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Duke Rape Case Fall Out – the Power to change our Collective Narratives?

By: Luke Gilman | Other Posts by
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Professor Sandra Guerra Thompson, from whom I took Crim Law, conducts a rhetorical voir dire for future rape trials in an opinion piece yesterday in the Houston Chronicle – Fallout from Duke case clouds future rape trials.

During voir dire, lawyers ask the pool of prospective jurors questions intended to potential biases, backgrounds and experiences they might bring to bear on the trial. Because the jury is the finder of fact its conclusions are given a wide latitude by appellate courts. In assessing the credibility of witnesses, determining the likelihood of alleged events to have occurred or to have occurred in the way the parties said they did, juries wield an enormous power of discretion. Juries can even nullify the effects of the law. Professor Thompson asks five questions of prospective jurors in the wake of the Duke case. Read them and ponder them for a second. How would you answer?

  • Do you believe that women who bring rape charges are likely to lie?
  • Do you believe that women of color are less credible than Caucasian women?
  • Do you believe that black women are disposed to bring false charges against white men?
  • Do you believe that any innocent person can beat false charges?
  • Do you believe that prosecutors are inclined to bend the truth?

What went through your mind when you read the questions to yourself? If you’re anything like me you immediately attempted to relate the abstract propositions posed by the questions to your own experiences. To do this, I began to compose narratives and to test the likelihood and believability of the scenario. “Are women who bring rape charges are likely to lie?” I thought of the women in my life. Would any of them have reason to lie about a rape charge? My answer is conditioned by the cast of characters I select to inhabit my mini-narrative. My first instinct is to answer “No, of course not, that’s ridiculous,” and yet I hesitate because I happen to know someone who was falsely accused of rape. I’m forced to adjust my possible narratives to accommodate my experience and now it doesn’t seem so ridiculous. I would still answer no to the general question, but now I’m looking for similarities to match the false-accusation experience I know about to compare it to the new situation. The Duke case is its own narrative in my subconscious now. Even though I know empirically, that there’s no reason to think “a woman who brings rape charges is likely to lie” I’ve got another narrative in which that was the case. Statistically it’s an anomaly, one case in who knows how many thousands of rapes actually committed, but it’s a compelling story, I remember it and it gives me reason to pause.

Furthermore, I’m forced to admit to myself that I may not have any real control over whether the narratives I tell myself really conform to reality. I’ve previously posted on Malcolm Gladwell’s interaction with Harvard’s Implicit Association Test on Race

. When Gladwell took the test he demonstrated a measurable preference for whites over blacks in his assessment of ‘goodness’. While it isn’t surprising that racial preferences exist, it is surprising in Gladwell’s case because his mother is black and he himself identifies as black. If black people can’t avoid negative racial preferences what chance have the rest of us got?

It’s not just overt racism or sexism that should cause us concern in a case like this. If the Duke Lacrosse Rape Case influences the dominant narrative that pops into our minds when we address the kinds of questions Prof. Thompson poses, then it may pervert our perspective as a society of potential jurors. We will tend to believe women who allege rape less and we may give undue credence to elements that suggest to us another rationale for explaining the accusation than ‘a rape has occurred’. The stories we inevitably create to help us explain events will change.

It reminded me of a case we had in Crim Law that continues to bother me – Mull v. State, 2003 Tex. App. LEXIS 1524, in which three men were accused of sexual assault after having group sex with a highly intoxicated 20-year-old student at Houston’s Texas Southern University. The first two men were acquitted, the third was convicted. All three men had sex with the woman. Why was the jury ready to convict one and not the others? Was there truly a difference in the evidence against the three men? She told each of them to stop. The only difference appears first when “she told appellant to stop “numerous times,” finally saying it loudly, to which he responded, “Oh, so you want me to stop.”" and after the incident when “appellant confronted her and said, “Who am I? Did I do anything to you?” Do these statements add anything to the evidence against him? Probably not, but they radically change the narratives we imagine to explain the event. By keeping silent, his friends may have simply given the jury a different narrative with with to interpret the same acts. With crimes such as rape where the outcome so often turns on consent, consent to an act about which we as a society and individually are hopelessly conflicted, the narratives we use to explain it are often all we have.

For more on voir dire see the Mark Bennet’s excellent Defending People Blog here and here and Anne Reed’s Deliberations.

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7 Responses

  1. [...] In Duke Rape Case Fall Out – the Power to change our Collective Narratives? I discussed narrative as the little hypotheticals we go through to test the believability of facts when we’re evaluating something we’ve been told. A lawyer-friend of mine started me on this idea of narrative and the law a few days ago and now I’m seeing it everywhere. [...]

  2. Mary Jane says:

    women lie about being raped all the time, this isn’t anything new…

  3. lukegilman says:

    here’s a good example why we do voir dire… two people can have very different beliefs about what’s typical.

    I think our baseline beliefs about rape can come from one of two places (1) empirical data – some sort of study or research we might have read and (2) experience – either (a) our own, (b) that of people we know, or (c) general experience reflected in media (news, television, movies, etc.).

    The issue isn’t new, of course, but a false accusation of rape that gets as much coverage as this has may change the calculus of enough jurors to have measurable effects on outcome. The tough case that went one day yesterday might go the other way today if the baseline assumption of enough jurors moves from “Why would a woman lie about being raped?” to “women lie about being raped all the time.”

    The actual probability, whatever that is, of a false accusation of rape hasn’t changed, but the perception has. The question is whether it’s troublesome. It certainly is to me.

  4. I wouldn’t agree with Mary Jane about women lying about being raped “all the time.” A tad harsh don’t you think Mary Jane? It’s just that one false rape accusation is one false acusation too many as far as rape goes and hinders an already difficult case (as far as burden of proof goes) for an actual victim. I agree however that ultimate vindication is little solace to those falsely accused who often are relegated to being social pariahs for the rest of their life. Factor that ten times over for alleged and ultimately acquitted and vindicated sexual offenders.
    What makes matters worse is rape means very different things in different jurisdictions.

    The law professors blog deals with this issue and the link is below.
    More at http://lawprofessors.typepad.com/crimprof_blog/2004/12/2_false_rape_st.html

  5. A. Nonmouse says:

    # Do you believe that any innocent person can beat false charges?

    Absolutely not. The judicial system has never approached perfection.

    # Do you believe that prosecutors are inclined to bend the truth?

    Absolutely. No one has yet convinced me that district attorneys at any level can completely divorce their jobs from the politics, and politics is synonymous with “bending the truth”. Throw judges into that as well.

    These are the same answers I would have given before the Duke Rape Case, as are the following for the first three questions.

    #1. Even true victims intentionally distort the actions in their descriptions. Lying is an inherent part of being human.

    #2. I have no reason to think otherwise. Without doubt, both blacks and whites lack credibility, and one is probably even less credible than the other (that is simple statistics). Which one? I don’t know, thus by default that I am white, I trust whites more because I understand the culture more and I believe I am more likely to detect a falsehood.

    #3. Yes, and to abstract this: Blacks are disposed to bring false charges against whites, just as whites are disposed to bring false charges against blacks.

    Is Thompson asking those questions as a defender or a prosecutor? The link to the article is dead.

  6. lukegilman says:

    The link to Chron.com is dead. See the text of Thompson’s article in Google Cache.

  7. lukegilman says:

    Great comments everybody. Thanks!

    I think we tend to underestimate the difficulty in working with rape victims in the role of either defense or prosecutor. I worked with several teens who were the victims of sexual abuse and rape (mostly girls) and was astounded at the degree to which (1) they felt they had caused the rape to happen regardless of how ridiculous that idea is given the actual circumstances and (2) the sense of guilt they felt that the perpetrator was doing time. I think these have got to be some of the hardest cases to try no matter what side of the judge you’re standing on.

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