By accessing this blog, you agree to the following terms:

Nothing you see here is intended or offered as legal advice. The author is not an attorney. These posts have been written for educational and information purposes only. They are not legal advice or professional legal counsel. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this blog, the author, or the publisher, and you or any other user. Subscribers and readers should not act, or fail to act, upon this information without seeking professional counsel.

This is not a safe space. I reserve the right to write things you may agree or disagree with, like or dislike, over which you may feel uncomfortable or angry, or which you may find offensive. I also don't speak for anyone but myself. These are my observations and opinions. Don't attribute them to any group or person whose name isn't listed as an author of a post on this blog.

Reading past this point is an acknowledgement and acceptance of the above terms.

The Nature of the Allegation

Recent discussion on whether it's acceptable to sacrifice one man to false imprisonment in order to jail 50 rapists has inspired me to hunt down an old comment of mine that I think needs repeated.   

Originally, the comment was made in reply to a politician who asked about men's rights issues, and specifically mentioned false rape allegations. Given the history of my personal activism, false accusations are an issue which holds special significance to me, and that is what I chose to address. The comment hit a lot of points that ended up being brought up in that discussion, and also some points that were not, but which are frequently presented in similar discussions. In light of that, I've decided to publish it here. For additional thoughts on the subject, also see my previous post, The Seriousness of the Charge.


The first thing to understand about rape and false allegations is that we are never going to eliminate either the incidence of innocent people receiving jail time, or guilty people escaping the justice system, because rape cases can be subjective, lawyers can be sneaky, and mistakes can be made with any case.

What we can do is ensure that the reason innocent people sometimes go to jail is not because they were denied their right to a fair trial, and the reason guilty people sometimes get away is not because their initial conviction didn't have to be based on any real evidence and a deserved conviction was overturned because the system enabled poor effort by police and prosecutors in handling the case.

An individual should be convicted of rape when the charge has been proved beyond a reasonable doubt. The definition of the term Rape should be held to as strict of a standard as the definition of the term murder. The designation of an act of homicide as first degree murder requires that the perpetrator be sane, and that prosecution can show malice aforethought (prior intent) in the evidence presented. The designation of an act of homicide as second degree murder requires intent, but not necessarily prior intent. Homicide which was not intended by the perpetrator is still treated as a crime, but is not treated as murder.
Deliberately killing someone is considered a much more heinous act than unintentionally causing someone's death. Both have equal capacity for terrible consequences to the victim - death being the obvious, but also physical and mental suffering prior to death. Both have equal capacity for terrible consequences for the victim's community, leaving behind loss and mourning. The only reason the judicial and penal systems differentiate between murder and homicides that are not murder is that there is a difference in the nature of the perpetrator based on whether the victim's suffering and death were the goals of the actions that killed him or her, or whether they were just something the perpetrator was willing to risk.

Further, there are circumstances in which an individual may cause the death of another, but not be charged with a crime. For instance, if it is demonstrated that an individual had no access to information which would have prevented the action which lead to the death, and no other reason to not perform that action, the death may be ruled as accidental rather than homicide. A driver who hits a pedestrian illegally crossing the street in the dark, wearing nothing bright enough for the driver to see, would be able to argue that 1) if the pedestrian had not illegally crossed, he would not have been in the path of the vehicle, and 2) if the pedestrian had made himself more visible, the driver would have had a chance to avoid hitting him. In this type of case, even though the victim may suffer just as much as a victim of homicide or murder, the individual whose actions caused the victim's death is not equal to the perpetrators of those crimes, in that he or she neither intended to kill nor was willing to risk killing as a side effect of the actions which led to the death.

The terms of rape should be treated with equally strict standards with similar regard to other sex crime terms and standards. It is not strictly  the experience of the victim which should determine the nature of the of the charge. The intent of the accused must be taken into account when determining what charge should be made. The term rape should apply if there is evidence that the act was committed with intent to override the victim's right to refuse sexual advances (such as injuries from applied force, a weapon or coercion/blackmail used to force compliance, or an act performed on an obviously incapacitated victim.)

If evidence does not show that level of intent, then the term rape should not apply. Even though the victim may be able to demonstrate equal consequences (emotional and physical suffering, with possibility of diseases and pregnancy) there is a difference in the nature of the perpetrator  based on whether the victim's suffering and risks were the goals of the actions of the accused, or whether they were a result of lack of understanding, lack of communication, or other factors which caused the accused to fail to realize a conscious partner who declined to rebuff advances was not a willing participant.

The definition of the term Rape should apply equally to both sexes. It is no less heinous or depraved to deliberately override a man's right to refuse sexual advances than it is to deliberately override a woman's right, nor does being the same sex as the victim change the wrongness of the act. The choice to do so shows the same character flaw regardless of sex. The law and the legal system should not discriminate against any sex or sexuality by failing to penalize the act of violation on those bases.

The second thing to understand, the thing that those who argue in favor of compromising accused men's right to due process fail to understand, is that discussion on the issues of false allegations and due process is not a pit fight between the due process rights of the falsely accused, and the personal rights of existing or potential rape victims. Debaters often forget that the "falsely" in falsely accused refers to accused who did not commit the crime, not someone who is trying to get away with rape.

Imprisoning the falsely accused does not
  • prevent rape
  • undo rape
  • avenge the victim
  • act as a substitute for handling actual perpetrators
  • achieve justice
Imprisoning the falsely accused does
  • victimize an innocent person
  • create the risk of additional rape
  • damage the community's respect and trust for the justice system
  • damage the community's respect and trust for the law
  • damage the community's sympathy and trust for rape victims
Arguments in favor of lowering the burden of proof in rape cases are based on the assumed disposability of men (the majority of the accused) in that these arguments accept the fact of potentially destroying the accused's life for the satisfaction of the accuser regardless of whether the accusation has merit.
This leads to the third thing which really must be understood. Knowingly and willfully leveling a false allegation is a heinous act with potentially terrible consequences for the accused. Those consequences can range from emotional pain and suffering to whole life-altering destruction of reputation and relationships, to wrongful imprisonment.

The law and the legal system already have set ways in which methods of false allegation (false police reports, perjury, slander) are handled. Where criminal charges would apply if the false statements made were about any other matter, they should also apply in rape cases. The same standards of severity and consequence used to determine the seriousness of those charges in other cases should be used to determine the seriousness of the charges when the lie told involves rape. The standard for proof should also be the same.

Arguments against holding knowing and deliberate (proved) false accusers responsible for their actions are based on the assumed greater value of the rights of women (the majority of accusers) over the rights of men. It is an argument that although there is an authority response and legal process for handling the victimization of women, there should not be an equal response and process for handling the victimization of men, with the reason given being that having that response and process available to men might prevent women from using it.

These things really are the bottom line:

The stated experience of the alleged victim does not define the nature of the accused. We cannot permit compassion for the alleged victim and a quest for retribution for her alleged suffering to reduce our acknowledgement of and deference to the basic human rights of the accused. The choice to fall into that trap depends on treating the human existence of men, the group most often accused, as less than that of women, the group which most often accuses.

Due process rights cannot be compromised, and laws protecting them must be enforced. If we make that compromise, fail in our standards and our efforts because of how we feel about the nature of the allegation, then we are no more righteous, no more validated, no more upstanding, and no more rational than a lynch mob.

No comments:

With one click... help hungry and homeless veterans. The Veterans Site.

google-site-verification: googlefdd91f1288e37cb4.html