He Said/She Said, Save Our Sons, and the Stories that Stick: Part One of a Two-Part Series of Columns

Posted in: Criminal Law

This past August, the Title IX regulations released by the U.S. Department of Education went into effect. These regulations, among other things, give a nudge to a number of institutions to apply a higher burden of proof to determinations of sexual harassment or assault. A school could continue to use the “preponderance of the evidence” burden that many have employed for about a decade only if the school used preponderance for conduct code violations that do not involve sexual harassment but that impose the same maximum disciplinary sanction.

Some have celebrated the prospect of a higher standard of proof because it acknowledges how much a respondent stands to lose if a hearing panel concludes that he engaged in gender-motivated misconduct. In this column, I will examine a broader issue that dovetails with the burden of proof controversy, namely, whether a trial for acquaintance rape or its Title IX analogue is more likely than other kinds of criminal prosecutions or civil processes to feature false accusations. The reason that President Trump’s Education Secretary and others have sought to make a higher burden (“clear and convincing evidence”) the path of least resistance for schools is perhaps the perception that a complainant’s testimony alone is an insufficient basis for “convicting” and punishing an accused. Another way of making the point would be to describe such cases as “he said/she said.”

The implication is that the testimonies of the two witnesses (“he” and “she”) are of about equal value. With a preponderance standard, a woman’s word alone could easily and unjustly result in liability or punishment, just by random chance. For every ten complaints, five or six might go with “he said,” and four or five with “she said.”

Save Our Sons

Critics have expressed outrage at the preponderance standard that President Obama’s Education Department, in a “Dear Colleague” letter, instructed schools to apply to Title IX proceedings. One organization that exemplifies that outrage is Save Our Sons (“SOS”). This organization regards President Obama’s Title IX “Dear Colleague” letter as a straightforward denial of due process to accused students. SOS members believe that many completely innocent men are unjustly suffering the stigma and penalties that attach to perpetrators of gendered misconduct. SOS has accordingly favored measures that might make “conviction” more difficult. Though subtle, their message can sometimes sound like a claim that women easily and readily invent false allegations in this arena, and the adjudication process ought accordingly to aim at greeting a complaint with maximal skepticism and a serious effort to uncover lying complainants.

The “he said/she said” argument, though popular, is logically faulty. Just because each side puts on one witness does not mean that the two sides are equal in strength or credibility.

Imagine a man facing an accusation of rape. He, the respondent, goes to court. What will he say at trial, if anything? We can all guess that he will say he is innocent. If he is sophisticated, he will add that rape is a terrible crime, and he believes that actual rapists should be punished severely. But the important part is that he says, “I didn’t do it.” That is the script of anyone hauled into court on a criminal (or criminal-like) charge. He might be as innocent as he claims. Or he might be guilty. But his answer does not vary.

The response of an accused to the accusation is overdetermined. The late Columbia Professor Richard Uviller said that “[a]ll guilty defendants who choose to testify will lie on the stand about anything that might improve their chances and about which they imagine they can be persuasive.” Innocent people will presumably declare their innocence as well, of course. The phrase “I am innocent” is thus not itself incriminating, but it likewise is not especially exonerating either. Everyone should have the chance to answer charges in their own words, but the answers they give may be entitled to little weight.

To offer a silly analogy, assume that my dog K will eat any dogfood I put into his bowl. However bland the food, K will exhibit canine ecstasy and proceed to gobble up every last bite, wagging his tail the whole time. If that is the case, then K’s decision to eat brand X dogfood tells us almost nothing about the quality of brand X. Other more discerning dogs might like it, but they also might not. I might nonetheless want to tell people how much K liked the dogfood, and I have the right to do so. But that doesn’t mean people learn anything from this revelation.

The same can be said of the “rape denial” script of the criminal defendant or Title IX respondent. The accusation comes and predictably triggers an assertion of innocence by the accused. We know little more, however, than we did before we heard the assertion. Juries in general understand the motivations of an accused criminal (or presumably, an accused student perpetrator as well) to distort. That is perhaps why, in a study of the impact of learning about the defendant’s prior criminal convictions on jurors’ assessments of his credibility, the defendant turned out to have less credibility than all of the other witnesses, so little, in fact, that the introduction of prior convictions had no effect on it.

You might be thinking, “Well, the accuser has a script too, right?” Well, she does, but it works somewhat differently. The accused rapist has a script in which he responds to the accusation with a “not guilty” plea or an assertion of innocence, but the important moment for the accuser occurs long before her script is delivered. Hers might be called the sexual assault script, and it is far less determinate than the rape accusation script. In the sexual assault script, something happens to the complainant, such as a sexual assault or some other event. She then has the option of coming forward and accusing her assailant of sexual assault. She plainly has another alternative as well, though. She can keep her experience (or non-experience) to herself, as a very large number of potential complainants do. By choosing instead to come forward, the complainant selects a proceeding that could be very unpleasant and stigmatizing when she could have completely opted out of it. For the respondent, opting out is not an available alternative.

The complainant voluntarily sets the proceeding in motion. The respondent may only react to the accusation, and however he might feel, his reaction is constrained and predictable; he will say something along the lines of “I don’t understand why XX is saying I did that to her. I would never hurt her, and I have never hurt any woman. I wouldn’t. Ask anybody who knows me. I’m not that kind of person. XX, please tell me why you’re doing this, and we can figure things out. I cannot believe this is happening. It’s just wrong, that’s all. I’m not a perfect guy, far from it, but I didn’t do what she is saying I did. Why would she say that?”

The Title IX respondent’s audience may feel moved by his protestations of innocence, if he is a skilled speaker or actor. But the statement “I am innocent” seems unlikely to carry much information about whether he did or did not commit the charged offense. Indeed, if he is guilty, few of us would blame him for nonetheless saying he is innocent. It is what we expect the accused to say, and as part of the same society, he knows that we expect it. He is simply following his script.

The “he said/she said” framing of acquaintance rape accusation and denial has a “stickiness” that has allowed it to survive for a very, very long time. And it may have less to do with believing the accused than it does with disbelieving the accuser. To see the distortion at work, consider some other types of cases in which alleged perpetrators and victims testify: armed robbery, assault by a stranger, rape by a stranger, and burglary by a stranger.

Say Jane Doe testifies that John Roe robbed her at gunpoint on a quiet street with no potential (uninvolved) witnesses. John then takes the stand and testifies that he did not rob Jane and that he has no idea what Jane is talking about. Assume no alibi witnesses, no photographic evidence, and no other testimony. Is this a “he said/she said” case? No. Most juries will have no trouble finding John guilty beyond a reasonable doubt, despite the fact that two witnesses testified to contradictory facts, and neither side offered corroboration with testimony or physical evidence. No one will infer that Jane must be lying or crazy or otherwise mysteriously inclined to distortion. Jane could easily make an identification mistake, as so many do, but jurors don’t seem to worry that much about this possibility. The same is true for stranger rapes. You will rarely hear the expression “he said/she said,” which implies a dead heat between the two sides, in connection with these other crimes.

Why is that? It is because no one can think of any reason for Jane to falsely accuse John Roe of robbing her at gunpoint. We do not think people do that sort of thing. Even if there is no evidence other than Jane’s eye-witness testimony, we would not treat the case as a draw. If the defendant can come forward with evidence about Jane’s insanity or her obsession with John, then sure, that might refute what we previously believed about the robbery. But that simply means that the (permissive) presumption in favor of Jane’s story, once we hear it, is rebuttable. In robbery prosecutions, the jury normally presumes that the victim, who may be the only source of answers, is telling the truth in saying that the respondent/criminal defendant is guilty. The jury bases this presumption on experience, and it seems reasonable to do so, putting aside concerns about erroneous identifications.

Why, then, do we not only encounter jury skepticism but righteous demands for skepticism from various quarters when a rape case or a Title IX sexual assault claim arises? I propose that it has something to do with the stories or narratives we have long cherished regarding women and men, stories and narratives that are therefore quite sticky and difficult to dislodge. A very adhesive stereotype about women is that “hell hath no fury like a woman scorned.” If we run with this narrative, then we believe that when a man rejects a woman, whether by dumping her outright or by cheating on her, the woman becomes enraged. A man who felt enraged might, in his gender narrative, kill the woman and her paramour, a response to the provocation of infidelity that is so scripted that it transforms the crime of murder into manslaughter. Part of what makes Iago the true villain of Othello is the fact that Othello, in killing Desdemona for her imagined infidelity, was doing what everyone (including Iago) would expect him to do.

A woman, by contrast, will invent a story in which her partner raped her. This female penalty for rejection would work well because first, who could prove her wrong? And second, believing that the man raped the woman means crediting the claim that far from rejecting her, the man was extremely interested in her, was so focused on her that he could not keep his hands to himself. In both gendered narratives, the injured party (the cuckolded man or the rejected woman) achieves a revenge that precludes any further offense. And because men are more inclined to displays of physical strength than are women, it makes intuitive sense that a man would take the life of “his” woman while a woman would “cry rape.”

In Part Two of this series, I suggest that these stereotypical narratives may account for people’s willingness to regard an acquaintance rape case as “he said/she said.”

Posted in: Criminal Law, Education

Tags: Rape, Title IX

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