When you consider the totality of the evidence and arguments offered in this case, I am confident that you will have no reasonable doubt that the oral sex in this case was not consensual.42
After hearing my “mock” argument, many of the students concluded that the DA acted hastily in dismissing the case. Most believed that this was a case in which both the woman and the man had lied, but that the man’s lies were far more relevant than the woman’s to the issue of consent.
It is possible, of course, that there was a third alternative: that DSK paid the alleged victim to give him oral sex. But there was no claim or evidence of any such payment—indeed DSK has publicly stated that he doesn’t believe in paying for sex. And although the defense has no obligations to prove anything, a jury and prosecutors are supposed to base their decisions on evidence, not surmise. It is also possible, as DSK’s lawyer suggested to the class, that the alleged victim willingly gave him oral sex in the expectation that he would pay her, and when he didn’t, she decided to file a complaint so that he would be compelled to settle the matter financially, as he eventually did. This too is possible, but there is nothing but surmise—no evidence—to support this theory of a disappointed expectation of payment, or of an extortionate motive.
By any objective standard, the case against DSK was far stronger than the case against Mike Tyson, since there was far more corroborative evidence. Moreover, Tyson’s alleged victim was caught in a series of lies that challenged her account of the alleged rape and her motive for bringing the charge.
Yet Tyson was convicted, and the case against DSK was dropped. Such are the vagaries of rape prosecutions, in which objective truth can rarely be established,43 as evidenced by several other cases I have litigated or consulted on over the years.
RAPE AND EXTORTION
Rape is a crime that, because it is so heinous, sometimes lends itself to extortion. I’ve been involved in several cases over the course of my career in which my clients have been threatened with being falsely accused of rape unless they pay large amounts of money. In one such case, on which I consulted, the FBI managed to record the extortionate call, and the woman who made it went to prison. In another case, the man refused to pay the money and the extortionist didn’t carry out the threat. In yet another case, the man paid the money and the extortionist kept her word to remain silent.
It is possible, of course, for a guilty rapist to be extorted. This is what the Brooklyn district attorney’s office claims occurred in a case that took place in Boro Park, the neighborhood in which I grew up. That’s why he prosecuted both the accused extortionist and the accused rapist.
My client was an elderly Chassidic man with a wealthy son. A twenty-something man accused him of having improperly touched him years earlier, just before his seventeenth birthday (seventeen being the age of consent in New York). The accuser was a heavy drug addict who paid for his expensive habit by breaking into synagogues and stealing money from charity boxes. He also, according to acquaintances, received drug money from clients in exchange for sex. The young man claimed that my client had allowed him to drive his car and had engaged in oral sex with him on several occasions. A jury believed him and a judge sentenced the defendant to up to thirty-four years in prison—for him a life sentence.
The defendant’s son asked me to prepare and argue his appeal. He told me that before the trial, he had been approached by another Chassid who told him he could make the case “go away for several hundred thousand dollars.” He also played us a tape, surreptitiously recorded by an acquaintance of the alleged victim, in which the alleged victim admitted that the only reason the defendant was in prison was because he wouldn’t pay the money. I agreed to investigate the matter and argue the appeal.
We uncovered a massive extortion mechanism that exploited the sad reality of sexual abuse among some Chassidim. As with other religious (and secular) groups, there was pressure within the community not to “wash our dirty laundry in public” by reporting sexual abuse to law enforcement authorities. Knowing of this dual phenomenon—abuse, coupled with pressure to keep it secret from law enforcement—an extortion industry developed, focusing on respected Chassidim who were vulnerable to accusations of sexual misconduct and who had the resources to pay hush money.
We provided the results of our investigation to the prosecutor, and a grand jury indicted two of the alleged extortionists. Nevertheless, the prosecutor insisted that my client—the victim of the extortion—was guilty, despite the fact that his accuser was apparently part of the extortion plot and was offered money to testify against my client, and despite the fact that our investigation established that the “victim” was not even in Boro Park when the events about which he testified allegedly occurred.
We won the appeal on the ground of police suppression of favorable evidence—including evidence of extortion.44
RAPE BY COCAINE?
Is it possible for a man to rape a woman even if he uses no force and she offers no resistance and appears to consent? The answer is yes. Under the law, the sexual partner’s consent must be freely given and not the product of drugs, alcohol, or other factors that may negate voluntary consent. This is especially so if the drug was administered to her without her knowledge.45 This is a serious problem not only when date rape drugs are slipped into an unsuspecting woman’s drink, but also when men deliberately get their dates drunk in order to lower their resistance. In the former situation the law is clear: The use of drugs to lower a woman’s defenses is not only rape; it is also a separate crime to drug a person against her will. In the case of a man plying a date with alcohol, the law is less clear: A woman is generally deemed responsible for her own decisions—to drink, to get drunk, to agree to sex. But if a man takes unfair advantage of a woman’s drunkenness, he may cross the line into rape. It’s very much a matter of degree.
Several years ago, I worked on a case raising a number of these difficult issues. My client was an accountant in a western state, who had an unsavory reputation for seducing female secretaries who worked for him.46 Seduction, of course, is not a crime, although it may constitute sexual harassment if the seducee works for the seducer. In this case, the accountant’s office was set up more for seduction than for work. It was light on books and heavy on thick, plush rugs, couches, pillows, and a fully stocked bar. On the evening at issue, a secretary who worked in the office stayed late after work and had dinner and several drinks with her boss and a few of his friends. When the other guests left, she and her boss remained behind. He walked her into his office. She lay down on the rug. He undressed her, performed oral sex on her, and then engaged in sexual intercourse. She did not object, and she appeared to be consenting—as others had apparently done in that office.
During the sexual encounter he asked her if she was using birth control. She said no, and as a result, he did not ejaculate in her. Afterward, she dressed, he walked her to the parking lot, kissed her, and she drove home.
The problem was that she was married. When she got home, her husband sensed that something was amiss. After he pressed her, she acknowledged having sex with her boss and said she must have been “drugged.” They went to the police, claiming that her boss had given her a “Mickey,” which had denied her the ability to object. She told the police that she couldn’t say no even though she didn’t want to have sex. (She did, however, say no when her alleged rapist asked her if she was on birth control.) She also told the police, and subsequently testified before the grand jury, that she had taken no cocaine prior to the night at issue. When a test turned up positive for cocaine the police believed that the drug she had been given on that night was cocaine.
The police decided to outfit the woman with a wire and have her try to get her boss to admit that he had used cocaine to seduce her—that is, to rape her. The wired conversation consisted mostly of the accountant bantering with the secretary while trying to persuade her to continue to have a relationship with him. She repeatedly asked him whether he had given her cocaine, and h
e said no.
The accountant was prosecuted for rape. The case was essentially a “he said, she suspected” contest, and there was some forensic evidence—the cocaine in her system—to corroborate her suspicions. But the value of the forensic evidence depended entirely on whether she was telling the truth about not having used cocaine prior to the alleged rape. If she had used cocaine in the days or weeks prior to the sexual encounter, then the test would not establish that her boss had given her the drug.
We came up with the idea of testing her hair for traces of cocaine residue. Based on previous research, I knew that the past use of cocaine could be determined by a test of the hair. Indeed, the location of the cocaine residue in the hair could establish the approximate time frame of the cocaine use if the hair was long enough, since hair grows at a fairly consistent rate. The secretary had long hair.
Accordingly, we subpoenaed her hair samples. Immediately upon receiving the subpoena, she rushed to the nearest barbershop—that cut men’s hair—and got a very short haircut, leaving an insufficient amount of hair to be tested. We tried, unsuccessfully, to find the barbershop and collect her hair. But her efforts to destroy the evidence upon receiving the subpoena suggested that she had not been truthful about her cocaine use.
In the end, the jury, after hearing the evidence, concluded that there was a reasonable doubt about whether the accountant had placed cocaine in her drink, or whether she alone was responsible for her decision to drink alcohol and then engage in relatively consensual sex with her boss.
The acquittal certainly did not signify approval of the accountant’s behavior. But in a courtroom, proof of rape, like proof in every other serious crime, must be beyond a reasonable doubt. And in the event of there being reasonable doubt, the case must be resolved in favor of the defendant, regardless of what the jurors might think of the aleged perpetrator’s morality.
RASHOMON RAPE CASES
In the great Japanese film Rashomon,47 a horrible crime is presented through the very different perspectives of several participants. In some rape cases, a similar Rashomon scenario is sometimes at work. In the Mike Tyson case, for example, it is possible (though unlikely in my view) that Desiree Washington did not intend to consent to sex but that Mike Tyson reasonably believed—based on her groupie-like actions and statements—that she did. What should the law be in such situations?
Under American law, if a person makes a reasonable mistake of fact which leads to the commission of a crime, he is generally not guilty. For example, if a person walking down the street sees another person coming at him with a gun about to pull the trigger, and he shoots first and kills his assailant, he is not guilty, even if the “assailant” turns out to be an actor in a movie holding a gun that shoots blanks. Since the defendant reasonably, though mistakenly, believed that his life was in danger, his reasonable mistake of fact constitutes a defense to a murder charge. A crime requires both a criminal act and a criminal intent, and if the defendant reasonably believes that facts, as he saw them, made what he was doing permissible under the law, then he does not have a guilty mind. A mistake about law, on the other hand, is not a defense, since everybody is presumed to know the law. (This led an English wag to comment that “everybody is presumed to know the law except His Majesty’s judges, who have a Court of Appeal set over them to put them right.”)48
In recent years, however, there has been a movement to deny defendants in rape cases the right to raise the defense of reasonable mistake of fact, especially when it comes to whether the woman consented. No means no, and no man should be allowed to believe that no might mean yes or even maybe.
The law is correct in demanding that a man understand no to mean no. He may subjectively believe that no means maybe when it comes to him, but such a belief should be deemed unreasonable as a matter of law. In some situations, however, the woman does not say no. Nor does she say yes. Nor does she even say maybe. (There was a song made famous by Ella Fitzgerald entitled “She Didn’t Say Yes”: “She didn’t say yes, she didn’t say no./She didn’t say stay, she didn’t say go.”)49 In real life, women (and men) often convey their intentions via ambiguous cues. In such situations, it is morally wrong, in my view, for a man to assume consent, but it may also be legally wrong for the law to consider it rape to engage in such immoral behavior. There are clearly gray areas in which the man ought to resolve doubts in favor of not acting, and where the law ought to resolve doubts in favor of not convicting.
I have represented several clients who fit this situation. One such case was a highly publicized prosecution of three prominent doctors at one of Boston’s leading hospitals.
One of the doctors had a party at his house for some of the hospital staff. During the party, a nurse danced with several of the doctors, and two of them “fooled around” with her in the bathroom. As the party was ending, the three doctors invited the nurse to join them for a drive to Rockport, where one of the doctors had a vacation home. She went along with them because, in her words, she thought they were just “horsing around.”
When they arrived at the Rockport home, two of the doctors smoked marijuana and began to disrobe. The nurse testified that she protested and told them to stop when the doctors began to undress her. Each of the defendants had sex with the nurse in the bedroom. She said that she felt numbed and could not resist.
Sometime later, they drove back to Boston and stopped to view the beach, to have breakfast, and fill the car up with gasoline. One of the doctors gave the nurse his card and said he would be interested in hooking up with her again.
The defendants each testified that the sexual intercourse was consensual, that the nurse never said no, that it was she who took her dress off and that she appeared at all times to be a willing participant.
The issue in the case was what the jury should do if they believed that both the nurse and the doctors were truthfully recounting their perceptions—that is, if they thought that the nurse did not want to have sex with the three doctors, but that the doctors believed she was a willing participant.
In the trial against the doctors, the jury convicted the defendants, and the judge sentenced them to six months’ imprisonment; the leniency of the sentence suggests that he had some doubts about the sufficiency of the case. I was asked to consult on the appeal. I accepted the assignment because I wanted to preserve the mistake-of-fact defense in the face of efforts to abolish it in rape cases.
Unfortunately for these defendants, their trial lawyers had not appropriately raised the issue of reasonable mistake of fact. They asked for an instruction that might have invited the jury to acquit even if the mistake had been unreasonable—that is, even if the doctors believed that no meant yes. The appellate court ruled, therefore, “We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable mistake of fact. We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness.”50 The conviction, therefore, was affirmed.
In a subsequent case, in which I was not involved, a Massachusetts appeals court ruled that even a reasonable mistake of fact is not a defense when it comes to consent or lack of consent in the context of a rape prosecution.51
To me, this decision, disallowing even the most reasonable mistakes of fact in rape cases, opens up the possibility of some very unjust results. To illustrate this, let’s go back to the filming of the movie Deep Throat.
Harry Reems had sex on camera with Linda Lovelace. Anyone watching the film52 can see that she is consenting, both verbally and by her unambiguous actions. But according to a book she wrote, her apparent consent wasn’t real; she was compelled to pretend she was consenting, by her husband’s threats to kill her unless she went forward with her role. Under the extreme view expressed by some radical feminists and accepted by the Massachusetts appeals court, Reems could be guilty of rape, even though she
said yes and his mistake of fact about her consent was entirely reasonable.
Or consider the following case53 that I discuss in class. Among the group of American in California who come from the Hmong tribes in the mountains of Cambodia there is a traditional wedding ceremony for arranged marriages. The groom is supposed to go to the home of the bride, where the father of the bride greets him at the door. The groom pushes the father aside, finds the bride, and carries her, screaming and yelling, from her parents’ abode. He is supposed to act like a warrior, and she is supposed to act like a virgin who wants to retain her status. It’s all playacting, and part of the traditional wedding ceremony. In the case I teach, the young woman didn’t actually want to go through with the marriage, and her resistance was not playacting; it was real. But there was no reason for the groom to know this. He took the bride home to his house, and over her “resistance,” which he believed was feigned, he consummated the arranged marriage. She then ran away and reported the rape to the police, who arrested the young man. I ask my students how a case like this should be decided.
The class is generally divided. Some argue that no always means no, even in the context of a traditional marriage ritual in which no is supposed to mean yes. Others argue that it would be unfair to impose our values on a minority that has its own culture and traditions.
THE HEAVY COST OF CHANGING THE LAW—AND THE EVEN HEAVIER COST OF NOT CHANGING IT
A motto that hangs on many courthouses reads: “The known certainty of law is the safety of all.”54 But for the law to be absolutely certain, it must remain static, and static law quickly becomes anachronistic. Law is always changing to adapt to current realities. Even constitutional originalists, like Justice Scalia, who believe that the Constitution means today what it meant when it was enacted, acknowledge the need for statutory and common law change.55 No legal concept has changed more fundamentally during my career than the law of rape. This change has produced much good, not only for the victims of that horrible crime, and all women, but for our legal system in general. No should mean no, and a maybe should not be taken as yes. The changes in the laws of rape are an example of how empowering a previously disempowered group—in this case, women—can bring about improvements in the law, in policy, and in attitudes. But there are always costs attached to legal change, especially during the period of transition, when changes in the law may run ahead of changes in attitude.
Taking the Stand Page 45
