Thursday, December 27, 2007

Defense Against Alleged False Accusations Of Rape

I referenced the article: Forcible Rape Defense; False Accusations in Relationship and Date Rape Cases by William F. Nimmo in a post last week, but the biases contained in this article are worth giving extra focus. According to his bio Nimmo is a criminal defense attorney.

The reason I added "alleged" in the title of this post (before the phrase false accusations) is that this defense is making a criminal allegation of it's own and the article is in reality about how to get the best results for the defendant when the defense attorney uses this allegation. Just as with an allegation of rape, an allegation that the report of rape is false is just that -- a criminal allegation -- until it has been proven beyond a reasonable doubt. And that takes specific evidence.

This defense can work for the defendant even when the defense allegation is false. Many times when a defense team creates a lot of smoke about the alleged victim the public and the jury will simply assume there must be a fire under there somewhere even if they never see a single flame.

A frequent cry that goes out from those who claim that men charged with rape don't get fair trials is that the prosecutor isn't after the truth only the win, but this claim is a better fit for defense attorneys. They aren't looking for an objectively just outcome. They are looking out for the best interests of their client whether that outcome is just or not. If that means slandering a rape victim either in court or in the press those who use these techniques when they have no specific evidence that the report is a lie rationalize away painting a deliberately false picture. They are just doing their job.

"Women like her lie" is not specific evidence. Neither are any slurs on the alleged victim's character or morals. Read Nimmo's article and look at how much emphasis is given to specific evidence and how much of the emphasis is given to using stereotypes and generalities about women as a substitute for specific evidence.

The biggest stereotype can be boiled down to the idea that women cannot simply enjoy consensual sex which is a very convenient way to dismiss the alleged victim's trauma while giving women gendered motivation to file a false police report.

I can still hear my boyfriend/rapist's flippant, "It always hurts the first time" in response to my shock and agony from being raped. "The girls can't enjoy sex" lie may have helped him dismiss my pain when he raped me again. When I finally got to the place where my shock wore off thanks to discovering that he was cheating on me and I expressed my anger, he could have dismissed me as someone having a bitter break up.

I got raped. He made a couple of mistakes.

If the attitudes and evidence had been such back then that I had been able to disclose, get a rape kit done, file a police report and see him charged, this defense would have been perfect for my rapist. As fragile as I was under my anger, this approach could have crushed me. And of course the results of a rape victim getting crushed are also used as "evidence" of a false accusation of rape. Of course the defense spin would have been: "Her lie was exposed and she folded."

The harm done to real rape victims when rapists' defense attorneys use this strategy become nothing more than collateral damage.

This false accusation motivation must be gendered and tied directly to sex or this defense could be used just as often against men who are victims of non-sex crimes committed against them by someone they know. There are plenty of areas where men have morning-after regret and where real crimes can occur.

If a defendant's attorney wants to argue that no specific criminal statutes apply to the alleged behavior that is a different defense than the claim that a false accusation has been made.

However, a defense that alleges that the defendant exploited a legal loophole isn't likely to garner sympathy like "she cried rape" does. A feeling that the defendant is humming in singsong, "Yes, I raped her, but you can't convict me" throughout the trial isn't going to have the public cheering when a jury reaches a stalemate or acquits the defendant. Hence, the need to position the defendant as a completely innocent victim. Little Bo Poke if you will.

An allegation that a defendant has been falsely accused of rape is not evidence and it is not reasonable doubt. Those who claim that it is either have revealed their ignorance or their bias. This bias is great enough that many jurisdictions are looking at clarifying the meaning of legal consent and its characteristics so that those who rape the unconscious can't successfully claim that the alleged victim made consenting noises.

These biases didn't happen accidentally. Because historically the rape laws were written solely by men, they were designed to fit those men's biases about rape.

If some thug accosted one of their wives, they wanted that rapist punished. But if a man got rough with his own wife when she said no and took what he wanted anyway, those who made the laws historically did not want that rapist to be charged or convicted of rape. Hence, explicit exceptions in the rape laws so husbands could legally rape their wives.

These men were against rape, but with plenty of legal catches and conditions. If a wife reported truthfully that her husband raped her, they wanted to be able to label her as someone filing either a false police report or an unfounded report.

Those who hold these attitudes have lost their monopoly on rape laws, but they want to keep their monopoly on which rape victims will be legally recognized as true rape victims through the outcome of rape cases and which rape victims will be labeled as liars.

If we see how defense teams are bringing in and using smoke machines we can recognize when smoke is just that, smoke, not evidence of a false accusation of rape.

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posted by Marcella Chester @ 9:30 AM   2 comments links to this post


At April 16, 2010 12:23 PM, Anonymous Anonymous said...

Rape is termed an act of violence against a woman (or man) yet, men, accused of rape often are convicted before the actual sentencing. Men simply accused of rape, whether actually convicted, face incredible stigma, lose jobs, partners,reputation,and the accusers often get no penalty. The judical and feminist oriented system ignores the reality that over 60 percent of rape allegations are falsely made in retaliation to men who were close to them. Too often the significance of this equally violent act is dismissed in the demand to protect the rights of women while destroying the rights of men. Women who are actually raped are then forced to be subjected to even more scrutiny because of the numbers of false accusations. Do not dismiss the harm false accusations cause to the lives of men.

At April 16, 2010 1:38 PM, Blogger Marcella Chester said...

Anonymous, your claim that over 60 percent of rape allegations are false is itself false. Men charged with rape are convicted when they are convicted. Your claim that they are convicted before this is again false.

When you are making false allegations having those allegations dismissed or ignored is not injustice.

When men are accused of rape you don't want people to believe they are guilty without a conviction but you do want people to believe that women are guilty without a conviction. You have no concern for the women who are actually raped and then falsely accused by people such as yourself.

A document which summarizes claims such as yours is False Reports: Moving beyond the issue to successfully investigate non-stranger sexual assault.


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