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Review of ‘Wrongful Conviction in Sexual Assault’

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Review of ‘Wrongful Conviction in Sexual Assault’

Matthew Barry Johnson, PhD

May 3, 2021

Wrongful Conviction in Sex Assault: Stranger Rape, Acquaintance Rape, and Intra-familial Child Sexual Assault (WCSA), is the product of research conducted in the past 7 years or so. I drew from my earlier work focused on interrogation and false confession, and began to study wrongful conviction stemming from eye-witness mis-identification.  I realized that an obviously large proportion of wrongful convictions occurred in rape and sexual assault cases, whether via false confession or eye-witness mis-identification.

One of my initial goals was to merely catalogue cases from across the US.  Sarah Burns’ outstanding documentary “The Central Park Five” (CP5, 2012) provided a valuable account of the wrongful convictions from the point of view of the juvenile defendants and their families. However, the Burns film suggested the CP5 wrongful convictions were the product of peculiarities of New York City in the late 1980s (see ‘Sex, Race, and Wrongful Conviction’  I was acutely aware the CP5 prosecutions shared essential elements with the prosecution of Daryl Hunt in Winston-Salem, N. Carolina, multiple false confessions of juveniles in Chicago (The Dixmoor Five, The Englewood Four, and Ollins, Ollins, Saunders, and Bradford), the Steve Avery sexual assault conviction in Wisconsin, the Norfolk Four defendants in Virginia, and many others.

Several earlier wrongful conviction researchers suggested wrongful conviction in rape warranted attention but the issue remained largely unexamined.  Bedau & Radelet (1987) in their pre-DNA study of wrongful conviction in potentially capital cases commented, “…systematic research would certainly uncover more cases of wrongful conviction … especially for crimes of rape”.  The 1996 National Institute of Justice report on the first 28 US DNA exonerations stated, “All 28 cases profiled in the report involved some form of sexual assault”.  Unfortunately, the report included commentary suggesting the predominance of sexual assaults was merely an artifact.  In 2006, Findley & Scott, in a widely cited law review, relied on 4 cases to illustrate the phenomenon of ‘Tunnel Vision’.  Each of the four case illustrations involved stranger rape, a relatively rare crime.  Similarly, Brandon Garrett’s (2010) law review titled, “The Substance of False Confessions”, relied on a data set comprised of “mostly cases involving a rape by a stranger” without considering the likelihood the charged offense may have contributed to the flawed investigations and tragic outcomes.

As the research for my book WCSA was being formulated, it was readily apparent that the prosecution approach to classification, that is classification based on the highest charge, would be an obstacle to revealing important relationships.  Rape is sexual assault no matter that some rapes co-occur with murder.  Some prior research, employing the prosecution approach to crime classification, had asserted that murder is the most common crime associated with wrongful conviction in the US.  That finding was the result of counting rape/murders as murders.  When rape/murders are disaggregated from murders without sexual assault, the dramatic over-representation of sexual assault among US wrongful convictions is apparent.  As Garrett reported in 2011, rapes and rape/murders make up 89% of all US exonerations.

With the benefit of further disaggregation other important findings emerged.  Even though most sexual assault victims (78%) are attacked by perpetrators they knew, confirmed wrongful convictions predominately occur in stranger assaults.  Seventy-two % of the entire listing of Innocence Project exonerations (as of 2017) involved stranger rape cases, a relatively rare offense.  These findings led to the four-part ‘Stranger Rape Thesis’, elaborating the increased risk of wrongful conviction in stranger rape.  Just as disaggregating sexual assault revealed important distinctions, disaggregating stranger rape wrongful convictions exposed two different routes or paths to wrongful conviction.  Those cases with surviving capable victims were overwhelmingly linked to mis-identifications by the assault victim while those cases where the assault victim was killed, or otherwise incapable of assisting in the investigation, resulted in wrongful convictions via false confessions.

Disaggregation based on race/ethnicity contributes further clarity to processes in wrongful conviction in sexual assault.  While rape is a highly intra-ethnic crime, several researchers have noted the pronounced over-representation of innocent Black or Latino defendants wrongly convicted of raping white victims.  In Convicting the Innocent, Garrett reported 10% of rapes are inter-racial while half (49%) of rape exonerations occurred in cases with Black or Latino defendants and white victims.

While an initial goal was to catalogue wrongful convictions in sexual assault, what emerged was evidence that there was increased risk of wrongful conviction in certain types of offenses, that is stranger rapes and particularly Black defendant/white victim cases. WCSA presents the obstacles inherent to certain types of criminal investigations, and also how the reactions to certain offenses by law enforcement and the public can increase the risk of wrongful conviction.  Along the way the book discusses the role of serial sex offenders in wrongful conviction, ‘moral correction’ pressure and biases, different varieties of ‘manufactured evidence’ and the series of wrongful convictions in sexual assault referred to as ‘child sexual abuse hysteria’.

Wrongful Conviction in Sexual Assault is published by Oxford University Press, 2021.