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.