As the #MeToo movement gathered steam, exposing many long-ignored instances of sexual misconduct, other hashtags followed in its wake. One of these is #BelieveWomen. In this column, I will analyze some ways of understanding #BelieveWomen and suggest that properly understood, it can provide us with a better way to approach not only women but anyone who brings disfavored messages to our doorstep.
What Does “Believe Women” Mean?
The #BelieveWomen hashtag responds to a very old and longstanding prejudice. The prejudice held (and, to some extent, still holds) that when women say that they were raped, there is a good chance that they are lying. Seventeenth century English jurist Lord Chief Justice Matthew Hale said “[rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Well into the second half of the twentieth century, Hale’s concern about women’s false rape accusations distorted the process of adjudicating rape claims in criminal courts.
Judges, for instance, gave juries special instructions cautioning them about the danger of lying rape victims and the need to be extra skeptical of their testimony. Courts often required corroborating evidence as well, even though witnesses who testified about other crimes required no similar corroboration. As Susan Estrich put it in her 1988 book, Real Rape, the law had difficulty believing women who came forward to complain of rape. The law accordingly placed stumbling blocks in the path of prosecution and conviction, including the special cautionary instruction and the need for corroboration.
It was no accident that #BelieveWomen came along after #MeToo. The message of #MeToo was that sexual misconduct happens and that it happens with some regularity. We should not mistake the silence around sexual assault (and other less serious forms of sexual misconduct) as an indicator that everything is fine. Silence is simply a victim’s routine and common reaction to crimes about which she believes she can do nothing. Most people know that rape is among the most underreported of crimes, but we do not always think about the implication of that: that there are many more victims of sexual assault in our midst than meets the eye.
Once we recognize that sexual assault is more common than we imagined it was, it may be easier for us to believe victims who come to us with their stories. When a witness tells us that he has seen a zebra in Manhattan, we are understandably skeptical. But if he says instead that he has seen a horse, we have little reason to doubt him. #MeToo tells us that we have a horse and not a zebra before us when a woman says she was raped, and #BelieveWomen tells us that we can correspondingly drop the skepticism that we have brought to rape accusations for centuries.
What “#BelieveWomen” Does Not Mean
I would ordinarily skip a discussion of whether women ever lie about rape, but recent events suggest the need for a brief review. No one with any sense would deny that women have sometimes lied about rape. This could mean that they invented a rape where nothing happened or it could mean that they claimed that an act of mutually desired, consensual sex was in fact rape.
Some famous examples of false rape allegations include the Tawana Brawley case, the Duke lacrosse case, and the Rolling Stone story about “A Rape On Campus.” False accusers’ reasons for lying differ, but whatever the reason, each false accuser does grave harm both to the man or men whom she falsely accuses and to the more numerous actual rape victims who must struggle against the strengthened presumption that they too are liars.
The possibility of a false accusation is reason enough to require a trial before subjecting an accused to incarceration for his crime. At the trial, the victim will have an opportunity to tell her story, followed by the defense opportunity to test her story through cross-examination and the production of contrary testimony and/or physical evidence. The prosecution, in turn, will be able to cross-examine the defendant who testifies and make out its own case for guilt. The burden of persuasion rests with the prosecutor, who must persuade the jury of the defendant’s guilt beyond a reasonable doubt. Stated differently, it takes compelling evidence to rebut the presumption of innocence, and that evidence can consist of a victim’s eye-witness account.
I have heard some propose that if the only witnesses at trial are the victim, who says the defendant raped her, and the defendant, who says he did not, then the jury must acquit. This proposal sounds sensible, because “innocent” cancels out “guilty,” leaving us with too much uncertainty to support a conviction. But the proposal is wrong. It stems from confusion about two things: the nature of testimony as direct evidence, and the role of incentives in determining witness credibility.
Start with witnesses. A woman who takes the stand and testifies under oath that the defendant raped her provides us with eyewitness testimony supporting a conviction. Testimony is a form of evidence. Indeed, most of the time, juries treat eyewitness testimony by victims as among the most sacred and powerful types of incriminating evidence around. Victims from robberies will identify the robber and describe the robbery, and that is enough for a conviction. We require no corroboration in such cases, and no one says, “but it’s just her word against his.”
What about the fact that the defendant testifies that he is innocent? Generally, defendants who testify at their criminal trials claim that they are innocent. We rarely encounter the defendant who takes the stand to tell the jury that he committed the crime with which he is charged and stands ready to face his penalty. Why is that? Because such testimony would increase the odds of a conviction, and a defendant ordinarily wants to avoid a conviction—and the incarceration, threat of violence, exposure to illnesses, and overall misery that comes with it.
Defendants who choose to testify (often because they have a clean record and therefore cannot be impeached with a prior conviction) accordingly attempt to maximize their odds of an acquittal, and they do that by saying that they are innocent, that there was no sex or that there was consent. They say this whether it is true or false, because they want to leave the courtroom as free men.
Do women who complain of rape have the same incentives? The defendant’s whose presence in the courtroom as the accused is involuntary. He must either say he is innocent, say he is guilty, or sit quietly as the trial proceeds. The complaining witness, by contrast, chose to be there. This is important because it means that no one assigned her the role of “rape victim in the courtroom” who must do the best she can to fulfill that role successfully. If nothing happened, or if the sex was consensual, she could avoid the courtroom altogether; without her, there would be no trial.
Though women sometimes lie, just as men sometimes lie, there is no systematic reason for a woman to come forward and claim that somebody raped her when in fact nobody did. The defendant thus enters the courtroom with a built-in motive to lie, to get out of that same courtroom. The victim enters the courtroom with no such incentive. Her incentive is to tell the truth under oath, like any witness who could have said nothing and avoided the trial.
Does this mean that a particular victim had no reason to lie? No. Perhaps this victim has told friends that she hates the defendant for some reason and intends to cause him harm. That is a motive for her to bring a false accusation against him, and the jury should hear about it, as a matter of Sixth Amendment right. Or perhaps she is pregnant under the more restrictive abortion regime that could replace the current one. Maybe a state or federal law says that she can terminate her pregnancy only if she can prove rape and identify the rapist. In such a situation, bringing a false charge against the defendant—if he is the father of the pregnancy—could be the product of the motive to terminate. That motive too would make its way into the courtroom.
Systematically, though, while men and women alike could have case-specific reasons for lying, the rape defendant always has a reason for testifying that he is innocent, regardless of the truth, and the victim has no such consistent motive to say that he is guilty. It is therefore misleading to speak of “he said/she said” cases, as though there is no more reason to doubt what he said than there is to doubt what she said. Before we hear about specific reasons for the complaining witness to lie, we have no basis for assuming that the victim is making a false accusation. The reverse is true of the defendant. Weighing the two against each other should therefore lead, absent additional evident motives, to a conviction. And convicting on the basis of the victim’s eyewitness testimony is entirely legitimate.
So What Would It Mean to Believe All Women?
If we acknowledge that women sometimes bring false accusations, does that mean we should believe only some women but not all women? We can still believe all women, so long as we make sure to follow up with other potential evidence sources before convicting the defendant of rape.
Imagine a woman appearing at a police station to complain that the defendant raped her. The police currently might ask questions like “Do you have a boyfriend?” because, according to one pop-psychology theory, women invent rape stories when they have cheated on their boyfriends. To ask such questions is to start off an interaction with the victim by manifesting their skepticism.
Under the “believe all women” approach, police could sit down with the victim and ask her to tell them as much as she can remember about the assault. They could listen carefully, nod their encouragement, and take notes or record the conversation, to ensure that they do not forget an important detail. They thereby show the woman that they are taking her complaint seriously, accepting what she tells them pending evidence to the contrary.
Police might then ask whether anyone else knows about the rape. This question assumes the truth rather than the falsity of the accusation and invites the victim to tell the police about additional evidence of the crime. Maybe she told her best friend about it the day it happened or maybe a neighbor asked her “why was there so much noise coming out of your apartment yesterday?,” providing further corroboration. They might even ask whether the perpetrator is aware that he raped her. Police in this scenario are believing the woman—conducting themselves with an eye toward communicating to her that they accept what she is saying. She is likely to stay with the process if police treat her, as they would any respectable witness, as presumptively credible.
Then, when they talk to other potential witnesses, look at the physical evidence, and question the accused, police might discover that their original faith in the woman’s story was unwarranted. Believing her in no way rules out a later conclusion that her claim was false.
Police are capable of a variant on the approach I suggest, an approach that some police departments, at least in theory, already take. Police arrest a suspect in a criminal case on the basis of probable cause. When they pick him up, police presume that he is guilty. They say, however, that if he waives Miranda rights and talks to them, they might determine that he is innocent after all. They thus employ a rebuttable presumption of guilt when arresting a suspect but maintain an openness to further evidence rebutting that presumption.
In reality, police have a difficult time changing their minds about someone whom they have arrested for a crime. They will ask questions if they can, but their goal is to develop an even stronger case against their suspect rather than to test the existing case against him. Still, they purport to be open. Assume that this is a complete pretense. That just means that they can act “as if” they believe something that they do not actually believe. Having that skill means that they can act “as if” they believe the woman who comes into the station and says, “my co-worker Doe sexually assaulted me.” Like suspects, victims too prefer to talk to someone who appears ready to believe them. Ironically, then, rape victims may be better at conveying a coherent and credible narrative about a rape if police behave as though they believe all women. And that reaction could translate into the courtroom and perhaps convictions as well.
In general, we tend to listen to people with an expectation that they will say a particular thing that we have in mind. If they meet that expectation, we nod and encourage them. If they depart from what he had thought (or maybe hoped) we would hear, we may stop giving eye contact or otherwise communicate that what they have to say is unwelcome. We can therefore all benefit from doing what I suggest police do: believe everyone who comes our way to tell us something. We can always reject the message once we understand it and evaluate it with an open mind. But if we shut it down right away, with our words and our nonverbal responses, we may never hear the thing that we truly need to hear.
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Original publication November 7, 2018 by VERDICT: Legal Analysis and Commentary By Justia (https://verdict.justia.com/author/colb
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Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variety of law reviews, including Stanford, Columbia, New York University, and George Washington, on such topics as privacy from police searches, incarceration, reproductive rights, and why courts are more offended by wrongdoing that results in concrete rather than abstract harm. Colb’s most recent book, Beating Hearts: Abortion and Animal Rights (co-authored with Michael C. Dorf), addresses some of the common puzzles, themes, and challenges that animate and confront both the pro-life and animal rights movements. She has also published a book about sex equality in the Twenty-First Century, entitled When Sex Counts, and a book about veganism entitled Mind If I Order the Cheeseburger?. Before beginning her career in law teaching, Colb clerked for Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. She received her J.D. magna cum laude from Harvard Law School and her A.B. summa cum laude and valedictorian from Columbia College.