JESSE POWELL writes:

Paul Elam has now gone public in his call for jury nullification in rape trials. He has written a new article titled “On Jury Nullification and Rape” and posted it as the headline at the Men’s News Daily site. This represents a frontal attack against the legal system in regards to sexual assault prosecutions by a leading and, I would say, mainstream voice within the men’s rights movement. The new article does not include anything blatantly inflammatory, and even the direct advocacy of jury nullification in rape trials is a bit difficult to pin down, but the message is clear; that willfully voting to acquit rape suspects contrary to the damning evidence the prosecution may present is a positive good. It must be remembered that this is what jury nullification means; acting against the intent of the law to undermine the goals that the law seeks to accomplish. 

Elam argues that the legal system is so corrupt and rigged against men that prosecutorial evidence cannot be trusted and that the system overall intentionally and recklessly commits a great harm against men, innocent men. Normal legal channels and forms of activism, Elam argues, are futile so extreme and unorthodox measures, such as jury nullification, are justified. Those who condemn such tactics have no moral legitimacy in Elam’s eyes because he believes they show no concern for the many men whose lives are destroyed by false accusation and unjust imprisonment. 

To give a little reality to the scope of the problem of rape and the potential problem of innocent men in prison based on false accusations; according to the National Crime Victimization Survey an estimated 200,000 women were raped or sexually assaulted in 2008. At the end of 2006 there were a little less than 170,000 men in State and Federal prisons for rape and sexual assault. 

As evidence to support his claims, Elam gives some anecdotal stories of gross injustice, and he gives a breakdown of the different kinds of police and prosecutorial misconduct that contributed to the convictions on rape that the Innocence Project was later able to overturn. The misconduct involved with the very small and unrepresentative sample of cases of men who had their convictions overturned does not give us any idea of how common such unethical practices by police and prosecutors are. 

One of the main concrete complaints against the legal system involves the injustice of Rape Shield Laws, and how these laws prevent men from mounting an effective defense. The idea behind Rape Shield Laws is to prevent an interrogation into the accuser’s past sexual history to try to show that she was a “loose woman” with low moral standards who should not be trusted. The idea is that a fishing expedition into the woman’s sexual past is not relevant to the particular accusation she is making and might inflame jurors to be biased against her if her sexual behavior was against community standards of morality. Also, it is reasoned, protecting accusers from this potential public humiliation would encourage more women to come forward, leading to more aggressive prosecution. 

The first Rape Shield Law was passed in Michigan in 1974; by the late 1970s and early 1980s almost all jurisdictions adopted rape shield laws of one sort or another. Rape shield laws always allowed exceptions if the accuser had a prior sexual relationship with the accused. Also, according to Federal Rule of Evidence 412, past sexual behavior of the accuser is excluded except: “(1) when it is offered “to prove that a person other than the accused was the source of semen, injury or other physical evidence,” (2) when it is offered to prove consent and it consists of “specific instances of sexual behavior by the alleged victim with respect to the person accused,” or (3) when the exclusion of the evidence “would violate the constitutional rights of the defendant.” Judges are often allowed to admit evidence regarding the accuser’s sexual history if the judge determines that the relevance of the evidence is greater than its potential prejudicial impact.

Rape Shield Laws was part of the general trend to reduce the stigma of sex outside of marriage, to treat chaste women and promiscuous women the same, to deny a morally significant difference between the two groups of women. This may not be a good idea, but I do not believe the harm caused to male defendants by Rape Shield Laws is so great as to invalidate the entire process of rape prosecution.

The most convincing evidence Paul Elam offers in support of his condemnation of the legal system is found in the study, which he links, by Eugene J. Kanin. The study followed all the rape accusations in a small Midwestern city from the years 1978 to 1987 and found that 45 out of 109, or 41 percent, were false. [Laura writes: He cites reports by big city police chiefs in Pittsburgh and Louisville who say that 30 percent of rape allegations are false. One study showed the figure to be about 45 percent at Air Force bases.]  They were false because the women recanted their stories. No accusation was considered false without the woman recanting her accusation. Furthermore, the women usually gave their motivation for the false rape accusation after they recanted. All the women who made false rape accusations faced criminal charges of filing a false complaint, but this did not lead to any woman resurrecting her claim to have been raped.

 There were three basic motivations for the women to make the false rape accusations, most commonly as an alibi, giving her a respectable excuse as to why she had sex. These cases usually involved the woman being afraid she might be pregnant. In 27 cases (out of 45) the desire for an alibi was the motivating factor, and 24 out of the 27 cases involved a fear of pregnancy. In about half of these cases a specific assailant is accused. Another motivator for false rape accusations is revenge, usually to punish a man who refused the woman’s sexual advances or to punish a man for a break-up, or because he was seeing another girl. Twelve cases fit this profile. 

The last central motivator was to seek attention and gain sympathy. This was the motivator in 8 cases. These cases were the least harmful because a specific assailant was never identified in these stories.

 So, it may well be true that 40 percent of rape accusations are false in general, as was the case in this study. In this study, of the total 45 false rape accusations made a little over half involved a false accusation against a specific man. In general these false accusations were found to be false pretty quickly and easily. Of course, it is not these cases that are the real problem, but the lies that are not discovered so easily. The question is, how likely is it that a false accusation targeted against a specific man will be believed long enough to result in a prosecution and what is the likelihood of conviction or a plea bargain of an innocent man. Some reassurance can be had in that surely the conviction rate of the innocent is lower than for the guilty but this phenomenon does create some visceral fear in me as a man nonetheless.

 Surely the moral character of a woman will affect whether she is willing to endanger and harm a man by making a false accusation against him. Is it reasonable to think a chaste woman is of higher moral character and more reliable ethics, less likely to tell a destructive lie than a promiscuous woman? I think so. Furthermore, fear of pregnancy due to illicit sexual encounters was the prime motivator for 24 or the 45 false accusations, and of course if the woman didn’t have sex outside of marriage she would not have gotten into the trouble that she seeks to get out of through a lie. It may well be that the bias against believing the promiscuous woman compared to the chaste woman in a rape trial is entirely justified and that excluding a woman’s sexual history does indeed deprive the jury of relevant knowledge that they should know.

By no means does the reality of some women lying justify a wholesale refusal to accept a rape accusation from a woman when enough evidence to support the accusation is presented at a trial. It is a great miscarriage of justice to deny all women protection from rape just because a small number lie and make false charges against men. Have skepticism about a woman’s accusation. Demand a convincing level of proof that the accusation is true. Punish the woman who makes a false accusation. However, to go to the extreme of jury nullification regardless of the evidence is totally unreasonable and uncalled for by the circumstances of false rape charges today. Ultimately it is man’s highest duty to protect women; the protection of women must come first.

Laura writes:

Elam’s point that women who make false charges typically do not face criminal charges is important. Prosecuting and punishing accusers is necessary to prevent false allegations, although these cases will always have their own complications.

While the number of false accusations appears to be extremely high, Elam does not prove that the number of innocent men convicted is extremely high or represents an “epidemic.” Nor does he prove, by citing instances of procedural wrongdoing and of feminist prosecutors, that the entire system is corrupt and cannot be reformed.

I would argue that if you are aware of how the system actually works, then you must be aware that reasonable doubt cannot be ascertained in a rape trial. There is just not enough trustworthy information in many cases to make that judgment, and unfortunately as a juror, you are not able to discern if the case you are seeing is one of the ones that has been tainted.

There will never be a day when rape prosecutions do not often involve ambiguous testimony and evidence so presumably this argument would hold indefinitely. Prospective jurors typically are required to reveal their inclinations regarding the crime involved before they are selected and could be subject to perjury charges if they did not reveal a belief that no rape evidence and testimony is to be trusted.   

It is not just the “system” that is at work in rape prosecutions. Juries also use their own judgment and Elam does not prove that juries, which are composed of men and women, are generally unsympathetic to men or are incapable of viewing evidence and testimony with skepticism. Elam makes no allowance for the ability of juries to ascertain the character of false accusers.

Vanessa writes:

While the number of false accusations appears to be extremely high, Elam does not prove that the number of innocent men convicted is extremely high or represents an “epidemic.” Nor does he prove, by citing instances of procedural wrongdoing and of feminist prosecutors, that the entire system is corrupt and cannot be reformed.”

That is a valid point. It might be that most FRA are not brought to trial or result in a “guilty” verdict. The false accusers should be punished, anyway, for damaging the man’s reputation and putting him through such a nightmare.

I’ve read some work done by the Innocence Project (which uses methods, such as DNA evidence, to exonerate the innocent), and that actually seems even more common than FRA. In those cases, men have been put in prison for rape, and the evidence used was faulty (false witness reports, lack of scientific evidence, etc.) In those cases, the accuser is not acting maliciously, but in error.

At any rate, Paul should perhaps rethink his proposal. Punishing rape in court was an improvement over the vigilante justice that prevailed before. It was, in a way, men calling a truce, and submitting their opposing claims to arbitration. Let us be clear that rape trials are men, punishing other men, for hurting women. If there are no more trials, or trials of obviously-guilty men started resulting in “not guilty” verdicts, then men will start taking matters into their own hands again. More shootings, lynchings, and beat-downs would be expected. And who would falsely-accused men then appeal to? The man beating them down with a baseball bat?

What we need is reform of the system, not the abandonment of it.

Stephen writes:

I would start off by apologizing for my ill-thought and unkind treatment of you due to your expressed opposition to the MRM. You are, of course, free to disparage any grass-roots organization as you see fit; and it’s not my place to try to tell you how you should feel. In that I let my frustrations get he best of me, and I then took them out on you, I’m sorry. It was certainly not my finest moment(s).

Next, I would commend you for addressing the issue of the very real harms that are routinely done to men in cases of false rape accusations (same goes for false divorce claims). As it stands, in most US jurisdictions, the top charge for making even the most damaging of false rape allegations is “filing a false police report” – a misdemeanor. A change in the law to allow for false rape accusers to be punished in ways that “fit the crime” [is necessary.].

However, what is sorely lacking through this country, and the whole of the Western world, is any organized effort by any political party or any widely-recognized socio-political movement (of sufficient size to be a serious force) to actually address this issue and push for meaningful reform. The only organized effort has been on the part of the small, and poorly-organized, Men’s Rights Movement.

While Paul Elam’s suggested response is easily recognized as being over-the-top, to simply dismiss it without considering why he would suggest it is matter of ignoring the elephant in the room.

Elam’s idea, while I (mostly) disagree with it, did not simply spring from the mind of some deranged misogynist. It was born of a growing frustration. It is a symptom of the continuing systemic disenfranchisement most men in this society, wherein men are increasingly seen as evil sexual predators, allowing for the suspension their rights in favor of “protecting” their female victims. And where women are increasingly seen as victims, again allowing for the suspension of the rights of men so as to favor women. This isn’t just the case in the false rape and false divorce arena. It can also be seen in the re-victimizing of duped men in paternity fraud, in the Anti-family courts (“Family Court” isn’t just a misnomer – it’s a twisted uber-Orwellian lie), in work-place sexual harassment policies, and even if hiring policies which advantage women over men (in the misguided notion that to make them compete on a level playing field is allowing for the victimization of woman by the men in power).

To make matters worse, despite the best efforts by you, and other’s like you, the men of the West have been largely abandoned to their fate by the Church, by Conservatism, and by all but a small percentage of woman (including an overwhelming majority of conservative, traditional, Christian women). Issues which only target and effect men, especially where it can be rationalized that men had a hand in their own undoing (the supposition that men who are falsely accused of rape “had it coming” because they interacted with women of low character; which is NOT always the case, BTW) seem to be completely over-looked by the very socio-political movements which need men to join with them in their efforts. Issues in which men are the primary “victims” don’t even show up on agenda’s – let alone platforms – of the parties and organizations of the political right. In most cases, the only time women even think about the plight of men (just as individual human beings of the male gender) is when someone they know becomes affected – or worse, it “hits” their own family (yes, I’m being a bit snarky here, but many women only truly care when it hits them financially, as they see the proper role of men as suffering the slings and arrows in silence).

Such abandonment of men by women, Christianity and the political right (the political left is expected to be anti-male, anyway) is what is giving rise to the ideas of Paul Elam and others. Unaddressed widespread frustrations tend to have radical reactions as their eventual outcomes.

You chastised me for supporting the so-called “marriage strike” (of Marriage 2.0) as being in the best interest of men. But, it is just such a radical response to another unadressed frustration (and, frankly, injustice) which affects primarily men. If Christians, conservative women, and the whole of the political right aren’t going to help men, then men will need to take action themselves. Elam’s is just a more extreme example (but, don’t count on it being the most extreme if things stay on their present course).

Of course, the best way to avoid such unwanted reactions from being implemented would be for women of good will to stop disparaging Men’s Right’s organizations, and to instead join with them, in voice and vote, to address those issues which are of increasing concern to men.

Dan writes:

Jesse initially looks like he’s in agreement with the concept itself, but disagrees it’s needed in this instance. By way of proof, he offers up the National Crime Victimization survey, in which 200,000 rapes were reported in 2008, but ‘only’ 160,000 men were in jail for the crime in 2006. Apparently, he doesn’t believe innocent men get convicted. There actually ARE a large subset of people out there that believe FRA’s involve not much more than ‘having to go through being in a line-up’. Maybe Jessie is one of these people?

Problem is, many FRAs result in conviction. Also, wouldn’t it make sense to apply the False Accusations to the ‘reported rapes’? Given estimates as high as 60% (FAR more likely than the Feminist created 2% stat), if there’s 200,000 reports of rape, that would mean only 80,000 are true. Which put up against the 160,000 men in prison for the crime means basically that potentially, 1 of every 2 prisoners serving time for Rape is an innocent man. [Laura writes: It’s 200,000 rapes a year and 170,00 men in prison for all recent rapes, not just those in prison for rapes committed in a specific year. Do the math.]

But really, that was a piffling part of his argument, so let’s move on…

He then goes on to defend the existence of Rape Shield laws by recounting their initial intent…to keep women from being unfairly smeared as ‘loose’. Essentially, that Rape Shield laws were enacted to prevent happening to women, precisely what is happening to men. He has no word on whether or not men should be afforded this same protection.

A couple of quotes to show his intent, and a couple responses:

“It may well be that the bias against believing the promiscuous woman compared to the chaste woman in a rape trial is entirely justified and that excluding a woman’s sexual history does indeed deprive the jury of relevant knowledge that they should know.”

It’s gone way beyond that, including such ‘irrelevant’ details as a past history of making misleading and false Rape Accusations…even when the last guy killed himself as a result. And maybe, JUST MAYBE, the inherent sexist bias of giving the accuser anonymity, while shining a spotlight on the accused, is a source of a great deal of injustice (including things like, oh, tainting the Jury pool?)…nah, couldn’t be.

“Have skepticism about a woman’s accusation. Demand a convincing level of proof that the accusation is true. Punish the woman who makes a false accusation. However, to go to the extreme of jury nullification regardless of the evidence is totally unreasonable and uncalled for by the circumstances of false rape charges today. Ultimately it is man’s highest duty to protect women; the protection of women must come first.”

Uh, what? “Protection of women must come first”? Talk about entitlement… Oh yeah, and what do you think MRAs have been calling for the Legal system to do? Heck, we can’t even get Feminists to agree on a definition of Rape, let alone the Law…how do you even tell a guy what not to do?

Well, Laura basically takes the tack that yes, these things are serious and important….and not happening enough to care about it.

“While the number of false accusations appears to be extremely high, Elam does not prove that the number of innocent men convicted is extremely high or represents an “epidemic.” Nor does he prove, by citing instances of procedural wrongdoing and of feminist prosecutors, that the entire system is corrupt and cannot be reformed.”

That’s a pretty tall order for one small article, wouldn’t you say? Given the fact that he writes with an assumption of knowledge on the part of the reader, reinventing the wheel every time you write an article would turn into a pretty damn boring site. Funny thing is, my simple (and admittedly horrible) math above is one small example of how this is most definitely NOT ‘rare’.

Thankfully, Feminists can only point to a lack of research in an area as argument against action for so long before someone, you know, studies it….and maybe even honestly, for a change.

Vanessa trots out an interesting version of NAWALT (Not all women are like that):

“That is a valid point. It might be that most FRA are not brought to trial or result in a “guilty” verdict. The false accusers should be punished, anyway, for damaging the man’s reputation and putting him through such a nightmare.

I’ve read some work done by the Innocence Project (which uses methods, such as DNA evidence, to exonerate the innocent), and that actually seems even more common than FRA. In those cases, men have been put in prison for rape, and the evidence used was faulty (false witness reports, lack of scientific evidence, etc.) In those cases, the accuser is not acting maliciously, but in error.”

Except Vanessa misses the point. We are not here to point fingers at women and blame them. Some women are using the system like they would a big, tough, dumb boyfriend….to fight her battles for her and to keep her amused. Some women are ‘convinced’ by their friends that they’ve been ‘raped’. Some women actually have been, but by someone else.

And sometimes, the Prosecutor railroads innocent men into Prison to please the Female Vote.

Note, in all of these cases, the innocent man is still in Prison. Jury nullification isn’t a way to get back at women (even though all the posts here suppose that from the onset). It’s a way to destroy a System (that WAS set up to appease women’s fears) that exists to ‘get convictions’, rather than ‘mete justice’.

If you want to blame ‘women’ for that, blame their propensity to vote in ever more intrusive Governments.

And I would add my voice to Stephen:

The Religious Right, and Conservative Politicians, are just as much an enemy of men as Democrats and Feminists are. Seeing as how Feminism is essentially Chivalry 2.0, there’s not much difference at all between the two viewpoints, only the means used to get to the end (the usage of men as beasts of burden and means of support).

The Mens Movement is doing precisely what it needs to. Redefining Masculinity and maleness, on our own terms, without apology. If the PC crowd, Feminists, and Social Reformers won’t listen to us….well, I guess they won’t hear us coming then.

To coin a Feminist phrase, “The time for debate is over.”

Jesse Powell:

[NOTE: There was some confusion by one commenter as to whether Jesse Powell is a man or a woman. Given the theme of the discussion, it’s important to point out that Jesse is a man.]

By no means is the time for debate over, it has only just begun! I see my giving actual statistics on how many women are raped per year and how many men are in prison for rape has gotten under MRA skins. The reason why I brought up those facts is because it seemed to me there was a lot of hyperbole being thrown around about the system viciously going after large numbers of men indiscriminately and I wanted to bring the conversation back into some kind of reality by showing that the number of men in prison compared to the number of rapes that occur is not so large and may even be smaller than it should be. Basically, what 200,000 women being raped a year and 170,000 men in prison for rape means is that the average punishment inflicted upon a man for raping a woman is about 10 months in jail. Is this too high? My inclination is to say it is too low. There may not be any way to improve this potential injustice against women but it does illustrate the point that the hyperbole being thrown around about unjust and extreme victimization of men for no good reason is not supported by the facts. 

Sure, you can say the women lie to the surveyors and say they were raped when they weren’t. Also, a fact MRAs conveniently ignore, is that it is just as possible that women fail to report rapes to the surveyors that did occur. The good thing about using the National Crime Victimization Survey as a source is that the women have no incentive to lie to the surveyor one way or another. In the study I cited by Kanin the women who lied about rape always had one motivation or another to do so. The woman gains no benefit by lying to the surveyor and so surveys should be one of the most reliable ways to gain accurate information. 

Stephen writes: “Of course, the best way to avoid such unwanted reactions from being implemented would be for women of good will to stop disparaging Men’s Right’s organizations, and to instead join with them, in voice and vote, to address those issues which are of increasing concern to men.” 

I have to take issue with this kind of low life blackmail. Paul Elam is responsible for his outrageous call to acquit all rapists, not anybody else. This whole idea that “women of good will” should join the MRM and lend support to all the unreasonable and selfish oriented demands that MRAs make on behalf of men, and men only, is outrageous. Seriously, what woman in her right mind would get behind a movement whose main idea for political action at the moment is to acquit rapists! 

Women are under no obligation to “get behind” the men’s rights movement and neither are social conservatives whose main goal after all is the restoration of the family, not catering to the overheated rhetoric and demands of “men’s rights”. 

I am willing to accept that some men who are innocent of rape are convicted of the crime regardless and are rotting in jail at this very moment. If I was to guess I would estimate that 10% of men in jail for rape didn’t actually commit the crime. The problem is we don’t know who those innocent 10% are. If we did know they wouldn’t be in jail in the first place. However, the issue is not whether some men are falsely imprisoned or not, the issue is whether jury nullification is at all a reasonable response to whatever problems there may be in the criminal justice system in regards to rape prosecutions. 

Issue has been taken with my declaration that the protection of women must come first. I am fully aware that such a declaration is very unlikely to be uttered by a men’s rights supporter. I am very aware that any self-respecting MRA would take great umbrage at the idea that anybody else’s rights matter other than the rights of men. Regardless, I stand by my statement. It is the primary duty of men to protect women, and by extension the children a man fathers with the woman he loves. Surely part of the code of protecting women includes protecting women from rape, and fundamental to protecting women from rape is punishing the men who commit rape. There is no way around that. Because life is not perfect and the knowledge we possess in incomplete punishing men who rape necessarily entails punishing men who have not raped but are believed to have raped. That is simply the price that must be paid for the social good of protecting women from rape to the best extent that we as men are capable of.

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