As I do from time to time, I am re-posting a work by another author who is more qualified than I am on a subject that is both timely and of high importance. This was originally posted on Fetlife.com, and I wanted it to be out here where people can see it without a password.
So here it is, posted with permission of the author, Rigel, who asked me to simply link to www.atouchofflavor.com, where people can find lots of great articles on various challenges of the BDSM lifestyle. It is a website I highly recommend. I have done my best to preserve the original formatting.
You are Not the Police: The Hazards of Investigating Consent or Abuse Allegations Within the Scene
by Rigel, www.atouchofflavor.com
I’ve put a lot of thought into whether or not to publish this post. I’ve come back to it three or four times. It’s unavoidable that this will be seen as a commentary on recent events in my local community, because it is. What this is not is an attempt to bash anyone for the way they handled the situation. I believe that most of the people involved were genuinely attempting to protect both the victims and the community, and that any mistakes they made were out of ignorance, not malice. What I’m hoping to do is to provide some perspective so the same mistakes aren’t made again.
For those of you who don’t know me, I have been involved in the community for ten years. I have been involved with helping organize and run events since shortly after my entrance to the community. I have presented at a variety of events in my region, have worked or organized security for various events, am one of the coordinators of a non-profit munch, and also am one of the co-founders of TTB Ventures which runs events and conferences.
I’ve always tried to keep my professional background fairly private, but it’s relevant here and I feel strongly enough about this topic to disclose it. I am currently employed with a major metropolitan police department where I have spent the last six years as a Detective investigating violent crimes ranging from robberies and serious assaults to shootings, homicides, and yes, a few sexual assaults. I’m qualified to speak on this subject in a way that few, if any, of the people arguing here on FL about it are.
The things I say here might offend you or contradict your worldview, but this post is written based on my experience as an investigator.
The community does not have the ability to effectively investigate consent violations or abuse allegations.
This is the one point I am hoping to get across in this post. Being an event or group organizer does not give you the resources or the skills you need to investigate. Here’s why:
The community does not have the necessary resources to obtain any evidence other than interviews.
When it comes to investigations, evidence tends to fall into one of two categories. The statements of victims/witness/suspects, and tangible evidence such as physical evidence and records. While cases are rarely solved by tangible evidence alone (except on TV), it is extremely difficult to determine the truth of a matter with no tangible evidence. Tangible evidence does not lie and is not subject to the limitations of memory. This makes it invaluable to help collaborate or disprove the statements of those involved, which is vital for reasons I will discuss more shortly.
The community doesn’t have access to crime labs, search warrants, subpoenas, subject matter experts, or any of the other resources to necessary obtain and interpret tangible evidence. That means those trying to investigate a consent violation are left to rely on the statements of the people involved, without even the slightest amount of collaborating evidence. This is an unfortunate situation for even an experienced investigator, but an insurmountable one for the community, because:
The average person does not have the training or experience to determine the truth of what happened though statements alone.
Being able to effectively interview people is an art that investigators spend years developing. I have about 200 hours of training just on interviewing, and six years of experience interviewing victims, witnesses, and suspects on a daily basis, and I still have a lot to learn. The average person simply isn’t equipped to determine the truth of an incident from talking to people.
Everybody Lies.
Before you start screaming, read that line again. I didn’t say victims lie, I said everybody lies. This is one of the first lessons novice investigators learn. Even the most honest people practice some level of deception on a daily basis, and what appears to be the most honest statement will contain some element of deception. I’ve seen suspects confessing to heinous crimes still lie about their motives because they find them embarrassing.
Like it or not, false reports happen.
I’m going to leave my personal experience out of this and refer you to a source you might prefer. Victim’s advocacy groups cite reports putting the incidence of false allegations of sexual assault at 2-8%, with most of the studies I’ve seen quoted somewhere between 6% and 8%. These are the studies quoted by the groups with a motivation to drive these numbers down, and we’re still talking about a significant percentage.
Those numbers are already high enough for concern, but there are some important caveats. First, these are the reports that were actually proven to be false. Those numbers do not include the cases that could not be proven or dis-proven, a percentage of which are going to necessarily be false reports (it’s awfully hard to prove something didn’t happen). Second, people making these reports know that they could potentially go to jail for making a false report. In the scene we have no significant consequences for those making false reports, so I would expect that the percentage of false reporting in the scene is significantly higher than the ones reported to police.
On a side note, the people who say no one would lie about something as embarrassing as a consent violation drive me nuts. They a) obviously have no experience with investigation b) lack imagination and c) are making the common mistake of thinking that other people think the same way they do (hint: they don’t).
But for the sake of argument, let’s stick with those reported numbers. Do you know what the probability is an untrained person detecting a lie is? No better than chance. You have as much of a possibility of tossing a coin into the air and calling it correctly as you do determining if someone is telling you the truth. If you are acknowledging that even a fraction of sexual assault reports are false, that should concern you.
The difference between lies and deception.
What many people don’t understand is that lying is not the only form of deception. Deception is a range, with lying at the extreme end. Deception is psychologically stressful and gets more stressful closer you get to a lie. This means that unless backed into a corner people will usually omit information or qualify their answer instead of lying. Perhaps that bottom is telling you the truth about the top touching their genitals during the scene, but omitting the fact that the touching was negotiated beforehand, or something equally relevant. Perhaps the top is omitting that the sub safe worded during the scene. The best part? Since the person you’re talking to is not actually lying those signs that might have tipped you off disappear. Investigators are trained to recognize the language surrounding these lesser forms of deception and follow up appropriately. You are not.
Even when being honest, what people remember is never what actually happened.
The best description I’ve heard of human memory is “creative re-imagining.” How many arguments have you had with a partner where the two of you cannot agree what was said during a conversation? Neither one of you is lying (hopefully), you’re just remembering things differently. Our memory is not like a photograph, different pieces of the experience are stored in different parts of our brain and combined when we need them. Our mind fills in a bunch of blank spots, and our opinions, biases, things we’ve heard, and a host of other factors play into the result. If I talk to five different people who witnessed an incident I’m going to have five different versions of what happened, and I may very well have substantial variation in the details. The worst part? We think we remember far more than we actually do
This leads to another phenomenon. How many of you have kids who describe something that happened even though were far too young to have remembered it ? They don’t actually remember the incident, but they have heard you tell the story a few times, and now they “remember” it too. Likewise, two people who talk about an incident will generally come to “remember” the incident the same way, even if they have previously given differing statements. Furthermore a well meaning person can easily change someone’s memory of an event by asking the wrong questions.
So even when talking to someone who is being honest, developing an accurate picture as to what happened requires skills that an untrained person doesn’t have:
- The investigator needs be be able to ask questions in a non-leading way, and without giving away information obtained elsewhere.
- The investigator needs to be able to determine the difference between deception and normal inconsistencies due to memory and differences in perspective.
- The investigator has to be able to piece the different accounts and any other evidence into a cohesive picture of what happened.
Where’s the accused?
Normally when I see an accusation made in the scene nobody talks to the accused. I’m certainly not encouraging you to go out and interview these people, interviewing a suspect requires an even more specialized skill set than interviewing witnesses. However, these allegations usually have no tangible evidence and often the victim and accused were the only people present for the negotiations and/or incident. Considering the problems with deception and memory described above, how can you expect to get an accurate picture of what happened if you only evaluate one side of the story?
The road to hell is paved with good intentions
So, you have no ability to obtain tangible evidence. You don’t have the ability to determine if the person making the accusation is lying, much less to determine what information they might be leaving out. Ditto for any witnesses. Even if they were being honest you would have a hard time putting the pieces together.
So, despite having the best of intentions, what good are you doing?
I honestly don’t know. I can, however, think of a several ways you could be causing harm.
You may very well cause serious damage to a current or future criminal case.
How? Let me list the first few things that pop into my head:
First, you may prevent the victim from approaching the police at all.
After all, they know you. They’re much more comfortable with you than they would be talking to the police, and if you’re investigating it may very well be easier to just let you handle it.
Second, you are tipping the suspect off.
Our community leaks like a sieve. At the point where you go asking questions, word is going to get back to the suspect. This gives them the opportunity to destroy evidence, rehearse their story, find people to provide false alibis, and threaten the victim and witnesses if they are so inclined.
Third, you are going to corrupt the victims’ and/or witnesses’ testimony.
- Questions you ask the wrong way can affect the person’s recollection of the event,
- You can reveal information to the person that they should not know.
- If people get together and discuss an incident they will start to remember things the same way, even things they weren’t preset for or weren’t in a position to witness.
Because of the above factors, one of two things will happen when the person talks to the police or prosecutor:
- If the statements are false people will have had a chance to improve their stories during their prior discussions and will sound more honest then they should.
- If the statements are true, they will likely have become too consistent and rehearsed, and will contain details that the person was not in a position to witness. They will sound less honest than they should.
Fourth, you are making the investigation exponentially more complicated.
The easiest cases to charge and prosecute are the simple ones, because as a case becomes more complicated it both increases the chance of conflicting information and gives a defense attorney more things to attack in court. This case started off with the suspect and victim, perhaps a witness or two, and possibly some medical records and fetlife messages. At the point you started investigating you made yourself a witness. Did a bunch of you start investigating? All witnesses. Did you take notes and make timelines? Those are evidence. Did you exchange messages, emails, or FL messages with the victims regarding what happened? Those are evidence too, as well as anything else interesting the investigator or defense attorney discovers while looking through the results.
You’re giving a defense attorney a huge amount of ammo.
All those new witnesses and that new evidence you generated? A defense attorney is going to comb through everything and find that one statement or one piece of evidence that conflicts with what the victim says happened. That’s what they are going to bring up over and over again to destroy the victim’s credibility. They are going to point out how this was obviously a conspiracy against their client, how the victims and witnesses have conspired together to get their stories straight, yada yada. Your independent investigation is going to wind up sounding like a witch hunt to the jury.
And all this is assuming a prosecutor is even willing to bring a case with these problems to trial.
Prosecutors’ performance is judged by their conviction rate, or the number of convictions or guilty pleas they get divided by the total number of cases they have. Cases that they choose not to pursue or indict generally don’t play into this ratio. If you have turned this case into a complicated mess through your investigation and they don’t think they can get a conviction they have a strong incentive to either drop the case or offer a ridiculous plea.
After the Fact.
Though doing an independent investigation after charges are filed is better than doing it before, it’s still a bad idea unless the court proceedings are over. The end result is almost certain to be that future statements and testimony will differ from the first report the victim and witnesses gave (which causes it’s own set of problems, particularly in court). You are also still going to have the same issues with case complications/evidence/defense attorney ammo.
The elephant in the room: those falsely accused.
I don’t know what it is about this topic that drives people into denial and precludes a rational discussion. I’m about as far as you can get from a bleeding heart, but I’ve also seen people go to jail based on the testimony from both lying and well meaning but faulty victims and witnesses. The consequences of a false accusation are different in the scene, but being ostracized from your community and friends isn’t something to be taken lightly. So, let’s work through this rationally:
- The incidence of false reporting is at least one in twenty. Closer to one in ten, and that’s ignoring the fact that it’s probably significantly higher in the scene.
- You probably have no tangible evidence.
- You have no better than an even chance of determining if the victim is telling you the truth or not.
- In the rare instance that there are witnesses, you don’t have the skills to interview them effectively.
So, you’re essentially working with what? A hunch, or at best an educated guess. It’s certainly not “evidence” despite the fact that I’ve seen that phrase tossed around a bunch on FL recently. It’s one thing to keep that person away from your events, but are you really comfortable accusing someone publicly and destroying their reputation based on your guess? I do this for a living, and I still don’t call my my hunches anything else until the evidence proves them right or wrong.
That’s a lot of don’t, but what should I do?
I’ve talked a bunch about how not to handle these incidents. I don’t want to end the discussion without giving some advice on how we should handle them, but the truth is that while the information above comes from my experience, with the exception of the last two points my suggestions below are just that: suggestions. I’d love to get a dialog going concerning how we can handle these incidents in light of the problems I’ve described.
So, here are my suggestions:
Be a friend.
That’s what you are, a friend, not an investigator. Don’t “interview” witnesses. Don’t encourage a bunch of other people to “interview” the victim. There’s a good chance you will damage any future criminal case.
Encourage the victim to go to the police…
In the end, the police are the people with the resources and experience to determine what occurred and to take meaningful action if something did happen.
I know that many victims in general and kinksters in particular are apprehensive about approaching the police, so here are a few options:
- They can contact a kink-aware victim service agency.
- They can file an Incident Report with the NCSF and ask directly for help in speaking to law enforcement and social service professionals.
- Most large departments have a LGBT Liaison Unit. Contact information can usually be found on the web. Many of the Officers assigned to these units are familiar with kink, and while they probably won’t handle the case directly they can be a good place to start.
…and to get any other help they need.
You are not a trained counselor or psychiatrist either. If they need that kind of help, make sure they get it.
If you are an organizer or promoter make the decisions you need to ensure the safety of your people.
While your opinion of the incident is at best an educated guess, there are several reasons why you may choose remove the alleged offender from your events if you believe the allegations: erring on the side of caution to protect your attendees, building the public perception that violations won’t be tolerated at your events, and the potential civil liability if that alleged offender violates someone else’s consent at your venue after you’ve been informed that they are a risk.
Spread the word if needed, but do it with discretion.
If you feel the person involved presents a danger to the community as a whole, spread the word to other organizers and promoters. At the same time, acknowledge that what you’re relaying has not been proven by a) not making public announcements regarding it and b) not expecting those you provide this information to to take your word as gospel.
And finally the two points that really aren’t suggestions:
Under no circumstances encourage victims and witnesses to discuss what happened together.
I think I’ve covered this thoroughly enough already.
And finally, if you’re going to ignore everything else I’ve said, don’t post about your “investigation” on the internet.
In your infinite wisdom you’ve decided to ignore all the advice I’ve given here? You’ve conducted your own investigation, interviewed people, and sat the victims and witnesses down to talk to each other? Fine. But for the love of god, don’t post a description of what you’ve done on the internet where it’s a screenshot away from being Defense Exhibit 1.
[Added approximately 24 hours after the original writing]: There are now dozens of comments and a couple of spin-off threads about how wrong I am for telling victims they should go to the police. The interesting thing? Not only is the post very clearly written from the perspective of a third person approached by a victim, nowhere does it say anything about what the victim should do.
In fact, the only time I addressed the topic was in a response to one of the earlier comments. I’ll post it here so you don’t have to hunt:
Comment:
I also think it’s inappropriate to suggest that victims should be encouraged to report to the police.
My Response:
I don’t, because this post is mainly written for organizers and promoters. As an organizer, my primary responsibility is not the victim’s comfort. It’s the safety of the victim, my attendees, and the community. I can best fulfill this responsibility by encouraging the victim to go to a medical professional (if necessary), a counselor, and the police.
The victim’s primary responsibility is to take care of themselves, and they may decide that’s best accomplished by not going to the police. They’re not wrong and I’m not wrong, we just have different responsibilities.
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