Taking the Stand

by Alan Dershowitz

  My decision to represent Mike Tyson on appeal generated considerable controversy and some outright animosity. Rape is a highly emotional issue, which extremists see in black-and-white terms.

  Some radical feminists, such as Judge Gifford, regard acquaintance rape, in which the man honestly but mistakenly believes his partner has consented, as indistinguishable from rape at the hands of a stranger at knifepoint. A letter to the editor critical of my views on date rape made the point as follows:

  Dershowitz further endears himself by explaining that date rape and acquaintance rape is an area in which differing perceptions may produce inadvertently false testimony about actions that fall into a gray area. Let me explain something: No means no. There is no gray area.

  But in many date rape cases, the alleged victim didn’t say no. Nor did she say yes. There are gray areas.

  I received countless letters, phone calls, and personal attacks denouncing me for agreeing to represent Tyson on his appeal. Here are some excerpts:

  It’s too bad that a punk like Tyson can afford to pay for the top legal representation … but since you had the right to refuse to represent him, I fault you!

  When you choose to represent someone like Mike Tyson, you attach the Jewish community to your action.… I now find it hard to understand how you can mount a passionate defense for a convicted rapist.

  Shame on you, Alan Dershowitz, if you handle this appeal.

  The most surprising response came from some Harvard Law School students, who should have understood that our adversary system of justice requires that all convicted defendants be accorded a zealous appeal.

  I don’t know what took place in Mike Tyson’s hotel room on that fateful night, but it may have fallen into the category of a gray area. He believed that Desiree Washington wanted to have sex with him. She may have been ambivalent or sending mixed signals (though I doubt it). It was a close case, and Tyson was entitled to have his defense presented vigorously.

  Yet several of my students strongly objected to me, their teacher, representing “a convicted rapist.” A couple of them even threatened to file “sexual harassment” charges against me because my representation of Tyson created a “hostile environment” for students who believed he was guilty.

  The protest broadened to the way I discussed the crime of rape in class. In my Criminal Law class, I teach the law of rape as an example of a cutting-edge subject that often poses a sharp conflict between the rights of defendants and the rights of their accusers. As usual, I take a “devil’s advocate” position on politically correct issues. For example, although I personally oppose capital punishment, I argue in favor of the death penalty and ask the students to come up with better arguments to oppose it. Unless they can, they will never be able to persuade the majority of Americans, including judges, who favor the death penalty.

  Similarly, in the area of rape, I present positions that students are reluctant to defend, but which many Americans believe. I point out that according to FBI statistics, rape is both the most underreported and the most overreported crime of violence: For every reported rape there are an estimated ten that are not reported; but at the same time, a significant percentage of all reported rapes turn out to be unfounded, and this rate of false reports is higher than for other violent crimes.34

  All in all, my classes on rape tend to be controversial and emotionally charged. The majority of students seem to love the exchanges. Some even change the opinions they brought to class.

  But my devil’s advocate views on rape are deemed politically incorrect by some students. Indeed that is precisely why I insist that they be expressed. The education of my students would be incomplete if they heard only the comfortably “correct” views. I tell my students that my job is not to make them feel good about their opinions, but rather to challenge every view. That is what the “Socratic method” of teaching law is all about. That is also what the real-life practice of law demands.

  A small group of students complained about my teaching rape from a civil liberties perspective, by which they meant that I balanced the legitimate interests of alleged rape victims against the constitutional rights of accused defendants. I responded that it was important for the students to hear a variety of perspectives about rape, just as they hear, without objection, about other crimes. I reminded them that the majority of students who speak in class present the politically correct views. I also invite guest lecturers to present a feminist perspective on the subject. The answer to an offensive argument is not to censor it but rather to come up with a better argument. But these students don’t want to hear, and don’t want their fellow students to hear, any perspective but their own. They know “the Truth,” and there’s no reason to listen to offensive “Lies.”

  I was told that several radical feminist students had met and decided on a course of action in response to my decision to represent Mike Tyson: They would use the student evaluations at the end of the semester to send a message to professors who don’t follow the “party line” in teaching about rape. I was warned that I should expect to be “savaged” in the semester’s evaluations.

  When the evaluations arrived, I realized how dangerous it would be for an untenured professor to incur the wrath of the political-correctness patrol. Most of the students appreciated the diversity of viewpoints in my classes (“willingness to broach sensitive subjects and take unpopular viewpoints,” “very good at presenting alternative views,” “helped me get a less dogmatic view of the law,” “open to criticism,” “fair in presenting sides that usually aren’t raised,” “the most engaging class on campus,” “the most intellectually honest professor I’ve had”). But a small group of students used the power of their evaluations to exact their political revenge for my politically incorrect teaching. One student said that I did “not deserve to teach at Harvard” because of my “convoluted rape examples.” Another argued that women be allowed an “option” not to take my class because I “spent two days talking about false reports of rape.” Another demanded that my “teaching privileges” be suspended. (In classes I teach in which rape is not part of the syllabus, my student evaluations tend to be near perfect.)

  I always try to learn from my evaluations, but I refused to be bullied into abandoning a teaching style that I believe is the best design to stimulate thinking. It takes no courage for me to exercise my academic freedom, since I have tenure. But would an untenured assistant professor have the courage to risk the wrath of the PC cops? Are other, less established, teachers being coerced into changing their teaching by the fear of negative evaluations (which can be fatal to tenure)? You bet they are. And it poses a real danger to academic freedom and good education. One Criminal Law professor told me that he searches for casebooks that don’t cover rape: “If it’s covered in the book and I skip it, I get criticized. And if I discuss it, I get criticized. This way I can blame it on the book.” Talk about lack of courage!

  I told the students who threatened to charge me with sexual harassment to go ahead—I would love to defend against such a charge, by demonstrating their misuse of the serious moral crime of real sexual harassment. I have represented women who have experienced real sexual harassment—including a graduate student who was told by her faculty advisor that the quality of her recommendation would depend on whether she slept with him. I understand the enormous pain it can cause. The student was devastated, her self-confidence shattered. She wanted justice, and to make sure that her career as an academic would not be hurt by her refusal to “go along” with the offer of a good recommendation.

  That was real sexual harassment! Listening to differing views about rape isn’t sexual harassment. It’s education.

  In the case of the sexually harassed graduate student, I advised her to file a complaint and bring a lawsuit, and explained to her what a complaint would entail. She said she understood and was prepared to endure the depositions, cross-examinations, and other attacks on her. But the next day she came to my office and told me she couldn�
�t go through with it. She was terrified that it would destroy her prospects for an academic appointment to take on so influential and powerful an academic. But she was also afraid that if she did nothing, he would carry out his threat to write her a bad recommendation.

  I suggested that she talk to the professor and tell him that she had consulted with me, but had decided not to file a complaint or lawsuit, and that she hoped that he would give her the recommendation she deserved. She did that, and eventually received a superb recommendation. She is now teaching at a fine university. So is he.

  The students in my class never followed through on their threat.

  SOME PEOPLE LIE, EXAGGERATE, OR MISREMEMBER

  I continue to challenge my students by teaching both about rape cases in which guilty rapists are wrongly acquitted and cases in which innocent people have been falsely accused. The reality that rape is among the most underreported of serious crimes, and that many rapists still go free and repeat their crimes, should not blind us to the equally important reality that rape is also among the most falsely reported of crimes. I teach that when it comes to the serious crime of rape, it appears that both men and women lie, exaggerate, or misremember more often than with other, less emotionally charged, crimes. I learned this early in my career, from an alleged rape that took place in Provincetown, Massachusetts.

  A young woman who was related to an associate of one of my legal colleagues was engaged to a man, and they were vacationing together in Provincetown. The man went out for a stroll and came back several hours later upset and disheveled. His fiancée asked him what had happened, and he told her that he was invited to go on a boat ride with a group of guys and one of them proceeded to rape him while the others did nothing to stop him. He described the rapist as a black man wearing a shark’s tooth around his neck. At his fiancée’s insistence, he reported the alleged rape to the police, who immediately issued an all-points bulletin describing the alleged rapist.

  The young man’s fiancée called my colleague and asked her to advise him. She sought my assistance. We went to the police station, where we observed the police interrogation of the young man. As experienced defense attorneys, we soon became suspicious of his story.

  My colleague asked to be alone with her client and questioned him about the circumstances of the encounter. Eventually the young man broke down and admitted that he had consented to the sex. He confided to her that he was uncertain about his sexuality, that he was about to be married, and that he wanted to test his attraction to men. He was ashamed of what he had done and didn’t want his fiancée to find out, because he was afraid it would end the engagement. My colleague told the young man he had a moral obligation to his fiancée and a legal obligation to the police to be truthful.

  At first, the young man refused. After conferring with me, my colleague told him he really had no choice, because she would be obligated to report his continuing crime of making a false report—a crime that endangered the life and liberty of anyone fitting the description of the black man with the shark’s tooth. (The young man hadn’t wanted to get the man with whom he’d had consensual sex in trouble, so he’d invoked the stereotype of the “black man” rapist.) My colleague told him that she would try to make a deal with the police under which he wouldn’t be charged with a crime in exchange for telling the truth.

  The young man then told the police and his fiancée the truth. The police called off the all-points bulletin, and my colleague persuaded them not to press charges against the young man. I do not know how the engagement worked out, but I do know that I learned a great deal from this experience about the complexities of sexual encounters, and the need to subject claims of rape to the usual probing of the adversarial process.

  Moreover, acquaintance or date rape is an area in which differing perceptions may produce inadvertently false testimony about actions that may well fall into the gray area between aggressive seduction and criminal sexual assault. When it comes to sexual encounters, both men and women often “remember” differently from what a videotape would show. As a British journalist, Angela Lambert, who analyzed several cases of falsely reported rapes, put it: There are “plenty of reasons why a woman might falsely accuse a man of rape.” She went on to argue that “the belief that all women are truthful and all men are rapists does not prove us good feminists; quite the contrary. It reveals us as prejudiced, narrow-minded, and as bigoted as any racist.”35 The truth-testing mechanisms of our criminal justice system must not be compromised in the service of some politically correct notion that when it comes to rape only women tell the truth.

  A highly publicized case in 2011 may well illustrate the reality that both men and women may lie, even when a rape has occurred. A cleaning woman in a fancy New York hotel accused Dominique Strauss-Kahn—then the head of the International Monetary Fund—of forcing her to have oral sex with him.36 His lawyers first reportedly denied that there had been any encounter, claiming that he was having lunch with his daughter at the time.37 When his DNA evidence was found on the cleaning woman’s underwear and in the area of the room where she said he had ejaculated, his lawyers admitted the oral sex but insisted it was entirely consensual.38 DSK, as he was known throughout the world, was indicted for sexual assault.39

  Within days, the credibility of the alleged victim began to fall apart. She had made false statements on her application for asylum, including a claim that she had been gang-raped back in Guinea. A recorded phone conversation between her and a friend in prison also suggested, though her words (translated from a local African jargon) were ambiguous, that she may have had a financial interest in suing the wealthy man who she said assaulted her.40

  Eventually, the Manhattan district attorney decided to drop the charges.41 I thought that this was a perfect teaching vehicle, and I invited the lawyer for the alleged victim to join my Harvard class, to which I had assigned the DA’s memorandum seeking dismissal. The following year I invited DSK’s lawyer to present his perspective to the students. They were spirited classes, after which several students told me they had changed their minds—both ways. One student described the class as “Rashomon—first, I thought he was guilty, then not guilty, then guilty, and finally ‘I’m not sure.’ ” I pressed the students on what the appropriate standard should be for a DA to drop a rape prosecution when he has doubts about the alleged victim’s credibility. Some argued that as long as he believed the crime had occurred, he should let the jury decide, based on all the evidence, including the DNA and other circumstantial proof. Others argued that he should never bring a prosecution unless he has complete faith that the alleged victim is being truthful.

  To put some flesh on the bones of these abstract arguments, I decided to role-play in front of the class a zealous prosecutor’s hypothetical closing argument:

  The alleged victim in this case says she was forced by DSK to give him oral sex. DSK’s defense counsel have argued in the press, and in their briefs and in their opening statements, that the oral sex was entirely consensual.

  In deciding which version is true and which false, I want you to accept the fact that the alleged victim has told many lies in the past and can’t be completely trusted. In other words, if there were no other evidence or arguments beyond the uncorroborated word of the victim, there would be reasonable doubt of DSK’s guilt. But the totality of the evidence and arguments in this case establish that it is far more likely that the oral sex in this case was forced rather than consensual.

  First, I want you to look at the participants. She is an attractive young woman who was wearing two pair of panty hose and an additional undergarment. The defendant’s DNA was found on the elastic of her undergarments, strongly suggesting that he was trying to pull them off.

  You have seen the photograph taken of the defendant, naked, following his arrest, when he was examined by doctors for bruises. Look at that photograph and imagine what the alleged victim in this case saw, when DSK walked out of the shower and into the bedroom naked, as his lawyers acknowle
dge he did.

  In order to accept the defense theory of consensual oral sex, this is what you have to believe:

  The alleged victim looked at this overweight, out-of-shape, sixty-two-year-old man and decided, without any words spoken, that she was so sexually attracted to him, that she simply had to give him seven minutes of oral gratification in the corner of the bedroom. What was in it for her? According to the defense theory, only the pleasure of giving a short, fat, old man oral sex.

  That, in essence, is the defense lawyers’ version of what took place. Now, we all know that the burden of proof is on the prosecution to prove our case beyond a reasonable doubt, and that the defendant need not take the witness stand nor offer any proof of innocence. But in this case, the defendant, because he is a public figure, has put forward a defense: that she wanted to give him oral sex, that it was entirely consensual. If you believe that—or even if you have a reasonable belief that she might have offered him oral sex because she was so attracted to him—you should acquit. But if you believe, beyond a reasonable doubt, that the defense theory of consensual oral sex is utterly implausible, then you should look at the totality of the evidence corroborating the alleged victim’s account—that he forced her to give him oral sex—and decide whether it establishes beyond a reasonable doubt that her account is true.

  This corroborative evidence includes the location of the DNA in the room and on her undergarments; the shoulder pain she reported to the doctors; the time sequence; the absence of evidence that she knew who DSK was at the time of the encounter; and a comparison between the two participants, in terms of their ages, appearances, status, and what each had to gain or lose by a consensual sexual encounter in that room.