Reporting on Rape: We Can and Must Get It Right
As a former sex crimes prosecutor, I share the outrage of other feminists in the aftermath of Rolling Stone’s discredited article on the rape of a student called “Jackie” at the University of Virginia. It’s sickening to know that Rolling Stone’s shoddy work will be used to set back our efforts to get justice for rape survivors and accountability for rapists. It’s sickening to watch a discredited account of rape receive such outsize coverage from media outlets that had shown no interest in the story when it was an account of terrible sexual violence. This journalistic debacle feeds all the misconceptions I fought against as a prosecutor and continue to fight against now as an advocate for better prosecution of sex crimes.
In their “Note to Our Readers,” Rolling Stone’s editors admitted to only one mistake: “honoring Jackie’s request to not contact the alleged assaulters to get their account.” Their motive for this one failure was “trying to be sensitive to the unfair shame and humiliation many women feel after a sexual assault.” Rolling Stone adds insult to injury by suggesting that journalists must choose between good investigations and sensitivity to victims.
As I learned as a prosecutor, treating sex crime survivors with respect doesn’t mean neglecting to investigate their cases. On the contrary, a good investigation is one of the most important things you can do for your complaining witness, because it will probably turn up evidence that corroborates her account and strengthens her case. In the minority of cases in which her statements don’t square with the facts, a good investigation will discover those discrepancies before more harm is done. In my experience, when law enforcement officials fail to take rape cases seriously, it’s not because they are too conscientious about investigating; it’s because they substitute stereotypes and assumptions for investigation and evidence.
It was and still is sadly common to encounter lawyers, judges, and other law enforcement personnel who doubt accounts of rape for terrible reasons. Reasons like: the defendant and the complaining witness knew each other. The rape took place in someone’s apartment, dorm, or hotel room. The physical violence did not exceed the amount of force necessary to accomplish the rape, so there were few visible injuries. One or both of the parties had consumed alcohol. There was a delay before the complaining witness reported the rape. These factors don’t fit stereotypes of what a rape should look like. But they are terrible reasons to disbelieve a report of rape, because most of these factors are true in most real incidents of rape.
I train new prosecutors each year. I teach them to evaluate the credibility of complaining witnesses in sex crime cases using valid criteria instead of stereotypes. I urge them to consider whether the complaining witness had a motive to lie. To look not at whether there was a delay in reporting, but at the circumstances that prompted the report whenever it was made. To consider whether the complaining witness is forthcoming, whether it seems that she is honestly trying to provide as much information as she is able to, or that she is trying to conceal and to limit how much you know. And, critically, whether her account is consistent with available evidence—after you gather lots of it.
If anything good comes of the Rolling Stone disaster, it should be the realization that rape cases aren’t a hopeless murk of he-said, she-said. They are usually capable of being proven or disproven. Rolling Stone’s story, which was partly or wholly untrue, was exposed as such by the Washington Post’s investigation in a matter of days. That’s what good investigations can do—by prosecutors or journalists.
A good prosecutor preparing a rape case will quickly contact “outcry” witnesses—the first person or persons the complaining witness told about the incident. He or she will get phone records, taxi records, security camera videos, social media postings, and text messages. He or she will seek medical records, and will inquire about injuries if the account is of a rape so excessively violent that injuries would be expected. Sabrina Rubin Erdely, the Rolling Stone reporter recounting Jackie’s story, could and should have done all of the above, even without having to contact the alleged assailants, and would quickly have discovered the problems in her story, such as the outcry witnesses’ flat contradiction of Jackie’s account.
So why did Rolling Stone get it so wrong? Of all the stories for the magazine to select as the centerpiece of its article, how did it manage to choose the outlier, the story that did not square with the facts, when most reports of rape are true? Consider another trap I urge new prosecutors to avoid: the mistaken idea that the higher the level of alleged violence, the more worthy the complainant is of belief. I wonder whether the factor that led Erdely to select "Jackie" as her focus and to fail to check her story is, ironically, the same bias that prevents many rape victims from being believed: a preference for over-the-top violence in order to consider something a real rape, as opposed to the "ordinary" violence present in most rapes. I’ve seen attorneys fall prey to this way of thinking and fail, as a result, to screen out false reports even while failing to screen in true reports. Most rapes involve a strength differential, and most rapists use strength and intimidation without having to smash people into glass tables or leave them bruised and bloody, which most rapists realize is not in their best interest if they wish to escape prosecution. Rape is an inherently violent crime, but Jackie described a crime that was excessively and luridly violent in a way that would have stood out from most accounts of rape. I wonder if the reporter saw a sensational story that matched her idea of "real rape" and failed to look any further, passing over the many genuine rape survivors she could meet on any college campus, including UVA.
While the Washington Post, the Columbia Journalism School, and other media outlets continue to investigate the Rolling Stone story, I hope that they will devote a proportionate amount of attention to the much larger story: that there is an epidemic incidence of rape on campuses nationwide; that there are hundreds of young women speaking out about real rapes that have gone unpunished; that there somehow persists an idea that it’s acceptable for investigations of rape, a violent felony, to be handled solely by college disciplinary bodies designed to deal with plagiarized term papers. It would be great if the same amount of attention that has been lavished on one discredited story of rape would be focused on the fact that misogyny, rape, and failure to hold rapists accountable really are grave problems on campuses, in fraternities, and in our society at large.
More articles by Category: Violence against women
More articles by Tag: Sexualized violence, Rape, Criminal justice