Some of us at UCLA Law School have been experimenting with a new student participation system: Students in our classes have been issued what we call "clickers" -- electronic devices a little larger than a pocket calculator -- on which they can anonymously respond to professors' questions. When I start the corresponding program on the in-class computer, I can pose students' questions, and then get their reactions. The system, I'm told, can be used for many purposes, but right now I'm mainly using it to (1) quiz students to make sure they understand the legal rules, using questions that do have a right answer, and (2) ask students' views about policy questions.
Just today, I had a particularly interesting experience that I doubt I would have had without the clickers. My criminal law class is covering the law of rape, and we were talking about State v. Alston, a controversial 1984 North Carolina case involving the question of how much evidence of force is needed to prove rape. We discussed the facts (as reported in the appellate decision) in considerable detail, and discussed the court's legal ruling.
But I then asked the students to imagine themselves as jurors, and to answer whether -- given the facts -- they would have found the defendant guilty beyond a reasonable doubt of forcible rape (as the jury in Alston did, though the appellate court reversed). I also asked women and men to give separate answers (women A and B for proven beyond a reasonable doubt / not proven, men C and D for proven / not proven); and note that the answers are all anonymous.
Sixty students answered, out of a class of 81 (of whom I imagine 70 to 75 were present). This included 25 of 41 women and 35 of 40 men, a higher rate of abstention -- or absence -- on women's part, but a high participation rate for both sexes. The answers were:
Among women: 10 voted for rape proven beyond a reasonable doubt, 15 not proven.
Among men: 17 voted for rape proven, 18 not proven.
I stressed to students, of course, that this was not a large sample, and most certainly not one representative of the country as a whole. But I think it ended up being a useful perspective for the students, in highlighting to everyone both (1) how close the division was, and (2) how little gender gap there was (with men actually being a little more likely than women to find rape proven beyond a reasonable doubt, but I'm not sure not to any statistically significant degree). My sense is that this was an important pedagogical tool, chiefly because it helped show people how people of their own age, sex, and social class can disagree on such matters (whether or not they conclude that such disagreement is indeed warranted).
As importantly, I doubt that I'd have gotten nearly as much response, or as candid a reaction, if I'd just asked for a show of hands instead of an anonymous clicker vote. And even if I had gotten candid responses, I doubt that students would have had confidence in that candor. So I was very pleased with how the clickers worked here.
Not only does it help in getting candid responses, but it can also assess how well the students as a whole are actually understanding the material (something that's notoriously difficult under the Socratic Method)
Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.
In 1960, the Supreme Court said that anonymous political speech is too important to ban. In 2007, California is still trying to punish people who engage in anonymous political speech. See also yesterday's Richert v Wash Public Disclosure Comm'n. So, yeah, it's not surprising that the anonymity provided by the clickers helps gather better data.
Woman: "He's a rapist."
Defendant: "No, I'm not!"
Jury of students: "Guilty! No proof needed. If she said it, it must be true..."
Presumed
innocentguilty.Your poll reflects my experience and that of my colleagues. As a general rule men are more likely than women to find other men guilty of rape. You can speculate on the reasons, but it is just a general rule.
By contrast, in sexual harassment civil cases, women seem more likely to rule in favor of the plaintiff than men, regardless of educational level. That is different than in rape cases.
It may be that men are more less suspicious of female complainants' credibility than other women are (making them more pro-prosecution in a rape case), but also more sympathetic to men in cases of workplace miscommunication (the source of some sexual harassment cases), given that men, unlike women, are expected to initiate romantic relationships in our society, and thus have reason to think twice about overreacting to the seeming specter of sexual harassment.
Your poll reflects my experience and that of my colleagues. As a general rule men are more likely than women to find other men guilty of rape. You can speculate on the reasons, but it is just a general rule.
Having tried a few, I would mostly concur, and add that women under 30 in general, and both genders in the elite demographic group that makes up students at top law schools, are likely to be receptive to the prosecution in cases of adult-on-adult rape. If the defendant and victim are of different races, it is like throwing gas on a flame.
Yes. I will posit a different theory: women hear a situation, and think, "Well, I've never had that happen to me, and men always stop if you really want them to." Men think, "Hell would freeze over before I would treat a woman like that," so they are willing to convict.
My tax prof loved the clickers. She used them to track our progress (or lack thereof).
The fact is that women tend to be more judgmental of other women and more likely to see fault in their actions than men are. Can anyone say cat fight?
It is thought that women may have a psychological incentive to find something wrong with the woman's actions rather than view her as a victim. If there is something wrong with the woman's behavior, it is easier to think that something like rape would never happen to oneself, who does not exhibit the similar blameworthy behavior.
I am not surprised by the vote. If was a prosecutor prosecuting a rape case, I would prefer male jurors over female, and if I was the defense attorney, vice-versa. The fact that women are less likely to convict for rape in many cases is well known. (Although, in some cases, women are more likely to convict.)
Second, he won? Where do I find judges like this?
Third, courts should almost never put the name of alleged sexual assault victims into opinions. I really pity the poor woman. Even if it wasn't rape, it was a humiliating experience. And now her name is attached to a detailed description of it forever. If any of her friends Google her, they get numerous links to this case and to commentary about the case. How would you like to have your most humiliating moment forever memorialized like this?
And Smokey, the guy really was innocent until proven guilty. A jury found him guilty after what appears to be a decent trial. If that makes you mad, a court of appeals reversed. At best (for the guy), this was a close case. Most courts I practice in would say that the jury had the right to infer a threat of force from the defendant's previous actions. This guy was extremely lucky.
One reality of my job is that sometimes guilty people are found guilty after truly fair trials.
On an unrelated note, is there a link (not behind a firewall on a secure website like Lexis or Westlaw) that has the Alston case?
In looking at the article again, I now realize that there was more discussed by the class than a simple accusation by a woman who, for all I knew when I first read it, could have been just a good actress.
In the culture of 2007 America, many times it is the seriousness of the accusation that matters more than the substance; maybe I was getting ahead of myself in assuming that was also the case here.
Remember, even if a case is purely he said/she said, the jury is entitled to believe the "she said" and convict beyond a reasonable doubt.
And Professor Volokh is right that an "eyewitness's testimony is often considered powerful proof in criminal cases. . . ." But eyewitness testimony is also notoriously unreliable. That's a dangerous combination.
Look at almost any case later overturned on DNA evidence, and you will frequently (if not almost always) find a case that was based on the testimony of an eyewitness who credibly, confidently, and wrongly identified the defendant as the criminal.
It does sound like a valuable and fun pedagogical tool. But it also sounds like your disclaimer may have left room for your students to infer from your interest in the splits and gender gaps that there was anything statistically reliable they could extrapolate from the results, other than of course the opinions of those who voted today.
As for the jury, give me 12 men, 35-50 yrs, every time. I've done o.k. with women jurors but in talking to about a dozen juries, after verdict, in rape cases (some were my cases, some were colleagues) 95% of the remarks critical of the victim have come from women. Someone earlier said, "judgmental," and I think that's about it, or at least as much as I'm capable of analyzing. BTW, getting ready to try a pretty tough one next month. One thing for sure, the penalties are some of the most fierce found in the penal code.
As for use of the "clicker," does it allow students to avoid public expression of thought when it might be better to encourage it? Sounds like a pretty neat tool though.
I agree that in court, names must be used. I would also want the discretion to use names--I don't want to call the alleged victim "the victim." My objection comes to when things are published in a form that reaches the Internet.
Putting the names on the Internet generally hurts both the victim and the defendant, especially the guilty defendant. The damage to the victim is obvious. The damage to the defendant is less obvious.
Frequently, I can't adequately represent my client without ticking off the victim or the victim's family, but I work hard to avoid gratuitously rubbing salt into the victim's wounds. Increasing the harm of a crime by increasing the victim's humiliation will almost never help my client. It's better for everyone to limit the damage.
Men know what brutality men are capable of; women know what dishonesty women are capable of.
On an unrelated note, is there a link (not behind a firewall on a secure website like Lexis or Westlaw) that has the Alston case?
State v. Alston is reproduced here.
If you had bothered to Google the case name, you could have found it yourself when you wanted to read it.
A couple people complained that clickers were mainly used to take attendance. If that's the case, I'd be really peeved, too. If law schools are going to require students to buy clickers, professors should make pedagogical use of them (like, it appears, Professor Volokh does).
One question--if clickers can be used to take attendence, how are responses to questions anonymous?
Thank you. I was in a hurry when I posted and needed to get to a meeting. I should have have checked Google first since that search engine can find just about anything.
Statistically speaking, we cannot (p=.4) reject the null hypothesis that both of these samples were drawn from unbiased coin flips. Given the results, we can estimate the stddev*:
Women: 40% +/- 10%
Men: 49% +/- 8.5%
*All the usual caveats about statistics apply: the results suppose that we have honest results sampling without bias from a population with a binomial distribution. Void where taxed or prohibited. Offer not available in Kansas.
CheckEnclosed, you make a good point and good reminder to every prosecutor. There are three student athletes at (from?) Duke Univ. who would be doing a lot of head nodding on reading your post. I remind every youngster who arrives fresh in our office that regardless of the severity of a criminal allegation the impact on a person's life can be significant. I use the word "power" a lot and it fits. Even seemingly minor choices should be thoughtfully made.
So what are we to say here? That half the voters are not merely wrong, but so wrong as to he labeled "unreasonable"? Or that the very fact of the vote outcome shows that reasonable people can disagree, and therefore by definition there is a "reasonable doubt"?
The statistically useless results from your poll don't surprise me at all, for all the reasons previous written. The abstentions do surprise me: you made this entire exercise ridiculously low-risk, with absolutely no penalty for being "wrong," and there was an easy "I don't know enough to say" answer in the "not proven" response! What prompted ten to twenty people to refrain from participation under those circumstances?
My favorite clicker abuse was actually perpetrated by a prof who's a master at the Socratic method. We were reading Johnson v S. Pacific RR, where one question is the meaning of "car" in the Federal Railroad Safety Appliances Act. To illustrate the ambiguity, he shows a slide of five different railroad vehicles and asks, "How many cars?" Answers range from 0 to 5. "Last year, when we used paper surveys, we were able to break down your judgment on each vehicle," he said apologetically. "That's one advantage we lose by giving up the old technology."
I would love it if we could keep the name of the accused confidential until conviction (and possibly until completion of appeals), but there's no way to do that in the U.S.
Since I think keeping the names of alleged sexual assault victims off the Internet is generally in the interests of defendants, that's a good place to start. Keeping names confidential is especially important in the case of alleged child victims. If a child is testifying that she was raped, she needs help regardless of whether the allegations are true.
It's completely free and students submit polling responses through their laptops. Click here for links and more information about the free online polling tool.
Thanks,
Austin
CALI
agroothuis@cali.org
North Carolina.
Go back a couple of weeks and read KC Johnson's guest postings.
Are you willing to also keep the defendant's name out of the opinion? At the very least, only put it in if he's found guilty? If he's not guilty, don't all the same arguments apply?
You forgot the fear, suprise, ruthless efficiency, and almost fanatical devotion to the Pope. Not to mention the nice red uniforms.