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Professor Franks and the False Dichotomy

by Jay Marshall Wolman

Apparently, along with Eric Turkewitz, I have been blocked on Twitter by Mary Anne Franks.  A Rhodes Scholar and woman of letters, Dr. Franks has divined that I am not worthy of comment.  According to Dr. Franks, I am a “false rape truther“.  Presumably, she means to equate questions about false accusations with rape with those who question whether Al Qaeda was behind the attack of September 11, 2001, generally labelled “9/11 Truthers”.  Rather than engage in discussion, as one hopes a law school professor who takes to social media might expect, I have been banninated from her Twitter feed.  So much for academic discourse.

The primary thrust of this posting, however, is not to lament the inability of a law professor to engage in debate.  I agree that I am not “entitled” to her attention.  I do lament the lack of intellectual rigor in her discourse, and I am seeking to address that.

The initiating factor was her statement that the likelihood of a false rape accusation was “inifinitesimal”.  Dr. Franks wrote this in the context of a discussion on reddit that seems to have resulted in the recommendation that men wear body cameras to avoid false rape accusations.  It is an interesting proposal, given that the presidential frontrunner endorses police wearing body cameras, in order to ensure good evidence of what actually happened during an encounter (and, perhaps, to act as a deterrent).  Dr. Franks is concerned that this will lead to secret recordings and revenge porn.  She may not be incorrect on that point.  But it is a poor argument to then be dismissive of the underlying concern, false accusations of rape, as “infinitesimal”.  There is no question that such false accusations happen.  If Dr. Franks believes otherwise, then she is a False Rape Accusation Denialist.  When asked by Attorney Turkewitz to back up her claim that it is inifinitesimal, she cited to a Washington Post article.  As a Twitter follower of Attorney Turkewitz, I took note of the discussion and read the article.  According to one study in the Washington Post article, 41% of rape allegations were fabricated.  In another study referenced, 2-10% were fabricated.  Even acknowledging that there may be many actual rapes that go unreported, I was banninated for asking how many false accusations are too many.  Here is where Dr. Franks committed an egregious failure of logic.  She and I both agree that rape is very bad.  What she cannot seem to comprehend is that false accusations are also very bad.  For her, to be anti-rape you must also pretend that false accusations are not a problem.  It is not an either/or situation.  One should be both anti-rape and anti-false accusation.  In fact, false accusations hurt rape victims, for the false accusers harm the credibility of all accusers.  To protect rape victims, Dr. Franks should be working hard to prevent false accusations.

Men (and women) falsely accused or standing the risk of being falsely accused of rape rightly need to take steps to protect themselves.  The body camera idea is just one idea.  But rather than merely address the problems with the proposal, that perhaps other steps are required to ensure consent and privacy relative to the recordings, Dr. Franks opted to pretend that the problem is insignificant.  It is not, which is why it is big news when the UVA, Duke Lacrosse, or Tawana Brawley incidents are exposed.

Dr. Franks further seems to take issue with those who oppose voter fraud, somehow tying it to opposing false criminal accusations.  She also has a problem with raising concerns about benefit fraud.  I admit–fraud is bad.  Fraud in business is bad.  Fraud on the courts is bad.  Fraudulent accusations of criminal wrongdoing is bad.  And voter and benefit frauds are bad, no matter how infinitesimal.  In the last two, the entire polity is the victim of voter and benefit fraud.  Twice more, Dr. Franks sets up false dichotomies.  Disenfranchisement is bad, but so is counting votes of ineligible voters.  Poverty is bad, but so is improperly taking others’ tax dollars.  Again, these are not either/or situations.  One can impose voter ID while working to ensure that every eligible voter gets that ID.  One can audit benefit recipients while ensuring that those who are entitled get what is allotted.  We got country *and* western.

If Dr. Franks is going to lock herself in an ivory tower rather than engage in actual legal practice, she should use her time and Oxford education wisely:  come up with workable solutions rather than ignore problems.  Discuss and debate outside an echo chamber.

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