Rape Accusations Are Often False

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www.innocenceproject.org/

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If accusers get special treatment, can accused get fair trial?
By Tom Kisken, [e-mail]
August 3, 2003

In terms of pain and a life pulled apart, a person who is violently or sexually attacked becomes a victim at the moment of assault. That is when the wounds are freshest, the need for help most raw.

But as arguments over the legal system's balance of rights are prodded by what is now simply the Kobe case, some lawyers contend that in many situations a person doesn't become a victim until a judge or jury rules crimes were committed beyond a reasonable doubt.

They say shielding an alleged rape victim's name can send a message: This person's claims are credible enough to warrant protection. They say special treatment, in form of victim advocates in the courtroom and laws that keep a jury from hearing about an accuser's sexual past, imply a victim's accounts are to be believed.

"As soon as you treat someone who is claiming to be a victim of crime as, in fact, a victim, you are having a potentially negative effect," said Paul Gerowitz, executive director of a defense lawyers group called California Attorneys for Criminal Justice. "As soon as you presume victimization, you weaken the presumption of innocence."

As for basketball superstar Kobe Bryant's innocence on a sexual assault charge, teenagers firing up jumpshots at a Ventura park on a Saturday morning had no doubt -- reasonable or otherwise. What bothered them is that Bryant's name was everywhere as soon as the story of the allegations broke, while the woman's name was kept private.

The logic has persuaded a radio talk-show host and several Web site operators to publish the 19-year-old woman's name and photograph, with more than a dozen sites identifying the wrong person. But the arguments haven't convinced the case's judge, who warned reporters this week they may not be allowed in the courtroom if their organizations identify the alleged victim. Bryant is scheduled to appear in court to hear the charges against him Wednesday.

Nor has the debate touched the opinions of Donna Minkel, rape crisis manager for the Coalition to End Family Violence, a program that serves several thousand clients in Ventura County every year. She argues much of the ongoing give-and-take about anonymity and whether information about a defendant's past is admissible in court is driven not by societal concern about rights but by the brightness of celebrity.

"This isn't about the victim," she said. "It's about saving Kobe Bryant."

As for Minkel, she is absolutely about victims, solely focused on their needs and vulnerability. She argues that while Bryant's case illustrates moth-eaten holes in the blanket of protection that courts and media provide, anonymity has to be an option for all rape victims.

Society still blames women for sexual assault, Minkel said, referring to people who are questioning why Bryant's alleged victim visited his hotel room. People take notice of a woman's clothes and lifestyle, suggesting maybe these factors are an invitation for a sexual attack. Victims even do it, struggling with the feeling that somehow, some way they are at fault.

That unfounded guilt, Minkel said, is one of many reasons FBI research suggests that only 1 of 10 sexual abuse victims reports the actions committed against him or her, making it one of the most underreported crime categories in the nation.

Strip away confidentiality. List names of accusers along with the accused. And even more people will keep their pain to themselves.

"You're going to have fewer victims come forward, much fewer," Minkel said.

Reliving the past

The woman didn't go to law enforcement. Officers came to her with information they had video proof she had been drugged and then raped at the age of 17. They asked for help in putting away the man who did it -- Max Factor heir Andrew Luster of Mussel Shoals.

Ventura County courts protected her by giving her the name Shawna Doe.

"If her name had been known, she couldn't have walked around. That would have been out there," said her lawyer, Barry Novack, referring to the attack. "It's like wearing a big letter on you -- a big R."

Before Luster was convicted of 86 counts related to three rapes, he jumped bail and fled to Mexico, where he was captured. He is now serving a 124-year prison sentence. Novack uses the word ironic to describe the temporary flight from law.

"He can escape from his problems. She can't," he said. "Every day is a continuing constant reminder. Every time she looks at the mirror, she recalls what happened to her."

It's called being revictimized. It's a reason California has over the past two decades adopted a series of laws, including two propositions, aimed at shielding victims while also securing their role in the court system.

They're entitled to tell their stories during sentencing, to apply for financial restitution, to be informed of any plea bargains or probation hearings and, in cases of sexual assault, not to undergo a psychiatric exam designed to measure credibility.

State law also established the Crime Victims Assistance Program run by the Ventura County District Attorney, with 22 employees and grant-driven funding of more than $1.6 million a year. Services provided include accompanying victims in the courtroom, aiding them in recovering property used as evidence, helping file restraining orders and handing out cellular phones so victims at risk of being stalked can stay in contact.

Critics don't challenge the victims' rights to stay safe and to be kept informed. They worry that efforts have gone too far.

"I think courts bend over backwards to protect a victim's rights at the expense of defendants," said Steve Lipson, Ventura County senior deputy public defender.

He argued a court is designed as a dispassionate setting where every participant must be treated equally and judgments are based on fact, not emotion. When an accuser is being treated differently from everyone else and tears are used to punctuate a prosecutor's charges, jurors are nudged to favor one side.

"You don't need much to push those buttons," he said.

Roger Diamond, a defense lawyer from Santa Monica, tells of a case thrown out of a Pomona court after he showed DNA evidence suggesting a woman's claim she was impregnated during a gang rape was wrong. He complains victims are so protected that it can be difficult to challenge their credibility with judges ruling information about a victim's past isn't relevant.

"There are statutes that prohibit attacking the women's credibility based on prior sexual conduct and so forth," he said. "What's at risk is there are people who are being held in jail when they are innocent."

Telling their stories

The aspect of victims' rights that generates the loudest objections seem at first glance innocuous. Victims have the right to address a judge during sentencing and explain how the crime committed against them changed their lives. Mothers talk about sons who were murdered. Rape victims talk about emotional wounds that haven't begun to heal.

"The emotion is overwhelming," Lipson said. "It's like a tidal wave you can't control."

That defense attorneys have a problem with the law isn't surprising. But Harry Caldwell, a former prosecutor who now teaches law at Pepperdine University, also asserts impact statements roll emotion into a court.

"We're introducing the very thing we strive to keep out," he said. "It turns into a bit of a passion play."

Judges say it's their job to filter out concrete evidence of the effect of a crime from the emotion surrounding it. But while Caldwell challenges the assertion that courts lean over backward to protect victims, he is not sure judges can insulate themselves in courtrooms where the only dry eyes are owned by the defense team.

"To say judges are not impacted by victim impact statements, that's to malign the truth," he said.

Critics of the protection afforded to victims paint images where the rights of the accuser directly conflict with the rights of the accused. Advocates maintain that protecting victims and giving them a voice in the courtroom doesn't take anything away from the defendants. They say judges can simultaneously consider the vulnerability of a victim and still admit any evidence that proves a defendant's innocence.

"The greater good is bringing about balance," said Jonathan Raven, a former prosecutor who is now director of the California Attorney General's Office of Victim Services. "The constitutional rights of the defendant are protected, but you still keep in mind that there is a victim. ... Their lives have been turned upside down. They need to have some rights."

Robert Rodriguez of Santa Paula doesn't get involved in the arguments. In an interview at the county victim assistance program, he doesn't say much at all, just sits in a wheelchair in his faded jeans and white K-Swiss tennis shoes.

About three years ago, not long before his 19th birthday, he was stabbed in the neck by a man who thought he was in a rival gang. His spinal cord was severed, paralyzing him from the neck down.

When his attacker was being sentenced to 24 years in prison for crimes that include attempted murder, Rodriguez spoke to the judge. He didn't say much then either. But he did cry in trying to explain what the attack did to him.

"It did a lot," he said, now punctuating the answer with a bitter laugh. "In a way it messed up things for me."

The tears were obvious emotion, said Catherine Duggan, the director of the county victim assistance program. But they were also more.

"This is a consequence," she said. "It's fact, absolutely fact."

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I have tried to push this here for awhile. It is very true. A women can cry rape with little or no physical evidence and the accused rapist wiill be ruined, even if false. With the new buzz word of 'date rape', in some political arena's, it is better to prosecute. If you have money, the rules change, look at the history of accused celebrity's. Better to settle, and make it go away. Andrew's case was handled different than most, it may have been his legal counseling and his naivety that did him in. But there is reasonable doubt for the normal, sane person.

Sorry for the spelling, typing fast, have a meeting to catch.