O tempora! O Associated Press!

I haven’t been following the St. Paul’s School rape case. Apparently a senior boy told his buddies he’d had sex with a freshman girl when the girl was 15; seducing freshmen seems to have been considered a badge of honor among seniors. He was charged not only with sex with a minor but also with rape; the girl claimed he forced himself on her. He asserted that everything was consensual and stopped short of full intercourse.

The jury convicted him of sex with a minor (a misdemeanor) and using a computer to seduce a minor (weirdly, a felony) but acquitted him of rape.

Rather than lamenting the sexual mores of the rising generation, I want to lament its journalistic standards.

The Washington Post, which in my youth was a newspaper, with reporters and editors, where at least some of the reporters knew something about the topics they covered and at least some of the editors tried to keep obvious falsehoods out of the paper, ran an AP story that included the following sentence:

The jury by its verdict Friday signaled they didn’t believe Labrie’s assertions that he and the girl didn’t have intercourse but also didn’t believe her contention that it was against her will.

No, no, no, no, NO!

The jury “signaled” no such thing. Assuming that the jurors were following instructions, the verdict means that they were unanimously convinced beyond reasonable doubt that the accused penetrated a minor but were not convinced beyond reasonable doubt she had not consented. They could have all gone home saying “Yeah, seems way more likely than not that he forced her, but in a swearing contest it’s hard to be morally certain.” (Of course it’s also possible that the verdict was a compromise among conflicting jurors, which is against the rules but isn’t unknown.)

The more I think about this, the angrier I get. The victim, having been victimized once by the older boy and again by the criminal justice process, now suffers a gratuitous third victimization from the AP and the WaPo, which proclaim to the entire word, indelibly, that a jury found her to be a liar, when in fact it did not.

It seems implausible that there will be a retraction – not that it would do much good – and impossible that she can successfully sue for damages, since for this purpose she’s a “public figure” under the precedent in N.Y. Times v. Sullivan.. Why should reporters, editors, and publishers be allowed to negligently damage people by failing to do their job up to professional standards of competence, and escape scott-free? Note that this isn’t a matter of opinion; what the story says about the meaning of a “not guilty” verdict is simply wrong.

Apparently the strongest evidence against the accused was his own post-incident boasting to his classmates. He and his lawyer had to claim at trial that the boy was bragging about molesting an underage girl but hadn’t actually done so. Who knows? It might even be true. But it isn’t hard to see how the jury could dismiss that claim as far-fetched while remaining in some doubt on the consent question.  

The whole thing – more carefully described in this New York Times story – makes me wonder just how far New Hampshire law allows an eighteen-year-old to go with a fifteen-year old. And, as always, I wonder what a just sentence would look like for what the defendant was convicted of doing, rather than for the even worse thing he may well have actually done.

Rape, privilege, and the presumption of innocence

The amount of nonsense written about rape and lesser sexual assaults is really quite astounding. I suppose I should be grateful for anything that makes “conservatives” sympathetic to the rights of the accused. I would be, too, if I thought it might generalize past privileged men accused of that specific crime (and of course right-wing pols and corporate grifters). But if  the high rate of false convictions among those sent to Death Row worries the right-wing pundit class, they’ve been keeping that information private.

The two latest exhibits are George Will’s weird ruminations about campus sexual-assault codes (and his subsequent defiance of the First Rule of Holes) and Peter Lloyd’s ill-named “Thinking Man” column in the Telegraph (aka Torygraph) about the travails of the current president of the Oxford Union. That young man will not face prosecution after two female Oxford students, both 19, accused him of rape in one case and attempted rape in the other.  Apparently the reported incidents involved two separate occasions; the stories don’t make it clear whether the two accusers knew each other, or of each other’s allegations.

Will and Lloyd employ identical brands of (il)logic. They (un)reason approximately as follows:

A report of rape (or other sexual assault) is merely an allegation; in the criminal law, the accused is presumed innocent unless and until proven guilty, and proof must be beyond reasonable doubt (also known as “proof to a moral certainty”); therefore when the police or the prosecutors do not press charges, or the charges are dismissed, or the accused is acquitted at trial, that proves that the allegation was false; since the accused is innocent according to the law, he must not have done what his accuser alleged he did. That means that she is a liar and he is a victim.

Therefore, any inconvenience the accused suffers in the way of damaged reputation or non-criminal punishment (e.g., university discipline) constitutes injustice, and any administrative system that hands out sanctions on less than a guilty-beyond-reasonable-doubt standard violates basic principles of fairness. Lloyd demands that in cases of sexual assault the accused, as well as the accuser, be granted anonymity. Will then goes on to add that conflating obnoxious but lesser forms of misbehavior such as unwanted touching (a crime) and obscene remarks (not a crime) with rape confuses things, which is true, as he then demonstrates. Will and Lloyd finish up with poetic screeds about the horrible oppression of privileged men.

In a sane world, one would just leave this nonsense alone as obvious self-refutation. But since in the actual world it seems to have some persuasive power, here goes: Continue reading “Rape, privilege, and the presumption of innocence”