Let ME tell YOU what happens in practice. Because, you know, I’ve actually had some minor experience in this area.
In practice, the decision to prosecute certainly rests on available evidence. To some degree. But it rests even more on two factors: is the victim a “Good Victim” and is the accused a Creep?
What’s a Good Victim? In practice?
A Good Victim is not black. She can be white, asian, or sometimes Hispanic. She is demure. She is terrified and hurt, but not so much that she’ll break down completely telling her story. There isn’t anything objectionable about her job. A Good Victim is a student, or a nurse, or a teacher. She is NOT an exotic dancer or a Hooter’s waitress. A Good Victim wasn’t drunk or in a compromising situation prior to the attack.
What’s a Creep? In practice?
A Creep can be of any race. He has a prior criminal record of some kind, ideally for a sex offense. He’s employed in a menial capacity. He’s got no more than a high school education. He doesn’t dress well or speak well.
Don’t talk to me about “in practice” any more.
The decision to bring rape charges in practice is based on an assessment of the likelihood of winning, yes. But the likelihood of winning depends as much on how Good your Victim is, and how much of a Creep the accused is, as whatever evidence exists. If you have a Really Good Victim and a Real Creep, you can bet they’ll go forward with only her word. And they’ll win, more likely than not. And if they have a Bad Victim, and an Upstanding Citizen as the accused, they’ll drag their feet even with credible testimony and supporting evidence.
All your points are taken and granted. I still don’t think that even the best “good victim v. creep” scenarios are routinely prosecuted with absolutely nothing but the accuser’s word, but insofar as that ever occurs, I would answer yes to your proposition that something beyond an accuser’s word should be required to convict on rape charges.
While the case you cite is pretty damn old, you’re right. (Better would have been Marsh v. Comm’l and Sav. Bank of Winchester, Va., 265 F.Supp. 614.) Virginia and, it would appear, most other states, do not afford the *absolute *privilege to witness’ statements made to police. (Those statements still get a *qualified *privilege, meaning they can only form the basis of tort liability if made with malice. Negligence clearly does not cut it, and intent (i.e. out-and-out lying) clearly does. Whether “recklessness” with regard to the truth of the statement overcomes the privilege is a subject of some debate, both in the courts and in this thread.)
Current California Supreme Court authority does agree with my earlier statement, though. (Hagberg v. Cal. Fed. Bank (2004) 32 Cal.4th 350.) So if you’re in the Golden State and you call up the cops and tell them your annoying (but law-abiding) neighbor is keeping little girls hostage in his basement, you might get prosecuted for various forms of dishonest misconduct, but he can’t sue you.
I know the media will scream First Amendment violation all over the place, but anyone who is arrested for any crime should not have their name or picture or anything that could identify them be published or broadcast. Only after a jury convicts them should that come out.
AS an added bonus, it won’t poison the potential jury pool.
The fact that it was the action of the media that caused the actual harm to Mr. Matthew is NOT a bar to the liability of his accuser. The action the media took IS the damage, and it was caused by the defamatory statement made by his accuser.
Seems to me SuaSponte said something pretty similar a while back. He was right, but seemingly ignored.
If rape victims are required to eschew reckless disregard for the truth when they accuse someone, I believe the effects will be that fewer false rape accusations are made.
A person who was attacked may pause, knowing she may be sued, but if she is confident in her identification, she has nothing to fear. And if she’s NOT confident, then she has no business saying she IS confident.
Thats not true at all. She has to fear retribution from the person she accused even if he indeed did rape her. It will cost her thousands of dollars to defend and will be yet another ordeal for her to go through. A rapist can use this on top of physical violence to deter a victim from reporting the crime to the police. To use your previous example if you are a “creep” and are raped by a “Good Victim” you know you are already going to be shortchanged in the criminal system. On top of that you might face runious debt if you come forward to the police. Would you come forward? We are forcing a person that has already experieced a terrible crime to make this choice. For what? To punish a rape victim for not accurately knowing how sure she is of what she saw. That seems a pretty harsh solution for a relatively minor problem.
I find the juxtaposition of your two posts fascinating. In one post you lay out the reality of the justice system in regards to rape in a cold dichotomy. In the very next post this system becomes perfect with absolutely no ill effects.
What if I were to say, “People shouldn’t drive, because sometimes cops will stop them for no reason and plant false evidence on them?”
We adopt rules and procedures for a reason.
The tort system exist to provide redress when someone is injured by someone else’s reckless or malicious behavior. Because, in some small minority of cases, it may not function as expected is no reason to abandon it.
Yes; in California, the defendant’s statement to the police would be absolutely privileged. Which means that this lawsuit, had it been filed in California, would be a SLAPP suit (Strategic Lawsuit Against Public Participation), would be the subject of a motion to strike, and the plaintiff would have to pay the defendant’s attorneys fees. But, of course, this lawsuit wasn’t filed because the defendant wants to win. Well, he does want to win, but his primary purpose in filing suit is to have the media broadcast his innocence. He’s so innocent he’s even suing his accuser! That’s the message he wants to get out there.
Note that in California you can still be criminally prosecuted for making a false statement to police, and can be sued civilly for malicious prosecution, but you cannot be liable in tort for a statement that is privileged pursuant to Civil Code section 47(b).
As to the OP: I don’t favor tort liability for a statement made to police that is anything other than knowingly false. There are two public policies in tension here: the need for the police to actively investigate crime (with the ability to get cooperation from the citizenry) and the need for people to make truthful statements to government officials. Both of these public policies can be met if we impose civil (and criminal) liability for making false statements to police.
As you know, bad facts make bad law. Putting this discussion in the context of a rape case is almost needlessly incendiary. People have a difficult time, when discussing rape, to keep the discussion on an intellectual level. And I think that’s your point: the rape victim is perceived as one of the most traumatized crime victims, so we can assume a higher percentage of inaccurate identifications, so how do we build the system to minimize those occurences?
I don’t think we need to do anything other than make knowingly false statements to the police actionable. If her statement was knowingly false (and the jury could infer knowledge from significant discrepancies in her statements), then he should have a claim. If not, sorry, buddy, but you’re SOL.
If the actual perp has the same skin color, build, and facial hair, this suggests that the identification falls within the range of honest error rather than recklessness. (For obvious reasons, I don’t give much weight to the baseball cap and shirt wrapped around the neck.)
I don’t and its pretty silly to ignore reality when you are making rules. It doesn’t matter how perfect a rule is in theory if its horrible in practice.
I’d say your crazy becuase the risk of having evidence planted on them is miniscule. What would you say to a person that said “The Police have rules against impropriaty therefore it never happens.”
Why do you think its just the small minority of cases that will be illegitimate instead of this primarily being used as an itimidation tool for rapists?
Why does confidence make any difference? People can be confidently wrong. A woman could even be right and still get sued if there isn’t a conviction. There is also the potential for a rapist to use the threat of a lawsuit as a means to intimidate a victim into not coming forward.
Bricker, I’d be interested in hearing your answer to this question. You’ve said before, I think, that there were three defenses against rape: it wasn’t me, it wasn’t sex, and it wasn’t rape.
Do you see any limits at all on those accused of rape having access to the courts to sue their accusers?
As it stands now a woman can use the threat of a rape accusation as a means to intimidate a man if he doesn’t call the next day after a one night stand.