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Law: Defense lawyer makes indefensible argument

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I am often surprised by the amount of passion some criminal defense attorneys bring to their cases . . . or even other lawyers’ cases. One of the most extreme examples of that tendency I’ve encountered is a commentator’s desire to pillory women who falsely accuse men of rape. She believes that doing so is so abhorrent such women should be singled out for special penalties.

Jonna M. Spilbor, commenting at Findlaw, brings up an ancillary issue in regard to the Kobe Bryant rape case.

Bryant’s case has raised a firestorm of issues, but one in particular is at center court: Has this good guy been falsely accused? Even at this early stage, the majority of those asked say yes. To many fans, this case just feels false.

If Bryant has been falsely accused, it won’t be the first time that a false report has been filed in an “acquaintance rape” case. In part, that’s because the law fails to meaningfully penalize false reports, or to give those who have been falsely accused any justice.

It seems to me that a falsely accused person in any case, criminal or civil, could say the same. No one likes to be lied about. However, in regard to legal matters or the numerous other situations when we are lied about, most of us move on. Knowing the truth ourselves often suffices. I can’t think of a reason why persons falsely accused of rape should be an exception.

Spilbor offers a rationale for treating false reports of rape differently.

Falsely reporting any crime is shameful. Falsely reporting a rape is especially heinous. The liar who files the false claim dishonors – and makes life all the more difficult for – the many true victims who file genuine rape claims because they have been terribly violated, and seek justice for it. At the same time, and perhaps even more seriously, the false report begins to destroy the reputation, and sometimes the life, of the accused from the very moment it is made – a fact of which many accusers are keenly aware.

The point of lying is to harm the person on the receiving end. So, I still don’t see how the liar in a false rape accusation is different from any other malicious person. And, without a meaningful difference, I can’t agree such accusers should be specially penalized if they don’t prevail in court. Read Spilbor’s full column to see if you are convinced.

And, let’s remember not enough is known about the circumstances to assume Kobe Bryant has been falsely accused.

In the weeks that have passed since Spilbor wrote her piece, if information from the proceedings and that leaked from sealed records is reliable, it has become clear that Bryant’s accuser did engage in sexual relations with him, and it appears, another man, within a close time period. She will testify and her sexual history may become evidence. It seems increasingly likely that Bryant will not be convicted. If that is the outcome, I don’t believe the accuser should be penalized for having accused him. What is or isn’t consent to intercourse can be very subjective. Failure to convince a jury does not necessarily mean the accuser is behaving in the malicious manner Spilbor assumes. Even is she is, I can’t condone assigning women who lie about rape to a special category.

Note: A version of this entry also appeared at Mac-a-ro-nies.

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About The Diva

  • You husband needs to be represented by the best criminal defense lawyer he can obtain. In the sort of case you describe, there is a good chance of a decision not to prosecute. However, not knowing what the evidence is, I can’t express an opinion. Again, hire the best lawyer you can.

  • Angela Linkous

    Hey! My name is angela and my husband was falsely accused of rape but he did admited to having consensual sex with her. I know her to well to balieve her she has told us that she was call girl and that she had kid some were else. But now i have to prove that she has had a thing for my husband for 2 and half years, but know one want to believe my side of the story. Like things she has said to me and my husband like how she always wanted him to take her home and not me or all of us. she has also siad how she wants someone exactly like him then she would give him a look and how she wished she could me. I also have a little one that has had a hard time with all this. she always told me and my husband that she would never do anything to hurt my little one, but somewere down deep in me i knew she had something planned. I am trurly a vicitim of rape and molested for 6years of my life starting at the age of 6 to the age 12. I need help to prove my husband is innocent and what i can do to prove she is lieing about it being raped. PLEASE


  • Shark

    BTW: I’m honored to announce that in a recent entry, “Stupid White Men…”, MacD writes the following sentence:

    “What becomes a legend most? Being imitated…”

    And thanks to MacD’s recent imitation of me in comment #8, I accept her esteemed and insightful judgement that — due to my exploits on BC and elsewhere — I truly deserve the description, “Legendary”.

    Thanks to all who helped make it happen.

  • I think we should adorn them with a scarlet letter for falsely accusing someone of rape.

    Seriously though, just because a person “gets over” in court doesn’t mean that the accuser was necessarily wrong. I am not convinced that the court system is accurate enough to assign penalties to those who couldn’t convince a jury that someone had committed rape. Especially in these he said, she said cases where usually only two people know the truth.

  • Shark

    re: Comment #8 –

    MacD, a sure sign that you’re coming unhinged is the fact that you actually INVOKE me, miss me — in a folder that I’ve never even visited — and then respond to your own lonliness and sense of abandon by writing a (poor) imitation of my writing TO YOU! Crazy, baby!

    It’s working: You’re hanging on to your sanity by a Lilliputian thread.

    (And when you start an internal dialogue/roof-brain chatter that includes both Big Al Barger and the Shark, I think we can officially declare you insane. Can’t wait.)

  • Typo: psycho.

  • Life ain’t fair. Being accused of rape may be difficult. But, being convicted is much worse.

    Are you feeling well, Chris Kent? Pyscho Shark ain’t funny. Why encourage his delusions?

  • MD wrote:

    “Another problem with what Ms. Spilbor is suggesting is equal protection. There used to be laws in California that made men wearing their hair in long braids down their backs a criminal offense. (Guess who was impacted by those laws.) Having a law that impacts mainly women raises the same kind of questions.”

    I understand where you are coming from with this argument, but laws against rape themselves impact mainly men. Should these be repealed because of equal protection issues? Of course not.

    Publicly calling a guy a rapist is just about the worst thing you can do to a man. This is because rape is such a horrific crime. Those women who have “buyer’s remorse” after consentual sex and falsely file a complaint alleging rape should be punished severely, if only for the deterrent effect.

  • Chris Kent

    lol….now that’s just funny….

  • Shark

    Chris, I could never get that drunk.

  • Chris Kent

    Mac Diva,

    You and Shark should go out on a date. Just make sure it’s televised on one of those blind date shows. I would love to see what happens from the safety of my home…..

    For evening attire, I suggest leather boots and a bulletproof vest…..

  • Another problem with what Ms. Spilbor is suggesting is equal protection. There used to be laws in California that made men wearing their hair in long braids down their backs a criminal offense. (Guess who was impacted by those laws.) Having a law that impacts mainly women raises the same kind of questions.

    Furthermore, the data on rape is against Spilbor’s position. The majority of rape victims do not report being raped. Proven false accusations are rare. So, if society is going to expend resources in regard to rape victims, the emphasis needs to be somewhere other than on breaking down those who do come forward.

    I would have said more about this in a longer entry. The short piece above is from a column that had two other components.

    Something is missing from this thread. . . . Aha! It has not yet been spammed by Psycho Shark. Perhaps, his weeks long mania has shifted to depression. And, when those people crash, they crash hard. So, let me do it for him:

    (Sneering tone.) Mac Diva said the woman is gonna testify. But, what does she know? She claims to be an actress* and a lawyer. Lying bitch. She ought to die. She’s always making things up. Now, lemme tell y’all about the screenplay I wrote for “NYPD Blue.”

    *Actress? In what universe?

    Now, the thread reads like I expected it to.

  • Chris Kent

    The Woody Allen scandal was very sad. He was kind of a hero of mine – though years before that he was exposing such bizarre obsessions in films like Manhattan and Stardust Memories. But the father/step daughter thing is creepy. One would think there would be hundreds of young women available to him…..

  • Eric Olsen

    I agree that that is a total violation: once someone is your daughter, they are your daughter with all the feelings and geometry of a father-daughter relationship – biology has little or nothing to do with it. Of course that creeped people out.

  • Debbie

    On Woody Allen, just the fact that he married his step-daughter makes you think there might be something to the charges. I mean, that’s pretty creepy, to want to marry a girl that you raised as a daughter….

  • Chris Kent

    Call me cynical, but whenever there is as much money as is involved in this case, I have a hard time believing anything. Bryant’s people have formed a strategy, one of which being to throw the accuser into a promiscuous light. Articles soon run in newspapers about false accusers of rape. Doubt is cast across the land. Bryant’s behavior throughout his life, by most accounts, has been admirable. Certainly, since being accused, he has remained noble and stoic (as compared to, say, Mike Tyson). But Bryant’s people went to war a long time ago. I like to believe that unless there is hard evidence for such a crime, it would have never come to this point in the first place. I have tried not to agonize over this case nor rush to judgement. As I tell my friends – wait for the trial and see the evidence, and be wary of everything you hear from both sides in advance.

    As for the Woody Allen scandal, it has certainly damaged his career. And I too do not rush out to see his films as I once did. Though ironically, his career had peaked for the most part prior to the scandal. I have often wondered if the peak took place because of the scandal trauma, thus leaving him artistically distracted/spent (he is a very private man), or if the loss of financial power has left him restrained in what he’s able to produce.

  • But, the same kinds of harm result from having been accused in other kinds of criminal cases, sometimes even civil cases if the allegations are seamy enough. Consider the Woody Allen affair, for example. I haven’t felt the same about him since he cheated on Ms. Farrow with one of her daughters and may have inappropriately touched another. Perhaps there was no basis to the claim he did something to Dylan. But, the harm to his reputation is done regardlessly.

  • I don’t think merely finding the defendent “not guilty” is sufficient to charge the “victim” with a crime.

    However, overt perjury by the supposed “victim” (as well as the filing of false complaints) should clearly be punished above and beyond the punishments reserved in other cases. To call a man a rapist is to essentially destroy his life. Even if found “not guilty” he will be viewed as a monster in some circles. is family could fall apart, he may lose his job, etc. This kind of attack by a woman should not be allowed to go unpunished.

  • The point of lying is to harm the person on the receiving end. So, I still don’t see how the liar in a false rape accusation is different from any other malicious person.

    I think Spilbor’s point is that those women who falsely accuse men of rape dishonor the true victims of the crime and dilute the seriousness and sheer brutality of the act. Every false cry of rape, especially widely publicized ones as in the Bryant case, builds more and more doubt into the claims of actual survivors. As the public grows accustomed to rape accusations being shot down again and again in the courts due to lack of evidence, the cases where a crime was actually committed will begin to get lost in the shuffle. The more groundless claims we’re exposed to, the less likely we are to believe it when we see the real thing.

    As an analogy, think of those who equate the Bush administration to the Nazis. Comparing our current regime to the horror of the Third Reich serves less to vilify Bush than to dilute the horror of the genocide attempted during WWII.