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Why rape cases should not be subject to reasonable doubt
Is it better to have the harm of 100 sexual assaults than the harm of one false conviction?
Conviction rates for sexual assault against women are shockingly low, to the extent that, even in a developed nation such as the United Kingdom, only 6 per cent of rape allegations result in a conviction, a far lower rate than for any other violent crime. As The Guardian columnist Julia Bindel puts it, ‘rape might as well be legal’.
Disturbingly low conviction rates have many explanations, but one contributing factor is the ‘beyond a reasonable doubt’ standard of evidence employed in criminal cases. This standard requires that the jury not have any reasonable doubts about the defendant’s guilt in order to convict. Doubts they have that are frivolous or hypothetical should be put aside.
Unfortunately, this standard contributes to a low conviction rate in cases of sexual assault, which is often physically indistinguishable from consensual sex. This means that a verdict can hinge solely on testimony. When two people tell stories convincingly, each story casts some reasonable doubt on the other.
The standard is also incorrectly applied due to the prevalence of rape myths – prejudicial, stereotyped or false beliefs about rape, rape victims and rape perpetrators. These myths involve blaming the victim and sympathising with the perpetrator, along with the common belief that women, motivated by jealousy, revenge or spite, falsely claim rape after consensual sex.
‘Testimonial injustice’, a concept developed by the feminist theorist Miranda Fricker at the University of Sheffield, is a systematic, insidious tendency to unjustifiably and often unintentionally downgrade the credibility of women’s testimony. Testimonial injustice and rape myths function together to render unreasonable doubts reasonable in the minds of judges and juries. Even judges can buy into the most egregious stereotypes about women’s sexual behaviour.
Part of the response to this dire situation is surely better prevention of sexual violence against women, as well as raising awareness of deep-seated social prejudices. However, we should also question what justifies the reasonable doubt standard in the first place, and whether it has been unduly stretched in the case of sexual assault. The 18th-century jurist Sir William Blackstone provides perhaps the best-known statement of the rationale behind the reasonable doubt standard. Blackstone argued: ‘It is better that 10 guilty persons escape than that one innocent should suffer.’ A strong intuition seems to undergird this proclamation: the harms of false conviction are so severe that the legal standard of evidence should drastically reduce the likelihood of it occurring.
For the falsely accused, these harms can indeed be severe. They include stigma, broken relationships, violent victimisation in prison, lost income, an increased likelihood of committing crimes, and greater difficulty in finding employment after release. On the face of it, it seems as though the potential to inflict such harms on an innocent person justifies an extremely high standard of evidence like the reasonable doubt standard.
This move is too quick though, since it neglects the harms of false acquittal. In considering whether or not a standard of proof is justified, we should consider not just the harm done to the one man wrongly convicted, but also the harm done by the 10 men wrongly released. This means that the justification for a standard of proof should also consider the accrued harms of false acquittal to the initial victim, to future victims of those criminals and to society.
In the case of sexual assault, these harms are extraordinarily severe. The victim suffers horrendously through the trial and is often badgered into reliving disturbing details of the incident. When the false acquittal is reached, all this is for nothing. Worse than this, she is falsely branded a liar, with all the psychological trauma this entails.
The harms of false acquittal to future victims and their loved ones amplify and extend this harm. Indeed it has been suggested that the trauma of sexual assault is greater than that experienced by war veterans.
Moreover, sexual offenders are likely to offend multiple times. In one study, rapists self-reported an average of 10 violent crimes, even before their ‘careers’ had ended. Consequently, to paraphrase Blackstone’s ratio with reference to sexual violence would mean saying it’s better to have the harm of 100 sexual assaults than the harm of one false conviction – a conclusion that is untenable.
All this is without consideration of the social harm of false acquittal. One is that false acquittals contribute to a vicious circle: a lower chance of conviction leads to a lower likelihood of reporting. Lower reporting again reduces the chance of conviction and so on. Given this circle, it is perhaps unsurprising that in the UK it is estimated that between 75 per cent and 95 per cent of rapes are never even reported. Those that are reported are often not investigated or prosecuted because of the low chances of conviction.
A vicious circle operates in another respect, too: false acquittals reinforce rape myths. When a man is found not guilty on the basis of reasonable doubt, this creates the impression, wrongly, that he was in fact innocent and the accuser was a liar. The large number of acquittals in rape cases thus serves to strengthen and reinforce utterly unfounded rape myths that women are vindictive and frequently lie about having given consent. Again, these myths feed into the social imagination, prejudicing judges and juries, and further lowering the likelihood of conviction.
As it stands, the legal system is weighted unfairly in favour of perpetrators of sexual assault. In addition to sending out a powerful expression of intolerance for gender violence, a lower standard of proof can decrease these harms by reducing the likelihood of false acquittal. Reasonable doubt is inappropriate, but what standard would do better?
Of the standards commonly employed in law, only the ‘preponderance of the evidence’ standard has been used on a consistent basis to decide cases of sexual violence, albeit in civil trials. Indeed, given the high probability of false acquittal, civil trials have increasingly become a first port of call for female victims of sexual violence in the US. Rather than calling for the absence of doubt, this standard judges a case on what the evidence leads one to believe most strongly. If a woman’s testimony provides a stronger reason to believe that she did not give consent, this should be enough.
Christopher Wareham & James Vos
This article was originally published at Aeon and has been republished under Creative Commons.
Northwell Health is using insights from website traffic to forecast COVID-19 hospitalizations two weeks in the future.
- The machine-learning algorithm works by analyzing the online behavior of visitors to the Northwell Health website and comparing that data to future COVID-19 hospitalizations.
- The tool, which uses anonymized data, has so far predicted hospitalizations with an accuracy rate of 80 percent.
- Machine-learning tools are helping health-care professionals worldwide better constrain and treat COVID-19.
The value of forecasting<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTA0Njk2OC9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYyMzM2NDQzOH0.rid9regiDaKczCCKBsu7wrHkNQ64Vz_XcOEZIzAhzgM/img.jpg?width=980" id="2bb93" class="rm-shortcode" data-rm-shortcode-id="31345afbdf2bd408fd3e9f31520c445a" data-rm-shortcode-name="rebelmouse-image" data-width="1546" data-height="1056" />
Northwell emergency departments use the dashboard to monitor in real time.
Credit: Northwell Health<p>One unique benefit of forecasting COVID-19 hospitalizations is that it allows health systems to better prepare, manage and allocate resources. For example, if the tool forecasted a surge in COVID-19 hospitalizations in two weeks, Northwell Health could begin:</p><ul><li>Making space for an influx of patients</li><li>Moving personal protective equipment to where it's most needed</li><li>Strategically allocating staff during the predicted surge</li><li>Increasing the number of tests offered to asymptomatic patients</li></ul><p>The health-care field is increasingly using machine learning. It's already helping doctors develop <a href="https://care.diabetesjournals.org/content/early/2020/06/09/dc19-1870" target="_blank">personalized care plans for diabetes patients</a>, improving cancer screening techniques, and enabling mental health professionals to better predict which patients are at <a href="https://healthitanalytics.com/news/ehr-data-fuels-accurate-predictive-analytics-for-suicide-risk" target="_blank" rel="noopener noreferrer">elevated risk of suicide</a>, to name a few applications.</p><p>Health systems around the world have already begun exploring how <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7315944/" target="_blank" rel="noopener noreferrer">machine learning can help battle the pandemic</a>, including better COVID-19 screening, diagnosis, contact tracing, and drug and vaccine development.</p><p>Cruzen said these kinds of tools represent a shift in how health systems can tackle a wide variety of problems.</p><p>"Health care has always used the past to predict the future, but not in this mathematical way," Cruzen said. "I think [Northwell Health's new predictive tool] really is a great first example of how we should be attacking a lot of things as we go forward."</p>
Making machine-learning tools openly accessible<p>Northwell Health has made its predictive tool <a href="https://github.com/northwell-health/covid-web-data-predictor" target="_blank">available for free</a> to any health system that wishes to utilize it.</p><p>"COVID is everybody's problem, and I think developing tools that can be used to help others is sort of why people go into health care," Dr. Cruzen said. "It was really consistent with our mission."</p><p>Open collaboration is something the world's governments and health systems should be striving for during the pandemic, said Michael Dowling, Northwell Health's president and CEO.</p><p>"Whenever you develop anything and somebody else gets it, they improve it and they continue to make it better," Dowling said. "As a country, we lack data. I believe very, very strongly that we should have been and should be now working with other countries, including China, including the European Union, including England and others to figure out how to develop a health surveillance system so you can anticipate way in advance when these things are going to occur."</p><p>In all, Northwell Health has treated more than 112,000 COVID patients. During the pandemic, Dowling said he's seen an outpouring of goodwill, collaboration, and sacrifice from the community and the tens of thousands of staff who work across Northwell.</p><p>"COVID has changed our perspective on everything—and not just those of us in health care, because it has disrupted everybody's life," Dowling said. "It has demonstrated the value of community, how we help one another."</p>
"You dream about these kinds of moments when you're a kid," said lead paleontologist David Schmidt.
- The triceratops skull was first discovered in 2019, but was excavated over the summer of 2020.
- It was discovered in the South Dakota Badlands, an area where the Triceratops roamed some 66 million years ago.
- Studying dinosaurs helps scientists better understand the evolution of all life on Earth.
Credit: David Schmidt / Westminster College<p style="margin-left: 20px;">"We had to be really careful," Schmidt told St. Louis Public Radio. "We couldn't disturb anything at all, because at that point, it was under law enforcement investigation. They were telling us, 'Don't even make footprints,' and I was thinking, 'How are we supposed to do that?'"</p><p>Another difficulty was the mammoth size of the skull: about 7 feet long and more than 3,000 pounds. (For context, the largest triceratops skull ever unearthed was about <a href="https://www.tandfonline.com/doi/abs/10.1080/02724634.2010.483632" target="_blank">8.2 feet long</a>.) The skull of Schmidt's dinosaur was likely a <em>Triceratops prorsus, </em>one of two species of triceratops that roamed what's now North America about 66 million years ago.</p>
Credit: David Schmidt / Westminster College<p>The triceratops was an herbivore, but it was also a favorite meal of the T<em>yrannosaurus rex</em>. That probably explains why the Dakotas contain many scattered triceratops bone fragments, and, less commonly, complete bones and skulls. In summer 2019, for example, a separate team on a dig in North Dakota made <a href="https://www.nytimes.com/2019/07/26/science/triceratops-skull-65-million-years-old.html" target="_blank">headlines</a> after unearthing a complete triceratops skull that measured five feet in length.</p><p>Michael Kjelland, a biology professor who participated in that excavation, said digging up the dinosaur was like completing a "multi-piece, 3-D jigsaw puzzle" that required "engineering that rivaled SpaceX," he jokingly told the <a href="https://www.nytimes.com/2019/07/26/science/triceratops-skull-65-million-years-old.html" target="_blank">New York Times</a>.</p>
Morrison Formation in Colorado
James St. John via Flickr
|Credit: Nobu Tamura/Wikimedia Commons|
New research suggests you can't fake your emotional state to improve your work life — you have to feel it.
What is deep acting?<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTQ1NDk2OS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxNTY5MzA0Nn0._s7aP25Es1CInq51pbzGrUj3GtOIRWBHZxCBFnbyXY8/img.jpg?width=1245&coordinates=333%2C-1%2C333%2C-1&height=700" id="ddf09" class="rm-shortcode" data-rm-shortcode-id="9dc42c4d6a8e372ad7b72907b46ecd3f" data-rm-shortcode-name="rebelmouse-image" data-width="1245" data-height="700" />
Arlie Russell Hochschild (pictured) laid out the concept of emotional labor in her 1983 book, "The Managed Heart."
Credit: Wikimedia Commons<p>Deep and surface acting are the principal components of emotional labor, a buzz phrase you have likely seen flitting about the Twittersphere. Today, "<a href="https://www.bbc.co.uk/bbcthree/article/5ea9f140-f722-4214-bb57-8b84f9418a7e" target="_blank">emotional labor</a>" has been adopted by groups as diverse as family counselors, academic feminists, and corporate CEOs, and each has redefined it with a patented spin. But while the phrase has splintered into a smorgasbord of pop-psychological arguments, its initial usage was more specific.</p><p>First coined by sociologist Arlie Russell Hochschild in her 1983 book, "<a href="https://www.ucpress.edu/book/9780520272941/the-managed-heart" target="_blank">The Managed Heart</a>," emotional labor describes the work we do to regulate our emotions on the job. Hochschild's go-to example is the flight attendant, who is tasked with being "nicer than natural" to enhance the customer experience. While at work, flight attendants are expected to smile and be exceedingly helpful even if they are wrestling with personal issues, the passengers are rude, and that one kid just upchucked down the center aisle. Hochschild's counterpart to the flight attendant is the bill collector, who must instead be "nastier than natural."</p><p>Such personas may serve an organization's mission or commercial interests, but if they cause emotional dissonance, they can potentially lead to high emotional costs for the employee—bringing us back to deep and surface acting.</p><p>Deep acting is the process by which people modify their emotions to match their expected role. Deep actors still encounter the negative emotions, but they devise ways to <a href="http://www.selfinjury.bctr.cornell.edu/perch/resources/what-is-emotion-regulationsinfo-brief.pdf" target="_blank">regulate those emotions</a> and return to the desired state. Flight attendants may modify their internal state by talking through harsh emotions (say, with a coworker), focusing on life's benefits (next stop Paris!), physically expressing their desired emotion (smiling and deep breaths), or recontextualizing an inauspicious situation (not the kid's fault he got sick).</p><p>Conversely, surface acting occurs when employees display ersatz emotions to match those expected by their role. These actors are the waiters who smile despite being crushed by the stress of a dinner rush. They are the CEOs who wear a confident swagger despite feelings of inauthenticity. And they are the bouncers who must maintain a steely edge despite humming show tunes in their heart of hearts.</p><p>As we'll see in the research, surface acting can degrade our mental well-being. This deterioration can be especially true of people who must contend with negative emotions or situations inside while displaying an elated mood outside. Hochschild argues such emotional labor can lead to exhaustion and self-estrangement—that is, surface actors erect a bulwark against anger, fear, and stress, but that disconnect estranges them from the emotions that allow them to connect with others and live fulfilling lives.</p>
Don't fake it till you make it<p>Most studies on emotional labor have focused on customer service for the obvious reason that such jobs prescribe emotional states—service with a smile or, if you're in the bouncing business, a scowl. But <a href="https://eller.arizona.edu/people/allison-s-gabriel" target="_blank">Allison Gabriel</a>, associate professor of management and organizations at the University of Arizona's Eller College of Management, wanted to explore how employees used emotional labor strategies in their intra-office interactions and which strategies proved most beneficial.</p><p>"What we wanted to know is whether people choose to engage in emotion regulation when interacting with their co-workers, why they choose to regulate their emotions if there is no formal rule requiring them to do so, and what benefits, if any, they get out of this effort," Gabriel said in <a href="https://www.sciencedaily.com/releases/2020/01/200117162703.htm" target="_blank">a press release</a>.</p><p>Across three studies, she and her colleagues surveyed more than 2,500 full-time employees on their emotional regulation with coworkers. The survey asked participants to agree or disagree with statements such as "I try to experience the emotions that I show to my coworkers" or "I fake a good mood when interacting with my coworkers." Other statements gauged the outcomes of such strategies—for example, "I feel emotionally drained at work." Participants were drawn from industries as varied as education, engineering, and financial services.</p><p>The results, <a href="https://psycnet.apa.org/doiLanding?doi=10.1037%2Fapl0000473" target="_blank" rel="noopener noreferrer">published in the Journal of Applied Psychology</a>, revealed four different emotional strategies. "Deep actors" engaged in high levels of deep acting; "low actors" leaned more heavily on surface acting. Meanwhile, "non-actors" engaged in negligible amounts of emotional labor, while "regulators" switched between both. The survey also revealed two drivers for such strategies: prosocial and impression management motives. The former aimed to cultivate positive relationships, the latter to present a positive front.</p><p>The researchers found deep actors were driven by prosocial motives and enjoyed advantages from their strategy of choice. These actors reported lower levels of fatigue, fewer feelings of inauthenticity, improved coworker trust, and advanced progress toward career goals. </p><p>As Gabriel told <a href="https://www.psypost.org/2021/01/new-psychology-research-suggests-deep-acting-can-reduce-fatigue-and-improve-your-work-life-59081" target="_blank" rel="noopener noreferrer">PsyPost in an interview</a>: "So, it's a win-win-win in terms of feeling good, performing well, and having positive coworker interactions."</p><p>Non-actors did not report the emotional exhaustion of their low-actor peers, but they also didn't enjoy the social gains of the deep actors. Finally, the regulators showed that the flip-flopping between surface and deep acting drained emotional reserves and strained office relationships.</p><p>"I think the 'fake it until you make it' idea suggests a survival tactic at work," Gabriel noted. "Maybe plastering on a smile to simply get out of an interaction is easier in the short run, but long term, it will undermine efforts to improve your health and the relationships you have at work. </p><p>"It all boils down to, 'Let's be nice to each other.' Not only will people feel better, but people's performance and social relationships can also improve."</p>
You'll be glad ya' decided to smile<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="88a0a6a8d1c1abfcf7b1aca8e71247c6"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/QOSgpq9EGSw?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>But as with any research that relies on self-reported data, there are confounders here to untangle. Even during anonymous studies, participants may select socially acceptable answers over honest ones. They may further interpret their goal progress and coworker interactions more favorably than is accurate. And certain work conditions may not produce the same effects, such as toxic work environments or those that require employees to project negative emotions.</p><p>There also remains the question of the causal mechanism. If surface acting—or switching between surface and deep acting—is more mentally taxing than genuinely feeling an emotion, then what physiological process causes this fatigue? <a href="https://www.frontiersin.org/articles/10.3389/fnhum.2019.00151/full" target="_blank">One study published in the <em>Frontiers in Human Neuroscience</em></a><em> </em>measured hemoglobin density in participants' brains using an fNIRS while they expressed emotions facially. The researchers found no significant difference in energy consumed in the prefrontal cortex by those asked to deep act or surface act (though, this study too is limited by a lack of real-life task).<br></p><p>With that said, Gabriel's studies reinforce much of the current research on emotional labor. <a href="https://journals.sagepub.com/doi/abs/10.1177/2041386611417746" target="_blank">A 2011 meta-analysis</a> found that "discordant emotional labor states" (read: surface acting) were associated with harmful effects on well-being and performance. The analysis found no such consequences for deep acting. <a href="https://doi.apa.org/doiLanding?doi=10.1037%2Fa0022876" target="_blank" rel="noopener noreferrer">Another meta-analysis</a> found an association between surface acting and impaired well-being, job attitudes, and performance outcomes. Conversely, deep acting was associated with improved emotional performance.</p><p>So, although there's still much to learn on the emotional labor front, it seems Van Dyke's advice to a Leigh was half correct. We should put on a happy face, but it will <a href="https://bigthink.com/design-for-good/everything-you-should-know-about-happiness-in-one-infographic" target="_self">only help if we can feel it</a>.</p>
Archaeologists discover a cave painting of a wild pig that is now the world's oldest dated work of representational art.
- Archaeologists find a cave painting of a wild pig that is at least 45,500 years old.
- The painting is the earliest known work of representational art.
- The discovery was made in a remote valley on the Indonesian island of Sulawesi.