Sunday, November 8, 2009

A rape accusation alone does not warrant an arrest

Based on all reliable information concerning the prevalence of false rape claim -- information that we have posted on this Web site -- it is clear beyond even a cavil that an uncorroborated accusation of rape by a lone female accuser does not satisfy the Constitutional standard to justify an arrest.
The Fourth Amendment of the U.S. Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The operative phrase is "probable cause."  A police officer may not make an arrest without probable cause. See, e.g., McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Probable cause exists when "the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir. 1989), cert. denied, 489 U.S. 825 (1990) (citing United States v. Greene, 783 F.2d 1364, 1367 (9th Cir. 1986), cert. denied, 476 U.S. 1185 (1986)).

Unfortunately, police and courts have unilaterally rewritten the Constitution to redefine the term "probable" in a way that bears no resemblance to its plain and ordinary meaning.  "Probable" does not mean "to have a suspicion."  It means "likely," but that's not how it is applied when it comes to rape claims.

Given the prevalence of dishonesty that permeates rape claims generally, and given the inordinate uncertainty inherent in an uncorroborated rape allegations, police officers should not be permitted to make an arrest based on nothing more than an accuser's word.  The Constitutional infirmities inherent in such arrests are patent, and defense lawyers need to start making this argument a lot more than they do. 

We are reaching a point where the idea that women lie about rape is gaining wide acceptance, and it is becoming more and more apparent that routinely arresting men and boys based on an uncorroborated rape claim is not just sexist, it is unjust and immoral.