Wednesday, October 8, 2008

Evidence that kids made prior false rape claims: not admissible; evidence that men committed prior sexual assaults: admissible

In a rape trial, a man is not permitted to show that a little girl who accused him of molesting her has a propensity to falsely accuse men of molestation. But the government can introduce some years-old allegation of rape and prove it by a mere preponderance of the evidence -- to show that a man has a propensity to rape. Nice double standard, don't you think?

Let's examine this:

In Pantoja v. State of Florida, 2008 Fla. App. LEXIS 13547 (filed Sept. 4, 2008), Juan Pantoja was convicted and sentenced for sexual battery and lewd or lascivious molestation. Mr. Pantoja argued that he should have been permitted to present evidence that the alleged victim had previously accused another person (her uncle) of molesting her but later admitted the accusation was false. The alleged victim’s prior accusation was that her uncle had inappropriately touched her. Mr. Pantoja proffered the testimony of the alleged victim's grandmother and aunt to state the alleged victim told them she had lied about the uncle because she was mad at him.

The trial court held that Mr. Pantoja was not permitted to impeach the victim with evidence of her allegedly false prior report of molestation against the uncle. Mr. Pantoja appealed, and the Florida appellate court affirmed. In denying Mr. Pantoja’s attempt to admit this evidence, the appellate court cited several federal courts of appeals, which have concluded that it was not error to prohibit cross-examination of a witness regarding an alleged false accusation against someone other than the defendant. One of the cases the court relied on noted that the sole basis for such impeachment evidence would be to show that if the alleged victim lied once, she would do it again. The Florida appellate court noted that it agreed with Mr. Pantoja that “the evidence may be highly probative of the victim's general credibility,” but said it was bound to apply state law.

Thus, by way of example, if you are falsely accused of molesting your daughter, you may not be permitted to bring into evidence the fact that your daughter previously falsely accused her uncle of molesting her but then recanted that claim.

A fairly harsh rule, would you agree? But wait. It gets worse. Contrast that rule with Federal Rule of Evidence 413 (previously discussed here) which provides that "in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant." Several states have enacted their own versions of this rule.

Rule 413 allows the prosecution to demonstrate a rape defendant’s alleged propensity to sexually attack women by admitting a prior rape to show that the man acted in conformity with this character trait. Note that this evidence of a prior rape is admissible even if the man never takes the stand, and even if the man had been acquitted of the prior sexual offense (all the government needs to prove is that the prior alleged offense was committed by a preponderance of the evidence – 51%). The jury will hear that the man did it before, and will likely conclude he must have done it this time, too. This terribly unfair rule is in force just for sexual assault. No other crime.

Do you see the double standards here? A man is not permitted to show that a little girl who accused him of molesting her has a propensity to falsely accuse men of molestation. (As we’ve previously noted here – even the Supreme Court has recognized the special problem of unreliable, induced, and even imagined child testimony in such cases.) But in a rape trial, the government can introduce some years-old allegation of rape and prove it by a mere preponderance of the evidence -- to show that a man has a propensity to rape.

How do these unfair double standards, which so clearly disfavor men, become law? It is because men historically have not been watching out for their rights, and a small but committed group of sexual assault advocates have pressed for laws like Rule 413. Those advocates care more about jacking up rape conviction rates than insuring that falsely accused men are not convicted.