Monday, April 30, 2012

Charges Against US Servicemember Dismissed

Unfortunately, I am unable to share the names of the persons involved in this case.  Suffice it to say that a male Non-commissioned officer in the Army was accused by a female Non-commissioned officer of sexual battery under the UCMJ in a truly he said/she said case, i.e. no witnesses and no physical evidence, and the military dismissed the charges against him. 

I was able to convince the Article 32 Investigating Officer that the accuser was lying in much the same way the Duke Lacrosse players attorneys were able to convince the Judge that their accuser was lying.  An Article 32 is a military hearing to determine if enough reasonable grounds exist to forward the case to a court martial; this is a very low burden.  Many of the "details" she gave to local authorities and the Army's Criminal Investigative Division (CID) were completely contradicted by the evidence that we presented, which consisted of pictures of the crime scene as she alleged and phone records. 

In June 2011, the accuser alleged to the local police that she went to my client's house at night in late November or early December 2010 and watched TV where she was sexually assaulted on his couch.  During her Article 32 testimony, she described the entertainment center as dark wood and the couch as a tannish or cream colored cloth sofa.  Actually, my client's entertainment system is white and he has a chocolate leather sofa.  Also, the accuser said that she called him on his cell phone twice on the way over to his house, but his cell phone records indicated that she never called him during the two month period in which she alleged the assault occurred.  My client was adamant that the accuser has never been to his house.  I finally learned today that the General Court Martial Convening Authority dismissed the case without prejudice, so I can ethically comment on the case.

Two things struck me about this case.  First, my client exercised his right to speak to an attorney, which is always the right thing to do.  I will admit that exercising your rights to an attorney under the 5th Amendment is difficult to do when you are innocent because you would prefer not to pay for a consultation for something you did not do.  If you can find an attorney, like me, who will provide a free initial consultation, then at least you are not out a ton of money if the charges are dropped before you are charged.  However, most attorneys want to be retained and earn a fee for their advice.  While it is difficult to keep quiet when you know you are innocent, believe it or not, there are sexual assault reponse counselors ("SARC") who will help their "victims" clear up lies by allowing them to review the accused's sworn statement or ask them leading questions after the SARC reviews the accused's statement, so the accuser can amend her statement. 

My client did the right thing and allowed this woman to make two sworn statements without anyone hearing his side, so that she could not fix her statements.  I find myself often times convincing my male clients to be stoic and allow the lying accuser to keep talking in anticipation that the tales will grow so outlandish that even the investigator will not believe the accuser.  Even if I have a video clearly showing consent, my policy is that when confronted with a false allegation, the best thing to do is to say nothing until you speak to an attorney.  The military has recently criminalized surreptitiously recording a sex act between you and your partner, even for alibi purposes in a 2012 amendment to Article 120 of the UCMJ, so if a Servicemember produces a video, then he will probably receive non-judicial punishment.

Second, this accuser's allegations could have been easily disproved even without my client's statement.  Usually, CID will request that an accuser draw a diagram of the alleged crime scene.  This is particularly important when the alleged assault supposedly occurred at the accused's home and the details of which would support that the accuser was actually in his home.  In this case, the CID agent did admit that she should have directed the accuser to draw a diagram of the accused's home to prove that she was there, but the agent failed to do that.  The agent also failed to ask the accuser to describe details regarding the accused's home, such as what kind of couch he had, what the entertainment center looked like, etc.  Once the CID agent got that information, she could have gotten a search warrant and could have taken pictures of the accused's home.  When it did not look as the accuser described, then the CID agent could have gone back to the accuser and confronted her with the pictures to see if the accuser would admit that she was lying.  If it looked exactly how the accuser described, then at least the CID agent could have taken solace in the belief that the accuser had been there before.

The accuser stated that she called my client's cell phone from her cell phone on the way over to his house to get directions twice and that it was dark when she began driving over to his house.  His cell phone records clearly showed that she never called him.  In fact, he made 3 calls to her during the two month window when she said the alleged assault occurred, none of which were after 3:30 p.m. or over one minute.  Once again, CID should have requested her cell phone records to show that she made the phone calls to him.  Had they done that, then perhaps they would realize that her story was contradicted or she might have confessed to making the incident up.

When I finished my examination of the CID agent during her Article 32 testimony where I questioned her failure to get a diagram of the accused's home, the accuser's cell phone records, or conduct any other kind of investigation whatsoever, the Special Victim Prosecutor (SVP) led her with questions about "victimization of the victim."  The SVP actually attempted to justify NOT asking questions or requesting corroborating evidence because it would further victimize the victim if the accuser thought for a second that CID did not believe her.  I have been doing this kind of criminal litigation for about 10 years now, both as a prosecutor and a defense counsel, and I have seen CID go from investigating the veracity of the accuser's claims somewhat thoroughly to merely taking a sworn statement without any attempt to determine whether the accuser is telling the truth.

In addition to all of this evidence showing a lack of corroboration of her story, this particular accuser had a history of mental health treatment.  She also had a history of making up lies to explain her shortcomings in life.  I believe that she might have made a false allegation at a previous duty station.  The SVP fought me every step of the way in trying to get her mental health records, which I believed were quite relevant, especially if she was diagnosed with a histrionic personality disorder.  This alleged victim accused my client of sexual assault in June 2011, after she returned to the unit in May 2011 because she failed out of a military leadership course; she testified that she heard my client say that she was stupid.

The lesson learned from this case is that military accused are on their own when accused of sexual assault, and it is up to them to prove their innocence.  They can no longer rely on NCIS, CID, or AFOSI to conduct an unbiased investigation into the veracity of an accuser's allegations because these agents are trained to avoid at all costs "victimizing the victim."   The accused needs to lawyer up and begin collecting adverse evidence regarding the accuser immediately.  My client was fortunate that he was able to provide me evidence that showed he was innocent.  Had he not, then I imagine I would be representing him at a General Court-martial.

Friday, April 27, 2012

DNA clears man in 1994 rape, murder

A man who has served nearly 16 years in prison for the 1994 rape and murder of a Palisade woman has been exonerated by new testing of DNA evidence in the case.

Sentence reduced after false rape claim conviction

AN INDIAN national jailed for giving false information to a public servant had her sentence reduced from two years to 18 months.

Thursday, April 26, 2012

False sexual assault allegation - Focus of article not on serial accuser

While no one was specifically named in the following story, we have a case of another serial false accuser, and I think that is always worthy of greater scrutiny. Sadly, she still isn't named, after a second false allegation. She gave a detailed description and a sketch was released to the public.

While the article doesn't say, one must wonder how many men who fit the description she gave were questioned, or had to give DNA, or even may have had to undergo invasive searches.

Of course, the standard line about not wanting to deter women from coming forward (It still isn't clear how a false allegation would prevent that), and that all reports are taken seriously - as they should be. It would be nice to see a bit more concern for individuals who come under scrutiny, when a false allegation is made.

The article, after the jump.

Wednesday, April 25, 2012

Sandra Bainbridge Jailed for False Sexual Assault Claim

“This complaint was disgusting and disgraceful in its cynicism and dishonesty and Sandra Bainbridge has rightly been held to account for her damaging actions.

“A police officer’s integrity and reputation were questioned and he was subjected to the full rigours of a criminal enquiry. This caused him a huge amount of stress, damaged the morale of his colleagues and had a detrimental effect on his and his family’s health.

“I am pleased that the jury in this case reached the verdict they did, wholly exonerating an officer who, for 18 years, has shown himself to be a capable and diligent officer of admirable courage, morality and integrity.

“The trial extended over three days and required ten police officers to attend court, five of them to give evidence. At no time did Bainbridge take the opportunity to admit her guilt thus avoiding all the expense of a trial.

 “While North Yorkshire Police will respond properly to justifiable criticism, will learn from its mistakes and will subject offenders within its ranks to criminal or disciplinary action, we will not stand idly by when our officers are subjected to malicious and damaging complaints.”

Chief Inspector Steve Breen gave the above quotes after Sandra Bainbridge, of Ripon, was found guilty and sentenced to 10 months in jail for making a false sexual assault allegation.

The person she accused? A police officer. So while it is understandable that the Chief would feel the way that he does, it is hoped that he extends the same consideration to any and all cases that come through his station, who are so accused.

Here's what happened:

On March 5th, 2009, police went to Bainbridge's home to arrest a man for violating his bail conditions. Both Bainbridge and the man met the officers with violence. They were both arrested. While in custody, she alleged that one of the officers sexually assaulted her, in front of her home.

The allegation and investigation was turned over to the Independent Police Complaints Commission, who conducted a thorough criminal investigation. It became clear however, as the inquiry progressed, that the reported incidence couldn't have happened.

Princeton's solution to thorny 'Dear Colleague' problem should be national model

COTWA applauds Princeton University, which will continue to run campus sexual assault proceedings disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance of the evidence standard to determine if there has been a Title IX violation. This means an accused student might be cleared of sexual assault, but the school might have a duty to provide support for the accuser. A perfect balance to protecting the accuser while insuring the innocent aren't punished. And the Dept. of Education's Assistant Secretary for Civil Rights Russlynn Ali indicated she wasn't necessarily opposed. We hope all schools follow suit.

Tuesday, April 24, 2012

Teen beaten after false rape claim

Friday, April 20, 2012

Stinging indictment of Yale, where sexual assault is 'rampant' because 'a worry constitutes sexual assault'

What Yale and the Times Did to Patrick Witt
as posted at Minding the Campus

By KC Johnson

Remarks delivered at a Manhattan Institute luncheon, March 28, 2012 in New York City. Professor Johnson and attorney Harvey Silverglate, whose talk will be presented here tomorrow, spoke on "Kangaroo Courts: Yale, Duke and Student Rights."

Before the Patrick Witt case, I had some experience writing about how the New York Times handles cases of sexual assault allegations against high-profile college athletes--the Duke lacrosse case. After all that damage had been done, and after more than a hundred articles had been published in the New York Times, two Times editors, including Bill Keller, issued some half-hearted apologies for how the paper had mishandled the case, and "mishandled" is a generous word for what the Times did.

Kirsty Sowden cried rape because she was trying for baby with boyfriend

A John Lewis sales assistant claimed she had been raped because she was so embarrassed about a sado-masochistic sex session, a court heard.

Thursday, April 19, 2012

Jon McCay's perilous defense of the 'Dear Colleague' letter: he refuses to acknowledge the risk of getting it wrong

Jon McCay's perilous defense of the 'Dear Colleague' letter: he refuses to acknowledge the risk of getting it wrong

UNC's former Student Attorney General Jon McCay employs a strained and perilous logic to defend the mandate of the Department of Education's April 4, 2011 "Dear Colleague" letter that lowered the standard of proof for sexual assault cases on campus to "preponderance of the evidence."

McCay was asked, "So what about the accused? The . . . standard for proof — a preponderance of evidence, meaning the panel must find it more likely than not that the assault occurred — seems to abandon the innocent-until-proven guilty model students have come to expect from the honor system."

Here is McCay's response, as reported by the Daily Tarheel: "Though McCay concedes that, in practice, the new standard would likely result in more guilty convictions, he is quick to point out that it wouldn’t create any new cases of sexual assault."

McCay concedes the new standard likely will result in more guilty convictions, but by asserting that the new standard won't "create any new cases of sexual assault," he seems to take it as a given --without bothering to explain why -- that the new standard will not subject students to punishments they don't deserve.

That, of course, is a conclusion that is unwarranted because it is only reasonable to conclude that the risk of wrongfully punishing innocent students is enhanced by lowering the standard of proof.

McCay seems to suggest that under the pre-"Dear Colleague" system, few sexual assault claims were punished because the standard of proof was too high. According to the newspaper: "Last year, there were 43 cases of sexual assault reported through the University’s available avenues, but the honor system only saw one of them. This semester, with a public push for assault awareness, the court has tried three — still not ideal."

So what's the solution?  "McCay explains that the new system would make it easier for the University to hold those responsible for sexual assault accountable."

No one disagrees that holding more rapists responsible for their misconduct is a laudatory goal. The problem is that McCay doesn't bother even to consider whether the new standard poses the risk of punishing innocent students. And it does.

The article goes on: "By treating victims and assailants as equally credible, the honor system will likely see an increase in reporting — not an increase in sexual assault."

There are numerous problems with that assertion. The suggestion is that it's possible to do justice by pitting the credibility of the accuser against that of the accused, and if the scales tip ever so slightly in favor of the accuser, to severely punish the accused.

Earlier in the article, Mr. McCay himself conceded that adjudicating sexual assault cases is difficult: “It’s always ‘he said,’ ‘she said. It’s not like a plagiarism case where you can bring in emails, Google searches and drafts of a paper. There aren’t any witnesses; it’s not like a cheating case where someone can say they saw a student looking at someone else’s test.”

Respectfully, then, Mr. McCay, the absence of corroborating evidence to establish guilt or innocence in "he said/she said" cases is scarcely a valid justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Most disturbing of all is how Mr. McCay blinks at a principle long-settled in our jurisprudence that was famously expressed by the celebrated English jurist William Blackstone. Blackstone said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) 

And that's the point that is most frequently misunderstood in the debate about the "Dear Colleague" letter: a wrongful acquittal is a terrible thing, but it is never the equivalent of a wrongful adjudiciation of guilt.  The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence."  Students have an enormous interest in not being expelled for sexual assault because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

Even attorney Brett Sokolow, who is probably the leading victim's advocate on Amercan campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.”  He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Mr. McCay ends on a cautionary note -- to men. According to the newspaper article: "If anything, the new standards send a message that men, too, must bear part of the responsibility for preventing sexual assault. Part of this prevention is awareness and a better understanding of consent. We’ve all heard it, but McCay says it again: 'Only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'”

Reminding students about the necessity of consent is always a good thing. But Mr. McCay offers no advice to students who are wrongfully charged with sex offenses. The risk of punishing the innocent is not something Mr. McCay seems at all concerned about.


Wednesday, April 18, 2012

Brett Sokolow: colleges now are expelling and suspending people they shouldn’t for sexual assault

Sokolow: colleges' reactions to Title IX border on hysteria

If you think that a year after the April 4, 2011 "Dear Colleague" letter, American colleges have entered an era of peace and tranquility when it comes to their handling of sexual assault claims, you would be wrong. It would be easy to dismiss COTWA's concerns as lacking objectivity since it is our mission to tell the stories of the wrongly accused. But it's not so easy to dismiss the views of attorney Brett Sokolow, founder of the National Center for Higher Education Risk Management, which helps colleges across America mold their sexual assault policies to enhance the rights of alleged victims.

Mr. Sokolow says colleges are having a "fear-based reaction" to the Federal government's Title IX policy, and "that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” Mr. Sokolow says the reaction borders on "hysteria."

He points out that expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.

Hans Bader: colleges err on the side of punishing 'everybody in sight'

Or, listen to Hans Bader, a former attorney with the Department of Education’s Office of Civil Rights and one of the leading authorities on the subject: he says that campus disciplinary boards are so fearful of Title IX lawsuits, that they will inevitably err on the side of punishment. “Innocent people get found guilty of harassment because the school realizes the only way it can avoid liability is to punish everybody in sight,” Bader said.

Student sues college, claims rape policies discriminate against males

Edwin Bleiler, a student who was expelled from Holy Cross in Massachusetts on the day he was supposed to graduate last spring, is fighting back. Mr. Bleiler allegedly sexually assaulted another student. The accuser maintained she was intoxicated and unable to consent. Mr. Bleiler contends she wasn’t incapacitated but acted willingly. Mr. Bleiler is suing Holy Cross. He argues the college’s policies discriminate against male students in violation of his Title IX rights. An attorney for Bleiler, Emily Smith-Lee, contends his Title IX claim is premised on the argument that the school's policies are inherently tilted against men, by creating different standards for male and female students. We've written about Mr. Bleiler's case here

And by the way, Russlyn Ali, the assistant secretary who oversees the Department of Education’s Office of Civil Rights, said: “Title IX protects all students, male and female, against sex discrimination."

Wendy Murphy: Colleges must protect 'victims,' and that means abandoning due process 'fantasy' of the accused

Wendy Murphy weighed in, and her comments are troubling: Title IX requires putting a thumb on the scale in favor of alleged victims — such as the “preponderance of the evidence” standard the Obama administration has said schools must use in adjudicating such cases. According to the news report: "Colleges must protect victims, she says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they’d enjoy in a criminal trial. 'You can’t run a school that way,' Murphy said. 'If every once in a while a school has to be sued at the cost of being fair to all students, so be it.'”

Young man admits rape lie sent stepfather to prison for eight years

A man spent eight years behind bars for allegedly sexually abusing his stepson who later recanted. The man was denied parole that would have released him early because he refused to admit that he did it and refused to participate in any "treatment" programs. This, despite the fact that the National Parole Board and prison authorities knew about the recantation.

The stepson says he was never sexually abused by his stepfather but he was forced by his biological father to lie to police.  The biological father “held a knife to my throat and threatened me with harm” unless he said that his stepfather “had sexually abused me.” The stepson swore he was “afraid my father would hurt me if I told the truth.”

Tuesday, April 17, 2012

19 rape claims in a decade

A transsexual has made 19 rape claims over the last decade - and it has cost the taxpayer £200,000 to investigate them.

The woman, in her 30s, made her latest claim after allegedly being attacked.

Each time a rape is reported police are forced to spend £10,000 on legal fees, carrying out forensic tests and investigating.

It is unclear whether any of the cases have led to a prosecution.

The woman made her 19th rape claim after allegedly being attacked when she went to meet a man for sex in Sutton, Surrey, the Sun reported. She had first been contacted by him on an internet dating website.  Scotland Yard confirmed that a 26-year-old man had been arrested in connection with the incident before being released on bail. The suspect allegedly recorded the woman threatening to have him arrested.

A police spokesman refused to discuss whether the woman had made any other rape claims.

Officers have no choice but to probe every single claim because of the risk of getting it wrong. Every time an allegation of rape is made the suspect is arrested and handcuffed, taken to a police station, and has his fingerprints taken.

If police dismissed cases because they didn't believe the allegations, it would discourage victims from coming forward.  Police missed two opportunities to catch rapist taxi driver John Worboys, 57, who targeted 102 women over a five year period. After the high-profile blunder they are extra careful to look into all cases.

If rape claims are shown to be invented, police have the power to prosecute the person who made the claim for wasting police time.

Jo Wood, from Rape Crisis England and Wales, said that the woman should be free to report every alleged rape.

'It looks to me as if she could do with some support work - she seems to be ending up in these situations where she is in danger,' she said. 'She is obviously screaming out for help.  Given the amount of money that has been spent investigating these cases they should be asking further questions and trying to help and support this woman. The fact that someone has come forward 19 times is phenomenal - and it is great that the police are investigating them all.'


Monday, April 16, 2012

'The public generally has a hard time understanding why someone would admit to a crime they did not commit . . . .'

Experts examine county's 'epidemic' of false confessions:

Student Newspaper: 'Beyond a reasonable doubt' standard for sexual assault is 'tantamount to victim-blaming'

Student Newspaper: 'Beyond a reasonable doubt' standard for sexual assault 'can feel tantamount to victim-blaming'

An editorial in the Daily Tar Heel, the student newspaper at the University of North Carolina at Chapel Hill, praises the school's new sexual assault policy and defends the school's decision to substantially lower the burden of proof in such cases from “beyond a reasonable doubt” to “a preponderance of evidence.”

"We appreciate the honor system’s stringent usual standard of evidence, which conforms to an innocent-until-proven-guilty principle," the editorial opines. Then, in one of the more startling statements we've read recently, the editorial asserts: "In practice, however, such a high burden of proof can feel tantamount to victim-blaming."

Insisting that there be reasonable certainty before declaring someone factually guilty of an offense that will alter his life has nothing whatsoever to do with "victim blaming," and suggesting that the two are linked, even by a "feeling" that they are, is troubling on a host of levels. It evinces a profound absence of appreciation for a standard long-cherished in our jurisprudence as vital to due process and fair treatment. It is universally accepted that the "beyond a reasonable doubt" standard reduces the risk of punishing the presumptively innocent based on factual error.

The editorial itself recognizes that the prosecution of sexual assault cases is "complicated." That is generally correct because such cases often come down to a battle of "he said/she said" evidence. But the absence of overriding evidence to establish guilt or innocence is scarcely a valid, or, respectfully, a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Students have an enormous interest in not being expelled for sexual assault, because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

The editorial posits an unconvincing conclusory coda: "The accused are of course also entitled to fair treatment, which they’ll continue to receive under the new system." Nowhere does the editorial bother to note the undeniable fact that the reduced standard of proof will make it easier to find an innocent student guilty of something he did not do.

This editorial manifests a disturbing, and woefully misinformed, disregard of the rights and interests of the presumptively innocent.

Model's spurious rape claim unjustly targeted world's richest Arab

A three-judge Spanish appeals panel has ordered “a final unappealable closure of a wholly false yet widely publicized claim” of alleged sexual assault lodged against a Saudi prince, HRH Prince Alwaleed Bin Talal Bin Abdulaziz Alsaud, 57. The prince was accused of an alleged sexual assault by a young Spanish model identified only as "Soraya," who claimed she was drugged and raped aboard the Turama yacht moored in Ibiza in August 2008.

The prince has maintained that he was not even in Ibiza that day, but in France with his wife, children, grandchildren and other witnesses.

The model originally pointed out another man as the alleged rapist. A year after the case was brought, her lawyers somehow concluded that the prince supposedly was the rapist. The model and her mother Susana admitted that they only learned of HRH Prince Alwaleed by searching the internet for
"Saudi Royal Family."  The prince is the richest Arab in the world with a €13.78 billion fortune according to Forbes. He's one of the top 20 richest people in the world.

The Palma de Mallorca Provincial Court ruling pointed to a number of “inconsistencies, the absence of any corroborating evidence of her continuously changing story and the fact that all the physical evidence, including a physical examination by an independent physician after the night in question and the report of an independent toxicologist, contradicted her claims of assault and drugging.”

In a statement the prince said: “No one’s character should be subject to such dishonest attacks.”  As a way of “discouraging” others from similar actions in the future, the prince is pursuing criminal actions against the model, her mother and her attorneys as well as professional sanctions against the lawyers for their “unethical behavior."

Among his many businesses of all kinds, Al Waleed is 30 per cent owner of Mixta Africa, a company dedicated to building cheap homes in Senegal, Algeria and Mauritias.

Sunday, April 15, 2012

Off-topic: Why we were more honest about gender roles in the aftermath of Titanic than we are today, and, no, it's not the fault of 'the feminists'

If I were to ask you to think of a hero who refused to give up his or her seat on a vehicle of public accommodation merely because of their birth class, you likely would think of Rosa Parks, a black woman who is properly lionized as a civil rights icon. Ms. Parks refused to give up her seat in the front of a Montgomery, Alabama bus in 1955, even though the seats up front were “reserved” for white people.

You likely would not think of J. Bruce Ismay. Ismay was chairman of the company that owned Titanic, who famously survived the disaster, 100 years ago today, but was widely accused of cowardice because he took a seat in a lifeboat that, many believed, could have gone to a woman.

No one has ever confused Mr. Ismay with Ms. Parks, nor should they. Mr. Ismay was not taking a stand, figuratively speaking, for oppressed persons, but for himself.  Still, the expectation that Mr. Ismay should have given up his seat because of his gender is interesting. It's a sentiment that echoed even in the recent sinking of the Costa Concordia. (This, in contrast to the instruction of an evacuation specialist: "I think the priority would be that you would help people who appear to need help. Children obviously need help. But helping women is not necessary. Women don't need help just because they are women. It's more important to identify the people who need help. That's important and that's what people tend to do." See here.)  It is impossible to defend the view that anyone be deprived of their seat — on a bus, a train, a roller coaster, or even a lifeboat — simply because of their birth class.

Friday, April 13, 2012

Man allegedly denied job when background check erroneously said he raped a woman -- when he was 4

A man was denied a job after a prospective employer ran a background check that returned a 1987 rape conviction.

The problem is that the man, Samuel M. Jackson, was just 4 years old in 1987.

Who'd have thought it?

Women's knickers may reveal assault truths
From: The Press:

Forensic scientists are studying women's knickers and how they tear to help police determine whether a sexual-assault complaint is authentic.

Thursday, April 12, 2012

Woman tells police she lied about a man stalking her

Police have dropped charges of stalking and harassment filed against a Pennsylvania man, and have instead filed charges against the woman they say falsely accused him.

Wednesday, April 11, 2012

On the 5th anniversary of the resolution of the Duke lacrosse case

COTWA: On April 11, 2007, the North Carolina Attorney General's Office dropped all charges against three indicted team members, saying they are innocent of the charges. This is a piece in commemoration of that anniversary.
Of Duke, Trayvon and Santayana
BY Christine Flowers in The Philadelphia Daily News
Five years ago today, perhaps the greatest injustice since the Scottsoboro Boys were framed for rape was finally resolved.  It wasn’t a triumph, since the victims had been forced to endure a particularly searing crucible for well over a year.  But at least it was a mediocre form of  justice, which in this case, was better than no justice at all. Of course I’m talking about the Duke Lacrosse Players, three young men who were falsely accused of rape by a black stripper who went on to rack up a series of convictions and is currently accused of murdering her boyfriend.

Penn lowers standard of proof in sex cases in a manner that was 'far from transparent'

Penn lowered the standard of proof in cases involving alleged sex offenses to "preponderance of the evidence," but according to an editorial in The Daily Pennsylvanian, the student newspaper at the University of Pennsylvania, "deliberations on the policy change did not include the wider Penn community. The Office of Student Conduct, which was behind the change, was far from transparent about its process."

In the news story announcing the change, the only voices quoted are those applauding it. One professor, Political Science professor Rogers Smith, said it will “change the outcomes” of cases at Penn. He added: “It will mean that judgments that a person is guilty of sexual harassment will be easier to achieve.”

Neither Professor Smith, nor any of the other persons quoted, acknowledged that by lowering the standard of proof, the school increases the possibility of punishing innocent students. The entire tenor of the article blesses the process using a "preponderance of the evidence" standard with an infallibility that doesn't exist.

The absence of transparency at Penn, and its apparent failure to consider the critical and difficult balance at the heart of the sexual assault debate (the need to punish offenders while insuring that the innocent aren't punished with them), is in stark contrast to the robust and serious debate at Cornell over the same issue. See, e.g., here. (And Mike Wacker's piece on this issue in the Cornell Daily Sun should be required reading at Penn, and every other school.)

Penn's lack of transparency does a grave disservice to a very serious issue.

Wife falsely accuses husband of rape because he behaved 'in an unchivalrous way'

A woman, 23, met her husband to try to patch up her broken marriage. They had sex, but he refused to end their estrangement, so she went to the police and falsely accused him of rape.  She reported that he forced her to have oral sex by grabbing her head and forcing his penis into her mouth. Then, he supposedly pushed her on the bed and forced her to have vaginal sex.

The husband was arrested and held in custody for fifteen hours. The husband showed police a video he had taken of their sex act on his cell phone. The video shows that she was enjoying it -- she was giggling and laughing -- and that it was consensual.

Police confronted the wife, and she admitted it was all a lie. She had lied to get her husband in trouble because she was angry at him. According to her attorney, she lied because he had behaved "in an unchivalrous way" toward her. 

The wife was convicted and jailed for nine months for perverting the course of justice.

The readers who commented under the original news story largely mirror the public's palpable disgust with false rape claimants. Invariably, some readers insist that these kinds of stories give license to men to videotape their sexual encounters in order to avoid unjust deprivations of liberty. It is well to keep in mind, however, that most men who secretly, and illegally in many jurisdictions, record their sexual encounters, do so for reasons having nothing to do with the fear of false rape claims.

Still, it is not certain what might have happened if there had been no video in this case. When people are incarcerated, whether for years, or even for "just" fifteen hours, because of a lie about rape or sexual assault, and the lie is exposed only due to the happenstance that a video exists to prove the truth, it undermines public confidence -- including the confidence of potential jurors -- in the integrity of all rape accusers.

The woman, and others who lie about rape, do a grave disservice not just to the persons their lies target, but to all rape victims.


Ex-jailer made false claim of sexual assault, according to Georgia Bureau of Investigation

Erica Juarez, a former Hall County jailer, landed in jail herself she falsely accused a co-worker of sexual assault, according to the Georgia Bureau of Investigation. Special Agent in Charge, Kim Williams, said that Juarez told authorities on the first of April, that while off duty, a co-worker sexually assaulted her.

A press release from the Hall County Sheriff's Office stated that the investigation was turned over to the GBI, which determined the allegation was false. Both Juarez and the co-worker resigned during the investigation.

Juarez was arrested and booked into the Hall County Jail for making a false claim this last friday, and later released on bond.


Tuesday, April 10, 2012

Law professors: 'Dear Colleague' letter creates procedures that are 'Orwellian,' 'Kafkaesque,' and 'fundamentally unfair'

Rights Advocates Spar Over Policy on Sexual Assault

The Cornell Daily Sun, April 4, 2012

Victims of sexual assault could have an easier time proving their accusations if the University Assembly approves changes to campus policy next week. But opponents of the changes say that students accused of assault — who face expulsion from the University — would lose critical rights and safeguards if the U.A.’s resolution is approved.

'Those who oppose these changes do not oppose victims' rights, they merely recognize that in the case of a false conviction, it is the accused, not the accuser, who is the real victim.'

From The Cornell Daily Sun:

Ensuring Legal Protection for All

April 10, 2012
By Mike Wacker

In response to a letter from the Department of Education, when a student is accused of sexual assault or sexual harassment, Cornell may no longer try them under the Campus Code of Conduct, which provides a robust set of protections for the accused modeled after the criminal justice system. Instead, they would be tried under University Policy 6.4, which strips away many of these protections and also uses a lower standard of proof. Advocates of these changes, including the Women's Resource Center, hope to create a system friendlier to sexual assault victims and more likely to bring the guilty to justice, which by itself is certainly an admirable goal.

However, before anyone signs off on these changes, one critical question must be asked: How many innocent people must suffer to ensure that the guilty are brought to justice?

Monday, April 9, 2012

British teachers union aggressively protects the wrongly accused

The British teachers union, NASUWT, said schoolchildren who falsely accuse teachers of crimes “must understand there is a consequence” to making allegations that are “unjust and malicious."

The vast majority of claims made against teachers are unsubstantiated. NASUWT data shows that fewer than one-in-20 allegations of claims against teachers last year – including assault, sexual abuse and serious threats – resulted in court action.

A new law gives teachers the legal right to anonymity until they are charged with a criminal offense. But even that's not enough for the union. The union passed a motion claiming that “the most effective way to protect teachers from malicious allegations is to make such an allegation a criminal offence.”

Chris Keates, NASUWT general secretary, said: “The issue of false, malicious and unsubstantiated allegations against teachers continues to be an enduring problem. Teachers’ fear of having allegations made against them is very real, yet four out of five did not feel that current protections for teachers are adequate. The fear of having an allegation made against them is compounded by the fact that even if they are exonerated, their career will be permanently blighted by the fact that the allegation will remain on record.”

COTWA reprints letter from Daily Tar Heel (UNC student newspaper)

UNC sexual assault policy threatens falsely accused

By Letter to the Editor
Updated: 04/04/12 11:50pm
I was glad to see, in Tuesday’s article “Sexual assault rules in limbo,” that the remarkable overhaul of the justice process for sexual assaults is not going unnoticed.

However, the new standard of evidence to be used in sexual assault cases is disturbing. For criminal trials serious and trivial, we are afforded a hearing “beyond a reasonable doubt”.

Yet on this campus, any person suspected of committing sexual assault is stripped of his or her rights and brought before a panel which will consider “a preponderance of evidence”.

This, as Dean Sauls said, is “more than just writing a policy,” and it certainly ought not to be passed off as “aspirational,” for there are real, potentially disastrous consequences to be considered.

We must look no further than the case of Caleb Warner at the University of North Dakota to see the problems associated with this policy.

According to reports, Warner was accused of sexual assault, but his accuser was later suspected of lying by the police. However, despite the questions surrounding the claims, Warner was found guilty under this “preponderance of evidence” standard. After more than a year, UND finally admitted its mistake and reversed the ruling.

The “Dear Colleague” letter is not binding policy. Let UNC be progressive in upholding the rights of all students, not just victims of sexual assault.

We should never have to see a case like Caleb Warner’s here in North Carolina: the rights of sexual assault survivors can be protected without risking the same mistakes that ruin the lives of the falsely accused.

David Adler ’15
Computer science

Two men in clear after false Christchurch Park rape claim

Two men, aged 18 and 21, were arrested as part of an inquiry in an alleged rape in the Christchurch Park arboretum. At this point, no further action will be taken, as is has been determined that the allegation was false.

The alleged incident supposedly happened sometime between 2:30 and 5 a.m. on February 18th. Police got the report at 6:45 of two men attacking a female. Police cordoned off a portion of the park while crime staff started the investigation.

The woman, believed to be 18, was taken to a sexual assault center in Ipswich. Further inquiries by detectives showed no evidence of rape.

No action will be taken against the women, and officers have stressed that anyone who reports being raped will be taken seriously, and supported in whatever way possible.

Detective Sergeant Andrew Smethurst said:

This report concerned a lot of people in the local community and as such it was thoroughly investigated. Following the investigation it was established that the incident was not as originally reported and having spoken again to the complainant we are satisfied that no such crime has been committed. While this particular incident has turned out to be a false claim we want to reassure members of the public that anyone reporting a rape or sexual assault in Suffolk will receive a full level of support from specially trained officers.
It would be a wonderful thing if the "full level of support" were offered to the wrongly accused.


Friday, April 6, 2012

COTWA got it wrong: prosecutor Sue Baur was right not to prosecute rape accuser who recanted

COTWA has obtained information from Cowlitz County, Washington prosecutor Sue Baur regarding this post, where we stated that Ms. Baur had decided not to prosecute a woman who admitted that she lied about her father raping her when she was 11-years-old. The woman's accusation put her father behind bars for nine years.
The news reports distorted what happened, and COTWA repeated the distortion. Ms. Baur not only acted properly, her conduct was exemplary. 

The reporting of this case purposefully gave the impression that there had been a determination that the 2001 allegations were false.  In fact, there has been no adjudication that the girl lied at the original trial, or that her recantation was more reliable than her original testimony.  A judge simply ordered that, in light of the recantation, the father was deserving of a new trial.  
Ms. Baur, to her credit, decided that she would not retry the father because she felt that a jury would not be able to figure out what happened, much less find him guilty verdict beyond a reasonable doubt. She properly dismissed the case and released the father.  The father has not been found "innocent" by a court, and we may never know the truth about what happened.
Ms. Baur believes that no one should ever, ever go to prison for something he or she did not do, and that "we should always err, if at all on the side of the defendant’s freedom." 
COTWA relies on mainstream news media reports, and in this instance -- as happens all too often -- the reporting left much to be desired. Susan Baur has been unfairly maligned; in fact, she deserves to be applauded.  For what? For doing what too many prosecutors don't do -- her job, fairly, and with justice.
COTWA believes it is important to prosecute persons who make false claims, but no such prosecution should be brought unless the prosecutor is confident, to a moral certainty, of the false accuser's guilt.  Where it is clear that someone lies about rape, to refuse to prosecute undermines public confidence about the way rape claims are handled.  Juries want to punish rapists but are loathe to risk punishing the innocent. Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity.
In this instance, Ms. Baur did not undermine public confidence about the way rape claims, or false rape claims, are handled. The news media did.  We were unwitting accomplices in that undermining, and for that we apologize to Ms. Baur.

Good Friday, 2012-style

This piece is well timed to coincide with Archivist's earlier piece. It appears that Ireland's national broadcaster, RTÉ, likely will face charges of bias after a soon to be published report as to why it falsely accused Father Kevin Reynolds of raping a minor and fathering a child when he was doing missionary work in Kenya 30 years ago.

After RTÉ’s program "Prime Time" ran the piece "Mission to Prey" ran in May of 2011, an independent investigation was launched as to why the Father was so badly libeled and who made the decision.

It is alleged that the program falsely accused the priest of the rape and impregnation, and of providing financial support for the child over many years as well.

Before the show was broadcast, Father Reynolds volunteered to take a DNA test to prove he wasn't the father of the child, but RTÉ declined. Unfortunately, he was removed from his home and his parish ministry. He was later proven innocent after two independent DNA tests.

Ireland's broadcasting watchdog, the Broadcasting Authority of Ireland, submitted a copy of their investigation to the RTÉ with notification of the sanctions it intends to impose (up to 250,000 euros, or $320,000). RTÉ will have 2 weeks (14 days) to respond. At that time, the authority will publish the report with any penalties that will be imposed.


When God allowed his son to experience the greatest injustice possible: a wrongful conviction

Today is Good Friday, the day Christians around the world celebrate what they believe to be the central fact of history: that God sent his only son to live as a human in order that he might willingly offer himself as a sacrifice for the transgressions of all of mankind.

In order to vicariously atone for mankind's sins, Christ was subjected to trumped-up charges by the leadership of his faith and brought before the Roman Prefect, Pontius Pilate, who promptly declared him innocent.  Nevertheless, to appease the angry mob that didn't think enough was being done to punish a perceived wrongdoer, Pilate ordered Christ to be flogged.  When that wasn't enough for the crowd, Pilate ordered Christ to be subjected to the death penalty.

Jesus is the most famous wrongly convicted person of all time. The state bowed to the pressure of a committed interest group by sacrificing a wrongly accused man. Jesus was unfortunate, but necessary, collateral damage in the state's more important, politicized interest of appeasing an angry group of activists.

It is well to remember that God allowed his son to be executed by the state, not by a criminal acting on his own, in order to make a crucial point. Being killed by a criminal would not have manifested the community's rejection of the Messiah. The Divine Plan implicitly recognized that, all other things being equal, misconduct by the state in punishing an innocent person is qualitatively different and more significant than misconduct by a criminal acting on his own.

Just as Christians believe that all of us are ultimately responsible for Christ's death, so, too, all of us have blood on our hands for the treatment of the modern day wrongly accused.

Thursday, April 5, 2012

Investigation shows woman falsely accuses two police officers of sexual assault

Carolyn Jensen was arrested for drunken and disorderly behavior and was taken to police headquarters for processing. She called her boyfriend to come get her, and claimed that the two transporting officers had sexually assaulted her. A lengthy investigation found no evidence to support the allegation.

Jensen has been admitted to a so-called "Pre-Trial Intervention" program, and if she successfully completes it, she'll be free, with no criminal charges on her record. She was accepted to this program by Superior Court Judge Thomas Manahan, with no admission of wrongdoing. The program calls for supervised probation and 50 hours of community service.  Robert Weber, Morris County Assistant Prosecutor, that that PTI was appropriate, after a psychological report noted that Jensen has a history of alcohol abuse.


Wednesday, April 4, 2012

Warrant issued for woman accused of falsifying rape report

Katheryn Marie Louise Clark now has a warrant out for her arrest because she failed to appear in court for falsifying a rape report in December.

Tuesday, April 3, 2012

Does refusing to charge for rape lie that put innocent man away for nine years undermine public confidence in the way rape claims are handled?

Cassandra Kennedy, 23, admitted that she lied about her father raping her when she was 11. Her accusation put her father behind bars for nine years.

Ms. Kennedy will not be charged with a crime because prosecutors fear it could stop others from reporting sexual assaults.  Prosecutor Sue Baur said: "This is the kind of thing that shouldn't happen."  But she said that charging Kennedy might discourage victims from coming forward.

Kennedy admitted her lie because of a guilty conscience. "I did a horrible thing," she told detectives last January.  She was allegedly bitter following her parents' divorce ten years earlier. "I wanted him to love me," Kennedy said, "and I didn't think he did at that time.  I took my own vengeance."

Kennedy told police she got the idea of setting up her father from a friend whose stepfather had been sent to prison for a child sex crime.  "I thought that is what I would do to make my dad go away." She told a teacher about the alleged abuse, and repeated the stories with consistency. The details seemed beyond the sexual knowledge of an 11-year-old.

Her father denied the allegation but a jury convicted him of three counts of rape of a child and he was sentenced to more than 15 years in jail.

The father was released last week and the charges against him were dismissed. He told a reporter that he did not want to comment but is simply trying to get on with his life.

The decision not to prosecute this apparent crime is troubling.

First, the prosecutor's concern that charging Ms. Kennedy might deter others from reporting their sexual assaults is speculative and unsupported by any evidence of which we are aware.  Charging Ms. Kennedy would not send a signal that the prosecutor intends to charge any woman who makes a disputed rape claim that the police don't believe. The instant case caused grievous harm and is extreme. It involves an admitted rape lie that had a catastrophic effect on another person's life. Charging the author of such a lie would not likely deter anyone from reporting her own sexual assault.

Second, Ms. Baur's rationale for not prosecuting Ms. Kennedy sends a message that can only hurt the wrongly accused. The absence of any punishment for an apparent crime that caused a man to forfeit his liberty for almost a decade can only encourage similarly motivated persons to make false accusations.  According to Dr. Valerie Wright, research analyst at The Sentencing Project: "People who perceive that sanctions are more certain tend to be less likely to engage in criminal activity."And: "Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits."  If crimes such as this one are not deterred, society invites more abuse of the criminal justice system at the expense of the innocent.

Third, Ms. Bauer's rationale for not prosecuting Ms. Kennedy undermines public confidence in the way rape claims are handled. The prosecutor should want the public to regard rape as a serious crime deserving of serious penalties. Indeed, juries want to punish rapists but are loathe to risk punishing the innocent. Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity. 

Fourth, the victim should have a say in whether the false accuser is prosecuted. The victim in this case did not publicly express an opinion on the subject, and we are wondering if anyone bothered to ask him.


Monday, April 2, 2012

Does refusing to charge for rape lie that put innocent man away for nine years undermine public confidence in the way rape claims are handled?

Supreme Court says presumptively innocent can be strip searched even for minor offenses

Under one guise or another, the presumptively innocent are increasingly treated like convicted felons:

According to the Washington Post: "The case [before the Supreme Court] was brought by Albert Florence, a New Jersey man who said he was subjected to two invasive inspections in 2005 after being mistakenly arrested for not paying a fine.

"A state trooper pulled over Florence’s BMW in 2005 as he and his family were on the way to his mother-in-law’s to celebrate the purchase of their new home. He was handcuffed and arrested in front of his distraught, pregnant wife and young son.

"He spent seven days in jail because of a warrant that said, mistakenly, he was wanted for not paying a court fine. In fact, he had proof that the fine had been paid years earlier; he said he carried it in his glove box because he believed that police were suspicious of black men who drove nice cars.

"Florence was jailed in Burlington County and then Essex County, before a magistrate ordered him released. At Burlington, he said he was forced to disrobe in front of an officer and told to lift his genitals. At Essex, he was strip-searched again, and said he was made to squat and cough in front of others, a maneuver meant to expel anything hidden in a body cavity."

We agree with Justice Stephen G. Breyer's dissenting opinion. Corrections officials should have reasonable suspicion that the person arrested poses a danger before subjecting them to a strip search that is “inherently harmful, humiliating, and degrading.”

The man and woman in infamous Belvedere ad did not consent to use their images

Alicyn Packard has sued Moet Hennessy USA, for featuring her image in a mock rape ad for Belvedere Vodka.  Ms. Packard claims that neither she nor the man featured in the ad, her friend Chris Strickland, gave anyone permission to use their images.  The photo was taken in connection with a comedy sketch the two had done together.

Ms. Packard's suit is commendable. It publicizes, in an appropriate way, the fact that Ms. Packard didn't consent to be part of an ad so completely lacking in taste, morals, and good judgment.  Moreover, it sends a message to Moet Hennessy and any other company that has an urge to make light of rape that they do so at their peril.  Perhaps Mr. Strickland will file his own suit, which could be consolidated with Ms. Packard's.

NBC: encouraging unjust rush to judgment in Trayvon Martin case, or just sloppy journalism?

Decide for yourself:

Extreme sexual harassment case was like a war, judge finds that the accuser lied

Vivienne Dye, a former Commonwealth Bank employee, sued her ex-company for sexual harassment and discrimination, but a judge has issued a scathing opinion dismissing her claims. Much of the evidence given by Ms Dye was "knowingly false," and she had added and omitted events in a "bewildering fashion," the judge said.  Ms Dye's account of the alleged incidents had over the years been "progressively altered, re-recorded, edited, polished, embellished and even substantially changed as though it was a novel," the judge found.

Ms. Dye singled out two of her superiors, Michael Blomfield and Angus Patterson, and claimed they sexually harassed her and that Mr Patterson raped her in her apartment.  The judge ruled that "all of the allegations against the men were false and should not have been pursued."

Man cleared of rape attack

The man in the following story doesn't appear to be anything remotely resembling a saint, but the woman who accused him of rape admitted that all of the sex involved was consensual, and that she lied about it. She didn't admit it until after video footage he captured on his phone was played in court.  The news report is located HERE.

Jay Dyce has been unanimously acquitted of rape and false imprisonment. He is still likely to be convicted and jailed as he has admitted to tasing and beating the accuser.