By: Vincent Imhoff, Esq. & Dan Rhoads
Cassandra was a prophetess who could not be believed. Apollo had given her the gift of foretelling the future, and the gift could not be revoked. When she broke Apollos heart, he quite cleverly robbed her of her credibility (Hamilton). So, when Cassandra predicted her own demise, no one rushed to help.
Cassandras curse is an apt metaphor for the skepticism that often meets allegations of both rape and sexual harassment. The incredulity toward complainants is an acknowledged reason that many rapes are never reported. The reasons for the curse are likely more mundane than that it is some deific punishment (Romner). Scholars who point to the heritage of coverture (Schafran) and to legal attitudes that accord less value to the speech of socially subordinate groups (Hunter) have identified significant explanations for the phenomenon. Whether or not false allegations of rape also contribute to the plight of real victims is worth examining.
Rape can be both a touchy issue to discuss and a complex charge to defend for several reasons. The act of rape is simultaneously intimate and unspeakably violent. It is the only form of violent criminal assault in which the physical act accomplished by the offender is an act which may, under other circumstances, be desirable to the victim (Shapo). Eyewitnesses are very rarely present.
The laws concerning rape are unique. The overwhelming majority of rape statutes on the books do not expressly state any generally applicable mental state (LaFave), and most American courts have omitted mens rea altogether (Estrich). Because a rape trial is a contest of credibility and the decisive issue is what the victim did or did not do, it often appears that the complainant, not the defendant, is on trial.
The data on false allegations of rape are contentious. Alan Dershowitz has said that, according to FBI surveys, eight percent of all rape charges are completely unfounded (Dershowitz) (compared to 1.6% of assault charges). Other studies with different methods have placed the percentage as high as 60% (Zepezauer). Of course, there are lies, damned lies, and statistics; and the advocates for rape victims are highly skeptical as to the probability that a woman would ever bring a false accusation. Regardless of the precise percentage, a general awareness of insincere complaints of rape is prevalent.
In the early 1990s, some jurists in Australia might have crossed the line between intelligent Bayesian and insensitive sexist. At the South Australian Supreme Court, Justice Derek Bollen, after giving jury instructions favorable to the defendant, opined about womens propensity to allege rape falsely. He then told a lengthy story, which he claimed to be true, about a woman in England who had gone to great lengths to make a series of false accusations of rape. His brethren, Judge John Bland of the Victoria County Court, said while sentencing a perpetrator, in common practice . . . no often means yes (Mack). An outcry ensued. The cases were appealed, and the comments were censured. But, in the immortal words of Justice Cardozo, you cannot unring a bell.
If any such comments have come from an American bench, they have not been well publicized. But it is possible that some American jurors, operating on the same rationale, silently share these beliefs. Rape charges that turn out to be false certainly do nothing to accelerate progress in attitudes.
Liquor and drugs may be potent agents of incapacitation, but they are also common ingredients of the ritual of courtship. The traditional routine of soft music and wine or the modern variant of loud music and marijuana implies some relaxation of inhibition. With continued consumption, relaxation blurs into intoxication and insensibility. Where this progress occurs in a course of mutual and voluntary behavior, it would be unrealistic and unfair to assign to the male total responsibility for the end result.
The presence of intoxicants complicates matters further. In the most sober rape cases, the jury has the unenviable task of determining which party is more credible about what he or she was thinking during an intimate time in the past. When one or both of the parties are intoxicated, both issuescredibility and intentbecome even more difficult to judge.
Most courts distinguish between defendants who administered the drug to the alleged victim and those who did not. A further distinction is made between administering the drug with and without the alleged victims consent (LaFave). These distinctions make sense in grading the seriousness of the offense, but they all share a common flaw.
In any of the above circumstances, it is possible that the victim consented to sex and gave every indication that the encounter was desired, and even that the accused was too intoxicated to know that his presumed partner was legally incapable of consenting. If the victim later regrets the encounter or cannot remember clearly the circumstances attending it, only evidence of intercourse is necessary to convict because rape is a general-intent crime.
Rape is a difficult subject to discuss and an even more difficult crime to defend. Many aspects of the law of rape are inconsistent with other crimes and even counterintuitive. The most important evidence at trial is testimonial, and disinterested witnesses are usually nonexistent.
For the foregoing reasons, rape has historically been considered an easier crime to allege than it is to defend. Due to a statistically murky track record, rape accusers are often viewed skeptically. Victims of rape are not helped by allegations that are ultimately proved false. It is likely that perceptions resulting from false allegations contribute to Cassandras curse.
Dershowitz, Justice, Penthouse, September 1991, at 52.
Estrich, Rape, 95 Yale L.J. 1087, 1097 (1986).
Hamilton, Edith. Mythology. Signet: Chicago 1969. p. 202.
Hunter, Gender in Evidence: Masculine Norms vs. Feminine Reforms, 19 Harv. Women=s L.J. 127, 155 (1996).
LaFave, Criminal Law, 4th ed., at 853 (2003).— at 866 (2003).
Mack, Gender Awareness in Australian Courts: Violence Against Women, 5 Crim. L.F. (1995).
Model Penal Code ‘ 213.1, Comment at 315 (1980).
Romner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v. Clinton, 31 U.C. Davis L. Rev.123 (1997).
Schafran, Credibility in the Courts: Why Is There a Gender Gap? Judge J., Winter 1995, at 5.
Shapo, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500, 1503 (1975).
Zepezauer, Believe Her! The >Woman Never Lies= Myth, Institute for Psychological Therapies Journal, Vol. 6: 1994.
By: Vincent Imhoff, Esq. & Sapana Shah
In efforts to reduce the crisis of teenage pregnancies and epidemic of welfare-dependant fatherless families, the laws governing statutory rape have become exceedingly strict and more aggressively enforced in the last decade. In effect, nearly every state has instituted a broader category of definition and has extended the time to find and punish perpetrators. Despite this expansion of explicit laws proscribing statutory rape, the potential for conviction of a defendant depends on various legal issues: the year of commission, the status of relationship with the child, the role of the accuser in legal proceedings, the evidence used to support the charge, and prior criminal history of the defendant.
Statutory rape laws define the age below which an individual is legally incapable of consenting to sexual activity; statutory rape laws assume that all activities with individuals below this age are coercive, even if both parties believe their participation is voluntary or consensual. The penal code or criminal code of each state dictates the specific sexual acts that constitute a felony or misdemeanor offense of statutory rape. A common misconception is that the age of consent is the single factor that determines the legality of sexual activity. However, there are only 12 states that have a single age of consent. For instance, in California, statutory rape is defined as: An act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor, a person under the age of 18″ (Penal Code 261.5(a)). New York also, has a single age of consent: If the victim is under 17 and the perpetrator is any age, this constitutes a misdemeanor sexual offense (Article 130, New York Penal Code). In the remaining 39 states, the legal nature of sexual intercourse is determined by age differentials between the child and defendant, the minimum age of the child, and/or the minimum age of the defendant. In Texas, for instance, the age of consent is 17 and the minimum age of child is 14 with an age differential of 3 years; thus, individuals who are at least 14 years of age can legally engage in sexual activities if the defendant is less than 3 years older than the accuser (Texas Penal Code 22.011(a)(2)).
It is often the case with statutory rape cases that memories fade, evidence gets destroyed, and thus defendants may lose the tools to supports their case. Therefore, many states impose a statute of limitations for prosecution in order to ensure that the lawsuits are based on a credible testimony and evidence and to ensure the integrity of the U.S. Justice System. In the last decade, however, the impetus to prosecute statutory rapists has resulted in either the lack of statute of limitations or an extension of the limitations period. For instance, the statute of limitations for California permits prosecution of the crime within six years after its commission (California Penal Code 800), which is 3 years longer than its original time limitation. Additionally, under the DNA Exception rule, California further permits prosecution of statutory rape within one year of the date on which the identity of the suspect is conclusively established by DNA testing or within 10 years of the offense, codified under California Penal Code 803 (2001). For defendants who may currently face a statutory rape lawsuit, it is significant to note that it is possible prosecution may not be permissible if the commission of sexual act occurred before the extended statute of limitations was instituted. As the Supreme Court held in Stogner v. California No. 01-1757 (US Sup. Ct. 06/26/2003):
A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution…Such features produce the kind of retroactivity that the Constitution forbids.
Beyond the proscription of statutory rape defined by states definitions and the respective statute of limitations, other legal issues are equally imperative with respect to prosecution. First, most states make exceptions to their statutory rape laws if the adult and child are legally married during the time of commission of sexual conduct. Among many states, California and Texas stipulate this exception in their state penal codes. Secondly, the role of the accuser in legal proceedings and the type of evidence put forth are significant factors that may affect the outcome of the case; if the sexual act is clearly consensual and the child refuses to testify, it is possible that the defendant will stand free of conviction. Moreover, individual jurisdictions in many states prosecute cases based on their own criteria; therefore, while there may be some evidence that confirms the legally age-inappropriate sexual behavior, a combination of factors including the age differential between the child and adult, year of commission, and prior criminal history of the adult may determine the outcome of the case, depending on the state and county. Lastly, because the nature of the sexual act may determine whether it is a felony or misdemeanor offense, cases with insufficient evidence or lack of testimony from the accuser may result in reduced charges.
The unfortunate result of the stringent statutory rape laws is the accusation of suspects made long after the commission of the sexual act, leading to unreliable testimony and unfair prosecutions. Furthermore, retroactive application of current statutes of limitations violates the Ex Post Facto Clause of the Constitution, and thus should eliminate any possibility for prosecution of a crime committed before the implementation of the extended statute. Due to the potential for an unfair trial and the complex legal issues surrounding each statutory rape case, it is imperative that the defendant consults with qualified counsel as soon as possible. The methods in which the defendant can additionally protect his or her self is by exercising the right to remain silent, by not investigating own case, gathering documentation of good character, (such as reference letters, employment history, community service, etc.), and keeping a diary of all significant events and potential witnesses.
Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys, practicing criminal defense law.
By Vince Imhoff, Esq. and Ori Blumenfeld
Child pornography, has become more prevalent and widespread in the past five years than ever before. With the emergence and explosion of the cyber-world and the rise in the use and the accessibility of the Internet, those who have a desire to view child pornography have easy access to do so. Even though various companies that provide Internet access go to great lengths in effort to remove such pornographic sites, often times it is to no avail. The prevalence of uncontrollable pop-up sites containing these disturbing images has thwarted this effort to control pornography, thus giving those who choose to view these sites, easy access to do so.
Suppose a child pornography email is sent to an account holders junk mail folder. Now, suppose that the person who received pornographic email mistakenly opens it, and in attempts to delete it, a common human error made by many known as a mis-click. Once this email is mistakenly opened, a message appears on the account holders computer screen, and in the body of the email, stating, THIS IS AN FBI STING OPERATION AND YOU HAVE BEEN CAUGHT ATTEMPTING TO VIEW CHILDPORNOGRAPHYYOU WILL BE CONTACTED SHORTLY BY A FBI AGENT.
If the email account holder can show that their inadvertent action caused them to open the child pornography email, rather than their subjective intent to do so, then they should be able to use this fact as part of their defense if charged with a crime relating to this action. More specifically, the email account holder should show that they did not have the requisite mens rea, or state of mind, to be charged with a crime relating to the viewing of child pornography. The email account holder should prove that they neither requested nor purchased the email containing the pornographic images that were sent to them and thus should not be charged with a crime.
In addition to using the fact that the email account holder lacked the requisite subjective intent needed to be charged with a child pornography offense as part of their defense, the holder of the account can raise yet another complete defense to lack of required elements; namely lack of possession. More specifically, when someone receives an email but does not open it, other issues arise: – Does this mean that they have acquired possession of the email and its contents? – Is possession established only if the email is opened and/or read and internalized? – At a more extreme level, does possession of an email begin at the moment it is sent from one party to another; the action of sending the email creating automatic possession of the email by the party receiving it? – Between the time sent and the time received, who is in fact in possession of the email? – Is knowledge of the contents of an email established once the email is received by the email account holder, or is knowledge established when the email account holder engages in the volitional act of opening the email and viewing its contents? – What is the status of an email account holder who has received an email that has a subject line referring to child pornography, but has not yet opened the email? – Can you equate such receipt of pornographic material with possession of pornographic material?
Before one may be charged with possession of child pornography, the issue of what it means to be in possession of, along with the listed issues need to be determined. For the sake of the hypothetical at hand, there is a presumption that the owner of the email was not in actual possession of the child pornography, due to the inadvertent opening of the pornographic email. Various federal statutes state that in addition to the requisite mens rea element, possession of the material is required in order to be convicted of viewing child pornography. Someone opening an email that was sent without any identifying features in the subject header can equal someone sticking a note in someone elses pocket without their knowledge. Moreover, actual specific knowledge of the possession of child pornography is required.
In the aforementioned hypothetical, the email account holder did not have the intent to view the child pornography and can raise this as a defense. Nevertheless, even if the requisite mens rea can be proven by the prosecutor, the email account holder who received the pornographic material did not have actual possession of the email. Specifically, the email containing the pornographic images was sent to the email account holders junk mail folder, which was set up to receive unwanted emails.
Once the email was sent to the email account holder, an argument can be made that the email account holder also cannot be convicted on a strict liability charge due to the fact that they not only did not meet the intent and possession elements required for conviction, but similarly, they did not request nor purchase such material. The email account holder should be able to argue that they were not the owner of the email whether or not they opened it, even though it appeared in their inbox since the email was not requested.
Although the owner of the email account opened the email out of curiosity resulting from the fact that the account holder did not know whom the email was from or what it contained, the email account holder could raise the defense of entrapment against the FBI. Such a defense may be raised, since the FBI was attempting a sting operation on victims who had no intent or desire to possess the material requiring conviction of the crime. Entrapment is a defense to a crime; it is not a negation of the crime for which one has been charged. The defense of entrapment, however, cannot be established until a crime has been committed. Since this was an unsolicited email that the owner of the email did not subscribe to, the FBI will be found to have overreached their powers in an effort to catch people in the act of viewing child pornography and thus a countersuit may arise by the email account holder.
