The "believe the woman" zealotry promoted by Juanita Broaddrick's defenders is bad for feminism.
BY CATHY YOUNG
Juanita Broaddrick's explosive charge that President Clinton raped her 21 years ago has elicited the feminist movement's toughest -- and most confused -- response yet to Clinton's chronic woman troubles. National Organization for Women president Patricia Ireland issued a statement that managed to be simultaneously too harsh and too weak. Too harsh because it essentially forbade Clinton to defend himself, denouncing in advance as a "nuts and sluts" tactic any claim that Broaddrick made the story up or was depicting consensual sex as assault. Too weak because, after endorsing her "compelling" account, it urged the country to move on and "stop wasting time on unprovable charges." If you believe we probably have a rapist in the White House, shouldn't you be demanding his resignation? Clearly, feminists remain torn between loyalty to Clinton -- or at least reluctance to do anything that would aid his political opponents -- and the belief that a woman who makes an accusation of rape must be supported.
This is not a dilemma for me. I have never voted for Clinton; as a libertarian conservative, I question most of his "pro-woman" policies, from affirmative action to the Violence Against Women Act. As for Broaddrick, I have no way of knowing if her story is true. The allegation is deeply disturbing; so is the fact that the president of the United States has so little credibility that his denials count for nothing. But I am also troubled by the "believe the woman" zealotry that may be as bad for feminism as knee-jerk allegiance to a political ally. This zealotry is now being embraced by some conservatives, who are uttering the stock feminist lines about how lack of support for Broaddrick will discourage other victims from coming forward.
Many have said that in 1978, a rape victim -- particularly one involved in an adulterous affair, as Broaddrick was -- was likely to face disbelief and opprobrium if she came forward. Actually, by then things were changing rapidly; by 1980, 46 states had "rape shield" laws preventing the use of the woman's sexual history in a rape trial. But the feminists who helped bring about these changes were undoubtedly fighting real injustices. Well into the '70s, jurors in rape trials were commonly advised to treat the woman's testimony with special caution since a charge of rape was "easily made and difficult to defend against, even if the accused is innocent" (the "Hale warning," based on the dictum of 17th century British jurist Lord Matthew Hale) and to consider "unchaste character" as damaging to the accuser's credibility or suggesting consent.
All too often, however, feminist rhetoric merely replaced the old stereotypes that viewed most rape complainants as scorned women or sex-crazed neurotics with an equally simplistic cliché: "Women don't lie about rape." Legal theorist Catharine MacKinnon asserts that "feminism is built on believing women's accounts of sexual use and abuse by men." Some colleges with speech codes have equated talk of false rape allegations with "discriminatory harassment." Activists may even refuse to believe "victims" who admit that they lied, suggesting that women recant out of fear or denial, and many bristle when the media publicize stories of falsely accused men.
Actually, FBI statistics show that about 9 percent of rape reports are "unfounded" -- dismissed without charges being filed. The feminist party line is that most of these are valid complaints, nixed because the authorities lack sufficient proof or distrust acquaintance rape claims. But dismissals because of insufficient evidence usually occur further down the pipeline and are not in the "unfounded" category. Generally, a complaint is unfounded when the accuser recants or when her story is not just unsupported but contradicted by evidence.
Measuring false allegations is all the more difficult since policies on unfounded complaints differ between jurisdictions. A Washington Post investigation in Virginia and Maryland found that nearly one in four rape reports in 1990-91 was unfounded. When contacted by the newspaper, many "victims" admitted they lied. More shocking figures come from a study by now-retired Purdue University sociologist Eugene Kanin published in Archives of Sexual Behavior in 1994. After reviewing the police records of an Indiana town, Kanin found that of 109 reports of rape filed in 1978-87, 45 -- or 41 percent -- turned out to be false, as the women themselves admitted after the investigation.
Could real victims have recanted under pressure from sexist cops? The town's police used the controversial practice of lie detector tests, which have been attacked on scientific as well as political grounds (the test rarely misses liars but may have a high error rate with truthful subjects). But Kanin also analyzed police files from two state universities -- where lie detectors were not used and all victims were interviewed by a female police officer -- and came up with similar results. Moreover, when a specific man was accused, the details of the recantation always matched his story.
While Kanin cautioned against generalizing from his data, he concluded that "false rape accusations are not uncommon." It's hard to dismiss him as a backlasher: His pioneering research on "male sexual aggression in courtship" goes back to the 1950s and is still cited in feminist literature on date rape. And he is careful not to legitimize once-popular notions that "crying rape" is a product of some defect in the female psyche or of a secret rape wish. Some false complainants, of course, are mentally disturbed. But for most women in Kanin's study, the hoax served a practical purpose, an "alibi" for an illicit sexual encounter that may be discovered through pregnancy or in some other way; revenge for rejection or betrayal.
Some argue that no woman would expose herself to the ordeal of prosecuting a rape charge for such frivolous reasons. But as Kanin points out, men and women do commit extreme acts with highly unpleasant consequences (including murder) over "petty and commonplace transgressions."
Feminists often decry our culture's alleged eagerness to believe the "myths of the lying woman." But it seems that it's the "victims don't lie" myth that is entrenched today. There is virtually no research on false allegations; Kanin's study (which he says a female colleague tried to discourage him from pursuing) received no press coverage.
The "believe the woman" principle has also gained ground in the legal system. Once, many states' laws required the testimony of the accuser to be corroborated by other evidence (though only a minority of jurisdictions ever strictly enforced this rule, and by 1980 it was nearly extinct). Feminists had a strong claim of discrimination when they noted that there was no such requirement for robbery or assault. Still, as feminist legal scholar Susan Estrich acknowledged in her influential writings on rape law in the 1980s, without corroboration a conviction is far less likely for any crime. But Estrich argued that, since "corroboration may be uniquely absent" in acquaintance rape cases, giving the same weight to corroboration for rape as for robbery or felony assault was unfair to rape victims.
Of course, it then follows that to be "fair," we should convict defendants in rape cases on less evidence -- and give the accuser's word more weight -- than in other crimes. Which makes those old sexist warnings about how hard it is for an innocent man to defend himself against a charge of rape ring uncomfortably true.
"Thank goodness," writes New York prosecutor Linda Fairstein in her book "Sexual Violence," "[the victim's] testimony -- when it is credible -- is all that is needed to convict a rapist, as it is any other criminal."
But what is "credible"? In 1996, Los Angeles police officer Harris Scott Mintz was accused of rape by two women who were said to be "very credible": a woman in the neighborhood he patrolled, then his own wife. At a pretrial hearing, the judge pronounced that he had no doubt about Mintz's guilt. Then, Mrs. Mintz admitted that she made up the charge because she was angry at her husband for getting in trouble with the law; subsequently, Mintz's attorneys uncovered evidence that the first accuser had told an ex-roommate she had concocted the rape charge in order to sue the county, and that she had tried a similar hoax before. By the time the case collapsed, Mintz had spent five months in jail.
There are objective ways of gauging credibility: whether the story is consistent, whether verifiable details check out. But too often, it has to do with subjective impressions. Feminists say that a rapist may go free because the woman is not a "good victim": too calm, too angry, too flashy. But juries may also convict because they like the victim or dislike the defendant. Of course, character and demeanor matter in almost any trial. But they may assume a disproportionate importance when believing one party or the other becomes the central issue.
Ironically, this creates a strong incentive for the defense to attack the woman's credibility -- that is, to use the "nuts and sluts" tactics that feminists have decried. The problem is that the accuser's character and her past can sometimes have a direct bearing on the guilt or innocence of the accused.
Take the 1991 case of Maryland realtor Gary Hart (not the politician), who was accused and acquitted of raping a woman he had been dating. Evidence produced at the trial, which became a cause célèbre in the local media, showed that the woman had a history of emotional instability and fantastic claims of sexual assault made to psychiatrists and police. Surely these were facts the jury deserved to know. Yet many victims' advocates reacted as if this were a gratuitous character assault and deplored the "abuse" of the woman. Of course, if Hart was innocent, he was abused far worse; the negative publicity forced him to sell his business.
Many courts, in fact, have barred such "abusive" inquiries under an expanded interpretation of rape shield statutes -- applied not just to stop defense lawyers from painting the victim as a slut who deserved it, but to suppress relevant evidence related to the woman's sexual history. The misuse of shield laws was recently spotlighted by the notorious "cybersex" case in New York, in which Columbia doctoral student Oliver Jovanovic was convicted and given a lengthy prison term for the sexual abuse of a Barnard student he had met on the Internet. Jovanovic's claim that the encounter involved consensual bondage was crippled by the exclusion of portions of the correspondence in which the young woman discussed sadomasochism and her S&M relationship with another man. The law may have ended up shielding perjury: On the stand, the woman testified that she never gave Jovanovic any indication of her interest in S&M.
No one knows how often men are convicted of rape on the basis of false allegations. We only know about the lucky ones who are later cleared -- like James Liggett in Washington state, who was convicted in 1991 of raping a woman he had met through a dating service and spent a year in prison before her story fell apart (not only because she reported an eerily similar rape by another man from the same dating service but because a private detective hired by Liggett found out that she had a history of unstable behavior, including dubious claims of rape).
What happens more often is that, due to activist pressure not to dismiss rape charges, men who are most likely innocent are subjected to a lengthy and costly ordeal. Traditional attitudes at their worst may result in a Teflon system to which few rape complaints stick; but prosecutorial zeal on behalf of women may result in a Velcro system that clings to the most dubious charges. When former New York police officer Desmond Robinson was accused of sexually assaulting a policewoman during a night of bar-hopping, the case dragged on for five months after the alleged victim was caught in a major lie: She first denied and then had to admit that they had consensual sex in the bathroom of one of the bars, though she still insisted that he forced her to perform oral sex later that night. (When she changed her story yet again and reverted to insisting that there had been no consensual sex at all, the sexual assault charges were finally dropped.)
The judicial system is not monolithic; stories of excessive zeal in pursuing alleged culprits can always be countered with stories of callous indifference to real victims. Still, there is no doubt that in many cases, the "women don't lie" dogma has led to serious infringements on the rights of accused men.
The trouble with the feminist position is that it seems to leave no room for the presumption of innocence when a woman accuses a man of violating her. After the notorious sexual assault trial of sportscaster Marv Albert, defending the judge's decision to admit compromising information about Albert's past but not about the woman's, attorney Gloria Allred decried "the notion that there's some sort of moral equivalency between the defendant and the victim" -- as if the defendant did not have the same moral standing as his accuser until he has been proven guilty.
To recognize that some women wrongly accuse men of rape is no more anti-female than it is anti-male to recognize that some men rape women. Is it so unreasonable to think that a uniquely damaging and stigmatizing charge will be used by some people as a weapon, just as others will use their muscle as a weapon? Do we really believe that when women have power -- and surely there is power in an accusation of rape -- they are less likely to abuse it than men? As Columbia University law professor George Fletcher has written, "It is important to defend the interests of women as victims, but not to go so far as to accord women complaining of rape a presumption of honesty and objectivity."
Feminists have often been accused of betraying women out of allegiance to Clinton. The charge of hypocrisy is hard to refute, since many of these same feminists have made solidarity with women a basic principle. But feminism shouldn't be about supporting Clinton, or blindly supporting women. It should be about fairness, including fairness to men who find themselves under the cloud of a charge that can never be proved or disproved.
March 10, 1999
Cathy Young is the author of "Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality."