I think we’ll circle back around to the clear and convincing standard, too–because the preponderance standard will eventually cause colleges to lose some of these cases brought by expelled students. DOJ may like the preponderance standard for this kind of case, but I predict that judges won’t.
@Hunt, you might be right on the standard eventually used.
You should have read the book. Then you could share your opinions on the cases and which standards were met. 
To be fair, CF didn’t have opinions on the standards each case met.
I’m not sure myself.
I may get around to reading the book. I’m sure I will be outraged if prosecutors failed to do their jobs properly. But I don’t think those examples will change my opinions much, because my opinions are based mainly on principle–as well as my own observations and experiences, which of course nobody else has to value, but that I tend to value a lot.
Is that not currently required? I’m typing on a iPad right now and don’t have my laptop to do good Googling, but IIRC the colleges where we’ve discussed cases have such requirements. I think the accused should be able to present witnesses. I like the idea that the “judge” should be able to vet questions before they are asked, rather than the way it works in court, where the lawyers can ask any objectionable, prejudicial question they want and only then does the opposing counsel get to object.
That reminds me-- the book claims that although lawyers are not supposed to lie in court, and are not supposed to have their clients present defenses that the lawyer KNOWS are untrue, defense lawyers don’t abide by this. Do any lawyers here have a comment about that?
Some lawyers don’t do what they are supposed to do, just like members of any other profession.
Me too. 
I’m very sorry for misremembering your position on college rape adjudication, @Hunt. I apologize. Your actual position makes more sense to me that what I misattributed to you. Again, I’m sorry for the error.
That’s because you kind of see a rape apologist behind every door, CF. Hunt has been pretty clear on his position.
Are you conceding that people who say that colleges shouldn’t adjudicate rape cases are rape apologists, PG?
@“Cardinal Fang” : good question in the second part of your comment. All lawyers–defense attorneys, prosecutors, everyone–as “officers of the court” and bound by the canons of ethics, cannot knowingly present information they KNOW is untrue. For example, if I am a defense attorney, and my client tells me “X” happened, I cannot knowingly allow him to testify that actually, “Y” happened. I could lose my license to practice. Ditto any pleading or motion (or any legal document) I file…I am attesting, by signing, that what is contained therein is true to the best of my knowledge. I have been practicing law a long time and the only lawyers–defense or otherwise–I have ever known who have “not abided by” their ethical duties were disbarred.
Whenever you argue in favor of any kinds of civil liberties, including protections for the accused, as well as for free speech, you are inevitably going to be labeled an apologist for any bad people who benefit from those civil liberties. It just goes with the territory.
I was in a bookstore yesterday, and saw a book of essays by defense attorneys on the topic of “How can you defend those people?” It looked like it would be an interesting read.
I’m going to return to this statement by Hunt, because in my opinion there are a couple of things wrong with it.
First of all, if the police treat the accuser like a liar when she first appears, they cannot be doing it on the basis that a conviction is unlikely. Having not heard any details other than that it was an acquaintance rape, they are in no position to evaluate the likelihood of conviction. Maybe if they bother to investigate, they’ll get a confession, as they did in the case of Beau Donaldson. This is the first place where cases are not pursued, when if they were pursued they would result in a conviction.
Second, and this is where I think the big increase in convictions would occur, if women are treated like lying sluts when they report rapes, women won’t report rapes. If police start treating women like they’re telling the truth, more women will report. If we double or triple the number of reported rapes, we won’t also double or triple the number of convictions, but we will increase the number of convictions substantially.
I don’t know any reason to believe that unreported stranger rapes are any different than reported stranger rapes. I don’t have any reason to believe that unreported acquaintance rapes are any different than reported acquaintance rapes. Do you have any evidence that they’re different?
I think where we probably differ the most, CF, is in our evaluation of the percentage of acquaintance rape cases that could be proven to be crimes beyond a reasonable doubt. I think it’s pretty low. Very few people confess to any kind of crime. I also think unreported cases are more likely to be difficult to prove than reported cases, because a lot of people have some understanding of how hard it is to prove cases like that.
And how true is it, generally, right now, that women reporting rapes are treated as lying sluts? In case I need to say this, I don’t think they should be treated as lying sluts. And I don’t deny that this has been a big problem, and that there are still reports of this happening. But is it, in fact, widespread at this point? And, as I asked above, if there are places where this isn’t the case, how much has the rate of reporting and ultimate convictions increased?
Let me put it this way–what happens if my predictions are right about this? Let’s say police departments and prosecutors become much better at interviewing rape complainants with respect, and at doing the initial investigations. If reporting doubles, but convictions only increase by, say, 5 or 10%, will you think that there has been a success, or that there must be some other secret reason that these cases aren’t being brought and won?
Let’s do the math here. I’ll assume existing conviction rate of 90%, since that’s what you say it is. (I call a plea a conviction; I don’t know if that’s standard, but for my purposes an offender who is sentenced is “convicted”.) I’ll assume that 20% of cases that are brought to the police end up being prosecuted or pled. So, of all rape cases brought to the police, 18% end in conviction. (These are not the numbers for Missoula; the numbers were much lower.)
I’ll assume also that prosecutors would be equally picky for the additional cases as they are for the existing cases; 90% of the new cases which are brought to trial will result in conviction.
So, if your predictions are right, then the of the existing cases brought to the police, 18% result in a conviction, but of the new cases brought to the police, 1-2% would result in conviction. To a first approximation, none of the newly reported cases are viable; essentially none of them result in a conviction.
Basically, @Hunt, you are telling me that every woman who has a viable case already reports it. Nobody who could get her rapist convicted, you are telling me, fails to report. Nobody says, “No, I can’t stand this, it’s too painful to report, I just want it to go away.” That never or almost never happens, according to this scenario.
I’m sorry, I don’t believe this. I don’t think that all the “good” (=prosecutable) cases are reported. I don’t even think all the “good” stranger rapes are reported. I think that many rape victims can’t bear the thought of going to the police, even though they could nail their rapist if they went to the police.
You’re also ignoring another factor that might result in more convictions. I assume you agree that now, some women report rapes too late; they could have gotten a conviction if they had reported right away and gotten a forensic examination, but they waited a day or a week or a month, and the evidence vanished. If the justice system were perceived as more welcoming and less accusatory, some of those women would report sooner, and that by itself would increase the conviction rate even if there were no new cases brought to the police.
There’s a further factor. Suppose Lisak is right that a lot of rapists are serial rapists. If the number of reported rapes double, some of the new reports will accuse the same guy that an existing report accuses. That could lift an existing non-prosecutable case to a conviction: we might not believe one accuser, but we’d believe two different accusers.
So to answer your question: if the number of reported rapes went up 100%, but the number of convictions only went up 7%, then I’d want to drill more deeply to find out what was going on, because I don’t believe that all the “good” cases are already reported.
By the way, this fact sheet says that the conviction rate for rape is much lower than 90%, more like 50%.
https://www.uky.edu/CRVAW/files/TopTen/07_Rape_Prosecution.pdf
The fact sheet has a long bibliography that looks plausible. It contains several studies authored by Rebecca Campbell, the researcher that dstark links to about the trauma of rape and how rape victim’s memories are affected by that trauma.
CF, I think a potential problem with your math is that it lumps together all kinds of rape cases, including stranger rapes, acquaintance rapes, and partner rapes, (Note that we haven’t really discussed partner rape cases here, although the UK stats suggest they are the most common but least reported kind of case.) Out of the cases that led to the 90% conviction rate, how many of them were the kind of low-evidence acquaintance rape case we’ve been talking about? What’s the conviction rate for that kind of case? What’s the conviction rate for that kind of case when the only evidence is oral testimony by the complainant?
I completely agree that women should be encouraged to report rapes promptly, and that police and prosecutors should treat complainants with respect and should investigate complaints as they would for any other crime. But I’m just trying to add a note of caution here, because acquaintance rape cases are not like other crimes–they are much, much harder to prove. Most types of crime are hard to solve because it’s hard to find the person who stole your car, or who picked your pocket. Prompt reporting is still important, even if it doesn’t make much difference in the evidence available, because (rightly or wrongly) juries are going to be more reluctant to convict somebody if the complaint is substantially delayed.
I keep wondering if just the fact of an increase in reporting of acquaintance rapes will decrease the number of rapes over time. At present, it seems many rapists don’t expect their actions to be reported. If reporting becomes more common, maybe that will inhibit those with the inclination to rape their friends. I find it difficult to believe at least some of these acquaintance rapists can’t be socialized into appropriate behavior.
Also, if more women report, isn’t there going to be less shaming about being raped? I think that is already happening.
@Hunt , it would help if you had read the book.
Kirsten Pabst, the assistant DA in Missoula County and soon to be head DA, has a 99% conviction rate. She protected her yield by avoiding any cases of acquaintance rape, even the ones with witnesses and the one where the guy was on camera slipping a Xanax into a drink of a woman he raped. It got so bad that the police knew there was no chance of punishment for most cases. I don’t have the book with me, but if I remember correctly they chose to prosecute only 14 of 112 cases sent to the DA’s office from the police over a 12 year period. Most cases the police didn’t bother. The prosecutors would not work with either the police or the victims to gather needed evidence.
Dean Charles Couture, at least, seemed to be expelling the rapists. Once he retired that stopped happening and rape went totally unpunished.
Kirsten Pabst continues to lie about her role despite the existence of a transcript. Her behavior (and that of her boss, Fred Van Valkenburg) is a major theme of the book. Apologies if this has been linked before: http://missoulian.com/news/local/former-dean-blasts-prosecutor-s-presence-at-um-rape-hearing/article_bf3baf24-33f3-563b-b8b8-424b67e43d58.html
Refuse to punish boys who raped a 5 year-old? Yes, it happened in Missoula.
That doesn’t matter. If conviction rates are 90%, and of existing cases 20% are brought to trial, then a 100% increase in reported cases and a 5% increase in convictions means that none of the new cases are prosecutable. I agree that the newly reported cases would be “worse” in terms of prosecutable cases, but not that they would be so much worse that none would result in convictions. Plenty of stranger rapes go unreported, for example.
I refer you to the fact sheet I quoted: “Conviction rates for intimate rapists were also significantly lower (36.4% to 61.9% of prosecuted cases)…” But “low-evidence” is your phrase, not mine. I don’t accept that all cases of acquaintance rape are low-evidence, nor do I accept that all the high-evidence acquaintance rapes are reported, leaving the low-evidence cases unreported. In the Missoula book, one of the cases had the video of the accused leaving with the accuser’s pants, plus the blood on the mattress and sheets, plus the roommate’s testimony that there was blood all over including on the wall, and the medical evidence that she wasn’t on her period. I call that evidence. If this was consensual sex, where did all the blood come from?
Near zero, I should imagine, but that’s not the kind of case we’ve been discussing. That’s not the kind of case discussed in the book. We’re talking about acquaintance rape cases where there is evidence.
I think it was some other kind of sexual assault, not rape, and they were punished-- with two full hours of community service. But when the mother asked why they hadn’t gotten a more serious punishment, she was told, “Boys will be boys.”