The common law attitude, which governed American courts from the beginning of our history, was summarized by British lord chief justice Matthew Hale, who cautioned that rape was a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.”16
Even as recently as the early twentieth century, the influential legal commentator John Wigmore absurdly proposed that women who accuse men of rape should be subjected to a psychiatric examination because “modern psychiatrists” have concluded that many “errant young girls” have psychic complexes that cause them to contrive false charges of rape:
The unchaste (let us call it) mentality finds … expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim.… The real victim, however, too often in such cases is the innocent man.17
During the last quarter of the twentieth century, political and academic feminism began to focus attention on the gender inequalities implicit, and often explicit, in rape laws.18 It began in the classrooms and academic journals and then moved swiftly into legislative halls and courtrooms. Within a short period of time, thousands of years of anachronistic rules governing the prosecution of rape cases were changed. The testimony of rape victims no longer had to be corroborated.19 Rape shield laws prohibited defense attorneys from questioning alleged rape victims about their prior sexual history.20 Husbands could be prosecuted for forcing their wives to have sex.21 The force and resistance elements of rape were amended in most jurisdictions to require only a lack of consent.22 Date rape was punished as seriously as stranger rape. Most important, attitudes changed, at least among some groups, which no longer treated predatory males as macho heroes and women who dressed provocatively as automatically consenting sex partners.
Jury Duty
In Massachusetts, everyone is called for jury duty, even current Supreme Court justice Stephen Breyer, when he was a court of appeals judge. I was called several years ago in a brutal child rape case. I was anxious to serve, both to learn what a jury trial was like from the inside and also to help render justice in an important case. I made it past the initial screening and was seated. The lawyers apparently didn’t know who I was, but the judge did. She called both lawyers up to the bench and said, “Do you know who juror six is? Do you want to be in his next book? Will one of you please strike him?” The prosecution struck me. I followed the case closely and think I would have voted “guilty,” but I never got the chance.
Nearly all of the rules that had made it difficult to prosecute rapists were amended within the course of little more than a decade, as the pendulum swung quite dramatically from a male-centered view of rape to a female-centered view. As with many wide swings of a pendulum, there was little effort to strike a carefully calibrated balance that represented our general approach to all crimes: Namely, that there must be a heavy burden of proof on the prosecution and that it is better for ten guilty rapists to go free than for even one innocent accused rapist to be wrongly convicted. Indeed even that salutary rule was challenged by some feminists in the context of rape.23 One influential, if radical, scholar went so far as to suggest that all sexual intercourse is essentially rape24 and that all men should be presumed guilty of this crime.25 This led one of my colleagues to quip that “some feminists regard rape as so heinous a crime that even innocence should not be recognized as a defense.”
For the most part, the changes in the laws governing rape prosecutions were for the better: Many more guilty rapists were successfully prosecuted, and the number of rapes went down perceptibly.26 But these radical changes were not cost-free: More innocent defendants, or those against whom the evidence was doubtful, were also convicted. When it comes to changing the rules governing prosecution of crimes, there is rarely a free lunch. Virtually every change that makes it easier to convict the guilty also makes it somewhat more likely that some innocents will be convicted as well. The difficult question is whether, as to any particular crime or rule, the trade-off is worth it.
I have experienced and participated in the changing approaches to the prosecution and defense of rape cases, both in the courtroom and in the classroom. At the beginning of my career, when the rules were heavily skewed against women, I was reluctant to defend accused rapists, because I didn’t want to cross-examine alleged victims about their sexual history. I regarded it as an unfair tactic designed not to probe their credibility as witnesses, but rather to discourage rape victims from bringing charges. Were I to have defended an accused rapist in those days, I would have had no choice other than to use every legally permissible tactic. As the rules changed, I began to defend accused rapists (as well as some rape and sexual harassment victims)—and to teach and write about rape—in order to help assure that an appropriate balance was maintained in the inevitable trade-off between the rights of the alleged victim and those of the accused defendant.
A revealing example of how this trade-off works in practice is provided by the controversial rape prosecution of Mike Tyson, in which I served as his appellate lawyer. Tyson was convicted of raping Desiree Washington, a young woman whom he met when she was a contestant in the Miss Black America pageant in Indianapolis and he was an invited celebrity. He called her at one-forty-five in the morning and invited her to his hotel room, where they engaged in sexual intercourse. She subsequently claimed that he had forced her. He said it was consensual. The jury believed her. Following his conviction, Don King—Tyson’s promoter—asked if I would represent the former heavyweight champ on his appeal.
WAS MIKE TYSON THE VICTIM OF THE CHANGING POLITICS OF RAPE?
The first time I met Mike Tyson was the night before he was to be sentenced and sent to prison. Mike was deciding whether to accept Don King’s recommendation that he hire me as his appellate lawyer. He was in a hotel room in Indianapolis, Indiana, with his entourage. After briefly discussing the case and the appeal, he turned to me and asked point-blank, “So, Professor, I have two questions. Do you believe I’m innocent and what do you think of me as a person?” I replied that I had no basis at that time to form a judgment about his guilt or innocence since I had not yet read the transcripts. He said, “OK, that’s lawyers’ talk. Now, man-to-man, what do you think of me?” I looked him straight in the eye and said: “If you’re innocent, you’re a schmuck.” He looked back at me and said, “You calling me a schmuck?” I said, “Yes, if you’re innocent, then you’re a schmuck for going up to a hotel room at two o’clock in the morning with a woman who you didn’t know, without any witnesses, thereby putting yourself in a position where she could accuse you of rape.” He turned to his entourage and said, “This man’s calling me a schmuck. He’s right. I want to know why you guys didn’t call me a schmuck. He’s hired. I need somebody who’s willing to call me a schmuck when I am a schmuck.”
That was Mike Tyson—direct and to the point. While preparing his appeal, I went to visit him in prison several times. The prison rules required that we sit side by side, facing a camera. Whenever I would say something he agreed with, he would give me a gentle love tap on my arm or on my thigh. A love tap to him! When I got back to my hotel, I was black and blue.
One day I saw a guard taunt him mercilessly and watched him strain to control himself. He did hard time in prison. I sent him books to read—about subjects that interested him, such as ancient Egypt, the Roaring Twenties, and the history of boxing. When I would come to visit him, he would ask me to test him on his knowledge of the books. He passed with flying colors.
Mostly we talked about his appeal by phone. Mike would have to wait in line for hours to call me. Once, as I picked up the phone, he heard my baby daughter crying in the background. He told me to “take care of your kid” and he would call back later. He was always considerate.
Some people find it hard to believe, but Mike was a wonderful client, always polite, always honest, always honorable, and always thinking of others. He ran out of money during the appeal, and I continued to represent him without
pay. I never thought I would see a penny of what he owed me, but several days after he fought his first fight upon being released, he sent checks to every one of his lawyers for the full amount that he owed.
Tyson’s trial had been a disaster. His trial judge was determined to see him convicted, and his prominent white-collar trial lawyer had little experience in rape cases and didn’t seem to like Tyson. He was ill-suited to the job of defending the controversial black boxer. Although he was assisted by several able younger lawyers, it was to no avail. The legal expert who reported on the trial for USA Today described the trial as “filled with mistakes, omissions and elementary errors” by Tyson’s chief trial lawyer. I had followed the trial in the media, but I didn’t realize what an unfair trial Tyson had had until I reviewed the transcript. After agreeing to do the appeal, I decided to start from scratch with a new investigation. My goal was to secure a new trial for the ex–heavyweight champ.
I assembled a superb team, which included my brother Nathan, my son Jamin, who had just completed a two-year stint with the New York Legal Aid Society following his graduation from Yale Law School and a clerkship with the chief judge of the federal district court in Massachusetts. The team also included my coclerk for Justice Goldberg, Lee McTurnan, who was a leading Indiana lawyer.
On the basis of our investigation and the new evidence we uncovered, I was convinced that Mike Tyson did not intend to rape Desiree Washington, and that he’d gotten a bum rap.
Several of the jurors agreed with me after learning some of the new evidence. One of them said: “We [the jurors] felt that a man raped a woman.… In hindsight, it [now] looks like a woman raped a man.” Another told the media that Desiree Washington, the pageant contestant who accused Tyson of raping her, “has committed a crime.”
In order to understand why these jurors had such dramatic second thoughts about their verdict, we must go back to the trial itself and see how Desiree Washington, the alleged victim, was portrayed. During the trial she did not allow her name or face to be revealed. She was presented as a shy, young, inexperienced, religious schoolgirl, who wanted nothing more than to put this whole unpleasant tragedy behind her.
Her family said they had hired a lawyer for the express purpose of “ward[ing] off the media,” because she did not want publicity. She said she had no plans to sue Tyson and she had certainly not hired a lawyer for that purpose. When she and her family were asked whether they had a contingency-fee agreement with any lawyer—the kind of agreement traditionally made with lawyers who are contemplating a suit for money damages—they all claimed not even to know what that term meant. When Desiree’s mother was asked whether there had ever been any discussions with lawyers about fees, she said no, and she swore that there were no “written documents relating to the relationship between [the family] and [the lawyer who was supposed to ward off the media].”
As one of the jurors later put it: “When she [Washington] said she wasn’t looking to get any money,” the juror believed her and “thought then that we made the right decision.” Another juror agreed, saying that at the trial, “she was very, very credible,” because she had no motive to lie, since she was not intending to collect any money, or to benefit in any way from Tyson’s conviction. This was the centerpiece of the prosecution’s presentation to the jury: that the victim was interested only in securing justice, not in receiving money.
Another key was that Desiree Washington was an inexperienced virgin before she met Tyson. She testified that she was “a good Christian girl,” and the prosecutor told the jury that she expected to go home after her date with Tyson “the same girl” that she was before her date, a virgin. She was an “innocent, almost naive” girl, according to the prosecutor. She knew how to “handle the hometown boys” if they even dared to try to cop a “quick feel,” thus suggesting that she did not even neck or pet. As a waitress in Washington’s hometown put it: “America thought this girl was a blushing, virginal type.” (Under the rape shield law, Tyson’s lawyer could not counter this portrayal. The prosecution thus used the rape shield law as a sword to present a one-sided—and as it turned out totally false—picture of the alleged victim.)
The prosecutor also argued to the jurors a variation on the “dressed-for-sex” theory, telling them that Washington went to meet Tyson wearing “little pink polka-dot panties,” rather than “Frederick’s of Hollywood underwear,” suggesting that she did not put on the kind of sexy underwear that women wear when they are out to have sex.
Finally, Desiree Washington solidified her image as a nonsexual platonic date who only wanted to go sightseeing with Tyson at two o’clock in the morning, by describing to the jury how she responded when Mike tried to kiss her as she entered his limousine for the ride to his hotel: “He went to kiss me and I just kind of jumped back.”
In other words, the jurors were presented with the picture of a zealously religious, naive, “virginal type” girl, who did not kiss, neck, or wear sexy underwear, and for whom money or media attention were the farthest thing from her mind.
No wonder the jurors believed her testimony, in what was a classic “she said, he said” contest.
We discovered during our investigation that virtually everything “she said,” her family corroborated, and the prosecution knowingly presented to the jury was highly questionable if not outright false. The Washington family did not hire a lawyer to “ward off the media” as they’d claimed, but rather to do precisely the opposite—namely to sell Desiree’s story for huge sums of money. After the trial, Donald Washington, Desiree’s father, publicly acknowledged that he discussed movie rights with the very lawyer whom he falsely told the jury he had hired solely to “ward off the media.” In an interview he gave after the trial he admitted that “I expected to get money from movie rights, that’s where the money is.”
It also turned out that the trial testimony denying any contingency-fee agreement and any written document between the Washingtons and the lawyer concerning a planned damage suit against Tyson was perjurious. Immediately after Desiree Washington’s sexual encounter with Mike Tyson, the Washington family went to see a high-powered money lawyer. The discussion turned to how the Washington family could parlay Desiree’s date with Tyson into big bucks. They talked about movie rights, book deals, and multimillion-dollar lawsuits. The lawyer carefully explained what a contingency-fee agreement was, and the family agreed with this arrangement. Desiree signed a contingency-fee agreement, which her father and mother officially witnessed. The family was given a copy.
The prosecutor was fully aware of the contingency-fee arrangement and of his witness’s perjury. Indeed, during the prosecutor’s “rehearsal” cross-examination of Desiree Washington, the issue of the contingency-fee agreement was raised. Yet the prosecutor did everything in his power to keep the truth from coming out. He arranged for the Washington family to take the courtroom pass away from their lawyer, so that he could not attend the trial and feel ethically compelled to stand up and correct the Washingtons’ testimony when they falsely denied any contingency-fee or written agreement with him. The prosecutor also had an ethical and legal obligation to correct the false testimony given by his witness. Indeed he had an even greater obligation, because he was the one who put on the testimony that he knew was false. Not only did he suborn the family, but by keeping Washington’s lawyer out of the courtroom he actively encouraged them to perjure themselves.
The ploy worked—at least for a while. But the Rhode Island lawyer soon learned that his clients were not being straight with the jury. He began to worry that he might have an ethical obligation to blow the whistle, as lawyers do when their clients or witnesses are committing perjury. So the lawyer went to the Rhode Island Disciplinary Counsel—the attorney in charge of enforcing the ethical rules that govern lawyers—to obtain guidance. She referred the matter to the Rhode Island Supreme Court, which issued an unprecedented opinion concluding that “the attorney had an obligation to disclose the existence of his contingent fee a
greement to the [Indiana] criminal trial court”27 because the agreement’s “existence might well have had a bearing upon the jury’s determination.”28 He did so, but the Indiana authorities ignored this new information, despite the conclusion of the Rhode Island Supreme Court that it might have affected the jury’s verdict. Indeed, what could be more important than the fact—unbeknownst to the jury—that Desiree Washington had millions of dollars riding on whether Mike Tyson was convicted or acquitted, since without a conviction, it would have been difficult for her to collect monetary damages or sell her story to the media? The only thing that might have been more important was that she—with the active assistance of the prosecution—had lied to the jury about her financial motive for accusing Tyson of rape. When jurors learn that a key prosecution witness has lied to them, the case generally collapses, especially if the prosecutor was complicit in the lie.
It also turned out that Desiree was hardly the naive virgin she pretended to be. Once her name was disclosed following the trial, numerous witnesses confirmed that Desiree Washington was a sexually active young woman who hung out in nightclubs. Indeed, her lawyer seems to have implied that Washington had been examined for venereal disease a month before she had sex with Tyson.
Nor had Desiree chosen to wear her “polka-dot panties,” rather than “Frederick’s of Hollywood underwear,” when she met Tyson. The prosecutor knew, but withheld from the jury, that her sexy underwear had been washed and was still wet when Tyson called. Her only dry pair were the ones with the polka dots.
Taking the Stand Page 42
