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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?

US film producer Harvey Weinstein poses during a photocall at the 70th Cannes Film Festival on May 23, 2017. (Photo: YANN COATSALIOU/AFP/Getty Images)

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

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This article was originally published at Aeon and has been republished under Creative Commons.

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Cognitive psychologist Weizhen Xie (Zane) of the NIH's National Institute of Neurological Disorders and Stroke (NINDS) works with people who have intractable epilepsy, a form of the disorder that can't be controlled with medications. During research into the brain activity of patients, he and his colleagues discovered something odd about human memory: It appears that certain basic words are consistently more memorable than other basic words.

The research is published in Nature Human Behaviour.

An odd find

Image source: Tsekhmister/Shutterstock

Xie's team was re-analyzing memory tests of 30 epilepsy patients undertaken by Kareem Zaghloul of NINDS.

"Our goal is to find and eliminate the source of these harmful and debilitating seizures," Zaghloul said. "The monitoring period also provides a rare opportunity to record the neural activity that controls other parts of our lives. With the help of these patient volunteers we have been able to uncover some of the blueprints behind our memories."

Specifically, the participants were shown word pairs, such as "hand" and "apple." To better understand how the brain might remember such pairings, after a brief interval, participants were supplied one of the two words and asked to recall the other. Of the 300 words used in the tests, five of them proved to be five times more likely to be recalled: pig, tank, doll, pond, and door.

The scientists were perplexed that these words were so much more memorable than words like "cat," "street," "stair," "couch," and "cloud."

Intrigued, the researchers looked at a second data source from a word test taken by 2,623 healthy individuals via Amazon's Mechanical Turk and found essentially the same thing.

"We saw that some things — in this case, words — may be inherently easier for our brains to recall than others," Zaghloul said. That the Mechanical Turk results were so similar may "provide the strongest evidence to date that what we discovered about how the brain controls memory in this set of patients may also be true for people outside of the study."

Why understanding memory matters

person holding missing piece from human head puzzle

Image source: Orawan Pattarawimonchai/Shutterstock

"Our memories play a fundamental role in who we are and how our brains work," Xie said. "However, one of the biggest challenges of studying memory is that people often remember the same things in different ways, making it difficult for researchers to compare people's performances on memory tests." He added that the search for some kind of unified theory of memory has been going on for over a century.

If a comprehensive understanding of the way memory works can be developed, the researchers say that "we can predict what people should remember in advance and understand how our brains do this, then we might be able to develop better ways to evaluate someone's overall brain health."

Party chat

Image source: joob_in/Shutterstock

Xie's interest in this was piqued during a conversation with Wilma Bainbridge of University of Chicago at a Christmas party a couple of years ago. Bainbridge was, at the time, wrapping up a study of 1,000 volunteers that suggested certain faces are universally more memorable than others.

Bainbridge recalls, "Our exciting finding is that there are some images of people or places that are inherently memorable for all people, even though we have each seen different things in our lives. And if image memorability is so powerful, this means we can know in advance what people are likely to remember or forget."

spinning 3D model of a brain

Temporal lobes

Image source: Anatomography/Wikimedia

At first, the scientists suspected that the memorable words and faces were simply recalled more frequently and were thus easier to recall. They envisioned them as being akin to "highly trafficked spots connected to smaller spots representing the less memorable words." They developed a modeling program based on word frequencies found in books, new articles, and Wikipedia pages. Unfortunately, the model was unable to predict or duplicate the results they saw in their clinical experiments.

Eventually, the researchers came to suspect that the memorability of certain words was linked to the frequency with which the brain used them as semantic links between other memories, making them often-visited hubs in individuals's memory networks, and therefore places the brain jumped to early and often when retrieving memories. This idea was supported by observed activity in participants' anterior temporal lobe, a language center.

In epilepsy patients, these words were so frequently recalled that subjects often shouted them out even when they were incorrect responses to word-pair inquiries.

Seek, find

Modern search engines no longer simply look for raw words when resolving an inquiry: They also look for semantic — contextual and meaning — connections so that the results they present may better anticipate what it is you're looking for. Xie suggests something similar may be happening in the brain: "You know when you type words into a search engine, and it shows you a list of highly relevant guesses? It feels like the search engine is reading your mind. Well, our results suggest that the brains of the subjects in this study did something similar when they tried to recall a paired word, and we think that this may happen when we remember many of our past experiences."

He also notes that it may one day be possible to leverage individuals' apparently wired-in knowledge of their language as a fixed point against which to assess the health of their memory and brain.

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