Monday, May 3, 2010

Federal Court: Man accused of rape has no right to present expert testimony that some women lie about rape . . . because everyone knows that

A federal court sitting in Wisconsin has ruled that a defendant in a rape trial has no right to present expert testimony that women lie about rape.  Such evidence would only state the obvious, the court explained, and it would not assist a jury in understanding a fact issue that is not within its common knowledge or experience.  (Under the law, generally, experts are persons with specialized knowledge, either by experience or training or both.  They do not have first-hand knowledge about the incident that is the subject of the trial but rather possess specialized knowledge that will assist the trier of fact to understand the evidence that is at issue, and to determine one or more facts in dispute.)

At best, the court's ruling is premised on a faulty understanding of the modern day rape tableau where many people erroneously believe that women do not lie about rape; at worst, it is yet one more manifestation of a culture that treats the presumptively innocent accused of rape as unworthy of society's protection.  Either way, it is erroneous.

Factual Background

A brief review of the facts: Joseph Hipler is serving a 20-year sentence following his 2003 conviction in a Wisconsin state court for, inter alia, first degree sexual assault with use of a dangerous weapon.  Mr. Hipler was convicted based on convoluted "he said/she said" evidence.  He is being deprived of his liberty for many years based essentially on the say so of his "victim." As is common in the criminal justice system, Mr. Hipler has filed appeals and various motions to upset his conviction.
Most recently, Mr. Hipler sought relief by filing a motion that was resolved several days ago in Hipler v. Hepp, 2010 U.S.Dist. LEXIS 40160 (W.D. Wisc. filed April 23, 2010), the subject of this post. In that motion, Mr. Hipler argued that his previous attorneys were ineffective stemming from the trial court's exclusion of his expert witness at trial.  According to Mr. Hipler, his expert witness, Holinda Wakefield, would have testified "that it is not uncommon for individuals to make false claims of sexual assault; that at least one study had found that 41% of forcible rape accusations are false . . . ." 

The reference regarding the 41% study was obviously to Prof. Eugene Kanin's landmark study.  Kanin's study is one that members of the sexual grievance frequently attack but that few likely have ever actually read.

The trial court denied Mr. Hipler's motion to allow Ms. Wakefield's testimony because, it explained, "the fact that some reports of rape are false was a matter within the common knowledge of lay jurors and therefore Wakefield's testimony would not assist the jury."  Previously when Mr. Hipler raised this same issue in state court, the judge held that Wakefield's testimony would "'state the obvious' and dress up the inference that [the purported victim] might have lied as having 'more weight simply because [Wakefield] is a supposed expert.'" Therefore, the court concluded, "Wakefield's testimony would not have been relevant."

The Court Allowed the State's Expert Testimony to Show It Is Not Unusual For Rape Victims to Delay Reporting the Alleged Crime

Contrast the exclusion of the expert testimony Mr. Hipler sought to introduce with the state's expert testimony, which the trial court did allow:

"Before trial, the state moved in limine to allow expert testimony on rape trauma syndrome from Lesley Charlton, a psychotherapist who worked with victims of sexual assault. The state argued that Charlton's testimony would help the jury understand that it is not unusual for victims of sexual assault to delay reporting the assault to law enforcement. . . . .Over Hipler's objection, the trial court concluded that Charlton was qualified as an expert and that her testimony was relevant:

"'It's obvious that this state is one where we allow expert testimony, almost wide open. I don't act as a gatekeeper. I think the argument that [defense counsel] makes is really an argument for the jury . . . As far as the sexual assault, I don't think it is so narrow as [defense counsel] was suggesting. You can only give an opinion to somebody with a gun who sexually assaults someone would result [sic] the victim in delaying those circumstances, I'm not aware of any subgroup like that. I don't know that any subgroup like that has a meaningful distinction in the area of whether or not someone reports or not.' Tr. of Mot. Hrg., June 13, 2003, dkt. 13, exh. N, at 23-23."

A judge in a previous appeal filed by Mr. Hipler justified admitting the state's expert evidence in this manner: "We have found expert testimony to be helpful in explaining victims' behavior as conforming with the common behavior of rape victims."  Wisconsin v. Hipler, 297 Wis.2d 582, 724 N.W.2d 702 (2006).  Note the court's inappropriate characterization of an accuser as a "victim." Such explanation seems to cast the court more as an advocate than as an impartial arbiter of justice.

A Troubling Double-Standard

To recap: (1) The jury would be helped by hearing the state's expert explain that "it is not unusual for victims of sexual assault to delay reporting the assault to law enforcement."  (2) But a jury would not be helped by hearing an expert explain "that it is not uncommon for individuals to make false claims of sexual assault; that at least one study had found that 41% of forcible rape accusations are false . . . ." This, despite the fact that the trial court "allow[s] expert testimony, almost wide open. I don't act as a gatekeeper . . . ."

The difference between these two categories of evidence is that the one category promotes rape convictions while the other provides prophylactic protections for the presumptively innocent accused of rape.  In a culture that regards wrongful rape convictions and accusations as necessary collateral damage in the "more important" war on rape, it is little surprise that the former class of evidence is deemed admissible while the latter is excluded.

But let us cut to the chase: to suggest that it is common knowledge that some women lie about rape is either naive or dishonest in the extreme.  Our society has experienced three to four decades of the sexual grievance industry's incessant insistence that women do not lie about rape.  The public discourse about rape is rife with assertions, posited as settled and indisputable fact, that it is a "myth" that women lie about rape.  We are fed a steady diet of the canard that only two percent of all rape claims are false, even though this canard has been thoroughly debunked by several researchers who have traced it to is baseless origin. 

Is it a stretch to believe that in the seclusion of the jury room, one or more jurors might have repeated the standard assertion that women don't lie about rape?  That they have "too much to lose"?  That reporting rape is akin to a "second rape"?  These questions scarcely survive their statement. 

In short, the prevalence of false rape claims is something that is not within the common knowledge or experience of the average juror.  To deny jurors the benefit of expert testimony regarding the prevalence of false rape claims is to permit them to harbor wrong-headed stereotypes about rape while they are deciding the fate of a man whose very liberty depends on their possessing accurate information about that issue.

It is also troubling that the court recharacterized Wakefield's proposed expert testimony. Her proposed testimony wasn't only that "some" women lie about rape. Her proposed testimony would have discussed a particular study showing that a significant percentage of rape claimants lie about rape, indicating that false claims are a common occurrence.  But the court sustained the state's objection excluding this evidence.

D. Robert White once defined an "objection" as follows: "[T]he cry of a lawyer who sees truth about to creep into the courtroom."  That definition seems apt here.

It would be wonderful if everyone knew that rape lies are common.  But they don't.  And because they don't, a court decision excluding expert testimony that would have disabused they jury of wrong-headed stereotypes about rape was as wrong as can be.

There is a footnote that is worth adding: in one of  Mr. Hipler's earlier challenges to the conviction, the court noted that after his conviction, Mr. Hipler submitted to, and passed, a polygraph indicating that there was no sexual assault.  Wisconsin v. Hipler, 297 Wis.2d 582, 724 N.W.2d 702 (2006).  Of course, many people believe that polygraphs are unreliable. If that's true, why are men accused of rape subjected to them, but putative victims of rape claims are not permitted to be subjected to them?  Just another acceptable double-standard in a field rife with them.