Wednesday, May 12, 2010

Innocents at risk: states extend statutes of limitations for rape

Attorney Wendy Murphy doesn't think much of false rape claims: "I never, ever met a false rape claim, by the way. My own statistics speak to the truth." And, about the Duke lacrosse players before they were declared innocent by the state's attorney general: “These guys, like so many rapists—and I’m going to say it because, at this point, she’s entitled to the respect that she is a crime victim.” See Durham-in-Wonderland, at Dec. 31, 2006, 12:01 EST. (See it here.) 

Read more after the jump

It is, therefore, no surprise that Murphy doesn't care much for statutes of limitations for sex offenses. Her opinion seems to be based on the premise that false rape claims are a myth.  She recently said:  "Someone needs to confront the head of the judiciary committee in (every) state legislature where the time limits are short and ask only one question:  'Why do you want a child rapist to EVER stop looking over his shoulder, wondering if the cops have finally caught up with him?'"

Ms. Murphy's concerns about the statute of limitations would be wholly valid, of course, if every person charged with rape were actually guilty.  As we chronicle on this site on a daily basis, that simply is not the case. Ms. Murphy's failure even to consider the possible effect of a lengthy statute of limitations on persons falsely accused of rape invalidates her opinion.

We are, however, stranded in an era when no effort to "get tough on crime" is tough enough for some people, so Ms. Murphy's opinion on the statute of limitations seems to mirror a national consensus. In recent years, in state after state, legislatures "have adopted varying extensions to their criminal statutes of limitations for cases of sexual assault." Some states have eliminated time limitation for bringing rape charges of varying kinds altogether.  Depending on the state, there are special rules for extending the rape statute of limitations for claims involving minors, for claims where the identity of the perpetrator is established by DNA, for claims involving authority figures, and on and on it goes.  See, e.g., National Conference of State Legislatures, and here.

But open-ended extensions or eliminations of statutes of limitations for purported cases of rape and sexual assault can pose grave problems for innocent persons wrongly accused of those crimes.  With an open-ended statute of limitations, there is nothing to stop a woman from coming forward and accusing a man of an alleged rape that occurred 29 years ago.  Think it doesn't happen?  Earlier this year, a woman claimed she was raped while she was still a minor in a Penn State campus residence hall 29 years ago by a man she knew. (Under applicable state law, when the person raped is a minor, the statute of limitations can allow the case to be prosecuted as long as it’s reported before the victim turns 50.)

Read and re-read the words of the University police spokesman: “[O]bviously we’re still treating it as if it recently occurred.” Did you get that?  If the man she accused had been a senior at PSU in 1981, he would be approximately 50-years-old today. Imagine the police coming to your door and arresting you in full view of your wife, your own college age children, and your neighbors for a "crime" that supposedly occurred while you were in college 29 years ago.

With almost other-worldly understatement, the district attorney did not dismiss the allegation out-of-hand, but said: “It can be a bit tricky.”  See here. We don't know what happened in the PSU case, but the fact that police feel the need to treat such alleged crimes "as if [they] recently occurred" poses grave problems for the falsely accused precisely because these alleged crimes didn't recently occur.

Arresting a man for an acquaintance rape he allegedly committed on a certain Tuesday in July of 1981 places him at a severe evidentiary disadvantage.  The passage of time would be especially problematic in cases of acquaintance rape where consent is at issue; that is, where the man knows he dated and was intimate with the woman but just can't recall the night in question.  The accuser might claim to remember the alleged incident in vivid detail, attributing her clarity to the supposed trauma of the event.  In contrast, the innocent man likely has no recollection whatsoever of where he was on the day in question -- whether or not he was with her; 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.   He likely long ago discarded any tangible proof that could show either that the two were lovers, or that could establish an alibi for the particular night at issue.  He likely discarded any calendars he used as well as any invoices, receipts or credit card statements to show he was out of town or dining or shopping elsewhere at the time.  Any witnesses who might have established either an alibi or could say that the couple behaved consistent with a claim of consent likely either have died, disappeared, or wouldn't have any better recollection than the accused.

There is, in short,virtually no possibility that the man would be able to say anything more than "I know I didn't do it, but I don't remember anything about the night in question."  If brought to trial, he would be like the warrior of old entering battle stripped of his shield and sword.

Every lawyer knows that one's ability to defend against most claims diminishes with the passage of time. Memories fade; evidence is lost, witnesses disappear.  “The statute of limitations is more important in sex cases than really in almost any other,” said Oregon defense attorney Gail Meyer, “and the reason is: innocent law abiding citizens engage in sex, all day long … And that’s not so with other crimes. Innocent law-abiding citizens do not engage in burglaries. If you find some one’s fingerprint on the inside of a stranger’s house that’s a pretty good indication they shouldn’t have been there. And if they were to be prosecuted 25 years later, it would be difficult for the defendant to suggest that he had a reason to be in some stranger’s house. …. If you eliminate the limitation period entirely, you are robbing the defendant of the ability to re-create the circumstances of that event.”  See here.

While we can hope that no prosecutor in his or her right mind would charge a man so many years after the fact, we know that prosecutors can't always be counted on to do the right thing.  That fact is as irrefutable as the spelling of the word "Nifong."  Issues such as this simply should not be left to their discretion.

If the goal is simply to convict as many rapists as possible without concern that some falsely accused men might be swept up in the dragnet, these efforts to extend and eliminate the statute of limitations for rape would be valid. But if we cherish Blackstone's Formulation that it is "better that ten guilty persons escape than that one innocent suffer," these efforts need to be viewed with a jaundiced eye. What is needed when considering these issues is a serious dialogue that includes consideration of the interests of the wrongly accused, not a witch hunt to jack up rape conviction rates.  For far too many people, the wrongly accused are unfortunate but necessary collateral damage in the "more important" war on rape.  But removing false accusations from the public discourse about rape, as the sexual grievance industry has effectively done, and blinking at the victimization of the falsely accused, is unspeakably vile and uncivilized.

Just remember, it could be you or a loved one that the police come asking about regarding that rape that supposedly occurred in 1981.