Mimesis Law
18 September 2019

There Is No Right To Be Believed

August 19, 2016 (Fault Lines) — Ryan Lochte probably lied about being robbed. It’s pretty unlikely that a robber pulled out a gun, cocked it, and put it to his head, and that Lochte then responded by being “like, ‘Whatever.’” It’s a lot more likely that Lochte got into a fight with a security guard and ended up breaking a door in a gas station restroom. Then, the security guard detained him until the police could arrive, demanding some money in restitution.

Why would he lie? Who knows? People lie for all sorts of reasons. Maybe his story started as a little white lie to one person, and then blew up out of his control, and he was stuck with it. Maybe he had come into Rio hoping to have an exciting robbery story, and was disappointed to leave with a ho-hum account of winning one measly gold medal and going home safely. Maybe he was just embarrassed that he acted like an idiot, and ended up having to fork out some cash to go home.

Lochte’s story shows one good reason why we should not uncritically believe people who claim to be crime survivors. That’s why insurance companies don’t just take your word for it that a thief broke into your house and stole all the Rembrandts and Picassos.

Does Lochte’s story mean, as some have  suggested, that we should question whether someone who claims to be robbed has really been robbed? Should we treat them the same as many people say victims of sexual assault are treated? The answer is yes. Because when we don’t, innocent people can get hurt.

Take the example given by Cathy McCulloch, a barrister who represented a father accused of molesting his child in the United Kingdom.[1] There are few defenses available in such a case. Many people can’t imagine a victim lying about something like that. Without powerful evidence of coaching or an airtight alibi establishing impossibility, conviction can be a bit of a foregone conclusion.

Yet, she noticed some striking problems with the victim’s story in her case. Namely, she described the sex with her father in a lot of overwrought prose and used phrases that didn’t seem to suit her age. When the father mentioned that the victim loved reading 50 Shades of Grey, it resonated.

So she read the book. Taken straight from the passages were many of the victim’s descriptions of what had happened to her, how she had felt, and how her body had reacted. After seven minutes of cross-examination, the victim recanted, saying that she had made up the allegations due to her father’s harsh discipline. The judge directed a verdict of acquittal. This was sheer luck. Without the connection to the book, the father stood little chance.

And that shows the dangers of the “believe the victim” narrative. People tend to be in favor of it until it comes crashing down upon them. Take Hillary Clinton, who claimed that every victim had a right to be believed on her campus sexual assault web page.

Awkwardly, however, Clinton’s husband had been repeatedly accused of rape by  Juanita Broadrick. Did Broadrick have a right to be believed? When Broadrick tweeted about the hypocrisy of the slogan, Clinton’s campaign staff took it down.

What the “right to be believed” narrative gets wrong is that it assumes that victims (and alleged victims) of crimes lack personal autonomy. That they don’t have their own goals, agendas, and reasons for coming forward to describe what happened. Sometimes, their reasons can be pure and simple: something terrible happened to them, and they want to make sure it doesn’t happen again. Sometimes, their reasons can be a lot more complicated: they’re in a bitter divorce and they want to deprive their ex of custody, or they like the attention that a journalist is giving them, or they’re an Olympic athlete who got embarrassed.

Here’s a better slogan: Victims have a right to be respected. That means that you don’t wave off a sexual assault victim’s account of being raped by telling her that she’s going to ruin someone’s life. You carefully investigate it, and see if the facts are there to support an arrest. You don’t disregard a female student’s claim that she was raped while drunk at a party, but you also don’t assume that her word alone is going to be conclusive.

F. Scott Fitzgerald once said that “the test of a first rate intelligence is to hold two opposing ideas in mind and still retain the ability to function.” And that’s reasonable doubt in a nutshell. It means that we can think “this person probably wouldn’t be claiming to be the victim of a crime if it wasn’t true” at the same time we think “we can’t put someone in prison just based on that assumption.”

So no, there is no right to be believed. And thank goodness for it—the falsely accused are victims too.

[1] Though she claims that she can’t reveal any verifiable details about the case, so there may be reasons for skepticism.

7 Comments on this post.

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  • Dunk
    19 August 2016 at 2:14 pm - Reply

    Agreed. Someone i know was recently berated by the blogging community for advocating that a tempered investigatory approach be taken in the face of ongoing allegations. I will share this article with him but will regrettably lament that i can’t place it in the hands of the people that would benefit most from this, which are the editors of many online news publications that are more concerned with pushing a narrative than discovering the truth.

  • Chris
    20 August 2016 at 3:20 am - Reply

    The feminists are gonna have a field day with this one

  • Jim
    20 August 2016 at 3:36 am - Reply

    Unfortunately, the general public still has a “believe the woman” mentality. At most colleges and universities in the US, the word of a female is sufficient to get a male expelled for rape. They use a preponderance of evidence standard instead of beyond a reasonable doubt, and they set up the process to make it hard for the accused to present evidence (no cross examination, no behavior that could offend or traumatize the victim, any inconsistencies in the victim’s story cannot be pointed out, and so on). The whole thing is a joke.

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    20 August 2016 at 11:59 am - Reply

    […] This is Gay’s characterization of the trial. She wasn’t there, but that doesn’t mean she can’t pretend that she knows what really happened. Parker may be a black man, but on the hierarchy of victims, even a black guy loses to a woman, who is entitled to be believed. […]

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    22 August 2016 at 10:38 am - Reply

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  • "Believe the victim," or not – Overlawyered
    26 August 2016 at 12:45 am - Reply

    […] “Lochte’s story shows one good reason why we should not uncritically believe people who claim to be crime survivors.” [Andrew Fleishman, Fault Lines] […]

  • Swamp Monkey
    26 August 2016 at 8:17 am - Reply