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> Easy to Claim, Hard to Disprove
| Rape Trauma
Syndrome | Defense
& Sentencing
Rape: The Criminal Allegation That Is Easy To Claim and
Increasingly Difficult For The Defendant To Disprove
For decades, the crime of rape has been known
as the easiest criminal allegation to make by
the alleged victim and the hardest to disprove by the defendant.
In the 1960's, the victims of this
brutal crime were able to take advantage of significant changes
in the law that made it easier to
obtain convictions and justice. Unfortunately, these changes also
made it easier for those who
were falsely accused of rape to be convicted as well. Adding to
the defendant's difficulties is the
controversial "Rape Trauma Syndrome," an irresponsible
psychological theory that has been
rejected by mental health professionals, but is still being used
by prosecutors as so-called
evidence in cases alleging the crime of rape.
Laws Making It Easier To Obtain Convictions
The Courts have long know that rape is an
easy allegation to make but one that is hard to
disprove. In fact, the biggest threat of being falsely accused of
a crime was that of being
accused of rape (until "child molestation" became a significant
national issue that flooded the
legal system with cases.) The Courts perceived the potential threat
of false allegations of rape
and fashioned Jury Instructions to inform members of the jury that
such allegations were easy to
make by the complainant but difficult for the defendant to disprove.
Today, this jury instruction
is no longer allowed to be given as a result of changes in the law,
changes that also mandate
giving a very different set of instructions.
Jury Instructions
The judge now informs the jury that 1) an
allegation of rape does not require any evidence of corroboration;
2) there is no requirement for medical evidence; 3) there is no
requirement for DNA evidence; and 4) there is no requirement for
a second witness. In short, there is no requirement for obtaining
a conviction other than the bare allegation made by a complainant.
Even the manner in which the jury is selected is tainted with this
attitude that evidence does not matter. Prosecutors can demand that
during the selection process, each perspective juror must agree
that he/she would not require corroboration of a crime. If the juror
disagrees with this demand, he/she can be excused.
Rape Shield Laws
Consensual sex is still legal. Being able
to prove consent, however, has become more difficult
for the defendant. For example, if a man meets a women at a bar
and has sex with her that
night and later she claims that she was raped, the man use to be
able to introduce evidence to
help establish a pattern of consensual sexual behavior on the woman's
part. That might be the
testimony by witnesses that the women routinely comes to the bar
every night, engages a man's
companionship, and then goes home and has sexual relations. Such
evidence is highly relevant
to show the sex on the night in question was consensual. This type
of evidence is no longer admissible.
Victims' rights advocates were rightly concerned with legal strategies
that put the victim's
personal life on trial. Unfortunately, highly relevant evidence
that can protect an innocent
defendant is no longer allowed because politics has obscured justice
and powerful lobbies have
helped to pass what is now called "Rape Shield Laws."
Under the Rape Shield Laws, a defendant
in today's courtroom is forbidden to introduce the prior sexual
conduct of the complainant on
the issue of consent. (Like the example above) And yet, no one has
ever successfully shown
that the evidence of prior sexual conduct is not relevant in determining
consent. While the Rape
Shield Laws were intended to encourage more women to come forward
and testify, it simply has
made it easier to falsely accuse and convict an innocent individual.
In 1998 the California legislature passed Evidence Code § 1108
that further crippled a defendant's
ability to remain innocent in the eyes of the jury until proven
guilty. The new code section allows
the prosecution to introduce allegations made by other women allegedly
assaulted on previous
occasions by the defendant to prove that a rape occurred in the
currently charged offense.
However, no corroborative evidence is required to introduce these
alleged crimes. There does
not have to be a conviction. Nor does there have to exist a criminal
charge or even a prior police
report. The uncorroborated word of a single individual is sufficient.
In a backlash meant to protect victims of rape, the legislature
is creating new victims by keeping
out the sexual history of the complainant on the issue of consent,
and allowing into evidence the
sexual history of the defendant. This is shear politics and not
based upon any rational grounds of
relevancy or fair play. Such legislation is systematically making
it easier to obtain convictions,
and while those guilty of rape should be convicted, those who are
falsely accused must be given
back the right to defend themselves adequately in a court of law.
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