14 I wrote about this case in far more detail in Alan M. Dershowitz, The Best Defense, chapter 2 (1983).
15 Virtually every standard criminal law casebook discusses the case. See, e.g., Sanford H. Kadish, Stephen J. Schulhofer, and Carol Steiker, Criminal Law and Its Processes: Cases and Materials 587 (8th ed., 2007); Wayne R. LaFave, Modern Criminal Law: Cases, Comments and Questions 296 (3d ed., 2000); Russell L. Weaver, Leslie W. Abramson, and John M. Burkoff, Criminal Law: Cases, Comments, and Questions 249 (3d ed., 2008); John Kaplan, Robert Weisberg, and Guyora Binder, Criminal Law: Cases and Materials 678 (5th ed., 2004).
16 Genesis 22:1–12. For my interpretation of this story, see Alan M. Dershowitz, The Genesis of Justice, chapter 6 (2001).
17 State v. Eldridge, 951 S.W.2d 775 (Tenn. Crim. App. 1997).
18 Twilight Zone: The Movie (Warner Bros., 1983).
19 The Twilight Zone (CBS, 1959–1964).
20 First Segment (“Time Out”).
21 See, e.g., Paul Feldman, “John Landis Not Guilty in 3 ‘Twilight Zone’ Deaths: Jury Also Exonerate Four Others,” Los Angeles Times, May 29, 1987.
22 The Crow (Miramax, 1994).
23 The Game of Death (Golden Harvest, 1972).
24 See, e.g., Terry Pristin, “Brandon Lee’s Mother Claims Negligence Caused His Death,” Los Angeles Times, August 11, 1993.
25 18 Pa. Cons. Stat. Ann. § 314 (West).
26 Id.
27 M’Naughten Case UKHL J16 (June 19, 1843).
28 Com. v. duPont, 1999 PA Super 88, 730 A. 2d 970 (Pa. Super. Ct. 1999).
29 Jeré Longman, John E. du Pont, Heir Who Killed an Olympian, Dies at 72, New York Times, December 9. 2010.
30 I have written critically about its occasional misuse. See Alan M. Dershowitz, The Abuse Excuse (1993).
31 Rubin v. State, 325 Md. 552, 555, 602 A.2d 677, 678 (1992).
32 Rubin v. Gee, 292 F.3d 396, 398 (4th Cir. 2002). Another murder-abuse case that I was involved in and that was eventually overturned was DeLuca v. Lord, 77 F.3d 578 (1996).
Chapter 18
The Changing Politics of Rape
1 One critic summed up the resulting injustice in a poignant headline: Martha Weinman Lear, “Q. If You Rape a Woman and Steal Her TV, What Can They Get You For in New York? A. Stealing Her TV,” New York Times, January 30, 1972.
2 Blackstone articulated this so-called unity of person principle in his Commentaries: “The very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and [cover] she performs everything.” William Blackstone, 1 Commentaries on the Laws of England 430 (1765).
For a history of the marital immunity doctrine, see Jill Elaine Hasday, “Contest and Consent: A Legal History of Marital Rape,” 88 Cal L. Rev. 1373, 1392–406 (2000).
3 In his legal treatise The History of the Pleas of the Crown, Sir Matthew Hale reasoned that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Matthew Hale, 1 Historia Placitorum Coronae: The History of the Pleas of the Crown 628 (1778).
4 As Harry Kelven and Hans Zeisel observed, jurors were led to believe that the rape victim assumed some risk for what they deemed her “contributory fault” and thus often acquitted the defendant. Harry Kelven and Hans Zeisel, The American Jury 249–54 (1966).
5 As New York’s highest court once put it: “Will you not more readily infer assent in the practiced Messina, in loose attire, than in the reserved and virtuous Lucretia?” People v. Abbot, 1838 WL 2949 (N.Y. Sup. Ct. 1838).
6 As one Tennessee court observed, “It would be absurd and shock all sense of truth for any man to affirm that there was not a much greater probability in favor of the proposition that a common prostitute had yielded her assent to sexual intercourse, than in the case of a virgin of uncontaminated purity; that all would readily assent to the proposition that she who follows prostitution as a trade would not be so likely to depart from her degraded habit and resist an offer for indulgence of illicit vice as would the woman of perfect purity.” 140 A.L.R. 364 (originally published in 1942).
7 Susan Estrich, “Rape,” 95 Yale Law Journal 1087, 1099 (1986). One court put it this way: “If the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had therefore been employed, it is no rape.” Reynolds v. Nebraska, 27 Neb. 90 (1889).
8 In the Talmud, one commentator suggested that some women may enjoy being raped: In Sotah 4:5, 19d, “A woman came to Rabbi Yohanan and said to him: I was raped. He said to her: And did you not enjoy it in the end? She said to him: If a man dips his finger in honey and puts it in his mouth on Yom Kippur, is it not bad for him, and yet he does enjoy it? And he accepted her argument.” Quoted in 3 The Talmud Yerushalmi and Graeco-Roman Culture 209 (Peter Schaefer, ed.) (2002).
9 Those are the kinds of cases that Susan Estrich famously called “simple rape”—where the victim knows the rapist and violence is not necessarily involved. Susan Estrich, Real Rape, supra n. 582, at 1092 (1988).
10 Deuteronomy 5:21.
11 Compare the story of a concubine who is gang-raped and subsequently cut into twelve parts by her husband (Judges 19) with the story of Dina, one of the matriarchs of the Israelites, whose rape was avenged by her brothers (Gen. 34). For my interpretation of that story, see Alan M. Dershowitz, The Genesis of Justice, chapter 8 (2001).
12 The corollary is that if a sexual encounter is prohibited—such as between an unmarried man and a woman engaged to another—mutual consent is no defense.
13 Deuteronomy 22:29. For a general overview of the issue of rape in Jewish law, see Beth C. Miller, “A Comparison of American and Jewish Legal Views on Rape,” 5 Columbia Journal of Gender and Law 182 (1996).
14 Alan M. Dershowitz, The Genesis of Justice 157 (2001).
15 See Susanne Scholz, “Religion,” in Encyclopedia of Rape 206–9 (Merril D. Smith, ed.) (2004).
16 Matthew Hale, 1 Historia Placitorum Coronae 635 (1778).
17 John Wigmore, 3 A Treatise on the Anglo-American System of Evidence in Trial at Common Law § 924a at 736 (1970). There is no scientific basis for this sort of psychobabble.
18 See, e.g., Susan Brownmiller, Against Our Will (1975); Susan Estrich, “Rape,” 95 Yale Law Journal 1087 (1986).
19 Three states—New York, Ohio, and Texas—still impose the corroboration requirement for certain sexual offenses. N.Y. Penal Law § 130.16 (McKinney); Ohio Rev. Code Ann. § 2907.06 (West); Tx Crim Pro, Art. 38.07. For a discussion of the legacy of the corroboration requirement, as well as other rules that made successful rape prosecutions so difficult, see Michelle J. Anderson, “Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault,” 84 Boston University Law Review 945, 968–69 (2004).
20 For a current list of such statutes, see http://www.ndaa.org/pdf/NCPCA%20Rape%20Shield%202011.pdf.
21 There are spousal rape laws in all states and in Washington, D.C. New York is the only state that still has a complete marital exemption on the books, but the court of appeals declared this exemption unconstitutional, finding “no rational basis for distinguishing between marital and nonmarital rape.” People v. Liberta, 64 N.Y.2d 152, 163 (1984).
22 A few states still have resistance requirements written into their criminal codes. See Michelle J. Anderson, “Reviving Resistance in Rape Law,” 1998 University of Illinois Law Review 953, 954 n.12 (1998). Some scholars observe that, despite this legislative change, some courts still inquire about the victim’s resistance to establish nonconsent. Susan Estrich, “Rape,” 95 Yale Law Journal 1123–24 (1986).
23 Catherine MacKinnon, “Palm Beach Hanging,” New York Times, December 15, 1991
24 Catherine MacKinnon, Professing Feminism (Daphne Pat
ai and Noretta Koertge, eds.) 129 (1994). (“In a patriarchal society all heterosexual intercourse is rape because women, as a group, are not strong enough to give meaningful consent.”) Andrea Dworkin, Intercourse 154 (1997).
25 Andrea Dworkin, Letters from a War Zone 142 (1993). (“All men benefit from rape, because all men benefit from the fact that women are not free in this society; that women cower; that women are afraid; that women cannot assert the rights that we have, limited as those rights are, because of the ubiquitous presence of rape.”)
26 The dramatic reduction in rapes coincided with an equally dramatic increase in the easy availability of pornography, thus disproving the causation claim made by some radical feminists: that pornography causes rape. See Alan M. Dershowitz, Shouting Fire, chapter 19 (2002).
27 In re Request for Instructions from Disciplinary Counsel, 610 A.2d 115, 117 (R.I. 1992).
28 Ibid.
29 U.S. Const., amend. VI.
30 “Drop Term Date Rape, Sentencing Judge Says,” Ludington Daily News, March 28, 1992.
31 The quotations above are from the record of the case and the briefs.
32 Tyson v. State, 622 N.E.2d 457 (Ind. 1993).
33 N. Sec. Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting).
34 For a summary of these reports, see Stuart Taylor and K.C. Johnson, Until Proven Innocent, 373–76 (2007).
35 Angela Lambert, “No Smoke Without Fire: The Case of Rape,” Ottawa Citizen, February 16, 1992.
36 Al Baker and Steven Erlanger, “I.M.F. Chief, Apprehended at Airport, Is Accused of Sexual Attack,” New York Times, May 14, 2011.
37 “Strauss-Kahn Lawyers See Alibi in Sex Case,” Reuters, May 16, 2011.
38 William K. Rashbaum, “Strauss-Kahn May Claim Consensual Sex as Defense,” May 17, 2011.
39 John Eligon, “Strauss-Kahn Is Indicted and Will Soon Leave Jail,” New York Times, May 19, 2011.
40 Jim Dwyer, “Housekeeper’s False Tale About Gang Rape, Strauss-Kahn Case Crumbles,” New York Times, August 23, 2011.
41 John Eligon, “Strauss-Kahn Drama Ends with Short Final Scene,” New York Times, August 23, 2011.
42 See John Solomon, “Alan Dershowitz Convicts DSK,” Daily Beast, March 5, 2012.
43 Several years ago, I gathered a series of cases that seemed to be based on truthful accounts that turned out to be false. Here are some of them:
A Dedham, Massachusetts, woman accused four men of rape. Several days later the charges were dropped because the accuser recanted when approached by the district attorney with inconsistent forensic evidence along with information that she had falsely accused other men.
St. Paul, Minnesota, police determined that within one week, two reported rapes were false. In the first case, a woman reported being abducted and raped by a man who hid in her car as she gave a talk to a chemical dependency treatment group at a local high school. When police checked the story, they found that the treatment group had never heard of her and that she didn’t have a car. In the second case, a sixteen-year-old girl claimed to have been abducted at a downtown bus stop, imprisoned in a closet, and sexually assaulted by a man and his son over a thirty-three-hour period. In reality, the woman had been seen with her boyfriend several times over that thirty-three-hour period and had apparently been bruised by him. In both cases the women gave police detailed descriptions of their attackers and in both case the alleged assailants were black.
A seventeen-year-old girl from Washington State accused three twenty-year-old men of holding her down and raping her. Several days after the men were arrested, the woman recanted, saying she had made the whole thing up out of spite.
In Rhode Island, a college student reported that her former boyfriend raped her at gunpoint. She admitted that she made up the entire story after learning that the man she accused was fifteen hundred miles away at the time.
In New York, a woman who claimed she was raped at gunpoint in Central Park was arrested after it was discovered that she had filed eleven false reports of rape.
In Nebraska, a woman was required to broadcast an apology to a man she had falsely accused of raping her in order to “get the attention of her husband.”
In Great Britain, a nineteen-year-old woman from Lincolnshire accused her former boyfriend of raping her after she spent the night with a different man. A jilted nurse falsely accused her former lover of beating her and also falsely accused his best friend of raping her.
These are among the cases some radical students complained about being discussed in class. We also discussed cases in which guilty rapists were wrongly acquitted or not prosecuted.
In recent years numerous inmates serving time for rape based on eyewitness identification have been exonerated by DNA. In these cases, the rapes occurred, but the victim misidentified the rapist. Many of these cases involved black defendants misidentified by white victims. See Alan M. Dershowitz, “When Women Don’t Tell The Truth,” The Bryan Times, May 19, 1992.
44 People v. Lebovits, 94 A.D. 3d 1146, 942 N.Y.S. 2d 638 (2012).
45 Under the Model Penal Code, which many states have adopted, a man is guilty of rape if he has sexual intercourse with a woman who is not his wife and “has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance.” MPC §213.1(b).
46 I have changed some identifying features of this case, but not the essential facts, at the request of my former client.
47 Rashomon (RKO Radio Pictures, 1951).
48 Glanville Llewelyn Williams, Criminal Law, The General Part 386 (1953), attributes this statement to Judge Maule.
49 Ella Fitzgerald Sings the Jerome Kern Song Book (Verve 1963).
50 Com. v. Sherry, 386 Mass. 682, 697 (1982).
51 Com. v. Simcock, 31 Mass. App. Ct. 184, 192 (1991) (holding that defendants were not entitled to instruction on reasonable mistake).
52 I have never seen the entire film (see pp. 130–131 supra), but during the preview of a documentary about the film, I saw excerpts from it.
53 People v. Moua, No. 315972 (Fresno Super. Ct. 1985).
54 Sir Edward Coke, Systematic Arrangement of Lord Coke’s First Institute of the Laws of England (1644), Vol. III, Epilogue 574 (J. H. Thomas, ed.) (1836).
55 Antonin Scalia, “Common-Law Courts in a Civil-Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws,” in Antonin Scalia and Amy Gutmann (eds.), A Matter of Interpretation: Federal Courts and the Law 3–47 (1997).
56 Once I take a case, however, my role changes: I become a single-minded advocate for my client, whether he or she is an accused or an accuser.
Chapter 19
The Changing Impact of the Media on the Law
1 Alan M. Dershowitz, “Court TV: Are We Being Fed a Steady Diet of Tabloid Television? Yes …,” American Bar Association Journal 46 (May 1994).
2 In 2013, I argued against televising a civil trial in which Sheldon Adelson was a witness. His security consultant, a former deputy director of the U.S. Secret Service, testified that televising his testimony would constitute a security threat to him and his family. The court allowed his testimony to be televised.
3 See Larry David’s “Mister Softee” episode on Curb Your Enthusiasm, where a psychiatrist tells Larry about his celebrity patients, without disclosing the names, while identifying them by unique characteristics: e.g., “a well-known film director who directed Star Wars.” Curb Your Enthusiasm, season 8, episode 9, see http://www.hbo.com/curb-your-enthusiasm/episodes/8/79-mister-softee/synopsis.html.
4 United States v. Helmsley, 941 F.2d 71, 77 (2d Cir. 1991).
5 Ibid. 79.
6 This conversation suggests an important distinction between different types of celebrities and their relationship to the legal process.
The first type consists of individuals who were already very fam
ous before they got into trouble or before they needed my legal advice. The second are those who were not well known to the public but whose alleged crimes made them famous.
A third category would include people who were somewhat well known, but whose trial brought them considerably more fame and/or infamy.
A final category includes very famous celebrities who have hired me to keep their name and alleged wrongs out of the media. I have had several such cases, and for obvious reasons, I cannot disclose the names of these celebrity clients. Nor can I disclose the names of clients who have successfully used their celebrity to avoid the consequences of their actions.
7 Wallace Markfield, You Could Live If They Let You 87 (1974).
8 The President told a joke that wasn’t particularly funny. My family has very high standards of humor, so we didn’t laugh. The President, apparently thinking we didn’t hear or get the punch line, repeated it. This time, we laughed—a bit. When the dessert was brought, the waiter put a large chocolate bombe in front of the President. My son thought it was large enough to be shared by the table and so he raised his spoon to take a piece. The President stared him down, saying with his eyes, “That’s all mine!” Elon dropped the spoon and the President consumed the entire bombe. (Today, Bill Clinton is a vegan—no more bombes for him!)
9 Maureen Dowd, “Maladroit Du Siegneur,” New York Times, September 30, 1998. (“He would be laughed out of any locker room in the country.”)
10 Prior to the Lewinsky matter becoming public, there were widespread reports that the President limited his extramarital sex to oral gratification since he believed that it did not constitute biblical adultery and it gave him verbal deniability regarding sexual relations. This history actually strengthens his legal claim that he did not commit perjury when he denied having what he regarded as sexual relations with Lewinsky. A twenty-eight-year-old waitress was quoted by Newsweek as saying that as Clinton continues to define sex more and more narrowly, she begins to think of herself as a virgin! Quoted in Alan M. Dershowitz, Sexual McCarthyism 269 (1998).
Taking the Stand Page 67
