Monday, July 16, 2018

The Difference Between Presuming Innocence and Presuming Victim Perjury in Acquaintance Rape Trials

by Sherry F. Colb

The New York Times recently published a letter that I wrote about rape and statutes of limitations. I suggested that one reason to abolish statutes of limitations is the need to prosecute a category of crime that has long received little attention, acquaintance rape. Instead of calling such cases “swearing contests,” I proposed, we need to understand that victims are credible eye-witnesses while criminal defendants are not.
In response to my letter, some readers accused me of wanting to shift the burden of proof and eliminate the presumption of innocence. I am interested in neither. Here I want to explain the difference between the presumption of innocence and burden of proof, on the one hand, and the presumption that an alleged rape victim is lying, on the other.

Confusion reigns about the presumption of innocence. People casually say “innocent until proven guilty,” as though one has committed a thought crime by believing that the defendant is guilty as charged before the verdict is in. People are not in fact innocent until proven guilty. The purpose of a trial is to determine what happened in the past, and the institution of the trial is accordingly premised on the assumption that the defendant is already either guilty or not guilty before the jury has even set eyes on him. Its job is to figure out which.
The presumption that someone is innocent until proven guilty means something far more modest than that the verdict magically creates the reality of innocence or guilt in the past. It means that unless and until the prosecution has proven that the defendant is guilty, the jury must be ready to bring back an acquittal. If the prosecution were to try to prove the defendant guilty of murder by introducing a sample of his blood located near the building where the victim’s body was found, and that was the entirety of the case against him, then the jury would have to acquit. The blood near the building is not nearly enough evidence to prove the defendant a murderer.
The burden of proof has to do with who must prove their case in order to win and how convincingly they need to do so. In a criminal case, the burden of proof belongs to the prosecution, and the weight of the burden is beyond a reasonable doubt. I have no quarrel with either the placement or weight of the burden. A criminal conviction can result in prison time, so we need to be very confident before proceeding to a conviction.
Some folks, however, make the mistake of thinking that in order to presume innocence, we must conclude that the complaining witness in a rape case, the alleged rape victim, is perjuring herself when she provides incriminating testimony against the accused rapist. They compound this mistake by imagining that we must give as much credence to the defendant as we do to the alleged victim and that we cannot convict a rapist on the basis of the victim’s testimony alone.
None of that is true. Think about a non-rape case, an armed robbery. Juries must presume that the defendant is innocent there as well, and the prosecution there must prove guilt beyond a reasonable doubt to avoid an acquittal too. Yet no one presumes that the robbery victim, as he testifies, is lying on the stand. I know, because I was a robbery victim, and the defense attorney bent over backwards to treat me with respect and to make clear that he thought I might have been mistaken but not that I might have been lying. He is not an outlier. Juries would hate a defense attorney who approached a crime victim witness as one would approach a liar, unless, that is, the victim accuses the defendant of acquaintance rape.
Juries are allowed to believe the eye-witness testimony of victim witnesses. Indeed, deciding to believe or not to believe witnesses is an enormously important part of their job. The presumption of innocence is not a presumption that any particular witness is lying or telling the truth. It is instead an attitude toward the case: acquit unless and until the evidence convinces you of guilt beyond a reasonable doubt. The convincing often happens through testimony.
When someone tells a police officer and later a prosecutor and a jury that someone victimized him, the typical reaction is to believe him and then to seek evidence that either confirms or refutes what he says. If he says he was robbed at gunpoint, the police show him mug shots and ask where and when it happened. They believe what they hear, and then they go out and talk to people and seek out other evidence, if it exists. That evidence might give rise to questions about what the witness said, at which time the police make a determination about whether they should scrap the case, go forward, or continue looking for more evidence.
In a typical acquaintance rape case, things go very differently, as is well chronicled in the book Missoula, by Jon Krakauer. Police immediately express skepticism after hearing the victim’s story. They might ask, “do you have a boyfriend?” because they believe—without apparent foundation—that young women routinely invent rape accusations as a means of explaining why they cheated on their boyfriends. Police thus treat evidence of crime—an eye-witness’s first-hand account of what the perpetrator did to her—as though it is actually evidence of the victim’s mendacity, of her crime.
If it even gets to a prosecutor, she might subject the victim to the same skeptical scrutiny, which departs from the prosecutorial norm for the treatment of other victim witnesses, and is likely to tell her that the case is not strong enough to go to a jury.
The notion that a jury cannot convict a defendant on the basis of “he said/she said” is another erroneous misconstruction of the burden of proof. Prosecutors regularly win criminal cases on the basis of an eye-witness’s account of the crime, even when the accused says “I didn’t do it.” Unlike a complaining witness, who stands to be discredited and stigmatized after she makes her rape accusation, a defendant has everything to gain and nothing to lose in declaring his innocence for the jury.
He is, in other words, a biased witness, a witness who has an interest in telling a particular story. It is not only permissible but common to find a defendant guilty on the basis of the sworn testimony of a victim witness, notwithstanding the defendant’s denials. Credible testimony can and does prove guilt beyond a reasonable doubt, even in the face of contrary testimony by the accused.
Am I suggesting that complaining witnesses in rape cases always tell the truth? Of course not. People—including rape complainants—do lie under oath on occasion, and it is tragic when that leads to the incarceration of an innocent person.
But there is no reason to think that complaining witnesses in acquaintance rape cases lie any more frequently than people do in other cases. And on the rare occasion that a victim does lie about rape, it may well be that there was good reason to doubt the particular witness, based on inaccuracies in her story that would emerge during a serious investigation. Every rape case calls for a thorough investigation and interviews with everyone who might have something relevant to contribute to the overall picture.
Sometimes, though, a witness might lie, and there might not be other evidence to suggest that she is lying, save the accused’s testimony. What then? What then is that the jury should listen to the testimony of each witness and make an assessment of whom to believe.
In making the credibility assessment, the jury should take into account the fact that defendants want to be acquitted and can be expected to testify accordingly. Imagine that a robbery defendant’s mother testifies for the defense and swears that her son was with her in her apartment at the time of the robbery. Imagine further that the victim witness says the defendant robbed him on the day in question.
Do you suppose for a moment that the jurors will regard the testimony as a “swearing contest” between the victim and the accused robber’s mom, with no clear winner? Of course not. Jurors understand that the defendant’s mother wants him home, so her incentive is to say what it takes to get him there.
And jurors will assume that the victim simply wants justice done and testifies to the truth. Rather than “presume” that the victim is lying, the jury will believe him because he—like a victim claiming to have been raped—is ordinarily worthy of belief, though he--unlike an acquaintance rape victim--may be mistaken about the perpetrator's identity.
Am I saying that juries should believe complainants even when they are lying and the accused rapists are telling the truth? I am saying that we might face such a case without realizing what it is and that this is the cost of a system that relies on witnesses. A single eye-witness to a crime can convict the defendant, even though the witness might be mistaken and/or lying. We do not require physical evidence or corroboration in other crimes, so there is no reason to require them in acquaintance rape cases. Neither lies nor errors are unique to rape.
In fact, a person is much more likely to get things wrong when identifying a perpetrator who was previously a stranger than she is in identifying a known attacker. And once again, we have no more reason to believe that she is lying than we do in the case of a victim witness to a robbery or pickpocket.
At this point, it is fair to say that most acquaintance rape victims never see any justice with respect to their rapists. Centuries of misogyny have seen to that by essentially presuming that a woman who claims to have been raped is an insane perjurer. But it is time for that to change.
It is time for jurors to presume innocence until they hear credible evidence proving guilt beyond a reasonable doubt. And it is time for jurors—and prosecutors, police officers, and the public—to recognize that acquaintance rape victims are just as credible when they testify under oath as are the victims of other crimes. Believing women does not disturb the presumption of innocence. It disturbs only the presumption of perjury, a presumption that never rested on any logical or just foundation in the first place.


Shag from Brookline said...

This post does not focus on any of the bases for statutes of limitations in criminal (or civil) law. There are ranges of statutes of limitations for crimes, with longer periods for what are considered to be more serious crimes, and no limitations in case of murder. Should there be no time limits barring access to the courts criminally, or perhaps even civilly?

Joe said...

The author's fellow Verdict columnist Marci Hamilton (whose politics is more conservative on certain subjects but is a strong advocate for abuse victims, particularly children) also supports changing the statutes of limitations for certain crimes. I understand the argument though as Shag suggests am somewhat wary of doing so without certain safeguards. There are reasons they are in place and when we are dealing with child victims in particular we might be talking decades and time brings certain concerns that lead to statutes of limitations in the first place.

The letter notes that a defendant's denial is "fully explained by a desire to avoid conviction." I would also be careful there. The person might be married with children when a rape claim is brought. Recall the immediate issue -- we are dealing with allegations that will come years later. Unless "conviction" here to be interpreted broadly, there are various reasons a defendant might deny something, down to something that is not criminal or not as serious as the alleged crime. This especially is the case for certain types of crimes.

The concern about the crime here being treated as a "minor" offense or putting accuser and the accused totally on equal footing is well taken. But, I'm a bit wary about the "modest" adjective in the context of the burden of proof. In actuality, a criminal conviction is not the only thing at stake here in these cases.

Miss Ali said...


TruePath said...

Note that our use of language like he-said/she-said DOESN'T track the gender of the complainant or whether it was an instance of rape or not. Rather, it seems to track something more like: cases where the victim and accused know each other, either account is consistent with the physical evidence and we can't simply dismiss the possibility that either of them is telling the truth out of hand.

Consider that we don't generally call cases where a woman reports a stranger rape at knife point he-said/she-said situations. On the other hand if one man accuses a former friend of unprovoked (and unwitnesssed) battery the prior night while the other claims to be defending themselves or one neighbor claims to have seen their neighbor deliberately breaking some pieces of a contested construction while the other claims it was just the storm that too is a he-said/she-said.

Seems to me like we call situations where people who know each other well enough to (potentially) have strong feelings and where both sides have stories that aren't inherently absurd/mind straining he-said/she-said stories. As the phrase suggest that means we need to be certain of the parties involved (accused muggers usually say some 3rd person did it) and feel that neither account is inherently fantastical.

If I mug (with threatening fists/knuckles) some stranger in a bar restroom with no witnesses but clearly identified on TV going in and out it's not a just so story because my claim that "This crazy guy just turned to me and said I'm going to accuse you of mugging me just because I can" goes beyond being merely unlikely to being absurd (maybe we shouldn't so judge but we do). On the other hand just because false rape claims are way way less likely than true ones doesn't make the idea that the rape accusation was concated as vengeance/payback of some kind actively absurd.

Now you don't have to think this is a good way to think. There may well be more psychos accusing (and following through) strangers of mugging them just because they can than we think. Absurdity isn't the best guide to truth. But it's the normal kind of human mental shortcut not a reflection of gender bias. The problem is we can all picture ourselves in the right situation falsely accusing someone of rape but most of us can't imagine just picking someone at random to ruin their life (Leopold and Lob not withstanding).

TruePath said...
This comment has been removed by the author.
Dave said...

Defense attorney here - The author's general point, that rape complainants are generally credible while defendants have an incentive to falsely proclaim their innocence has obvious merit. But I'm not sure that this provides provides a justification for extending or eliminating statutes of limitations for acquaintance rape of adult victims. Does the data bear out that acquaintance rape complaints, involving adult victims, made 10 or 20 years after the alleged crime are generally so credible that we need not worry about the defendant's inability to defend himself so long after the fact? No doubt that many rape victims wait that long for various reasons, but do we know as an empirical matter that the risk of false accusation in that specific subset of complaints is minimal? I'm not sure there is any good data on that.

There is a significant danger to allowing stale complaints of acquaintance rape. Almost without exception, the only question in these cases is whether there was consent, and 10 or 20 years after the fact there will almost never be any way for a defendant to present evidence in his favor on that point. One's only defense will therefore be one's own testimony, which the author concedes will and should be viewed skeptically given his incentive to falsely proclaim his innocence. Given this reality, I for one would like to see more data on this specific category of complaints - acquaintance rape of adult victims that are not reported for 10 or more years - before doing away with one a longstanding and fundamental protections for criminal defendants.