False allegations and attrition

[Ivor the Engineer]

I posted something about that 40% fallse allegations figure, but it might have been on one of he other threads.

ETA: Found it:
http://www.internationalskeptics.co...234127&highlight=false+allegation#post4234127

So a polygraph is supposed to have scared dozens of women into not only retracting their claims of being raped, but making up a story of what really happened?

My own finger-in-the-air-estimate is false rape allegations account for about 10% of those investigated by the police, but I don't have much confidence in it.

 

[gumboot]

How do you think the two situations are significantly different as far as ensuring informed consent can be and has been obtained?

Well the main reason I think they're enormously different is that the woman is not consenting to let someone do something to her, let alone do something potentially dangerous or even fatal. In the case of sex she is herself agreeing to partake in something.

As for informed consent... I do not believe informed consent is required for legal sexual intercourse. The law only requires consent. I'm not sure how you would even go about defining what "informed" consent would be in the case of sex. Most people, their first time, have a very poor grasp of what they're getting themselves into.

The gulf between "I will allow you to put me under anesthetic, cut me open, and operate on my body" and "I want to have sex with you" is so vast it's really not even worth comparing them.

 

[gumboot]

I posted something about that 40% fallse allegations figure, but it might have been on one of he other threads.

ETA: Found it:
http://www.internationalskeptics.co...234127&highlight=false+allegation#post4234127

That article has a rather grossly incorrect representation of the study. I'm inclined to think that the writer either A) didn't actually read the study or B) Has some sort of agenda that requires them to deny the existence of false allegations.

The line:

Thus, it is not surprising that 41% of the women in this study recanted their rape allegations upon confrontation with such a test, even though it is unclear whether these women falsely recanted true allegations in an effort to escape a distressing and distrusting situation.

Gives away their dishonesty because the writers of the report go to great lengths to address this precise point. The women in question didn't just recant their allegations (and not all recanted upon being confronted with a polygraph test), they all provided the reasoning behind their false allegation, and the report spends a lot of time analysing the given reasons for the false allegations.

Further, the people conducting the study chose the place they did specifically because the regulations directing rape investigation did not allow police to behave in a distrusting or disbelieving way towards complainants. Even if they absolutely believed the complaint was false and had compelling reasons for doing so, their own regulations required them to treat the complaint as genuine until such time as the complainant said otherwise.

 

[Ivor the Engineer]

Well the main reason I think they're enormously different is that the woman is not consenting to let someone do something to her, let alone do something potentially dangerous or even fatal. In the case of sex she is herself agreeing to partake in something.

Tell that to men and women who have contract STD's such as HepB and HIV.

As for informed consent... I do not believe informed consent is required for legal sexual intercourse. The law only requires consent. I'm not sure how you would even go about defining what "informed" consent would be in the case of sex. Most people, their first time, have a very poor grasp of what they're getting themselves into.

I agree it's tricky. Being drunk makes it much more difficult.

The gulf between "I will allow you to put me under anesthetic, cut me open, and operate on my body" and "I want to have sex with you" is so vast it's really not even worth comparing them.

Just as well I'm not. But it does make a good strawman.

Invasive procedures include rectal and vaginal exams. Having a physician's fingers inserted in either cavity is no more dangerous than man inserting his penis. In fact, I'd say the risks are probably lower, since proper hygiene and lubricant is likely to be used by a physician.

 

[Francesca R]

It has already been pointed out that suppressing the name of the defendant does not affect similar evidence because the prosecution and the court know the identity of the defendant and so can bring up similar evidence.

Not if it is not in the public record.

Once the trial is over they can be named

You're saying that you don't have an issue with disclosing the name of a defendant after they are acquitted? I would have thought that that would not change the situation you are concerned about.

and other victims can come forward then

That would be a bit late if the defendant is acquitted, but might not have been with the additional evidence. Also I submit that "Person A was tried and acquitted of rape" is not going to encourage futher genuine reports, whereas "Person A is on trial for rape" will.

People coming forward during the trial with their own allegations could prejudice the case before the courts.

It could encourage false reports yes. This has to be set against the idea that it could encourage genuine but withheld reports. I would not assume that the identity of someone on trial should be withheld because the bad outcome of new false reports is a greater risk than the good outcome of new genuine reports. None of the evidence on false allegations--even that which purports to show it at 40%--would argue that either.

Not only that, but if media interest in the case is strong enough it can result in the judge dismissing the case due to the inability to form an impartial jury. I am sure you'll agree that is not in the public's interest.

No it is not. If that happened in a "lot" of cases it would be reason to examine this. Again it should be set against the positive benefits to justice of public disclosure.

 

[FSM]

What an interesting thread!

I was a prosecutor for several years and worked mostly with sexual assault victims, many of whom were children. I was also the screening attorney, which meant it was my job to evaluate each case to determine if the evidence was sufficient enough to support filing a bill of information or indictment. That standard ethically for prosecutors is probable cause, which most experts say is the 'more likely than not' standard. Good solid uncontroverted consistent testimony was just as valuable and legally is to be considered just as valuable as CSI fibers and samples-- getting good testable samples with great results is much more difficult than it seems on TV... trust me.

I can tell you personally that I screened approximately 4000 cases in my tenure, I had about an 60-70% acceptance rate and about and 85% conviction rate.

None of that means crap.

What I saw were victims, struggling with emotional trauma and grief, having to decide whether to come into a crowded courtroom and talk about the worst thing that ever happened to them. Discuss all the things you all have brought up here... was she asking for it? Was she drunk? How short was her skirt? I don't see DNA--- I can't believe ANYTHING without DNA... blahblahblah.

The vast majority of your "false allegations" and your "victim admitted they lied" cases were ones just like I saw, where the victim wanted to go on with thier lives and not have to go into court and they thought lying would be the quickest, best way to get rid of the case. And yeah, they are liars, they lied that it DIDN'T happen a hell of a lot more than I ever saw women lying about it happening. (Which actually DID occur, but only a very few times.)

I know my sample is small and I suppose ancedotal, since it was just me and my experience working in a prosecutor's office, but there you go.

Oh, and don't get me started on kids who LIE about abuse...

In 1983, Roland Summit, a psychiatrist, published a formal description of how
sexually abused children disclose abuse. The purpose of this model, termed child
sexual abuse accommodation syndrome (CSAAS),1 was to outline for clinicians
why child victims of intrafamilial abuse may be reluctant to disclose abuse.2
Summit’s model included five components: (a) secrecy; (b) helplessness; (c)
entrapment and accommodation; (d) delayed, conflicted, and unconvincing disclosures;
and (e) retraction of disclosure. Summit argued that children who have
been sexually abused may respond with self-blame and self-doubt. They may fear
the perpetrator and the possible consequences of disclosure. Hence, in order to
survive sexual abuse by a trusted family member, children make accommodating
efforts to accept the abuse and to keep the abuse secret. Furthermore, according
to Summit (1983), when children do reveal their abuse, disclosure will be
incremental over time, a process that often includes outright denials and recantations
of prior disclosures, and then reinstatements of the abuse.

From http://www.apa.org/journals/features/law111194.pdf

 

[gumboot]

Tell that to men and women who have contract STD's such as HepB and HIV.

It's pretty well understood that having unprotected sex with strangers means risking contracting an STI. I believe, in New Zealand, that if you have unprotected sex with someone and you know you are HIV positive it is manslaughter and possibly murder. I am not sure if this has been tested for non-fatal STIs.

I agree it's tricky. Being drunk makes it much more difficult.

Being drunk makes no difference. If you cannot determine a threshold of what constitutes informed consent, arguing about whether a given person met that threshold is irrelevant. This is deviating back towards "drunk people cannot give consent" territory.

Just as well I'm not. But it does make a good strawman.

Invasive procedures include rectal and vaginal exams. Having a physician's fingers inserted in either cavity is no more dangerous than man inserting his penis. In fact, I'd say the risks are probably lower, since proper hygiene and lubricant is likely to be used by a physician.

Few points...

First, you appreciate the difference between agreeing to do something, and agreeing to have something done to you, yes? I raised this in my first reply but you have ignored it.

Second, I'm not sure how they do things where you are, but down this way vaginal exams are done with instruments, not fingers, and certainly can cause irreversible damage if done incorrectly.

Lastly, one of the reasons for informed consent in a medical context is to ensure the patient is confident the doctor actually knows what they're doing, and is conducting a necessary medical procedure and not using the excuse of a medical procedure to do something else (like molesting them).

 

[gumboot]

Not if it is not in the public record.

All court cases are in the public record in this country.

You're saying that you don't have an issue with disclosing the name of a defendant after they are acquitted? I would have thought that that would not change the situation you are concerned about.

You could be right, but I don't believe it would have the same negative impact.

That would be a bit late if the defendant is acquitted, but might not have been with the additional evidence. Also I submit that "Person A was tried and acquitted of rape" is not going to encourage futher genuine reports, whereas "Person A is on trial for rape" will.

I'm not so sure of that. It's an interesting question. However you seem to be talking about two different things here - one is victims of different crimes by the same defendant, the other is people with evidence of the crime being tried. Finding evidence of the crime being tried is the task of the police during their investigation.

It could encourage false reports yes. This has to be set against the idea that it could encourage genuine but withheld reports. I would not assume that the identity of someone on trial should be withheld because the bad outcome of new false reports is a greater risk than the good outcome of new genuine reports. None of the evidence on false allegations--even that which purports to show it at 40%--would argue that either.

Genuine reports can still be harmful. If the person has committed other crimes those crimes need to be tried separately. When a person goes on trial, it is not a case of determining if they are a rapist, but if they committed a specific rape (or rapes).

No it is not. If that happened in a "lot" of cases it would be reason to examine this. Again it should be set against the positive benefits to justice of public disclosure.

I agree.

 

[gumboot]

The vast majority of your "false allegations" and your "victim admitted they lied" cases were ones just like I saw, where the victim wanted to go on with thier lives and not have to go into court and they thought lying would be the quickest, best way to get rid of the case. And yeah, they are liars, they lied that it DIDN'T happen a hell of a lot more than I ever saw women lying about it happening.

Have you read the oft-linked report on false allegations?

Oh, and don't get me started on kids who LIE about abuse...

In 1983, Roland Summit, a psychiatrist, published a formal description of how
sexually abused children disclose abuse. The purpose of this model, termed child
sexual abuse accommodation syndrome (CSAAS),1 was to outline for clinicians
why child victims of intrafamilial abuse may be reluctant to disclose abuse.2
Summit’s model included five components: (a) secrecy; (b) helplessness; (c)
entrapment and accommodation; (d) delayed, conflicted, and unconvincing disclosures;
and (e) retraction of disclosure. Summit argued that children who have
been sexually abused may respond with self-blame and self-doubt. They may fear
the perpetrator and the possible consequences of disclosure. Hence, in order to
survive sexual abuse by a trusted family member, children make accommodating
efforts to accept the abuse and to keep the abuse secret. Furthermore, according
to Summit (1983), when children do reveal their abuse, disclosure will be
incremental over time, a process that often includes outright denials and recantations
of prior disclosures, and then reinstatements of the abuse.

From http://www.apa.org/journals/features/law111194.pdf

Um... hi 1980's... care to join us in the 21st Century? You may have missed it in the intervening 20 years, but Roland Summit's assessment of how children disclose sexual abuse has been found to be woefully incorrect. Studies in the UK and other places have found that children very rarely lie about sexual abuse or deny it when it has occurred, do not retract claims, and do not elaborate on what actually happened with fanciful and fantastical details.

The way children were handled in these cases is one of the greatest travesties of justice in the western world, and the methods employed are now thoroughly banned in civilised places. As for the "experts" like Roland Summit, their theories have been utterly rejected and found to be totally unfounded.

This, of course, all happened a good decade ago.

 

[Francesca R]

All court cases are in the public record in this country.

So acquitted defendants are named?

You could be right, but I don't believe it would have the same negative impact.

Have you been arguing that the names of defendants acquitted of rape charges should be withheld from public record after trials are over? I thought you were but am now in doubt.

 

[Ivor the Engineer]

It's pretty well understood that having unprotected sex with strangers means risking contracting an STI. I believe, in New Zealand, that if you have unprotected sex with someone and you know you are HIV positive it is manslaughter and possibly murder. I am not sure if this has been tested for non-fatal STIs.

So having sex with someone is quite risky. Probably best to make the decision when you're not drunk.

Being drunk makes no difference. If you cannot determine a threshold of what constitutes informed consent, arguing about whether a given person met that threshold is irrelevant. This is deviating back towards "drunk people cannot give consent" territory.

Well you could always use the "reasonable person" standard to what constitutes informed consent.

"Despite her inability to walk straight and her breath smelling of vomit, I believed she was perfectly capable of making an informed decision to have sex with me."

Few points...

First, you appreciate the difference between agreeing to do something, and agreeing to have something done to you, yes? I raised this in my first reply but you have ignored it.

Medical exams usually require participation by the patient. E.g., "Now if you'll just curl up on your left side Mr. Smith..."

Second, I'm not sure how they do things where you are, but down this way vaginal exams are done with instruments, not fingers, and certainly can cause irreversible damage if done incorrectly.

It depends on what is being tested for.

Lastly, one of the reasons for informed consent in a medical context is to ensure the patient is confident the doctor actually knows what they're doing, and is conducting a necessary medical procedure and not using the excuse of a medical procedure to do something else (like molesting them).

That is incorrect.

 

[gumboot]

So acquitted defendants are named?

Permanent name suppression can be granted, I believe, but it is very rare - less than 800 a year out of about 150,000 cases. That's total permanent name suppression, so includes victims, witnesses, and those convicted of crimes (most of the references I can find are for those convicted of crimes).

Have you been arguing that the names of defendants acquitted of rape charges should be withheld from public record after trials are over? I thought you were but am now in doubt.

No, I was arguing until the point of verdict only. Now that I have read the NZ Law Commission's recommendations I am thinking perhaps only until the full details of the case are presented in court.

 

[FSM]

Oh, and I hate to keep butting into the very good discussion going on here between Fran and gumboot, but as sort of an aside, there was a saying around the DA's office when I was there: "If you want to win some cases, try a homicide. If you want to learn how to lose gracefully, try a rape." My conviction rate above included cases when the defendant plead guilty.

My conviction rate on rape trials was about 20%.

And I believe with all my heart, in the cases that I lost, that the evidence was completely ignored. People who would have no problem believing testimony about a stolen car or a murder suddenly decided that someone's uncontroverted consistent testimony was insufficient to prove a case beyond a reasonable doubt.

I don't know what it is. I didn't understand it then and I still don't... but there is something about sex and rape that makes people a little crazy. It makes them prefer to believe that rape is rare and pretty much a big lie than to believe the truth: it is a huge social problem.

Also something interesting (well, okay, maybe just to me...) but the urban myths and superstitions in a DA's office are pervasive and one of those (which we used to try to keep secret from defense attorneys) was that you NEVER sit a woman on a rape case jury.

I have no idea if the stats support this or not, but I can tell you that most of the time when I had a woman on my jury (because you only have so many challenges to get rid of jurors and gender constitutionally isn't really an allowable challenge for cause...) she was the one gunning for not guilty.

Just an aside.

Now back to the regularly scheduled program.

 

[MattC]

Oh, and I hate to keep butting into the very good discussion going on here between Fran and gumboot, but as sort of an aside, there was a saying around the DA's office when I was there: "If you want to win some cases, try a homicide. If you want to learn how to lose gracefully, try a rape." My conviction rate above included cases when the defendant plead guilty.

My conviction rate on rape trials was about 20%.

This seems to be a few percentage points above average, judging by some brief numismatics done around the office.

And I believe with all my heart, in the cases that I lost, that the evidence was completely ignored. People who would have no problem believing testimony about a stolen car or a murder suddenly decided that someone's uncontroverted consistent testimony was insufficient to prove a case beyond a reasonable doubt.

Yes. I'm not sure if it isn't partly due to the CSI effect.

I don't know what it is. I didn't understand it then and I still don't... but there is something about sex and rape that makes people a little crazy. It makes them prefer to believe that rape is rare and pretty much a big lie than to believe the truth: it is a huge social problem.

Judging by the oft-vitriolic debate on the matter, this seems to be true BRD.

Also something interesting (well, okay, maybe just to me...) but the urban myths and superstitions in a DA's office are pervasive and one of those (which we used to try to keep secret from defense attorneys) was that you NEVER sit a woman on a rape case jury.

I have no idea if the stats support this or not, but I can tell you that most of the time when I had a woman on my jury (because you only have so many challenges to get rid of jurors and gender constitutionally isn't really an allowable challenge for cause...) she was the one gunning for not guilty.

Just an aside.

Now back to the regularly scheduled program.

I've looked into a few studies dealing with the admittedly very curious behavior of women on rape case juries. While no general behavioral pattern emerges, the safest conjecture is that for women on the issue there is no grey area - it either matches or does not match their preconceived ideas of what rape is, and they vote accordingly.

This seems to hold true throughout these threads as well.

~ Matt

 

[FSM]

Have you read the oft-linked report on false allegations?






Um... hi 1980's... care to join us in the 21st Century? You may have missed it in the intervening 20 years, but Roland Summit's assessment of how children disclose sexual abuse has been found to be woefully incorrect. Studies in the UK and other places have found that children very rarely lie about sexual abuse or deny it when it has occurred, do not retract claims, and do not elaborate on what actually happened with fanciful and fantastical details.

The way children were handled in these cases is one of the greatest travesties of justice in the western world, and the methods employed are now thoroughly banned in civilised places. As for the "experts" like Roland Summit, their theories have been utterly rejected and found to be totally unfounded.

This, of course, all happened a good decade ago.

Yes, I've read the oft-linked studies.

Did you read the link I gave you which was NOT to the Summit 1983 study itself, rather it was to a 2005 study which discussed that Summit's ideas regarding recantation in reference to threats of violence were still valid?

Now, how many studies can you give me to show that Summit's theories have been "utterly" rejected and "totally" (yep, you said "totally" and "utterly") unfounded? Totally DOES mean 100%, yes? That also should mean that I could not find even ONE study supporting even ONE idea in Summit's study, correct?

Forgive me, I tend to be a non-civiliZed hillbilly, so respond clearly with small words.

 

[gumboot]

So having sex with someone is quite risky. Probably best to make the decision when you're not drunk.

Having unprotected sex can be quite risky (in terms of contracting an STI). It would indeed be best to make that decision when you're sober. Leaping off a bridge is quite risky, and people make that decision while drunk too. Frankly making any decision while drunk is probably not a good idea. Are you suggesting people should be prohibited from making decisions while drunk?

Well you could always use the "reasonable person" standard to what constitutes informed consent.

That doesn't help. The question is what constitutes "informed". That has nothing to do with the reasonableness of the person and everything to do with the information available to them.

"Despite her inability to walk straight and her breath smelling of vomit, I believed she was perfectly capable of making an informed decision to have sex with me."

Like I said, unless you can first establish what "informed consent" means in relation to sex, discussing whether a given person was in a state to meet that threshold is irrelevant.

Medical exams usually require participation by the patient. E.g., "Now if you'll just curl up on your left side Mr. Smith..."

Do you accept that there's a difference between agreeing to do something, and agreeing to let someone do something to you? Yes or no?

It depends on what is being tested for.

Unless you're using instruments the procedure would not normally be considered invasive. (Even with an instrument it's minimally invasive).

That is incorrect.

There are two aspects to consent in a medical scenario. One is informed consent, the other is medical consent.

Informed consent is for the purpose of protection against professional negligence, and establishes duty of care owed to the patient. Obviously when two people agree to have sex (assuming it's not prostitution) professional negligence and duty of care are irrelevant. When a person gives informed consent they are confirming that they accept the doctor in question is competent to perform the procedure in question, and they accept that they know what the doctor is going to do.

The threshold for medical consent is rather low, and far more comparable to sexual consent as it protects the medical practitioner from a charge of assault or battery. A person can give medical consent while drunk. Indeed, if the person is so drunk they cannot give consent, medical consent is assumed. Medical consent is essentially what you give any time you allow a medical practitioner to touch you. Unlike informed consent, which normally requires you to sign a form, medical consent can be given as simply as by responding to a doctor's request to "lift up your shirt" or similar.

 

[Francesca R]

I've looked into a few studies dealing with the admittedly very curious behavior of women on rape case juries. While no general behavioral pattern emerges, the safest conjecture is that for women on the issue there is no grey area - it either matches or does not match their preconceived ideas of what rape is, and they vote accordingly.

This seems to hold true throughout these threads as well.

Can you say what you mean there? It could be taken as "women on this thread have intransigent preconceived ideas about rape". Thanks.

 

[Francesca R]

Oh, and I hate to keep butting into the very good discussion going on here between Fran and gumboot, but as sort of an aside [ . . . ]

Please continue since it is not "butting in" nor an aside.

 

[gumboot]

Now, how many studies can you give me to show that Summit's theories have been "utterly" rejected and "totally" (yep, you said "totally" and "utterly") unfounded? Totally DOES mean 100%, yes? That also should mean that I could not find even ONE study supporting even ONE idea in Summit's study, correct?

Summit's baby is Ritual Satanic Abuse. The FBI conducted an exhaustive investigation of hundreds of such cases during the 1980's - 1990's and concluded that not a single case of abuse had occurred. Those sorts of investigations and studies are reflected in enormous quantities. The concept of Ritual Satanic Abuse, and all of the baggage about repressed memories that Summit brought with it, is wholly without substance. The fact that Summit responded to these findings by claiming there was a conspiracy to suppress the facts about Ritual Satanic Abuse really just shows how far gone they are.

Jurisdictions around the world have rejected earlier methods of gaining testimony from children based on this fact. Direct questions, repeated questioning, and so forth are all now prohibited - these are methods employed because of the theories from people like Summit that children reveal abuse gradually and are reluctant to reveal it.

The flip side of the argument pushed by people like Summit is that while children will constantly change their story and lie about being abused when they have been abused, children who have no been abused would never like about this sort of thing or make it up. That's not true. In fact, when it comes to sexual abuse, children are about the most unreliable witnesses you could imagine.

What people forget is that children are incredibly sensitive to expectations. They can quickly detect what the questioner wants them to say, and will simply make up whatever they feel like to satisfy the questioner - in the instance of the Peter Ellis case (infamous case in NZ in which a man was convicted of sixteen sexual abuse counts against seven children when clearly nothing happened) some of the children reported cases of sexual abuse simply because they didn't like the interviews and realised if they kept saying no abuse had occurred the questioning would continue, but if they reported abuse they would be "rewarded" and the questioning would end. That's why direct questioning of children is now considered a major no-no.

 

[Ivor the Engineer]

Gumboot,

I think you need to refresh your memory about what informed consent is and what it is not.

It has little if anything to do with accepting a physician is competent to perform a procedure. That is assumed to be the responsibility of the physician. I.e. A physician can still be liable if they have obtained informed consent for a procedure and provide a standard of care which is below that expected and results in harm to the patient.

http://en.wikipedia.org/wiki/Informed_consent

Informed consent is a legal condition whereby a person can be said to have given consent based upon a clear appreciation and understanding of the facts, implications and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given. Impairments to reasoning and judgement which would make it impossible for someone to give informed consent include such factors as severe mental retardation, severe mental illness, intoxication, severe sleep deprivation, Alzheimer's disease, or being in a coma.

Some acts cannot legally take place because of a lack of informed consent. In cases where an individual is considered unable to give informed consent, another person is generally authorized to give consent on their behalf e.g. parents or legal guardians of a child and caregivers for the mentally ill. However, if a severely injured person is brought to hospital in an unconscious state and no-one is available to give informed consent, doctors will give whatever treatment is necessary to save their life (according to the Hippocratic oath) which might involve major surgery e.g. amputation.

...

A person may move from friendship to sexual contact on the basis of body language and apparent receptivity, but very few people on a date that results in sexual contact have explicitly asked the other if their consent is informed, if they do in fact fully understand what is implied, and all potential conditions or results. Informed consent is implied (or assumed unless disproved) but not stated explicitly.

So it seems quite reasonable that the implied informed consent could be disproved by the claimant being intoxicated when giving his/her consent to have sex.