Unreasonable doubt

Content note: This post deals with the reporting of sexual violence, and contains details of a very distressing case.

In the first week of 2019, news media around the world reported that a woman in a healthcare facility outside Phoenix, Arizona, had unexpectedly given birth to a baby boy. This was not a happy event. The woman had been in a vegetative state since suffering brain damage many years earlier (some reports said ‘over a decade’, others 14 years; later it was suggested she had spent as long as 27 years—by implication, most of her life—in full-time medical care, relying on others to take care of her most basic needs. Yet her pregnancy went unnoticed until, alerted by her moaning, a staff member realized she was in the advanced stages of labour.

Clearly, there are all kinds of questions that need to be asked about this horrific case. And while it isn’t the most important or the most urgent, one of those questions concerns the way it was reported by the media.

Criticism of the media’s coverage of sexual violence often focuses on the twin problems of victim-blaming and ‘himpathy’, the tendency to make excuses for men or to present them as victims themselves. In this case those problems did not arise. But there was another problem with the language used in reports, as you may notice if you look at these examples:

1. The police in Phoenix have opened an investigation into allegations that a woman in a vegetative state at a private nursing facility was sexually assaulted and gave birth to a child last month (New York Times)
2. An Arizona health care facility is investigating what it calls a “deeply disturbing incident” that a local television station has said involved the alleged sexual assault of a patient in a vegetative state (People)
3. Local news outlet KPHO-TV reports that the Phoenix Police Department began investigating the incident as a possible rape case after the woman gave birth on Dec. 29. (Huffington Post)
4. Police in Phoenix, Arizona, are investigating a possible sexual assault after a woman in a vegetative state gave birth at a healthcare facility on Saturday (Insider.com)
5. Woman in vegetative state gives birth after apparent assault (ABC News)
6. She gave birth on December 29 after apparently being raped at the facility some months earlier. (Mail Online)

A fancy name for what concerns me about these examples is ‘epistemic modality’—the expression of meanings relating to certainty or uncertainty, belief or disbelief. Suppose I’ve lost my keys and you ask me when I last had them. I can convey the same basic information—that I had them yesterday—in a range of different ways that communicate different degrees of confidence in the truth of that proposition. I might say, for instance (though there are many other possibilities):

It must/ might/ may/ could have been yesterday
I know/ think/ guess I had them yesterday
It was definitely/ probably/ possibly yesterday
I’m absolutely/ quite/ pretty/ almost sure it was yesterday

I’ve deliberately used a banal example to make the point that we all do this all the time. But in some contexts it’s particularly important to pay attention to this aspect of language. News reporting is one example. In a genre where, proverbially, ‘facts are sacred’, reporters must choose their words to make clear whether a proposition is being presented as a fact, a theory, a belief, a rumour, a supposition, a speculation or an opinion.

In news reports on the Arizona case, the proposition that the woman who gave birth had been sexually assaulted or raped (Arizona’s state law uses the term ‘sexual assault’ for both) was persistently worded in a way that implied a lack of certainty. In the first two examples reproduced above, the assault is said to be ‘alleged’ or an ‘allegation’, i.e. a claim someone has made that could be either true or false. The next two refer to a ‘possible’ sexual assault or rape. In the last two we get ‘apparent(ly)’, which suggests a higher degree of confidence, but stops short of full commitment (‘we don’t know for sure, but this is how it looks’). In everyday talk ‘apparently’ is often used to indicate that a proposition is hearsay, second-hand information whose truth the speaker can’t vouch for independently (e.g., ‘she’s broken up with her girlfriend, apparently’).

I didn’t make a full survey of the coverage, but this was the dominant pattern in the sample of reports I looked at. Among those which did not fit the pattern, most avoided taking any position at all (for instance, by reporting only that the woman had given birth and the police had launched an investigation). I found only one report, in the Washington Post, that expressed a high degree of confidence a crime had been committed:

The birth — and the sexual assault of a vulnerable individual that must have preceded it — has cast a harsh glare on conditions at a nonprofit organization that bills itself as a leading provider of health care for Phoenix’s medically fragile.

By using the modal verb ‘must’, this report presents the proposition that the woman was assaulted as something we are logically obliged to treat as certain. Even if there were no witnesses (or more exactly, none capable of making a statement), there is no other explanation for what some people did witness, the birth of a child to a woman who had been in a vegetative state for (much) longer than the duration of her pregnancy.

To me, and I imagine most readers of this blog, the conclusion drawn by the Post is self-evidently the correct one, while the caution displayed in other sources is excessive. If ‘sexual assault’ is understood to mean sex without consent (which is how Arizona’s legal code defines it), then there is no doubt that this woman was assaulted. Her pregnancy is evidence of sex (or in a hypothetical alternative scenario involving artificial insemination, of a bodily intrusion that would also count as assault by Arizona’s definition), and because of her vegetative state we can be certain that she did not consent, nor do anything that could have been construed as consent. In any case, under Arizona law a person affected by ‘a mental disorder, defect, drugs, alcohol or any type of impairment’ lacks the capacity to consent to sex.

In this case there really are no ifs, buts or maybes: what was done to this woman was a criminal assault. Why couldn’t the media just say so, without all the hedging and equivocating? The impression their language gave was that they didn’t understand either the legal definition of sexual assault or the concept of consent. The hedging invited readers to look for reasons why this might not have been rape, potentially reinforcing well-worn myths like ‘it’s not rape if he doesn’t use force’ and ‘it’s not rape if she doesn’t resist’.  Or in this situation, ‘it’s not rape if she’s in a permanent vegetative state’. (Yes, it’s a horrible thought–but there are men who think it’s not rape if a woman is asleep.)

On Twitter, I saw a number of comments suggesting that cautious language had been used for legal reasons (‘they can’t say it’s rape when it’s still being investigated’). In some cases, it’s true, the legal presumption of innocence obliges the media to remain non-committal on the question of whether a rape occurred. If the defendant in a case is denying he raped the complainant and claiming it was consensual sex, then the complainant’s account of it as rape cannot be presented as factually true, or even as more credible than the alternative, because that would be prejudicial to the defendant, presupposing his guilt before it has been proved ‘beyond a reasonable doubt’ (the standard of proof required for a criminal conviction). Unless and until there is a conviction, the complainant’s statement can be presented only as an ‘allegation’. And most rape cases where the disputed issue is consent do not result in a conviction. The arguments made by defence lawyers and the conclusions drawn by jurors reflect the attitudes of the wider culture, which is not only predisposed to doubt women’s accounts, but willing to accept almost any argument for doubting them as ‘reasonable’.

But in the Arizona case it should have been obvious that these considerations did not apply. No police officer or lawyer will ever question this woman; no jury will ever be asked to determine whether she consented, or whether she lied. If there’s a trial, it will be all about the DNA. How, in these circumstances, could anyone have thought it was necessary, or indeed accurate, to report that the police were investigating an ‘alleged’ assault? Who is supposed to have made the ‘allegation’? Clearly not a woman who is unable to communicate. And if it’s the staff at the facility, what they did was not ‘allege’ something but report something some of them had directly witnessed. As for ‘possible’ assault, when you describe something as a ‘possible X’, you’re saying it might turn out that either nothing happened or that what happened was something other than X. In this case, what would that have been? Abduction by aliens? A miracle?

What were the people who wrote this stuff, or passed it for publication, thinking? One answer to that question might be quite simply that they weren’t thinking: they just reached for the conventional formulas on autopilot, without stopping to ask themselves whether in this situation the result would be inaccurate and misleading. Like the political writers George Orwell criticized in his essay ‘Politics and the English Language’, they were stringing together stock phrases in the manner of ‘a prefabricated henhouse’.

Feminist efforts to change the language of rape reporting have often assumed that this thoughtless recycling of outdated formulas is the central problem, and that the solution is a combination of awareness-raising—getting people to notice what’s implied by the language they habitually use—and offering practical alternatives. That’s the approach taken in, for instance, this checklist for journalists produced by Canada’s Use the Right Words project , which touches on the question of epistemic modality: it notes for instance that ‘allegedly’ may be necessary in certain contexts but warns against over-using it, and recommends that complainants’ statements should be framed using neutral verbs (e.g., ‘she said’) rather than verbs that imply doubt or blame (like ‘she claimed’ or ‘she admitted’).

But while this kind of advice can be helpful to those who are disposed to take it, the problem it can’t address is that which words are ‘the right words’ depends on what story you’re using them to tell. What if the media use the words they do strategically, because they are in fact the ‘right words’ for the narrative being constructed? Is the problem the words themselves, or is it the narrative?

In a 1992 article entitled ‘The linguistics of blame’, Kate Clark analysed the vocabulary and grammar used in the Sun newspaper’s reporting of violence against women,  and found that different patterns were associated with two contrasting narratives: one in which an innocent victim—a child, a chaste young woman or a good wife and loving ‘mum’—was attacked by a man described as a ‘monster’, a ‘beast’ or a ‘fiend’, and another in which a bad woman—a negligent or frigid wife, a provocative ‘Lolita’ or promiscuous ‘blonde divorcee’—was held responsible for provoking whatever had happened to her. In addition to being a standard-bearer for sexism, the Sun was a staunch supporter of right-wing ‘law and order’ policies: cases of violence against ‘innocent’ women could be used to advance that part of its political agenda. More recently we’ve seen some sections of the press eschewing the usual scepticism and victim-blaming where that enables them to construct a racist narrative in which ‘our women’ [i.e., white women and girls] are being exploited and abused by non-white, foreign or Muslim men.

In the Arizona case it seemed the media had no strong or consistent narrative. We might have expected this to be, in the Sun’s terms, an ‘innocent victim abused by a monster’ story, worded to express outrage rather than caution. But the outrage was noticeably muted (‘a deeply disturbing incident’ was as strong as it got). Though the victim’s ‘innocence’ was not in question (many reports contained obfuscation and needless scepticism, but none engaged in actual victim-blaming), there did not seem to be much empathy for her either. As this comment piece notes, abusers of women with disabilities (who as a group suffer disproportionately high levels of sexual violence) can exploit not only their victims’ inherent vulnerability, but also their cultural invisibility. The mistreatment of disabled people in institutions is hidden from public view, and the media that might bring attention to it are, as one disability activist quoted in the piece puts it, ‘still largely uncomfortable seeing disabled people as, well, people’.

Even if they are deemed ‘innocent’, some victims may still be treated as less deserving of our sympathy and concern than others. Race, class, age and (dis)ability all influence the ranking. (Another pertinent example recently in the news is the way the media covered R. Kelly’s marriage to 15-year old Aaliyah in the 1990s, described in this piece as a ‘collective shrug’ which resulted from a combination of celebrity-worship, himpathy and misogynoir.)

I am not suggesting feminists shouldn’t criticize the media’s use of specific words, stock formulas or linguistic strategies (something I’ve done myself in this post), but I do think we need to recognize that the problem here goes far beyond language. The language of rape reporting is more a clue to the problem than a cause of it: it reflects the narratives the media construct around sexual violence, the culture of disbelief those narratives spring from, and the male dominance which that disbelief protects. Those things, ultimately, are what we have to change.

Update: since this post was written a man who worked at the Arizona facility as a practical nurse has been arrested on charges of sexual assault and vulnerable adult abuse.