Rape and the Rush to Pass Judgment

When a discrete case arises, some people should support the accuser, others the accused, and most people need not reach any conclusion until the facts emerge, if ever.

As Rolling Stone was disavowing parts of its story on rape at the University of Virginia, lawyer Zerlina Maxwell argued in The Washington Post that "we should believe, as a matter of default, what an accuser says." Her logic: "The costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist," she wrote. "Even if Jackie fabricated her account, U-Va. should have taken her word for it during the period while they endeavored to prove or disprove the accusation. This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what happens outside the legal system."

To whom is "we" is referring in her article?

The presumption seems to be that "we," as a society, need to collectively adopt a universal standard of credulousness to apply when individual rape allegations are made.

But that isn't true. When a crime is alleged, different people have very different roles to play. If a student walks into a friend's dorm room, a trauma counselor's office, or an emergency room and says, "I was raped," he or she ought to be given help, advice, and solace. Certain resources should be available to all ostensible victims without any need for proof. Absent glaring red flags, the accuser ought to be believed.

Similarly, when a person seeks out a close friend or attorney or priest or therapist to say they've been falsely accused, they ought to be believed, absent red flags, and supported insofar as they seem to be earnestly trying to prove their innocence.

In stark contrast, detectives, prosecutors, campus tribunals, and journalists are charged with searching for the truth. They ought to be attentive, respectful, and sensitive to accusers as they tell their stories–and to be clear that their obligation to think critically about all alleged facts and to verify details doesn't imply that they find the teller unreliable. Fact-checking even credible-sounding claims is just what members of these professions do when serious charges are levied, both to do their jobs ethically and because society benefits from classes of people who labor to establish what is known. This is no more objectionable than insurance companies taking a close look at all fires, though few people intentionally burn down their own house, or the TSA scanning all luggage though almost no one has a bomb. Seeing skeptical questions as standard due diligence can take the sting out of them. Casting journalistic norms as "mistrusting victims" does victims a disservice. They erroneously believe they're being singled out for mistrust.

What about the public? Ideally, people would be broadly aware that rape allegations (like allegations of most other crimes) are true far more often than false, prompting political support for reforms to increase our understanding of how often rape happens; to reliably punish perpetrators; and to reduce the number of victims.

Yet that general response should be paired with a reticence to jump to conclusions en masse in individual cases, especially when we hear about them third-hand. With time and investigative journalism, criminal trials, or civil suits, the public can, at times, reach informed conclusions about allegations. But there's little to gain from a rush to judgment when a Conor Oberst or Bill Cosby is first accused, and much to be lost if a mob reaches the wrong conclusion.

Maxwell doesn't seem to fully recognize these costs. She writes of false accusations:

The accused would have a rough period.

He might be suspended from his job; friends might defriend him on Facebook. In the case of Bill Cosby, we might have to stop watching his shows, consuming his books or buying tickets to his traveling stand-up routine. But false accusations are exceedingly rare, and errors can be undone by an investigation that clears the accused, especially if it is done quickly.

This dramatically understates the potential harm. One can find suicides prompted by false accusations (as well as by prosecutions of allegedly false accusers). Emily Yoffe documents how a dubious allegation of rape and a wildly unfair judicial process wreaked havoc in the life of a University of Michigan student. It doesn't require much empathy for those who are falsely accused to realize that their travails are more traumatic than losing Facebook friends and a few weeks at work. In the most serious cases, innocents face criminal charges, like the Duke lacrosse players, or are sent to prison for rapes that they did not commit.

False accusations also impose heavy costs on people other than the accused (and their families), as Julia Horowitz, an editor of UVA's student newspaper, must surely know.

She writes:

Ultimately, though, from where I sit in Charlottesville, to let fact checking define the narrative would be a huge mistake. “These events undoubtedly do occur here,” first-year Maddie Rita told me. “And while this report has clearly had factual flaws as well as rhetorical missteps, there are plenty of other fully corroborated accounts not only at this university, but at every university around the country.”

Only eight to nine percent of sexual assault reports, at most, are later determined false. This statistic will not change, even if Jackie does lie with the minority.

I don't understand this argument. Fact-checking confirms that false rape accusations are relatively rare–and suggests that the Phi Kappa Psi fraternity did not perpetrate a gang rape as part of a rush ritual on the night described in Rolling Stone. Both of those things are worth knowing. Both ought to shape the narrative.

So what's wrong with fact-checking?

On a university campus, a factually flawed accusation of premeditated gang rape understandably led many to conclude that serial gang-rapists were on the loose, engendering fear, anger, dismay and disgust. At UVA, "brothers of Phi Kappa Psi were moved out of their house after students threw bricks through the windows." Social rifts developed between supporters of the accuser and the accused. Some who'd thrive at the college were perhaps dissuaded from attending under false pretenses–it's one thing to think that "Jackie" was sexually assaulted by one or more men (that's my guess) and quite another to think group assaults are institutionalized into rush at a specific fraternity with specific members and alums. If Jackie was raped, but by two fraternity members acting in secret, or by people who aren't even in the Greek system, the needed reforms are meaningfully different than what's called for if she was assaulted as part of an initiation.

The question isn't whether steps should be taken to reduce sexual assault on campus. The question is what steps are most appropriate. Fact-checking helps us decide.