Watching the slow-motion train wreck of the University of Virginia/Rolling Stone fraternity gang rape narrative has been both satisfying in a distinctly ironic sense and intensely frustrating. It has been many years since I carried a badge and the responsibility that goes with it, but this kind of case still makes me grind my teeth in frustration. Why? False accusations of rape make life difficult for everyone, including the police.
First, however, consider this report from Ashe Schow:
Charlottesville police refused to close the case on an alleged gang rape at the University of Virginia, despite there being no evidence of a crime and key facts of the accuser’s story proved to be false.
Police Chief Timothy Longo explained during a Monday press conference that the accuser, Jackie, refused to cooperate with police or file a report. She brought a U.Va. dean and an attorney to the police department to speak for her. She would give no details about the alleged gang rape, or whatever it is that happened.
The story Jackie told was easy to discredit — her friends denied her account of a conversation between them, the fraternity didn’t hold a party the night in question, and even the supposed date she had that night was a fictitious person. But the police still wouldn’t close the case because something could have happened to Jackie and maybe one day, if she decides to cooperate or someone else comes forward, justice can be done.
But the situation brings up an interesting question: How should we handle accusers who refuse to cooperate, especially when their word is the only evidence available?
Chief Longo has done something unusual. Despite the politically correct claims of some, false reports of rape are common. As a detective that investigated stalking and sexual assault cases, I’ve seen virtually every possible motivation to lie. Some do it to cause problems for others: they want to harm a boyfriend, make a boyfriend jealous, make someone they want to be a boyfriend jealous or sympathetic, etc. Some just want sympathy. Some do it to avoid getting in trouble, such as a girl that was out too late with someone her parents disapprove of. In cases like that, it’s almost always a vaguely described stranger never to be found, as a suspect. And some—the police really hate these—are “he said/she said” cases where both parties admit engaging in sex, but at some point the woman decided it was rape. In those cases, particularly when the “victim” doesn’t report the rape for days, weeks, or months—sometimes years—putting together a winnable case is virtually impossible because all the physical evidence can possibly prove—if there is any—is that they had sex. It can’t speak to intent or consent. And often, the “victim” leaves a long trail of text messages and e-mails after the supposed rape that suggest anything but emotional and physical trauma.
If the crime isn’t reported more or less immediately, physical evidence is usually gone, tainted or otherwise useless.
For the police, reality is simple and hard: they have to have probable cause to believe a crime—not a difference of opinion over feelings in the heat of passion—occurred and that a specific person committed that crime. To gain that probable cause—PC—the acts of the suspect have to fulfill all of the very specific elements of the very specific crimes potentially involved. Of course, a part of fulfilling the elements is the gathering of evidence. In a he said/she said case, evidence usually doesn’t prove anything other than that they had sex, which both usually admit in any case.
But that’s not all. Even if the police find barely enough evidence to constitute PC, the prosecutor still has to be able to prove the charges beyond a reasonable doubt, and that’s when witness credibility really enters the picture. That’s a significant issue for the police too, and many cases never get as far as a prosecutor simply because the police don’t find witnesses credible.
Oh, but that’s because the police hate women and don’t believe rape occurs! Most people would be surprised to discover how wrong that belief is. Among all the criminals police officers meet, child molesters and rapists are at the bottom of the heap. Cops love to arrest genuine rapists, but they recognize that such cases are often vague and very messy indeed. Let’s return to Ms. Schow:
At some point, isn’t the collective societal good supposed to overtake the good of the individual? Isn’t that the liberal way?
Let’s say something horrible did happen to Jackie, something so terrible that she would rather tell a false story about a gang rape from phantom fraternity brothers than the truth. That would mean there’s a monster out there who could harm other students, other women. And if she is the actual victim of something, she’s not helping herself or other students who could be future victims.
Advocates who claim women should be taken at their word may continue to support an accuser’s right to proceed — or not proceed — with an investigation on her own terms. That could mean giving a statement to a college administrator, or to the police, or doing nothing at all. And that might be acceptable for the single accuser, but there’s a larger population in danger.
Sometimes, when an accuser refuses to cooperate with an investigation — even by a school — the case is dropped. This happened with Columbia University student Paul Nungesser. One of the three women who accused him of sexual misconduct stopped cooperating with the university and her accusation was dismissed.
Other times, an accuser’s word in the absence of other evidence is used to expel an accused student, as was the case with Joshua Strange, even when police couldn’t indict.
I certainly understand and sympathize with the trauma experienced by an actual victim of rape, and have helped many deal with such issues as the criminal justice process worked. I don’t suggest that every police officer is as sympathetic, but it has been my experience most assigned to deal with such crimes are, and handle every aspect of investigations professionally. One thing is certain: there are few people less qualified to deal with rape cases than college administrators, particularly if learning the truth and obtaining a successful prosecution is the ultimate goal. If vindicating social justice narratives is the goal, they’re perfect, which is probably why Jackie chose to involve a university administrator and why she lawyered up. Jackie, at some point, understood that she was going to be liable for making a false police report, and her attorney told her not to cooperate so as to avoid being charged. Apparently, university administrators prefer lies, and as long as those lies mesh with the proper narratives, there are no consequences.
This is the quandary facing Chief Longo and every other police officer: the conflict between social justice and the rule of law. Social justice demands that every “victim” be absolutely believed and anyone they accuse be arrested, prosecuted and jailed, because women supposedly never lie about rape. However, the rule of law requires that the accused be presumed innocent until proved guilty and that they not be arrested absent legitimate probable cause, and that they not be prosecuted unless the prosecutor is reasonably sure they can prove the elements of the crimes beyond a reasonable doubt. Social justice requires only good intentions, blind faith and righteous indignation and a media-approved narrative. The rule of law requires fact, evidence and proof, as Ms. Schow alludes:
Of course, such behavior from the universities leads to lawsuits and headaches, and is one element in the current national debate over campus sexual assault. But as more lawsuits from accused students come in and are settled, more due process will have to be afforded to these students, resembling a more formal police process. And if, ideally, these cases are handled by the police, an accuser’s refusal to tell her story or provide any clues as to what happened will be a detriment to the case.
That’s why we need to start discussing what can be done to encourage — not compel by force, obviously — accusers to cooperate with investigators in order to get dangerous men off the streets and away from other potential victims.
The biggest problem police investigators have is a lack of time. Most detectives have enormous caseloads, and are under constant pressure to either make an arrest or otherwise close cases. In Jackie’s case, because of the political implications and the media narrative, Chief Longo certainly assigned multiple detectives to run down any and every potential lead. It’s bad enough when the police discover they can’t confirm a victim’s story. When they discover that she’s outright lying, it’s an indescribable mess. In this case, there was no party the night of the alleged rape, the friends/witnesses couldn’t confirm the victim’s statements, and the supposed rapist probably doesn’t exist. In any case, he—or anyone remotely like him—can’t be found.
So much for PC. So much for proof beyond a reasonable doubt.
Consider all the man-hours the police wasted on this case. That’s time and effort not being expended on genuine crimes, which also annoys police officers: they really don’t like having their time wasted. In this case, the police had no choice but to write up everything they’d done and close the case, but to appease the media and social justice cracktivists, they made up a new category of “suspended” cases, which is nonsense. Any closed case can be reopened if new evidence comes to light. No prosecutor in their right mind would take such a case to trial, and for anyone accused—in this case, the innocent residents of a fraternity—that should be the end of it. Lying accuser, no evidence, no case, no punishment.
How, then, do we encourage accusers to cooperate with investigators? The way it has always been done: by encouraging accusers to cooperate with investigators, and by professionally investigating legitimate, reported crimes. University administrators surely aren’t going to get criminals off the streets, though they might name a building after one.