The story you tell about voluntary behavior/mixed signals makes sense for some of the cases cited in the swarthmore article, but definitely not for those in the Times piece about Columbia (http://www.nytimes.com/2014/05/04/us/fight-against-sex-crimes-holds-colleges-to-account.html) – and I also think most advocates would argue that they would prefer to go through their universities because they think the criminal system is systematically biased towards perpetrators over victims.

I still don’t think the Innocence Project is particularly relevant, since in those cases the issue generally is the identity of the person who committed the rape, not whether any rape was committed at all. The reliability of identity testimony is always in question when the victim does not know the perpetrator; it is not an issue limited to sex crimes.

I very much agree with your description of the typical psychological dynamics of the “date rape” accuser. I think that meshes quite well my view, expressed elsewhere in this thread, that the hysteria over rape on campus results from unacknowledged ambivalence about young women’s exercise of sexual freedom.

1. What the false, stranger-rape convictions of the Innocence Project demonstrate is not just the limited reliability of victim witnesses identifying the subject visually, but related psychological phenomena such whole prickly issue of reconstructed, fragmentary memories, and the replacement of fuzziness and doubt with persuasive certainty. One of the problems with perjury is what do you do when the witness sincerely believes an adamantly insists on something which is not true. If one has never seen the shockingly confused and disbelieving face of a complainant witness confronted with newly discovered video evidence (usually from some stranger’s smartphone) that what she asserts is impossible, then it’s hard to grasp how powerful and disturbing this form of self-delusion can be. Often times a prosecutrix isn’t making what she perceives to be a ‘false accusation’ but which is, nevertheless, not an accurate reflection of the way in which events transpired on the night in question. There is also what you might call ‘subconsciously motivated protective narrative self-delusion’. When an individual has acted in an embarrassing fashion that often give rise to plenty of severe personal and social consequences, the mental impulse to escape the pressure not just by ‘crying rape’ but actually sincerely believing it, even if it never happened it quite intense

This happens even to perfectly sober women, but when you add large quantities of alcohol and/or drugs to the mix, a fragmentary memory, and a strong motive to fabricate, then you’ve got a recipe for a testimonial nightmare.

These results are true, but they are taboo, so ‘controversial’, and this line of argument has been deems admissible in court. That doesn’t mean, however, it is inaccurate. One thing the Innocence Project should have taught us what that victim-witness recollection testimony alone is demonstrably unreliable and should be presumed to be inadequate to surmount the burden of proof unless the prosecution can provide extremely strong additional indicia of reliability. Alas, no one learned that true lesson, despite all the exonerations.

2. As far as fears of perjury go, there are two problems. The first is that, in my experience, when prosecutors learn that a victim’s testimony is unreliable and suspicious, they simply dismiss the case 99% of the time, and don’t pursue any perjury investigations or hearings. The perjury has to be so extreme and egregious to motivate a DA to do anything about it, but for normal prudential reasons, and also because of certain obvious political risks. But second, related to the above-mentioned psychological phenomena, a great deal of witness disinformation is not genuine intentional ‘perjury’ because it lacks the requisite mens rea. A woman who gave consent at the time in an extremely intoxicated, but not incapacitate state, can really come to believe in the clear light of Sunday morning, especially if she’s got a husband, that she was indeed taken advantage and had intercourse contrary to the desire of her self-agency.

Even if one obtains evidence later on regarding her inaccuracy, a prosecutor must still prove she was intentionally lying, instead of misremembering, and this is almost impossible, because all of a sudden it is a acceptable to bring in a trauma-psychiatrist expert witness who will assure the jury that they must excuse such false memories because they are a natural consequence of the stress from the encounter. Defendants can rarely use the same argument on their own behalf to undermine the reliability of the complainant’s testimony, which is too bad.

I’ve mentioned ‘new video evidence’ and the reality is that a lot of the kids are surreptitiously recording themselves in flagrante delicto with a strategically placed smartphone or webcam on an open notebook computer. And these videos – technically illegal, but we are all still waiting for Ms. Stiviano’s indictment are we not? – are starting to pop up in real cases which suddenly go away and, unfortunately, don’t produce much of a paper trail for empirical analysis of law or other forms of Social Science. Here’s Roxanne Jones on CNN warning young men to get a ‘yes text before sex’.

I would never give a client advice to do anything illegal, but at the same time, one has to wonder what one would rather have on his record: a violation of the Maryland All-Party-Consent Recordation Act, or a rape conviction. And most likely the privacy law conviction will never happen, because the complainant would have to participate willingly (not likely), and also would have to take the fifth amendment during testimony when asked whether the incident in the video to which she is clearly a consensual party – now being put into the record and shown to the jury – is the one in which, under oath, she claimed involved a lack of consent. Also, how can we prove we didn’t leave the webcam on accidentally, or as a dorm-room security program one ‘forgot’ to turn off, and the defendant just happened to discover later that through sheer fortune it happens to have exonerating material on it?

This all probably sounds pretty awful and terrifying, and I agree 100%. All I can say is that many, many young men are starting to share this technique online and, like everything these days, it is spreading and can be expected to go viral. If I had to guess, sexual assault statistics are going to ‘improve’ dramatically by the end of the decade, and college administrators and government officials will try to take the credit, when actually, the makers of the little digital cameras will have true responsibility.

If colleges took your advice, they would see a hit, maybe a substantial hit, in their bottom line.

For admins, whatever the outrage of day may be, it will always be handled in a way that increases administrative body counts, salaries, and discretion.

Advocates seek to maximize psychological rewards, not bureaucratic ones, but are otherwise the same.

As long as most tuition payers have the Cargo Cult mentality (“belief that various ritualistic acts will lead to a bestowing of material wealth”) about education the ratcheting cycle will continue.

The criminal justice system vigorously pursues almost every category-1 case they learn of, and approaches them with truly admirable dedication and professionalism.

Category-2 cases are different. There is a significant possibility of the prosecutor’s version of Type-1 and Type-2 errors. Type-1 errors are when you convict an innocent person. There is good evidence from the Innocence Project that this happens often in rape convictions. Type-2 errors are when you let a guilty person go free even after a lengthy and expensive trial, because there is no way to overcome reasonable doubt, which, of course, takes scarce resources away from other important prosecutions.

It is perfectly reasonable for a district attorney to use their training and experience and judgment to determine that a specific complaint, based on its particular characteristics, bears an unreasonable risk of either of these types of errors.

The fact that the appropriate decision about that risk is often ‘too high’ does not reflect at all on the competence or sympathy or effectiveness of the criminal justice system. It is a reflection of the nature and state of sexual relations in our time and culture, and the fact that sexual assault is a unique sort of crime in which the question of consent is often both paramount and difficult to resolve because of the inherently limited forms of evidence – almost always purely testimonial – that can be obtained which bear on that precise question.

On a more serious level, you make it out to be far less complex than it oftentimes is.

Example 1: I take a woman out to a frat party and we imbibe a little. Later that night while we’re alone and making out, I put my hand in certain places and she rebuffs my advance. I try again, only to be rebuffed again. Eventually, I force myself on top of her and restrain her from leaving while I perform intercourse.

Example 2: I take a woman out to a frat party and we imbibe a little. Later than night while we’re alone and making out, I put my hand in certain places and I’m rebuffed. I try again, only to rebuffed again. The persistent little bastard that I am (and most guys in this situation who do this are), I try a third and fourth time, to which she finally acquiesces and we have intercourse. The next morning, after she is sober, she expresses her regret in having intercourse.

Are both of these examples of rape? Does she blow her rape whistle in both circumstances? Depending on the situation and the person, strong limits are not always placed on a male who is persistent in his desire. Is it his fault or her decision if they have intercourse and the situation is more like the latter example?