Sunday, August 7, 2011

Should the falsely accused be forced to rely on the mercy of their false accusers?

COMMENTARY: From time to time, the question is posed whether false accusers should not be prosecuted because prosecuting them only discourages them from recanting, thus harming even further their falsely accused victims.

Relying on rape recantations to spare men and boys from incarceration for false rape claims is a snare and a delusion. It is critically important to prosecute false rape claims to a greater degree than is currently done. Serious systemic problems that beset our justice system will only be exacerbated by granting rape liars de facto immunity for their crimes, and it is likely that adopting a policy of not punishing rape liars will have the effect of reducing recantations.

A rape liar makes a false claim to fulfill a personal need -- often to give her a handy excuse, to exact revenge, or to gain attention. The rape liar is unlikely to drop the lie unless she believes that doing so will fulfill an even greater, more pressing, personal need than the one that prompted the lie in the first place. Most rape lies are recanted due to the belief that the lie is likely to be exposed and that the liar will be punished more severely if she refuses to admit it.

In point of fact, rape recantations typically occur only after police have found a hole, often a gaping hole, in the accuser's story and there is little likelihood that the case will go to trial anyway, much less result in a conviction. Police officers apprise the accuser that they've found a video, a witness, or some other evidence, and that her story doesn't add up. That is often enough to prompt a recantation.  (Not all recantations are legitimate, and where there is a possibility that the recantation was made out of fear of the man accused, it needs to examined with heightened scrutiny. Recantations made out of fear of the man accused seem to be rare.)  But many and perhaps most recantations occur due to the belief that the punishment to the false accuser will be more severe without a recantation. If the fear of punishment were removed, it is unlikely that many false accusers would recant.

More fundamentally, for every other criminal act, our criminal justice system values the concept of deterrence. Would-be false accusers will not be deterred unless they know they face serious consequences. Without this deterrence, what is to stop many more women and girls from manufacturing rape lies?

Instead of advocating to grant women and girls carte blanche to lie about rape, wouldn't our time be better spent advocating to fix the underlying problem? Specifically, the problem is that we permit the presumptively innocent, who too often turn out to have been falsely accused, to be arrested and jailed on uncorroborated, even far-fetched claims, and often before an investigation has been conducted, much less concluded.

An innocent man or boy should not need to depend on a false accuser's whim to decide whether she will, in her sole and unilateral discretion, free him from his false rape hell by recanting.

For what other crime would we even seriously debate the question of whether the perpetrator should be given the right to decide, without fear of punishment, whether his victim continues to suffer for the harm he caused?  In the case of a false rape claim, the rape accuser has proven herself untrustworthy by telling the lie in the first place. She is the last person whose goodwill the falsely accused should be forced to depend on. And, as noted above, without the threat of even greater punishment for not recanting, most rape liars likely would not recant.

False accusers need to know before they lie that the punishment for a false rape claim will be severe. The problem today is not that we are discouraging recantations by prosecuting false accusers. The problem today is that we are tacitly encouraging false rape claims in the first instance by not prosecuting enough false accusers, and by sentencing the ones we do prosecute too leniently.

At FRS, we advocate a sliding scale: for early recantations, before a male has been arrested, the false accuser should be treated more leniently. Recantations should be rewarded, but they should never be a "get out of jail free" card. The longer the lie is permitted to go unrecanted, the greater the punishment needs to be.

Far too many falsely accused men and boys have sat in prison cells and suffered the atrocities of incarceration waiting in vain for a recantation that never was uttered. It's time we stop depending on the goodwill of rape liars by hoping that they will show mercy to the innocent men and boys whose lives they've already destroyed.

Finally, consider this. A 16-year-old boy named Maoloud Baby once was convicted of raping an 18-year-old woman in the back of her car. The woman testified that she told Maoloud he could have sex with her if he stopped when she told him to, but she claimed that when she yelled for him to stop, he continued for five to 10 seconds. He did not ejaculate but withdrew. He and his the woman drove to a McDonalds, they hugged, she gave him her phone number, and he left. Maoloud was convicted of first degree rape and other offenses for delaying withdrawal for as little as five seconds, by the woman's own admission.

If we are willing to incarcerate a teenage boy for a five second delay, doesn't a woman deserve some punishment if she allows a man or boy to rot in a prison cell for a day -- a week -- a month -- a year -- or many years -- because she cared so little about his life that she had him arrested over a lie? The question scarcely survives its statement.