I don’t have any opinion on Kobe Bryant’s guilt or innocence – and furthermore, I think people who have an opinion at this pre-evidence stage are just demonstrating their own bias. Unfortunately, TalkLeft – a blog I respect – has already decided that Bryant “is the victim… in this case.” In keeping with her prejudgment, Talk left has been linking to articles using the Bryant case as a pretext for attacking rape victims’ rights under the law.
By far the scariest article TalkLeft has linked to is this FindLaw article by defense attorney Jonna Spilbor, who says the central question of the case is “has this good guy been falsely accused?” (Note the presumption, before the evidence has even been heard, that Bryant is a “good guy.” Yes, courts and juries should presume innocence; but Spilbor isn’t a court or a jury, and she should keep her mind open to the possibility that occasionally people accused of rape are, in fact, rapists). The problem, Spilbor thinks, is that women who make false accusations are not punished enough.
Now, to some extent I agree with Spilbor – certainly, a deliberate false accusation, if proved in court, deserves a much harsher sentence than “a fine, ranging from fifty-bucks to $750, and up to six months in the county jail,” which Spilbor says is the current maximum penalty in Colorado. But Spilbor misleads her readers by implying that this is all the punishment a false accuser could receive – she neglects to mention that in Colorado, people found guilty of first-degree perjury can be sent to prison for five years.
After that, Spilbor soars into defense attorney never-neverland:
An acquittal, of course, only means the prosecution has failed to prove its case beyond a reasonable doubt – and the public knows it. So to truly get justice, one who is falsely accused needs more than an acquittal: He needs a finding that the accuser lied.
The current law, however, simply ignores that the false report has happened. It’s not just that it doesn’t provide for a “Not Credible” verdict. It’s also that it gives a false accuser a second bite at the apple: She (or he) can still go on to bring a civil case for damages. Because the standard of proof in a civil suit is lower, it is not precluded by an acquittal.
Perhaps a “Not Credible” verdict, then, ought to bar a future civil suit by the accuser, as well. It only makes sense: A finding of a lie ought to prevent the false accuser from using that lie as the basis for a future case.
In effect, Spilbor’s proposal would mean that at rape trials, the alleged victim would literally be put on trial – and if the jury finds against her, she would lose some of her legal rights, and be publicly branded a liar by the court system. What’s the problem with this? As Avedon Carol has pointed out, this means that the alleged victim would be put on trial – and, if found “not credible,” punished – without the benefit of having her own lawyer or the opportunity to prepare her own defense.
It’s horrifying to think that Spilbor is a lawyer – has she even heard of the Constitution? It’s also horrifying that a defense lawyer – who should be the first to understand the principle “innocent until proved guilty” – is proposing that alleged false accusers be found guilty (er, I mean “not credible”) without their own trial.
Spilbor also doesn’t consider the deterrent effect her proposals would have on genuine rape victims. As it is, rape is possibly the most underreported crime – according to a nationally representative study of rape victims, The National Women’s Study, only 16% of female rape victims ever report their rape to the police. How many fewer would report if they knew that they’d be subject to a “not credible” ruling if the defense lawyers can succeed in smearing them enough?
Finally, why are alleged false accusations of rape such a uniquely high concern? Yes, false accusations of rape can ruin innocent people’s lives; but so can false accusations of drug dealing, false accusations of murder, and so forth. As a defense attorney, Spilbor must realize that lying witnesses (such as a jailhouse snitch – a type of prosecution witness that should be outlawed entirely, in my view) can lead to false convictions in all sorts of felonies, not just rape. All false convictions are a miscarriage of justice; it’s discouraging that the only time the media seems to give a damn, however, is when there’s a chance to paint a stereotype of all rape accusers as liars.
Next post: Rape Shield Laws and the Kobe Bryant Case