Daily Archives: June 5, 2006

Catching up (3): Rape victim advocates and the presumption of innocence

Another thing I missed during my blogging hiatus: Ampersand (Barry) responds to my column and blogpost about the Duke University rape case.

In particular, he takes issue with this passage:

But even some people who applaud this change believe that in some cases, the pendulum has swung too far. Many feminists seem to think that in sexual assault cases the presumption of innocence should not apply. Appearing on the Fox News show ‘’The O’Reilly Factor,” Monika Hostler of the North Carolina Coalition Against Sexual Assault declared that her role was ‘’to support a woman or any victim that comes forward to say that they were sexually assaulted.”

To O’Reilly’s question, ‘’Even if they weren’t?” Hostler replied, ‘’I can’t say that I’ve come across one that wasn’t.”

Says Barry:

Cathy is conflating two things that should be kept separate: an individual citizen’s own opinion, and our Court system. Yes, agents of our Court system are required to presume innocence, but unless she’s sworn in on a jury, Ms. Hostler doesn’t share that requirement.

….

Cathy thinks that rape victims’ advocates should not assume that a rape happened until it’s been proven beyond any reasonable doubt. How, exactly, does Cathy imagine that would work? Victim advocates don’t have the resources or the training to conduct independent investigations. Courts can take years to reach a “guilty” verdict – assuming there’s ever a trail, which there isn’t for most rapes. Should advocates refuse to help victims (pardon me, alleged victims) until a “guilty” verdict is handed down?

Barry then gives his satirical version of how a conversation between a rape victim advocate and a caller to a rape crisis center would go in the world according to me:

ADVOCATE: (picks up phone) Hello, rape crisis hotline. How may I help you?

WOMAN: (Distraught) My… I… I think I’ve been raped. This guy I know, Edward, he held me down and forced….

ADVOCATE: (Interrupting) You mean he allegedly held you down and forced you.

WOMAN: What?

ADVOCATE: I have to presume Edward’s innocent until he’s been proved guilty beyond all reasonable doubt. Please go on.

WOMAN: Okay… He, well, I kept saying “no, please don’t.” But he ignored what I said and ripped off my skirt –

ADVOCATE: You mean Edward allegedly ignored and allegedly ripped off your skirt. I’m keeping open to the possibility that you’re lying. Now, please hold, while I get Edward’s attorney on the line so he can cross-examine you. If your story remains credible after adversarial cross, then we can begin talking about dealing with post-traumatic stress syndrome.

WOMAN: Umn… Could I talk to someone who’ll believe me?

ADVOCATE: Before a trial takes place? What do you think this is, Nazi Germany?

Barry then suggests that I misrepresented Hostler’s position:

Even if Cathy had fairly quoted Ms. Hostler, Cathy’s argument would be wrong, for the reasons given above. But as it happens, Ms. Hostler wasn’t quoted fairly (there’s a transcript of the interview here). Here’s the important bit:

O’REILLY: You don’t believe as an American citizen that you should give anyone the presumption of innocence. Is that what you’re telling me?

HOSTLER: Oh, absolutely. But my role in sexual assault is to support a woman or any victim that comes forward to say that they were sexually assaulted.

“Oh, absolutely” can be interpreted to mean “oh, absolutely, the courts shouldn’t presume the defendant is innocent. But my role is to support the victim.” That’s how Cathy seems to interpret it.

But if that’s what Hostler meant, why start the second sentence with the word “but”? A sentence starting with “but” usually contrasts with the previous sentence in some way – that’s what the word “but” means. But there’s no contrast here, so the “but” is out of place.

I think Hostler meant “oh, absolutely,” meaning “Oh, absolutely, defendants should get the presumption of innocence in court. But my role as an advocate is to support the victim.” If so, the word “but” makes much more sense, because there’s a contrast between the two sentences.

To back up his claim, Barry quotes another statement by Hostler in the interview:

HOSTLER: Bill, I wouldn’t say that I think that those particular boys are absolutely guilty. But what I do think is that woman was raped in that house on that night.

Says Barry:

It’s ironic that Cathy is criticizing Hostler for not giving the two accused rapists any benefit of the doubt. Ms. Hostler does give them the benefit of the doubt; it’s Cathy, assuming the worse of Ms. Hostler even though the interview as a whole doesn’t justify Cathy’s assumptions, who is unreasonably refusing to give the benefit of the doubt.

Wanting to remove all doubt, I emailed Ms. Hostler. She says “of course” she believes that courts should presume defendants innocent until proven guilty. With all due respect to Cathy, there was enough textual evidence in the interview itself to raise doubts about Cathy’s interpretation, and Cathy should have made that clear in her column. Not only did Cathy’s column fail to inform her readers of the presence of doubt; Cathy’s quotations omitted the elements of the original interview which would have enabled her readers to notice the ambiguity for themselves.

Although I’m sure it wasn’t on purpose, the effect is that Cathy has unfairly smeared Ms. Hostler before a national audience. I hope Cathy uses a future column to correct her distortions and apologize to Ms. Hostler.

Frankly, Barry’s claim of textual distortion on my part puzzles me. My column never even mentioned Hostler’s “Oh, absolutely” reply to O’Reilly’s question, “You don’t believe as an American citizen that you should give anyone the presumption of innocence. Is that what you’re telling me?” I understood it, in fact, in exactly the same way as Barry did: Ms. Hostler was saying that yes, the courts should absolutely give the defendants the presumption of innocence. However, I don’t think she would say the same of the court of public opinion. In fact, in the same interview, there was this exchange:

O’REILLY: All right, but you said, “Let’s be clear that we won’t know what — that they’re not guilty based on the outcome in court. That won’t tell us anything.”

JOHNSON-HOSTLER: Right.

Now, I will agree that in some cases it is entirely appropriate for the court of public opinion to find someone guilty before they have been found guilty in a court of law: for instance, if there is such clear evidence of guilt that conviction is only a matter of time. And I think there are cases in which there is so obvious a miscarriage of justice that there is nothing wrong with holding someone guilty in the court of public opinion *cough cough* O.J. Simpson *cough cough* despite a “not guilty” verdict.

However, Hostler seems to be saying that even if the Duke lacrosse players are acquitted in a case where the evidence is very much in dispute, the shadow of guilt in the court of public opinion should linger over them.

Note, too, that while she says the particular individuals who are accused may not be guilty of rape, someone in the house unquestionably is. This despite the fact that according to the police report, the woman initially said she was only groped, not raped.

As for the advocate’s role: yes, of course sexual assault victim advocates should provide support and aid to anyone who reports a rape. But should they continue to back a woman’s claims unconditionally even if emerging facts and details cast very serious doubt on her credibility? Should they support a woman who calls herself a rape victim because she had sex with her boyfriend after he threatened to break up with her? or because, after she told her date early in the evening that she didn’t want to have sex, she got tipsy and they started making out and one thing led to another? Should they denounced the “abusive” tactics of a defense attorney who brings up the complainant’s history of false reports of rape? Should they write letters to the editor complaining about the overly prominent coverage given a false accusation? Should they, when a woman recants a story of being raped, argue — with no evidence — that she may have been raped after all and may have recanted under pressure or out of fear? Should they go on national TV and make the claim that they have never seen a woman who said she was raped but really hadn’t been?

My answer to all of the above would be “no.”

And, while I certainly agree that rape crisis counselors should not be skeptical toward those seeking help, I don’t think it would hurt for them to develop some guidelines to help identify false allegations. In many cases, the women who make such allegations are not malicious but deeply troubled individuals who need help — just not the kind of help that includes complete support for their claims.

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