Boston Criminal Attorney Blog

In my last post on this subject, I discussed the irresponsibility of some organizations and media outlets, in taking extreme license in promoting legally invalid definitions of rape. In that post, I had mentioned views advocated by some colleges and universities.

When it comes to the university and academic community, consider the views of no less august an academic institution than Harvard University. In 1992, Harvard assembled a University Date Rape Task Force to study this problem and make recommendations for legislative changes in this area of Massachusetts sexual assault law. Shockingly, that report defined the majority of consensual sex between a couple as "rape" by the male, and proposed the most far-reaching restrictions of consensual sex imposed by any secular university in America. How? By requiring that almost all sex acts between a couple meet the requirements of a veritable contract negotiation, involving “expressed consent” and/or “reasoned consent” in advance of any sexual contact whatsoever. Apparently, in reaching these recommendations, one can only surmise that most of these task force members never had sex themselves.

Consent to sex rarely if ever involves negotiations and “expressed consent.” It is almost always the product of just the opposite: An escalating series of amorous exchanges which produce decreased reason and increased passion. More so, people in sexual relationships learn their partners' preferences, enabling them to interpret what their partners want, without expressed discussions. Harvard University’s task force wanted to deem any sexual act engaged in by a couple as "rape" unless it occurred following an openly articulated, explicitly communicated "yes" by the woman (note: the report never even mentioned the possibility that a man could be the victim of a same-sex rape.) This Harvard-produced report ignored the fact that most couples often have sex without explicitly discussing it beforehand. It’s called spontaneity, the last time I looked. According to the Harvard report, rape encompassed "Any act of sexual intercourse which occurs without the expressed consent of the complainant."

Thankfully, several of those recommendations were never fully implemented at Harvard, and that all occurred 18 years ago. So why is it relevant now? Because it created a wave of hysteria about what “rape” legally is and isn’t; it dovetailed on the appearance of GHB and other date rape drugs; and this report and others has fed radical feminist agenda to expand the legal definition of this crime, to include events and actions that would never before have been considered “rape”. Think not? Consider the emergence of a new term of art in this area of law – this one now called “Gray Rape.” This 'creative' term has been developed to describe any act of sex occurring between two people (heterosexual or homosexual) which:

• Does not involve any violence, or the threat of any violence
• Does not involve any coercion or pressure
• Does not involve the covert use of any intoxicating or sedating drugs or chemical substances

but which involves some element of second-guessing or regrets, “the morning after”, or following the sex that transpired. Thus, if someone engaged in sex and did not object, but later had “second thoughts” about whether he or she really should have had sex (for any reason at all - religious, cultural or otherwise,) the other partner might be charged with being a rapist.

Do not make the mistake of thinking this doesn't happen, or that if it does, it happens rarely. Just recently, I defended a college student accused of "date rape." An investigation of the facts showed that the young man accused was no more guilty of rape than you or I. The young woman involved had learned that the accused (her boyfriend,) had cheated on her with another woman, and she wanted revenge. So after they had sex at a dorm party, she accused him of spiking her drink with another drug that she had already ingested herself. These stories are not rare. They happen all the time. Due to my efforts as his defense attorney, this young man was acquitted. Another person might not be so lucky.

Media efforts to publicize these inapplicable “definitions” of rape, is what leads many people to file rape and/or sexual assault charges against innocent defendants in Massachusetts. Rape laws were developed to punish horrifying acts of violence and physical violation, and indeed they should. Date rape laws were later passed to deal with this legitimate problem, also. But women’s magazines who trumpet sex on every cover (are you listening, Cosmopolitan?) would do more justice in this area by concentrating on what rape really is, and what it isn’t, instead of feeding baseless chatter just to sell their magazines.

In the meantime, while each allegation of rape should be taken seriously, the underlying facts should be taken equally seriously. An entire life can be ruined with the pointing of one dishonest or misinformed finger.

Date Rape, also referred to as “Acquaintance Rape” can be a serious problem, and is real.

Notwithstanding that the media have been reporting date rape as a new phenomenon, primarily due to the covert use of an anesthetic drug, the practical reality is that drugs (most frequently alcohol,) have been involved in social situations culminating in Massachusetts sexual assaults since Prohibition ended, and even previous to that. The use or ingestion of chemical substances (primarily alcohol) during social or dating encounters is almost universal, and as a drug alcohol is notorious for lowering inhibitions, especially sexual inhibitions. The most recent difference – and a major one – surrounding date rape, involves the the covert, or secretive, introduction of a sedating drug into someone else’s (the victim's) drink. Rohypnol and Gamma hydroxybutyrate -- GHB -- are two of the most common substances used in drug-facilitated sexual assaults. Rohypnol is known on the street as "roofies."

The Massachusetts Legislature has proscribed this activity on a statutory level, in M.G.L. Chapter 272: Section 3: “Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person shall be punished by imprisonment in the state prison for life or for any term of years not less than ten years.” In a legally “pure” date rape scenario, after unwittingly ingesting the drug, the victim is rendered unconscious or so sedated that he/she cannot either formulate or communicate his/her consent or lack of it.

It is that absence of consent which can create the legal basis for a charge of rape. If one cannot mentally formulate the requisite consent to engage in some type of sex, then any sexual acts that follow are by legal definition non-consensual. The best way to think of this is to consider someone who is developmentally disabled (intellectually or emotionally.) Such a person lacks what is known as the “legal capacity” to consent to sexual conduct. (A similar, though not quite entirely analogous legal concept, is present is cases of statutory rape, where the law “vitiates” consent on the part of the underage party, because the state deems anyone under a certain age to lack the capacity to consent to sex at that age.) However, in cases of date rape, it is not just the absence of consent that forms the basis of the charge. It is the concomitant, covert introduction by the alleged perpetrator of a sedative drug or substance that the victim was unaware of – thus indicating the perpetrator’s intent to deprive the victim of consent.

Thus, when a “true” version of date rape occurs, it is justifiably a serious crime, aside from being morally objectionable. And when this truly occurs, criminal prosecutions are appropriate –just as a legal defense is appropriate. The problem with these cases, arises not out of the “clear-cut” situations, but out of the more nebulous areas involving sexual conduct between two people. And by the way, this problem is not an entirely heterosexual problem – it occurs quite commonly between gay men, and gay women. This area of law is not limited to just the “he said-she said.”

The more difficult problems arise when an allegation of “date rape” is made against someone, without the covert use or introduction of any sedating drugs such as GHB or “roofies,” and without the presence of violence or threats of violence. As a Massachusetts rape defense lawyer, I can assure you that these kinds of accusations are becoming more and more common – chiefly due to legally unfounded and exaggerated definitions of “date rape” that have been advanced by feminist groups and several politically-correct and legally-nervous colleges and universities. (Colleges and universities are notoriously fearful of being sued for civil liability – specifically negligence and premises liability - following an allegation of on-campus rape.) These interest groups and academic organizations, in my view, have taken the existence of a clearly objectionable and repugnant idea (covertly drugging or sedating someone, to allow a perpetrator to engage in non-consensual sex,) and have used that repugnant practice as a justification to try and promote “new” and expanded definitions of rape, magnifying traditional legal definitions to encompass and include actions and circumstances that would have never previously met the legal definition of rape. Many, though not all, of these “new and expanded” definitions of rape have been advocated by feminist advocacy groups, many (though not all) of whom have a decidedly anti-male bias. (These same radical feminist groups won’t like that honest characterization, but then again they attack anyone who disagrees with their views.)

I'll discuss more of these extremely unwise approaches to redefine rape, in my next post.

Forcible rape or sexual asaault, when it actually occurs, is a crime that is despicable. I wanted that to be my opening sentence in this post, for a good reason. When rape actually occurs, it should be investigated and prosecuted thoroughly. But in almost all rape and sexual assault cases, the central problem is that no one else was around during the alleged rape, other than the alleged assailant and the alleged victim, to offer any corroborative testimony as to the allegations made, or to the consensual or non-consensual nature of the event.

Increasingly, the problem of false rape accusations is coming more and more to the media’s, and the public’s, attention. Recent high-profile cases such as the Duke University Lacrosse case, in which three white players on the Duke University Lacrosse team were accused by a black erotic dancer of raping her, only to be later vindicated, and the Hofstra University rape case where a student accused four male students of rape, only to later recant her story, are becoming more common. The problem in all these cases is, “Who is telling the truth?” Substantively, a legal defense to a rape case consists of one of two approaches: 1) That sex between the accuser and the accused never occurred; or 2) That sex did take place between the accuser and the accused, but it was consensual. It may come as a surprise to a good number of people, but false accusations of rape can take either form of these two scenarios.

Let’s examine two questions: 1) Why would anyone falsely accuse another person of rape?; and 2) How common is the incidence of false rape accusations? The most common answer to the first question, usually reveals some element of revenge, for something done to the accuser that she (or he, believe it or not,) is angry or enraged over. A study conducted on this subject in the Journal Archives of Sexual Behavior, (Vol. 23, No. 1, 1994,) reported that false accusers were commonly motivated by a need for an alibi or a desire for revenge. In the Journal Forensic Science Digest, (Vol. 11. No. 4, December 1985,) equally common reasons given by women who falsely accused somone of rape were "spite or revenge," and to compensate for feelings of guilt or shame (for having willingly engaged in the prior sex.) Alleged rape victims have admitted in the past that they had made the false rape charges for three reasons: 1) To create an alibi about some other event; 2) To exact revenge; and 3) To generate attention or sympathy. The need for attention is not uncommon, as was revealed in the case of the Detroit woman who gave police details about her alleged rapist and his truck, then admitted she had lied: it never happened. (Source: Detroit Free Press, April 21, 2004.) More recent has been the case of Dallas Cowboys football player Michael Irvin, who was falsey accused of sexually assaulting a woman in July of 2007. That woman later recanted her story, and the District Attorney involved dropped all charges against him.

Also, lest anyone think that only unintelligent or uneducated women might falsely accuse someone of rape, it should be known that educated women lie, too, and several reports compiled from college and university police departments corroborate this fact. A study conducted by the Department of Sociology and Anthropology, Purdue University, made clear that university women were just as likely to file a false rape charge as a valid charge.

A new statistic has emerged on the topic of false rape accusations, increasingly known as the “1 In 4 Figure.” No, it doesn’t mean that one in four rapes are never reported to police; it refers to increasingly solid statistical evidence that indicates that 1 in every 4 reported rapes, never actually occurred; that “1 in 4 accusations of rape are false.” Lending credence to the growing acceptance of this figure, is nothing less than a study published in 1996 by the U.S. Department of Justice, entitled “Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish .” This study documented 28 cases of rape which, "with the exception of one young man of limited mental capacity who pleaded guilty," consisted of defendants who were convicted of rape by juries, only to be later exonerated by DNA tests. Each of those defendants - innocent men – had served an average of 7 years in prison by the time they were released.

There is a section of that report that quoted two prominent criminal defense attorneys, Peter Neufeld and Barry C. Scheck, co-founders of The Innocence Project, a legal organization whose goal is to seek the release of defendants who have been falsely imprisoned. Neufield and Scheck reported that "Every year since 1989, in about 25 percent of the sexual assault cases referred to the FBI where results could be obtained, the primary suspect has been excluded by forensic DNA testing. Specifically, FBI officials report that out of roughly 10,000 sexual assault cases since 1989, about 2,000 tests have been inconclusive, about 2,000 tests have excluded the primary suspect, and about 6,000 have "matched" or included the primary suspect." This FBI data on false rape accusations is striking indeed.

As I said in the opening of this post, the increasing recognition of the “1 In 4” incidence of false rape accusations does not in any way minimize the tragedy of forced rape and sexual assault, when it actually does occur. But what this statistic's growing recognition does do and should do, is remind everyone of the importance of the presumption of innocence, and of the value of DNA-based evidentiary testing in these cases.

At our practice, we know from firsthand experience that not all rape cases are clean-cut, easy-to-answer stories. We know how to effectively investigate and defend accusations of rape. If you or someone you know has been accused of sexual asaault or rape, call us for a free consultation.