Ken Armstrong and T. Christian Miller of ProPublica, the propaganda arm of the Sandler Foundation (founded by Herb and Marion Sandler, the living embodiments of Honore de Balzac’s maxim “Le secret des grandes fortunes sans cause apparente est un crime oublié, parce qu’il a été proprement fait.”), have some thoughts on complaining witnesses in sex crimes cases. They’ve picked some instances when sex crimes witnesses were charged with filing false reports in support of “Listen and Believe.” This ignores that no person will ever do as much time for filing a false report as for being wrongfully convicted of rape, but we can’t let pesky facts disrupt the narrative.
There are many reasons for women to think twice about reporting sexual assault. But one potential consequence looms especially large: They may also be prosecuted.
For filing false police reports, which they should be if they are lying.
This month, a retired police lieutenant in Memphis, Tenn., Cody Wilkerson, testified, as part of a lawsuit against the city, not only that police detectives sometimes neglected to investigate cases of sexual assault but also that he overheard the head of investigative services in the city’s police department say, on his first day in charge: “The first thing we need to do is start locking up more victims for false reporting.” It’s an alarming choice of priorities — and one that can backfire.
This is a deceptive attempt at framing by Armstrong and Miller of the problems of the Memphis Police Department to get to the conclusion of ‘females aren’t listened to’ and ‘they don’t take rape seriously.’ This is a well-worn trick of advocacy types who take a fact and use it to draw a faulty conclusion, usually including some type of call to action.
The problem of the MPD is not that the department is full of evil, sexist men who hate females; their problem is one of crooked cops. Some are a little bent and don’t like actually doing police work. Those are the focus of Armstrong and Miller in this piece. Others are just crooks with badges. Those are the ones they ignore.
WREG in Memphis reported that the number of MPD officers arrested for criminal activity between 2011 and 2016 was 114. That’s a lot of dirty cops. It also lines up with a 2012 WREG news report in which then-Police Director Toney Armstrong described 20 arrests per year as being about normal for the MPD.
In short, the MPD has a problem with putting badges on people who probably shouldn’t have them. The types who put the badge on just to get a paycheck, to move up the ladder by massaging their clearance rates or arrest numbers, or worse, the ones who use the badge as a cover to commit to crimes.
In 2015 we wrote an article for ProPublica and the Marshall Project about Marie, an 18-year-old who reported being raped in Lynnwood, Wash., by a man who broke into her apartment. (Marie is her middle name.) Police detectives treated small inconsistencies in her account — common among trauma victims — as major discrepancies. Instead of interviewing her as a victim, they interrogated her as a suspect. Under pressure, Marie eventually recanted — and was charged with false reporting, punishable by up to a year in jail. The court ordered her to pay $500 in court costs, get mental health counseling for her lying and go on supervised probation for one year. More than two years later, the police in Colorado arrested a serial rapist — and discovered a photograph proving he had raped Marie.
What happened to Marie seemed unthinkable. She was victimized twice — first raped, then prosecuted. But cases like hers can be found around the country.
As can cases in which men were prosecuted for crimes they didn’t commit, like…rape? It sucks, doesn’t it? Not enjoying the protection of the law to which citizens are supposed to be due.
In Marie’s case, and with some of the other cases, the victims hadn’t acted the way the police thought a victim should act. Their affect seemed off, or they declined help from an advocate, or they looked away instead of making eye contact. As a result, their stories became suspect.
That’s terrible. But, as usual, I can do better.
Wilbert Jones, of Baton Rouge, LA, was recently freed after 45 years of imprisonment for the rape of a woman in 1971. The case was prosecuted entirely on the identification of Jones by the woman.
Listen and Believe, right?
The problem was, Jones didn’t do it. The prosecutor in Jones’ case withheld exculpatory evidence in his trial of another rape committed in an identical manner while Jones was in custody.
Marie was given a $500 fine. Jones spent 45 years in a Louisiana prison. Ruminate on which set of consequences you would rather suffer because a complaining witness was or was not ‘believed.’
In Lynnwood, the police have since changed the way they do things to prevent anything like Marie’s case from happening again. Detectives today receive additional training about trauma and cannot doubt a rape report absent “definitive proof” that it is false. In an effort to build trust, the department ensures that victims get immediate help from specially trained advocates. Those changes correspond with guidelines for rape investigations that sex-crimes experts have urged for police departments around the country. Those guidelines stress: The police should investigate thoroughly while reserving judgment. Evidence trumps assumptions. The police should be wary of stereotypes; they should not, for example, find an adolescent victim less believable than an adult. Some victims will be hysterical, others stoic; police should not measure credibility by a victim’s response. Police should not interrogate victims. They should listen.
If police don’t question witnesses, how will they get the facts necessary to gather evidence sufficient to argue probable cause for an arrest warrant?
Nationally, police departments, victim advocates and academics have experimented with ways to relieve the burden on rape victims who might fear dismissal, or even arrest, by reporting their attacks to the police. Perhaps the most influential campaign to change police procedures is known as Start by Believing, sponsored by End Violence Against Women International, an organization that conducts training for the police and victim advocates. The campaign asks participants to make a simple pledge: Start the process of investigation by believing those who come forward. Police agencies in nearly every state have joined up.
Or, as Saint Anselem of Canterbury wrote in Proslogion: Credo ut intelligam (I believe so that I may understand). This is all well and good if you are propigating theology, but it is a horrible concept for a judicial system that is supposed to be driven by evidence. It also flies in the face of Armstrong and Williams’ own facts. They stated that ‘Mary’ told her version of the story and then backed off on being questioned. She lied by contradicting what later turned out to be true.
The witnesses are lying.
Armstrong and Williams’ presented the deposition of Cody Wilkerson against the MPD as true, which accused certain cops in the MPD of lying about rape investigations and clearances.
The cops are lying.
I presented the case of Wilbert Jones who was wrongfully convicted of rape because of a false identification by the complaining witness and the witholding of exculpatory evidence by the prosecutor in his case.
The witnesses and the lawyers are lying.
This is where we come to the problem with this pithy sloganeering proffered by advocacy-types in general and feminists that fit really well on bumper stickers but make for bad praxis: In the criminal justice system, almost everyone is lying about something. Witnesses, lawyers, defendants, cops, jurors, and judges. Everybody is selling bullshit to everybody else. At the end of the game, the loser is the one stuck having to eat the biggest pile of bullshit. That’s usually the defendant.
Police in Ashland, Ore., started a program called You Have Options. Agencies that participate handle sexual-assault complaints in a radically different way. Victims can report a rape but request that the police not pursue criminal charges. The idea is to give more control to victims, who might otherwise be reluctant to involve themselves with law enforcement. The detective who founded the program believes it will help the police in the long term by increasing the number of people who come forward and allowing police to collect information that could be used in future investigations if a victim changes his or her mind.
Meanwhile, criminals are allowed to just keep walking the streets because the complaining witness, by some perverse nonlogic, is given more say-so in the process beyond the choice to testify or not.
Both programs are controversial. For instance, Stacy Galbraith, the detective in Colorado who arrested the serial rapist in Marie’s case, told us her starting point isn’t believing: “I think it’s listen to your victim. And then corroborate or refute based on how things go.”
This sounds suspiciously like actual police work. Are we so far gone as a society that skepticism and following the facts where they lead, even if it is to a dead end, is controversial?
You Have Options is an even tougher sell. Many police officers are instinctively resistant to the idea of not immediately investigating a rape. Their job, after all, is to catch bad guys, not let them get away.
It is clear that some law enforcement agencies have begun to experiment with ways to be more responsive to rape victims. It is equally clear that there are no simple solutions. The path forward will almost certainly be contentious. But if we are going to make it easier for victims to tell their stories to law enforcement, change is essential.
Here’s where I part ways with Armstrong and Williams (again). The purpose of law enforcement is to catch bad guys. The purpose of the criminal justice system is to protect defendants from the power of the state. The personal comfort of witnesses is not a goal nor should it be. Witnesses should be uncomfortable in testifying because of what is at stake: A person’s freedom or life. The process of depriving a defendant of their freedom should never be comfortable or easy, no matter how deserving of destruction the defendant may be.