Greasing the skids on the path to prison.

Photographer: RICHARD BOUHET/AFP/Getty Images

Treat Rape Like Every Other Crime

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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A new report from the Washington Post, based on recently released court documents, reveals just how credulous the writer of the now-discredited Rolling Stone rape article had to be. Short answer: quite.

Looking into the notes of the writer, Sabrina Rubin Erdely, the Post reporter finds that she pressed forward with the UVA story even though:

  • the protagonist, Jackie, refused to give her the names of any corroborating witnesses, or the name of the attacker to contact for comment
  • hours of being brutally raped atop broken glass had apparently left no scars (the writer asked to see them)
  • Jackie herself brought up a "Law and Order: SVU" episode that strongly resembled her story
  • others warned the writer that Jackie’s story had changed over time
  • and the story itself contained numerous red flags.

It is hard to fathom how Rubin Erdely went along with all this (not to get into why editors and Rolling Stone’s lawyer signed off on the article).

Perhaps because she committed a journalistic sin known as “writing the lede on the way to the ballpark.” She was out for a story about institutional indifference to an epidemic of campus rape, and the best way to tell that story is to find a horrifying incident that obviously should have been prosecuted to a slam-dunk conviction, but was instead hushed up. Unfortunately, when you start out committed to a narrative, you tend to be looking for reasons to believe, instead of reasons to doubt.

Journalists are not the only ones who want to believe. There were powerful voices saying that rape was a special sort of crime, one that must be treated very differently from other sorts of crimes. Rape is an unfortunately difficult crime to prosecute: There are generally only two witnesses, sometimes one or both of whom is often impaired by intoxicants, and even if you think that the rate of false accusations is “only” 8 percent (I think this statement is innumerate hogwash by people who don’t understand how data works) … well, an 8 percent chance that any given rape accusation is false gets you at least a big start toward "reasonable doubt."

This enrages a lot of activists, as well it should; every rape left unprosecuted is a tragic injustice. But activists pushed the notion that the answer was to use weaker standards of evidence, to refrain from questioning victims’ stories, to err on the side of believing accusers rather than giving the accused the benefit of the doubt. They were not very successful in the criminal justice system, but they were successful in campus judiciary proceedings -- and perhaps they also succeeded in getting journalists like Erdely to change the standards they used to evaluate rape accusations.

The most surprising thing about the UVA case was not that a single reporter got rooked, but that her editors let the story go ahead, and a Columbia Journalism School professor defended them for publishing the story without making a serious effort to get a response from the accused.

I understand completely the humanitarian impulse behind this. Being raped is incredibly traumatic; being treated with suspicion afterward adds insult to terrible injury. But this is not, as is often implied, a problem that is unique to rape cases. If your spouse is murdered, or simply dies under suspicious circumstances, it is quite likely that soon afterward you will find yourself subjected to interviews with police who think you were involved. You have just lost the person most important to you in the world, and now you are also being tacitly accused of having committed a crime. You are possibly facing jail or execution. It is horrible. Police don’t like having to take someone who’s grieving and make them sit through hours of interviews. But investigations are the only tool they have; they don’t know any other way to keep bad people from murdering their spouses.

And in the long run, the “I believe women” standard is not only bad for people who are accused (most of whom are men), but also bad for rape victims (most of whom are women). The Jackie debacle was an enormous setback for campus rape activists. I don’t blame the activists for having listened to Jackie without interrogating her claims too closely; a support group is not the place for rigorous investigations. But that’s why the journalists who tell their stories to a wider public are supposed to vet them carefully.

Nor have we entirely learned our lesson about treating rape as a special category, totally unlike other crimes. After the Stanford rape case, it was disturbing to watch people I know -- decent people who are normally appropriately concerned about mass incarceration and "tough on crime" political posturing -- lament the fact that a college student won't spend his twenties in prison. He deserves to be punished. And in fact he’s going to spend time in jail, after which he’s going to spend the rest of his life on the sex offender registry, which will make it difficult for him to find a job or even a place to live. That is not a mild punishment.

Yet when it comes to rape, suddenly the left is in favor of draconian punishment and weakened legal protections for defendants, precisely what they abjure in other contexts. Meanwhile, folks on the right who are usually happy to see the book thrown have suddenly discovered the problems of weak judicial protections for defendants.

Rape is a terrible crime. But beating someone severely is also a terrible crime. Murder is a terrible crime. The horror of the crime does not absolve any of us from the need to be careful about the accusations we level, even if taking that care means that we sometimes do further psychic injury to victims. In a better world, we wouldn’t have to choose between vigorous investigation and generosity toward victims. But laws and ethical standards are made to make the best of this flawed world we have.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net