Evaluating a Rape List

Posted in: Criminal Law

A group of anonymous students (or alleged students) at the University of Washington (“UW”) last year created an unusual wiki document. In it, people could make accusations of rape or sexual abuse of varying degrees by posting the names of alleged assailants. The web page, called “Make Them Scared,” is public, but the accusers’ names are not. The people who run the site have more recently added some minimal quality control, verifying the identities of the accusers and no longer accepting anonymous allegations. The existence of this list raises important questions about how our society handles sexual assault and about the role of due process in the resolution of serious conflicts.

Why Have a List?

Many people who hear about the existence of the rape list have an immediate, strong reaction to it, whether positive or negative. I have asked a number of people what they thought of the idea, and several surprised me in one direction or the other. A rape list of this sort offers a very different approach to violent crime from that available in our existing criminal justice system: a shaming penalty without a fact-finding body.

One reason to have a rape list is that most rapes are unreported. Women (and other sexual assault victims) avoid going to the police because they believe that the costs and risks associated with doing so outweigh the potential benefits. Being a rape victim carries a stigma, the sort of stigma that harks back to a time when men and women alike regarded unchaste women as sullied, polluted, and contaminated. Only now, the stigmatized make up a narrower category that no longer paints all unmarried nonvirgins with the same brush. Members of this smaller group include sex workers, rape victims, women who appear indiscriminate in their choice of sex partner, and women who have had one or more abortions. By coming forward to bring an accusation, a woman thus “outs” herself as belonging to this category, and that status stays with her even if—perhaps especially if—everyone rejects her story.

The costs to a victim of coming forward, moreover, extend beyond her diminished status. She can expect to encounter personal questions about her romantic engagements and sex life at the police station. While police normally treat a victim-witness with a presumption of truth, they often fail to apply this presumption to people who accuse an acquaintance of sexual assault. A victim of acquaintance rape can expect police to behave in a skeptical fashion and to demand that the victim produce corroboration for her accusation.

Clearing Up Two Misconceptions

At this point, I should put to rest two very common types of confusion about such cases. The first holds that police officers and juries should reject the statements of a sexual assault complainant, because the presumption of innocence requires as much. This is false. Believing the statements of an eyewitness—which a victim often is—does not violate the presumption of innocence; the presumption—which applies only to the criminal trial, in any event—requires that there be enough evidence to prove guilt beyond a reasonable doubt before the jury can bring back a conviction.

The presumption does not bind police at all. Their job is to listen to witnesses and investigate. The best way to listen to someone who is talking to you is to assume that she is telling you the truth unless and until you encounter a good reason to doubt what she is saying.

The second type of confusion holds that absent corroboration, a victim’s testimony about an acquaintance rape is insufficient evidence to “prove” guilt. That too is false. If a witness takes the stand and testifies that a defendant sexually assaulted her, and her story is coherent and plausible and stands up to (relevant) cross-examination, then the jury may believe that testimony and find the defendant guilty on the basis of it, with or without corroboration.

Rape trials once required corroboration from the government, because the law presumed that women who complained of rape were lying. That legal principle has given way to a less openly misogynist approach, one in which the legal rules treat eyewitness testimony about sexual assault as adequate—at least in theory—even in the absence of corroboration.

What Motivates the List?

A woman thinking about coming forward to complain about rape will likely take into account the loss of privacy, the way that police and prosecutors might treat her, and the probability that her case will either never come before a jury or end in an acquittal because jurors still hold fast to the myth that women routinely lie about rape. Once a woman thinks about all of this, she could understandably decide not to come forward. That decision, in turn, might leave her with a sense of rage, because her assailant—whom she knows and could easily identify—will face no consequences for attacking her; despair, because there is nothing to stop her attacker from sexually assaulting other women; and fear, because her assailant and others like him confront no deterrent to sexually assaulting her, as a lack of any accountability predictably leads to recidivism.

The foregoing seeming digression describing part of the journey of the rape victim clarifies the various needs that go unmet under the existing regime. Other crime victims who can identify their attackers face fewer obstacles. To paraphrase one sex crimes prosecutor, we tend not to hear about “he said/she said muggings.” We can now understand what might make the rape list as appealing as it is to some people.

The list provides retribution against men who commit sexual assault. When other people look at the list and see a man’s name there, they will avoid him and thereby frustrate his desire for friendship, intimacy, and possibly employment. The list offers a do-it-yourself form of punishment for rapists.

The list also allows the victim to warn other women about the man who raped her. By placing his name there, she tells anyone who consults the list to steer clear of him. It is otherwise too easy to gain people’s trust by simply acting like an innocent so that no one suspects.

Finally, the list gives the victim some peace of mind. The assailant will likely stay away from her and from other potential victims for fear of being named more than once. And other aspiring sexual assailants might restrain themselves as well, because their names too could wind up listed. Once a man lands there repeatedly, moreover, police might take an interest in investigating, because they could regard that as corroboration.

What’s Wrong With the List?

Describing the problems with the rape list is easier in some ways than defending it. The rape list provides no due process for the person whom someone accuses of sexual assault. The innocent accused has no name to associate with the accusation, so he cannot provide an alibi or even demonstrate that he was never in the company of the accuser. With no name, the accused also cannot show that the accuser is by character a liar or has made false accusations in the past. And he cannot investigate by talking to her friends to find out whether she confessed to them that she was going to falsely implicate him.

Furthermore, even if the accused found out the accuser’s identity and was able to demonstrate his innocence, his name might by then have circulated around the world. Assuming the proprietors of the list would take a name down under such circumstances, as the keepers of the UW list claim that they would, many people would likely already have his name on their radar and would want nothing to do with him. He would not have the opportunity to say “I proved myself innocent” or even to prove his innocence directly to this audience, because they would have lost interest in interacting with him after seeing his name on the list.

If anyone ever falsely accuses another of sexual assault, the innocent accused who confronts a rape list will have landed in a Kafkaesque zone where the injustices have flipped. Instead of the rapist having no accountability, the accuser in this universe lacks all accountability. In the ordinary world, publishing a false accusation would qualify as libel against the accused and might result in a hefty monetary judgment. But with a list of names in which all accusers remain anonymous, the law of defamation may have little to offer the wrongly accused innocent.

To make things even worse, although there is little reason to expect many false rape accusations in the real world, the anonymous world is quite different. People who hate a particular man could put his name on the rape list for any number of reasons. Men might do so to eliminate him from the pool of dating competition or to carry out a grudge against him. Women might put his name on the list for different reasons. Perhaps they are competing with him for a job. Or maybe they heard something third-hand about him forcing himself on someone, so they figure they’ll do a good deed. Note that I have not included the nonsense that people once did and still say motivates women to make false accusations—trying to preserve their reputation for chastity. At the present time, rape is far more stigmatizing than a lack of chastity. Indeed, celibacy may currently be more stigmatized than unchastity as well.

With anonymous accusations, the inhibiting pressures of having to face the falsely accused, of having to deal with one’s own history of lying, and of having to pay if the accused proves that he is innocent, all vanish. In this context, it seems unremarkable to predict that there will be false accusations, that innocent names will appear on the list.

What To Do?

So what can we do? One answer is to say that the presumption of innocence trumps the needs of the victim, but that answer is too pat. The list, after all, is not a criminal prosecution and will not result in government-ordered incarceration or other official disabilities. The damage is all private, in the sense of coming from somewhere other than the government. A determination that we either do or do not consider the list normatively justified should rest on something other than the official “presumption of innocence” that applies if and only if one is on trial for a crime.

One approach would be to tweak the rape list process. We might require that the accuser sign an affidavit for the keepers of the list swearing under penalty of perjury that her accusation is really and truly accurate. In addition or alternatively, we could ask that she provide her name to the public. Each of these limits could help to deter lies, but each would also disrupt some of what makes the list so attractive to truthful accusers who want to maintain their anonymity.

Another way of thinking about the list, however, is as a symptom rather than as either a cure or a disease. It is like coat hanger abortions in that respect. The right reaction would not be to swab hangers with alcohol. It would be to allow abortion providers to help women end unwanted pregnancies. Or, if one is against abortion, then I suppose it would be to provide sufficient financial assistance to pregnant women who have no intention of raising their babies.

The list tells us that rape victims are not receiving the justice to which they are entitled in the courthouse. When police and prosecutors repeatedly send rape victims away, they convey to them the knowledge that vigilantism is the only way to hold their attackers responsible for what they have done. Vigilantism can take the form of physical violence—like hiring someone to severely beat the accused—or it can take the form of something less overtly violent, like the placement of a name on a list.

If the rape list sounds like a bad idea, that is because it is a bad idea. Anonymous shaming is not a civilized way to handle misconduct. But it may be the best that victims currently have available to them. It may be the only realistic route to justice at the moment, and we cannot be surprised when victims take it with gratitude.

Until the system begins to prosecute and convict acquaintance rapists in earnest, there will be lists. There was one on bathroom walls at Brown University in the early 1990s, and there is now, almost thirty years later, a website at UW. It would be ironic but welcome if the existence of the lawless list—and its likely proliferation beyond the confines of UW—was what motivated the system to finally begin to take charges of acquaintance rape seriously.

Posted in: Criminal Law

Tags: justice, Legal, Rape

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