Of DSK and imperfect justice

Posted by Sappho on July 2nd, 2011 filed in News and Commentary

Feminists often point out, when speaking of rape, how women who have been raped face a level of doubt that victims of no other crime face, a persistent questioning of their actions and past. Others counter that men accused of rape, like anyone else accused of a crime, deserve to be considered innocent until proven guilty, and that, even without any “rape culture,” the special circumstances of rape can make it harder to meet that bar. Both arguments, it seems to me, are right. I hear of the possible collapse in the case against DSK a week before I go on jury duty myself. While it’s more likely I’ll simply wind up as one of the extras not needed, it’s possible I could get called for a rape case, and if I do, I need to go in with the understanding that, even if it looks more likely than not that the man raped the woman, if there is reasonable doubt that he did, I should acquit. I hold that understanding in tension with my belief that a good deal more often than not, women who say they’ve been raped have in fact actually been raped. Because “more likely than not” isn’t the standard I’ll need satisfied to convict; “reasonable doubt” is.

Megan McArdle writes of this case:

… There are two possibilities here, neither of them good:

1) A woman with an unsavory past, who has done desperate things to get out of terrible economic conditions, was raped by a prominent figure, and he’s going to get away with it because of her history.

2) A serial cad had consensual sex with a chambermaid, and she attempted to destroy him with a false rape allegation for personal gain. And because of the presumption that women don’t lie about rape, she has succeeded in destroying him (and destabilizing the IMF at a very delicate moment), though not so much in the personal gain part. To quote Ray Donovan, “Where do I go to get my reputation back?”

Neither is very comforting. But that’s all we have at this point….

Indeed, I can take no comfort in either possibility. At the same time, I can’t fault the DA’s office. I respect them for bringing what the initial evidence suggested were credible charges, even though they were made by a very low status woman against a very high status man. And I respect them for their integrity in fulfilling their Brady letter responsibilities by supplying the defense with exculpatory information that they had found in the course of their investigation.

If I have a feminist concern about this case, it is not that DSK may get off for a crime that we can never be sure he didn’t commit (since women with criminal connections who lie on their asylum applications may also be raped). It is, rather, with the cycle that develops with such case, as Jill Filipovic describes.

And we live in a culture where the public destruction of every woman who makes a rape accusation is used as fodder in subsequent rape cases, establishing a cycle where we believe that women must be lying because the women before her were lying, so we feel justified in going out of our way to find any scrap of evidence that might indicate she has ever done anything ever in her life that we might find unsavory even if it has nothing to do with the case at hand, and then we use that to determine that she’s not credible, and then we use has as another example of how women lie about rape.

I remember, when the Duke lacrosse team was accused, how people brought up Tawana Brawley, and now, when DSK was accused, people bring up the Duke lacrosse case. Perhaps, in the future, this case, too, will be added to the mix, so that we will have one big Tawana Brawley/Duke lacrosse team/DSK mix. And, that may be appropriate, if we appropriately narrow the lesson we draw from these cases: that accusation is not conviction, and that sometimes not convicting the accused rapist may be absolutely the appropriate legal response. If, on the other hand, you go beyond that conclusion to draw general conclusions about how women lie about rape, then you go too far. Men accused of rape should not always be convicted of rape because rape, like any other crime, needs to meet a standard of innocent until proven guilty, not because rape, unlike any other crime, is half the time a false accusation.

Sometimes, as looks to be the case here, the result is very imperfect justice to someone. But any of the alternatives I can imagine (men like DSK aren’t charged in such cases, the system doesn’t require the accusation be put to a rigorous test, the prosecutors don’t have to turn over exculpatory information) would lead to still more imperfect justice than the system we’ve got.

3 Responses to “Of DSK and imperfect justice”

  1. Sage Says:

    This is the best analysis I’ve seen yet. Thanks.

  2. Scott Lahti Says:

    Highly recommended:


  3. Sappho Says:

    Thanks, both of you. And I’ll check the Nation article out.