Tuesday, April 3, 2012

Does refusing to charge for rape lie that put innocent man away for nine years undermine public confidence in the way rape claims are handled?

Cassandra Kennedy, 23, admitted that she lied about her father raping her when she was 11. Her accusation put her father behind bars for nine years.

Ms. Kennedy will not be charged with a crime because prosecutors fear it could stop others from reporting sexual assaults.  Prosecutor Sue Baur said: "This is the kind of thing that shouldn't happen."  But she said that charging Kennedy might discourage victims from coming forward.

Kennedy admitted her lie because of a guilty conscience. "I did a horrible thing," she told detectives last January.  She was allegedly bitter following her parents' divorce ten years earlier. "I wanted him to love me," Kennedy said, "and I didn't think he did at that time.  I took my own vengeance."

Kennedy told police she got the idea of setting up her father from a friend whose stepfather had been sent to prison for a child sex crime.  "I thought that is what I would do to make my dad go away." She told a teacher about the alleged abuse, and repeated the stories with consistency. The details seemed beyond the sexual knowledge of an 11-year-old.

Her father denied the allegation but a jury convicted him of three counts of rape of a child and he was sentenced to more than 15 years in jail.

The father was released last week and the charges against him were dismissed. He told a reporter that he did not want to comment but is simply trying to get on with his life.

The decision not to prosecute this apparent crime is troubling.

First, the prosecutor's concern that charging Ms. Kennedy might deter others from reporting their sexual assaults is speculative and unsupported by any evidence of which we are aware.  Charging Ms. Kennedy would not send a signal that the prosecutor intends to charge any woman who makes a disputed rape claim that the police don't believe. The instant case caused grievous harm and is extreme. It involves an admitted rape lie that had a catastrophic effect on another person's life. Charging the author of such a lie would not likely deter anyone from reporting her own sexual assault.

Second, Ms. Baur's rationale for not prosecuting Ms. Kennedy sends a message that can only hurt the wrongly accused. The absence of any punishment for an apparent crime that caused a man to forfeit his liberty for almost a decade can only encourage similarly motivated persons to make false accusations.  According to Dr. Valerie Wright, research analyst at The Sentencing Project: "People who perceive that sanctions are more certain tend to be less likely to engage in criminal activity."And: "Research to date generally indicates that increases in the certainty of punishment, as opposed to the severity of punishment, are more likely to produce deterrent benefits."  If crimes such as this one are not deterred, society invites more abuse of the criminal justice system at the expense of the innocent.

Third, Ms. Bauer's rationale for not prosecuting Ms. Kennedy undermines public confidence in the way rape claims are handled. The prosecutor should want the public to regard rape as a serious crime deserving of serious penalties. Indeed, juries want to punish rapists but are loathe to risk punishing the innocent. Juries will be all the more wary of convicting men of rape, even those who deserve to be convicted, if they believe that prosecutors cavalierly allow accusers to tell rape lies with impunity. 

Fourth, the victim should have a say in whether the false accuser is prosecuted. The victim in this case did not publicly express an opinion on the subject, and we are wondering if anyone bothered to ask him.