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A New Sex Crime

A landmark legal ruling creates a new category of criminal sexual behavior.

Copyright © 2009, Paul LutusMessage Page

Introduction | False Accusers | False Accusations are Sexual Conduct
Conclusion | Feedback | Footnotes

(double-click any word to see its definition)


Isn't it great to live in modern times? Isn't it encouraging to witness the evolution of a society in which all citizens will have equal rights — the right to vote, to participate in public affairs, to speak and be heard, to be allowed to testify against injustice and against crimes?

To speak and be heard, to have a public voice, is not a privilege, it is an inalienable right. But with this right comes a responsibility — in cases where another person's rights could be violated, there is a responsibility to be truthful. Most people understand this essential symmetry between rights and responsibilities, but not all.

One of the cornerstones of participatory democracy is the idea that all citizens have equal rights. This doesn't mean everyone is equal, it means we must all be guaranteed equal access to opportunities, after which the outcome depends on who we are as individuals. Governments have a grave responsibility to assure equality of opportunity, for if they fail, those denied equal rights will see no reason to participate in the system — this could erode the authority of government and lead to a breakdown of society. In this way government has a vested interest in assuring equal rights — it's not mere posturing or flag-waving.

In some circumstances a group may receive preferential treatment. One example are special programs meant to address past and present maltreatment of African-Americans, although many prominent black leaders have begun to speak out against special treatment on the ground that it taints the real accomplishments and abilities of black people.

Another example, the topic of this article, is special handling for those who report sex crimes. This special handling has its roots in the fact that victims of sex crimes are reluctant to come forth and accuse their attackers, because the subsequent investigation and trial are nearly as emotionally wrenching as the original crime. As a result, the majority of sex crimes are not even reported.

Sex crimes differ from other crimes because the outcome of a trial depends much less on physical evidence and much more on the credibility of witnesses. This motivates defendants to try to put the accuser on trial, to try to "blame the victim," as an inspired saying goes. Over time the legal system has reacted to this injustice by enacting what are called "rape shield laws," laws meant to prevent defendants from presenting evidence about the accuser's past sexual behavior in a way meant to inflame a jury against the accuser. Over time all U.S. states except Arizona have adopted rape shield laws.

It is the intent that rape shield laws will assure people who are victims of sex crimes, and who come forward, will be given reasonable treatment in a court of law. It is hoped these laws will encourage victims of terrible crimes to testify against their attackers and make society a safer place.

My astute readers will notice I said "people" above rather than "women." Isn't that bending over backward to avoid gender-specific terms? Aren't virtually all victims of sex crimes women?

 False Accusers

When Wendy McElroy, editor of the Web site ifeminists.com, began her investigation into the truthfulness of rape reports, she was reasonably sure the number of false accusers would be vanishingly small (many women's rights advocates claim only 2% of accusations are false). But because of new tools such as DNA testing, the numbers have changed dramatically over the past decade, and many falsely accused men have been released from prison after tests proved their innocence. By the end of her study Ms. McElroy was forced to this conclusion:

"... even a skeptic like me must credit a DNA exclusion rate of 20 percent that remained constant over several years when conducted by FBI labs. This is especially true when 20 percent more were found to be questionable. False accusations are not rare. They are common."

In another study that evaluated data from several sources, it seems the rate of false accusations lies somewhere between 41% and 50% (although the author of the study wisely avoids taking an average of the results of different studies). This study's author concludes, "Although it may not be 'politically correct' to question the veracity of a women's [sic] complaint of rape, failing to consider the accuser may be intentionally lying effectively eradicates the presumption of innocence."

After being falsely accused, many men have spent years in prison before being vindicated by DNA testing, or the original accuser recanting her story, or the revelation that no crime had taken place. In this example, a man spent three years in jail for a crime that had never taken place:

A man wrongly jailed when a woman cried rape has failed to prevent being charged £12,500 for his "board and lodging" while in prison.

Warren Blackwell, 38, spent three years in jail as a convicted sex attacker until his 'victim' was unmasked as a fantasist.

Not only did Mr Blackwell not commit the crime, but the crime had never taken place.

It also emerged [his accuser] was a serial accuser, having fabricated at least seven other allegations of sexual and physical assault against blameless men.

This example is particularly egregious because, instead of charging the victim for room and board, authorities can sometimes be made to apologize for carelessly taking away years of a person's life, and in some jurisdictions the victim can sue for false imprisonment. In their defense, the authorities in this case explained that the accuser kept moving around and changing names, making it difficult to associate her with a multi-year pattern of false accusations.

Fair enough, but can't something be done about a person like this? This is just one of many stories in which a woman makes a false accusation, ruins someone's life, then moves on to accuse someone else, with no personal consequences. There are registries for serial rapists, why are there no registries for serial false accusers?

One reason is that until now making a false sexual accusation hasn't been looked on as a particularly important crime. But because of the increasing frequency of this crime and its consequences, public attitudes are changing.

 False Accusations are Sexual Conduct

In 2003 Ralph Taylor, a defendant in an Arkansas rape case, discovered and tried to introduce into evidence the fact that his accuser had falsely accused others. The court excluded this evidence on the ground that it violated the plaintiff's rights under the Arkansas rape shield law, arguing that the plaintiff's prior false accusations of rape constituted sexual conduct within the meaning of the rape-shield statute. The Arkansas Supreme Court subsequently affirmed the lower court's reasoning and ruling, Taylor was convicted and is now serving a 13-year sentence.

Hold on. I am not a lawyer, and I often have trouble understanding legal decisions, but lying about a sex crime is "sexual conduct"? Yes, according to an Arkansas judge and the Arkansas Supreme Court, it is, consequently it's inadmissible in a rape trial.

When judges weigh decisions, they are supposed to ask themselves a series of questions. Some of the questions are about the standing of the parties, whether there is a remedy in law, that sort of thing. One of them asks what the social consequences of a ruling will be, and for this question and in my opinion, neither the presiding judge nor the Arkansas Supreme Court foresaw the ultimate effect of their ruling (although the possibility exists that they knew exactly what they were doing). I predict that once its meaning is fully understood, this decision will go down in legal history.

According to this decision, lying about sexual matters is now sexual conduct. Lying to the police is already a crime ("filing a false report," "impeding a police investigation," and others), and lying under oath is a more serious crime. But the Arkansas Supreme Court's ruling has turned these relatively unimportant crimes into ... sex crimes.

Over the past several decades, a number of heretofore unremarkable behaviors have been turned into criminal acts by reclassifying them as sexual conduct. Indecent exposure. Certain kinds of touching. Encouraging sexual behavior without actually engaging in sexual behavior. Possessing certain kinds of photographs — or cartoons. (A judge has recently broken new ground by ruling that a fake Simpson's cartoon constitutes "child pornography" on the ground that the cartoon characters are underage.) I am not here to comment on the social forces behind this trend to reclassify everything as a sex crime, only to point out that it is about to backfire in a spectacular way.

A superficial examination of the Arkansas Supreme Court ruling seems to suggest it reinforces those legal protections already in place, meant to encourage women to come forth and report sex crimes. But it has an unavoidable side effect — by reclassifying the crime of false accusation as sexual conduct, this ruling places it in the same category as rape and molestation.


Can the genie be put back in the bottle? Probably not — even though the present ruling only applies to Arkansas and hasn't been examined by the highest court in the land, this ruling is part of a larger trend in criminal law that addresses an increasing number of incidents where women exploit rape shield laws to settle personal grudges. As a result, regardless of what happens to this specific ruling, it signals a fundamental change — either:

  1. False accusations are sexual conduct and therefore can and will be prosecuted as sex crimes, or
  2. False accusations are not sexual conduct and thus cannot be excluded by rape shield laws.

There is no choice number 3, and case law appears to be moving toward choice number 1. As rulings like this take hold, those women who exploit society's appropriately vigilant posture toward sex crimes by lying, by systematically destroying people's lives, will be prosecuted as sex criminals and will be listed in sex offender registries where they belong. False accusers should never have been protected by rape shield laws, and the hypocrisy of treating one sex crime differently than another must and will come to an end.

I can anticipate that some of my female readers may misinterpret this essay as being against the interests of women. Not in the least — women who lie about sex crimes injure the credibility and standing of all women, and any charity extended to them is misplaced. Women who defend those who lie about sex crimes might as well defend rapists — indeed, in the final analysis that is exactly what they're doing.


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