Friday, September 30, 2011

Couple tried to divert cops from burglary with rape ruse

A false rape report didn’t divert police from stopping a burglary in progress Monday morning.

Police said they received a 911 call about a rape in progress at the Tri City Plaza on High Street, about three miles outside of downtown.

They figured out, however, that the call came from 99 Main St. - a downtown address - and were en route there when they stumbled upon a burglary in progress at the Somersworth Village Market at 35 Washington St.

Sgt. Matt Duval heard an alarm coming from the store, saw the front door smashed and a man exiting the business, police said. When Duval ordered the man to stopped, he began throwing cartons of cigarettes and bath salts at him.

“A struggle ensued, during which time Sgt Duval was able to subdue and arrest the individual, identified as [Frank] Cunningham,” police said.

Police said Cunningham threw six cigarette cartons and 13 packets of bath salts at Duval.

Cunningham, 50, of 95 Main St., Apt 8, is charged with burglary, simple assault and resisting arrest.

Police said a further investigation revealed the call about the rape was a ruse meant to distract from the break-in.

Christa Pinson, 32, who lives at the same address as Cunningham, was charged with criminal liability for conduct of another.

Cunningham and Pinson live about two blocks from the Somersworth Village Market.

Link:
http://www.unionleader.com/article/20110926/NEWS03/709269946

Couple tried to divert cops from burglary with rape ruse

A false rape report didn’t divert police from stopping a burglary in progress Monday morning.

Police said they received a 911 call about a rape in progress at the Tri City Plaza on High Street, about three miles outside of downtown.

Alleged high school gang rape apparently didn't happen, prosecutor says

A rape case against five boys, 15 to 17 years old, has been dropped. The boys were accused of gang raping a 13-year-old girl. The initial complaint to police claimed the young alleged victim was dragged kicking and screaming into the side room of a distance learning lab on the lower level of a high school.

A second girl was also involved, but apparently her story was that the sex was consensual, and it wasn't consistent with the story of the alleged victim. 

Moreover, the alleged victim's story didn't match the evidence gathered from the surveillance video from the school.  The video did not catch the entire incident, it showed the beginning of the incident did not support her version of how things happened

After physical evidence came back from the state police lab, the alleged victim recanted most of the serious accusations.  "Before making the decision not to go forward with the case, we actually wanted a few days to make sure there weren't any outside stressors that would have caused her to recant, but after a certain amount of time and she remained with her position that, most, again, most of the serious accusations, that those did not happen," said Assistant Prosecutor, Matt England.

Because the alleged victim recanted only portions of her statement, the prosecutor’s office will not bring charges against her for submitting a false statement to police, he added.


The incident occurred in November 2010, and while the criminal investigation continued, the students involved did not return to school.

SOURCES:
http://www.wvnstv.com/story.cfm?func=viewstory&storyid=108842

http://www.register-herald.com/local/x1953746759/Fayette-prosecutor-closes-case-of-alleged-rape-at-MHHS

http://wboy.com/story.cfm?func=viewstory&storyid=95557

Alleged high school gang rape apparently didn't happen, prosecutor says

A rape case against five boys, 15 to 17 years old, has been dropped. The boys were accused of gang raping a 13-year-old girl. The initial complaint to police claimed the young alleged victim was dragged kicking and screaming into the side room of a distance learning lab on the lower level of a high school.

Thursday, September 29, 2011

Feds hand small university hundreds of thousands of dollars to fight rape problem there is no evidence exists

Your federal goverment has just handed a small university in Pennsylvania hundreds of thousands of dollars to fight a rape problem there is no evidence exists.

The money was paid courtesy of a democractic senator whose relationship with women voters is tenuous because he identifies as pro-life.  This story is a tiny microcosm of how the sexual grievance industry works.

In Erie, Pennsylvania, Ted Marnen, the director of Gannon University's office of campus police and safety, says there is no evidence that the university has a problem with sexual violence. He said that the university, with an enrollment of about 4,200 students, averages 1.66 rapes on campus per year. (One rape is one rape too many, so it isn't fair to say there is "no" problem. It is fair to say it is not a widespread or significant problem.)

But wouldn't Gannon's figures be underreported?  Mr. Marnen isn't ready to buy into that. "It's difficult to tell," he said.

Nevertheless, little Gannon University has just been awarded $298,638 from the U.S. Department of Justice to reduce violence against women on the university's campus. The grant will fund anti-violence programs for students for the next three years. With the money, the school will get a new violence-prevention coordinator, develop a community response to violence, offer mandatory anti-violence programs for students and develop new crime-response policies.

The funding was procured by pro-life Senator Bob Casey. “Every student deserves to study in an environment where they feel physically and emotionally secure. This funding will help Gannon accomplish this goal,” said Senator Casey. Casey provided no support for the premise that Gannon women do not already feel physically and emotionally secure.

Can anyone name a single program that has ever been hailed a success to reduce the rape "epidemic"? There have been billions of dollars spent to wage the war on rape over the past 30 years, and
yet we are told that under-reporting is still 95 percent on campus, higher than ever. The more money spent, the more people hired with it, the worse the problem supposedly gets. Instead of asking what's really going on here, the only "solution" pursued is to keep doing more of the same.

Heather MacDonald once famously wrote: "It’s a lonely job, working the phones at a college rape crisis center. Day after day, you wait for the casualties to show up from the alleged campus rape epidemic—but no one calls." Ms. MacDonald thinks the rape "epidemic" on campus is rubbish.

At Gannon, Mr. Marnen said "it will be hard to judge if" the funding is successful. "If we see an increase in assaults, does that mean more women are reporting, or there is an increase in sexual violence?" Marnen said. "It's very difficult to measure."

Earlier this year, Senator Casey introduced the Campus Sexual Violence Elimination Act (SaVE Act), which, among other things, would do legislatively what the Department of Education has already improperly done by executive branch fiat: mandate that colleges use the "preponderance of the evidence" standard of proof for sexual assault cases.

In other words, if your son is accused of sexual assault at college, Senator Casey thinks its fine to expel him even if the hearing tribunal believes there is a 49.9999% chance he didn't do it.

Sources:
-News story regarding Gannon: http://www.goerie.com/apps/pbcs.dll/article?AID=/20110929/NEWS02/309289865/-1/newssitemap

-Sexual assault reporting stats are available on line: http://ope.ed.gov/security/InstList.aspx)

-Bob Casey announcement: http://casey.senate.gov/newsroom/press/release/?id=aec5071e-1b92-42c8-a3a0-a88c504b451e

Feds hand small university hundreds of thousands of dollars to fight rape problem there is no evidence exists

Your federal goverment has just handed a small university in Pennsylvania hundreds of thousands of dollars to fight a rape problem there is no evidence exists.

Cleared of Rape but Lacking Full Exoneration

RICHMOND, Va. — One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes.

He never got there. Instead, he was stopped and questioned in connection with a recent rape. That began a 27-year odyssey through false accusation, arrest, prison and pain.

Mr. Haynesworth, then 18 and never in trouble with the law, had been mistakenly identified by the victim as her assailant. He was arrested on suspicion of having committed five rapes and assaults in his neighborhood, and was tried for four of them. He was convicted in three and sentenced to 84 years in prison.

DNA has since proved that he did not commit two of the rapes he was tried for. The DNA from those two cases pointed to another man, in prison for having committed multiple rapes in the same neighborhood that occurred after Mr. Haynesworth’s arrest. That man, Leon Davis, who identified himself to victims as “the Black Ninja,” is serving multiple life terms plus 100 years.

Now Mr. Haynesworth, 46, is asking for full exoneration on all of the rape convictions, although DNA from the other two cases is not available. But the circumstantial evidence supporting Mr. Haynesworth’s claims of innocence is so powerful that along with his own lawyers, the prosecutors from both jurisdictions where the rapes occurred support his efforts, as well as the attorney general for the commonwealth, Kenneth T. Cuccinelli.

With no one arguing against exoneration, most judges would be expected to congratulate Mr. Haynesworth on his new life, perhaps with an apology as well, and send him into daylight and freedom. But in July, a three-judge panel of the Court of Appeals of Virginia said, in essence, “Not so fast.” The court called for additional briefs in the case, which will be heard again on Tuesday by all of the judges of the court.

It is a move that has left legal experts astonished. “It’s very rare for a court to set a case for argument when all the parties are agreed,” said Stephen J. Schulhofer, an expert in criminal justice at New York University law school, adding that “it’s essentially unheard of” for a court to take matters into its own hands, instead of appointing a special advocate to argue on behalf of the interests that they believe are unrepresented.

It is a case, then, that might seem quirky, even unique. But experts like Professor Schulhofer say the case raises broader questions about the lengths that defendants must sometimes go to clear their names, and even raises fundamental questions about the administration of justice. “What I worry about is, if Haynesworth is having trouble getting his conviction set aside, what kind of judicial relief is available to your run-of-the-mill case where your arguments are not quite so slam dunk?”

Mr. Haynesworth’s fight for freedom began in 2009, when the state’s department of forensic evidence tested the DNA from the first rape as part of a broad review of old case files. The results cleared Mr. Haynesworth of that rape, and he received an exoneration on that charge later that year. Mr. Haynesworth’s lawyers at the Mid-Atlantic Innocence Project and the Innocence Project in New York, along with private lawyers, filed legal papers for Mr. Haynesworth with the Court of Appeals of Virginia to get a writ of actual innocence on the remaining convictions. Subsequent testing of the DNA from the trial in which Mr. Haynesworth was acquitted eliminated him — and again implicated Mr. Davis.

Virginia’s parole board released Mr. Haynesworth from prison in March, on his 46th birthday. But he is still pressing for exoneration — “to clear my name, you know what I’m saying?” He is classified as a paroled sex offender, and has to appear on public registries of rapists and other sexual miscreants. He has to inform the authorities in order to move from one home to another, and even had to request permission to visit his nieces.

“I’m out, but still not totally free,” he said. “It puts a cloud over your life.”

Mr. Cuccinelli said in an interview that he and his staff reviewed the evidence in the Haynesworth case in great detail. “It was a complex decision,” he said, “but it wasn’t a hard decision.” The thought of the wrongful conviction haunted him. “It’s hard to describe how painful it is to me that somebody would suffer what he has.”

He explained that the law that allowed writs of actual innocence was crafted with a very high standard of proof in mind. It places a premium on preserving the finality of the judicial process and attempts to avoid endless appeals. “I would say it’s cultural to the state,” he said. “You get your shot, you take your shot, and we’re not going to muck around with it anymore.”

Link: http://www.nytimes.com/2011/09/25/us/man-cleared-of-rapes-but-a-court-balks-at-full-exoneration.html?_r=2

Cleared of Rape but Lacking Full Exoneration

RICHMOND, Va. — One Sunday morning in February 1984, Thomas Haynesworth’s mother sent him to the Trio supermarket to pick up some bread and sweet potatoes.

Wednesday, September 28, 2011

Suspended sentence for false rape accuser whose lie prompted a major police investigation

Follow up to our post HERE. A suspended sentence. Lovely.

A young Deal woman who falsely cried rape has avoided going to jail.

Rebecca Howard told police two men bundled her into a car and drove her to a car park in Walmer before one of the men raped her in the early hours of Sunday, February 6.

The 20-year-old's accusation prompted a major police investigation which proved the offence never happened.

Howard, of Prince of Wales Terrace, pleaded guilty to wasting police time when she appeared before magistrates in Folkestone.

She was given a four month prison sentence, suspended for two years, and told to carry out 200 hours unpaid work. She must pay £1,000 compensation to Kent Police and will be subject to a 12-month supervision order.

Det Insp Matt Banks from the Kent and Essex Serious Crime Directorate, which investigated the rape allegation, said: "We take all allegations of rape very seriously and our priority is to get justice for genuine victims of rape.

"It takes considerable bravery for a rape victim to come forward to report a crime and we will always sensitively and thoroughly investigate all reported rapes.

"Our priority is always the victim and we would always encourage anyone who is a victim of this type of crime to come forward and report it.

"Howard abused this and her allegation caused heightened concern within the Deal community and involved considerable time and resources to investigate."

Suspended sentence for false rape accuser whose lie prompted a major police investigation

Follow up to our post HERE. A suspended sentence. Lovely.

A young Deal woman who falsely cried rape has avoided going to jail.

Tuesday, September 27, 2011

DSK seeks diplomatic immunity from civil action; Diallo already has de facto immunity from a counterclaim because she is judgment proof

Dominique Strauss-Kahn has filed a motion claiming diplomatic immunity in the civil suit filed against him filed by Nafissatou Diallo, the hotel maid who accused him of raping her in Room 2806 of the Sofitel Hotel on May 14, 2011.

The legal merits of DSK's motion are beyond the scope of this post. Regardless of its merit, those who have already assumed his guilt will, undoubtedly, find this legal maneuver to be an outrageous attempt by a privileged white male to further deny a wronged minority woman of justice.

Even though this blog gives voice to the wrongly accused, we have been careful not to pretend or assume we know what happened in Room 2806.  When feminist icon Susan Brownmiller bizarrely declared that she "believe[d]" Ms. Diallo (because, she exclaimed, "[r]ape victims remember some facts vividly, but often get confused about exact timelines" -- as if that furnishes sufficient basis to reach that conclusion), we expressed our dismay about rushing to judgment.

Subsequently, the most compelling, and credible, assessment of the case was posited by the Manhattan district attorney's recommendation to dismiss the charges against Diallo. That recommendation noted that Diallo was "persistently" and "inexplicably" untruthful to prosecutors about important matters. Prosecutors initially found Diallo to be a perfect witness, sympathetic in every way. Over time, her repeated lies eventually had prosecutors questioning her credibility on a very fundamental level. We detailed the DA's recommendation here.

While the district attorney's evaluation was made in the context of charges that had to be proven beyond a reasonable doubt, a fair-minded assessment of the information released by the district attorney suggests the very real possibility, if not likelihood, that Diallo's claim was a lie. Credibility is important not just in criminal matters, but in civil matters, too.  "Liars lose," a sage attorney once told me many years ago.  While it is impossible to assign a percentage to express the likelihood that the claim was either true or false, in light of Diallo's credibility problems, a civil case filed by either Diallo or DSK could go either way.

While DSK is seeking diplomatic immunity from suit, Diallo has achieved de facto immunity from a civil suit (e.g., a counterclaim) because she is judgment proof, and because DSK has far more to lose by filing suit.

Just as most rapists come from lower socioeconomic classes and are under-educated, under-employed, and under-skilled, the typical false rape accuser is not a woman of wealth.

DSK seeks diplomatic immunity from civil action; Diallo already has de facto immunity from a counterclaim because she is judgment proof

Dominique Strauss-Kahn has filed a motion claiming diplomatic immunity in the civil suit filed against him filed by Nafissatou Diallo, the hotel maid who accused him of raping her in Room 2806 of the Sofitel Hotel on May 14, 2011.

College paper takes college to task for sexual assault training video that presents males as crass, offensive caricatures

Email to Maria Tsikalas
Maria Tsikalas
Marquette University

Dear Ms. Tsikalas,

I founded the Web site devoted to giving voice to persons wrongly accused of sex crimes, False Rape Society. I am forwarding a copy of this email to FIRE because it is the authority on the issues raised in this note, and the matters referenced here might be of interest to it.

I write regarding your thoughtful editorial titled "Sexual violence videos make mistakes, but don’t give up on them," found here: http://marquettetribune.org/2011/09/27/viewpoints/editorial-sexual-assault-videos-make-mistakes-but-dont-give-up-on-them-kc1-sb2-td3/.

In your editorial, you explain that Marquette is sponsoring online videos to train student leaders and incoming students on sexual assault. A previous article in the Marquette Tribune noted: "All first-year students and many student leaders are partaking in a sexual assault awareness program as part of a new initiative against sexual violence on campus."  http://marquettetribune.org/2011/09/20/news/assault-bg1-sb2-td3/ 

I am assuming that the program referenced in that previous article is the same one you discuss in your editorial, but I am not sure that this assumption is correct. I am also assuming that the program you discuss is mandatory for first year students. Would you be able to verify?

In your editorial, you state the following:

"While the videos provide a lot of good information addressing what sexual assault actually is and how to recognize and prevent it, the valuable parts are juxtaposed with off-putting moments and absurd ideas.

"The 'typical male college student' played by an actor is offensive and completely unaware of the issues and why they are important, which seems unfair to males in general. One has to wonder why the videos could not have portrayed the character as a normal college student looking to learn more about sexual assault instead of a crass and willfully ignorant male needing to be set straight.

"Do we need such an overtly negative image of college guys? The clips describing different ways men try to pressure college women into potential assault situations, while fair and comprehensive, seem to do the job.

"If we want college men to take these videos seriously and realize the immensity of the issues, it is questionable whether this caricature is the best way to depict them."

You are to be commended for highlighting the "overtly negative" and "offensive" portrayal of the "typical male college student," as "crass and willfully ignorant," which, if your description is accurate, clearly is "unfair to males in general."  I am not able to find the program in order to view it, and would very much appreciate that opportunity. Could you be able to assist in that, or to advise who might be able to help?

Your editorial raises a concern that this video presentation may constitute an impermissible invasion of students' conscience. Last year, FIRE challenged a college for making attendance mandatory at a sexual assault program that was overtly offensive to males and that sought to reengineer student thinking to conform to an ideology of the college's preference. See here: http://thefire.org/public/pdfs/ec98c2707e17186e96211e9aa553e699.pdf?direct The college backed down and make attendance at the program discretionary.
___________________

Your editorial also references "clips describing different ways men try to pressure college women into potential assault situations." I am also interested in seeing those. I note that Marquette's sexual assualt policy, found here http://www.marquette.edu/osd/policies/sexual_policy.shtml, says that a person may not consent to sex if s/he is "psychologically pressured."  The clips you reference seem speak to such psychological pressure. Is that correct?

The "psychologically pressured" definition is problematic for at least two reasons:

First, Marquette's prohibition is worded so broadly that it could be applied to punish conduct that that is, by any lawful measure, consensual. A college's sexual misconduct policy cannot be a clearinghouse to redress every less than ideal sexual encounter. Marquette's policy could be applied to punish students for engaging in what is nothing more than immature and boorish sexual nagging, even though the "nagged" student had a reasonable alternative other than to engage in the sex act. By no recognized legal standard does sexual nagging or anything similar negate consent.*

Second, the language of the policy is so vague that it does not pass Constitutional muster. "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." Jordan v. DeGeorge, 341 U.S. 223 (1951).  A college's sexual misconduct policy cannot be a guessing game.  It is entirely uncertain what "psychologically pressured" means, and it could be applied to all manner of situations that, by any reasonable measure, should not be prohibitted. Therefore, it does not adequately put the student body on notice as to what is prohibited.

I also note that, apparently, the clip shows only guys pressuring women. That, too, is problematic, and offensive, because studies show that men experience alleged sexual coercion almost as much as women. http://pubpages.unh.edu/~mas2/ID45-PR45.pdf

These are issues of serious concern to the community of the wrongfully accused. We promote respect for the critical balance between (1) punishing sexual wrongdoing, and (2) insuring that the innocent are not punished with the guilty. The matters referenced in this note and promoted by your university do not adequately respect the latter part of that balance.

Thank you.

False Rape Society
http://falserapesociety.blogspot.com/

*The concept of consent has its roots in the common law equitable doctrine of assumpsit, based on contract. A contract is voidable for duress if a victim's manifestation of assent has been induced by an improper threat, and if the victim has no reasonable alternative but to agree. At the very least, that last part -- the "no reasonable alternative" -- is missing from Marquette's "psychologically pressured" definition.

College paper takes college to task for sexual assault training video that presents males as crass, offensive caricatures

Email to Maria Tsikalas
Maria Tsikalas
Marquette University

Dear Ms. Tsikalas,

I founded the Web site devoted to giving voice to persons wrongly accused of sex crimes, False Rape Society. I am forwarding a copy of this email to FIRE because it is the authority on the issues raised in this note, and the matters referenced here might be of interest to it.

I write regarding your thoughtful editorial titled "Sexual violence videos make mistakes, but don’t give up on them," found here: http://marquettetribune.org/2011/09/27/viewpoints/editorial-sexual-assault-videos-make-mistakes-but-dont-give-up-on-them-kc1-sb2-td3/.

In your editorial, you explain that Marquette is sponsoring online videos to train student leaders and incoming students on sexual assault. A previous article in the Marquette Tribune noted: "All first-year students and many student leaders are partaking in a sexual assault awareness program as part of a new initiative against sexual violence on campus."  http://marquettetribune.org/2011/09/20/news/assault-bg1-sb2-td3/ 

I am assuming that the program referenced in that previous article is the same one you discuss in your editorial, but I am not sure that this assumption is correct. I am also assuming that the program you discuss is mandatory for first year students. Would you be able to verify?

In your editorial, you state the following:

"While the videos provide a lot of good information addressing what sexual assault actually is and how to recognize and prevent it, the valuable parts are juxtaposed with off-putting moments and absurd ideas.

"The 'typical male college student' played by an actor is offensive and completely unaware of the issues and why they are important, which seems unfair to males in general. One has to wonder why the videos could not have portrayed the character as a normal college student looking to learn more about sexual assault instead of a crass and willfully ignorant male needing to be set straight.

"Do we need such an overtly negative image of college guys? The clips describing different ways men try to pressure college women into potential assault situations, while fair and comprehensive, seem to do the job.

"If we want college men to take these videos seriously and realize the immensity of the issues, it is questionable whether this caricature is the best way to depict them."

Sex assault claim teenager fined for wasting police time

A TEENAGER has been fined after making a false report that she had been sexually assaulted. The 19-year-old, from Bolton, told police she had been sexually assaulted while on a night out in the town centre.

An area on Bradshawgate, near to the junction of Princess Street, was cordoned off for several hours while detectives investigated the allegation in the early hours of Sunday.

After a thorough search by police it was discovered the sexual assault claim was not true, and the woman was given a £60 fixed penalty notice for wasting police time.

Det Sgt Tony Lunt, from Bolton CID, said: “On this occasion, the sexual assault that was alleged to have taken place has proved to be a false account. We take all reports of assault and rape seriously and investigate thoroughly and without prejudice.

“Greater Manchester Police encourages anyone who has been a victim of rape or any sort of sexual abuse to come forward.

“But I must also stress the importance of providing police with genuine reports due to the time we invest in investigating these cases.

“I hope this incident does not deter genuine victims from coming forward to police.

“We have speciallytrained officers who give a tremendous amount of time and support to anyone who has been a victim of rape and we work extremely closely with the St Mary’s Sexual Assault Referral Centre.”

Link: http://www.theboltonnews.co.uk/news/9265679.Sex_assault_claim_teenager_fined_for_wasting_police_time/

Sex assault claim teenager fined for wasting police time

A TEENAGER has been fined after making a false report that she had been sexually assaulted. The 19-year-old, from Bolton, told police she had been sexually assaulted while on a night out in the town centre.

Monday, September 26, 2011

U.S. Military, D.C. and Washington state now put the burden on the accused to show consent

There is a gradual, but indisputable and disturbing, trend to engorge the definitions of rape and sexual assault in order to snag more convictions.  All of these changes, which typically occur beneath the radar, are initiated at the behest of victims' advocates, and there is rarely ever more than cursory and superficial consideration given to insuring that innocent men and boys are not punished with the guilty. While everyone with a passing interest in this area knows about this trend, few are able to articulate exactly what is happening.

One of the most important, and startling, efforts to engorge the definition of rape has been to shift the burden of proving consent from the state to the accused.  This is both important and starting because the very essence of rape law is the absence of consent, and shifting the burden of proof to the accused about a matter that goes to the essence of a criminal offense raises a host of due process concerns. To put it in plain English, shifting the burden of proof enhances the risk that the innocent will be punished with the guilty.

Few readers probably know that the U.S. military, the District of Columbia, and the state of Washington have already shifted the burden of proving consent to the accused. More about each below.

Bourque, Valenti, Alexandre, and Caringella

The shifting the burden of consent is an idea being pushed by extremist victims' advocates. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender."

Mainstream feminist guru Jessica Valenti (best known for the "Feministing" blog) advocates that America look to Swedish law as its legislative model for rape. "In fact," she notes without objection, "some activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it."

Valenti's suggestion is backed by serious feminist scholars. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. The burden would be on the defendant to prove “that express and present consent was explicitly obtained at the time of the actual sexual interaction, not before or after . . . .” Only if the defendant is able to establish “express, present, and uncontroverted consent to the sexual interaction at issue” does the burden shift to the prosecution to prove withdrawal of consent . . . ."

In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refuses to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]."  She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates "a shift in the burden of proof to the defense [that] would entail that the defense establish, with a preponderance of the evidence, that it was more likely than not that the woman alleging the rape did give clear indications of freely chosen agreement to engage in the sex acts. Affirmative consent constitutes the kind of consent that would be . . . necessary to overcome the presumptive or implied nonagreement in the law. . . . . What the defense would be required to do would be to introduce adequate evidence to show that the alleged victim did openly and affirmatively express a yes of her own free accord."

These egregious notions have already been given statutory articulation in three jurisdictions.

U.S. Military

Article 120 of the Uniform Code of Military Justice, revised in 2006, removed "consent" as an element of rape and other forms of sexual assault and required the accused to raise "consent" as an affirmative defense and to prove it by a preponderance of the evidence. If an accused proves the affirmative defense, the burden shifts to the government to disprove the affirmative defense beyond a reasonable doubt.

It is a source of confusion how the prosecution could ever prove non-consent by a reasonable doubt after the accused has already proven consent by a preponderance of the evidence.  But the more important problem is that a cry of rape literally turns the sex act into a presumptive crime.

In United States v. Neal, 68 M.J. 289 (2010), the U.S. Court of Appeals for the Armed Forces explained why shifting the burden of proof was proper in words that are as chilling as they are peculiar: "When sexual abuse by members of the armed forces occurs within a military organization, it can have a devastating impact on the good order and discipline essential to the conduct of military operations. When sexual abuse by deployed military personnel involves civilians, it can undermine relationships with the local population critical to our Nation's military and foreign policy objectives. These factors illustrate the importance of recognizing the broad authority of Congress to regulate the conduct of military personnel. That authority includes the power to define rape and its related offenses in a manner that does not require proof on the subject of consent, notwithstanding the traditional requirement in military and civilian law for such proof."

(Recently, there was a rare moment of sanity when a military court ruled that forcing the accused to prove consent in a case of aggravated sexual assault where the alleged victim was supposedly "substantially incapacitated" was unconstitutional because the absence of consent is implicit in the nature of substantial incapacitation. United States v. Prather, 69 M.J. 338 (2011).)

District of Columbia

In the District of Columbia, a sexual abuse statute, which encompasses any sex act committed by force or which places a victim in fear ob bodily injury, puts the burden on the accused to show consent. D.C. CODE § 22-3007 (2007). A court explained that the statute "was intended . . . to change the focus of the criminal process away from an inquiry into the state of mind or acts of the victim to an inquiry into the conduct of the accused." Russell v. United States, 698 A.2d 1007, 1009 (D.C. App. 1997). 

Washington State

Moreover, as Prof. Richard Klein explains here, in Washington state, courts typically include the following instruction to juries in rape cases:  "A person is not guilty if the sexual intercourse is consensual. “Consent” means that at the time of the act of sexual intercourse, there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The burden is on the defendant to prove by a preponderance of the evidence that the sexual intercourse was consensual." Prof. Klein explains that this instruction was challenged in 2006, but the court allowed it to stand.

U.S. Military, D.C. and Washington state now put the burden on the accused to show consent

There is a gradual, but indisputable and disturbing, trend to engorge the definitions of rape and sexual assault in order to snag more convictions.  All of these changes, which typically occur beneath the radar, are initiated at the behest of victims' advocates, and there is rarely ever more than cursory and superficial consideration given to insuring that innocent men and boys are not punished with the guilty. While everyone with a passing interest in this area knows about this trend, few are able to articulate exactly what is happening.

One of the most important, and startling, efforts to engorge the definition of rape has been to shift the burden of proving consent from the state to the accused.  This is both important and starting because the very essence of rape law is the absence of consent, and shifting the burden of proof to the accused about a matter that goes to the essence of a criminal offense raises a host of due process concerns. To put it in plain English, shifting the burden of proof enhances the risk that the innocent will be punished with the guilty.

Few readers probably know that the U.S. military, the District of Columbia, and the state of Washington have already shifted the burden of proving consent to the accused. More about each below.

No evidence in alleged police sexual assault

A year-long internal investigation into allegations of sexual assault by police officers has been concluded after police say no evidence was found to support the victim's claims.

Cindy Williams reported to police on September 2, 2010 that she was sexually assaulted by two police officers shortly after she returned to Grand Bahama following a trip to New Providence.

Police say Williams alleged that on Wednesday, September 1, 2010 she was travelling on the eastern part of the island when two officers made her exit her vehicle and one proceeded to sexually assault her with his firearm.

Police say an extensive investigation was carried out due to the nature of the allegations with a team from the Complaints and Corruption Branch in New Providence visiting Grand Bahama to investigate.

"Nothing was spared in the investigation, including very costly forensic examinations, to identify the alleged culprits of what appeared to be a heinous violation of Williams' rights and dignity," police said.

Williams had taken her allegation of assault to the media appearing on a local television program.

According to police, every effort was made to ensure that people outside the police force were able to review the evidence and after the investigation, the complete file was turned over to the Office of the Attorney General for legal advice.

"No evidence was found to substantiate any of the claims made by Ms. Williams. None of her story was corroborated by any witnesses, surveillance footage, or forensic examinations," police said. "The Office of the Attorney General concluded that there was insufficient evidence or any suspect for the offence of Rape Contrary to Section 6 (1) of the Sexual Offences to be filed."

Police said the investigation into the incident, which has brought a tremendous amount of embarrassment to the commissioner of police and the Royal Bahamas Police Force is now officially closed.

"They were very serious allegations and cast a very negative light on an organization that prides itself on being a disciplined and upstanding organization. If true, this one incident could have eroded the public's trust and confidence in the organization and its ability to effectively protect its citizens, as those who are sworn to protect and serve, would have engaged in perhaps one of the most heinous and degrading acts that can be perpetrated on a female," police said.

Police said now that the investigation has been completed, it is hoped that the integrity of the men and women of the police force will remain intact.

"We wish to reassure all citizens that where allegations of misconduct are reported against any member of the organization, they will be vigorously and professionally investigated," police said.

The Royal Bahamas Police also sought to assure that in instances where police wrongdoings are exposed, guilty officers will be dealt with through its internal discipline system or through the court system.

Police also said that when false or unsubstantiated claims are made against officers, it can bring charges against the accuser, according to law.

"While bringing criminal charges against Williams was an option, the commissioner of police has decided not to in this instance for reasons that will not be disclosed. We wish Williams well, and wish to assure her of our fullest support in all matters," police said.

Link: http://freeport.nassauguardian.net/national_local/112642049613874.php

No evidence in alleged police sexual assault

A year-long internal investigation into allegations of sexual assault by police officers has been concluded after police say no evidence was found to support the victim's claims.

Sunday, September 25, 2011

Op-ed: Sometimes Rape, Sometimes Less: Consent, Prudence, and Mitigation

The Old Philosopher*

[FRS Editor: The views expressed in this op-ed are the guest author's.]

I am not a lawyer, nor have I been a law-student. I do notice that legal writing and argument makes much use of analogy and metaphor—more than do biological and social science, where I have more experience. Changes in sexual morality and the laws governing sexual conduct have been great in the past 50 years; and I suspect that many of the analogies and metaphors on which the laws of “sexual imposition” are based, are no longer as valid as they might have been when dress was more modest and virginity at marriage, much more common. (For that matter, marriage itself was more common, and different, 50 years ago—which is a related subject on which I've recently written.)


The following metaphor better fits modern than mid-20th Century sexual customs—because most modern adults are sexually experienced—and the main difference is that 50 years ago, many more women and rather many more men would have clearly indicated limits if they even “got to the first kiss”with a recent acquaintance. The implied consent in “progress toward coitus” may merit repetition by others. Such repetition gives these metaphors weight when argued at law.

Once upon a time, rape was a capital crime: Men were put to death for rape. The public image of rape as a crime punished by death, was of a rapist who was uncaring to the point of evil and a victim who was totally unwilling, resisting as completely as possible. Such crimes are indeed horrible and repellent. They make up a small fraction of the events that today can be called “rape”.

Few indeed are the men who would grab some modestly dressed woman who they don't even know by name, take her by force to some secluded place whether indoors or out, and impose intercourse on her against her total resistance. Comparably few are the men who would drug some modestly dressed woman who shows no sexual interest in them, and impose intercourse while the drug has rendered her unable to resist.

Also few are the women who would drug some modestly dressed man who shows no sexual interest in them, and impose intercourse while the drug has rendered him unable to resist. (There is some cultural hint, in sayings such as “poison is a woman's weapon”, that more women than men might be disposed to commit “drug rape”; but no real empirical evidence either way that i know-of. And it is imaginable that a woman might impose rape by force rather than drugs, but in general women have less average large-muscle strength and grace, so on average men are more capable of “forcible rape” than women .)

If the above are the stereotypical images of “real rape”, and they are not the commonest examples of what gets referred to as 'rape', perhaps there should be more ways to refer to sexual imposition than just “rape”. Though some of you reading this can guess what comes next, it is worth reviewing what the vulgar tongue calls “finishing what we started”, “giving a cock-teaser what she was asking for”, and “getting drunk and doing what I/we wouldn't have done sober”, including the possibility that the man rather than the woman was the one who decided not to go all the way and got over-ruled.

Here's a classic stereotypical summary: “She met him at a dance, took him to an after-party, teased him up, and said 'No' when it came to the action. He wouldn't take no for an answer.” This indicates that the woman was quite far from modest and that short of intercourse, she took much of the initiative. “He” accepted her initiative and then required her to “follow through”. Many men who would regard the rape of a modest innocent stranger as evil, having been “teased up”, would then regard intercourse as “finishing what we started”, or “giving a cock teaser what she was asking for”.

“Finishing what a cock teaser started” is not something we should bless—a sudden change of attitude deserves some respect, though it's also reasonable to stop trusting people who change their attitudes like that. But failure to conform to a sudden change of attitude, is not equal to the forcible rape of a modest and completely unwilling stranger. Erotic play is how the process that leads to intercourse, normally begins. People who want to be erotically playful but stop short of intercourse, should say “how far they want to go”, clearly, before the first kiss—or if the first kiss was unexpectedly spontaneous, before the fourth.

Consider a non-sexual analogy: We should not equate careless driving which results in an accident injuring a passenger with the cold-blooded premeditated assault of an innocent victim—and the law does not. Careless driving which results in an accident causing injury to a passenger is likely to have some such legal name as “negligence causing bodily harm”. If the careless driving was done by someone who was visibly drunk, the passengers are likely to be regarded as complicit because they consented to ride with a visibly impaired driver.

Often, car passengers who have been partying, and the erotically flirtatious, are going to forget to take those prudent steps. If they do take the prudent steps, they may find prudence to “be a deal-killer”. The driver who may or may not be legally too drunk, is somewhat likely to say “so call a f...... taxi”. The [wo]man who is asked to specify how far the flirtatious eroticism is to go, may well respond “Nowhere.”

To add one more metaphor, the only place to skate at all may be on thin ice.

Having “set the scene”, complete with difficulties and mixed motives, let us reflect on the implications of consent “short of intercourse”, and of knowingly inciting sexual arousal. One important part of the context of any evaluation of sexual assault or even harassment, is the normal course of “sexual relations that go all the way”. Few couples suddenly copulate without “foreplay”. Nearly all mutually consenting couples go through a sequence of increasingly intimate pleasuring, with intercourse being the consummation of the sequence. The kiss isn't the start, either, it's Stage Three or later.

It may be helpful to draw an analogy between a sexual encounter and neither driving nor skating, but a strenuous day-hike, perhaps to the top of a small mountain: Both “sex” and light-climbing require some vigor and fitness to be at their best, both can be called-off before the summit is reached, and both have a usual sequence that usually “goes all the way”. The hiking starts with dressing appropriately (high heels might do to start a sexual encounter but not to start a serious hike), perhaps carrying a rain jacket, a first-aid kit, a canteen of water, perhaps a snack. Serious hikers usually walk with longer, faster strides than “strollers”, and a different posture.

The erotic start can involve postures, sensual movements of the body, “come-hither looks”, erotic words, and clothing [or lack of clothing] that shows off the body's erotic potential. One way or another, usually more than one way at once, both parties show what i'll call “deliberate immodesty”. Strict modesty has many examples, such as the clothing and body-language of Amish and Hutterites, monks and nuns, strict Muslims, and “prudes”. There are modest facial expressions and “prim and proper” ways of speaking—and there are ways that faces and words can insinuate and hint at sexuality. Stage One is a flirtatious appearance and way of speaking.

Stage Two usually involves body contact “short of kissing”; dancing and holding hands often are involved. Both dancing and holding hands can be non-erotic, can be prim-and-proper. Most people can easily recognize what's plainly erotic and what's plainly eros-free; but sometimes there is ambiguity. A Boy Scout—or a 25-year-old student—can be dressed for hiking but not have time to go farther than the loop trail from the park gate to the river bridge and back. Walking along with him, you won't know that unless you ask.

Whether to call the first kiss Stage 3 or Stage 4 is not clear. Often an embrace leads up to the kiss, and the same kind of embrace can be merely affectionate, or can be a definite erotic initiative—or can be an inquiry, a “feeling out the other's level of interest.” Even long-married couples sometimes embrace sexually, but do not go on to kiss because something about the situation “limits how far they can go” at that time. Likewise, a kiss is often “as far as things go”: A recent public example was NDP Party Leader Jack Layton and his wife and fellow-MP Olivia Chow kissing in public shortly after the May 2 election. The kiss proclaimed their marriage and their erotic connection, and that was as much as the situation “would bless”. It was more erotic than the way either would have kissed their grandchildren, but not “as erotic as they could get” in private.

To use the trail analogy, they walked out on the bridge and looked at the river, but then walked back to the park gate—and to their work.

Kissing can have stages: The “deep kiss”, kissing the other's neck and earlobes, amount to going beyond “just kissing.” Caressing the other's clothed body comes with, or shortly after, those kinds of kissing—unless one person demands they go no further (or unless they have agreed in advance, to go no further.) The second serious kiss, the third and more, and the wandering hands, are across the river and starting up the mountain.

Few “Americans” or Canadians would regard consent to a kiss as implying consent to intercourse—especially if the person who then says “No further” is modestly dressed and has been using modest language and postures. There might well be some ambiguity, though, if a woman who is dressed and speaks provocatively, kisses a man, presses her half-covered body against him, and then acts offended when he responds by putting his hands or his next kiss on some of that skin that normally would be covered. And if a man wearing scanty clothing and “talking sexy”, kisses a woman who shows some interest, he is going to look phony at best if she then starts fondling him and he suddenly “turns prim and proper”. (If she turns out to be athletic enough to force him to finish the sequence, he's likely to get more chiding than sympathy if he complains to the Law. Perhaps the principle of gender equality could be used to apply the same attitude to women who tease-and-turn-prim?)

Some might call it rape, if one partner says “no further” after initiating several sexy kisses and “a few feels”, and the other gets excited and “won't take no for an answer”. Some people would call it something less. Few would say that insisting on “finishing what we started” with consensual erotic kissing, is morally “OK”; and few would call it identical to imposing intercourse on someone who was behaving modestly and consented to nothing more intimate than a handshake. It is bad semantics to call them both “rape," when in one case no steps were taken toward intercourse together, and in the other, some initial steps were consensual1.

“Fair play”, especially if one is about to initiate some sexy kissing, calls for a statement about “how far to go”. Holding hands, dancing, even “chaste kissing” such as some substantial fraction of the population would do with their grandchildren or grandparents, don't necessarily belong to the sequence that ends with intercourse. Erotic kissing, “caresses” or “fondling”, do. If the trail leads to the top of the mountain, and you want to go no farther than the first good view point—say so back at the river bridge, so your hiking partner won't be frustrated later. If you're still on the trail that loops back to the park gate, before the junction with the bridge to the summit trail, that's different.

After a few minutes of neck-and-ear kissing, deep-kissing, and feeling one another through the clothing, either the clothing will start to come off, or the hands will start to feel inside the clothing—or perhaps, one partner's body will stiffen and show resistance while his or her hands will stop caressing. It's one thing to start up the trail toward the summit and another to make the full climb, and while most people who start up the trail do want to make the climb and are able to, there can be sprained ankles, sore feet, heel blisters—and a few fools who don't realize they're not in good enough shape.2

If the person who loses interest is the one who initiated the sexy-kissing, [s]he owes the other an apology (as would a hiker who sprained his ankle or ran out of breath after walking a few hundred metres.)

Once both of you have your hands where the daylight seldom shines and it's obvious you're both enjoying the feeling in all three senses of the word, it's obvious where this leads, especially if you've been there before. You're doing something sexual now and you both know it. Your body contact is either teasing, or pre-coital. The trail is definitely going up the mountain. It has become “a real stretch” to refer to insisting on finishing the process, as rape—as equivalent to forcing coitus on a modest and totally unwilling victim.

Between consensual fondling and “kissing below the neck”, and full coitus, there may be cultural differences in what order-of-intimacy people perceive. Except where women are welcome to “go topless”, her breasts nearly always have more privacy than his chest. Some women seem to believe that they can fondle and kiss a man's chest and it means less than when he does the same to theirs. Both men and women differ in how intimate they mentally consider chest and breast contact—also in how exciting they find it—and the mental and physical ratings don't match up, either. Some people of both sexes get a lot of erotic pleasure and excitement from kisses and touch to their lower backs ....

... and one could go on to legs and feet, but this isn't meant to be “erotica”. It is meant to be context for the question of re-conceptualizing rape and sexual offenses short of rape; it is meant to be context for the question of prudence; and the point of mentioning individual differences is that no particular system orders the parts of the body from least to most intimate, between fondling below the neck and “the genitals.” Some women would consider their thighs more private than their breasts, for instance; others would consider their breasts more private.

To return to the hiking analogy, all mountains are different—and they all have summits. If both of you are hiking happily and steadily upward together, every step upward implies a greater commitment to finish the climb. If either of you wants to give up, the sooner said the better. A sore heel or a sprained ankle less than 500 metres from the top3 is less reason to quit, than the same trouble back near the start. A twinge of reluctance at the first kiss is more reason to quit than when you're down to your underpants, “lubricated”. and breathing hard.

Some people attach special significance to underpants, and believe it's “feeling around” or “foreplay” as long as you still have them on. The word “foreplay” is significant: It could be written “before-play”, and before what? The answer is obvious: Before intromission, before the penis enters the vagina, before it is definitely and unquestionably intercourse. Foreplay leads up to intercourse, If what you're doing, once you go beyond that second kiss or that neck kiss or that hand on the covered thigh or inside the shirt on his or her back, if what you're doing is not foreplay, then there should be a plan you agree on, that says what you are doing and how it will continue and end.

There are worse things that can come from flirtation, than stalling the process by asking about limits.

The farther you go without stating any other plan, the more you implicitly promise to have intercourse. If you are sexually experienced, you “know or ought to have known”—an important phrase in law—that this is so; that arousal builds on itself and motivates body contact that increases arousal, which increases body contact, until orgasm. (It may be worth noting here, that a virgin, and especially a virgin who has not experienced sex-play short of intercourse, cannot be expected to anticipate arousal as well as someone experienced; and that someone who has had only one or two sexual experiences cannot be expected to anticipate as well as someone who has had many... but sex-education in schools and churches will have warned most people of the general nature of sexual arousal.)

If you're not going to the summit, how high are you going?—and what's the reason to go that far rather than some other distance? To put this in anatomical rather than geographic terms, what parts of the body and what uses of the hands, mouth, nipples and genitals are in play and what are off bounds? What counts as a climax? The erotic climb creates erotic tensions, which normally lead to the satisfaction of orgasm, Are you going to “get each other off with your hands”?4 These things should be settled by the third erotic kiss—though often they are not, and that failure to settle them is imprudence.

The fact of arousal, the fact that it normally leads to orgasm, the fact that arousal without orgasm can lead to hours of frustrated feelings, are important to our task of “reconceptualizing what's rape and what's not.” Every contribution you make to someone else's arousal implies an intention to get her or him to orgasm, unless you have agreed otherwise beforehand. The greater the arousal you give someone, knowingly and willingly, the greater your responsibility to “finish what you started”. It's true the responsibility is never total—there can potentially be something like a broken leg or abdominal cramp that overrides an implicit promise to climb a trail to the summit—or to copulate—but the responsibility is neither zero, once you take the initiative to arouse someone else's desires.

Sexual consent short of intercourse mitigates the seriousness of any outcome more intimate than that to which consent was given. Human sexual arousal naturally leads toward coitus; adult human beings of dull-normal and higher intelligence know that, sexually experienced adults know it “full well”. Prudence and modesty may be called “old-fashioned”, but they are not out-of-date—definitely not expired and not fit for the dumpster. To neglect them is to take partial responsibility for any sexual consequences.

If this reflection opened with the topic of rape, it should close with some mention of some other “sexual consequences”: Responsibility for pregnancy especially, STDs, even emotional dependence. Experienced lawyers know that some women deliberately get pregnant to secure “child support” from men. Some pursue a longer-term strategy of pregnancy, marriage, and divorce, with much larger financial claims. Some are less strategically deliberate, but still exploit men and with sex as their modus operandi. Intercourse has adverse consequences other than sexual-assault charges, to put the matter formally.

STDs are among those adverse experiences; and the 1970s notion that penicillin will quickly cure any (VD, they were called then) you catch while having fun with your crotch, is simply false. It was fairly close to true in the 1970s, but syphilis and gonorrhea have evolved resistant strains, while AIDS is a virus disease and antibiotics don't work against viruses. This is not the place for a detailed hygiene discourse; the main point is that condoms, used with care, combine contraception with STD “prophylaxis”. They are not perfect. Abstinence—including from some forms of intimacy short of intercourse—is the only perfect contraceptive and the only perfect prophylaxis. But condoms are far safer than other contraceptives simply because they are also prophylactics (and in the 1950s, were so labelled in the US, rather than being called “condoms”.)

I am not a maker nor a seller of condoms. Indeed, I have been sexually abstinent “for several years” and while not taking out advertising to make my abstinence known, I do acknowledge it when the situation warrants. From the somewhat neutral perspective of that long-standing abstinence, I can claim some objectivity in writing about sex, about mitigation of “rape”, and about prudence. (I anticipate writing later, about possible categories of sexual imposition short of “rape”; and the tone of that text will not be the same as this one's; so to conclude, let me add to safe driving and hill climbing, another metaphor that is often applied to sex.)

Playing with matches is fun for small children. We restrict such play, and insist that children learn and follow safety rules before they are allowed to have matches. Usually we supervise their first experiences using matches, quite carefully. It might be a very good idea to treat sex analogously: When children learn to use matches, they learn to light campfires, candles, cooking-fires, perhaps kerosene and pressure lanterns. When grown-ups play with erotic arousal, there might be more fun and fewer disasters, if we identify a set of erotic alternatives not exactly analogous but comparable to the alternative ways we can use matches. We might even be wise to have a chaperon for our first erotic explorations, which is one reason double-dating was recommended in the 1950s and early '60s, and chaperons were normal in earlier days (and still are in some other civilized societies).

It's not entirely an accident that I close this “reflection” with the subject of fire. Climbing may offer a better analogy for the progress from kissing to coitus; but the metaphor, “playing with fire”, has validity. If we apply the attitude of prudence we have always applied to fire, to sex, we might be much better off.

FOOTNOTES:
1.  Perhaps by analogy to murder, there might be “First degree” and “second degree” rape, and analogues to “manslaughter” and “negligence causing death”. The distinction is not exactly that of premeditation, however, and i can think of no consensual act that would be murder without consent; so the analogy is doubly imperfect.

2.  Let's keep in mind that this is a low mountain, 500-1000 metres in height from base, not the Andes or the Himalayas or even the major peaks of the Rockies and Alps. My analogy here is to a vigorous day-hike, not a major expedition.

3.  This is intended to refer to trail distance; vertical distance on a day climb would usually be 1/10 to ¼ as much.

4.  To return to the land-form language, are you going to timberline? to the bottom of a scree slope that is tedious and somewhat dangerous? to where you'd need a rope for safety? In mountaineering, it can be more dangerous coming down than going up. Once you get to where you feel a good deal safer climbing with hands as well as feet, than with feet only—you had better have your route back down well worked out.

The analogy to sex is far from perfect: Orgasm is natural and in itself, safe. If you call orgasm the summit, then the summit itself gets you much of the way back down to the river bridge, which mountains don't do. The natural way down from sexual arousal is dangerous in quite different ways: STDs, psychological attachment and-or anger, perhaps a morning-after regret that you did what you did.

*Davd Martin (Ph.D., 1966, Sociology) has been a professor, a single parent on a low income as a commercial herb gardener, and editor of Ecoforestry. His men's-interest essays and blogs have appeared on The Spearhead and everyman.ca, and now on this site.

Op-ed: Sometimes Rape, Sometimes Less: Consent, Prudence, and Mitigation

The Old Philosopher*

[FRS Editor: The views expressed in this op-ed are the guest author's.]

Friday, September 23, 2011

Court: daughter's dream that father raped her 12 years earlier was inspired by true memories; father convicted of rape

A 26-year-old Israeli woman, living in New York, claimed she had a dream four years earlier, when she was 22-years-old, that prompted her to recall that her father had raped her when she was 10-years-old. It took four years after the purported dream before the woman supposedly summoned the courage to return to Israel and submit a police complaint about her father.

A Tel Aviv court accepted the word of expert witnesses who said that the woman’s dream was inspired by real memories. The court pointed to the fact that she had experienced similar nightmares previously and had told her cousin that she felt her father had “done something to her.” The woman had also expressed discomfort about her relationship with her father and felt disgusted by him, they noted.

Said one expert witness: “The clinical symptoms, personal and interpersonal dynamics and the way the complainant tells the story fit the characteristics of fathers who harm their daughters.”

And that was enough to convict the father of raping his daughter. The father was sentenced to a 12 year prison term on a claim of "he said, she dreamed" rape.

The case in Tel Aviv should trigger painful memories of US parents, especially fathers, stung by the recovered memory craze from the mid-80s to mid-90s when there were thousands of false memory cases across America -- daughters suddenly remembered that their fathers raped them twenty years earlier, when they were toddlers.

One such case involved Katie Spanuello’s daughter, who accused Katie and her husband of abusing her as a child. It turns out the allegations were made only after the daughter had read a book called “The Courage to Heal,” written by feminist poet and creative writing teacher Ellen Bass and incest survivor Laura Davis, which encouraged women to find the source of their emotional problems by dredging up painful memories of childhood abuse. The problem is, many women dredged up things that never happened. Aside from reading “The Courage to Heal,” according to Katie Spanuello, the daughter made her false claim only after affiliating herself with “militant feminists.” The daughter eventually recanted her claim.  See here.

Many of the cases took on a lurid, sensational quality involving satanic rituals, with wild, far-fetched allegations that were accepted at face value for no reason other than the fact that a child uttered them.

In Friedman v. Rehal, No. 08-0297 (2d Cir. filed August 16, 2010), the Second Circuit Court of Appeals explained: “Overall, at least seventy-two individuals were convicted in nearly a dozen major child sex abuse and satanic ritual prosecutions between 1984 and 1995, although almost all the convictions have since been reversed. . . . Some defendants, fearing trial, pled guilty or ‘no contest’ to impossible acts of ritualistic abuse, and in some cases they provided detailed confessions in exchange for immunity or generous plea bargains. . . . . Many have described these widespread prosecutions as a modern-day ‘witch hunt.’

“These prosecutions were largely based on memories that alleged victims ‘recovered’ through suggestive memory recovery tactics . . . . Indeed, the dramatic increase in conspiratorial charges of child sexual abuse has been traced to a relatively small group of clinical psychologists who supported the psychoanalytic notion of ‘repressed memories’ and encouraged patients to employ extensive ‘memory recovery procedures’ to ‘break through the barrier of repression and bring memories into conscious awareness.’”

Although mothers were not spared from the daggers of their daughters’ lies in false memory cases, fathers, and their penises, were, and still are, the primary targets of repressed memories.

While it might seem other-worldly that we would permit witch doctors to determine whether men languish behind bars in sometimes inhumane prisons for many years, when it comes to men and sex crime allegations, no “science” is too bizarre, primitive, or inhumane. It’s for that reason that penile plethysmograph testing, a sort a junk science polygraph of penises, and “masturbatory satiation” sessions, are often used as a basis to decide whether men and boys convicted of sex offenses should be released from custody.

I have a better idea to decide the fate of a man accused of a sex offense: bind his hands and feet, and throw him in a lake. If he floats, he’s guilty.

Dream rape story here: http://www.jpost.com/NationalNews/Article.aspx?id=239102

Court: daughter's dream that father raped her 12 years earlier was inspired by true memories; father convicted of rape

A 26-year-old Israeli woman, living in New York, claimed she had a dream four years earlier, when she was 22-years-old, that prompted her to recall that her father had raped her when she was 10-years-old. It took four years after the purported dream before the woman supposedly summoned the courage to return to Israel and submit a police complaint about her father.

Man cleared of sexual assault allegation to seek compensation

We’ve discussed this on our site before. How exactly do you defend yourself from a claim when that claim is made years after the fact, and any evidence, or even eyewitnesses, wouldn’t be possible to produce?

That is the problem that a former chiropractor and osteopath faced. The good news for him is that it took only 20 minutes for a jury to clear him of a sexual assault charge. One of the more interesting aspects of the case is that he represented himself during the trial, and prevailed. And when, you ask, did this assault allegedly take place? In 1971. Think about that. Can anyone here state what they were doing 40 years ago? With any degree of precision? I doubt it.

And yet last year, this doctor was arrested and this year went to trial. The claim is that he had sexually assaulted a 12 year old during a consultation.

The doctor is currently talking to attorneys to sue the state for unlawful arrest, and misconduct during the investigation. He also has plans to sue the complainant for a false allegation.

Among the man’s claims are the following:

  • The complainant was told her alleged attacker would be in a certain courtroom on a certain day so she could refresh her memory of what he looked like;
  • Police suggested to the complainant’s brother that he change his statement to say that it was possible their mother could have left the consultation room and left his sister and the chiropractor alone.
  • Prosecutors chose not to investigate Yellow Pages evidence given by the man that he was not practising at the premises at the time it was alleged the assault took place.
The man said he is writing to the Commissioner of Police to complain about the actions of police in the case, and he is also complaining to the Law Society about the complainant, who is a lawyer.

After charges were brought against him, the Chiropractic Council had imposed restrictions on his practice that caused loss of income.

He is demanding the restrictions be removed.

The man said said he had also suffered a loss of reputation over the case and had been the subject of malicious gossip in Wagga.

Link:
http://www.dailyadvertiser.com.au/news/local/news/general/man-cleared-of-sexual-assault-allegation-to-seek-compensation/2301096.aspx

Court: unwanted sex does not necessarily equal rape

In People v. Sojka, 2011 Cal.App. LEXIS 733 (2011), a case decided in June but, apparently, not reported by the news media, a California appellate court reversed John F. Sojka’s conviction for attempted rape by force. The court's opinion is "must reading" for anyone who follows these issues because it illustrates a fundamental and crucial principle: there is no rape if the defendant reasonably believed the woman consented.

Mr. Sojka met his accuser early one evening in a bar. The two struck up a conversation and Sojka bought her a beer. One beer led to another, and the two left and went to another bar where they socialized with other patrons, continued drinking, and played pool until about midnight. Over the course of the evening Sojka and the accuser were mildly amorous with one another. They left the bar and Sojka offered to give the accuser a ride home. He says that once the two got into his car, they kissed and caressed each other for about 15 minutes. The accuser does not remember doing so, but recalled being affectionate with Sojka and not at all apprehensive about him. He was feeling good about her, and thought the two might have sex.

Their accounts of what happened once they arrived at the woman's apartment are starkly different. It is well to note that this was a classic "he said/she said" case. According to the appellate court: “The evidence concerning the sexual interaction between Sojka and his victim was hotly disputed . . . .” She claimed he raped her despite her protestations.Sojka, on the other hand, testified that the two started kissing, removed each other's clothes and dropped to the floor. He fondled her and performed oral sex on her. She seemed excited, and was moaning a little bit, indicating she was enjoying their foreplay. She did not complain, resist or act like she wanted him to stop. Sojka climbed on top of her to initiate sexual intercourse, but she pushed him and yelled at him to stop. He got up, put his clothes on and left the apartment.

She called her boyfriend and best friend, went to bed, then called 911 shortly after 5:00 a.m. Despite the "he said/she said" nature of the accounts, Sojka was convicted of attempted rape by force and was sentenced to three years in prison.

The appellate court reversed because the jury was misinformed about the law of consent. The court explained that there is no rape if there was substantial evidence of equivocal conduct on the part of the complainant that would have led a defendant to reasonably and in good faith believe consent existed where it did not. If there is such evidence, the jury should be instructed about the law of mistake.

In fact, the prosecution misled the jury to believe that the law was much simpler: the prosecutor told the jury that either she consented or she didn't, and Sojka's belief about whether  she did -- regardless of whether his belief was reasonable -- was irrelevant.

The court held that the trial court's failure to instruct on the potential effect of Sojka's good faith but mistaken belief was prejudicial to Sojka, and it reversed the conviction. 

The court's holding is merely another way of stating that the accuser's subjective or secret intentions, desires, or whims do not matter if her outward manifestations of assent, even if equivocal, led the defendant to reasonably believe she consented.  In other words, "unwanted sex," in and of itself, does not necessarily mean that rape was committed.

Man cleared of sexual assault allegation to seek compensation

We’ve discussed this on our site before. How exactly do you defend yourself from a claim when that claim is made years after the fact, and any evidence, or even eyewitnesses, wouldn’t be possible to produce?

Court: unwanted sex does not necessarily equal rape

In People v. Sojka, 2011 Cal.App. LEXIS 733 (2011), a case decided in June but, apparently, not reported by the news media, a California appellate court reversed John F. Sojka’s conviction for attempted rape by force. The court's opinion is "must reading" for anyone who follows these issues because it illustrates a fundamental and crucial principle: there is no rape if the defendant reasonably believed the woman consented.

Thursday, September 22, 2011

False rape accuser is in trouble again -- this time, for raising money for daughter's fake disease

Northampton County’s district attorney is warning the public about a 22-year-old woman who has raised at least $10,000 in numerous fundraisers on an allegedly false claim that her baby girl has juvenile leukemia.  Arielle Lucinda Brooks -- who also goes by the name Arielle Odom, Luci Brooks and Arielle Lucinda Poor -- has been raising money for her daughter, Myah, since shortly after Myah was born in July 2010, District Attorney John Morganelli said. Brooks, 22, claims Myah suffers from juvenile leukemia, but Morganelli said “it is our belief the baby is perfectly healthy.”  The district attorney announced he will be charging Ms. Odom/Brooks/Poor soon.

It turns out Ms. Odom/Brooks/Poor has been in trouble with the law before.

In 2009, Brooks received a suspended sentence for abduction and contributing to the delinquency of minors.

Before that, on April 6, 2008, she called and sent text messages to a Berks County man she knew, claiming she had been kidnapped by four assailants who forced her into a van, stripped her and bound her with tape.

The man reported the allegation to police, and police launched a dragnet for the purported van that involved three state police barracks, a state police helicopter, and five municipal departments.

Alas, Police located Ms. Odom/Brooks/Poor at home, where they traced her cellphone, records show.

Brooks gave a written statement saying she had been kidnapped -- and raped -- by each of four men, with one also burning her with a cigar, records say. A medical examination showed no signs of injury, and police said they accounted for Odom/Brooks/Poor's  whereabouts during the time she claimed she had been abducted.

Her punishment? Odom/Brooks/Poor was placed on one year of probation and ordered to do 25 hours of community service by Northampton County Judge Anthony Beltrami.

Sources:
http://www.mcall.com/news/local/parkland/mc-northampton-sick-baby-fraud-myah-20110921,0,4807043.story

http://www.lehighvalleylive.com/breaking-news/index.ssf/2011/09/da_claims_local_mom_is_alleged.html

False rape accuser is in trouble again -- this time, for raising money for daughter's fake disease

Northampton County’s district attorney is warning the public about a 22-year-old woman who has raised at least $10,000 in numerous fundraisers on an allegedly false claim that her baby girl has juvenile leukemia.  Arielle Lucinda Brooks -- who also goes by the name Arielle Odom, Luci Brooks and Arielle Lucinda Poor -- has been raising money for her daughter, Myah, since shortly after Myah was born in July 2010, District Attorney John Morganelli said. Brooks, 22, claims Myah suffers from juvenile leukemia, but Morganelli said “it is our belief the baby is perfectly healthy.”  The district attorney announced he will be charging Ms. Odom/Brooks/Poor soon.

It turns out Ms. Odom/Brooks/Poor has been in trouble with the law before.

'Not a rape culture, just a PC one'

A woman states some things that are so obvious, it's astounding anyone found the need to say them: here

'Not a rape culture, just a PC one'

A woman states some things that are so obvious, it's astounding anyone found the need to say them: here

Before he was hanged, the boy cried and called for his mother

Amnesty International said 17-year-old Alireza Molla-Soltani had acted in self-defense during a fight over a driving accident with a popular Iranian athlete. The boy so testified in a trial this past summer.

That didn't stop Iran from publicly hanging the teen before a large crowd this morning. The execution was widely condemned in the world community.

The state-run Fars news agency reported that, before he was hanged from a crane, Alireza was crying loudly and asking for forgiveness while calling for his mother and some religious figures.

Iran has ratified the UN convention on the Rights of the Child, which bans the death penalty for offences committed by persons under the age of 18 but Iran claims he was not a minor. After the execution, Ali Rezwanmanesh, the representative of the Judiciary present at the scene of execution, told news reporters that "Alireza was not a minor, according to Sharia, since in the Sharia the lunar calender in used and the years are shorter."

This was execution number 202 in Iran, just this year. "Along with China, Saudi Arabia and the United States, Iran has one of the highest numbers of executions each year." http://www.dailymail.co.uk/news/article-2040041/Alireza-Molla-Soltani-execution-Teenager-publicly-hanged-killing-Irans-strongest-man.html

Before he was hanged, the boy cried and called for his mother

Amnesty International said 17-year-old Alireza Molla-Soltani had acted in self-defense during a fight over a driving accident with a popular Iranian athlete. The boy so testified in a trial this past summer.

That didn't stop Iran from publicly hanging the teen before a large crowd this morning. The execution was widely condemned in the world community.

News Roundup

▲A bizarre case. It only took the jurors two hours to acquit Ruben Bunn of one count of sexual assault. Prosecutors argued the woman was too intoxicated after a day of drinking to consent to having sex with Bunn, but the jury obviously had a reasonable doubt. Bunn, testifying in his own defence, told jurors he asked the woman three times if she wanted to have sex with him and she said yes each time. "I'm not a sexual predator," he told jurors. The woman's aunt broke down a bedroom door and found Bunn on top of the woman with his pants around his ankles. Here's where it gets bizarre: the woman's aunt and mother beat the man with a coin-filled "Texas mickey" bottle and kicked him out of the house. He returned a short time later to "apologize" and was attacked again. Police found the man a short time later at his home, seriously injured. Bunn was taken to hospital for treatment and then arrested.

Lynn Kochenderfer, 41, pleaded guilty to falsely reporting an incident after she told Bowling Green police that a hospital tech sexually assaulted her at a hospital. Kochenderfer and the tech exchanged sexually explicit text messages in which they both discussed sex acts that they would like to perform with each other.  The accuser claimed that only the tech texted her. She also alleged that the tech came into her hospital room and that the two had sex. She never resisted the tech’s advances or told him “no,” but claims she was shocked about the incident and heavily medicated. Nevertheless, she eventually pleaded guilty.

Amanda Angelero called 911 from a pay phone and described in specific detail an imaginary man she said had assaulted her in her apartment before stealing her wallet, cell phone and car. Investigators found the woman's red 1994 Honda parked in a parking spot. The car was heavily damaged.  When a deputy asked Angelero about the damage, he detected the "moderate to heavy odor" of alcohol. She denied drinking, and changed her story: The man had tried to rape her, she now said, and after she fought him off, he crashed the car into a tree, fleeing on foot. But a witness told deputies that it was Angelero, not an assailant, who crashed the car into a tree and a sign. Investigators noted that she continually changed her version of events, which never added up. As many as 18 deputies were involved in investigating and searching for the man Angelero had said attacked her. She was charged with misusing the 911 emergency system and making false reports to law enforcement.

▲An 18-year-old woman has been ordered to serve two years of probation after she pleaded guilty to falsely accusing a police officer of raping her. 18-year-old Meghan Franks must serve 90 days in the parish jail and pay fines totaling $1,140 plus court costs.

Engra Bellamy who once was convicted of rape has settled a $25 million federal lawsuit that claimed his Fifth and Sixth amendment rights were violated by police officers who did not advise him about his right to remain silent before secretly taping conversations with him while he underwent medical treatment at a local hospital. The terms of the settlement were not disclosed. Bellamy was convicted and sentenced to seven years in prison for that alleged rape (by the way, his accuser admitted to making a false rape claim as a juvenile). Before the trial, but following his arrest, Bellamy was hospitalized after an asthma attack. A female officer was posted at his door, where the two spoke for about four hours. Bellamy was not read his Miranda rights but made incriminating statements. The following night the police officer, Alyssa Campbell Wells, wore a hidden recording device. Again, Bellamy made incriminating statements. In 2006, the Virginia Court of Appeals tossed Bellamy's rape conviction and sentence after ruling police failed to read him his rights and also violated his right to an attorney. He eventually pleaded guilty to a charge of assault and battery. That same year, Bellamy's accuser received 10 days in jail after giving conflicting testimony in an unrelated assault case.

News Roundup

▲A bizarre case. It only took the jurors two hours to acquit Ruben Bunn of one count of sexual assault. Prosecutors argued the woman was too intoxicated after a day of drinking to consent to having sex with Bunn, but the jury obviously had a reasonable doubt. Bunn, testifying in his own defence, told jurors he asked the woman three times if she wanted to have sex with him and she said yes each time. "I'm not a sexual predator," he told jurors. The woman's aunt broke down a bedroom door and found Bunn on top of the woman with his pants around his ankles. Here's where it gets bizarre: the woman's aunt and mother beat the man with a coin-filled "Texas mickey" bottle and kicked him out of the house. He returned a short time later to "apologize" and was attacked again. Police found the man a short time later at his home, seriously injured. Bunn was taken to hospital for treatment and then arrested.

Wednesday, September 21, 2011

State suppresses evidence that might have cleared man of sexual assault charge

This post raises important issues. In DeSimone v. State of Iowa, No. 09-0844, 2011 Iowa Sup. LEXIS 68 (2011), the Iowa Supreme Court ordered a new trial for David R. DeSimone who was convicted in 2004 of sexually abusing a 17-year-old girl. The girl is referred to in the court's opinion only as "Samantha." The court granted a new trial because prosecutors withheld evidence that would have impeached the testimony of a prosecution witness and could have led to a different verdict.

What happened is chilling, and a gross miscarriage of justice: Samantha claimed that she attended a party on the evening of October 16-17, 2004 at DeSimone's house and that, thereafter, he raped her in his bedroom. According to the court's opinion: "After intercourse, Samantha put on her clothes and quickly ran out of the house. . . . She stated a car almost hit her when she ran across Camanche Avenue, the street outside of DeSimone's home. She eventually ran to a nearby Hy-Vee grocery store."

The State did not present any DNA or medical evidence to substantiate Samantha's claim of sexual abuse. "Indeed," the court wrote, "there was none." The State's case rested solely on the credibility of Samantha (and Samantha's testimony was rife with inconsistencies) and three corroborating witnesses.

At trial, it was revealed that Samantha was in contact with people not only familiar with DeSimone but who had reason to dislike him. For example, Samantha previously lived with the niece of DeSimone's estranged wife. The neice had previously made sexual abuse allegations against DeSimone.

The real problem concerned a prosecution witness named Nicole, an eighteen-year-old high school student who had known Samantha for about two months prior to trial. They met through a mutual friend.  The following is from the court's opinion:

"Nicole testified that one evening [after the alleged assault] she and Samantha were driving on Camanche Avenue, the road DeSimone's home is on, and Samantha told her about the sexual assault. According to Nicole, Samantha's story triggered her memory of an incident that occurred after leaving work early one morning in October 2004 [the month the alleged assault at issue occurred]. Nicole testified she got off work from Burger King at 2:30 a.m. and, while driving on Camanche Avenue, a girl 'ran right in front of my vehicle to try to get me to stop, but I almost hit her, so I swerved.' She stated she did not stop because she was scared and did not call the police because she was not sure what was going on." (Emphasis added -- note the time Nicole claimed she got off work.)

Nicole's testimony just happened to corroborate Samantha's testimony that a car almost hit her as she ran out of DeSimone's house and across Camanche Avenue.
 
DeSimone was convicted, but he couldn't let let go of the fact that Nicole's testimony seemed entirely too coincidental. DeSimone took it upon himself to write a letter to Burger King and ask about the hours Nicole worked on October 16-17. (Remember, Nicole said she worked until 2:30 a.m.)

Burger King responded with a letter and timecard copy showing that Nicole punched out of work at 3:30 a.m. on October 17.

It gets worse. Burger King's letter also stated that Burger King had provided copies of Nicole's timecard to the Clinton Police Department in August 2005, several weeks before DeSimone's trial. The information had not been turned over to Mr. DeSimone's lawyer, and the state put a witness on the stand that it knew or should have known contradicted information contained on a business record.

What was the import of the information provided by Burger King? The alleged victim, Samantha, called 911 at 3:06 a.m. on October 17 from the Hy-Vee store. Therefore, Nicole's timecard establishes that Nicole could not have seen Samantha running across Camanche Avenue on the morning of October 17 as the prosecutor contended.

The court concluded that the prosecution had suppressed the evidence. The prosecution put a witness on the stand who gave testimony that wasn't true, and that was important to the state's case against Mr. DeSimone. Here is what the court said: in "a case that hinges on a victim's credibility, evidence that impeaches one of the victim's few corroborating witnesses is, without question, favorable to the accused."

DeSimone's appeals attorney told a local paper that he believes the suppression of the evidence was accidental. See here: http://globegazette.com/news/iowa/court-orders-new-trial-in-sex-assault-case/article_0b6829b8-db60-11e0-ad8a-001cc4c002e0.html

At the retrial, both Nicole and Samantha will have much explaining to do. The "incredible coincidence that wasn't" should help Mr. DeSimone paint Samantha as an untrustworthy witness.

We don't have any idea whether DeSimone is factually innocent, but allowing Nicole's testimony to be presented when it was contradicted by a business record that was not produced to defense counsel means that a man was sent away to prison for many years for a crime he might not have committed. That should be a concern to all of us.