MOVING TO FRONT: SEE THE UPDATES, INCLUDING FROM AN ACTUAL EXPERT WITNESS AT THE STUBBLEFIELD TRIAL
Jeff McMahan (Oxford) called to my attention this piece he and Peter Singer (Princeton) wrote about the "injustice" involved in the conviction of Anna Stubblefield for rape of a severely disabled man whom she believed had consented to sex via "facilitated communication." (For background, see here and here.) I agree with McMahan and Singer that Stubblefield is not some horrible "sexual predator" and that the 12-year prison sentence is too harsh, but harsh prison sentences are a general problem in the American criminal justice system. Beyond that, however, their essay is quite misleading and not very compelling. They give the false impression that Stubblefield was prevented from testifying that she believed the victim had consented to sex, when in fact she was allowed to testify about her use of facilitated communication with the victim. (They write that the trial judge "decided to exclude all testimony related to facilitated communication," but that is wrong: the trial judge excluded all evidence that facilitated communication is scientifically valid evidence of a disabled person's state of mind.) In a rape prosecution, the state of mind of the accused is important, and so the court properly admitted her testimony about her state of mind. But what the trial court did not permit was any "expert" evidence that facilitated communication is a reliable way of communicating with the severely disabled.
McMahan and Singer take issue with the second point, without considering the question whether or not facilitated communication was admissible scientific evidence. A technical sidenote: New Jersey is a "Frye rule" jurisdiction concerning scientific evidence rather than a "Daubert rule" jurisdiction. Under the Frye standard, expert scientific evidence is only admissible if "generally accepted" in the relevant scientific community: facilitated communicaton, as best I can tell, pretty clearly fails that test. Daubert, a 1993 Supreme Court decision concerning the Federal Rules of Evidence, held that the Frye standard is not incorporated into the federal rules--though "general acceptance" is a relevant factor regarding admissibility, the primary question is whether the method in question is reliable science, a far more open-ended inquiry. The exclusion of evidence concerning "facilitated communication" was, as I noted some time ago, a likely basis for appeal. But given that New Jersey is a Frye jurisdiction, I suspect the appellate court will agree with the trial court. Even if New Jersey were a Daubert jurisdiction, it would still be an uphill battle.
Courts try to exclude "junk science" because of fears about the gullibility of lay jurors. This is a recurring feature of American evidence law: it is predicated on doubts about the competence of jurors, so judges are called upon to shield them from evidence that might confuse or mislead them. Part of the judge's job is to keep out "junk science" which might unduly impress naifs. Facilitated communication, offered as a scientifically reliable way of ascertaining the state of mind of the severely disabled, appears to be nothing of the kind: it is not "generally accepted" by scientific experts as a reliable way of communicating with the disabled. Because McMahan and Singer don't even recognize the actual issue at stake, their piece is almost entirely beside the point.
ADDENDUM: This bit towards the end of the essay (unrelated to the law) is quite weird, though in a typically Singerite way:
It seems reasonable to assume that the experience was pleasurable to him [i.e., the victim of the sexual assault]; for even if he is cognitively impaired, he was capable of struggling to resist, and, for reasons we will note shortly, it is implausible to suppose that Stubblefield forcibly subdued him. On the assumption that he is profoundly cognitively impaired, therefore, it seems that if Stubblefield wronged or harmed him, it must have been in a way that he is incapable of understanding and that affected his experience only pleasurably.
ANOTHER: Reader David Auerbach writes that "Rosemary Crossley [whom Singer & McMahan mention was not permitted to testify] is the inventor of Facilitated Communication, something the authors seem to be unaware of. Complaining that her evidence of competence was not admitted is like complaining that Uri Geller's evidence of someone's psychic abilities was not admitted." Auerbach has written more about Crossley here.
AND STILL MORE: Psychologist James Todd, a professor at Eastern Michigan University, writes:
I enjoyed reading your comments on the Stubblefield case. I think you are correct in almost every aspect. I would like to add a couple background details. I was the final witness in the Stubblefield case, just before the case went to jury. Thus, I know some things about the case that others would not.
Even though some FC evidence was excluded to the jury under Frye, as you suggest, FC was discussed enough by the defense in its testimony that I was brought in as a rebuttal witness.
I testified that FC has zero scientific backing, describing some of the ways that it has been investigated, and noting some of the prevarications that advocates use to try to make it seem like it might have some validity. Some of these were used by Stubblefield in her academic works, including apparently deliberately misreporting the number of disconfirmatory studies in reviews of FC that she herself cited. There was lots more.
As to her not being a predator, I disagree. She showed no apparent insight during the case into what she did, and all subsequent indications I’ve seen show none has been gained. She manipulated and lied to accomplish and defend the rape. She has a collection of enablers who think like she does, including some who write of instigating sexual relations among non-verbal people using FC as the mechanism to mutual consent—just like Stubblefield. In one case, the same facilitator types for both the man and woman. Stubblefield was also literally in love with herself, typing for the man. Her mother and staunch defender, Sandra McClennen, is a long-time FC advocate here in Michigan (actually Emeritus in another department at my institution). I was an expert witness opposite her mother in another case in which an entire family was falsely accused of rape through FC. The father spent 70 days in solitary confinement falsely accused of rape. This tragic misadventure should have been a cautionary tale to Stubblefield. It has not been to her mother, who continues to advocate FC, and Has not been to Stubblefield. These people will all be there when she gets out. She’s their martyr.
That is, if Stubblefield did it all again, if more furtively, I’d be the least surprised person in the world.
Thank you again for adding some useful insight to this issue in your blog.