In Defense of Defense Attorneys
Let me start out with two inviolable facts:
1) I love Zombie’s reporting;
2) Rape is second only to Murder in terms of worst crimes that can be committed.
Nonetheless, something from Zombie’s article today rather peeved me:
In Western culture, we blame the rapist. When challenged on this detail, SlutWalkers will usually point out that in rape trials, the victim is sometimes humiliated, as the rapist’s lawyer will try to slander the victim’s reputation as a way of exculpating his client.
Well, sure, that happens. That’s because lawyers are douchebags. Step outside the confines of the courtroom, and everybody despises the sleazy lawyers who resort to this tactic. Underhanded trial maneuvers are not the same thing as societal consensus.
The sad reality is that false allegations of rape occur. I will go through some of the more memorable ones in a minute, but I did some looking into the number of such false allegations, and the data is pretty much all over the place. One study found in a certain area it was nearly 40 percent. (This study is VERY controversial, but wanted to set an upper limit.) The study entitled False Rape Allegations by Eugene J. Kanin, Ph.D. found:
With the cooperation of the police agency of a small metropolitan community,45 consecutive, disposed, false rape allegations covering a 9 year period were studied. These false rape allegations constitute 41% the total forcible rape cases (n = 109) reported during this period. These false allegations appear to serve three major functions for the complainants: providing an alibi seeking revenge, and obtaining sympathy and attention. False rape allegations are not the consequence of a gender-linked aberration, as frequently claimed, but reflect impulsive and desperate efforts to cope with personal and social stress situations.
I don’t buy the 40 percent figure, even a little. Neither does this person who did an in-depth refutation of it:
Eugene Kanin famously found that 41%, or perhaps 50%, of rapes reported to police are false. Kanin’s study is both badly designed and unverifiable; more reliable studies have found that between 2% and 8% of rapes reported to police are false reports.
Just for the sake of discussion, let’s assume the lower limit of the second study is accurate, and it is 2 percent. Should those 2 percent who are falsely accused have their lives destroyed for the victims of the other 98 percent, or should they be entitled to a vigorous defense?
Some quick cases might make this more compelling.
I’m going to assume that no one has time to watch an hour and 25 minute special, but watch the first 5 mins of this video from PBS about the Scottsboro Boys if you would.
Now look, I have no idea what happened in Scottsboro almost a 100 years ago, but I would still maintain that defense lawyers should zealously defend their clients in a case like this. A “rapist” isn’t guilty until proven so, just like any other purported criminal. Now, do I think that every lawyer should go down the rabbit hole of looking into the victims background? Obviously no, but sometimes that background is entirely germane.
How about the infamous Tawana Brawley case? Hate to use Wiki, but let’s be honest, the research alone for a case everyone knows about would take me longer than I have available, so you get this:
Tawana Brawley (born 1972) is an African-American woman from Wappinger, New York. In 1987, at the age of 15, she received national media attention in the United States for accusing six white men, some of whom were police officers, of having raped her. The accusations soon earned her notoriety, which was inflamed by Brawley’s advisers (including the Reverend Al Sharpton and attorneys Alton H. Maddox and C. Vernon Mason), the statements of various public officials, and intense media attention.[1] After hearing evidence, a grand jury concluded in October 1988 that Brawley had not been the victim of a forcible sexual assault and that she herself may have created the appearance of an attack.[2] The New York prosecutor whom Brawley had accused as one of her alleged assailants successfully sued Brawley and her three advisers for defamation.[3]
[T]he grand jury noted many problems with Brawley’s story. Among these were that the rape kit results did not indicate sexual assault. Also, despite her claim of having been held captive for days, Brawley was not suffering from exposure, was well-nourished, and appeared to have brushed her teeth recently. Despite her clothing being charred, there were no burns on her body. Although a shoe she was wearing was cut through, Brawley had no injuries to her foot. The racial epithets written on her were upside down, which led to suspicion that Brawley had written the words. Testimony from her schoolmates indicated she had attended a local party during the time of her supposed abduction. One witness claimed to have observed Brawley’s climbing into the garbage bag.[18] Brawley never testified.[19]
Lastly, the case that got me REALLY interested in law, the Duke Rape Case. Is there anyone out there who still buys into Crystal Magnum’s story? Those lacrosse players were guilty until proven innocent, and this dumb bitch is still trying to shop her story around.
I guess I have been co-opted. Are some lawyers douchebags? Sure. Same with dentists, accountants and bloggers. I’ll even concede that lawyers have a higher per capita douchebag quotient than any other occupation if it means anything. But, I don’t think trying to zealously defend someone accused of a crime by pointing out evidence which exculpates them is being a douche. Defense lawyers weren’t going after Tawana and Crystal Magnum to “slander the victim’s reputation”; they were pointing out that the stories were complete horseshit. Zombie states that “everybody despises the sleazy lawyers who resort to this tactic” and that is largely true, except when it isn’t. I despise people who shoot someone in a house, except when person A is breaking in, and person B is a grandma with a shotgun who ventilates person A. Sometimes lawyers aren’t “resorting to a tactic” they are trying to establish that something is just plain false.
Category: Politics
I have to agree with you. No matter the percentage of false accusations, they ruin it for women who really have been raped and need justice.
Looking at Zombie’s photos, it occurs to me that these very confused women are the same ones who will have sex with some stranger, regret it, and decide they want to cry rape. And I agree that these men (even if they should be more careful with whom they have sex with) need a good defense.
Other than that, this SlutWalk was the sorriest collection of confused females to walk this earth.
False accusation does happen. The reasons are many and varied. But the validity of all claims MUST ALWAYS be verified, which will never happen if you “never blame the victim”
Comment 1 is an example of victim blaming (look at them, any rape claim would be false).
Comment 2, can you point to any other crime where the victim of a crime must go to such great lengths to prove they themselves are innocent of a crime? (see comment 1)
TSO is correct that a vigorous defense is essential. We should also be willing to examine the way rape victims are treated. The law has made significant changes to address this, but society has a bit of catching up to do.
I’m confused on your second part J.
“can you point to any other crime where the victim of a crime must go to such great lengths to prove they themselves are innocent of a crime?”
If you claim to be a victim of a car jacking, you have to prove that your car was taken. I don’t think you need to so much prove that you didn’t hide your own car, as prove it is missing, no? It seems backwards to look at a prosecution in terms of what the victim has to do. The prosecutors have to prove the elements of a crime, and the defendants should be able to produce evidence that the crime never happened. In a rape case, one must be proven to have ebgaged in the act through force, or apprehension of force. Trying to show consent seems more focused on disproving an element of the charge, and less on the victim.
Using TSO’s example of a car jacking claim, wouldn’t it be prudent to at least check to see if the alleged victim had a history of making claims of this sort or was involved in a criminal enterprise related to car insurance fraud? Why should we handle other crimes any differently?
Or the Casey Anthony trial as well. Let’s not forget that she blamed the entire thing on a nanny. Naturally I don’t think anyone would argue that the nanny should be prosecuted on the strength of Anthony’s claim alone, but since it was her that lost the daughter, would she not be a victim?
Well, except for the fact the nanny was a complete fabrication. But consider this; the prosecution in that particular case had a great deal of evidence of Casey Anthony being a not-so-nice chick; stealing from her roommate, check fraud, etc., etc., but was unable to bring it because it was prejudicial. In retrospect, if someone is accused of murdering her kid, don’t you think her character should at least be examined to determine exactly who the hell you’re dealing with?
Sadly in my line of work I have had quite a bit of experience dealing with rape victims and those who have cried “rape” falsely and I can tell you, the cops treat them all with kid gloves. They do NOT, however, close their eyes to inconsistencies and contradictions in the victim’s stories. Cops and ER Nurses both have highly developed BS detectors and some of the stories I have heard set off all the “oh bullshit” alarms. Even then the claims were fully investigated and treated seriously.
That said, I pity the misguided and fatally stupid guy who ever hurts one of my daughters.
And these things should be fleshed out before they get to juries, because some juries are dumb and def. biased. Look at the Casey Anthony trial– sorry but if you are “missing” your kid for thirty days and don’t report it..that is beyond a reasonable doubt for me that you did something to that child. The jury couldn’t even find her guilty of aggravated child abuse..
The sad part about false allegations is that they build a mistrust when a true allegation comes about.
Because there is a great deal of shame involved with rape, it is still one of the most under-reported crimes. Complaining witnesses are exposing themselves to a host of indignities (a rape kit to start), therefore each claim should be assumed to be true by the police when reported. However, the police have a duty to investigate the incident to ensure that a crime actually occurred. This can be done with a level of sensitivity, but it must be thorough and complete. Next, after reviewing that investigation, the prosecutor has a duty to only bring those cases that can be proved beyond a reasonable doubt.
However, police and prosecutors make mistakes. Innocent people are accused and go to trial everyday. It is not the job of the defense attorney to get the guilty off, it is the job of the defense attorney to ensure that the government has done its job and all the facts are presented to the jury. Does this mean questioning the victim of the purported crime? Yes. Do some attorneys take it too far. Yes again. But the reality is that the accused has placed his fate in the hands of that defense attorney and the attorney must present all evidence in a light most favorable to their client.
That said, I have come across more that my share of jack ass attorneys in my career. I have also come across way to many jack assess in other lines of work. It is easy to blame the defense attorney because he/she is doing an unpopular job. However, it is a necessary job if our system of justice, which may be imperfect, but is still the best out there, is going to survive.
False Rape Society
http://falserapesociety.blogspot.com/
Susan is spot on. What is disturbing is her admission that innocent people go to trial every day. There are no consequences for folks who bear false witness with malice aforethought.
I plan on becoming a lawyer BECAUSE I am a douchebag.
TSO,
The larger point is victim blaming. The original Zombie post you refer to makes the defense lawyer smear right after saying victim blaming never happens. It seems that in order to negotiate the fact that it does happen, the post blames defense lawyers for all the bad “victim blaming” things that occur to rape victims. An argument, as you point out, that misses the fact that a courtroom is the proper place for tough questions. But then all we are left with, from the original Zombie post, is the claim that victim blaming never happens outside of the appropriate venue.
My comment about a victim proving themselves innocent has more to do with comment 1, and asking comment 2 if this same “blame the victim conversation” takes place with other crimes. I am not just talking about a thorough investigation. An investigation can happen without asking what the victim was wearing with an implication that the clothing choice negates a rape claim. In total I would say I am referring more to society than any individual investigation, because society plays a role in shaping policy and individual choices about reporting (and rape is terribly under reported and victims often say they choose not to report due to victim blaming that happens OUTSIDE the courtroom).
How often do you read something like: “Looking at Zombie’s photos, it occurs to me that these very confused people are the same ones who will own things in their home, have someone over for dinner, have that stuff stolen, regret it, and decide they want to cry robbery. And I agree that these men (even if they should be more careful with whom they have rob) need a good defense.
When such comments do happen, they are rare. I imagine it would be difficult, right now, to go to a news story on a robbery and see such comments posted by readers. A rape story however just about always has such comments.
I guess I read the comment more as an indictment of the marchers themselves, and not rape victims. I haven’t seen any evidence to suggest that the women walking in the SlutWalk are themselves victims, but rather seem to be walking in their support. I think such things generally backfire. When I see an idiot walking in Red Sox gear, I don’t equate them with the team itself.
But, you do have a point, and mileage may vary as they say.
Case in point–people are stupid. A recent example is a woman who (in SF, surprise) met someone online, who then agreed to meet him at an S&M sex club, where they do the deed, then he carjacks her.
Simply amazing. I wish people were smarter than this and took necessary precautions, but sadly many float through life in a cloud of naivete.
http://www.sfexaminer.com/blogs/law-and-disorder/2011/08/woman-carjacked-fellow-sex-club-patron