Thursday, May 29, 2008

The 'Jane Doe Rape Kits' are dangerous to innocent men

To protect the innocent, men should be alerted when their semen is being preserved -- with their tax money -- to possibly be used against them years later in a criminal trial.

A rape law will go into effect next year that could hurt innocent men.

Beginning in 2009, states will have to pay for so-called "Jane Doe rape kits" to continue receiving funding under the federal Violence Against Women Act, which provides tax dollars for women's shelters and law enforcement training. These kits will be used to collect evidence for use by police and prosecutors. It consists of microscope slides, boxes and plastic bags for storing skin, hair, blood, saliva or semen gathered by a specially trained nurse. The victim's injuries are also photographed. The "Jane Doe" rape kits are sealed with only a number on the outside of the envelope to identify the victim. Police do not open the envelope unless the victim decides to press charges -- possibly years later.

The "Jane Doe" rape kits may, indeed, serve a legitimate purpose of giving women who are reluctant to make a formal rape claim the ability to take a sort of half-step -- to preserve evidence without actually making a report.

But one thing is certain: the new law does not adequately protect innocent men because it could leave them at a significant evidentiary disadvantage. It is troublesome that we are allocating state resources to help a woman prepare a possible criminal case against a man who is not even advised that he's been accused of rape , then we allow her to sit on the evidence, possibly for years, without giving the man a similar opportunity to preserve evidence.

Why is it troublesome? Simple. Every lawyer knows that one's ability to defend against most claims diminishes with the passage of time -- memories fade; evidence is lost (e.g., if the man and the woman were involved in a consensual relationship, there may be no evidence to prove it after several years -- he probably deleted any voice mails or emails tending to show a consensual relationship); and alibi witnesses disappear and sometimes die. After having sat on the evidence for years, at trial, the woman might paint a vivid picture of a rape; in contrast, if the man is innocent, the most he might be able to honestly say is, "I would never rape a woman, but I have no strong recollection of that night." He may have no recollection whatsoever of where he was on the night in question; whether he was drinking; whether she was drinking; where they were prior to or after the sexual encounter; what they discussed prior to or after; or with whom they spoke prior to or after. In short, he may recall nothing whatsoever about that night and at trial would be like the warrior of old entering battle stripped of his shield and sword.

Is that fair to an innocent man? The question scarcely survives its statement.

The only fair and equitable solution is this: when she preserves the evidence, the man should be promptly alerted that he has been accused of a rape so that he, too, can preserve evidence crucial to defending against this most vile charge. This would do nothing more than put him on an equal footing with his accuser. Otherwise we allow the woman, and the state, to ambush him with a rape charge years after the fact -- years after his ability to fairly defend has been diminished, perhaps fatally.

In other contexts, the law does not regard as "fair" similar purposeful prosecutorial delay that prejudices the accused. If the state waits to indict a man in order to obtain a tactical advantage, and if such delay prejudices a man's ability to fairly defend himself, his due process rights are said to be violated and the charges are dismissed. Why would this situation with the rape kits be any different since we are allowing -- indeed the state is paying for -- a woman to do that very thing? And lest there be any doubt, although the state decides whether to bring charges, in so-called acquaintance rape scenarios (the vast majority of rapes fall in that category), the prosecution's case rests on the word of the accuser. There often is no other evidence of the alleged crime.

What is needed is a serious dialogue that includes discussion of the innocent, not a witch hunt to jack up rape conviction rates. Again, removing false accusations from the public discourse about rape, as the sexual assault counseling industry has done, and blinking at the victimization of falsely accused men, is not merely dishonest but morally grotesque. It is as hurtful as the ludicrous assertion that “she asked for it.”

And one other point deserves serious discussion: Should the state be in the business of countenancing delay when it comes to rapists on the loose? If there really was a rape -- the second most serious of all criminal offenses short of murder -- why are we not insisting that the criminal be apprehended? Would the state countenance delay for a robber if it had the evidence necessary to identify him? A burglar? Of course not. Are we saying that rapists, most of whom are of the acquaintance variety, are not as serious a threat? Are we not elevating the fears, the concerns and the emotions of purported victims over the public's safety? Shouldn't we be telling victims they must report, not giving them excuses not to? With the rape shield laws, the availability of rape counselors -- often paid for, in part, by the accused man's tax or tuition monies, and the sensitivity training police receive with respect to women who claim they have been sexually assaulted, there is little more, if anything, that we, as a society, can do to encourage women to "come forward." Why should we coddle them with "Jane Doe rape kits" if there really is a rapist on the loose? And what if he rapes another woman, all because we allow evidence that could have put him away to be kept from the police?

In any event, when you cast your net too wide, as this law does, you will snag innocent men. Some in the sexual assault counseling industry have no concerns about this. But some of us are very concerned about not convicting the innocent, even though they happen to be men, and even though the alleged crime is rape.