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December 04, 2005

When alleging rape becomes a crime

Shakespeare's Sister points to the very disturbing case of a 17-year-old alleged rape victim who was convicted of filing a false police report when the authorities couldn't prove her allegations of gang rape:

A 17-year-old girl went to police at the urging of her friends after she was allegedly gang-raped by three men, including her boyfriend. The men testified that the act was consensual. After reviewing all the information and statements, prosecutors decided they didn’t think they could prove a rape allegation, and so declined to prosecute the case.

Instead, they prosecuted the victim for filing a false police report. Yesterday, she was found guilty.

The victim has never recanted her story. Instead, the decision was based on the judge’s opinion that the three men were more credible, in part because a police detective and the victim’s friends testified she did not “act traumatized” in the days after the incident.

According to this media report, the men admitted to having sex with the woman. As in so many rape cases, the issue was whether the sex was consensual.

Note that the young woman was convicted of a crime. Presumably the prosecution had to prove that she knowingly filed a false report. How could they possibly have established that intent?

Witnesses give conflicting testimony all the time. Rape cases can be especially difficult to adjudicate because they often hinge on such ephemeral evidence. If consent is the issue, then guilt or innocence hangs on the principles' recollections of their own intentions and states of mind and their guesses about intentions of others.

It's easy to imagine a case in which someone seemed to consent without actually consenting. Under those circumstances, the accused probably wouldn't have committed a crime. However, his accuser might still be subjectively certain that she didn't consent and convinced that she communicated her intentions clearly. Miscommunications about much less complicated transactions arise all the time. We can give more credence to one side or the other without assuming that anyone is lying.

I can't see how the State could have proven anything close to criminal intent on the part of the woman--even assuming that she was less credible than her alleged rapists.

This case sets a terrible precedent. Now, failing to convince the police that you've been raped has is a crime.

Update: Scott Lemieux has similar misgivings about this case.

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Comments

If we are to take the prosecution's logic seriously, shouldn't everyone who loses a civil trail be brought up on perjury charges? It's just absurd.

We have not erased the Taliban, but absorbed it....

I read this story earlier today at Crooks & Liars, and it's simply horrifying. Women have been fighting for an eternity to remove the stigma of rape and encourage victims to come forward to report these crimes. Now a case like this comes along and sets the clock back at least a generation or more if it becomes a precedent. Even if it doesn't become a legal precedent, I think it still sends a chilling message to rape victims: If you can't convince a judge or jury that you were raped, then you might be the one going to jail. I think I'm going to be sick.

Where did this happen? Kabul?

What's the sentence? Stoning?

what about cooking up stories about rape? isn't it a crime in the US, eh?

We're all innocent until proven guilty in the great US-of-A.

Yes, it's illegal to knowingly file a false police report about any crime. On the other hand, in order to convict you of anything (rape, false accusations of rape, or whatever) the state has to prove that you did it and that you intended to do it.

As far as I know, the no one proved beyond a reasonable doubt that the girl made an untrue accusation. Even if it had been shown that her charges were untrue, the onus would have been on the state to prove beyond a reasonable doubt that she knew her allegations were false.

Scott -- don't give Republicans ideas. They might just roll that out as the next way to fight the dreaded "frivolous lawsuits".

Lindsay-

Sure the state has to prove beyond any reasonable doubt in the case of rape, false accusations of rape, etc.

But your last sentence is rather strange: IF her charges of rape were untrue, how on earth is it possible for her NOT know that her allegations were false. What the hell: someone might say 'well, sorry, as a matter of fact I wasn't raped, I didn't just notice'. sound bizzare.

ps. by the way, I hear all the time cultural relativists whining about disrespect of traditions, etc. They should be aware that in some traditions rape might be quite customary. Perhaps you don't have many cultural relativists here at your blog, maybe except the case of Iraq :)

The only way this story makes sense to me is that this was a bench trial for what could be characterized as a relatively minor offense (although the policy implications were major). In my experience, judges and prosecutors just don't take evidentiary standards or defendant protections particularly seriously for minor offenses, which is a very bad thing across the board.

This case sounds bad, but...there are false rape claims that are made. And those who file them ...think Tawana Brawley and Al Sharpton...should be prosecuted.

But your last sentence is rather strange: IF her charges of rape were untrue, how on earth is it possible for her NOT know that her allegations were false. What the hell: someone might say 'well, sorry, as a matter of fact I wasn't raped, I didn't just notice'. sound bizzare.

Read Lindsay's sentence more carefully:

Now, failing to convince the police that you've been raped has is a crime.

"Failing to convince" the police, prosecutors, etc. is not the same thing as making a false allegation. If that were true, that would mean that anytime charges were dropped against a suspect (due to lack of evidence, for example) or a defendant was found not guilty of a crime, we'd have to prosecute the person who originally brought the charge. Failure to convict a suspect is not, in of itself, proof that an alleged victim lied about what happened to her or him.

In this case, the complainant is a minor. That means that she has very few rights in Oregon courts. She's not entitled to a jury trial, so she made an easier target than her alleged attackers. I doubt that the prosecutors who found insufficient evidence to bring the rape case to trial would have filed a complaint against a woman for filing a false report, given the evidence.

If you want to see how bad the Oregon juvenile justice system is, read "The Smoking Gun" by Gerry Spence. This book details a case in which a boy was convicted of being an accessory to a crime, even though the primary defendant in that crime was acquitted.

driftglass has a good take on it as well.

Um. I'm having a hard time getting past (white) non-anglosaxon male's post... he seems to have confused the difference between necessary and sufficient conditions.

And as far as the whole "cultural relativism" thing... not sure what that has to do with the price of beans in China, and someone from a culture where rape was common... well... you could be talking about here in the States, where it IS common. Not as common as "ordinary" domestic violence, but still common. Then again to me, common means "virtually everyone in the country, if not everyone, knows someone it's happened to."

I had a whole train of thought about how this was yet another example of how the victim of rape is made to feel ashamed for being the victim, but I'm afraid it's derailed now.

i could see this case read in a number of ways and the only way it could bode well for the prosecution is if the defendant had made public statements admitting revenge for a tryst in which she willingly participated. in which case pursuing a criminal prosecution would have strong sexist underpinnings, that of punishing the girl for promiscuity. and this seems highly unlikely. otherwise this is a horrendous misogynistic abuse of a victim (even a self-perceived victim). A horrible precedent and inarguably barbaric from my perspective.

I think that there should be two burdens in rape cases: it should be the prosecution's job to prove that they had sex, and it should be the defense's job to prove that it was consensual. If the victim claims that they had [non-consensual] sex, and the defendent says that they didn't, then it's the prosecution's job to prove that they did, in fact, have sex. If the victim and the defendent both agree that they had sex, then it should be the defendent's job to prove that it was consensual, not the prosecution's job to prove that it wasn't. After all, consent is positive (saying yes), not negative (failing to say no).

i am going to go way out on a limb here and talk about alcohol

it is possible for two people to get really drunk and go have sex somewhere

it is possible for one or more of these people to wake up the next morning with regret, shame, etc

i am sure that very few of these cases are ever prosecuted as rape although if they were it would be the rape of a woman by a man

this kind of problem is endemic in colleges where the bar for rape is much lower than reasonable doubt

and they have been leading the charge in having a third way mediation to resolve cases of mutual drunkness

i bring this argument here because im uncomfotable with the assumption that drunk woman = can't give consent but drunk man = predator

i understand that in life that is more the case than not but i can see how it might be otherwise

If the victim and the defendent both agree that they had sex, then it should be the defendent's job to prove that it was consensual, not the prosecution's job to prove that it wasn't.

Then you don't believe in the principle that a defendant is innocent until proven guilty, a cornerstone of our justice system. Scary!

As for as this case, I'd have to put myself down as not having enough information to know what to make of it.
I clicked on some of the links from this blog and saw people stating as fact that the accuser is a "rape victim." Yet in court it was found she was the VICTIMIZER by making a false accusation that could've locked three people up for years and ruined their lives.

Unfortunately I just don't see enough information as to what took place in court to form an opinion on this. I wasn't in the court room. I did not hear the evidence. I don't see transcripts linked here. What I do see are a lot of people who seem to believe criminal cases should be decided based on what onlookers believe will be the impact of the case with respect to their politics.

False rape accusations are more common that the article suggests, and there have been many instances where people falsely accused of rape have been convicted, imprisoned, and later proven innocent. When someone makes a false rape accusation, they are attempting to destroy someone's life, a crime as bad as rape itself. You can get many years in prison for rape, your reputation is destroyed, you will be placed on a sex offender's list for life, and you'll have difficulty getting a job.

I don't know what motivated prosecutors to go after this young woman, but if I was able to look at the transcripts and determine that she was proven beyond reasonable doubt to have falsely accused, I would be glad she was prosecuted.

I should add, if this conviction was a miscarriage of justice, of course she has the right to appeal it. The article said she will be. Let's see how that goes before we jump the conclusions.

It'd be a bit like the IRS, in that respect. I think that generally, nonfeasance charges must, in some respects, put the burden of proof on the defendent, much as malfeasance charges must put the burden of proof on the prosecution. This is simply because, with existential statements, positives can be proven, whereas negatives are difficult to prove (in universal situations, it's the opposite: e.g. proving that there exist no pink crows is very hard, proving that there exists a pink crow is simple (if it's true), but proving that all crows are black is very hard, while proving that all crows are not black is simple (if it's true)). Since criminal laws general concern existential situations, the burden of proof is on the one making the positive assertion. Since most criminal law that we think of deals with malfeasance, the ones making the positive assertions are usually the prosecution. Rape is 1) having sex and 2) failing to get consent. 1) Is malfeasance (if 2) is also true), which puts the burden of proof on the prosecution, but 2) is nonfeasance, which puts the burden of proof on the defense.

I don't think the positive can be proven in this case. Suppose my girlfriend and I have sex; how do I prove it was consensual? I'm not paranoid enough to tape her saying yes or record our IM conversations in which we talk about having sex. If we have sex, it won't be in public, where there are witnesses who can testify that it was consensual. By your standards the courts will find me guilty of rape even though I didn't do anything wrong or unusual.

I think that Lindsay's premise here is not defensible - that if consensual sex takes place, no false accusation of rape can be proven as such. I can accept that it is difficult to prove. I can accept that criminal justice as a whole would benefit from a strong reluctance to pursue such cases. But I can not accept that such cases can not be proven and should never be pursued. It would leave a crime with no deterrant.

There are situations in which women may wish to intentionally disavow their genuine consent to a sex act. Such a disavowal can put an innocent man in jeopardy of lengthy prison time. You can not give a guaranteed free-pass for this behaviour.

I'm not saying it's impossible to show that an accusation of rape is false, I'm saying that it's very difficult to prove beyond a reasonable doubt that an accuser knowingly filed false charges.

Nobody's proposing a free pass. If there's proof that someone filed a false charge, they deserve to be punished.

However, in the Oregon case, it's hard to imagine how this girl's guilt could have been established beyond a reasonable doubt. It hasn't even been proven beyond a reasonable doubt that her accusations were false in the first place, let alone that she deliberately misled the police.

I have nothing to say about whether or not the original accusation is valid, but statistics leave no doubt that the claim cannot be dismissed on its face, and must be examined carefully. I have no idea whether that was done or not.

I'm agreeing with Lindsay in that the turn from "Y'all are innocent, you are guilty" when to our knowledge there was no presentation of evidence to support the initial contention, and no mention by the person who was there watching of any new evidence (as well as the fact that the mother was considered by the judge to be a credible witness on whether her daughter was acting like a rape victim, but not a credible witness on the subject of the rape itself), unless the prosecution has video/audio footage of what was going on in that room, I don't see how the prosecution could prove she was deliberately misleading them.

I can't see how the State could have proven anything close to criminal intent on the part of the woman--even assuming that she was less credible than her alleged rapists.

...

Even if it had been shown that her charges were untrue, the onus would have been on the state to prove beyond a reasonable doubt that she knew her allegations were false.

Yes, I heard you just the other day saying that since Bush thought it was true, he wasn't lying. Oh wait a minute, that's what the other side keeps on telling us.

As far as I know, the no one proved beyond a reasonable doubt that the girl made an untrue accusation.

So you heard it from Shake's sis who heard it from Kevin Hayden who was at the trial but not the DA or Judge or involved in the matter first hand. And that makes you just what sort of source? As far as I know, the DA proved his case. The evidence is the judge's conviction. I believe this is normally how we are taught to deal with our court system.

Note that the young woman was convicted of a crime. Presumably the prosecution had to prove that she knowingly filed a false report. How could they possibly have established that intent?

Witnesses give conflicting testimony all the time. Rape cases can be especially difficult to adjudicate because they often hinge on such ephemeral evidence. If consent is the issue, then guilt or innocence hangs on the principles' recollections of their own intentions and states of mind and their guesses about intentions of others.

It's easy to imagine a case in which someone seemed to consent without actually consenting. Under those circumstances, the accused probably wouldn't have committed a crime. However, his accuser might still be subjectively certain that she didn't consent and convinced that she communicated her intentions clearly. Miscommunications about much less complicated transactions arise all the time. We can give more credence to one side or the other without assuming that anyone is lying.

I can't see how the State could have proven anything close to criminal intent on the part of the woman--even assuming that she was less credible than her alleged rapists.

Oy. You folks are always telling us that rape is rape no matter what and that even if the woman says yes yes yes yes yes, than the instant she says no, we have to believe it is no and act that it is no, and quite literally, 30-90 seconds later is too late.

And now you want nuance based on the principles' recollections of their own intentions and states of mind and their guesses about intentions of others.

Me, I don't know what happened in that courtroom but wonder why the blogosphere seems to be jumping the gun when they could be making a few phone calls and finding out.

Lest we lose sight of the facts we do have access to: One of the pieces of evidence the Judge used in his finding was that the aleged rape victim didn't "act traumatized" afterwards.

ANY legal finding based on the demeanor of the aleged victim is a miscarriage of justice.

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