Archives : false accusations
Imhoff & Associates Secures Release of Wrongfully Convicted Client Luis Galicia and Dismissal of Child Molestation Case
San Diego (California) – Defense Attorney Shannon Dorvall of the Imhoff & Associates Law Firm, one of the largest multi-jurisdictional criminal defense firms, escorted her client Luis Galicia into the arms of his loving family upon his release after successfully getting her client’s case dismissed by the First District Court of Appeals on November 23, 2011. Luis served four years after a trial court convicted him for sexual molestation of his sister Araceli Galicia. At the original trial, the state’s doctor testified that she believed that Araceli had been forcibly raped, despite the testimony of the doctor for the defense, who stated he disagreed with the state’s evidence. Even though Araceli recanted her testimony and said that the charges were not true, the trial jury convicted Luis Galicia, and the sentence handed down was two 15 to life sentences.
The family hired the Imhoff firm to file an appeal on Luis’ behalf. While awaiting the Judge’s response in the appeal case, the family took Araceli to two doctors who examined her and disagreed with the state’s doctor, both stating that Araceli’s hymen was intact and that she had never had sex. The Imhoff firm also filed a Writ of Habeas Corpus on Luis Galicia’s behalf with the First District Court of Appeals, who agreed to order a hearing, and the Imhoff firm was also successful in obtaining the cooperation of the San Diego District Attorney’s Office to review the new medical evidence. The District Attorney agreed to have the Children’s Hospital also review the trial photos and examine the girl, and they agreed also that she had never had sex. The District Attorney testified at the hearing that the trial evidence was nonsense. The Judge ordered the case dismissed and the release of Mr. Galicia.
The Imhoff firm believes that no family should have to endure the ordeal that the Galicia family has gone through. Unfortunately, innocent people can be accused of all sorts of crimes they have not committed. If a person is arrested or charged with a sex crime, these are serious charges and can ruin a person’s reputation and life as well as destroy their family’s lives. Imhoff & Associates believes in justice and that all persons are innocent until proved otherwise. That is why the Imhoff legal defense team vigorously defends their clients by specializing in the most innovative legal services defense strategies and treats their clients with the utmost dignity and respect. The firm’s outstanding and skilled defense attorneys work diligently and creatively to offer the highest level of service to our clients and uphold the principles and standards upon which this firm was founded by providing service to clients with members of the firm available 24/7.
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Protecting Against False Accusations of Abuse
The Boy Scouts of America prohibit scout leaders from having one-on-one contact with scouts. All trips and outings must be led by at least two adult scout leaders. The Boy Scouts have several other policies designed, not only to protect its youth members from sexual predators and child abusers, but also to protect its adult leaders from false accusations of abuse. On one hand, the Boy Scouts’ policy reflects an awareness of the increasing vulnerability of adult males in positions in which they have contact with children. On the other hand, the policies reflect the growing and unhappy perception that adult males should not be trusted to be alone with our children. This perception has additional support. Child advocate, John Walsh, recently advised parents to never hire a male babysitter. Airlines have begun placing unaccompanied minors with only female passengers. Many soccer leagues are telling male coaches not to touch players.
Concerns Over Threat of Sexual Abuse Common in the U.S.
An unnatural preoccupation with the threat of sexual abuse in not new in this country. In the 1980s the United States faced an epidemic of sexual abuse accusations in day care centers. In high-profile cases across the country prosecutors charged day care providers with hundreds of counts of sexual abuse. In California, the McMartin Preschool trial dragged on for seven years, included accusations by hundreds of children, and resulted in not a single conviction. In New Jersey, a child care provider at the Wee School Nursery School was convicted of 115 counts of sexual abuse. Her conviction was overturned, but not until she had served five years in prison. A combination of questionable witness interviewing methods and general hysteria is now widely blamed on the false accusations and the lives they ruined. What was learned is that children cannot always be trusted to tell the truth, and that adults cannot always be trusted to know when they are lying.
Past Cases of False Sexual Abuse Charges
Despite lessons learned from the sexual abuse witch hunts of the past, false allegations remain a professional hazard for those who work with children in general, and males in particular. Teachers, counselors, coaches, child care providers, and those who participate in volunteer programs such as Big Brother/Big Sisters remain vulnerable to false accusations of abuse. It is a sad truth that, when it comes to accusations of child sexual abuse, defendants are considered guilty until proven innocent. Worse, proving one’s innocence can be a grueling and expensive ordeal. By the time a sexual abuse case goes to trial, the reputation of a defendant has usually already been destroyed. It is no wonder then, that many males have tried to protect themselves against the threat of false accusations.
Male Adults Risk Facing Allegations
In his 2007 Wall Street Journal article, Jeff Zaslow discussed emails he received from men who have grown fearful of encounters with children. One former Boy Scout leader indicated that “Today, I wouldn’t do that job for anything. All it takes is for one kid to get ticked off at you for something and tell his parents you were acting weird on the campout.” Another man indicated that he would not even allow himself to be alone in an elevator with a child for fear of being accused of behaving improperly. Other men are afraid to even make eye contact with unknown children. While these precautions may appear to border on the paranoid, they accurately reflect the climate of fear that currently surrounds adult male/child relationships. It could be argued that, when society as a whole points its finger at men, its children are likely to follow. From that perspective, an abundance of caution appears less paranoid, and more prudent. As the saying goes, an ounce of prevention is worth a pound of cure.
Occupational Hazard: False Allegations of Child Abuse Against Educators
By Brian Barrido, Esq. and Jay Mykytiuk
A school custodian was accused of sexual abuse by five girls. The charges were later dropped when the girls admitted that they had fabricated the story because the custodian had reported them for vandalizing a restroom. An Assistant Superintendent jumped off a bridge to his death after being accused of abusing a student. He had been cleared of any wrongdoing earlier that day. A social studies teacher was accused of molesting a student during a school field trip. Eleven months later, his name was cleared when his accuser recanted. A nine year-old girl offered to pay each of her friends one dollar if they would accuse her teacher of abuse.
False allegations of child abuse against teachers and other school employees can be economically, emotionally, and financially devastating. It can lead to criminal prosecution and long jail terms. And it is a real phenomenon. One school administrator claims to receive 10-12 false accusations of abuse against teachers every year. Multiplied across the country, this number is staggering and disturbing.
Sexual Abuse Allegations Used Against Teachers
Because crimes against children are so horrific, naturally accusers are taken seriously. What this means for accused teachers, is that they are usually presumed guilty presumption that can be very difficult to overcome. The most common motive of students who falsely accuse their teachers is to punish teachers who either disciplined them or give them poor grades. A false accusation of physical or sexual abuse will usually ensure that the targeted teacher is, at the least suspended or fired, and at worst, brought up on criminal charges. If an investigation is not properly handled, or the accused educator is not adequately represented by legal counsel, they may lose their careers and their freedom.
Some schools are addressing the issue before the problem arises. School handbooks advise teachers not to have any physical contact with students. Others discourage teachers from ever being one-on-one with a student in a classroom. But despite these precautions, educators remain vulnerable to abuse charges due to the nature of their positions.
Consequences of a Child Abuse Conviction
The consequences of a guilty plea or conviction for physical or sexual abuse are potentially disastrous. Besides substantial jail time, the convicted abuser will lose his teaching license. If convicted of sexual abuse, one must register as a sex offender, and have their name and residence publicly posted. The convicted abuser will be barred from certain types of jobs, and will often be forced to undergo psychological treatment. This adds up to a steep price for simply choosing a career in education.
An educator accused of physical or sexual abuse against a child should seek counsel immediately. A competent attorney will investigate your case, gather character witnesses, and argue your case to the District Attorney. Your attorney should secure expert witnesses in the area of child psychology. In general, it is crucial that your attorney prepare a comprehensive legal strategy to combat the false accusations and prove your innocence.
False Child Abuse Allegations in Custody Battles
By Vince Imhoff, Attorney at Law and Jay Mykytiuk
Few experiences are more traumatizing than divorce proceedings. When children are involved, anger and hurt feelings can lead to poor judgment and dangerous decisions. False child abuse often sexual abuse allegations are sometimes the result. When it comes to child abuse, innocent until proven guilty, can give way to a powerful societal urge to protect children. Sadly, this fact makes child abuse accusations a very powerful weapon in custody battles.
Child abuse is certainly a serious and pervasive problem. In most situations, abuse allegations are made responsibly and based on actual abuse. But in the context of divorce proceedings or custody battles, there is a greater chance that an abuse allegation made by one spouse against another is without merit. While different studies have produced different results, many experts estimate that between 75 and 80 percent of divorce-related child abuse allegations are completely false. In most cases, the abuse allegations are made by the woman against her ex-husband.
Why Are Child Abuse Allegations Common in Divorce Cases?
There are a variety of reasons one parent makes a false allegation of child abuse against their ex-spouse. Sometimes, the allegation is simply based on a misunderstanding caused by the increased sensitivity resulting from the divorce. Individuals going through a divorce often feel victimized, and their hostility and anger may cause them to think the worst about their former spouses. For example, following a visit, the parent may react to the childs anxious behavior any physical blemish by immediately concluding that the other parent has physically or sexually abused the child.
Often, however, a spouse makes a false allegation deliberately, either to hurt the other parent or to obtain custody of the child. The vindictive spouse will coach the child to make allegations against the accused spouse, and then attempt to find a doctor or therapist who will support the false claim. Mandatory reporting laws, requiring health and educational professionals to report all child abuse claims to child welfare agencies or law enforcement who impose penalties on teachers, doctors, nurses, therapists, and other licensed professionals for not reporting the allegations. Consequently, proving ones innocence can be an uphill battle.
Consequences of Child Abuse Allegations
The consequences of child abuse allegations can be devastating. While child abuse and sexual abuse allegations are usually difficult to prove, the mere accusation guarantees a protracted and difficult legal battle. This battle often concludes with the loss of custody of the child, and imprisonment of the accused. Your best chance to successfully defend a false child abuse allegation is to retain qualified legal counsel. Even when you know that you have done nothing wrong, you must take your defense seriously. Because the consequences of a child abuse conviction are so costly, you will need an attorney skilled in representing people in this type of case.
False Allegations of Child Molestation and Child Abuse: What is Real and What Only Appears to be Real, and How to Know the Difference
By: Edward Martinovich, Attorney at Law and Ariella Rosenberg
In 1986, a defendant was convicted of four counts of first-degree sexual offense and ordered to serve two life sentences. In 2001, after spending fourteen years in prison, this defendant was released, two years after his daughter, admitted that she had lied about her father molesting her. Although a medical examiner had found no evidence of the defendant’s alleged sexual abuse, the daughters story was so convincing that it held up until she finally admitted to the falsehood. Her excuse: she had lied to escape her strict, religious upbringing. The cost: 14 years of freedom and his reputation. His life was irreparably harmed.
A similar case occurred last year, when, after spending twelve years in prison, the defendant walked free. The defendant had been sentenced to forty years in prison in 1992 for molesting a 3-year-old girl. A few years ago, the alleged victim found out that the defendant was in prison and told a relative that she had been coerced into lying to authorities. Apparently, another relative, who had harbored a long-standing grudge against the defendant, had coached the girl.
Sadly, false accusations of molestation are a frequent reality in the criminal justice system. Besides detracting from credible cases of true sexual abuse, false accusations have put many innocent men and women behind bars, while destroying their families and ruining their lives. The motives for manipulating a child into making a false accusation can range from revenge over a broken relationship to a desire to gain full custody of a child. In cases where there are huge sums of money at stake, or in cases involving celebrities, such as the recent Michael Jackson trial, the motives often include a desire to obtain a financial winfall from a public figure.
Federal Law on Child Abuse Prevention
The Mondale Act of 1974, also known as the Child Abuse Prevention and Treatment Act (CAPTA), brought the phenomenon of child molestation to the public eye. 42 U.S.C.A. 5101. Before the passage of CAPTA, child abuse was concealed and rarely reported. With the Acts adoption, states were required to enact more effective child abuse laws, threatening to withhold funding should the provisions of the federal code not be incorporated into state law.
Although the Act is clearly beneficial to the plight of abused children, it is also vulnerable to abuse by those with unseemly agendas. Whereas the Act contains provisions for immunity for individuals making good faith reports of suspected or known instances of child abuse, anyone failing to report any incident of suspected child abuse can be convicted of a felony and have their professional license suspended. 42 U.S.C.A. 5106a. Understandably, the system encourages officials and experts to err on the side of reporting cases of potential child abuse. However, the combination of extreme pressure on officials not to miss a valid report of abuse and the relatively minor consequences faced by false accusers create a tension in the bureaucratic structure, thereby creating a legal nightmare for the wrongfully accused.
After spending twenty years in a California prison after a 1985 child molestation conviction, on defendant was released last year on his 61st birthday. Four of the defendants accusers, now adults, testified that overzealous criminal investigators manipulated them until they fabricated the stories of abuse. Doctors had never even examined the victims. The defendants case demonstrates a classic case of nervous and overanxious childcare officials fearing the legal consequences of failing to protect a truly abused child, only to overreact and lead children into false accusations of molestation.
Different states maintain different statutes regarding punishment for those who coach their children into false accusations against a spouse to gain advantage during a bitter divorce or custody battle. The phenomenon is common enough to have been given a name by mental health professionals: SAID syndrome (sexual allegations in divorce). It goes hand in hand with Parental Alienation Syndrome (PAS), a disorder made up of a combination of brainwashing of a child by one parent to incriminate the other, and of self-created contributions by the child in support of the alienating parents campaign of incrimination. PAS is almost exclusively seen in the context of child-custody disputes, during which false accusations of molestation often arise. Whereas the legal consequences for convicted molesters can include life in prison and lifetime registration as a criminal sex offender, oftentimes those who coerce a child into a false accusation face no more than a fine and less than a year in jail. Let us examine the high-stakes custody battle between a casino mogul and former playboy model wife. Although the judge in the initial trial found that the defendant had coached the couples twin daughters, then 4, to make false accusations of sexual abuse against their father, on appeal, judges still returned the twins to their mothers custody. In this case, the penalty his estranged wife suffered for forcing their children to lie was actually a victory, in that she gained custody of the children.
What To Do If You Are Falsely Accused
False allegations of child molestation are different from most other criminal allegations due to their sexual content, which makes them emotionally charged and highly sensitive. Moreover, since a mere touch of a child can form the basis for a molestation charge in most jurisdictions, these allegations rarely have any medical evidence to support them. Consequently, the trial becomes a battle between the words of a very sympathetic young child versus those of a less sympathetic adult. Add to this, general public paranoia and outrage fueled sometimes by incessant media coverage and you have a recipe for disaster. Therefore, when a child claims to have been abused, the accused is forced to become a public figure and come forward to proclaim his innocence, and, in some instances, be forced to testify at a trial. This creates unfairness within the criminal justice system, wherein the accused has a right to remain silent and is presumed innocent until proven guilty by the prosecution.
Those who have been falsely accused of crimes against children, especially crimes that are sexual in nature, have options. It is imperative to retain expert legal counsel early on in the process. This means at the beginning of an investigation by either the social service agency or law enforcement. What is done at the outset can dictate how and if a criminal prosecution will ensue. Of course, it goes without saying that anyone who is facing criminal prosecution should have an attorney who is experienced in handling these types of criminal cases. Many accused adults decide to plead no contest or guilty to false accusations of molestation under the mistaken belief that a plea does not constitute a criminal conviction. Further, they feel compelled to accept such a plea offer because it results in less custody time than they face if they went to trial and were convicted. What the uninformed person does not know is that a plea of no contest or a plea of guilty is a criminal conviction, which may result in the loss of ones right to appeal, the requirement of lifetime registration as a sex offender, and the public posting of ones name and place of residence. 42 U.S.C.A. 14071. A convicted sex offender may also be ordered to undergo treatment, may be barred from holding certain kinds of jobs, and may be ordered to stay away from children, including their own, regardless of whether or not they were the alleged victims, or to enjoy only supervised visits. Moreover, convicted sex offenders often are subject to searches, seizures, and interrogations by law enforcement every time that a sex crime occurs in the area in which they live. The bottom line is that before one makes a decision that has such far-reaching consequences, one must be absolutely certain that he has received the best counsel possible.
For these reasons, a seasoned legal expert is crucial to help fight false accusations. A smart attorney will prepare a roadmap of the strategy to be used to defend against these types of allegations. A good attorney will discuss with the client what resources will be needed to wage the war against the governments charges. One most certainly will consider the need for medical, psychological and sociological experts. Experts can evaluate and analyze medical or scientific evidence. Experts can conduct an in-depth evaluation of the client. Experts can educate a judge and jury as to the nature of child witnesses and the subject of suggestibility of children. Experts can review and analyze video, audio and written accounts of a childs interview to determine whether the proper interviewing techniques were employed and whether or not a child is credible.
A smart attorney will also counsel the client as to how to conduct himself and what proactive steps to take prior to any trial in order to prepare for certain phases of the case. It is important to note that one who is accused should never confront the child or any other witness about the investigation. A simple conversation may lead to charges of violation of an order of protection, which orders are routinely issued in these types of cases, as well as accusations of intimidating a witness or endangering the welfare of a child.
A smart attorney may also discuss the possibility of having the client submit to a polygraph test (records the bodys responses to truths and lies to judge credibility) and/or a plethysmograph test (records sexual responses to pedophilic material to determine whether any sexually based mental health disorders may be present). Some of these tests and their results may not be legally admissible in court; however, they may be successfully used in discussions with a prosecutor prior to the filing of a criminal complaint to affect the decision as to whether and what types of charges are filed or in negotiation and mitigation once the criminal prosecution has begun.
If I am innocent of the allegations, why do I need a lawyer?
A person who is being investigated for a crime he or she did not commit can benefit from hiring an attorney as soon as possible, even before charges are brought. In particular, in investigations of sexual crimes, such as child molestation, it is important to have the benefit of counsel as early as possible. As a person under investigation, your most important protection is your right to hold the government to the burden of proving its case without any voluntary statement from you.
Your attorney can communicate on your behalf to the investigators. False allegations of child abuse and child molestation sometimes occur when a family member is engaged in a child custody or divorce proceeding. Although many states have laws that impose sanctions for making such accusations, (for example, California Family Code Section 3027.1)(*1) many accusations are still made because it is often difficult for the court to conclude that the allegation was made in bad faith, and not out of an exercise of caution in response to some statement by the child.
If child abuse investigators are contacting you, they have already concluded they have some basis to believe the accusations are true. Investigative agencies are not legally required to follow up on all accusations they receive, and often reject fanciful and contrived allegations without contacting the suspect. If the allegation is false but sufficiently believable for investigators to proceed, the accuser has most likely provided a wealth of factual detail to support the allegations. In questioning a suspect, investigators rarely provide the accused with reports of the allegations, and are even permitted to mislead the accused in an effort to prompt the accused to give a statement. Your statement may inadvertently corroborate relatively minor details, providing sufficient evidence for an arrest to occur.
If you are falsely accused of child molestation it is important to take precautions. Falsely accused persons often mistakenly believe that hiring counsel will cause the authorities to assume the suspect must be guilty. In truth, investigators, prosecutors, and courts must respect your right to counsel and your right to remain silent. They cannot infer that your statement would have implicated you merely because you have retained counsel, or you have declined to give a statement. On the other hand, any statement a falsely accused suspect gives may supply inadvertent corroboration to the accusations, and therefore allow the authorities to obtain probable cause for arrest.
Furthermore, there is no guarantee as to the length of time an accused person will be questioned or under what circumstances. Investigators who believe they can break down a suspects resistance to admitting the truth of a crime may prolong questioning for many hours. They may also question the accused about a wide range of topics, which may appear to not even relate to the present situation. They may conduct the interview in a very uncomfortable setting, even leaving the accused isolated for many hours in an effort to overcome resistance and make the suspect feel hopeless. Finally, investigators are trained at obtaining statements and admissions that are favorable to the prosecution, and may succeed in doing so, even when the accused is innocent.
Due to the current legal and political environment described above and the significant consequences of a sex crimes criminal conviction a criminal defense attorneys assistance could prevent formal charges.
A person investigated for child molestation should remember that only conversations with his or her attorney and the attorneys staff and investigators are privileged against discovery. Any conversation with police investigators, child protective services, family, friends and the alleged victim can be admitted into court as evidence of admissions (*2) or prior inconsistent statements. Even minor deviations between a different persons accounts of the accusers side of the story can appear significant in a later trial.
Frequently police set up a call from the alleged victim to the suspect and monitor the call for any type of incriminating statement, which may be used in the subsequent criminal prosecution. A person is under no obligation whatsoever to cooperate with authorities in his own criminal prosecution and by allowing an attorney to speak for him, the falsely accused may very well save himself from a criminal conviction. An attorney may even be able to supply evidence in your favor, such as statements from other witnesses, or arrange for a psychological evaluation showing that you do not have the personality profile of a person who victimizes children.
The vast majority of those convicted of criminal charges have made some type of statement in investigators, while conversely those who exercise their right to remain silent have a much stronger likelihood of avoiding a criminal prosecution.
As our discussion reveals, the crime of child molestation and other crimes against children are serious offenses that are not to be taken lightly under any circumstances. Given the gravity of the offenses and the severity of the possible consequences, those who have been falsely accused of child molestation or similar crimes must have an experienced attorney at their side in order to prepare and execute an effective defense.
*1. California Family Code 3027.1. False accusations of child abuse or neglect during child custody proceedings; knowledge; penalties
(a) If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney’s fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, “person” includes a witness, a party, or a party’s attorney.
(b) On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served.
(c) The remedy provided by this section is in addition to any other remedy provided by law.
*2. An admission is any statement made by a criminal defendant outside of court. An admission need not even be a statement adverse to the defendants interest. For example, California Evidence Code Section 1220 defines an admission by a party as:
1220. Admission of party
Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.
This rule is very advantageous to a criminal prosecutor, because while any alleged statement of the defendant can be admitted, because the defendant is a party to the case, the accuser is not a party to the case, and his or her statements out of court are therefore not admissible under this rule.
A prior inconsistent statement is also admissible. California Evidence Code Section 1235 provides:
1235. Inconsistent statements
Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing
CALCRIM Instruction No. 318 explains to juries that all versions of a witnesss statement, whether spoken live in court, or introduced as a prior inconsistent statement are admitted for the jury to consider for their potential truth. This also allows jurors to decide if the version presented in court by the witness is to be believed:
318. Prior Statements as Evidence
*3. You have heard evidence of [a] statement[s] that a witness made before the trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statement[s] in two ways:
1. To evaluate whether the witness’s testimony in court is believable; AND
2. As evidence that the information in (that/those) earlier statement[s] is true.
This rule applies to any witness who testifies on either side of the case, or whose hearsay statements are admitted through another witnesss testimony.
3. All criminal courts allow the accused to admit evidence of his or her good character as a defense to crimes. Juries may find a verdict of Not Guilty based on good character alone, for example, CALCRIM Instruction 350 reads in part: Evidence of the defendants character for _______ <insert character trait> can by itself create a reasonable doubt In the California case of People v. Stoll (1989) 49 Cal.3d 1136, 783 P.2d 698, 265 Cal.Rptr. 111, the California Supreme Court found that a defendant may introduce evidence of a psychologists expert opinion, based on interviews of the client and standardized psychological testing that the defendant is not sexually deviate:
we found prejudicial error in the exclusion of expert opinion testimony that defendant is “not a sexual deviate” where offered to prove that he did not commit lewd and lascivious acts upon a child. (Stoll, supra, 49 Cal.3d at 1152).
Sex, Lies, and Justice: How False Rape Allegations Hurt Both Innocent Men and Victimized Women
By: Vincent Imhoff, Esq. & Dan Rhoads
Cassandras Curse
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.
An Extraordinary Crime
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.
Statistics about False Allegations
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.
Cassandra Down Under
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.
Drugs and Alcohol
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.
Model Penal Code
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.
Denouement
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.
Works cited:
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.
DOMESTIC VIOLENCE – Unjust Accusations
By: Vince Imhoff, Esq. & Ori S. Blumenfeld
A factually false statement regarding an occurrence of domestic violence that is presented to the police creates a multitude of injustices that unnecessarily wastes needed resources that the police and eventually, the judicial system require to properly function.
False Domestic Violence Claims
Making false claims about domestic violence is no laughing matter. Daily, we are privy to reports of spouses battering and abusing the weaker spouse. The scenario is made worse if the particular fact pattern included a falsely battered spouse convincing her unassuming child to inform his or her school-teacher that her spouse beat them. This teacher then in turn, assumes the statements of the child to be truthful and turns to the police for further action.
The teacher and administration have a statutory obligation to report the incident for the sole purpose of protecting the child from any possible dangers. The educational systems single concern is that of child and on even the remote possibility that the statements made by the child are in fact true, the school must report the incident without verifying its validity.
Once put on notice of the alleged incident, the police must use their resources to investigate the claim. The investigation takes up valuable time and manpower. Each officer whose time is wasted investigating fabricated claims could be potentially used for a crime that is actually valid. In addition, this problem may lead to social defects on a greater scale. A foreseen possibility is the need to eventually increase taxes in order to pay for these wasteful resources. Also important to note are the already overcrowded prisons today. Putting a falsely accused man in prison would only hinder the problem that the courts/prison systems have rather than help it.
Repercussions of False Domestic Abuse Allegations
The spouse accused of the jacitation most likely will have their reputation damaged by such allegations with whomever they encounter. Even upon the charges being eventually dropped, still, it is hard to say with certainty that all those with whom this individual comes in contact with will not think in the back of their minds that this person was once charged with a serious crime. Domestic violence is a crime that could potentially happen to anyone who lives with another; a crime that many can relate to whether or not they have been a victim. Society likely views the falsely accused with a cautious eye. This consequence hinders the accused in regaining a normal sense of livelihood, once accustomed to. More so, the accuseds name will be unjustly tarnished. The spouse that made the false accusation will also have her reputation tarnished; the accuser will be known to others as a liar
The child also suffers as a result of the parent that asked the child to make the false accusations. The child may suffer psychological trauma that requires therapy. Potentially, the child may be removed from the school and home that they are in, as well as possibly be ridiculed amongst friends.
Police Become Skeptical of Future Domestic Violence Claims
The increasingly false claims that are investigated create a sense of jadedness in the minds of police officers that could potentially hurt actual future victims. Barring any physical injury apparent to a potential victim of domestic violence, police may not take the claimant seriously until evidence suggests otherwise. Although the claim may be proven, with the absence of actual physical injury, the alleged injured spouse will have to wait longer to have their case heard since the police will need to spend even more time and resources investigating the validity of the false report. A false report would seem to occupy a significantly more amount of time and manpower than an obviously truthful one. Ultimately, the less truthful the statement is, the more time that investigation is needed to clear up the falsely accused.
Additional Problems Associated with False Claims
There are additional problems that arise when falsely accused and forced to make bail. If the allegor is successful in convincing the judge during preliminary hearings that the abuse did in fact occur, bail is set very high. This occurs since the court does not want to make it easy for the alleged to return to the home that he or she might still share with the accuser. If the alleged were to reach his victim, injury or death may ensue. Also, if the accused has reason to think that there is no chance to convince a jury otherwise that the story was false, than there is not much stopping the accused from actually injuring the accuser, elicited from rage created by the unjustly false allegation.
The spouse that made the original allegation needs to be considered with regards to coping skills. It cannot be said with any certainty that once the accuser terminates the prior relationship that they will not enter another relationship in the future, where they once again, make false claims. This parent may have an economic dependency on the other spouse or be victim to an array of differing socioeconomic elements, thus returning to the same cycle that they had previously departed.
