Topic: Law and Order
Time Doesn't Make You Innocent Why even HAVE a statute of limitations on rape?by RS Davis
(libertarian)
Wednesday, June 4, 2008
At the end of last month, lawmakers in Springfield, Illinois sent a bill to the governor's desk that would remove the statute of limitations on the crime of rape:
The House sent the governor legislation that would eliminate the statute of limitations for rape and four other sex crimes as long as victims report the crime within three years and the offender's DNA has been entered into a state database within 10 years of the assault. Such felonies must now be brought within three years.
It's a good move. You should not be able to get out of such a heinous crime just because some time has passed. For instance, one dirtbag pedophile priest walked in 2004 after raping two boys, simply because the statute of limitations have expired.
Statutes of limitations are intended to prevent bad prosecutions. The theory is that memory is unreliable in the first place, but memory of something that happened ten years ago is practically worthless.
Now, I remember every single person I have ever had sex with, and pretty well, too. If it had been coerced sex, I'd imagine my memory would be even better.
That said, you have to remember that if you are falsely accused of that crime, you probably have no idea what you were doing on some particular day ten years ago.
But good evidence is good evidence and bad evidence is bad evidence. I would hope that a defense attorney would communicate well enough that if the only evidence available is simply "he said/she said," there's no case to go on, anyway, ten years after the fact. If he can't get it thrown out altogether by the judge, then it behooves him to convince the jury that a ten year old memory is about as reliable as crepe-paper condom.
The reliability of memory has been a problem before. In the 1980's, they amended child sexual abuse statutes of limitations to start the clock ticking not when the crime occurred, but when it was discovered by the victim. This led to a boom in prosecutions based on crimes discovered during "hypnotic regression" therapy:
The changes in law had followed close on the heels of a fad among psychotherapists that had helped elicit from thousands of patients false memories of long-ago abuse at the hands of family members, teachers, or complete strangers. These patients would now be given legal encouragement to turn these memories into court cases, though after a lapse of decades it might be hard to prove either way whether Mom, Dad, and Aunt Bev had indeed engaged in multiple rape, Satanic ritual abuse, or midnight animal sacrifice in the town square...
...As illustrated by the child abuse cases, one of the prime reasons for the disapproval of stale actions had always been the realization that their evidentiary basis will commonly be far less reliable than that of fresh actions. Aside from the drift and fading of memories, written records will often have been discarded, personal witnesses scattered or dead. Then, too, there’s the nagging question of whether the original bad person or entity is still in some sense around to punish. Despite the law’s eagerness to entertain notions of "successor liability," many of us will share Victor Hugo’s doubts, as embodied in the character of Jean Valjean, as to whether the repentant 70-year-old is really the same person for purposes of punishment as the culpable 20-year-old he once was.
Again, though, you don't prevent prosecutions because some evidence might be bad - it's the jury's job to determine the quality of the evidence. And in the case of completely unreliable methods like specious "hypnotic regression," you treat them like courts treat polygraph results - evidence gathered in that way should not be admissable. Problem solved.
And I've never been very sympathetic to the claim that "I'm not the same man who committed those crimes. God has changed me." Well, if God has made you a better person, shouldn't you want to do penance for your past crimes? The victim, after all, is not the person she was before you assaulted her, either.
With the advent of DNA technologies, quality evidence is getting more and more abundant. DNA doesn't have memory lapses. DNA isn't biased. DNA doesn't hold back information that might exonerate you or point a finger in a different direction.
DNA evidence is also abundant, but often sits in evidence storage because prosecutors are prevented from filing charges on someone DNA proves is guilty.
In fact, before New York abolished its five year statute of limitations on rape in 1996, it was reported that "332 sex fiends fingered by DNA evidence will not be prosecuted because of New York's archaic statute of limitations on rape."
Many states are amending their statutes, and as of April 2007, The National Conference of State Legislatures reported:
Seven states, Alabama, Delaware, Idaho, Mississippi, New York, North Carolina, and Virginia have no time limitation for the offense of rape. Nevada has no limitation for sexual assault if a written report has been filed with a law enforcement officer during the period of limitation. A number of states have no statute of limitations for prosecutions of the most serious, often Class A felonies, including rape crimes and regardless of the age of the victim. These include Connecticut, Florida, Indiana, Kentucky, Louisiana, Michigan, Missouri, New Jersey, New Mexico, Rhode Island, South Dakota and Vermont.
Its a great start, but there's still a ways to go. If this is an issue that concerns you, I'd recommend looking at this chart to see what the limitation is in your neck of the woods, and write to your representatives if it is lacking.
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The law does not protect, in any way, innocent men. In "Until Proven Innocent," the widely praised (praised even by the New York Times, which the book skewers) and painstaking study of the Duke Lacrosse non-rape case, Stuart Taylor and Professor K.C. Johnson explain that the exact number of false claims is elusive but "empirical data . . . suggest that at least 9 percent and probably closer to half of all rape claims are false . . . ." (Page 374.) A rape charge typically can be brought without any corroborating evidence, and the passage of time could leave an innocent man at a significant evidentiary disadvantage. Why are extended or eliminated statutes of limitations troublesome? Simple. Every lawyer knows that one's ability to defend against most claims diminishes with the passage of time -- memories fade; evidence is lost (e.g., if the man and the woman were involved in a consensual relationship, there may be no evidence to prove it after several years -- he probably deleted any voice mails or emails tending to show a consensual relationship); and alibi witnesses disappear and sometimes die. Years after the alleged rape, the woman might paint a vivid picture of a rape; in contrast, if the man is innocent, the most he might be able to honestly say is, "I would never rape a woman, but I have no strong recollection of that night." He may have no recollection whatsoever of where he was on the night in question; whether he was drinking; whether she was drinking; where they were prior to or after the sexual encounter; what they discussed prior to or after; or with whom they spoke prior to or after. In short, he may recall nothing whatsoever about that night and at trial would be like the warrior of old entering battle stripped of his shield and sword.
Is that fair to an innocent man? The question scarcely survives its statement.
The only fair and equitable solution is this: when the woman reports the alleged crime, the man should be promptly alerted that he has been accused of a rape so that he can preserve evidence crucial to defending against this most vile charge. This would do nothing more than put him on an equal footing with his accuser. Otherwise we allow the woman, and the state, to ambush him with a rape charge years after the fact -- years after his ability to fairly defend has been diminished, perhaps fatally.
In other contexts, the law does not regard as "fair" similar purposeful prosecutorial delay that prejudices the accused. If the state waits to indict a man in order to obtain a tactical advantage, and if such delay prejudices a man's ability to fairly defend himself, his due process rights are said to be violated and the charges are dismissed. Why would this situation with the rape kits be any different? And lest there be any doubt, although the state decides whether to bring charges, in so-called acquaintance rape scenarios (the vast majority of rapes fall in that category), the prosecution's case rests on the word of the accuser. There often is no other evidence of the alleged crime.
What is needed is a serious dialogue that includes discussion of the innocent, not a witch hunt to jack up rape conviction rates. Removing false accusations from the public discourse about rape, as the sexual assault counseling industry has done, and blinking at the victimization of falsely accused men, is not merely dishonest but morally grotesque. It is as hurtful as the ludicrous assertion that “she asked for it.” http://falserapesociety.blogspot.com/
It's an interesting question, but I must say your example of the "repressed" sexual memories cooked up by psycologists(with the help of Janet Reno) rather harms your arguement. No matter how "sure" evidence is, it is always open to misinterpretation, or outright manipulation-time only increases this risk.
I've always thought the scales of justice needed to be, if at all, skewed toward the accused-otherwise the risk of show trials, and reprisals, is simply too great. A price that comes with an impartial justice system, I think.
I wonder why it would take someone three years to report a rape, anyway? That alone raises questions as to the motives of the accuser.
But then I though OJ deserved to walk, his guilt was not proven, simply implied.
Yeah, I know it is a strong argument against - that is the primary reason I addressed it at all. My point on that, though, was that "repressed memories" uncovered by "hypnotic regression" is really just "fake memories" implanted by "hypnotic suggestion," and therefore should never be admissable in court anyway.
I can definitely conceed your point about the time factor, and would agree to making a time limit on reporting the rape, but with no time limit on the indictment.
You proved in your article why there is no justice in America for the falsely accused: "For instance, one dirtbag pedophile priest walked in 2004 after raping two boys, simply because the statute of limitations have expired."
The article this link points to is about a man ACCUSED of sexually assalting two boys. You named him a "dirtbag pedophile" without any knowledge (other than heresay) of the facts in the case.
God help anyone in whose judgement you might sit as a juror!
Point taken. To be clear, I'd have a much higher burden of proof if I were on a jury. But yes, in the interest of finding an easy case of rape that wasn't prosecuted because of the statute of limitations, I played fast and loose with MrDupre's reputation.
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