Sunday, September 23, 2018

Women Refuse To Report Rape--But The "System" Is NOT To Blame

The"#MeToo" movement shone a media spotlight on workplace sexual harassment. Now Christine Blasey Ford is shining a media spotlight on sexual assault.  Social media even has a hashtag, "#WhyIDidntReport", as women share unreported sexual assault experiences.

What are the facts about reporting of rape and the prosecution of rape?
  1. According to RAINN (Rape And Incest National Network), only 310 of every 1,000 rapes are reported. For comparison, 627 of every 1,000 assaults are reported, and 619 out of every 1,000 robberies are reported. 
  2. Of 310 reported rapes, 57 (20%) result in an arrest, and 11 (3.5%) proceed to prosecution. For robberies, the percentages are 27% and 6%, respectively, and for assaults the percentages are 40.7% and 16.7%, respectively.
  3. Of every 11 prosecutions for rape, 7, or 63.6%, result in conviction. The conviction rates for robberies and assaults are 59.4% and 39%, respectively.
  4. The average sentence for sexual assault is between 8 and 9 years, nationwide (Note: this is a broad average and does not distinguish among categories of sexual assault).
  5. The reasons given for not reporting rape and sexual assault generally are as follows:
    • 20% feared retaliation
    • 13% believed the police would not do anything to help
    • 13% believed it was a personal matter
    • 8% reported to a different official
    • 8% believed it was not important enough to report
    • 7% did not want to get the perpetrator in trouble
    • 2% believed the police could not do anything to help
    • 30% gave another reason, or did not cite one reason
The reasons for not reporting deserve discussion. 

48% of unreported rapes are for reasons unique to the victim. 8% of unreported rapes are reported to someone besides law enforcement. Together, over half of unreported rapes are a simple choice not to report them to police. 

Only 15% of unreported rapes are because the victim believes the police can or will do nothing about the crime. 

These statistics prove that most who do not report a rape do not believe the legal system will ignore them.

The facts prove a prosecution for rape is more likely to result in a conviction than one for either robbery or assault. With a decade of incarceration the likely result from such a conviction, the facts also prove the prosecution of rape is taken very seriously in this country. 

The facts also prove that building the case for prosecution is far more problematic for rape than for robbery or assault. Rape cases are simply more difficult than robbery or assault cases. Still, when people make a credible case for their accusations of rape, they are the most likely of crime victims to see justice done.

Here we must acknowledge a fundamental truth: our criminal justice system is not an arbiter of truth. It is not intended to be. Our entire legal system focuses on two outcomes at trial: proven and unproven. 

This is why criminal verdicts are returned as either "guilty" or "not guilty". The verdict does not offer any commentary on the truth of a charge, merely on the evidence given. As David French points out in the National Review:
Anyone who tells you that we can statistically peg the number of “false” rape claims is peddling a fatally flawed statistic. There’s a simple reason why: Our system does not adjudicate whether a claim is true or false. It adjudicates burdens of proof. 
French highlights a study showing that 44.9% of reported rape cases were classified as "Case Did Not Proceed", the criteria for which were defined as follows:
This classification was applied if the report of a sexual assault did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault).
If one excludes cases that did not proceed from the statistics, the percentages of rape reports leading to arrest and trial are higher than those for robbery. If we impute the reasons for non-reporting as potential reasons for victims withdrawing from the process, then half of the cases that do not proceed potentially are because the victim backs out. If we exclude half of the "do not proceed" cases from the statistics, the rape reports leading to arrest and trial are on par with robbery. By that measure, rape victims who report the crime to the police have the same expectation of justice as any other crime victim.

All this is speculation, but it serves to make clear a brutal reality about reporting rape: the lack of criminal sanction for rape stems mainly from the choices of rape victims either to not report or to not proceed. 

The choice to report a crime is a personal choice. The essence of liberty is choice. The essence of freedom is choice. A free people must be allowed to make choices for themselves, including the choice to report or not report rape. 

However, no choice is free from consequence, good and bad. Consequence always proceeds from choice. People must choose whether or not to report rape, but that choice determine the consequences they will have.

When rapes are reported, the system does respond. Even those who choose not to report acknowledge this. When there is evidence, the system works more for rape victims than for other victims of violent crime. The statistics prove this.

Another fact deserves mention: 0% of unreported crimes result in arrests, trials, or convictions. When crimes are not reported, the guilty are guaranteed to go free; with crimes are reported, their odds of escaping incarceration decline significantly. This is true even for rape cases. 

When people refuse to report rape and then proclaim that "the system" is somehow broken, they argue an absurdity. Refusing to report rape--or any crime--prevents the legal system from working. Refusing to report gives the criminal a free pass, something the legal system would not do.

#WhyIDidntReport should really be #WhyIConsented.

Saturday, September 22, 2018

What Will Democrats Do To Give Christine Blasey Ford....Anything?

As of this writing, Christine Blasey Ford, who has accused Supreme Court nominee Judge Brett Kavanaugh of attempted rape when they were in high school, has yet to agree to testify before the Senate Judiciary Committee, despite Committee Chairman Senator Chuck Grassley repeatedly extending the window for her to make up her mind. It is far from certain that she will testify, given Senator Grassley's unwillingness to accede to certain demands, chiefly that she testify after Judge Kavanaugh and that other witnesses be subpoenaed as well, in advance of her testimony.

The potential outcomes are that she either will or will not testify.

(Update: sources close the Senate Judiciary Committee are reporting that Ms. Ford and Judge Kavanaugh have agreed to appear Thursday, 26 September 2018. Some details are still being worked at this time.)

If she testifies, Judge Kavanaugh will appear to rebut her claims and defend himself against her accusations. Whether Mark Judge, an high school friend of Judge Kavanaugh whom Ms. Ford places in the room when she was attacked is subpoenaed seems unlikely, although a compelling statement by Ms. Ford could cause the committee to call him and potentially others as witnesses. If, as seems likely based on news reporting thus far, Ms. Ford's testimony largely repeats the charge without adding new detail pointing to new witnesses or possible corroborations, after the testimony is taken Judge Kavanaugh's nomination to the Supreme Court will likely proceed out of committee on a strict party line vote, and if he is confirmed it will likely again be on a strict party line vote.

If she does not testify, then Judge Kavanaugh's nomination appear to be a foregone conclusion. Certainly Senate Majority Leader Mitch McConnell feels quite confident about his chances before the full Senate.

Against the backdrop of these scenarios, with the strong probability that Judge Kavanaugh will be confirmed regardless of what she does, one can forgive Ms. Ford for not wanting to appear. A sense of futility would quite a normal state of mind under the circumstances.

Yet futility should be accompanied by frustration, for it need never have come down to this binary choice.
  • Senator Diane Feinstein did not have to withhold Ms. Ford's letter for six weeks, then leak its existence to the media rather than forwarding it to either the committee or to the FBI for inclusion in their background check on Judge Kavanaugh.
  • Democrats did not have make the ludicrous demand that the FBI investigate Ms Ford's claim, conveniently overlooking the jurisdictional reality that the FBI does not investigate sexual assault claims, and the procedure reality that the FBI does not make determinations of witness credibility when conducting background checks. As of this writing, the number of Democrats who have requested the Maryland State Police and the Maryland Attorney General investigate her accusation remains exactly zero.
  • Ms. Ford's attorney, Democrat activist Debra Katz, did not have to issue a serious of demands before Ms. Ford would deign to appear before the committee, demands which are not merely presumptuous in the extreme, but also fly directly in the face of American legal tradition--namely, that Judge Kavanaugh testify before Ms. Ford and not after, thus preventing him from effectively confronting her allegations.
  • Senator Kirsten Gillibrand did not have to absurdly and fatuously suggest that setting a time for a hearing where Ms. Ford could give her testimony and present her case against Judge Kavanaugh was, somehow, "silencing" her.
What should have happened? 

When Democrat politicians first met with Christine Ford and arranged for Debra Katz to represent her in this matter (it is no great leap to presume that Katz comes in via Senator Feinstein's office, given that Ms. Katz is a Beltway insider), they should have been preparing her from that point forward to testify. Senator Feinstein should have shared Ms. Ford's letter with the FBI immediately, allowing for Ms. Ford to be interviewed in private and for Judge Kavanaugh to respond in private, sparing both the public spectacle of the current media feeding frenzy. Senator Feinstein should have informed the Judiciary Committee of Ms. Ford's allegations, so that they could have been addressed in the regular order.

No Republican had a hand in any of these failures by Democrats. These are the results of choices made by Democrats and Democrats alone.

Further, to suggest, as Senator Gillibrand did, that Ms. Ford should be believed on the basis of her statement alone is monstrous. To believe blindly is to not care, neither about truth nor about Ms. Ford herself. Crime victims--assault victims in particular--get details wrong in almost every instance, including the identity of the perpetrator.  Add in the muddling influence of alcohol and the effect of time on memory, and the potential for error in her story increases exponentially. It is not a questioning of Ms. Ford's veracity to inquire skeptically as to her accuracy. 

Rather, to ignore her accuracy is to say her veracity is irrelevant. To ignore her accuracy is to say that it matters not what happened to her, it matters only that she is a woman, and that as a woman she is a victim of...something. To ignore her accuracy and proceed to destroy Judge Kavanaugh's life and reputation is to say it does not matter if her attacker receives a just penalty for his behavior.

To ignore Ms. Ford's accuracy is to ignore Ms. Ford. To ignore Ms. Ford's accuracy is to ignore Ms. Ford's trauma. It is as simple as that--and that is not justice by any measure.

What have the Republicans done in response to Ms. Ford's accusations?

Republican Senator Chuck Grassley, as chairman of the Judiciary Committee, has set a date for a hearing, where both Ms. Ford and Judge Kavanaugh will appear (though they would not be seated side by side, as some media outlets have reported). The agenda is for Ms. Ford to give her recitation of what happened to her 36 years ago, and for Judge Kavanaugh to respond in his own defense.  It is not a trial, and the committee is not a court, but the testimonies will be under oath, penalties of perjury would attach, and there would be a transcript of the proceedings. If relevant questions of fact arise during the proceedings, the committee has the ability to refer those questions to the FBI for further investigation as appropriate. The hearing, should it occur, potentially is the start of the investigation the Democrats have cried out for even as they have obstructed and prevented it.

That is what the Republicans have offered, and apparently in good faith. What have the Democrats offered? In encouraging Ms. Ford to not testify, what closure do they propose to give her? While they keep her name and her trauma in the headlines and on the news shows, seeking maximum political advantage against Republicans in the upcoming mid-terms, what solace do they provide?

While the Republicans are doing their utmost to hear Ms. Ford, and to give Ms. Ford the platform she needs, the Democrats are doing their utmost to ignore Ms. Ford. The Democrats have weaponized her claim against the Republicans, but have done nothing to bring her any healing or any closure. They have taken her claim and left her behind.

We do not at this time know--and quite possibly we may not be able to know--if it was Judge Kavanaugh who attempted to violate Ms. Ford thirty-six years ago. We do know who is violating Ms. Ford today: Senator Diane Feinstein, Senator Kirsten Gillibrand, Senator Charles Schumer, attorney Debra Katz....Democrats all.