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A New Sex Crime — Feedback
Selected reader responses to the article "A New Sex Crime" will be posted here.
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False Accusations | Sexual Behavior? | Is This Fair?

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NOTE: I am not a lawyer. All that follows is personal opinon, with no legal expertise whatever.

False Accusations
As the mother of a falsely accused person I am writing to thank you for your site, and offer any support you can possibly use from me. Thank you — I appreciate your taking the time to write. I am not a lawyer and everything in this post is my opinion, nothing more. I have recently begun advocating a sex offender registry for false accusers. My son has been on a sex offender registry over [ ... ] years now from a false accusation. I read every thing I can on the subject, I post in response to every newspaper article I come across on the topic. I have contacted the mothers of the Air Force Academy scandal. I have posted on FalseAccusation.org [there is no site with this URL, maybe she means false-allegations.org] until they became rude toward me ... for them it's ALL women lie and NO men rape, and I can't go along with that untruth either. The central problem with this issue is that it's an irresistible temptation for those who want to do harm. This kind of accusation does the maximum of harm with an absolute minimum of evidence, and it works both ways — for those who want to claim all sexual accusations are false, and for those who want to claim all are true.

Sexual accusations are today what political accusations were during the McCarthy anti-Communist witch hunts of the 1950s. Indeed, this continues a long tradition — people were able to get cheap revenge by accusing others as witches (1690s Salem), Communists (1950s Washington), or sex criminals (today). In all these examples, the accusation is the point, evidence is almost irrelevant.

Pathological liars and narcissists find such accusations irresistibly attractive — they can lie with impunity and do enormous harm with very little prospect of being held to account for the lives they're ruining. Throughout history, because of the absurd ratio of harm to substance, false accusations have appealed to moral cowards and mental infants.

One of the many injuries done by false sexual accusers is to real victims of sex crimes, whose courtroom credibility is undercut by the high percentage of false accusations.
In my son's case, his accuser was an [ ... ]. During a tantrum when she wasn't allowed to attend a party she 'disclosed' my son raped her orally, anally, vaginally every day for two weeks, two years before during a family visit. She was allowed to attended the party, my son has been on a sex offender registry from the age of [ ... ].

Her medical exam (two years after it was reported to have happened) showed her 'normal', with an intact hymen. My son passed three polygraphs with high truthfulness scores saying he didn't do it.
Unfortunately polygraph results are inadmissible. Inadmissable: the accuser and her mother had accused a [ ... ] year old neighbor boy when she was [ ... ], and attended years of sexual abuse therapy. She and her mother denied this to the court. But she couldn't deny it if there were any records of the accusation or the therapy, and there had to be. Also, if she denied it in court, then it was not inadmissible, but was admitted. Witnesses aren't obliged to deny inadmissible claims. The accusers mother used to laugh and joke about molesting baby boys as a [ ... ]. After she had children of her own, sex offenders became a negative 'hot topic' she began making accusations against people who angered her - including other family members. She filed a false police report claiming a sexual attack once when caught sneaking out to meet a boyfriend. The false police report ought to have been allowed in, except for the fact that rape shield laws sometimes prevent this (wrongly, in my opinion). Many legal professionals say the pendulum has now swung too far the other way, to the degree that there is now an unconstitutional presumption of guilt toward the accused. Because of the advent of DNA testing, FBI Crime Lab statistics show that somewhere between 20 and 40 percent of sexual accusations are false. Many experienced judges know this, and act accordingly. My son had no history of violence or sexual misconduct. Many people wrote letters on his behalf, my brother in law, a recognized expert witness with [ ... ] spoke in court on his behalf. It did no good. I see the reason it did no good later on in your post — the Alford plea. The family left the state [ ... ] before trial, and refused to return. When my son insisted on a hearing, they had her admitted to a mental facility. This account is making less sense. An accused person has the right to confront witnesses against him. The accusers can't just leave town and expect the legal system to plod ahead without them. My son was forced to accept an Alford plea for no jail time, then jailed anyway after passing another polygraph saying he didn't do it during the presentencing evaluation. I am not a lawyer, but the Alford plea was a big mistake, and your son wasn't "forced" to make it. No competent attorney would have allowed this. An Alford plea is in essence a "no-contest" (nolo contendre) plea, an acknowledgment that the prosecution would probably prevail in a courtroom test of the evidence.

This was a big mistake. Judges who receive Alford pleas generally and promptly rule the defendant guilty, without any further examination of the circumstances. In fact, when confronted by such a plea, the evidence becomes irrelevant because the defendant has basically dropped any defense. The judge comes to an obvious conclusion.

Also, the polygraph result would not have been allowed to influence the court's decision. You're making it sound as though it could have played a part in the outcome.

I am sorry, but with all respect, there must be some things left out of your account. According to the narrative so far, the witnesses left town but the court decided to violate your son's constitutional rights and have a trial anyway, at which point your son [through his attorney], instead of objecting to an obvious reversible error, entered an Alford plea. It's just not hanging together — or the defense attorney was really incompetent.

As a counterexample, in a civil court hearing I pointed out that my accuser had falsely accused others and that her claim was absolutely false. This turned the tables and the accuser was placed in the position of having to put up or shut up. She shut up, and the judge drew an obvious conclusion (in the same way as in your case, but with the opposite effect) — that she was either lying or mentally incompetent. (The fact that my accuser was making a criminal accusation in a civil courtroom didn't help her credibility.)

My accuser was incredibly reckless — she didn't tell her son what she was doing, he knew nothing improper had taken place, and court records are public. Inevitably, he found out what his mother had done behind his back and his personal world disintegrated. So the mother from hell returned to court and tried to accuse me of ruining her son's life by defending myself. At that point the judge understood what kind of person she was and ruled accordingly. I emphasize this drama unfolded in civil, not criminal, court.

Until someone stands up to them, people who make these kinds of accusations come to think they can get away with it indefinitely. The reason is that lying under oath is rarely prosecuted (because there's nothing to stop the liar from continuing to lie and tying up the court forever).
Our attorney used the same forensics evaluator used by the prosecutor's office for the sexual evaluation. He called me to say he wished we'd come to him sooner - he thought my son was innocent, but he'd be the laughingstock of his profession if he testified to that. That was probably because of the Alford plea, which was a pivotal strategic error and in my opinion the attorney was incompetent. Again, I am not a lawyer and this is all just my opinion.

In a case like your son's, it is to a very large degree "he said, she said." As long as both sides stick to their guns, a judge would have a hard time giving credence to either position, and because it was a criminal court case, the judge couldn't rule against the defendant unless the evidence went "beyond a reasonable doubt". Two opposing verbal claims and no physical evidence can't lead to a conclusion beyond a reasonable doubt. But an Alford plea ruins everything — it hands the prosecution an unearned victory.

The Alford plea was a big mistake. I emphasize again that this is just my opinion and I don't mean to cause you emotional upset, only to say it as I see it.
Sexual Behavior?
If a false accusation of rape is to be classified as "Sexual Behavior" then it should be classified as "prohibited sexual behavior". This would maintain congruity with the laws prohibiting false accusations and false testimony. In the case under discussion, the prior false accusations were classified as sexual behavior for the purpose of placing them under the aegis of the rape shield laws. It's a rather odd strategy. The Arkansas Supreme Court agreed with the reasoning, and no further appeals were made. But because the original acts (filing a false report, lying under oath) were crimes, reclassifying them as sexual acts turns them into sexual crimes. The level of crime that was falsely accused should be reflected in the level of crime of the false accusation. I.E. if the false accusation is one of misdemeanor unwanted touching then the false accusation should be a misdemeanor. Similarly, if the false accusation is felonious sexual assault then the false accusation should be a felony. I agree that the severity of the reclassification should follow the lead of the original offense. But if this were to be legislated rather than created by way of precedent, the current blizzard of releases of the falsely convicted through DNA testing and Innocence Projects would justly make false sexual accusation a very serious crime indeed. On the other hand, most politicians would not want to be associated with such a bill, on the ground that half of registered voters are women. We might be obliged to wait for precedent instead [for the reason that many judges are appointed, not elected]. Though I have not read the actual ruling, based on the description of the case as presented in this article I understand the Arkansas court ruling. The court is trying to protect the sacred sanctity of the victim of sexual assault. "Sacred sanctity" is a bit over the top. The Court is trying to shield victims of sexual crimes by preventing an unproductive and prejudicial investigation into the victim's sexual background. This has been a longstanding problem in the prosecution of sexual offenders, where a jury's ability to focus on the evidence is lost through unfair defense tactics.

The Court intended to give the victim a reasonable amount of protection against prejudicial testimony not relevant to the determination of the defendant's guilt. But the accusation was not that the victim had engaged in particular sexual behaviors in the past (the original reasoning behind rape shield laws), but had falsely accused other men in the past. To prevent this coming in, the Court ruled that these prior false accusations constituted sexual behavior within the meaning of the rape shield statute. But I don't think they thought this ruling through (or perhaps they knew exactly what they were doing).
But lacking any codified or legislagtive law specifically making "false accusation of sexual crime" a crime in itself, the court could not make it so. But they did make it so, by identifying it as sexual behavior. If a perpetrator beats a woman up while raping her, the beating-up part becomes "sexual battery" by virtue of the circumstances. The two are associated by circumstances, and a formal legal connection is often made by a court rather than by legislation. Further, the court is protecting the sacred sanctity that previous offenses are not evidence of any subsequent offense. A record of any previous offense(s) can be considered only for sentencing after a verdict of guilt has been reached. Yes, and I believe that was the timing. Had it not been, the Court would have ruled differently. To do otherwise would have been an obvious procedural and reversible error. But this applies only to the defendent. In this case, if the claim is true, the issue is material and the victim becomes a defendant, on the ground that evidence of lying is material to the present proceeding. In the case at hand the victim was not on trial and the victim's previous behavior has nothing to do with the current offense being tried and therefore inadmissible as evidence. Not if there is a pattern of false accusation. That changes everything. It speaks to the credibility of the witness, and it is normally admissible. The only reason it didn't come in was because of the Court's ruling that associated it with the rape shield statute. Should the legislature make the "sexual behavior" of "false accusation of sex crime" a crime in itself then the pancake gets flipped and the victim could be prosecuted separately under that statute. My point exactly, and whether or not the Court realized this consequence of their ruling. One of the concepts that is lost on most citizens not specifically educated in law is that our courts do not make law, they interpret law. That's a nice theory, one codified in the idea of "judicial restraint", but in reality courts often create precedents so influential that they might as well have been legislated. Just a few examples: All these precedents are tremendously influential, and none were legislated — all resulted from courtroom rulings. These interpretations become precedents, and therefore recognized as "common law", but only to the extent that they are interpretations to be followed by other courts that are equal or subordinate within the same jurisdiction as the court making the ruling. The risk people take in appealing local precedents is that the entire chain of appeals may agree with the original decision, up to and including the U.S. Supreme Court, thus creating a precedent indistinguishable from law. Such things happens all the time.

Thanks for writing.
Is This Fair?
Because you didn't mention it in the article, and I'm curious:

How can we determine, in situations where someone is determined to be innocent of a rape, whether the accuser was actually falsely accusing the defendant, or simply mistaken/confused? What evidence is necessary to bring an allegation of false accusation against an accuser?
Good question. There are plenty of cases in which the woman later claims to have been pressured by law enforcement to make an identification (for example, an officer saying "the perpetrator is in this lineup", even though this is a reversible error and one that would not be allowed if a competent defense attorney were present), or was confused, or is simply mental. I actually quite agree with your article. My only reservation comes from the fear that if false accusation of rape is to be come a sex crime in itself, we may automatically start putting on trial every accuser who fails to get the accused convicted. Do you think this is a reasonable concern, and if not, why not? What you suggest is not in the realm of possibility, if there has only been one accusation and there is some evidence apart from the woman's word. But this is often not so — there are records of women who make dozens of false accusations, move about, change names, and otherwise evade the attention of authorities.

In the legal systems of some European countries, there are three outcomes, not two as in the U.S. — "guilty", "not proven", and "not guilty". "Not proven" means there was some evidence, but not enough to secure a conviction. "Not guilty" means something different in those countries — it means the defendant was really not the culprit, or there was no actual crime. It's too bad we don't have a similar system here. "Guilty" and "not guilty" seems pretty crude by comparison.

But when a woman makes repeated or implausible accusations, and then cannot substantiate her claims, it's reasonable to assume she is a false accuser and dangerous. For example, in one famous story from the "Recovered Memory" episode in clinical psychology, a young woman accused her father of rape, based on bogus recovered memories. She was later discovered to be a vestal virgin, but only after she had pretty much ruined her father's life and standing in the community. It's reasonable to assume she was lying (or mental, or whatever).

Maybe it's time for another acronym, sort of like "model, actress, whatever" (MAW), but "lying, mental, or whatever" (LMW). Simply because it doesn't matter what the reason is — the damage is huge and lasting, and the real reason is relatively unimportant. There needs to be a social mechanism to keep these people from falsely accusing again and again, as is often the case.

Which brings us to "lying" — what does it mean in this context? If a woman is not sure about the identity of her attacker but claims to be sure, she is lying — the lie is in the assertion of certainty, not in the identification. I think it's sufficient for a perjury prosecution, but I don't know if that's the present legal opinion.

As you may be aware from reading my articles, FBI Labs has shown that 20% of sexual accusations are proven false and another 20% are doubtful. It seems to me that, because of the harm these accusations do, sex crime accusers should be held to a higher standard than an ordinary witness.

I was accused by a mentally unbalanced housewife, a story told in my article "Asperger's by Proxy". This person "believed" that a child sitting on the lap of an adult constituted molestation in and of itself, but she only "believed" this after I rejected her advances — beforehand she "believed" the same behavior was completely acceptable, and she put all these beliefs in writing. So it was not difficult to prove she was lying, or mental, or whatever (LMW). Especially because she had done the exact same thing to others before.

My point is that women who do this need to be listed online somewhere, and the public needs to be protected from them, regardless of the reason for their false claims. Even if a mentally unbalanced woman innocently and sincerely accuses more than one man with no evidence and no plausibility, I frankly don't care what the reason is — she needs to be marked indelibly as a dangerous person. Especially given the fact that (at least in the U.S.) sex crimes can be prosecuted without any physical evidence whatsoever, and given the fact that women who lie about sex crimes are virtually never prosecuted.

Consider that the real victims are women as much as men, or more so — when women lie about sex crimes at the 20% — 40% statistical level as shown in the FBI study, all women are the victims — women who have a right to be believed when they offer courtroom testimony, or engage in business, or relate information of all kinds. The false accusers undermine an honest woman's right to be believed. They stand in the way of sexual equality.

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