Articles Posted in Rape &Sexual Assault

Now that summer is here and people are again flocking to Cape Cod & the Islands, a lot of people have been looking at news on actor Kevin Spacey.  As most everyone who knows this name knows, Spacey (real name:  Kevin Fowler), was charged last January in Nantucket District Court on Massachusetts Indecent Assault & Battery charges, accused of sexually assaulting an 18 year-old boy in the summer of 2016.  Spacey, of course, has pleaded not guilty, and recently, his attorneys have ramped up their legal defense, asking a judge to order that the alleged victim produce his cell phone to determine if relevant messages & data were deleted after the alleged incident.   The judge has granted the defense’s motion, and that phone will now be forensically scoured to determine if any data was deleted between the date of the alleged incident, to present.

Thus, more than a few people have asked me whether or not I think Spacey is going to seek a trial in this matter to seek a Not Guilty verdict, or possibly plead the case out to a less serious offense (such as ‘simple’ assault & battery), to avoid risking a conviction – and the publicity that would go with that.

Right now, it appears to me that Spacey may well elect to go to trial on this case.  The reasons that I sense this are primarily legal.  (However, Spacey put out a rather strange video on YouTube last December, in which he spoke in the voice of his now-famous “House of Cards” character, Frank Underwood, inferring that he would never admit to a crim he didn’t commit.  Regardless of this video, as a Massachusetts sex crimes defense lawyer, I think there are good reasons why Spacey should consider seeking a trial in this case (vs. “pleading it down”, to avoid both the public spectacle  of a trial, and the possibility of a guilty finding and potential jail time.)  Most of these reasons relate to evidence – specifically its veracity and admissibility.

Here’s a twist on an old issue involving Massachusetts rape charges: A victim claims she/he was raped. Importantly, before going further, let’s make sure that we understand what the legal elements of rape are in Massachusetts, which are as follows:

1) Penetration of any bodily orifice by any part of the body, or by an object, performed against the victim’s will,

2) Without the victim’s consent, and

U.S. Secretary of Education Betsy Devos earlier today released a long-awaited series of formal proposals for how colleges and universities respond to accusations of “sexual assault” and conduct investigations into such incidents. The proposed revisions would update “guidance recommendations” previously put in place buy the Obama administration, and predictably, Democrats and “#MeToo activists”, howled their opposition, claiming the proposal would allow, perhaps even encourage, sexual assailants to prey on college campuses everywhere as well as allow schools to evade civil liability.

This is no surprise, as these “women’s rights activists” will never cease at their un-reasoned exercises in hyperbole and extremism, when ever anyone has the audacity to disagree with their imbalanced ideas of legal due process and, even, basic fair play. The proposed regulations originate from a 1972 federal law called Title IX, which was initially passed to prevent sex discrimination at colleges and universities that receive federal funding. Most of the law’s focus is on universities, but it also applies to and any other schools that receive federal monies.   The Obama administration had previously issued “guidance” to schools, which wildly favored accusers and nearly stripped accused students of almost any meaningful legal protections provided by the U.S. constitution.  Obama’s Education Department was able to accomplish this end-run around procedure, because their recommendations to schools were made outside the normally-required formal rule-making process.  The result?  Those “guidance recommendations” threw out almost any meaningful substantive and procedural legal rights for anyone accused of sexual assault — and furthermore, under the Obama “guidelines” – the definition of “sexual assault” was broadened so wide as to subject almost anyone to such an accusation.  Predictably, before reading any further, left-leaning feminist activists will interpret this post to be “anti-women” – or, to employ the prevailing lexicon they so favor, “misogynist”.  Not, neither this post, not any of my opinions, are “anti-women”:  They are pro-due process; they are pro-fairness; they are in favor of determining the truth in any given circumstance – not conducting a kangaroo court to satisfy the loudest protect group of the moment.

Employing the Obama administration’s “guidelines” (vs. formal rules), allowed Obama’s Education Department to essentially manufacture new proceedings that had no basis in any relevant statute or Supreme Court opinion.  Again, these “guidelines” – which despite being called “guidelines”, almost every campus in America adopted given the fact that over 95% of them are bastions of liberal thought, were the ultimate in an end-run around appropriate federal protocol. They were the product of militant feminist “activists”, who never cease in their proclamations of victim-hood and “oppression” – even in an era when women occupy, justifiably and with good reason, some of the most powerful positions in the country – in law, in government, in commerce & business, in medicine, in academia, and more.  These activists simply never cease their drumbeat of trying to convince people that every woman, everywhere, is oppressed, abused economically, and sexually pursued and harassed, wherever they go.  Odd – I don’t see that in any of the women I know, of a variety of ages, professions and backgrounds – and I’ve asked many women I know for their opinions on this subject.  Yet we’re told by militant feminists that this conduct is ubiquitous; omnipresent; everywhere, universal; constant.  Really?  As a Massachusetts criminal defense attorney who is in the courts every day, this sounds more to me like the dying breaths of once-active organizations like the National Organization for Women, which given all the advancements made in women’s interests, are now largely irrelevant, but to avoid a natural death, continue to declare otherwise through such dramatic claims of “oppression, everywhere”

Today’s post concerns Massachusetts sex assault accusations and charges – and I want to be very judicious and careful in what I’m going to say here. Sex assault and rape charges are very serious, and should therefore should not be dismissed lightly. As part of this reality, more than a few people can sometimes ask me, “Why do you defend people who are accused of sex assaults?” My answer is usually easy:  “Because they may be innocent, and they are entitled to a legal defense.”

Before going any further, I’m going to say something very sincerely, and I want my readers to know that I mean it 100 per cent: I have all the sympathy, and indeed, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman. Young or old.  Of any background whatsoever.  But when such accusations are made, and the accused’s life, liberty and welfare are on the line, such accusations must be supported by persuasive, compelling testimony.   Just because someone is accused of sexual assault or rape, does not automatically mean that they are guilty of having done so.  Over many years in my career as a Massachusetts sex crimes defense attorney, I can’t (and obviously never would, due to attorney-client privilege issues), tell you of how many clients I have defended who have been accused of some type of sex offense – and yet they were entirely innocent of those crimes. Continue reading

In my previous two posts on this topic, I discussed how seemingly every day, more and more accusations of sexual “assault” are being leveled at people in public life (as well as private.) Many of these events are reported to be years, if not decades, old, and reflect highly questionable allegations.  Worse, it has been observed by more than one responsible journalist that if anyone dares to question the veracity of an accuser, or seeks to merely provide context to these accusations, that person is savagely attacked in the public square: Pilloried for having the audacity to inject perspective into this latest “debate” within a society that is addicted to controversy – the “Rage of the Day” or Crisis du Jour.”

Exhibit ‘A’ on this point: Actor Matt Damon. Damon had the utter audacity to opine in a recent interview that there are major differences between touching someone’s buttocks, and rape or attempted rape. Obviously, he was not speaking as an attorney because he isn’t one – and to me as a Massachusetts sex charges attorney, that made his comments all the more valuable, because he was commenting from a common-sense perspective. Damon wasn’t speaking from political correctness – and that what is made his comments so important. He noted how, prior to this current, frenzied climate of accusations of sexual assault, reason and probity would have otherwise prevailed – reason and probity that are now all but gone. He urged a return to healthy skepticism and careful investigation of such accusations, while not losing sight of needed context. Continue reading

In my previous post on this important subject, I talked about the literal explosion recently, in accusations and allegations of “sexual assault” being made against a wide variety of individuals – against the famous and anonymous alike.  I’m writing about this because I’ve been receiving a considerable number of phone calls recently – from both men and women alike – worried that they, too, might be accused of “sexual assault” – for the most minor of events.  For things that, frankly, strain belief that someone would make such a serious allegation.

This explosion of “sexual assault” allegations have followed the ‘shocking’ news that a physically unattractive Hollywood producer – Harvey Weinstein – had a “casting couch,” and pressured certain actresses for sex if they wanted to appear in his films.  To begin with, to my knowledge, the actions that Weinstein are reported to have engaged in – pressuring actresses to socialize with him and/or have sex with him if they wanted to see their careers advance in the film industry – can indeed be classified as boorish and tasteless.  If the allegations are true, Weinstein can indeed be called a social loser for having to resort to economic and career pressure to obtain sex.  But such suggestions by do not legally constitute “sexual assault.”  Far less do they constitute “rape.” Continue reading

A person would have to live under a rock not to know of the tsunami of sexual assault allegations that have rolled across the U.S. in the past few weeks, following the revelations of sexual assault allegations made against famous Hollywood figures such as film producer Harvey Weinstein and actor Kevin Spacey.  These accusations started in Hollywood, but have in the past few weeks spread to almost every corner of American society – from producers, directors and actors to CEO’s, politicians and civic leaders, corporations, non-profits and academic institutions.

While I am sure that a substantial number of these allegations of sexual assault are true, people need to remember that sexual assault accusations are some of the easiest to manufacture or use as leverage against another person.  This can be done for a variety of reasons – most commonly financial leverage, revenge against a relationship gone bad, jealousy and other reasons.  What concerns me about the current social environment is the veritable explosion of these accusations, seemingly arising from every corner of American society, since the Harvey Weinstein revelations.  It seems that countless individuals from every corner of society are now screaming “Me Too” – claiming that they were “victims” of “sexual assault.”  I showed my wife a picture I saw on Facebook recently of a group of women all holding “Me Too” signs – each one of them smiling ear to ear, as though they had just one some kind of award.  What’s wrong with this picture — in general?   These are victims of “sexual assault”? Continue reading

If you pay attention to the subject of campus rape and college student sexual assaults, you couldn’t have missed the mainstream media’s reporting of Rolling Stone Magazine’s very public retraction of a controversial story it published last November 2014, titled “A Rape on Campus.”

The story described a horrific gang rape of a female student at the University of Virginia identified only as “Jackie”, reportedly by seven different men at a campus fraternity house. The story understandably unleashed a renewed debate about college campus sexual assaults; specifically, about the actual extent of campus sexual assaults in the U.S., and whether colleges and universities are aggressive enough on this issue. It has also been alleged by more than one women’s advocacy group that many colleges and universities intentionally hide or under-report campus sexual assaults. Reading the published story, one is left with the impression that the University of Virginia was a “poster boy,” if you will, for college officials’ indifference to the subject of student rape. The hue and cry that resulted, was predictable: Marches and protests on several college campuses; ‘fist pumping protests’ by female students’ unions; and women’s advocacy groups fanning the flames at each and every step along the way, decrying ‘male-led indifference’ at the top of colleges and universities across the country.

Turns out there was just one minor problem with the story: It was completely false. Worse, neither the Rolling Stone reporter who wrote the story, nor any of her editors at the magazine, caught multiple factual errors and inconsistencies before publishing the story. Gradually after the story’s publication last November, fact-checking exposed several inconsistencies in the alleged victim’s story. The Charlottesville, Virginia Police Department determined it had found no evidence to support the claims of the alleged victim. Eventually, Rolling Stone magazine requested that the Columbia University Graduate School of Journalism conduct an independent, external review of the story. Last week, Columbia University released its conclusions that the manner in which Rolling Stone vetted, reported, edited the story was “a story of journalistic failure that was avoidable. [The failure] encompassed reporting, editing, editorial supervision and fact-checking,” which the venerable journalism school reported on its website. Rolling Stone’s Managing Editor Will Dana issued a formal apology on the magazine’s website, and the female reporter who wrote the story also apologized in a written statement.

College campuses are hotbeds of youthful activity: Fraternities and sororities. Football and varsity sports games. Lots of consumption of alcohol. Drugs. Partying. Linking up between students (as opposed to dating). Put it all together, and at many, many colleges and universities, when it comes to college sexual assaults, those things are recipes for disaster. Today, sexual assaults on campus are in the spotlight, and people rightfully look for a way to prevent rapes at colleges and universities.

So, what do you think would happen if someone were now to add guns to the mix?

I’m not joking. Gun-rights advocates in 10 states are pushing for “reforms,” as they call it, so that female students — very young, usually 18-22 year old kids — can carry guns on campus. These people believe that all colleges and universities need these so-called “campus-carry laws,” so that anyone who even thinks of raping a female college student would think twice. Yes, these people believe that arming 18-22 year old college students with handguns, is the answer to campus sexual assaults. In my view as a Massachusetts campus sex assault attorney, most of these people are extremists. If you doubt that, consider this quote from a sponsor of a bill in Nevada that would allow 18-22, very young, women to carry loaded handguns on campus: “The sexual assaults that are occurring (on college campuses) would go down once these sexual predators get a bullet in their head.” That’s a direct quote from a Nevada Assemblywoman. I won’t give her the publicity by naming her here.

More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them.

This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following:

• A lack of credible witnesses.