#PublicServiceAnnouncement
In ANY type of criminal case, Rape, Assault, Robbery etc., a person can be convicted solely on the word of a complainant.
If you think that's not enough in a Rape case, you should be similarly concerned about every other type of criminal prosecution.
In ANY type of criminal case, Rape, Assault, Robbery etc., a person can be convicted solely on the word of a complainant.
If you think that's not enough in a Rape case, you should be similarly concerned about every other type of criminal prosecution.
Until relatively recently in most US states, in order to prosecute rape cases there was an additional legal requirement of "Corroboration." This was only needed in rape cases. So in a robbery case, I could say you stole $1000 from me & that would be enough for a conviction.
But in a rape case, there had to be something more, for instance, an eyewitness. Clearly rape cases were the least likely to have this sort of "corroborating" evidence, by their very nature, so to require this extra proof was illogical & unfair.
The legal requirement of corroboration originated in the ancient English common law & was based on mythologies of women's inherent unreliability & manipulativeness dating back to Adam & Eve. Women it was thought had a propensity to lie & therefore to invent allegations of rape.
So the entire structure of rape laws evolved around the idea that we should not believe women.
This changed in the 1960/70s. It still exists in NY in cases of mental incapacity. Also in other states, it is given as a jury instruction where there is no "prompt outcry" (another part of law that suggests women should not be believed if they don't promptly report their rape).
I want to discuss how this informed the discourse around #ChristineBlasleyFord's allegations against #BrettKavanuagh & #LuciaEvans' against #HarveyWeinstein. Both alleged criminal conduct, although the first was not in the context of a criminal proceeding.
#DrFord made very credible allegations of sexual assault against #Kavanaugh that by themselves would have sustained a criminal prosecution. She also had substantial supporting evidence in the form of his diary, her therapy notes etc.
While we still use the word "corroborate" a lot in criminal law in contexts other than rape prosecutions, I have never heard it used so much in popular discourse as I did during discussion of this case. Normally the media would just talk about evidence. Here it was corroboration.
And that bothered me a lot. Because I am sure that had everything to do w/ the history of the corroboration requirement in rape prosecutions, even if people were not familiar with the actual history of rape laws. It has just informed so much of our cultural understanding of rape.
And what we are saying when we start from a position where we require corroboration, even if it is not explicit, is we don't believe women. And people on the left fell into this trap too.
I say this as a criminal defense attorney who is also a feminist. It particularly infuriated me to see people applying criminal law standards like the presumption of innocence but then making demands of Dr. Ford in excess of what would be required in a criminal trial.
People were demanding evidence & she actually had so much additional evidence to support her allegations. It wasn't a criminal proceeding, but if it had been her testimony was evidence & it would have been enough evidence to support a conviction b/c she was a credible witness.
She didn't need PJ and Squi.
As to #LuciaEvans allegations against #HarveyWeinstein, this was a criminal proceeding. I have been very troubled by the way this has been reported by the press & I encourage everyone to read her lawyer, @cagoldberglaw's statement on the dismissal of the charges.
I practiced for 10 years in Manhattan. @ManhattanDA never consents to dismissal of charges on defense motion after indictment. There was a reason the governor announced an investigation into that office's handling of the 2015 case against #Weinstein.
The thing that most troubles me about the dismissal is that it is based on a third person - a friend - disputing the veracity of Ms. Evan's claims that she was sexually assaulted. So again on some sort of idea that "corroboration" is required.
This friend was not an eyewitness to the sexual assault & claims that Ms. Evens told her the incident was consensual, which is refuted by Ms. Evans & allegedly contradicts earlier statements made by the friend.
None of this should be grounds for dismissal of an indictment. These are issues for trial. I do not believe a DA would make this decision in any other sort of case on these grounds. Different rules seem still to apply for sexual assault cases & this is wrong.
Don't get me wrong. I am not suggesting that we should not in every case investigate all allegations thoroughly. As a criminal defense attorney, I want a prosecutor to do this. IN EVERY CASE. I want to get every single bit of evidence, especially evidence that may be exculpatory.
I just think we need to be careful not to demand of survivors of sexual violence something we do not demand of complainants in any other case. Because if we start from a position of corroboration we are already saying we do not believe you.
