Thursday, July 8, 2010

When rape accuser secretly tells defendant "I've done this before," the court will refuse to allow it into evidence

This is a very important post because it raises an extremely common issue that few people, even people who follow the false rape travesty, are familiar with. Follow it to the end, and I promise you will be outraged when I describe a recent judicial decision of the Michigan Court of Appeals.

Most of us realize that perhaps the single most glaring flaw in our jurisprudence concerning rape is the failure to charge and prosecute false rape accusers. By excusing serious criminality, we not only give wrongdoers a free pass, we also fail to deter like-minded criminals and, thus, we invite them to falsely accuse with impunity.

But there is another critical reason to prosecute false accusers, a reason often overlooked in discussions about false rape claims but that comes up time and time again in the judicial decisions on the subject:  false rape lies must be prosecuted to insure that the rape lie can be admitted into evidence against the liar when she falsely accuses another hapless man or boy. 

In Wells v. State of Indiana, 2010 Ind. App. Unpub. LEXIS 813 (filed June 16, 2010), the court considered this issue in an opinion that is typical of many. It restated the rule generally applied by most courts: despite the Rape Shield Statutes that forbid most evidence of the alleged victim's past sexual conduct, evidence of prior false rape claims may be admitted under narrow circumstances.  "There is . . . a common law exception to this rule when a defendant seeks to introduce evidence of a prior false accusation of rape. . . . . . Thus, evidence of prior false accusations may be admitted, but only if (1) the complaining witness admits he or she made a prior false accusation of rape; or (2) the accusation is demonstrably false. Id. Prior accusations are demonstrably false where the victim has admitted the falsity of the charges or they have been disproved."

But without a recantation or a conviction for false reporting, admission of an accuser's prior false rape claim is extremely unlikely.

Michigan v. Cruz, 2010 Mich. App. LEXIS 1044 (filed June 10 2010) illustrates the harshness of the rule. In that case, the Michigan Court of Appeals affirmed a man's conviction for sexual abuse of a neighbor girl that sent him to prison for a minimum of ten years.  The trial court refused to allow evidence to be admitted that the girl falsely accused her uncle of raping her in an unrelated incident, and the appeals court affirmed. 

Why was that evidence of the girl's prior false rape claim deemed inadmissible?  Because the girl had only admitted her prior rape lie to the defendant and his wife, and that wasn't good enough. "While this may be some evidence that the accusation was false," the court clucked, "it is far from 'concrete' and defendant has thus failed to substantiate his claim that the victim had lied."  The court held that "the danger of unfair prejudice [in admitting the prior rape claim] outweighed the evidence's probative value." 

Note that the court conceded that "the testimony would undoubtedly have been relevant to the victim's credibility," but relevance isn't good enough -- even when a man's liberty is at stake.  The court kept the evidence out of the trial that sent a man away to prison for many years because "its probative value was small given that the evidence of falsity consisted of defendant's and his wife's self-serving allegations. The trial court assigned the evidence little weight and determined that the potential for this evidence to unfairly confuse, mislead, and inflame the passions of the jury far outweighed its probative value."

Read that last paragraph again and let it sink in. The court's rationale is extremely troubling, but, sadly, typical of many cases we monitor.  To brand the evidence a "self-serving allegation," the court ruled out the possibility that the allegation might just be true. And if the allegation was true, it certainly wasn't the fault of this defendant that the false rape claim against the girl's uncle was never charged or prosecuted.  Very, very few false rape claims are charged or prosecuted, but that fact is never discussed in court decisions that bar the admission of evidence of prior false rape claims precisely because there was no conviction for the rape lies. 

And heaven forbid we should "confuse" or "mislead" or "inflame the passions" of the jury with evidence that shows that the girl is a false rape accuser.  (Like the old joke: "Objection" is what a lawyer shouts when he sees that truth is about to creep into the courtroom.)

I can't imagine a more terrifying injustice than to allow a man or boy to be sent away to prison for many years after his accuser secretly tells him, in effect, "I've done this before, you know" -- and the man or boy isn't allow to testify about what she told him. I would have to be Shakespeare to adequately describe the evil in that.

The short-term solution here would have been for the court to order a "trial within a trial" outside the hearing of the jury to adjudicate the veracity of the prior rape claim.  Would this be too much bother for the purportedly overworked judiciary? Or would it have been "unnecessary"?  After all, the male must be guilty since the police charged him.

The long-term solution is to start charging, and prosecuting, every false allegation of rape. If this girl had been convicted for lying about her uncle, the court in this case would have been obliged to admit that evidence in this trial. 

Not only does charging and prosecuting a rape liar deter other rape liars and, thus, curtail, the false rape epidemic, it could spare the next innocent man or boy she falsely accuses from spending years behind bars for a crime he didn't commit.