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Problems of conceptual amelioration: The question of rape myths

2020; Wiley; Volume: 53; Issue: 4 Linguagem: Inglês

10.1111/josp.12381

1467-9833

Hilkje Charlotte Hänel,

Jury Decision Making Processes

The concept of rape has evolved significantly over the past few decades both in law and common usage.1 But, despite decades of work to dispel rape myths, they persist and interfere with the proper application of the concept both in social and legal interactions. For example, jurors who accept rape myths are more likely to find the defendant not guilty in rape case trials, and police officers are more likely to stop investigations into rape cases where they accept rape myths as well. In 2013, the BPP School of Health and Professional Development issued an investigation into whether jurors on rape cases are influenced by rape myths, and more than half of the studies conducted fully supported the hypothesis that juror judgments are affected by rape myths (Burrowes 2013, 3–4). Hence, jurors likely judge a case on the basis of prior schemas instead of evidence or testimony; schemas such as rape myths.2 Similar results were found with respect to police officers. Research conducted by Amy Dellinger Page (2011) found that 22.7% of police officers agreed or strongly agreed with the statement “Any victim can resist a rapist if he or she really wants to.” Police officers who accept this myth are unlikely to proceed with the investigation or process rape charges. Furthermore, Schwartz (2010) found that many police officers thought a high percentage of rape reports are false, leading them to not investigate at all. 27.3% of officers reported that their gut estimate is that between 0% and 10% of rape reports were false; a similar number of police officers, 28.8%, said that up to 50% of rape reports are false, and some police officers even believed 95%–100% of reports to be false.3 In other words, many officers are either committed to the view that rape victims must have on some subconscious level agreed with being raped because otherwise they could have resisted and succeeded or that reports of rape are outright false to begin with. Amy Dellinger Page and Schwartz's studies are in line with a 2010 investigation of FBI data in the Baltimore Sun that found that more than 30% of investigated cases over the last 40 years were deemed unfounded and 40% of emergency calls about rape in Baltimore were not investigated at all (Fenton 2010; Harding 2015). And even when an investigation takes place, there is still only a 40% chance that the accused rapist is actually convicted.4 The law, both in the courtroom and at the hands of police officers, is composed from the interaction between legal definitions and the practical interpretations of those definitions by individuals who work in the criminal justice system. Thus, biases, false conceptions, and distorted background schemas (like rape myths) can sneak into legal outcomes. Legal outcomes are at least partly determined by the interpretation of individuals. Clearly, this is a problem for cases of rape. And, considering the statistics of the prevalence of rape and the devastating high number of acquittals, it is a seriously harmful problem that needs urgent attention. In this paper, I use the example of rape myths to argue that certain real-life phenomena compel us to adjust our philosophical methods such that we explicitly endorse feminist commitments and strive for diverse democratic practices in our philosophical thinking. First, I consider three examples that show how rape myths and other problematic background schemas can distort our dominant working understanding of rape. All three examples are cases of grave and manifold injustices to the victims. I suggest that a revisionary project of conceptual amelioration can help counter injustices like these. In a second step, I argue that problematic schemas not only distort our working understanding or the accurate application of an existing concept, but can furthermore interfere with our philosophical analyses—even in cases of amelioration. As a solution, taking clues from theories of epistemologies of ignorance, I propose a more diverse and democratic method for engaging in conceptual amelioration. I proceed as follows: first, I illustrate how rape myths distort our dominant working understanding of rape with the help of Jenkins’ argument that rape myths constitute hermeneutical injustices (Section 2); next, I introduce three examples that illustrate how our dominant working understanding can be distorted by rape myths and that this has deeply problematic consequences for victims of rape (Section 3); third, I consider conceptual amelioration as a fruitful way of countering these problematic cases (Section 4); finally, I argue that rape myths also raise important questions for our philosophical analyses in general, and I propose specific democratic practices for our philosophical endeavor of conceptual amelioration (Section 5). I should note further, that women are not the only victims of rape; rather, transgender persons, persons who live outside the binary gender categories, and persons who live outside the dominant gender norms are also targeted by sexual violence. The reason why I focus on rape myths that concern women is that more research is available for these myths and their impact on violence against women. It should be our future task to provide research and explication also for rape myths that concern transgender persons, persons who live outside the binary gender categories, and persons who live outside the dominant gender norms. At this particular moment, I feel not qualified enough to say anything specific about how rape myths affect other social groups than women; yet, I am convinced that most of what I say in the following can also be applied to the relation between rape myths and sexual violence against transgender persons, persons who live outside the binary gender categories, and persons who live outside the dominant gender norms. Rape myths reflect societal attitudes. Research has shown that rape myths are widely accepted in more or less all social groups and that people rely on them in their understanding of what constitutes rape (cf. Edwards et al 2011, 761). Rape myths are thus related to the proclivity of sexual violence (cf. Desai et al 2008; Edwards et al 2011; Loh et al 2005; Lonsway and Fitzgerald 1994; Payne et al 1999). For example, if person P accepts rape myth (A), then, they are more likely to think that it is ok to force intercourse on someone dressed in a provocative way. This is doubly problematic: P is more likely to resort to violence against women to gain sexual access due to their acceptance of rape myths and P likely fails to understand their act for what it is, namely rape. Hence, rape myths have severe implications; they make it more likely that rape occurs and less likely that the perpetrator understands their action correctly. Furthermore, rape myths can render experiences of sexual violence unintelligible for victims. Peterson and Muehlenhard, whose research focuses on women who had been the victim of rape and their acceptance of rape myths, found that those women who accepted rape myths and had been raped in ways similar to the myths they accepted were unwilling to apply the term “rape” to their experience (Muehlenhard and Peterson 2004). For example, if person V accepts myth (B), and if person V has been raped by an acquaintance without aggravated physical violence, then, V will not only be hesitant to term their experience “rape,” but will also likely fail to understand their experience as an experience of rape. Katharine Jenkins (2016a) argues that rape myths constitute hermeneutical injustices. The idea is that the prevalence of rape myths hampers or makes it impossible for rape victims to apply the term “rape” to their experience and, thus, they fail to understand a significant experience of their own lives. This example of hermeneutical injustice is different to the examples that Fricker brings forward when she coined the notion of epistemic injustice. According to Fricker, hermeneutical injustice is “the injustice of having some significant area of one's social experience obscured from collective understanding owing to hermeneutical marginalization” (2007, 158). And her paradigmatic and now well-known example concerns the experience of sexual harassment before there existed a term that victims of said harassment could apply to their experience. In this paradigmatic case, the victim fails to understand a significant aspect of her social experience because the concept of sexual harassment did not exist due to the social organization of power, which prevented women from contributing to the hermeneutical resources at hand. Jenkins proposes extending the domain of hermeneutical injustice to cases in which an adequate concept exists, but the victims nevertheless fail to recognize their experience due to existing working understandings which distort the existing concept. To argue for this claim, she uses Haslanger's distinction between manifest and operative concepts. Sally Haslanger (2012) argues that concepts help us draw distinctions between things. That is, we group certain things under one concept in order to distinguish between different things in the world. Furthermore, she argues that even if we already have a concept that we can use to group or distinguish things, we might not explicitly apply the concept correctly in each specific case. We do not always make sure that each thing we group under the concept actually meets the conditions for applying the concept; rather, we often rely on assumptions which help us link easily accessible criteria with the conditions for membership of the concept (Haslanger 2012, 387–8). In these cases, we think we are guided by a concept when we actually are not. Haslanger calls the concept we think we are guided by the “manifest concept” and the concept that can be extrapolated from our actual usage in a given context the “operative concept” (2012, 388). [g]iven that myths about rape […] are widely accepted and can be discerned in widespread practices (such as the practice of taking a dismissive attitude towards victims of these forms of violence), it seems that many of the current operative concepts do incorporate distorting factors stemming from myths. At the same time, the manifest concepts, though they are well-suited to capturing experiences of violence, exist in the realm of policy and law but will not always be readily available in everyday discourse. (Jenkins 2016a, 6) The problem, therefore, is that some individuals hold distorted operative concepts which represent a too narrow account of rape, such that many instances of rape are excluded from the definition and cannot be accounted for. Hence, a victim of rape might fail to understand her own experience due to having a faulty operative concept of rape. In other words, Jenkins points at a mismatch between the formal, legal definition and a given practice in a community. Obviously, it is not only victims of rape who hold such faulty operative concepts. Since rape myths are known to be prevalent and widespread, many people hold distorted operative concepts of rape that do not match the legal definition.7 In line with Jenkins analysis, let us say that the manifest concept is the so-called legal definition—the understanding that is institutionally set up and documented—while the operative concept can be extrapolated from the actual usage in a given community. If the practices in said community do not match the legal definition, then, a gap exists between the operative concept and the manifest concept. To illustrate this, consider the following example. Assume that a city's regulation for littering is the following: the disposal of any physical object on city grounds and outside the designated areas of disposal is an act of littering and therewith forbidden. However, every Sunday on my way home from the market, I dispose a half-eaten apple in the bushes next to the bus stop. Knowing the biological fact that my half-eaten apple will quickly start rotting and decompose into the earth—literally vanishing—I do not take my act of disposal to be an act of littering. Furthermore, I contend that many people make similar assumptions. The operative concept of littering (say, an act is an act of littering only if I dispose of objects on city grounds that do not decompose into nature and have a lasting effect on the cleanliness of the city), therefore, diverges from the manifest concept (the city's regulation for littering). While this mismatch between manifest and operative concepts is widespread and sometimes relatively harmless, I focus here exclusively on the problems of such a mismatch for legal procedures of rape cases. In a first step, I attempt to widen Jenkins’ analysis such that it can be used for understanding the problematic effects that the gap between operative and manifest concepts have on victims of rape both in cases in which victims rely on distorted working understandings as well as cases in which others do so. I am particularly interested in cases, in which such distortion hampers with legal proceedings such as rape trials and police investigations. Let us now turn back to the concept of rape. The conceptual gap between the manifest and the operative concept—that is, between the formal definition and the actual usage in a given community8—can have deeply problematic consequences for victims of rape. This is true when the mismatch is of the following nature: the dominant operative concept, extrapolated from the usage in a given community, is affected by so-called rape myths and hence, does not adequately track the legal definition. In what follows, I present three examples that illustrate the problematic consequences that can arise from such a mismatch. According to Jenkins (2016a), the prevalence of rape myths makes it likely that victims of rape are also affected and that their working understanding of rape is distorted. This being the case makes it at best harder and at worst impossible for them to render their experience sufficiently intelligible and to articulate it adequately to others. Thus, victims of rape are sometimes—due to rape myths—lacking the necessary conceptual resources to understand what happened to them. This argument is supported by empirical research showing the deeply problematic relation between rape myths and our ability to adequately understand our lived experiences. In a 2004 study, Peterson and Muehlenhard interviewed a group of women who had been raped in ways that matched the current legal definitions of rape. They found that some of the women were victims of “unacknowledged rape”; they were unwilling to apply the term “rape” to what happened to them. Furthermore, Peterson and Muehlenhard found that the women who were unwilling to apply the accurate term to their experience were also holding rape myths and had been raped in ways that matched the myths they accepted. For example, they found that women who accepted the myths that rape always involves overwhelming physical force (rape myth (B) above) and that victims always physically resist their attacker were less likely to understand their experience of rape as rape if they were raped without physical force and had not physically resisted their attacker. The conclusion that Jenkins correctly draws is that “one effect of rape myths is to prevent some victims of rape from conceptualising their experience as one of rape” (2016a, 3). While the consequences that Jenkins discusses are first and foremost epistemic consequences—the failure of understanding one's experience and the failure to articulate said experience adequately—they nevertheless have other practical consequences, some of which arise from the epistemic failings. For example, victims of rape who fail to understand their experience adequately or who fail to articulate their experiences adequately are less likely to seek professional help, to report the incident to the police or other institutions, to protest the injustice that stems from these epistemic failures. Jenkins draws our attention to this last consequence and writes that hermeneutical injustice “pre-emptively silences protests against other injustices” (2016, 11); being unable to understand and articulate our experiences makes it near impossible to protest the moral injury we suffered. In 2011, juror Patrick Kirkland published a long essay about the decision to acquit New York City police officers Kenneth Moreno and Franklin L. Mata of rape charges. Officers Moreno and Mata were called to the home of the alleged victim, because she was too intoxicated to exit a taxi. They returned to her apartment twice that night (proven by security camera footage), yet, tried to cover this up by placing a false 911 call to the area of the apartment in order to have a justification to go back there. Three years later in court, Moreno admitted to cuddling with the alleged victim and singing to her, while she was wearing only a bra. According to testimony, Mata waited in another room at that time. The alleged victim, on the contrary, reported waking up to being penetrated by one of the police officers. “She said she woke up to being penetrated,” Four repeats. I turn directly to Four. Hours have passed. We've gone in circles, and Four has seemingly made the penetration line her new mantra. My elbows hit my knees and I speak slowly. “You do know that penetration can mean sex, right?” I ask. I can hear her mind racing, speeding toward the light of reason. “Yes.” “And you know that sex does not equal rape?” She stares down at her notepad. “She said … she felt the penetration.” (Kirkland 2011, 208) Juror Number Four was right in feeling uneasy about this, but failed to express it clearly. What is beyond reach for Kirkland is the fact that under New York State law, rape means non-consensual sexual intercourse, and that the alleged victim could not have given consent if she was sleeping while the penetration started as is exactly what She said she woke up to being penetrated implies.9 If the jury believes that the victim was telling the truth when she reported waking up to being penetrated, and in this case they did believe her, then, according to New York State law, they should have judged the incident to be an act of rape, because a sleeping person cannot consent to having sex (cf. Harding 2015, 115–17). The working understanding of rape at work here—pointedly described by Juror Kirkland—either fails to include nonconsensual sex at all or fails to understand that passivity (to the point of unconsciousness) does not equal consent and is therewith not in line with the legal definition. Thus, it does not match the New York State law of rape. Using the distinction between operative and manifest concepts, we can say that the New York State law of rape as nonconsensual sexual intercourse is the manifest concept of rape; it is the institutionalized, legal definition of rape in this context. On the contrary, Juror Kirkland's operative concept of rape is distorted; it fails to understand the penetration of a sleeping person as rape.10 Not only does this mismatch between Kirkland's operative concept and the legal manifest concept of rape result in Kirkland's disrespectful attitude toward juror Number Four, but it also wrongly leads to the acquittal of Moreno and Mata and, thus, constitutes an injustice itself; the victim is denied institutional recognition of her moral and physical injury and her status as a victim; as a consequence, she is denied justice, compensation, restoration, and other help reserved for victims of rape and abuse. On a Monday morning in August 2008, two Lynnwood police detectives—Sgt. Jeffrey Mason and Jerry Rittgarn—are called to a rape scene.11 The victim, Marie, who had just turned 18, told the detectives that she was asleep in her apartment when she was awoken by a man with a knife. He tied her up, blindfolded her, gagged her, and then, raped her. After he left, she managed to untie herself and call for help. She could not offer many details, but believed that the man wore a condom when he raped her, was white, and wore a gray sweater. She could not say how long the attack had lasted. Throughout her testimony and the police's inspection of her apartment, Marie appeared calm and focused (cf. Armstrong and Miller 2015). Sgt. Jeffrey Mason and Jerry Rittgarn, however, doubted Marie's testimony despite existing evidence collaborating it. Why? While all reasons are purely speculative, it is likely that Mason and Rittgarn held certain schemas that prevented them from believing Marie. And, most likely, those schemas had to do with the overall rape as well as their stereotypical assumptions about Marie. For example, they might have held a rape myth such as the myth that “She asked for it, because she behaved or was dressed in a ‘provocative’ or flirting manner or lived a ‘provocative lifestyle’” (rape myth (A) above). They might have believed that rape victims are supposed to be young, pretty, innocent, and are supposed to behave in a traumatized and hysterical way after being raped. And that, otherwise, the woman asked for it and, hence, what happened either was not rape or the report is a straightforward lie (which is exactly what Mason and Rittgarn believed and accused Marie of). Such false or distorted assumptions about rape victims often lead to victim blaming. Victim blaming refers to the attitude that women who behave flirtatiously, who are sexually teasing, or who are dressed provocatively are actually themselves to blame for being raped. This attitude often works hand in hand with rape myths and, thus, making either conclusion deeply problematic for the victim; either the woman had asked for it and what happened was not rape or the woman had provoked the rape herself and wanted it such that, again, what happened was not rape.12 Whatever the exact schemas that Mason and Rittgarn believed in, it is likely that an interaction of false schemas about rape and false schemas about rape victim's behavior led to their disbelief in Marie's testimony. One way to explain this is with the help of ideal victim theory. According to this legal theory, an ideal victim is a victim who is afforded the status of victimhood by most (if not all) due to the unavoidable circumstances in which the victim found herself. Hence, a person who could have avoided the attack (e.g., by not going to the location at which the attack occurred) or could have resisted the attack through their own behavior (e.g., by being physically stronger) is not an ideal victim, while a person who is attacked in unavoidable circumstances and, hence, could not have avoided the attack by their own doing is an ideal victim (cf. Christie 1986). While an ideal victim has a strong legal case for winning in court, the nonideal victim does not. Yet, this is not the case when it comes to rape. In rape cases, the threshold for counting as an ideal victim is impossibly high. The ideal victim is one who resists the attacker to the point of her own death, avoids any places where an attack could occur (this alone is impossible taking into consideration that most rapes occur in the victim's home or other places commonly regarded as safe), has no history of sexual activities, behaves and dresses appropriately (e.g., does not drink alcohol or takes other substances), and does not know the attacker (cf. Gotell 2009; Randall 2010). Hence, many people accept an incredibly narrow description of what a rape victim is supposedly like. They believe, for example, that victims are physically hurt, without sexual experience, appropriately dressed, and so on, or as Catherine MacKinnon argues, an ideal victim in a rape case is dead. Marie was not dead. She showed some physical marks of being tied down, but was not severely beaten, she was also not sexually inexperienced, and did not behave traumatized. According to these false schemas, Marie simply did not appear as a rape victim.13 The detectives’ beliefs led them to distrust her despite the evidence found in her home and on her body: the rear sliding glass door was unlocked and slightly ajar in Marie's apartment, the railing of the back porch was covered with dirt, except for one part (as if someone recently climbed over), a knife from Marie's kitchen was found next to the bed, along with a shoestring on the bed, and a second shoestring tied to a pair of underwear (used for blindfolding and gagging Marie) in the apartment. The detectives sent Marie to the hospital for sexual assault examination. The medical report noted abrasions to Marie's wrists and vagina. However, the report also stated that Marie was in no acute distress. Despite all available evidence, the detectives decided not to believe Marie, and ultimately, dismissed the case.14 This false judgment in regard to Marie is not uncommon. Members of the police force commonly hold assumptions about what rape victims supposedly look like and how they behave (cf. Allison and Wrightsman 1993, Chapter 6; Harding 2015, Chapter 5). Such false assumptions are indeed so common that, by 2008, specialists had developed protocols to deal with the challenges often brought by rape cases: “These guidelines, available to all police departments, detailed common missteps. Investigators, one guide advised, should not assume that a true victim will be hysterical rather than calm; able to show clear signs of physical injury; and certain of every detail. Some victims confuse fine points or even recant. Nor should the police get lost in stereotypes—believing, for example, that an adult victim will be more believable than an adolescent” (Armstrong and Miller 2015). Yet, despite the evidence and the protocols, Mason's and Rittgarn's working understanding of rape—their operative concept according to Jenkins’ analysis—was distorted by some interplay of rape myths and other false schemas. However, according to Marie's testimony, the overall evidence and, finally, the conclusion reached many years later by two other police detectives, Marie's attacker engaged in sexual intercourse by forcible compulsion (she was blindfolded, gagged, and tied up), he used a deadly weapon (a knife from Marie's kitchen), and he entered her apartment feloniously. Only one of these features must be in place to define the act as rape in the first degree according to Washington State law. According to the manifest concept, Marie was raped. However, according to Mason and Rittgarn, she was not. This had serious consequences for Marie; not only was she suffering from the aftermath of the violence, the permanent threat of another break-in, the misrecognition by police, family and friends, the lack of support and help, the distrust even by those close to her, but she was also charged with filing a false report. These three examples show that (a) our working understandings can be distorted by rape myths, (b) our operative concepts and the legal definitions do not necessarily match, and that (c) we might believe that the concept we apply is in line with the legal definition, when in fact it is not. First, in Jenkins’ case the working understandings of victims of rape are distorted by rape myths such that they fail to adequately understand their own significant experience. Furthermore, by holding such distorted working understandings of rape, their understandings are not in line with the legal definition in their respective contexts; in fact, despite the legal definition being able to describe what happens to them as an instance of rape, they fail to view their own experience in such terms. And, finally, they are unaware that their own working understanding is not in line with the legal definition; more so, they think that they do not have a legal claim because they fail to understand the mismatch between the legal definition and their distorted working understanding. Second, in the Kirkland case, jury member Kirkland's working understanding of rape was distorted by rape myths (for example, (B) it was not really rape, because rape always involves overwhelming physical force, or a combination of some myths), such that it failed to match the legal definition. Furthermore, Kirkland was convinced that he did his job well as a juror; that is, he was convinced that his judgment of the case was based on the law at hand. Third, in the Lynnwood case, the police detectives’ working understanding was distorted by rape myths (for example, (A) She asked for it, because she behaved in a provocative or flirting manner or lived a provocative lifestyle, or some other myths related to the victim's behavior as being unsuitable for a rape victim). Furthermore, their working understanding and the legal definition failed to match and, as police officers following the law, they failed to understand this mismatch. Many individuals’ understandings of rape are distorted by rape myths, even by those who are supposed to represent the legal or institutional authority (e.g., police officers, jurors, etc.), concepts might be applied that do not match the legal definition. One way to account for this is by saying that people sometimes think they are applying the formal definition, when in fact they are not. That is, the concept they apply is not the actual legal one, which in fact would capture the phenomena at hand. One could object that what delivers the mismatch between operative and manifest concept and the problematic consequence in all three cases is not in fact a distorted operative concept but problematic schemas (for example, rape myths) that keep us from applying either one. In such cases, the operative and manifest concepts might very well be in line with each other and they might both be adequate in so far that they bring justice to victims of rape—and yet, one may still fail to apply the concept of rape at all because of interfering problematic schemas. The objection would go something like this: Whether or not Officers Mason and Rittgarn, Juror Kirkland