveys of US attitudes required payment to view them)

    If you have a 1/4 to 1/3 of your jurors holding such beliefs (which those surveys say is expected values) then that means even a conviction based on a majority verdict is impossible.

    My contention is that the victims of rape deserve a thumb of their own to counteract as much as possible the effects of rape culture in thumbing the balance against the victim. It’s a long way from perfect, but until rape culture is dead and buried, it’s all I can see as a way of dealing with the problem.

  52. “In the meantime, I don’t believe it fair to declare guilt and destroy this guy’s reputation, career and life (or anybody else accused of any crime) once an accusation is made”

    Judicial systems don’t even want to declare guilt and destroy men’s reputations and careers even after a guilty finding or guilty plea.

    This week there’s a case in Australia where Judge Judge David Smith has declared that Matthew Sloan, who raped an unconscious women in a park, was only really guilty of “technical rape”, because she might have consented if she was not unconscious. The judge is worried that the conviction will affect the poor, poor rapist’s chance of overseas travel in the future. He’s agonising over sentencing, as he’s reluctant to even impose a suspended sentence.

  53. If this young woman had come out when the incident happened, I would have another opinion. However, she waited a year to speak out. She says she didnt before because she was afraid of losing her job, but as it was reported, when she was told to take some time off this past July because Ben was coming to the resort for the Golf tournament, she still held her tongue. Now she decides to speak. Every year there is the NFL rookie symposium, a mandatory meeting all rookie football players must attend. One of the major subjects is the dangerous trappings of the female persuasion. Being a female I know what I am talking about when I say there a many females out there with trappings with the sole purpose of landing a rich man and I feel because this girl sat on what is serious accusations she has a plan in mind. There may have been something between the two (she and Ben). They are the only two that know the truth. But for her to delay to report something as serious as rape because she did not want to lose her job especially when she is accusing someone of high profile makes the accusation only suspicious.

  54. Lauredhel:
    You and the poster you linked to completely misrepresent what happened in Adelaide. The defendant and the victim were already having sex when the victim passed out and the young man continued to perform. And the judge said those things and postponed sentencing because he learned that the story was not what had been represented to the court before.

    Whether someone did something wrong or whether someone is found beyond a reasonable doubt to have committed a crime are different questions entirely. You can’t say that if someone is found not guilty of rape at trial it means the jury necessarily thought the victim was lying. It just means the prosecution didn’t meet it’s high burden of proof. And defendants always have the right to question the credibility of their accusers, no matter the accusations. Rape cases are somewhat special in that it often hinges on the victim’s word against the accusers, but they’re also special in that the ways a defense attorney can question the credibility of an accuser are incredibly circumscribed by law.

  55. Honestly, I don’t see what good it does at all for the media or anybody to speculate about charges like this.

    We know how embarrassed and wrong we were with Duke rape, it’s a dangerous path to go down. If some concrete evidence comes out, then you can openly opine but right now we don’t know anymore than anyone else.

  56. SnowdropExplodes:
    You are ignoring the standard of proof necessary to convict someone of a crime in the United States, which is part of why your analysis fails.

    It is simply inaccurate to say that, in order for a jury to disbelief a complaining witness’s testimony, the jury must “call the alleged victim a liar, or mistaken.” The jury is required to acquit unless the evidence presented suggests, beyond a reasonable doubt, that the defendant is guilty. Thus, the jury may determine that the woman is more likely than not telling the truth, thus believing her, but nonetheless refusing to convict because of the existence of a reasonable doubt as to the defendant’s guilt.

    The solution to rape culture leading some jurors to hold stupid / misogynistic attitudes towards rape is to work on eliminating those attitudes, not to destroy due process. The solution to social biases is not reworking the justice system so that certain classes of defendants must prove their own innocence.

  57. Matt, I call bullshit.

    You’re very concerned about waiting for a jury decision, but most people don’t wait for any such thing to claim the woman is a liar and a whore who was asking for it. You can take a look at the OC rape case to see a nice, sickening dose of that shit. Three guys raped a classmate while she was unconscious–on FILM, using a Snapple bottle, pool cue, aluminum can, and a lit cigarette. She was ostracized, harassed, and slandered in the local media. She was declared a slut and a whore who was asking for it because she did things like shave her pubic hair.

    Or take a look at the Big Dan’s gang-rape in New Bedford (which the Accused film is loosely based on). The woman in that case was deemed a whore who was asking for it, the rapists were good family men who couldn’t help themselves when a wanton woman went into the bar they were in (to buy cigarettes, that wanton slut), and oh! Their poor reputations! THEY had nothing but support and silver platters of hankies for their tears from the community; she and her family were harassed and threatened. It got to the point where she had to go into a shelter because of the death threats leveled at her. She and her partner and children eventually had to leave the state.

    And I do wonder where all of the concern over false accusations/allegations for other crimes are. Drug dealing, theft (someone could have given to him and then changed his mind, you know), assault (Morton Downey, Jr., anyone?), etc. But no. Just sexual assault, because those bitches all lie, and that’s the ONLY time its a concern.

  58. “You and the poster you linked to completely misrepresent what happened in Adelaide. The defendant and the victim were already having sex when the victim passed out and the young man continued to perform.”

    How is that in any way inconsistent with what I said, which was that he raped an unconscious woman in a park? She is a woman. They were in a park. She was unconscious. He raped her. Which bit do you disagree with?

  59. I disagree with you misrepresenting what happened. You presented it as though there was an unconscious woman lying in the park and a man came along, ripped down her pants and raped her, when that’s not what happened at all. What purpose does it serve to misrepresent the facts?

  60. Actually no, quadmoniker, I didn’t present it that way at all. I said that he “raped an unconscious woman in a park”. If you’re reading it that he happened across an unconscious woman he’d never met before, that’s _your_ reading of the word “rape” only as a random stranger attack, not my misrepresentation.

    Which is _my whole point_. Cheers for demonstrating it so neatly.

  61. And that’s the other thing melancholia, when we stood behind someone, vigorously and tried our best to point out how horrile it all was. People threw their necks out on the line and she was lying about the rape. She’d have every right to bring the scum down for their racist remarks and all else but the lie about the rape coes into play and makes people stop and think twice about putting blindfaith in the next rape victim.

    Typically if a woman bears physical visible scars fromt he rape, there is no question of if or who, we take her word. But when time has gone by, evidence is lost, scars are healed and we are only to believe in the word of a stranger, many get skeptical. That skepticism and the unnecessary lies of past that cause it is what hurt so many rape victims and scars us all over again.

    Its best to have sympathy for the accuser and withhold condemnation for the accused until a trial or at least more than an accusation is known in circumstances like these.

  62. It is simply inaccurate to say that, in order for a jury to disbelief a complaining witness’s testimony, the jury must “call the alleged victim a liar, or mistaken.” The jury is required to acquit unless the evidence presented suggests, beyond a reasonable doubt, that the defendant is guilty. Thus, the jury may determine that the woman is more likely than not telling the truth, thus believing her, but nonetheless refusing to convict because of the existence of a reasonable doubt as to the defendant’s guilt.

    The solution to rape culture leading some jurors to hold stupid / misogynistic attitudes towards rape is to work on eliminating those attitudes, not to destroy due process. The solution to social biases is not reworking the justice system so that certain classes of defendants must prove their own innocence.

    Two points here. Firstly, it’s just fine to say “we must work on eliminating those attitudes”, as long as you’re not one of the many hundreds of thousands of women who will be raped n the mean time and fail to see justice done in the meantime, who will be forced to relive their experience in court and yet not find any closure because of it.

    Secondly, you have (deliberately?) misrepresented what I am suggesting here. I have at no point suggested that “a certain class of defendants must prove their own innocence”. Instead, I have said that a certain class of evidence should be awarded a particular class of credibility, such that a jury should require a specific reason to doubt it in order to disregard the evidence in reaching a verdict.

    That is to say, a jury should be required to be able to say clearly “this point is what causes us to have reasonable doubts about the evidence given by the alleged victim.” Or, as I originally worded it, a reason that compels one to doubt.

    For most witnesses in a criminal case, that appears to be the basic standard because the evidence is given under oath – otherwise we might as well go down the road to complete Cartesian doubt, uncertain of anything except our own existence!

    Remember, for a rape case even to reach criminal trial, a number of highly-trained professionals will already have assessed the accuser as a credible witness. It is because of these trained professionals that many reported rapes never reach trial (bear in mind also, that some of those professionals will, despite their training, still harbour the rape culture prejudices mentioned before). If the alleged victim is not seen as a credible witness, then in most cases there is no case to present to the court in the first place.

  63. Its best to have sympathy for the accuser and withhold condemnation for the accused until a trial or at least more than an accusation is known in circumstances like these.

    Well said, Azalea.

  64. G.D.,

    I don’t know that there’s an answer for “how do we fix this” when it comes to celebrity cases.

    But one feminist rape researcher, Mary Koss, has been working on applying an alternative to the justice system for rape cases, centered less on convicting the guilty than on trying to give the victim a sense of acknowledgment and closure. It’s called “restorative justice”; I wrote about it on my blog here. It’s not the right thing for all rape cases, but then again, neither is our current system.

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  66. Instead, I have said that a certain class of evidence should be awarded a particular class of credibility, such that a jury should require a specific reason to doubt it in order to disregard the evidence in reaching a verdict.

    Get cracking on that constitutional amendment, then.

    Instead, I have said that a certain class of evidence should be awarded a particular class of credibility, such that a jury should require a specific reason to doubt it in order to disregard the evidence in reaching a verdict.

    This is precisely requireing that the defendant prove his/her innocence. By making the victim’s testimony presumptively true, you shift the burden to the defendant.

  67. I have at no point suggested that “a certain class of defendants must prove their own innocence”. Instead, I have said that a certain class of evidence should be awarded a particular class of credibility
    Or: ‘I have never said 6 is correct; I have always maintained, instead, that half a dozen is correct.’

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