Rape is a criminal allegation that is easy to claim and increasingly difficult for a defendant to disprove. For decades, the crime of rape has been known as the easiest criminal allegation to make by the alleged victim and the hardest to disprove by the defendant.
In the 1960s, the victims of this brutal crime were able to take advantage of significant changes in the law that made it easier to obtain convictions and justice. Unfortunately, these changes also made it easier for those who were falsely accused of rape to be convicted as well. Adding to the defendant’s difficulties is the controversial “Rape Trauma Syndrome,” a psychological theory that has been rejected by behavioral science. Unfortunately, this idea is still being used by prosecutors and junk science witnesses as so-called evidence in cases alleging the crime of rape.
A series of bias laws are making it easier to obtain convictions.
Courts have long known that rape is an easy allegation to make but one that is hard to disprove. In fact, the biggest threat of being falsely accused of a crime was that of being accused of rape (until child molestation became a significant national issue, flooding the legal system with cases). Courts perceived the potential threat of false allegations of rape and fashioned jury instructions to inform members of the jury that such allegations were easy to make by the complainant but difficult for the defendant to disprove.
Today, in most states, this jury instruction is no longer allowed to be given as a result of changes in the law; changes that also mandate giving a very different set of instructions.
In many states, the judge now informs the jury that:
- an allegation of rape does not require any evidence of corroboration;
- there is no requirement for medical evidence;
- there is no requirement for DNA evidence; and
- there is no requirement for a second witness.
In short, the only requirement for a conviction is the bare allegation made by a complainant. Even the manner in which the jury is selected is tainted with this attitude that evidence does not matter. In many states, prosecutors can demand that during the selection process, each prospective juror must agree that he/she would not require corroboration of a crime. If the juror disagrees with this demand, he/she can be excused.
Rape Shield Laws
Consensual sex is still legal. Being able to prove consent, however, has become more difficult for the defendant. For example, if a man meets a women at a bar and has sex with her that night, and later she claims that she was raped, the man used to be able to introduce evidence to help establish a pattern of consensual sexual behavior on the woman’s part. That might be the testimony by witnesses that the women routinely comes to the bar every night, engages a man’s companionship, and then goes home and has sexual relations. Such evidence is relevant to show the sex on the night in question was consensual. But it’s not admissible.
Victims’ rights advocates were rightly concerned with legal strategies that put the victim’s personal life on trial. Unfortunately, highly relevant evidence that can protect an innocent defendant is no longer allowed because politics has obscured justice and powerful lobbies have helped to pass what is now called “rape shield laws.” Under the rape shield laws, a defendant in today’s courtroom is forbidden from introducing the prior sexual conduct of the complainant on the issue of consent. Curiously, no one has successfully shown that the evidence of prior sexual conduct is not relevant in determining consent.
While the rape shield laws were intended to encourage more women to come forward and testify, it simply has made it easier to falsely accuse and convict an innocent individual.
Many States also allow the prosecution to introduce allegations made by other women allegedly assaulted on previous occasions by the defendant to prove that a rape occurred in the currently charged offense. In these circumstances, no corroborative evidence is required to introduce these alleged crimes. There does not have to be a conviction. Nor does there have to exist a criminal charge or even a prior police report. The uncorroborated word of a single individual is sufficient.
As you can see, many state legislatures are creating new victims by keeping out the sexual history of the complainant on the issue of consent, and allowing into evidence the sexual history of the defendant. This is shear politics and not based upon relevancy or fair play. This kind of legislation is systematically making it easier to obtain convictions, and while those guilty of rape should be convicted, those who are falsely accused should be allowed to defend themselves adequately in court.
Rape Trauma Syndrome
The members of the jury are the triers of fact. They hear the account of the complainant, and if the defendant elects to testify, they hear the testimony of the defendant. This is the classic “she said, he said” situation in which jury members must decide what they believe is the truth. In an attempt to provide greater credibility to the complainant, and thereby tipping the scales of justice in favor of conviction, Ann Wolbert Burgess and Lynda Lytle Holmstrom wrote a psychological description of what they termed the Rape Trauma Syndrome in 1974.
A syndrome is a constellation of symptoms that when presented by an individual leads to a diagnosis of an illness. First of all, the Rape Trauma Syndrome is not really a syndrome because no diagnosis of rape can be made from the syndrome. Secondly, there was no scientifically controlled study done by behavioral science professionals that supports the theory of Rape Trauma Syndrome.
The fact is that this highly questionable theory is not a recognized syndrome in the DSM-IV-TR. The DSM-IV-TR or Diagnostic and Statistical Manual of the American Psychiatric Association is the current group of recognized diagnoses by behavioral sciences professionals. It includes all of the current, recognized diagnoses and syndromes.
Rape Trauma Syndrome is not in the DSM-IV-TR because it was rejected by the behavioral science community of psychiatrists, psychologists, clinical social workers and others.
One reason Rape Trauma Syndrome is unscientific is that Burgess and Holmstrom assumed that any allegation of rape was true and, on that foundation, devised an explanation for whatever the alleged victim might say or do. It seems their “rape trauma” explanations do not constitute a description of symptoms of an illness, but rather are ways of manipulating evidence in the favor of a complainant.
For example, if a woman recants her story and admits that she was not raped, the prosecution can put a supposed rape trauma expert on the stand to testify that this behavior was “consistent with” being raped. The implication is that the original rape story should be believed. This demonstrates why we refer to the Rape Trauma Syndrome as a confirmatory bias based description. What we mean is that the “syndrome” demonstrates a built-in bias toward confirming that a rape happened. In a process like this, all symptoms lead to the conclusion that “IT HAPPENED.” “Consistent with” testimony from prosecution experts usually illustrates this confirmatory bias.
Our office has never witnessed a so-called Rape Trauma Syndrome expert testify that the complainant’s behavior is also consistent with false allegations of rape. This is true, even though it is widely known and accepted by legitimate researchers in the behavioral sciences. Other descriptions found in the Rape Trauma Syndrome explain that if a woman immediately reports, such action is “consistent with” the typical reactions of a rape victim.
Curiously, this same so-called syndrome explains that if the woman waits for years to report, that is also “consistent with” the typical reactions of a rape victim. The Rape Trauma Syndrome folks also explain that if a women is flirtatious, such behavior is “consistent with” the typical reactions of a rape victim. But if the women is withdrawn, that, too, is “consistent with” the typical reactions of a rape victim. Should the woman cry when testifying, such behavior is “consistent with” the typical reaction of a rape victim. But if a woman doesn’t cry, that is also “consistent with” the typical reaction of a rape victim. The list of descriptions covers almost every conceivable behavior that a human being might have over the course of a lifetime. As you can see, this makes anybehavior evidence that supports the charges of an alleged rape victim.
Burgess and Holmstrom’s assumption that all allegations of rape are true is not only unscientific, but dangerous. Such thinking is contrary to the U.S. Constitutional principle that a person is innocent until proven guilty beyond a reasonable doubt.
Rape Trauma Syndrome is not science but the courts in many states have given it legitimacy by allowing the testimony of supposed experts to be heard and by allowing the prosecution to misuse the word “syndrome.” This pseudo-evidence makes it easier to mislead the jury in order to obtain convictions, not just of those who are guilty, but those falsely accused as well.
When an individual is falsely accused of rape, the defenses fall into three basic categories:
- The defendant did not have sex with the complainant. This means that either the complainant is lying about having sex, or the complaint has misidentified the assailant.
- The defendant had sex with the complainant but the sex was actually consensual.
- The defendant had sex with the complainant and the defendant had a reasonable good faith belief that the complainant consented, whether or not there was actual consent.
Because the crime of rape has become a political hot button, many state legislatures have passed laws which make it difficult for anyone falsely accused of rape to introduce evidence of any of these three defenses. Being concerned with the rights of someone falsely accused of this terrible crime doesn’t make politicians popular in the poles. That is why the fate of the falsely accused rests in the trial skills of the defense team to overcome a biased system.
What about Sentencing?
There is only one thing worse than being falsely accused of rape: Being falsely convicted of rape.
As a convicted rapist, a person falsely convicted faces registration as a sex offender for the remainder of his life. In may states, the sentencing laws have become much more restrictive and severe. For example, in California the law used to state that a defendant could be sentenced up to eight years on one count of rape, with two years for each subsequent count. That law was changed to punish the convicted with an eight-year sentence for each count, and all counts to be served consecutively. In other words, two counts of rape can be punished with a 16-year prison term instead of an eight-year, plus two-year add-on, for a total of 10 years. More disturbing is the prosecutor’s ability to turn a single alleged rape into numerous counts because different sexual acts during one encounter can now be considered separate crimes.
For example, the falsely convicted could be sentenced to eight years for intercourse, eight years for rape with a foreign object (e.g. a finger), and eight years for sodomy if the jury finds the defendant guilty. If the complainant alleges that the accused stopped the rape and then started over, each new act becomes an additional count. Extreme sentences of 30 or more years have become commonplace as a result of these changes.
Finally, someone convicted of this crime was once given 50% credit (half off) on his sentence for good behavior and doing a job in prison. Many States have now reduced credit for good behavior/work time to only 15%. Think about that. That is the equivalent of increasing actual sentences by 70% just by changing the method by which good time/work time is calculated. Where does that leave us? Because of the nature of the crime and the victims who feel that they did not obtain justice, the rape complainant has an army of lobbyists pressuring the different state legislatures to pass laws that favor the alleged victim at the expense of the defendant’s rights.
Those who are falsely accused rarely have representation when new laws are being proposed. Even if the falsely accused do have a few lay spokespersons attempting to educate their state legislature, the typical politician does not want to become involved with such an explosive issue. There are few people in office willing to risk a political career for a few people falsely accused of rape.
The only way to overcome judicial and legal inequity is with a thorough, professional investigation and with evidence presented by a highly skilled defense team. It is a matter of educating the jurors so that they can make informed decisions about what is and is not true in an allegation of rape.