Tuesday, March 13, 2012

Lose-lose: Court refuses to quash conviction of woman who falsely retracted rape accusation

In the UK, the court of appeals has refused to quash a criminal conviction of a woman who was jailed for falsely retracting an accusation of rape against her allegedly violent and abusive husband.

The court found no basis to conclude her retraction was made under duress, as that term is defined based on hundreds of years of common law. "We can see no basis for concluding that the appellant felt exposed to violence or the threat of violence when she made the false retractions on which her prosecution was founded. The defence of duress was not realistically available . . . ."

The decision sends all the wrong messages.

No one disagrees that rape is an underreported crime.  Untold numbers of women simply don't report their abuse, and, of course, are not punished for it. The court's decision today tells women who've been raped that if they do report, they'd better be prepared to see it through, creating yet another reason to hesitate about reporting.

By the same token, sometimes, a recantation is just.  Retracting a false rape allegation is often difficult and painful, as Biurny Peguero Gonzalez can attest. She was the woman who recanted at the urging of her priest, thereby freeing an innocent man from a lengthy, and apparently brutal, prison sentence. See, e.g., here. Today's decision tells women who should recant that they'd damn well better be believed, or else they will be criminally charged on that basis, and the innocent man may obtain no relief. Thus, we fear the decision creates unnecessary hurdles that may discourage recantations intended to save innocent men.

Although the court's decision might be technically correct, it doesn't advance the ends of justice. Women should be permitted to freely recant their rape claims. Even if the court doesn't accept a recantation due to evidence of duress, it is imprudent and unjust to punish women for recanting.