Friday, September 28, 2012

Sexual assault mistrial declared when expert tells jury that accuser was telling the truth

In Connecticut this week, another mistrial was declared in another sexual assault case after another expert witness, Child Guidance Center's Dr. Larry Rosenberg, improperly testified that the accuser was credible.  See here.

We recently reported a similar case in Texas where an expert improperly testified that a sexual assault accuser was almost certainly credible. See here.

In this latest case, a Norwalk, Connecticut police officer, Anthony Santo, was accused of sexually assaulting the daughter of a close friend.  The accuser, now 20-years-old, testified that she could not remember exactly when it happened, but believed that when she was 13 during a power outage, Santo allegedly put his hand underneath her pajamas and touched her genitals. Santo denied it and explained that the girl had told him that a boy had groped her.

The prosecutor called Rosenberg, clinical director of the Child Guidance Center, to the stand to testify about how common it is for children to keep the allegations of sexual assault to themselves. Astoundingly, according to the news report, Rosenberg said that 93 percent to 95 percent of the children who alleged sexual abuse are being truthful. And, he said, the vast majority of the remaining five to seven percent were found to be coached into false allegations by their parents, who were involved in some sort of custody dispute or divorce. Because there were no allegations of custody or divorce implications in the trial, the inference that the girl was a victim of sexual abuse was inescapable.

"Essentially what he was saying was the woman was telling the truth," the judge who declared the mistrial concluded. Substantial damage was done to the defendant's case by allowing this testimony.

The prosecutor in the case, Senior Assistant State's Attorney Maureen Ornowski, called the judge's decision to toss the trial "draconian" and "extremely unfair to the victim."  The "victim," of course, is the accuser, not the man whose due process rights were summarily taken from him by the musings of an expert witness.

Ironically, just last week, Santo's attorney, Gary Mastronardi, won an appeal in the state Supreme Court involving the same issue. That case is State v. Favoccia, and it is reported at 2012 Conn. LEXIS 345. There, the Connecticut Supreme Court agreed that the trial court abused its discretion by allowing an expert witness to indirectly testify about the truthfulness of a complaint's allegations in another sexual abuse case. The expert witness testified to the effect that the complainant exhibited certain behaviors that were consistent with those of sexual abuse victims. The appellate court determined that the statements impermissibly vouched for and bolstered the credibility of the complainant. The jury is responsible for determining questions of credibility, not a witness paid by the state, which is seeking to incarcerate the man on trial.

In this week's mistrial, the purported expert's testimony not only was prejudicial, it was misleading. While some studies show that only a small percentage of sex claims are definitively false, it is dishonest to state that only five to seven percent of all claims are false without also explaining that only a relatively small percentage of such claims are definitively sexual assaults. In between the claims reasonably certain to be actual sexual assaults and the ones reasonably certain to be false claims is a vast gray area consisting of the majority of the claims that can neither be classified as sexual assaults or as non-sexual assaults -- because we just don't know. That's the nature of these claims, where the act that gives rise to it is almost always committed in private. See our discussion of Dr. David Lisak's study on the subject here.  It is reasonable to assert that while the number of false and wrongful claims is unknowable, the percentage is likely higher, and perhaps considerably higher, than 5 to 7%.  A fairer way to describe it is to talk only about the claims where we know definitively whether a sexual assault occurred (a figure much, much lower than 100%). Of those claims, the percentage of claims that are definitively false is much higher than five to seven percent.  If the expert was intent on talking about false claims, he should have told the entire story, not just the part that paints the presumptively innocent man as guilty.

Thursday, September 27, 2012

Allegation of sexual assault on TJC campus proved false

I'm still trying to figure out how, without an investigation, they can determine a threat to safety has arisen. Wouldn't the investigation actually show that? Or, in this case, show that there was no threat? So a needlessly inflammatory notification was sent out, when it wasn't warranted. The other item that isn't clear from the article is this: was a notification sent out that the allegation was false?

Wednesday, September 26, 2012

Appalling: To extremists on the left, some are more presumptively innocent than others

Read it:

And don't even get me started about extremists on the right.

New Zealand scraps plans to introduce inquisition, do away with jury trials, for sex cases

New Zealand scraps plans to introduce inquisition for sensitive court cases involving children or victims of sexual assault. The proposed system, as opposed to the adversarial system in effect, would enable judges to interview victims of sexual crimes, get assistance from specially trained jurors, or come to a verdict without a jury.

The inquisitorial model was designed to protect victims or children from the pressure and stress of appearing in the courtroom. Legal experts were wary of a change to New Zealand's adversarial process because it could breach a Bill of Rights provision that anyone accused of an offence that carried a jail term of three months or more could elect trial by jury.

Tuesday, September 25, 2012

Dumfries Greensands false rape claim woman sentenced

A woman who falsely claimed she had been raped twice on the same night has been sentenced to a community payback order of 250 hours of unpaid work.

Jodie Murray, 23, of Dinwoodie Drive in Dumfries, admitted falsely claiming she had been raped by an unknown man at Greensands in the town on 3 December.

She also falsely claimed she had been attacked at a house in Dumfries by a man she had named.

The sheriff said she had subjected the young man to a distressing ordeal.

Kenneth Ross said it was only because she had two young children that he would not send her to prison.

As well as the community payback order, she was also put under supervision for two years and given a curfew to remain in her home between 20:00 and 08:00 for six months.

Her solicitor said that she had previously been a victim of domestic violence and had received threatening text messages that evening and made up the story after a neighbour called the police.


Monday, September 24, 2012

'Good men live in fear'

Naomi Arnold writing here:

New Year's Eve, 2009. As the rest of the country relaxed in the sun, a Nelson man faced the darkest of accusations. He has the dubious distinction of being what the media calls "a former prominent person", and his stepdaughter accused him of sexual abuse in their own home. She was 13 at the time, and said the man indecently touched her breast while watching television in the lounge - and again, later, in her bedroom.

The man said nothing happened. That the kids and he watched a movie, went to bed, and he spent the evening tidying up the lounge. But police arrived to arrest him the next night and the man could not return home for nearly three years. The drive to the police station, he said, felt like "falling back into an abyss".

During the trial the man's lawyer accused this girl, who must now be barely 16, of convincing herself that something happened, of going too far with the story to turn back, or perhaps of dreaming the whole thing. She says she did not.

Yesterday, the jury unanimously found him guilty. For the average person following the case this week, it was impossible to read the daily news reports and predict what decision they'd make. There was no physical evidence; it seemed to come down to his word against hers.

It's over now. But as I read the news reports I wondered about the possibility of innocence, and what it would be like to be accused, Kafka-esque, of a crime you'd never committed; particularly a crime as gross as this. When I was at school, one male teacher simply disappeared amid similar swirling rumours. I never found out if they were true or not; in some ways, it doesn't matter. Once the accusation has been made, it sticks. The feeling must be akin to being buried alive.

Friday, September 21, 2012

Univ. of Arizona holds that student committed sexual assault based on a mere possibility that his accuser didn't consent

A disturbing judicial decision was recently handed down by Arizona's Court of Appeals that should be of concern to the University of Arizona community. A male student was suspended by the university after being found guilty of sexual assault by the school's vice president of student affairs because the vice president found that the male student knew his accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption.

If, indeed, the male student was not certain that his accuser was capable of voluntarily consenting to engage in sex, it seems clear that he should not have proceeded with the act, and that if he plowed ahead in the face of such uncertainty, he acted both recklessly and boorishly. But that is not the issue here. At issue here is whether the male student committed a punishable offense. Here, that seems highly questionable. The male student was found guilty of sexual assault based on nothing more than a possibility that the accuser did not consent. Such a holding is an affront to the most rudimentary notions of due process and an intolerable intrusion on the rights of the presumptively innocent.

According to the decision of the Arizona Court of Appeals, University of Arizona student Jeffrey Patterson and an unnamed female student attended a frat party at the university and then engaged in sexual conduct. Mr. Patterson contends it was consensual, the female student says it wasn't. The female student later asserted "that she had felt an immediate and unusual effect upon drinking alcohol at the party with Mr. Patterson, and did not remember consenting to the sexual intercourse with him that followed. Instead, she recalled excusing herself to a bathroom to get out of a room with Patterson and telling him she was very tired and wanted to go home. She also stated that the day after the incident, she had discovered bruises on her legs, and her vagina was very sore where Mr. Patterson had bitten her." Patterson v. Arizona Board of Regents, 2012 Ariz. App. Unpub. LEXIS 980 at *2 (August 15, 2012).

The female student filed a complaint with the dean of students. As a result, Mr. Patterson was charged with two violations of the university's student code of conduct: (1) endangering, threatening, or causing physical harm to any member of the university community; and (2) sexual assault.

After an investigation, the assistant dean suspended Mr. Patterson for two academic years, citing violations of both charges. Mr. Patterson appealed to the university's hearing board, an advisory body for the vice president of student affairs, who holds final fact finding and disciplinary authority.

The hearing board heard the testimony of numerous witnesses and found that Mr. Patterson was guilty only in connection with endangering, threatening, or causing physical harm to a member of the university community. The hearing board did not find Mr. Patterson guilty of sexual assault.  Accordingly, the hearing board rrecommended a reduced sanction.

The vice president, however, rejected the hearing board's determination regarding sexual assault; she found that Mr. Patterson was guilty of sexual assault. Here are the words the vice president used:  Mr. Patterson knew the accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption. (Emphasis added.)  Despite the vice president's ruling, she agreed to reduce Mr. Patterson's suspension to one academic year.

Mr. Patterson filed suit against the university. He claimed that the vice president's finding that he knew his accuser "might not have been able to voluntarily consent" was insufficient, as a matter of law, to support a holding that he committed sexual assault. He cited by analogy Arizona legal authorities holding that to be found guilty of such a charge, a defendant must know his sexual contact was without the consent of the victim. Mr. Patterson asked that the matter be remanded so that the university could determine an appropriate sanction for the "minor violation" relating to physical harm.

The Court of Appeals refused to order the relief Mr. Patterson requested, noting that "we might agree with Patterson that the vice president recited an incorrect legal standard in her suspension order," but even if she got it wrong on that point, she "arguably" would have imposed the same sanction. The court explained that the procedural standards in the university setting are "more relaxed" than in a court of law.

The court's decision, and its rationale, are unfortunate. While the holding reflects the usual judicial reluctance to upset orders entered in college disciplinary proceedings, the court could have sent a strong message to institutions of higher learning about zealously respecting the rights of its students. Instead, a male student will go through life branded as a sexual assaulter based only on a possibility that his accuser was incapable of consenting.

A finding of guilt based on a mere chance that the accuser might have consented is the sort of result we might expect in a third world dictatorship. That we are seeing more and more such holdings in America's vaunted institutions of higher learning is a chilling indication that inappropriate forces are impeding the proper administration of college disciplinary claims.

Decision found here:

Woman charged with false report after claiming sexual assault by Spanish Fort police officer

A Fairhope woman who said she was sexually assaulted by a Spanish Fort police officer has been charged with filing a false report to law enforcement, a Baldwin County Sheriff’s Office statement said.

Thursday, September 20, 2012

County jail inmate accused of false sex charge

An inmate at the Erie County Correctional Facility has been charged with falsely accusing a corrections officer of sodomizing him, sheriff's officials said Friday.

Wednesday, September 19, 2012

The community of the wrongly accused asks Prof. Danielle Wozniak for an explanation

We are sending a link to this post to Professor Danielle Wozniak of the University of Montana, one of the creators of the mandatory sexual assault video series at the University of Montana.  We do so respectfully, because we find most of the information in the videos to be helpful and unobjectionable. Our concerns are limited to a few, critical areas that deserve serious airing in the public discourse.

Stop Abusive and Violent Environments, SAVE, recently wrote to the University of Montana expressing concerns about his school's mandatory sexual assault video series.  SAVE, which is not affiliated with this Web site, cited our Web site's writings on the video series in connection with its concerns.

In response, Associate Professor Wozniak, one of the creators of the videos, dismissed out of hand the concerns raised without addressing any of them, asserting that the information in the videos is "standard and accepted."

We respectfully disagree. We've demonstrated that certain critical information contained in the videos is unjust to presumptively innocent persons accused of sexual misconduct. We respectfully invite Professor Wozniak not to dismiss our concerns with conclusory assertions but to specifically address the matters we raise. Show us how we are wrong.

Show us how, for example, it comports with due process to force students who will adjudicate sexual assault hearings to watch a video put together by experts that posits "MYTH -- People lie about sexual assault." 

Show us how the assertion that "guilt tripping" is sexual assault comports with our jurisprudence's long-accepted views on duress and coercion, and how turning "guilt tripping" into a punishable offense could possibly pass due process muster.

Tell us if you agree with Dr. Lisak's research suggesting that sexual assault is not "normalized" or committed by, as feminist commentator Amanda Marcotte put it, "ordinary men who get out of control," but is, rather, perpetrated by a very small group of social deviants immune to the kind of sexual assault education contained in the videos.

Our concerns, which are supported by widely accepted sources and, we think, meticulous reasoning, are limited to the specific areas we write about.

We've been wrong in the past and have corrected ourselves; we'd gladly do so here, too, if that proves to be the case. By the same token, we would hope that if Professor Wozniak is not able to answer the matters we address, that she would take reasonable measures to modify the videos accordingly.

Our concerns are spelled out here:

Part I: The University of Montana deprives men of their right to a fair hearing in sex cases

Part II: The University of Montana says sex after 'guilt tripping' is assault, and why that is wrong

Part III: The University of Montana's mandatory video series teaches that rape is normalized

Tuesday, September 18, 2012

The Triumph of Tyranny: Secret Justice at GW

A new sexual harassment and assault policy at GW gives accusers the protection of confidentiality. "The previous policy, last amended in 2005, forced complainants to disclose their identities at the formal hearing stage.

“The whole idea that a woman who has been sexually assaulted has to go in and confront the accuser hurts the healing process. The University’s code has to reflect those kinds of changes,” Chair of the Faculty Senate’s executive committee Michael Castleberry said.

This is among the most absurd, unjust, and frankly frightening college sex policies we've ever seen, and that is saying a lot.

We have grown weary of treating people like Michael Castleberry seriously. We know nothing more about him than what is written here, but his comment is as stupid as any we've ever read.

The purpose of a hearing is to do justice, Mr. Castleberry. The fact that you think it's all about "healing" the accuser tells us all we need to know about you. Every male student at GW should call to have you dismissed because, based on that comment, you are a threat to them.

'The power of allegations:When innocent until proven guilty collides with public's right to know'

By Robert Allen, as published here:

Michael Carnes, 39, has never been convicted of a sex offense.

But one year after four charges of sexual assault on a child brought against the former Fort Collins resident were dropped, Carnes remains in a legal battle to have his arrest and court records made secret.

Jail for woman who made up rape claim

As reported here:

A Nottingham woman who falsely claimed three men had raped her has been jailed for two years.

Rosie Dodd, 20, of North Sherwood Street, was sentenced at Nottingham Crown Court on Monday after lying to police that three men had raped her in June last year.

She claimed the men - aged 21, 23 and 25 - assaulted her at an address in Clifton in the early hours of Saturday 4 June.

She said she had gone back to a house with the men, who she had met while out in Nottingham, and they had each raped her.

They were arrested on suspicion of rape and spent a total of nearly 50 hours in police custody before being released on bail.

They maintained that Dodd had willingly had sex with them.

After carrying out further enquiries, police began to have concerns about Dodd’s account and, when challenged, she admitted that she had actually had consensual sex with the men and had made up the rape claims because she regretted it.

She was charged with perverting the course of justice, to which she pleaded guilty at a previous hearing.

Detective Constable Gina Farrell, who led the investigation, said: “We take every report of rape and sexual assault extremely seriously, just as we did in this case. But it soon became apparent that there were inconsistencies with Dodd’s account.

“The three men accused of rape were quite badly affected by the damaging accusations and Dodd has never shown an ounce of remorse for what she put them through.

“The time our specially-trained officers spent with her could have been spent with someone who really needed our help.”

Detective Inspector Stephen Waldram, head of the city Rape Investigation Team, added: “People lie that they’ve been raped for a multitude of reasons - like having regrets about having sex with a person, or as a way of getting back at someone.

“There is no justification for lying about something so serious and incredibly damaging and police actively investigate a false claim just as thoroughly as a genuine one to ensure innocent people are not convicted for something they didn’t do.

“It’s important to stress that anyone who contacts us to say they have been assaulted will be treated with the sensitivity and respect they deserve.

“It can be incredibly difficult for victims of rape to come forward to police and tell us what’s happened to them, which is why it’s so important for us to prosecute those who take up our time by lying to us.

“I would urge genuine victims to come forward and tell us if they have been raped or sexually assaulted. Only then can we begin to bring those responsible to justice.

“And I would remind anyone considering making a false report to think again. We carry out extremely thorough and in-depth investigations and their lies will be exposed.”

Monday, September 17, 2012

'I was pretty sure she consented'

Imagine if that was a guy's defense to a rape charge. Doesn't cut it, does it?

Then explain this:

Atrocity: Twelve years behind bars--and one of her accusers now admits she didn't do it

As reported here:

A woman who has spent twelve years behind bars for sexually assaulting her two nieces in 1994 may be set free after one of the girls is now claiming it never happened.

Elizabeth Ramirez was sentenced to 37-and-a-half years prison and her three friends were given 15 years after the two children, then aged 7 and 9, told police the women forced them into a debauched, orgy-like nightmare.

But one of the girls, now 25, has recanted the serious claims that put her aunt and friends Kristie Mayhugh, Anna Vasquez and Cassandra Rivera behind bars so many years ago, according to the San Antonio Express-News.

'I want my aunt and her friends out of prison,' the younger niece, who wanted only to be known as Stephanie, said.

'Whatever it takes to get them out I'm going to do. I can't live my life knowing that four women are sleeping in a cage because of me.'
Ramirez and Rivera were just 20 when they were arrested and friends Vasquez and Mayhugh were 19 and 22 respectively.

None of the women had ever been in trouble with the law and the women have always vehemently denied the claims.

Ramirez was labeled the ringleader by her nieces and was handed a prison term more than double that of her friends.

She therefore has the most to gain from an exoneration in that it would free her from a sentence that doesn't end until 2034, when she would be 60 years old.

Rivera, 37, has never has held her one-year-old granddaughter, the Express-News reported while Mayhugh and Vasquez have missed the funerals of loved ones. Ramirez, 38, who was pregnant at the time she was accused, hasn't seen or spoken to her son since going to prison when he was two.
'I never want to be bitter and angry,' Ramirez said in a prison interview. 'Regardless, God always says you gotta love and you've got to forgive.'

The women didn't believe Stephanie recanted the accusations until their attorney showed them a typed summary of his meetings with the young woman.

'At first I was like, "Are you serious?"' Ramirez said. 'I didn't think they had anything on paper.'

But Stephanie's change of heart may not ultimately lead to the legal exoneration of the women and they face a long court battle to clear their names.

However, the friends are quietly confident justice will be done.

'I know the charges against us are not taken lightly. But can they please keep looking into this?' said Vasquez, tears welling in her eyes.

'Maybe it's been put into [Stephanie's] heart to finally tell the truth. I thank God that she's come forward. They painted us as monsters.'

Stephanie had told police that her aunt and her friends had violently turned on her when she and her sister were visiting Ramirez's one-bedroom apartment in the summer of 1994. But she now says that never happened.

According to the Express-News, the nieces described to police and later to jurors how the women called them into the apartment, where they were getting drunk and smoking pot, two of them lounging around topless, and held them by their wrists and ankles, repeatedly violated them, threatened to kill them and their families, then let them take a shower and go about their day.

But Stephanie now says the visit was uneventful, even 'boring.'

First Assistant District Attorney Cliff Herberg told the news website that it's too early for him to take a position on the case. But he said their ears were open.

'We are more than willing to listen to anything they have to say,' Mr Herberg said. 'It's paramount that justice is done, whatever that is.'

Stephanie revealed that her recantation has ruined her relationship with her sister, who hasn't been named. She added that she hasn't spoken to her aunt since she was imprisoned.

'Does she know I'm trying to help?' Stephanie asked a reporter. 'I can't take back what I did, but if I could talk to all of them in one room I would just say I'm sorry. I'm sorry for ruining them.'

(Thanks to JH)

Rape accused: 'My life is in ruins'

As reported by Caroline Marcus in The Sunday Telegraph

A MAN wrongfully accused by police of a string of terrifying sex attacks in western Sydney says the ordeal has destroyed his life and left him suicidal.

Joey de Mesa, now 27, became known as the "buck-tooth rapist" after police charged him with the attacks on six teenage girls between April and June 2008.

When the DNA evidence cleared him, Mr de Mesa thought the nightmare bungle was behind him.

But four years on, he has turned to The Sunday Telegraph in sheer desperation, saying he cannot escape the slurs and lies about his character.

"It's so difficult for me to get a full-time job. I've tried but every time I get a job, I lose it," said fed-up Mr de Mesa, adding that he has also lost count of the number of job knockbacks.

Mr de Mesa fears employers have Googled his name and found out about his past and then let him go "without good reason".

"Who knows if they do background checks. A lot of people just question me and they start talking," Mr de Mesa said. "They approach me and say, 'I know you from somewhere, I've seen your face.' A lot of people do mention it.

"I love work. I've applied for work like wardsman in a hospital, for example."

He has held four warehouse jobs in western Sydney in the past four years, the most recent being as a labourer at a stationery company where he lasted just two weeks. "I was told there wasn't enough work."

His long-time partner Marcianne Mendiola, 23, said he was being discriminated against because it wasn't his performance that was lacking.

"He's always in and out of jobs," Ms Mendiola said.

Mr de Mesa says his life was torn apart when one of the victims incorrectly identified him after seeing him on a train and CCTV footage of him was released through the media.

He spent 48 hours in a cell before DNA evidence cleared him and he was released.

The real culprit, father-of-three Arvin Longabella, then 23, was arrested two weeks later and sentenced to 17 years behind bars for 15 offences against seven victims.

At the time of his arrest, Mr de Mesa was working at a fruit market in Edgecliff, but his employer let him go.

"Sometimes I think the easiest thing to do is to kill myself," he said.

"I've avoided everyone. I have no more friends. My old friends would mention it to me. They would say (you're): 'the buck-tooth rapist'."

His mother suffered a stroke after being interrogated by police in her house following his arrest, he said.

"My mum was sitting for 18 hours, just stiff like a log."

Mr de Mesa knows he's made mistakes - at the time of his arrest he was on bail for kicking a man during a late-night fight on June 29, for which he recently finished serving a two-year good behaviour bond.

But he wants a clean slate and says the first step is to expunge the sex attacks arrest from his criminal record.

A police spokeswoman said police "spoke with the man and his family immediately after his release and issued a personal apology" - which Mr de Mesa denied ever happened - "and consulted with them (Mr de Mesa and his family) in relation to a subsequent media release, which announced that all charges were being withdrawn."

Thursday, September 13, 2012

Univ. of North Carolina rides roughshod over the rights of presumptively innocent men

Intolerance of rape is a noble impulse, but it should never override concerns about punishing the innocent for offenses they did not commit. At the University of North Carolina at Chapel Hill, there is a prevailing culture not only of  intolerance for rapists, which is commendable, but also of intolerance for presumptively innocent men merely accused of rape, which is unconscionable. Men and women of good will attending UNC, their parents, and UNC alumni, need to be aware that extremists dominate the public discourse on sexual assault at the university.

In the wake of the Department of Education's April 4, 2011 "Dear Colleague" letter to American colleges, UNC has lowered its standard of proof for finding guilt in sexual assault cases to the "preponderance of evidence" standard. This is the lowest standard of proof used in our jurisprudence, meaning that there needs to be only a slightly more than a 50 percent likelihood of guilt to rule against the accused.

To put into perspective how far from the mainstream this policy is, consider that the Democrats in the U.S. Senate last year removed this standard from an early version of a bill to amend VAWA.

On college campuses across America, young men are taught the necessity of unambiguous consent before engaging in any sexual activity. Jon McCay, UNC's former student attorney general, said that "only a clear ‘yes’ means yes. Consent isn’t supposed to be vague.'” No sane and rational person would suggest that a young man should proceed if he is only 50.1% sure that the young woman consented.  Yet, the same people who advocate the necessity for certainty in the bedroom find it perfectly acceptable for a college disciplinary board to expel a young man for alleged sexual assault when it is only 50.1% sure that he is guilty.

The preponderance of the evidence mandate has not been challenged in court yet, but Hans Bader, an attorney who formerly served in the office at the Department of Education that issued the "Dear Colleague" letter, has cogently explained that it is illegal. See here.

Until this standard is challenged and declared unconstitutional, it poses a serious threat to innocent men wrongly accused of sex offenses on campus. “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,” Prof. Cynthia Bowman of Cornell said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”  She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Prof. Kevin Clermont said that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”

Even attorney Brett Sokolow, probably the most prominent victim's advocate on American 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.

It is fair to conclude that UNC felt obliged to follow the Department of Education's mandate to lower the standard of proof. It could have adopted the Princeton alternative, which strikes a fair balance to serve the interests of both the accused and the accuser.  It could have emulated Cornell, where there was a vigorous debate with prominent voices decrying the injustice of the standard before the school grudgingly accepting the Department of Education's directive. It could have followed Harvard's lead and resisted the Department of Education's change. Or it could have used the legal authorities marshalled by attorney Hans Bader to mount a legal challenge to this unjust administrative fiat.

Instead, UNC not only accepted the change, it embraced it. Amanda Claire Grayson, attorney general of UNC's Honor Court, bluntly explained that the change in the standard of proof will make it easier to find students guilty of sex violations since complainants now need less evidence to prove their case.

Jan Boxill, chairwoman of UNC's faculty executive committee, acknowledged the equally irrefutable point that sexual assault cases are difficult to prove. "It’s difficult for anyone to come to a conclusion because you come down to ‘he said, she said’,” Boxill said. "It will require some careful judgements.” But that difficulty doesn't seem to trouble her because she said the change will make the process more efficient. “It what’s best for our students,” she cryptically observed.

An editorial in the student newspaper, the Daily Tar Heel, applauded "easing up on the burden of proof" because that "will allow for harder crackdown on sexual assault cases." The editorial commended the school for "trying to . . . better protect the victims."

They've got it backwards. The fact that there is little evidence to prove sexual assault cases is never a valid justification to rig the process to make it easier to find the accused guilty. It is, rather, a compelling reason to be ever more vigilant of the dangers of wrongfully punishing an innocent man based on threadbare evidence. 

The voices making themselves heard on this issue at UNC evince a shocking absence of appreciation for the critical balance every civilized society must strive to achieve: on the one hand, we must strive to eradicate heinous sex crimes by punishing offenders, and, on the other, we must insure that the innocent aren't punished with them. The entire emphasis of the UNC extremists is on the first half of that balance; the latter half seems never to have occurred to them.  They blink at principles of fairness and due process that have informed Western Civilization's jurisprudence for centuries, including the principle that was famously expressed by the celebrated English jurist William Blackstone, who 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 adjudication of guilt.  The risk of getting it wrong is why the standard of proof has to be higher than "preponderance of the evidence."

When UNC recently decided that sexual assault cases will be handled by students, faculty and staff on the Student Grievance Committee instead of the student Honor Court, which handles all other alleged student disciplinary offenses, the Daily Tar Heel exclaimed: "In hearing cases of sexual assault, the needs of the victim should be given first priority."  In addition, "the University community must therefore keep a critical eye on the implementation of the new policy to ensure victims are treated fairly by this system."

In fact, the "first priority" in any disciplinary hearing is to do justice. And both the accuser and the accused must be "treated fairly."  The Daily Tar Heel seems less interested in seeing that justice is done than in insuring that every accuser's claim results in a finding a of guilt. By branding accusers as "victims," the Daily Tar Heel evidences an unbecoming gender bias, and does a disservice to UNC's student body, which rightfully expects fairness and impartiality in its college newspaper.

And incidentally, some in the UNC community expressed concerns about the biases of the Student Grievance Committee, but those concerns were quickly swept under the rug. Dean of Students Jonathan Sauls said internal bias in any case is not a bad thing, "it ensures there is a broad array of perspectives.”  To put it charitably, this view is peculiar, not to mention diametrically opposed to principles long cherished by our jurisprudence, where even a whiff of bias is a cause for concern. But, then again, UNC's Student Grievance Committee, we are told, is an improvement over the American judicial system that was forged in the furnace of the common law over the course of centuries. “It’s going to have the elements of the judicial process, but it is also going to try to more effectively hear both sides of the story and give fairer rights to both parties,” said Student Attorney General Amanda Claire Grayson.

If all of this isn't sufficiently disconcerting, then consider the Daily Tar Heel's take on the school's new definition of "consent" -- whether a sober, reasonable person would have known that the complainant was incapacitated.  What's the problem with that?  The Daily Tar Heel's reaction is breathtakingly naive and would be laughable if it weren't for the dangers it poses to presumptively innocent men:  "The definition of consent adopted is limited," it exclaims, "easily manipulated and depends wholly on the perspective of the accused or what the perspective of a rational person in their shoes would be. This is problematic for victims because it makes the definition of sexual assault more subjective."

Unfortunately, multiple readings won't clarify it. First, there is nothing "subjective" about the definition. Second, The Daily Tar Heel seems to think it is appropriate to require men to be mind readers, and for women to have the right to declare that they did not consent, regarardess of the fact that their words and outward manifestations of assent says they did.  Our jurisprudence has long recognized that the only appropriate test for discerning if a party consents is whether a reasonable person in the position of the alleged rapist would have believed that the other party's words or outward conduct manifested consent. Consent can never be properly assessed by examining the subjective, undisclosed desires and whims of the party who supposedly manifested, or didn't manifest, consent.  This is a principle so well-settled that the Daily Tar Heel's editorial only underscores how terribly unschooled in these matters its editorial writer(s) are.

The Daily Tar Heel isn't finished: "Under the new definition, a person can’t give consent if they suffer an intellectual disorder, if they are 'incapacitated' by drugs, alcohol or other impairing substances. . . . . While this is well-worded, one change is not as comforting. The new policy implies that alcohol consumption is not enough to preclude consent."

This is another absurdity scarcely worthy of rebuttal. All manner of substances and conditions can influence and impair one's decision-making capacity. To transmogrify into rape every sex act performed while one or both parties is in that condition would turn eons of settled law, not to mention human custom, on their heads. UNC men by the hundreds would be expelled each school year if this were the rule. The Daily Tar Heel tarnishes whatever credibility it might have had by positing puerile positions like this.

We are certain that there are many mature and rational voices at UNC who understand that these are serious issues worthy of a discussion more elevated than "always believe the accuser" and who are concerned about the critical balance referenced above. Too often, rational voices are deprived of a platform, or they are afraid to speak out. Unfortunately, the extremists will continue to drive the policy at UNC and on other U.S. campuses until the rational voices make themselves heard.


Wednesday, September 12, 2012

Woman charged in deputy shooting case at Red Roof Inn

While there is no excuse for Mr. Lamboy to grab for the deputy's gun, and he certainly didn't appear to be a boy scout, a false allegation of sexual assault started the whole thing.

Tuesday, September 11, 2012

Victim blaming in Arizona, and elsewhere

A judge in Arizona made outlandish comments to the woman who was sexually groped at a bar during the groper's sexual assault sentencing hearing. The judge told her that if "if you hadn't been there that night, none of this would have happened to you." This comes on the heels of a prominent priest's comment that boys who are sexually assaulted by priests are sometimes the seducers.

We can't expect people to be sympathetic to victims of wrongful accusations if we are not allied with victims of sexual abuse. The judge's comments were outlandish and wrong. It's perfectly acceptable to suggest that everyone should be vigilant about risky behavior, but sorry, judge, going to a bar doesn't cut it as risky behavior. And even if the woman had engaged in risky behavior (which she didn't), chiding the victim at a sexual assault sentencing hearing that she should have made better choices is never appropriate. Those sorts of comments only detract from the condemnation due the criminal.

Victim blaming often stems from a moral condemnation about the victim's sexual behavior. The widely accepted view is that this is something only women experience because, after all, men are "supposed" to be sexually promiscuous. In fact, a new study shows that promiscuous young men are viewed as negatively as promiscuous young women by many college students.

A good example of that is found in this You Tube video. It contains portions of an episode of the Steve Wilkos show where the guests were three of the falsely accused men from the Hofstra false rape case. The video was put together by a men's rights activist who also comments on it. We reference the video here not to endorse the men's rights activist's view of the Hofstra case -- we've written extensively about that case here, and our post expresses our views on that case -- but because the video contains actual footage from the Wilkos show, which is chilling.

At around the 3:00 minute mark in the video, the men come out, and are booed by some members of the audience.  At about the 4:50 minute mark, Wilkos asked why audience members booed the young men. An angry young women came to a microphone and exclaimed that she had been sexually assaulted, and that "it's not cool. And if you guys are lying about it, that's not right. I know what it's like. It's not cool."  Her comments were greeted with applause. 
Wilkos is unsympathetic to the men. "Does that sound like a wholesome college experience?" Wilkos asks them, to applause. Later, one of the young men volunteered that they never should have gone to the party, to more applause. A male audience member stands up and says that he's gone to parties, and they don't have to end up having sex with a girl. The audience applauds again.

Wilkos says he's "not trying to be a prude," but the story of their encounter was "creepy." And "maybe if you held yourself to a higher level of conduct . . . ."  And "doesn't that sound a little sleezy?" Wilkos then takes offense that one of the men was videotaping the encounter (the videotape, incidentally, is what led to their freedom), and asks one of the young men if he'd like it if someone did that to him. The audience applauds again.  Another audience member stood up and expressed doubt about their innocence.

Finally, a young man stood up and said that he thought it was despicable that the men were booed, and that their personal lives were their business. 

The Wilkos video is difficult to watch. Part of the audience's reaction seems to stem from the fact that Wilkos apparently didn't explain, in the clearest terms possible, that the Hofstra accuser not only recanted under oath but the circumstances of that recantation. It seems many in the audience weren't completely sure if the young men were truly innocent (they were), which likely accounted for some of the applause at their expense.  But it seems equally clear that at least part of the audience's disdain for the men stemmed from the their views on the men's sexual conduct.

In contrast, when false rape victim Brian Banks recently appeared on the Tonight Show with Jay Leno, Brian related his false accuser's famous "let bygones be bygones" comment, and the audience audibly groaned. Mr. Leno treated Brian as a survivor and did not chide him as a moral miscreant for his sexual rendezvous with his false accuser in a high school stairwell. The audience's reaction mirrored Mr. Leno's respect for Brian. See here.

It is one thing to urge people not to engage in risky behavior. It's quite another to chide a victim at her assaulter's sentencing hearing for making bad choices when she didn't, or to insist that men falsely accused of rape should have treated their false accuser better.

Rape charges dropped because accuser lied about important matters surrounding the incident

Rape charges against a man were dropped because the accuser lied about important matters surrounding the alleged crime. Based on the news story below from the Buffalo News, the comment by assistant district attorney John A. Zucco -- that the revelations about the accuser's lied didn't affect the truth of the claim of rape -- was irresponsible in the extreme.  Perhaps Mr. Zucco has information that the story doesn't report, and he is free to set the record straight on this thread. Based on the news story, we don't see how Mr. Zucco would know that this accuser was telling the truth. Was this charge brought because the accused has sex offenses on his record?  Was there an assumption that "once a rapist, always a rapist"?  Here is the news story:

LOCKPORT - Jon C. Martin, who faced a possible sentence of life in prison as an alleged sexual predator, was freed from Niagara County Jail last week after his accuser was unmasked as a liar.

Martin, 38, pleaded guilty Wednesday to a drug misdemeanor and was sentenced to time served - more than eight months since being accused of raping a woman in his home on the night of Dec. 20-21.

The woman consistently denied that she knew Martin well before that night, claiming she had only a "minor relationship" with him, according to Assistant District Attorney Robert A. Zucco. She also denied buying drugs from Martin or going to see him that night to obtain drugs.

But text messages and voice mails left on Martin's cellphone showed that the woman's statements were false, Zucco said.

The evidence was on Martin's phone, which he obtained from a property locker at the Niagara County Jail, Assistant Public Defender Christopher A. Privateer said.

"We weren't sure we were going to be able to use it to get the district attorney to give us a fair disposition. We thought we were going to have to use it at the trial," Privateer said.

However, County Judge Sara Sheldon Farkas ordered Privateer to turn the phone over to Zucco, who said the messages showed the woman was lying.

"These messages confirm the fact that the complaining witness lied at the grand jury, the preliminary hearing and the suppression hearing," Privateer said.

"It puts us in an untenable situation. She's lied about some crucial details," Zucco said in court. "It is now impossible for us to go forward with the charges in the indictment."

Thus, the charges of predatory sexual assault, first-degree rape and first-degree sexual abuse were dropped, and Martin was allowed to plead guilty to seventh-degree criminal possession of a controlled substance.

Zucco said the woman went to Martin's home that night to barter her cellphone for a supply of the painkiller hydrocodone, or to obtain forgiveness for past drug debts.

Zucco insisted the revelations didn't affect the truth of the claim of rape, but the woman would be deemed an unreliable witness in court.

"The physical evidence did not support the claim the complaining witness made against my client," Privateer argued. "My client continues to maintain there was no rape at the time of these transactions."

Zucco said the plea deal involved a pledge not to press further drug charges against Martin. He said the admissions of drug activity on the phone messages were vague.

Martin, who was convicted of sex offenses in Illinois and Georgia, and is serving a 15-year sentence for rape in the former state, will have to register as a sex offender in New York. Farkas is to rule Monday on what level of sex offender he will be considered.

Monday, September 10, 2012

Catherine Tratola False Rape Video

I'm sure just about everyone here is familiar with the following video. If you want to see just how easy it is to make a false allegation of rape, and how quickly it can be done, watch. With two witnesses present she exhibits no hesitation or remorse. Luckily the man was recording video and not just audio.

Military Appellate Court Reverses Rape Conviction

Recently, the Navy Marine Corps Court of Appeals reversed a Marine's conviction of rape.  The Marine was sentenced to 24 months in prison and a bad conduct discharge.  A reversal like this is quite rare, as the Appellate Courts are loathe to substitute their judgement gleened from reading a record of trial to those panel members who saw the witnesses and were able to judge their credibility. 

The facts in this case as portrayed in the opinion leads one to wonder why a prosecutor would prosecute this Marine in the first place.  One possible explanation is over the past two years, the Department of Defense has faced an onslaught of criticism in how it prosecutes sexual assault offenses through the media, Congress, class action lawsuits, and a documentary that bemoan commanders who sweep sexual assault offenses under the rug and leave victims with little relief.  The DoD has responded by taking steps to increase the number of prosecutions

Another question is how on earth could a court martial panel convict a Marine under the facts portrayed in the opinion?  It is important to understand the UCMJ court martial process.  Each unit has a General Court Martial Convening Authority who is typically the Commanding General of the installation.  These individuals are responsible for addressing issues regarding the good order and discpline of the members under their command, such as sexual assault awareness training, vehicle safety, DUI's, weapon safety, physical training safety, etc.  They are also responsible for hand selecting court martial panel members who typically serve one or two years on a special detail who determine the guilt and sentence of Servicemembers who face court martial.  The panel members know that the charges were reviewed by an Article 32 hearing officer who made a recommendation regarding the charges, then sent to the General who, after reviewing the charges with the Staff Judge Advocate, sent them to the panel for trial. These court martial panel members are usually senior officers and enlisted who know what the General expects of them; some of them are rated by the General on their Officer evaluation reports. 

Having defended a fair number of Servicemen of sexual assault related charges, I believe that this Marine's failure to take the stand and deny the allegations led to his conviction.  I believe that his sentence of only two years in prison and a bad conduct discharge supports my opinion because certainly a Marine who perpetrated such a vicious rape as described by his accuser should have received at least 10 years in prison and a dishonorable discharge.  It appears to me that the there was reasonable doubt, but the panel members felt compelled to convict for reasons other than the admissible evidence in front of them that was highly questionable.

This opinion has been covered by other blogs, here, and here.  In a post by Jim Clark, an instructor who trains Army prosecutors and defense counsel at the The Judge Advocate General's School, Mr. Clark criticizes the Court for falling "prey to a number of rape myths" and for being affected by cultural cognition. 

Hopefully, readers of COTWA understand that the military justice system is an environment that is ripe for our Servicemen being wrongly accused and convicted.  This Marine's prosecution flies in the face that the military is soft on sexual assault. Thankfully, the appellate courts have the authority to correct a wrongful conviction when it occurs.  Unfortunately, the Serviceman usually has served a significant amount of time in prison before the appellate court can right the wrong.

Friday, September 7, 2012

Task force slams Boston University hockey team's 'sexual entitlement'

This is a follow-up to our report on Max Nicastro, one of two Boston University hockey players to be accused of sexual assault during the last school year. The charges against Mr. Nicastro were dropped by the district attorney after what seemed to be an exhaustive investigation, and there is no basis, of which we are aware, to conclude that he committed sexual assault. The other player pled guilty to sexual assault. 

A task force of professors and trustees from the university was charged with investigating the hockey team's culture, and it issued its report yesterday. The report said that the team has an "elevated social status" on campus, and the task force is shocked -- shocked! -- to find that frequent sex without a relationship or commitment is going on in hockey players' dorms!

The exact quote from the news story about the task report: ". . . the task force found that the team's 'elevated social status' on campus led to 'frequent sexual encounters with women absent an emotional relationship or ongoing commitment.'"

In fact, it would be more shocking to find that this wasn't the case. To suggest that this morally problematic culture is somehow unique to the Boston U men's hockey team, or that it isn't the sine qua non of the so-called "hook-up" culture on campus, is more than a stretch.

One of the responses to the task force's report will be to open a sexual assault center on campus and to institute of a sexual assault prevention education program for the hockey team.

We noted last June that Mr. Nicastro's case was rife with assumptions of guilt from the outset by some observers. We noted that intolerance of rape is a noble impulse but assuming the guilt of a man on the basis of an accusation alone is not.  Now we are wondering if the entire hockey team is being maligned because of two allegations of sexual assault -- the one that resulted in a guilty plea, and Mr. Nicastro's case.

Did the task force conduct a study to tie the culture of frequent sex without commitment or relationship to an enhanced risk of sexual assault, or did it suggest a link for the sake of making it appear that Boston University is doing something about sexual assault on the men's hockey team?

The news report about the task force:

Thursday, September 6, 2012

Read our three part series on the University of Montana's mandatory sexual assault video series

Part I: The University of Montana deprives men of their right to a fair hearing in sex cases

Part II: The University of Montana says sex after 'guilt tripping' is assault, and why that is wrong

Part III: The University of Montana's mandatory video series teaches that rape is normalized

Part III: The University of Montana's mandatory video series teaches that rape is normalized

University of Montana streaker
On the video tutorial that all University of Montana students are required to watch, the students are taught about "America’s rape-prone culture.” One of the videos says:

“Many scholars warn of a rape-prone culture where prevalent attitudes, norms, and behaviors, excuse, minimize and even encourage sexual violence" (Video Four – Myths & Facts)

With the sweeping stroke of a broad brush, such attitudes demonize young men and reduce them to caricature.  Jessica Valenti, a once-prominent gender blogger and one of the purveyors of the maleness-is-broken crowd, has written: "Rape is part of our culture. It's normalized to the point where men who are otherwise decent guys will rape and not even think that it's wrong. And that's what terrifies me."

The attitude that rapists are just regular guys going to school doesn't ring true to the vast majority of just regular guys going to school. "Otherwise decent guys" don't so easily forget their decency. In contrast to the "even-decent-guys-rape" meme, feminist gadfly Amanda Marcotte recently wrote about the influential Lisak/Miller study that chronicled the typical rapist: he is not the otherwise decent guy next door, or just a regular guy going to school. He is a narcissistic man who enjoys forcing himself on women, a deviant whose attitudes are not "normalized" but are those of a social outlier. See here. Rapists on campus, as it turns out -- and which everyone other than the zealots already knew -- comprise only a small percentage of the male population, see here, and they account for 9 out of every 10 rapes. See here

Alleged sexual assault at University of North Florida never happened

A UNF student who claimed she had been sexually assaulted at the new UNF Wellness Complex has admitted she made up the story.

Wednesday, September 5, 2012

Part II: The University of Montana says sex after 'guilt tripping' is assault, and why that is wrong

According to the video series that all students at the University of Montana are required to watch in order to stay enrolled -- including the ones who will adjudicate sexual assault hearings -- the following is taught:

“The overwhelming majority of assaults, 82%, are perpetrated by acquaintances, friends, or family members who use coercion to assault. Coercion – pressuring, guilt tripping, intimidating – can be just as forceful and physically disempowering as physical violence.”

Punishing consensual sexual behavior obtained by supposed emotional or verbal “pressuring,” typically called “sexual coercion,” has its roots in an extremist tradition of rape advocacy that encourages purported victims to engorge the definition of “rape” to include all manner of alleged violations that are not “rape.” The problem is that it sanctions men not for forcing themselves on, or physically threatening, women, but for doing nothing more than nagging for sex. Men are being punished for doing precisely what, for decades, society has been telling them they’re supposed to do — ask for sex. But because they asked in way that was too boorish, too overbearing, or too insensitive, for the first time ever, men are being held responsible for sexual misconduct even though their “victims” have reasonable alternatives to engaging in the sex act but choose not to exercise them.

Tuesday, September 4, 2012

If I could ask Russlyn Ali of the Department of Education just one question . . . .

On college campuses across America this week, young men are being taught the necessity of unambiguous consent before engaging in any sexual activity. No sane and rational person disputes that consent needs to be clear and unambiguous.

For example, no one would say that a young man should proceed if he is only 50.1% sure that the young woman consented.

Then why is it acceptable for a college disciplinary board to expel a young man for sexual assault when it is only 50.1% sure that he is guilty?

Oh, tell me, that's different, right? Please, please try and tell me that's different.

Check out our back to school coverage: today: Part I -- how the University of Montana depives men on campus of a fair hearing. Tomorrow, Part II.

Part I: The University of Montana deprives men of their right to a fair hearing in sex cases

To mandate that the trier of fact be taught that there is virtually no possibility that a man accused of sexual assault might be innocent is an affront to the due process rights of the presumptively innocent.

Due process requires that criminal hearings in our courts and disciplinary hearings on the campuses of our public universities be conducted with fairness by impartial adjudicators free of the taint of bias.
Imagine if the members of a jury pool for a rape trial were required to attend a presentation by experts on rape. Imagine further that the experts made it abundantly clear that persons accused of rape are almost certainly guilty, that it is a “myth” that people lie about sexual assault, and that “only two percent of people actually lie about a sexual assault.”  And imagine further that the members of that jury pool are required to take a test on the information related by the experts, and to keep taking it until they got all the questions right. And, finally, imagine that the jury for the sexual assault trial is selected from this jury pool.  Would there be any question that this procedure violates the due process rights of the person on trial?

You don't have to imagine it. They’re actually doing it at the University of Montana.  All students attending the University of Montana -- including the ones who will adjudicate sexual assault hearings -- are required, starting this semester, to watch a video tutorial on sexual assault consisting of seven short videos (the videos are found here:, then to pass a quiz based on the videos with a score of 100 percent before they can register for second semester classes. The videos contain much information about sexual assault that is helpful, but they also contain unnecessary and controversial assertions that are the staples of extremist and politicized gender advocates and that tend to reduce young men to caricature:

Monday, September 3, 2012

Tomorrow: Our back to school coverage begins: Part I: Men accused of sexual assault at the University of Montana are being denied a fair hearing

Police won't prosecute woman for false rape claim because it isn't in her best interests

A SCHOOLGIRL who claimed she was sexually assaulted at knifepoint has admitted this morning she made the report up.

Police have stated the alleged incident at Edithvale beach on Tuesday evening is now being treated as a false report.

"Information was provided to detectives this morning which has revealed that no offence occurred," a Victoria Police spokeswoman said.

"Police would like to reassure the community that there are no safety concerns."

Victoria Police said charges will not be laid against the 18-year-old Aspendale year 12 student.

"Detectives have concerns about the welfare of the young woman and are assisting her and her family," the spokeswoman said.

"Victoria Police won’t be laying charges in relation to the report as we do not believe this is in the best interests of the young woman involved."

Sunday, September 2, 2012

Flashback to Time Magazine April 25, 2006: Writer Jeninne Lee-St. John on Duke lacrosse--wronger than wrong

There's a specter looming behind the Duke lacrosse scandal. The notion of a 27-year-old black woman, who is a student at a historically black college and a single mother of two, being hired as an exotic dancer for — and then allegedly raped by — generally privileged, younger white men conjures up memories of that classic American sex story: the pretty female slave being summoned up to the big house to sexually satisfy the master.

Saturday, September 1, 2012

Priest's comment that in 'a lot of [priest abuse] cases, the youngster — 14, 16, 18 — is the seducer' was offensive and inane, but it highlights that we tolerate a double-standard when the rapist is an adult woman

The priest's comment is found here: The comment engendered outrage, head scratching, and disgust -- and rightly so.  (I am not sure why he included 18-year-old adults among the boys.)

We would be equally outraged if the priest had said that we shouldn't necessarily be concerned about "protecting minors from the consequences of their willing participation in sexual misconduct." Or if he said "a minor who voluntarily engages in sexual intercourse is not necessarily a victim of sexual abuse."

Yet, we don't blink when a judge says exactly those things about teen boys statutorily raped by adult women.

When teen boys are statutorily raped by an adult woman and he happens to impregnate her, he is liable for child support if the statutory rapist decides to have the baby (which means, his parents will have to pay for their son's child if they want to keep him out of jail). In that case, the law has no problem in imposing an obligation on the boy because, the feeling seems to be, he really isn't a "victim-victim," because it isn't really "rape-rape."  In that case, unlike the situation where a female victim of statutory rape decides to have an abortion, the taxpayers don't have any obligation to pay for the result of the boy's victimization. That responsibility is his, and his alone.

In the case of County of San Luis Obispo v. Nathaniel J., 57 Cal. Rptr. 2d 843 (Ct. App. 1996), a thirty-four-year-old woman had sex with a fifteen-year-old boy and became pregnant. The woman was convicted of unlawful sexual intercourse with a minor -- commonly called statutory rape. She decided to have the child, and after she gave birth to her daughter, she received Aid for Families with Dependent Children, and the county sought reimbursement for the AFDC payments from the father, the 15-year-old boy. The court held that the boy, a statutory rape victim, was financially liable for the child that resulted from his victimization.

Why? Because California courts charged with interpreting California's statutory rape laws have recognized that "a minor . . . who voluntarily engages in sexual intercourse is not necessarily a victim of sexual abuse." In re Kyle F., 112 Cal. App. 4th 538, 543, 5 Cal. Rptr. 3d 190 (Cal. Ct. App. 2003).
The Obispo case is not alone: Other state supreme courts and several state appellate courts have ruled that male statutory rape victims can be financially liable for supporting a child resulting from their criminal victimization.

In one case, a 15-year-old boy who was statutorily raped was held to be "not an innocent victim of [a female adult's] criminal act, and the law should not excuse him from his responsibility to support his biological child. Oklahoma's public policy mandating parental support of children outweighs any policy of protecting minors from the consequences of their willing participation in sexual misconduct with adults." Stringer v. Dep't of Human Services ex rel. Baker, 2004 OK CIV APP 97; 104 P.3d 1132 (2004).

There are, of course, no reported cases where female victims of statutory rape have been held to a similar support obligation.

The policy underlying these cases is peculiar and troubling.  A statutory rapist not only victimizes a boy once, but she is permitted to use the long-arm of the law to impose financial obligations on him for 18 years. The matter-of-fact language of some of the jurists in these cases who impose adult obligations on children just because they are male and their attackers are female is even more disconcerting.  There is little of the outrage we all rightly feel when a priest molests a young man. Instead, it is the boy who is treated as a wrongdoer. Are adult male statutory rapists really "worse" than adult female statutory rapists?  Do we really want to go there?  The language in the cases where boys have been statutorily raped suggests that at least some judges think there are victims and there are victims -- and some victims are more worthy of society's outrage, depending on the gender of their molesters.  And that should concern all of us.