Friday, December 28, 2012

'Bygones Be Bygones': The Unspeakable Injustice to Brian Banks

Brian Banks suffered an unspeakable injustice. He was falsely accused of rape and spent years in prison for something he didn't do. His story is a chilling case study in the byzantine ways our culture tolerates the harsh treatment of innocents as the price of battling serious sex crimes. It is a somber warning that the witch-hunt hysteria fomented by self-anointed rape avengers of yesteryear is alive and well in 21st Century America, a nation punch drunk on law and order and building prisons to quench its pathological fear of young minority men. 

The story has a triumphant ending. After a wrongful conviction, five years of prison and then five years of parole when he was forced to register as a sex offender and wear a tracking device like an animal, on April 3, 2013, Brian Banks signed a contract to play for the Atlanta Falcons of the National Football League. It was a testament to Brian Banks' fortitude and determination, but the decade before that triumph would have crushed almost anyone else. This is the story of how a false accuser, and a system that didn't give a damn, snatched a decade from a young man. 

On July 8, 2002, Brian Banks, a 6-foot-3, 225-pound 16-year-old linebacker for Long Beach Poly High, felt like he was on "top of the world." He was a star football player heavily recruited by a number of colleges, including USC, which verbally offered him a full scholarship. Before the day was over, Brian's world would be turned upside down.

Just before noon, Brian was on his way to the school office to talk about his college applications when he bumped into a 15-year-old sophomore classmate named Wanetta Gibson. Brian had known Gibson since middle school. They were not in a relationship, but they decided to "make out" in a secluded alcove at the school.  "[W]e kissed, we groped we touched, but we never had sex,” Brian said.

Later that day, Brian knew something was wrong when he saw a number of police officers hanging around the school. Then, he saw Gibson coming out of a school office accompanied by police.  Brian had never been in trouble with police, but now he felt his heart jumping out of his body.

The Lie

Gibson had told police that Brian raped her. Brian would later say she didn't want her family to know she was sexually active. She claimed that she supposedly left history class at about 11:45 a.m. to use the restroom, and she passed Brian on the way. After Gibson exited the restroom, Brian allegedly grabbed her and pushed her into an elevator. The elevator supposedly went up one floor, then Brian allegedly forced Gibson out and dragged her down the hall and back down two flights of stairs to a secluded alcove where the purported assault was carried out over the course of 15 to 20 minutes.  Gibson claimed Brian ejaculated inside her.

Brian was arrested and charged as an adult on two counts of forcible rape and one count of sodomy by force, and he was taken into custody.  "We believe this to be an isolated incident,'' declared Long Beach Police Officer Jana Blair, both assuring a skittish public of its safety and giving credence to Gibson's account at the same time. 

From the outset, Brian claimed the encounter was consensual, and that there was no intercourse.  Less than a month after Brian's arrest, the co-principal at the school where he had only recently been a star declared that Brian "will not be returning to Poly regardless of the outcome of any judicial procedures."  Why?  Even if he was cleared of wrongdoing, Long Beach Unified School District spokesman Dick Van Der Laan said Brian violated the district's guidance and discipline code because he supposedly had consensual sex on school grounds. No one bothered to ask whether Gibson would receive the same punishment if if turned out her rape allegation was a lie.

Gibson's Story Doesn't Make Sense

There were no witnesses to the alleged rape, and Gibson's story didn't add up.  For example, Gibson said that Mr. Banks ejaculated inside her, but there was no semen in the rape kit -- not a single molecule was recovered.  Justin Brooks of the California Innocence Project explained: "[She] said she wiped it all off with a paper towel, but that's impossible."  In fact, there was no physical evidence whatsoever to corroborate Gibson's story.

Mr. Brooks explained that the logistics of Gibson's tale didn't make any sense. "For Brian to take [her] from the bathroom to the elevator, he would have had to take her past several classrooms. Someone would have seen or heard a struggle," Brooks said. Brian's story -- that the encounter was consensual --was, in Brooks' words, "the only one that makes sense."
"Brian never should have been charged," Mr. Brooks concluded. "There was a lot of sloppy police work, and I don't know what level of scrutiny the prosecution did."  A former Los Angeles County sex crimes prosecutor recently told a television reporter that "the DA never should have filed this case, and they should drop it now" due to the absence of DNA evidence and Gibson's inconsistent statements about what happened.

$1.5 million for Gibson; Brian's Mother Sells Her House and Car and Borrows to Pay Brian's Lawyer 

In the aftermath of the rape claim, the news media sought out Gibson's mother, who professed anger over the school's lack of security: "It's got me to the point where I don't want to let the kids go to school at all,'' she told a newspaper reporter. "There's nowhere for them really to be safe. You would think school would be pretty safe, but it didn't turn out that way.'' 

Gibson's mother ended up suing the Long Beach school district over the supposed lax security that led to Wanetta's alleged ordeal. The case settled, and Gibson was awarded $1.5 million (they split half with their attorney and kept $750,000).

Brian's mother, on the other hand, was forced to sell her house and her car, and to borrow a lot of money from family, to pay for a lawyer to represent Brian.

Gibson Tries to Come Clean

Gibson said she tried to "come clean" and admit her lie to her civil attorney in the suit against the school district, but the attorney told her, "Don't say nothing. Like don't talk at all. Let them do what they gonna do."

Plea Deal Prompted By Vile Stereotypes

Brian sat in jail for a year while his case meandered toward trial. He was facing 41 years to life if convicted, but his lawyer was trying to get him to plead to a deal. Finally, she told him she'd worked out a very favorable plea deal, which she urged Brian to accept. The deal was that he would plead no contest to rape and kidnapping charges. She told Brian that the deal likely would result in just an additional 18 months in prison atop the year he had already served. 

In a "he said/she said" case where the evidence didn't support the accuser's claim, Brian says his lawyer told him he would lose if he went to trial. Why?

"If [you] go into that courtroom," Brian remembers her telling him, "the jury [is] automatically going to see a big, black teenager and automatically assume [you are] guilty."

Justin Brooks of the California Innocence Project would later say that racism surely played a part in what happened. Banks' original lawyer, Brooks said, told the then-teenager that because he was a large, black, young man, it would be his word against hers -- and that he should take the deal.

A 'Choice' That Was No Choice

Brian, then 17, claims that his own lawyer denied his request to consult with his parents about the plea deal, and that he was given only ten minutes to decide. Brian sat down and cried.  He finally decided that 18 months sounded "way better than 41 years to life." 

"I was pretty much sold this dream," he said.

But Brian didn't get the 18 months he had been told to expect. He was sentenced to six years, followed by five years of probation, and then lifetime registration as a sex offender -- the latter so that the community would feel safe knowing where Brian is at all times. Brian would be forced to wear a court-ordered GPS tracking device on his ankle. He was not allowed to live within 2,000 feet of a school or a park; he had a midnight curfew; he couldn't leave the county without permission; he couldn't leave the state under any circumstances. 

"He got bad legal advice to take the plea," said Justin Brooks of the California Innocence Project. "The attorney should have taken it to trial. I can't imagine not taking this case to trial. [Gibson] had so many inconsistent statements."

"The system failed Brian," Brooks said plainly.

Brian quickly figured out the same thing. "My mom sold her house, her car and borrowed money from family for the lawyer who represented me in this case," Brian said, "and all that got us was a plea bargain … and that plea bargain destroyed my life."

Brian spent more than five years behind bars for a crime he didn't commit. Five years, in the prime of his life, when he might have been playing college and professional football.

“When I was in prison, for five years and two months," he told reporters in April 2013, "I spent that time educating myself. Any book I could get my hands on, I read. I opened up the thesaurus, I opened up the dictionary. I wanted to understand words, learn words, I worked on my penmanship, and I worked on my public speaking. I wanted to be better than the label that was given to me. I had no clue that I would have an opportunity to clear my name and get my life back and so what I did was study and learn and grow as a man, so that this one situation that I was wrongfully accused of wouldn’t define me for the rest of my life."

With no money, Banks tried to appeal on his own with no luck. He then reached out to the California Innocence Project.


Even after his release from incarceration, Brian was incapable of leading a normal life. "I've been unemployed since I've been out," Banks said. "I've had one real job, working in a warehouse. I've had to live with my mom, then with my girlfriend and for the past seven or eight months with my brother, to survive." 
Then a remarkable thing occurred. In March 2011, Gibson contacted Brian from out of the blue through Facebook and said she wanted to reconcile their friendship. "She didn't show any remorse," Brian said.

She said: “I figured you and I could let bygones be bygones. I was immature then, but I’m much more mature now.” 

Brian was stunned. He quickly closed his laptop. "What did I just see?" he asked himself.  He thought it was someone else playing a sick joke on him.

Brian kept his wits about him. "I reached out to her and asked her to meet with me after receiving that Facebook friend request, and when we met, my sole purpose of meeting was to capture that recantation on tape."

Gibson agreed to meet Brian and a private investigator, Freddie Parish.  Why did Gibson meet with Banks? Banks thinks Gibson was hoping to reconcile. "You read the texts and that's the only conclusion you come to," says a source who worked on the case. "She seems absolutely clue-free about what she did to him."

Brian told her about his ordeal; oblivious to his suffering, she tried to match what he said by relating what she had been through.

Mr. Parish, the private investigator, came up with the plan to secretly videotape Gibson, and to get her to recant her accusations against Brian. He rigged a pen with a camera.

'No, He Did Not Rape Me' 

Gibson was asked if Brian raped her, and she said, "No, he did not rape me." Mr. Parish said to himself, "Wow! I got it!"  But she also admitted that was concerned she would have to return the $750,000 payment from the civil suit against Long Beach schools.  She told Brian: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”  In addition, Gibson feared how a recantation would affect her relationship with her children.

As a measure of how badly she really felt, and of the maturity Gibson claims to have found, Gibson later claimed that her recantation was, itself, a lie.  She claimed that Brian offered her a $10,000 bribe to say she had not been raped.  This latest accusation, like the earlier one, lacked plausibility because Brian has no money. "It was disgusting," Brian told a television reporter.

After it was all over, Brian related her "let bygones be bygones" comment on Jay Leno's Tonight Show, and the audience audibly groaned.

Really Free

Armed with her video recantation, and the absence of any physical evidence to support her tale, Justin Brooks convinced the district attorney to take a look at the case. "I told them, 'Talk to Brian and you will believe he is telling the truth and that she is lying,'" Brooks said. "She had no credibility. They did their own investigation." 

At a hearing on May 24, 2012 before Judge Mark C. Kim, the jurist who had presided over the original case, the district attorney agreed with Brooks and convinced the judge that Brian's conviction should be reversed.  Brian bowed his head. Tears didn't just stream down his face, they cascaded from it. 

Within days, Brian Banks -- the kid who was arrested and whose world was turned upside down at the age of 16 because of a lie; the kid who was told he wouldn't be allowed to return to his high school even if he was innocent; the kid who was pressured into a plea deal because, as a black male teenager, no one would believe he was innocent; the kid who spent more than five years behind bars and then was forced to wear the kind of tracking device they put on animals; the kid who, when he got out, couldn’t live within 2000 feet of any school or park because he was a convicted sex offender, couldn't get a job and had to rely on the kindness of friends and family, and couldn't leave the county under any circumstances -- that kid -- was given a tryout to play in the NFL with the Seattle Seahawks, the San Francisco 49ers, the San Diego Chargers, and the Kansas City Chiefs.

Mike Shanahan, coach of the Redskins, called Brian personally. "I talked to him on the phone," the coach said. "I think when somebody goes through the situation that he went through, he deserves an opportunity to try out for somebody. Considering what he went through, just reading about -- I don't know him personally -- I called him up and said, 'We'd love to have you out.' We're going to have him out sometime next week, and then he'll work out and we'll see what type of shape he's in," Shanahan went on. "This kid deserves a chance."  He also received an unsolicited offer from the president and CEO of Arizona Diamondbacks. In 2012, no NFL team would sign him so he signed with the Las Vegas Locomotives of the United Football League over the summer. He played four games at linebacker before financial problems forced the league to cancel the remainder of the season.

But then, On April 3, 2013, Brian Banks landed an NFL contract when he signed with the Atlanta Falcons. He admitted to reporters that he had given up his dream of playing football when he went to prison and had to adjust to that "life of violence."

Brian remains chronically optimistic. Just as he said he was "on top of the world" on the morning of July 8, 2002, when Brian went on Jay Leno's Tonight Show, the first thing he said was, "I'm on top of the world."

"[J]ustice," declared one newspaper, "eventually was served." 

But was it?

After the Storm

Brian, now 27, says he wants to put it behind him. He has not considered any legal action against Gibson. "I remained unbroken throughout this situation and I know that if I can get through this and get my life back, I'll be able to get through the rest."  He said: "With this newfound freedom, I promise to you and I swear to you I'm going to do great things."

Superstar sports writer Rick Reilly wrote: "I don't know about you, but I can't remember another story that made me want to alternately punch something and hug something like this one. The way Banks has handled himself, without bitterness or bile, with grace and guts, makes you wish he were running the U.S. Senate. If it were me, I'd be stomping around, waving lawsuits and screaming, I TOLD you I didn't do it!!!'"

L.A. prosecutors have also said they have no plans to charge Gibson for making false accusations, saying it would be a tough case to prove.

Brian Banks will seek $100 from the state for every day he was wrongfully incarcerated -- that works out to about $200,000.  That's all he'd be entitled to receive under current law.

For her part, Gibson likely will keep the monies paid out by the school district for the alleged rape.  There are reports that she and her family spent most of it on things like cars, so even if there were no legal hurdles for the school district to get it's money back, Gibson is essentially judgment-proof.  She received public assistance for a time, and her young children still do. Gibson was ordered initially to pay a $600 a month toward their support. But in the last year, county officials said she didn’t have to pay anything, citing a lack of income and employment.


The Brian Banks case exposes systemic problems that create unreasonable risks of punishing the innocent. If Brian Banks can serve five years in prison on false accusations unsupported by any evidence, the same can happen to any man.

"There are a lot of guys out there in that situation," Justin Brooks told CNN.  The tragedy, Mr. Brooks said, was that "if we hadn't got that recantation, Brian would have gone through this the rest of his life."

The Innocence Project has helped overturn numerous cases where the the same patterns are present: prosecutors who rely too heavily on the testimony of a dubious witness; there is little or no physical evidence to support the charges; the severity of the counts pressure a young and vulnerable defendant to accept a plea deal rather than risk incarceration for decades or even life if a jury found him guilty; the accused had limited financial means with which to mount a strong legal defense.

(1) Prosecutors roll the dice on long shots, hoping for plea deals. The principal problem exposed by the Brian Banks case is that many defendants accept plea bargains they shouldn't be asked to accept rather than risk sentences that will keep them behind bars for life.  Some, and perhaps many, prosecutors are emboldened to charge defendants based on doubtful evidence with the expectation that the a significant number of these defendants will accept a plea deal to avoid lengthier incarceration.  Young men presented with "choices" such as the one Brian was given really have no choice.

Dr. Boyce Watkins says the problem is one all too familiar to black America:  "The story of Brian Banks is, unfortunately, quite common, particularly among young Black males.   It has even happened in my own family and the scenario is usually the same:  Someone gets into trouble and can’t afford a good attorney.  The overworked public defender, without seriously considering the evidence, tries to get the defendant to take a plea deal.  Even if he is actually innocent and fights for his/her right to a fair trial, the defendant is then told that not succumbing to jail or prison time will result in a much harsher sentence.  The person doesn’t go to prison because they are proven guilty beyond a reasonable doubt; they are incarcerated because public officials are too lazy to actually carry out their commitment to pursuing justice."

"As a result of this farcical form of justice being administered all throughout America," said Dr. Watkins, "millions of Black men can’t get jobs and Black families have been destroyed to no end."

(2) Black males presumed guilty. Perhaps the most disturbing aspect of the case is that in a he said/she said rape scenario, where the physical evidence didn't support the accusation, it was taken as a given, even by Brian's own attorney, that the jury would not believe him because he was black teen male.

It is certain that at least some, and probably most, prosecutors play on race and gender stereotypes in deciding whether to charge a defendant. If the accuser in a rape case appears to be an angelic, vulnerable young woman, and the accused is a large, black teenage male, there is little doubt that at least a fair number of prosecutors would seek to capitalize on the vile stereotype of young black men as sexual predators.  The answer, of course, is to hold prosecutors accountable to charge only when they are confident, to a moral certainty, of the accused's guilt in the absence of improper considerations of race and gender. All things being equal, and in the absence of supporting evidence, he said/she said rape claims should not be charged because the prosecutor cannot reasonably believe to a moral certainty that the accused is guilty beyond a reasonable doubt. Criminal justice should not be a game of Russian Roulette where a prosecutor hopes to "get lucky" with a young man's life. The prosecutor's job is to do justice, not to nail as many young black men and boys as possible.

(3) False accusers need to be punished and deterred. In this case, the false accuser has been rewarded monetarily. Her rape lie both had its intended effect and did not jeopardize her liberty. What does that tell people who might be thinking of telling similar lies?  That they can do so with impunity, of course.

The evidence to charge Wanetta Gibson for making a false police report is, by any measure, appreciably stronger than the evidence to charge Brian Banks for rape ten years ago.  The failure to charge her only undermines confidence in the way rape trials are handled. If the public believes that the system doesn't provide adequate safeguards for the innocent -- and clearly here it did not -- jurors will be all the more wary of convicting accused criminals even when the evidence is compelling. The failure to charge Gibson signals that what happened to Brian Banks is somehow acceptable.  She needs to be charged to help restore faith in the system.

(4) Compensation for wrongly accused persons needs to be greater. The fact that the false accuser walked away with $750,000 and the falsely accused has to fight to get $200,000 is the kind of topsy turvy "justice" that engenders disrepute of our legal system. Of course the school district should have sued to recover the money Gibson has been unjustly enriched, even if the school district can't collect on the judgment. That payment was procured by fraud. Failure to pursue the money only invites other scam artists to seek similar paydays at the taxpayers' expense.

And, of course, Brian Banks deserves much more than $200,000.

(5) The need for better lawyering.  Everyone makes mistakes, but the news reports about this case suggest a possible absence of diligence on the part of the prosecution. It also suggests a defense that was too quick to exact a plea from a callow and scared young man without even allowing him to consult with his parents. Moreover, if it is true that Gibson's civil attorney wouldn't allow Gibson to tell the truth, he or she should be severely punished.

(6) False rape claims are products of a culture. Feminist gadfly Amanda Marcotte once wrote that "the idea that it's shameful to just have sex because you want to" is "the reason that you have false rape accusations in the first place." Marcotte noted that "women who aren't ashamed of having sexual adventures like group sex-even ones that go bad-don't use rape accusations to cover up their choices. It's the women who are afraid they'll be called sluts if it gets out that make up these rape stories." Amanda Hess similarly talked about women who make false claims to defend their "femininity."

There is much truth in what they say. Without excusing the false accuser (who, like a rapist, must be held accountable for her actions), false rape claims are largely culturally induced. Men and women view casual sex differently, and women feel remorse more than men following one-night stands. A study shows how common remorse is for women following one-night stands: "Overall women’s feelings were more negative than men’s [about one-night stand casual sex]. Eighty per cent of men had overall positive feelings about the experience compared to 54 per cent of women. . . . . The predominant negative feeling reported by women was regret at having been 'used'. Women were also more likely to feel that they had let themselves down and were worried about the potential damage to their reputation if other people found out. Women found the experience less sexually satisfying and, contrary to popular belief, they did not seem to view taking part in casual sex as a prelude to long-term relationships."  See here:

Similarly, last year in Ohio State University's student newspaper The Lantern, Amy Bonomi, a professor of human sexuality at OSU specializing in domestic violence and assault, said: "Women tend to feel bad after having a "random hook up," she said. Typically men are not upset by these occurrences. Bonomi attributed this situation to society's "gender double standard" that men are expected to be more sexually forward than women.

In addition, it is well to note that one of the common motives cited by experts for false rape claims is "remorse after an impulsive sexual fling . . . ." Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case, S. Taylor, K.C. Johnson at 375 (2007).

To insure that things like this are truly rare, we will need to change the culture that allows false rape claims.


The system let Brian Banks down. It is no stretch to suspect that even people who should have known better were too quick to stereotype Brian Banks in the worst possible way. It comes with the territory of being a young black male in America.

Brian Banks never should have been arrested for this claim, much less had his life destroyed over it. It's too easy to place all the blame for the gross injustice that occurred on a selfish lie told by a teenage girl, although blamed she must be. There's blame enough to go around.

The real danger is telling ourselves this was an isolated failure -- "just one of those things" that rarely happens -- and forget about it. Then, some of the blame will be on all of us the next time it happens to an innocent young man.

Brian Banks is attempting to secure funding to make a documentary about his life. It's a story everyone should know:

California Innocence Project Site


Debate on fairness of trying sex cases in the media after the statute of limitations has run

Blog post on abuse reports sparks debate
As published in the New Jersey Jewish Standard
Lois GoldrichLocal

Rabbis assess the ethics of making allegations public once it is too late to press charges

Recent allegations of abuse against rabbis and educators at Yeshiva University High School for Boys are causing some discomfort among local Jewish leaders. One local rabbi, weighing compassion for alleged victims against concern for those whom they accused, has suggested that if victims do not report their abuse to the police in a timely manner, they must remain silent thereafter.

In a December 18 post called “Dealing with Scandal,” Steven Pruzansky, rabbi of Teaneck’s Congregation Bnai Yeshurun, wrote that we have sympathy for the alleged victims, “and we must have sympathy for the alleged victims, both genuinely and because it is politically correct to have sympathy for alleged victims. But the limits of my sympathy are tested when victims do not come forward and prosecute in real time — when the events occur — and instead wait for 20, 30, or even 40 years to come forward and do nothing more than besmirch the reputations of their alleged abusers.”

Pruzancky blogs at

“All crime victims should report the alleged victimization to the police — especially when the allegations involve the abuse or molestation of minors,” his post continued. “Go right to the police and prosecution. They make arrests and prosecute. The judicial system exonerates or punishes. Rabbis have no role, despite what others might argue.”

When an alleged victim reports an incident to the police, “the accused then have the ability to defend themselves, to have their proverbial day in court.”

The opportunity to have the charges tested before judge and jury, however, is denied the accused once the statute of limitations has run out on the ability to prosecute. The media, on the other hand, has no statute of limitations. The adversarial system of justice does not apply to it.

In such “prosecut[ion] through the media” years later, the accused have a presumption of guilt, Pruzansky wrote. “They cannot defend themselves. They are tarred and feathered, hung out to dry, losing friends, family and supporters. They lose their jobs, and no one wants to be seen with them publicly. A lifetime of good deeds with a sterling reputation is erased in an instant, never to be regained and never to be recovered.”

Two wrongs don’t make it right

Describing this as “mob justice,” the rabbi called it “grossly unfair, not to mention an odious violation of Torah law. It is rank lashon hara, which Jewish law obligates us to disbelieve. It serves no one well, and serves no legitimate purpose.”

Pruzansky noted that it is possible that an accusation could serve a purpose, if the accused still is in a position to harm children. But “one might then fairly ask: If that is the motivation of the victims, then why didn’t they seek to protect their peers 20, 30, and 40 years ago? Why didn’t they prosecute when they should have?”

“[C]ivilized people do not address grievances by anonymously running to media decades after the event,” he wrote. “It is outrageous and shameful conduct, notwithstanding the sympathy one feels for them, whatever happened.

“There are often cogent and plausible reasons why victims do not come forward, usually to avoid stigma, publicity, or other personal issues,” he wrote. But “victims who choose silence when they could prosecute have a moral obligation to remain silent when they can no longer prosecute. The media grant the charges an aura of credibility that would necessarily be challenged in a courtroom.”

In a second post, dated December 23, Pruzansky noted that his earlier post had caused some controversy. Repeating his position that “fairness and justice demand that the accusers have our sympathy and the accused have the presumption of innocence,” he added that “justice is not always obtained in this world…. But injustice cannot be rectified through another injustice, and the mere fact that people are accused of crimes for which they can no longer defend themselves adequately strikes me as unjust.”

David J. Fine, rabbi of Ridgewood’s Temple Israel and Jewish Community Center, said he appreciated what Pruzansky had to say about the importance of reporting abuse to the police.

“Safety comes first,” he said. “Don’t wait to consult with rabbis first. It was appropriate and brave [of Pruzansky] to put that out there.”

However, Fine said, he did not agree that there should be a statute of limitations about reporting instances of abuse.

“I don’t see that this was warranted,” he said. “It can even be harmful. It pits the concern for saving future victims against the concern for someone’s reputation.”

Fine said that while Pruzansky does note that accusations might serve to prevent future incidents of abuse, “he discounts that and doesn’t explain adequately why he discounted that. As long as a person is still alive, and the alleged offender is in a position of respect and authority, it seems to me that nothing has changed.

An issue of trust

“The issue is that people trust someone in a position of authority,” he said. “If that authority is unwarranted,” people must be informed.

Fine also took issue with the idea of a statute of limitations in such cases.

“He kept connecting it to criminal prosecution, but we’re not talking here about criminal prosecution,” he said. “There are different standards of reporting. For example, you can still file civil suits even if there’s no criminal prosecution.”

At any rate, Fine said, when you can file such suits is a matter of civil law and has nothing to do with halachah.

“From the perspective of Jewish law, to be an authority is to be halachically obligated to behave in a way that shows yirat shamayim, fear of heaven,” he said. Someone who does not comport himself in that way is not worthy of holding that position of authority. Therefore, a statute of limitations on reporting impropriety is “not really relevant.”

Jewish law mandates a responsibility to report this kind of behavior, he said, adding that he does not discount the idea of going to the media.

“If someone went to the appropriate place [e.g., an ethics committee or similar body in a larger institution] and was ignored, I don’t see why they can’t go to the media if no one was listening,” he said.

Addressing Pruzansky’s suggestion linking reports of abuse to lashon hara, Fine said that in civil law, an accusation is not considered libel if it’s true. Lashon hara, he said, is “intended to besmirch.” Here, however, “it’s to share information so that the community knows that someone with authority is not worthy and is still in touch with people. This may even be seen as a mitzvah, depending on the circumstances. But to say that [the possibility for] prosecution by civil law has expired is not relevant.”

Fine said that while Pruzansky calls for compassion for victims, “it should be understood that sometimes the victims may need decades until they feel comfortable enough” to come forward, especially if the abuse had taken place while they were children. He noted that the Vatican is now considering charges of abuse for actions that took place many years ago.

Healing and t’shuvah

“They’re not saying ‘It’s too long ago,’” he said. “I believe that in Jewish tradition, we’re responsible for all of our actions, not just those of the last 18 months.

“There is no statute of limitations for healing and t’shuvah.”

Fine also said that being in a position of authority necessarily puts that person “under the microscope. I understand that as a rabbi. It’s part of being a public figure. That’s why you have to take that extra step and go beyond the measure of just what is legal. You have to be conscious of how things will appear.”

Shmuel Goldin, rabbi of Congregation Ahavath Torah in Englewood, said that Pruzansky’s blog post raised “cogent points.

“Unfortunately, when accusations of this kind are raised, the only recourse is [for the accused] to be tried in the media,” he said. “The simple raising of the issues can create problems for those accused without giving them a proper forum to respond.”

But, he added, “Having said that, I don’t agree with [Pruzansky’s] conclusion. I think that individuals who are victimized often find themselves unable to come forward immediately in situations like the ones we’re dealing with. Or, in many cases, they came forward and were not listened to. To suggest that they are wrong in coming forward now is not correct.”

Goldin said that the process is imperfect. “What I would love to see is a safe place in the community for them to come forward, where both the victims and the accused would be heard in a reasonable fashion. That doesn’t currently exist. Therefore, we have to depend on the maturity of the community and the responsibility of media reporters to get it right.”

Switching from civil to Jewish law, Goldin said that Pruzansky appears to be suggesting that if accusations will not do any good, they are simple lashon hara, and they should not be allowed.

“I don’t agree,” Goldin said. “First, I don’t think we have a right to remove from the victims a mechanism of potential healing, which bringing forth accusations can afford them. That, in and of itself, is a good. Second, I believe that any time the issues are raised, even after the fact, some good can ensue. It can potentially stop such events from occurring and encourage others to come forward.” In addition, he said, if the accused still are in a position to harm others, now they may be stopped.

Goldin said he understands the motivation behind Pruzansky’s position and believes he has done the community a service in raising the question.

Communal challenge

“It is a problem to accuse someone 25 years later,” he said. “Their life is never going to be the same. Can the community develop a mechanism to deal with that? It’s a challenge for us.”

Nevertheless, he said, the answer is not to prevent people who were abused from coming forward at any time.

Responding to Pruzansky’s blog post, Joel Mosbacher, rabbi of Mahwah’s Beth Haverim Shir Shalom, said, “I can’t see any basis for saying that [people] shouldn’t come forward. There’s no reason they can’t speak about situations in which they’ve been abused. There are all kinds of reasons they might not come forward in the moment, but that doesn’t mean that at some later time, they shouldn’t speak out.”

The bottom line, he said, is that he’s not as concerned about perpetrators’ reputations as he is about victims’ well-being.

“I have no compassion for people who perpetrate violent crimes,” he said. “I don’t want people to be wrongly accused. We have a legal system for that reason, and it’s up to them to parse out the truth from false accusations. I cannot see any reason, religious or from any other perspective, to weigh the possible impact on perpetrators as more significant than the rights of victims.”

In an email to The Jewish Standard, David-Seth Kirshner, rabbi of Temple Emanu-El in Closter, called Pruzansky’s post “deeply insensitive… [with Pruzansky signaling] that halacha is not a living thing, but an archaic and non-breathing law that only exists in the vacuums of books and is only subject to his interpretation.”

Kirshner noted that he was speaking from bitter personal experience. One of his brothers, he wrote, had been sexually abused by a rabbi and “eventually, his repeated molestations and rape led to his mental instability and then his suicide.

“To my knowledge, he never spoke about his episodes when he was living except to his therapist and that was years after the ‘actual act’ occurred,” Kirshner wrote. “We learned of his abuse after his death.

“I am sickened to learn that Rabbi Pruzansky declares that my brother is not only a victim of abuse and dead because of suicide, but now he is categorized as a sinner for not speaking about his claim within the statute of limitations.”

Kirshner questioned the value of that statute in cases of sexual abuse.

Defining the limitations

“I am curious,” he wrote. “Is the statute of limitations hours after the abuse, weeks after the bruising heals, or when the memory and trauma fades?

“Rabbi Pruzansky’s statement on sexual abuse is tantamount to saying that victims of gun violence should duck the bullet, or else they deserve to be shot. Would we stand for that thinking? Should we?”

In an email to The Jewish Standard, Pruzansky pointed out that the statute of limitations is a legal doctrine, and “prosecutions in America are not governed by Jewish law.” If such trials were held in a bet din, “There would be no statute of limitations that would impede prosecution, but batei din do not have criminal jurisdiction in America.”

He noted, as well, that some jurisdictions do not have such statutes on prosecutions for child abuse, “and if such were the case in New York or New Jersey, the victims would be able to come forward now with their complaints and receive justice.”

In such instances, he wrote, “We would look askance at someone who could prosecute, and didn’t, and instead used the media as a cudgel of justice.

“My point, of course, is not to castigate past victims but to encourage current and future victims to prosecute,” Pruzansky continued. “Indeed, we have a concern for both future victims and for someone’s reputation. After all, a victim cannot legally take a gun and shoot his abuser 30 years later. Why, then, would he be allowed to assassinate his character?”

Thursday, December 27, 2012

Off-Topic: Chicago marks 500th homicide of the year . . .

"The city has seen its 500th homicide for 2012, a tragic number that is reflective of the gang violence and proliferation of illegal guns that have plagued some of our neighborhoods," police Superintendent Garry McCarthy said in a statement.

So why hasn't this story sparked a "national dialogue" like the one in Newtown, where 20 children were gunned down by a mentally unstable young man?

Why do we turn a blind eye when the victims are young black men killed by other young black men?

Do we think it's not our place even to discuss it?

500 -- in one year -- in Chicago alone. And I'll bet few of you have even heard about it.

Out on a date, deaf-and-mute girl cries rape to escape father’s rage

A 17-year-old girl alleged that she had been gangraped when she was actually out with her boyfriend because she was afraid her father would not approve of her being out late. "The girl’s father was furious when she came back late, so she panicked and told them she had been raped,” said an official.

The girl, who is hearing and vision-impaired, used sign language to allege that she had been picked by two unidentified persons and taken to a public toilet near her house, where she was raped for three hours, the police said.The girl’s accusation set off a series of emphatic reactions. On hearing the news, irate residents quickly gathered at the police station demanding arrests. Already on high alert after the nationwide outrage over crimes against women, the police rapidly registered a case and formed a team to arrest the “culprits.” The girl was rushed to Rajawadi hospital for a medical examination.

The hospital report, however, revealed no signs of forced sex or injury marks. Later in the day, she confessed that she had actually gone to her boyfriend’s house.

Flashback: Woman falsely accuses one night stand of rape after he forgot her name

In this last week of 2012, we review some of the top stories of the year.

Christine Jordan, 25, was convicted of perverting the course of justice and sentenced to two years behind bars after her rape lie caused an innocent 27-year-old man to be wrongly arrested for rape.

Jordan had consensual sex with the victim. The victim testified that he saw Jordan several days later at a pub, and when he could not remember her name, she gave him "an evil look." Within minutes, police arrived and arrested him on suspicion of rape. He was held in custody overnight.

Jordan falsely claimed that the victim had followed her home from a bus stop, and that, as she opened the front door, he forced himself inside and raped her.

It took a jury less than two hours to unanimously find Jordan guilty of perverting the course of justice.

The sentencing judge, Jonathan Howard, slammed Jordan's false claim as "a tissue of lies." He explained: "Because rape is such a repulsive crime false allegations of rape can have serious consequences. Most obviously for the innocent man who has been falsely accused. But it also has the consequence that you think genuine claims may be false. There is an enormous affect on probable convictions in genuine complaints. These are the reasons why the offence you have committed is so serious. It undermines the whole principles of justice in relation to an offence which is a repulsive crime. Your false claim in this case, made three days after the incident, was a complete tissue of lies. I have to take into account the gravity of the offence."

The victim's mother told a reporter after the hearing that "she [Jordan] deserved it, but the damage has been done. I am glad that the judge took it seriously. This has destroyed [the victim] and my family. [His] friends said he was always so happy, they have stood by him through this. He would never do anything like this. He is a very angry person still."

Jordan's defense counsel said Jordan had been bullied at school and would be vulnerable in prison.

Jordan is pregnant with twins to another man and will now give birth behind bars.

News report here:

Wednesday, December 26, 2012

Flashback: Girl's rape lie sends seven teen males to jail

In this last week of 2012, we review some of the top stories of the year.

A teen girl admitted that her rape allegation that sent -- seven -- male classmates, ages 14-18, to jail was a lie.

The unidentified girl, who is 16 years old, had claimed that she was repeatedly raped in a school restroom at Northeast High in Macon, Georgia, on January 19. The girl was charged with a felony, making false statements to law enforcement, as well as a misdemeanor, falsely reporting a crime.

After several inconsistencies in the girl's story throughout the investigation, she admitted to Macon PD to lying to her mother, campus police, and Macon police about the alleged incident.

The charges against the boys were dropped, and the girl was charged with a felony, making false statements to law enforcement, as well as a misdemeanor, falsely reporting a crime.

"It’s a shocking twist in an incident that has been the buzz of the community since it was first reported," said one newspaper.

At least four of the young men had been named and shamed in the press. Three, who were 14 and 15-years-old, were at least spared that indignity by some of the newspapers.

Before the recantation, the editorial page editor of the Macon Telegraph, made some disturbing comments that need to be underscored here.  Charles E. Richardson wrung his hands over the allegation, feigned impartiality -- and proceeded to criticize the boys. 

"I . . . don’t know whether it was rape or not," he righteously harrumphed. "That will be decided by a court of law. However, I do know that society is in trouble when several boys think it OK to have sex in a school bathroom, or to stand around watching while school is in session." 
He went on: "Rumors have floated that the girl is promiscuous and this isn’t her first time, just the first time anyone has been caught. I don’t know about that; but isn’t it ridiculous that rape cases often turn the spotlight on the victim? It’s something she did, not something he (they) did." He also said: "I feel for the victim."

Read it again. This man is an editor for a major newspaper with a large circulation, and he doesn't know the difference between an "accuser" and a "victim"?   Really?  Seven boys were charged with one of the most serious and heinous criminal offenses on the books, and this editor uses language suggesting that the trial is over even before it has begun.

You know what's "ridiculous" to me, Mr. Richardson? Speaking as someone who gives voice to the men and boys wrongly accused of heinous sex crimes, it's ridiculous to me that some people are punctilious in their efforts not to "victim blame" rape accusers, but don't give a rats ass about "victim blaming" young men accused of rape.

More from the eminent Mr. Richardson: "Last week, I was thrown into a deep funk. A caller to our morning show said he was the father of one of the boys accused of raping a special-needs girl in a bathroom at Northeast High School. He blamed teachers, the administration and everyone else. Everyone else except his son, who remains in jail."

Well, now I'm in  deep funk. If the boys' sexual escapades were troublesome and shocking, so was the girl's, but the eminent Richardson gives her a pass. 

Here's a newsflash, sir: teens -- boys and girls --have sex, even group sex. The moral impropriety of that conduct is not why this story is newsworthy.  Your newspaper, and every other news outlet, featured this story solely because the boys supposedly committed a non-consensual sex act, not because some teenagers engaged in incredibly stupid, consensual sex. Yet, your peculiar commentary seems to insist on a moral equivalence between rape and stupid, consensual sex, all the while excusing the girl from the consequences of her own free agency.  I would need several degrees in psychiatry to understand what drove you to write this.


Tuesday, December 25, 2012

Merry Christmas and Happy Holidays

Merry Christmas and Happy Holidays to all of our readers. Please stay safe, and enjoy time with family, friends and loved ones.

Pierce and Steve

Monday, December 24, 2012

Woman charged with making false rape report

A woman who reported in August that a former boyfriend had raped her in a Billings Heights parking lot as she left work was charged Thursday in Yellowstone County District Court with fabricating evidence.

Christina Nadine Nelson pleaded not guilty to the felony charge during an arraignment before Judge Susan Watters. Nelson was allowed the remain free while the case is pending on a $20,000 bond.

According to court records, staffers at Billings Clinic called police at about 11 p.m. on Aug. 10 to report that a woman had arrived at the hospital for treatment after a sexual assault.

An officer said Nelson reported that she had left her workplace in the Billings Heights at about 5:30 p.m. and was walking to her car when her former boyfriend approached her from behind.

Nelson said the man told her he missed her, and she responded by telling him to go away because she was now married.

Nelson said her former boyfriend then began punching her in the face and stomach and took her to a van where she was raped.

Nelson said the assailant let her go, and she joined friends at a downtown brewery for a drink before arriving home at about 7 p.m.

Nelson said she and her husband then went to a gym to work out. During that time, she said, she sat in a sauna and a hot tub, showered and changed her clothes.

She said she told her husband about the rape at 10 p.m., and that is when he brought her to the hospital.

On Aug. 28, Nelson repeated the allegations during an interview with a Billings police detective assigned to the case.

During the investigation, the detective reviewed surveillance video from Nelson's workplace, which showed Nelson leaving work and driving away in her vehicle. Neither the man she accused of raping her nor his vehicle could be seen in the video, court records state.

The detective also spoke with Nelson's husband, who said that after the couple returned from the gym they had unprotected sex. He said Nelson told him about the rape afterward, and he took her to the hospital.

The detective then spoke with Nelson's former boyfriend, who said he met Nelson at Rocky Mountain College and the two dated from November 2009 until about June 2011.

The man said that he left Billings on Aug. 9 and drove to Seattle, where he stayed until Aug. 18. The man provided several receipts and photos documenting his activities during that period, court records state.

The detective then tried unsuccessfully to contact Nelson again. On Aug. 29, the detective said, Nelson sent an email stating she did not want to press charges.

The detective said a review of Nelson's medical records show she had made similar rape reports in the past, including two in 2009 and two more in April of this year.


Saturday, December 22, 2012

Proposed VAWA reauthorization bill would allow non-Native American males to be prosecuted for alleged sex crimes against Native American women in tribal courts even when such courts exclude non-Native Americans from the jury pool

The Tribal Provisions

The so-called Tribal provisions of the VAWA reauthorization bill passed by the U.S. Senate (but not yet by the House) would give Native American tribes authority to prosecute non-Native Americans accused of domestic violence, sexual assault, and other crimes against Native American women on Indian reservations.

This would be the first time our government would extend tribal criminal jurisdiction over non-Indians. Sen. Chuck Grassley asks: "Why should domestic violence cases be the first criminal cases to be treated in this way?"

The Tribal provisions raise concerns for the community of the wrongly accused that have been ignored in the public discourse of this issue. Worse, the natural allies of the presumptively innocent have abandoned them on this issue, as has become the norm in recent years when it comes to efforts to chip away at the rights of the presumptively innocent accused of sex offenses. Instead, anyone raising concerns about the Tribal provisions is being branded in some extremist corners as a rape apologist.

A Congressman is Branded the 'Patron Saint of Rapists': A Public Discourse Bordering on Pathology

Rep. Eric Cantor was branded "the patron saint of rapists" by Chloe Angyal, an editor of, because of his opposition to including the "Tribal provisions" in the VAWA reauthorization bill. See here.

Are the Tribal Provisions Needed to Solve the Problem?

There is a widespread belief that the sexual abuse of Native American women on tribal lands is a significant problem, and that when sexual abuse is perpetrated on them by non-Native American males, the crimes are not adequately addressed by federal and state courts. The reasons for this were explained by one commentator:
. . . federal and state law enforcement have limited resources and might be hours away from a reservation. And then there’s this: according to a General Accounting Office report on “Department of Justice Declinations of Indian Country Criminal Matters,” federal prosecutors declined to take action on 52 percent of violent crimes committed on tribal lands. Of those declined cases, 67 percent were sexual abuse and related cases.
The fact that law enforcement might be far away, and the issue regarding limited resources, are not unique to crime on Native American reservations and can, and should, be addressed by affording greater resources to the problem, the same way they are addressed for non-Native American citizens.

The other issue is the appropriateness of federal prosecutors declining to take some sexual abuse cases reported by Native Americans. I am not certain how the GAO report determined that an alleged offense was a "violent crime" when a prosecutor decided not to take it. In any event, to determine whether federal prosecutors are refusing to take such cases for inappropriate reasons, there must be a painstaking examination of a representative sampling of such cases by impartial evaluators. If there are improprieties, they need to be addressed in the same way they are dealt with when the victimization of any disadvantaged group is not being adequately addressed by federal prosecutors.

These matters need to be addressed. The United States cannot allow rapists to act with impunity. This problem is especially distressing given the historical oppression of Native American women. We are not certain that these problems necessarily require giving Native American courts jurisdiction to try cases involving non-Native Americans accused of sex offenses.

What are the Implications for Wrongly Accused Men?

What are the implications for a wrongly accused person being tried of heinous sex crimes by a tribal court? Our nation has no track record to guide it because it hasn't been done. Nor did the Senate hearings on VAWA shed any light on this question: the Tribal provisions were not even the subject of a hearing in the Senate, which passed the bill that included it. Sen. Grassley said: "I do not believe the [Senate Judiciary] Committee has a good understanding of what the consequences would be" of making this change in the law.

Moreover, the public discourse on this issue has been dominated by groups that have focused solely on the victims of sexual abuse. They have not acknowledged even the possibility that sometimes innocent persons are wrongly accused of these offenses. Too often, some, like Ms. Angyal, have resorted to demonizing anyone opposing their efforts in ways that should not be part of the public discourse. Some claim that anyone opposing the provision wants to protect white male rapists.

The Congressional Research Service issued a report earlier this year in which it addressed the legal bases for Indian Tribes to prosecute non-Indians under an "inherent sovereignty theory." It bluntly stated: ". . . it appears that tribes will not be bound by the Constitution but only by protections in the Indian Civil Rights Act, Tribal Law and Order Act, and the individual tribal laws." See here.  A defendant's important civil rights, such as equal protection and due process, will be construed by tribal courts not be bound by the U.S. Constitution.

COTWA's concern is for both the victims of sexual abuse and for the wrongly accused. The public discourse on this issue must include an honest discussion about the implications for the wrongly accused of having their cases adjudicated in tribal courts. To date, that isn't happening.

Non-Native Americans Excluded From Jury Pool

A significant problem that is not being addressed is this: can a tribal court be a fair tribunal for Non-Native American men given that non-Native Americans need not even be part of the jury pool? "Tribal courts are not required to allow nonmember reservation residents to sit on juries."  This rule runs afoul of the Supreme Court's requirement that "jury pools . . . accurately represent the communities from which they are drawn," since many such reservations have significant non-Indian populations. Sam Ennis, Reaffirming Indian Tribal Court Criminal Jurisdiction Over Non-Indians: An Argument for a Statutory Abrogation of Oliphant, 57 U.C.L.A. L. REV. 553, 578-79 (2009) Because of the exclusion of non-Indians from jury pools, "federal courts sometimes refuse to enforce civil judgments rendered by all-Indian tribal court juries against non-Indians." Id.

Juror Resentments Over Historical Oppression

America has a dismal history of allowing black males to be tried for the alleged rape of white women with all white juries. The outcome of such trials was pre-ordained. We frequently point out that it is our impression that black males accused of rape in this country are still treated more harshly than white males (e.g., see the Brian Banks case, where Mr. Banks' own attorney urged him to confess to a crime he didn't commit because a big black male doesn't stand a chance in a rape trial). In tribal courts, white men may be inherently disadvantaged. Native Americans may feel resentment about their historical treatment. What might this mean for white men wrongly accused of heinous sex crimes when white men are not even permitted to be part of the jury pool? 

No Right of Appeal

In addition, a non-Indian convicted of a sex offense in a tribal court would have no right of appeal, only a right to seek a writ of habeas corpus, which is decidedly more limited than appeal rights.


Once again, we are presented with a need to help rape victims, but the effort proposed might unreasonably enhance the risk that innocent men and boys will be punished for offenses they did not commit. 

Too often, powerful forces intent on protecting the victims of sexual abuse sweep like a high-speed rail over the rights of presumptively innocent men, some of whom have been wrongly accused, without bothering to consider the interests of the wrongly accused. Worse, they mock and ridicule anyone who would dare to voice concern for the wrongly accused.

There needs to be a serious, non-politicized, national discussion about the necessity for the Tribal provisions; whether other, less intrusive, measures could solve any legitimate problems affecting Native American women; and whether the rights of presumptively innocent men would be adequately protected by the Tribal provisions.

Friday, December 21, 2012

Student Rape Allegation 'Unfounded'

Allegations made by a 14-year-old Dacula High School student regarding an alleged rape on Dec. 4 have been ruled "unfounded," but the investigation is ongoing according to Gwinnett County Police public information officer Cpl. Ed Ritter.

"The rape allegation has been [determined to be] unfounded," Ritter wrote in an email to Dacula Patch. "Charges may be pending for misdemeanor statutory rape. The investigation is not closed yet and is still being investigated."

The teen told police a male student at the school had raped her behind Dacula Family Sports. The teen said she fought her attacker, but was raped before she could escape.

Thursday, December 20, 2012

Hugo Schwyzer: This is satire, isn't it? Seriously, this is a joke, right?

Below is an excerpt from something written by Hugo Schwyzer, another daft and miswired academic who's gravitated to the easily-mouthed cliches of angry gender politics. In Schwyzer's world, it is perfectly appropriate to take a broad brush and unjustly demonize an entire class of citizens -- so long as that class of citizens is white males -- by reducing them to caricature. Hugo Schwyzer would never dare to negatively stereotype any other group of citizens, probably because every rational person knows that prejudice and bigotry are wrong and that broad brush stereotyping is never accurate. The exception, of course, is when it comes to white males. No amount of scorn is enough to heap on white males for people like Hugo Schwyzer.  In no other area of academia would such nonsense be treated seriously.

Schwyzer should apologize to the community of the mentally disturbed, not to mention young white men, for suggesting that the criminal acts of  a severely disturbed man were prompted by anger over the loss of so-called white male privilege. I haven't seen so much "straw man" since Dorothy met up with Ray Bolger on The Yellow Brick Road. Schwyzer's preposterous epiphany is posited with no evidence beyond his smug, all-knowing ipse dixit.  It is abominably insensitive to persons with mental disorders, not to mention the vast majority of young white men who harbor no such anger (but, hey, why let the facts get in the way of an angry gender rant?), and it's flat-out stupid by any other measure. When someone writes as if he's a wacko, as Schwyzer does here, he is not to be taken seriously.

Here is an excerpt from Hugo's brilliance -- don't take my word that it's wretched, read the whole thing for yourself -- the entire sorry thing is found here:

Privileged white men aren’t the only ones to suffer from mental anguish, but as a result of our national history, they are disproportionately likely to imagine that they are entitled to foist their pain onto others in a terribly public way. Privileged white American men are also the ones most likely to feel the rage of “frustrated entitlement,” keenly aware of the disconnect between the affluence and autonomy they were taught was their birthright, and the anxiety and rejection that seems to characterize their daily experiences with others.

In killing others before dying on his own terms, Lanza, like so many rampage killers before him, lived out a perverse male fantasy of total control. When Australia saw that horrific fantasy lived out in Port Arthur in 1996, it took strong steps to ensure that such a tragedy could never be repeated. For all our expressions of grief in the aftermath of the Newtown shootings, Americans – particularly white men – remain stubbornly enchanted by the freedoms that they imagine the gun represents. Too many of us still want our Man Card, and, in a way unique to our country, we will sacrifice our own children to get it.

Rape case mistrial: Accuser testified that "there were times, yes, that I would tell him 'No,' but I didn’t mean it”

A mistrial was declared in a Nevada rape trial for reasons that aren't altogether clear, but the trial seemed to be fraught with difficulties for the prosecution. Among other things, certain evidence was never turned over to the defense. But the most intriguing aspect about the report of the trial concerned the testimony of the accuser (incorrectly labeled "the victim" by the writer of the news report, Dylan Woolf Harris, who ought to know better).

According to the news report, the accuser claimed that she and the accused (her boyfriend) had a fight. Sometime later, he began touching her in bed, trying to kiss her face and neck, but she claimed she resisted. He pinned her arms above her head, she repeatedly said “No,” she claimed, and he sexually assaulted her. She said she didn’t leave him at that time because she was still in love with him.

But wait. Here's the interesting part: on cross-examination, the accuser admitted that she and the defendant used to fight then occasionally have rough make-up sex. But she said the fighting and sex never blended together. However, a court transcript indicated the accuser testified at a previous hearing that fighting and sex sometimes did blend together. Go figure.

Other times, the accuser revealed in court, she verbally indicated she didn’t want to have sex with her boyfriend, but did in fact want to. "There were times, yes, that I would tell him “No,” but I didn’t mean it,” the accuser said. In those instances, she said, the two would have sex.

Trial was rescheduled April 2, though the defense told the judge it intended to file a double jeopardy motion.

We would hate to see a rapist walk, but our advice to the prosecution: drop it. If the news report is accurate, there's too much risk of convicting an innocent man.

The monstrous rape lie that sent an innocent man to prison for four years

This is a chilling cautionary tale: if this could happen to Johnathon Montgomery, it can happen to any man.

Four years ago, Elizabeth Coast, then 18-years-old, duped a police detective, a prosecutor with years of experience in juvenile cases, and a seasoned judge into believing that she had suffered the trauma of a sexual assault when she was ten years old. She claimed the perpetrator was Johnathon Montgomery, a neighbor boy four years older than she was. (Mr. Montgomery was 14 at the time of the supposed assault, 22 at the time of the trial.) It had taken Coast years to come forward, and she seemed to have no motive to lie.

At the trial, there was no evidence of the sexual assault other than Coast's word. No forensics; nothing. The judge said it was "word-against-word." In fact, the judge went further than that: he said that Coast and Montgomery "both made good witnesses."

As if that wasn't enough to clear Mr. Montgomery, there was evidence at trial that Coast was making it up. Coast first told police that the alleged assault happened in January 2001. But records showed that Mr. Montgomery was living in Iowa at that time, far from Hampton, where the assault supposedly occurred. So what did Coast do? She simply changed the timeline and told the court that upon further reflection, the assault happened in late 2000 when Mr. Montgomery was still living in Hampton. Changing the timeline to coincide with Mr. Montgomery's residency in Hampton spoke to Coast's lack of credibility, the defense attorney said. The prosecutor disagreed, saying that Coast was recalling events several years old.

Incredibly, the judge -- whose name is Randolph T. West -- convicted Mr. Montgomery and sentenced him to state state prison for 7-1/2 years. (Judge West is invited to tell his story on this blog to explain how it was possible to find Mr. Montgomery guilty beyond a reasonable doubt.)

It turned out that, indeed, Mr. Montgomery was not guilty. It turned out that Elizabeth Coast's story was a terrible, awful lie. She had fabricated the sexual assault as a way to explain to her parents why she was visiting pornographic websites.

Five years after her lie, Coast recanted. Mr. Montgomery had spent four years behind bars for a crime he didn't commit.

The recanted testimony led to Johnathon's release from prison — thanks first to decisive action by the duped judge (to Judge West's credit), who expressed his profound regret, and followed by a conditional pardon from Gov. Bob McDonnell. McDonnell, a former prosecutor, said he personally delivered the news to Montgomery by phone Tuesday night and spoke directly to his mother. "It is a travesty of justice when an innocent person is confined in a jail or prison, and it should never occur in our society," McDonnell said in a statement.

The prosecutor who brought the case forward said she "furious" at the thought of an innocent man sitting in prison for four years. She said that Coast had plenty of opportunity to back out, call it quits and let everyone walk away. But she chose to bring the case forward against Montgomery.

The current prosecutor went through a painstaking effort to make sure that the recantation was legitimate, and he is convinced it was. He said he can only speculate why she came forward after several years. "I just really believe it was an overwhelming sense of guilt," he said.

So what happens when such a case comes up again?  "I hope if anything good can come out of this, it's that the bench in general — not the judges in Hampton, but the bench in general — will rethink how they apply their gauging of credibility in these types of cases," said Mr. Montgomery's defense counsel, James D. Garrett. "Maybe it will give them pause."

Under Montgomery's condition of clemency, he is expected, within 30 days of his Nov. 20 release, to file a writ of actual innocence, which would, upon approval, vacate his conviction.

Coast has been charged with perjury.

This case underscores the absolute necessity for Blackstone's formulation in our jurisprudence.  Sadly, as in this case, sometimes justice devolves into nothing more than a determination of whether the accuser was a good actress.