On Jury Nullification and Rape

I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution. ~ Thomas Jefferson


With the possible exception of the sexual molestation of a child, rape is a crime that evokes the most visceral of responses from the average person. And for good reason. Sex that is physically forced or obtained by threat of harm sadistically reduces victims to their most helpless state, and leaves lingering damage that may well last the remainder of the victim’s life. It is fitting then, that we seek to justly punish those guilty of the crime, but also that we proceed with caution and diligence, ever observing the rule of law in the process. That rule of law is integral to maintaining order; to preventing justice from being circumvented by political motives or mob rule; to ensure, as should be ensured in a just society, that the rights of the accused are protected with vigor and transparency.

Regardless of the personal repugnance we may feel for any crime, including rape, we must remember that without an overarching concern for justice, laws invariably become nothing more than the instruments of tyranny.

Unfortunately, where it concerns the crime of rape, that tyranny has been upon us for quite some time. With the epidemic of false rape reports, poor and sometimes corrupt police work, prosecutors blind with power and ambition, and an unconscionable but successful feminist campaign to define rape in the most ludicrous terms possible, we have created a monstrous system of abject injustice, with rights of the accused routinely ground to dust in the name of convictions, and to our national disgrace, in the name of sexual politics.

Whereas feminists lament what they call a rape culture in today’s society, we actually live in a false rape culture, and it is in growth mode.

It seems every day there is a news story about a man freed from prison after being falsely convicted. Just recently, two Texas men were released from prison who had been falsely convicted of rape in separate incidents. One had served 27 years, the other 19.

That’s two men, at the same time, not just from the same state, but from the same city.

Both men were from Houston, and their stories are being repeated around the country, revealing a somber reality that continues unimpeded.

There are a lot of innocent men in prison for the crime of rape. And much worse, our capacity to identify and exonerate them is overwhelmingly exceeded by an unjust legal system that continues to put them there.

The Innocence Project, which seeks to free individuals falsely convicted and incarcerated has overwhelmingly had the most success with the crime of rape. In a review of the 251 cases in which they have succeeded in freeing innocent men, nearly all of them were for sex crimes, and their average length of incarceration was 17 years. Most of those were freed only because they were lucky enough to have DNA evidence that could be evaluated. Many others are not so fortunate.

While the laudable efforts to free the innocent must continue, it is clearly time to seek to understand how we got to such rampant injustice, and what we can do about it. And that begins with a candid examination of what happens in a rape prosecution, from beginning to end.

It all starts with a police report; a compliant filed by a private citizen alleging that a rape has occurred.

And that is where we encounter the first of many problems. As the facts would have it, the chances of a rape accusation being true are barely more predicable than the toss of a coin.

Former Colorado prosecutor Craig Silverman once opined, “For sixteen years I was a kick ass prosecutor who made the most of my reputation [by] vigorously prosecuting rapists. I was amazed to see all the false rape allegations made to the Denver Police Department. A command officer in the Denver Police Sex Assault Unity recently told me he put the false rape numbers at approximately 45%.”

Silverman’s experience is not isolated.

Just recently the Orlando Police Department made the public proclamation that false rape allegations have become an epidemic. Last June the Baltimore Sun reported that police claimed that more than 30% of rape accusations were deemed unfounded. Louisville and Pittsburgh reported similar numbers.

A longitudinal study conducted by Professor Eugene Kanin concluded that over a period of nine years, 41% of rape allegations studied were fraudulent, concocted by the alleged victim to either create an alibi, seek attention and sympathy, or to seek revenge.

And there is the McDowell Study cited by Warren Farrell in The Myth of Male Power, which concluded that of 1,218 reported rapes on Air Force Bases around the world, 45% were discovered to be fraudulent.

This 45% of cases are not ones that could not be proven or for which a suspect could not be apprehended, but cases that were proven to be fabricated by the person filing the complaint. 27% of the false claims were admitted after the accusers were asked to take a polygraph test, or having just failed one.

Keep in mind though, that these are good results. All these false claims were discovered by diligent investigators who were seeking the truth. But what happens when police are not so careful?

33 year old William McCaffery spent four years in a New York prison because a false rape claim from Biurny Perguero Gonzalez, who alleged McCaffery had raped her after she accepted a ride from him when she was intoxicated.

The truth was that her acceptance of the ride from McCaffery had angered her girlfriends, and she made up the rape story to turn their harsh feelings into sympathy.

When questioned about the events, McCaffery cast blame at the officials, including “the arresting officers, the prosecution.”

Everyone, he said, “wanted to believe the lie. The ADA (assistant district attorney) first and foremost.”

And that is the status quo. While arrests for making false allegations appear to be on the increase, the norm has been to treat the criminality of the reports as a mental health issue. Crystal Gayle Mangum, the notorious liar in the Duke Rape Case, was referred to counseling, as was Danmell Ndonye, the woman who falsely accused five men in the Hofstra Case of gang raping her in a men’s room at a school dorm.

The police themselves add to the problem. In the Orlando, Florida story, the NBC News affiliate reported statements by police saying that they do not want to arrest these women. In fact, they only seemed to notice the problem when it got so out of hand that it was causing a stress on resources within the police department. They also noted the deleterious effect on the “real victims” of rape, but did not utter a word about the men at risk for being wrongly placed behind bars as a result of the allegations.

This type of police complicity in the false rape culture, by ignoring and enabling this criminal activity, is a cornerstone in the current crisis. And while they now publicly bemoan the false allegations, they show no signs of recognizing that the epidemic they face is partly of their own making; that it is, quite literally, the chickens coming home to roost.

And where the police leave off, the prosecutors go into overdrive.

Mike Nifong, the supposedly “rogue” prosecutor who pursued the Duke rape suspects long after there was abundant evidence to exonerate them, has become the poster boy for false rape culture.

Nifong, while getting massive amounts of coverage from the media, was hardly the exception, and not even the most extreme. Mary N. Kellett, a prosecutor in Bar Harbor Maine, is making a career of rape cases. She is averaging one indictment a week, from a population of less than 60,000.

Her most notable case so far has been against Vladek Filler, who was convicted of raping his wife, with no forensic evidence, and only her word that the rape occurred. The conviction was overturned due to prosecutorial misconduct and Kellett is appealing the case to the Maine Supreme Court.

The chronology of this story is lengthy and the details somewhat complicated, but have a look, and a good listen, to the following recording of police interaction with Filler’s wife.

This is what passes for a credible complainant in a modern rape case. This is the compelling reason to put a man behind bars. Kellett is clearly a prosecutor out of control, but she is nonetheless still serving as an Assistant District Attorney, and rumor has it she has ambitions to run for the District Attorney when her boss retires.

The Innocence Project gives a detailed breakdown of the factors that play into bad convictions, both from police and prosecutors. Key factors range from coercion of defendants, to knowing use of false testimony (suborning perjury) and a host of other unscrupulous tactics.

Here first, is the breakdown for police actions, representing nearly half of the first 74 people exonerated by The Innocence Project.

And now the breakdown for prosecutorial misconduct on the same group.

In light of what is going on in our legal system, Kellett is no more a “rogue” than Mike Nifong.

It is the system that is rogue; Kellett and Nifong were/are just an unusually visible parts of it.

Even given the rampancy of false allegations and misconduct by law enforcement and prosecutors, this is still not justification for looking the other way when a crime is committed. Liars, whether shedding fake tears or wearing uniforms or arguing before a jury, cannot be allowed to so subvert justice that we abandon the law itself. For it is the law, when justly and rightly applied, that gives us the checks and balances to overcome those who abuse the system.

Enter, however, Rape Shield Laws; the final nail in the coffin that holds the remains of our presumed innocence and right to a fair trial.

Ostensibly, rape shield laws were enacted to limit a defendants ability to cross examine a plaintiff regarding her past sexual conduct, the logic being that such information is not only irrelevant, but might prejudice jurors. For instance, if it were brought out that a married woman alleging rape had engaged in extramarital affairs, it might cause a bias in some jurors that strongly disapprove of such behavior and prompt them to acquit her alleged assailant.

It would seem reasonable, until you go back and review the information provided by The Innocence Project and consider what this type of system does with these kinds of laws.

In 1998, Oliver Jovanovic was convicted and sentenced to 15 years to life for kidnapping, sexual abuse and assault. It was alleged that he held 20 year old Jamie Rzucek in his apartment against her will for 20 hours while he brutalized her with sadomasochistic torture. Rzucek testified against him for six days in court.

During the trial, the judge, under the rape shield statutes, refused to allow email communications that she sent to Jovanovic after the incident, among other evidence.

Later an appeals court found that the judge had misapplied the laws and the conviction was overturned, but only after Jovanovich had served 20 months in prison, during which he was attacked and injured by another inmate.

The email from the woman that was excluded? In it, she described herself as “quite bruised mentally and physically, but never so happy to be alive.” And in another communication, she said, “the taste was so overpoweringly delicious, and at the same time, quite nauseating.”

It was also revealed that in the early part of the relationship the woman had expressed an interest in snuff films (films where actors are actually killed or death is simulated in a fashion as to appear real, for sexual stimulation).

Despite the conviction being overturned, and the prosecutor, Linda Fairnsteen, knowing about the exculpatory evidence, she still wanted to charge and retry Jovanovic. It was only when Rzucek, having to face the certainty of questions about her emails, refused to testify a second time that the case collapsed and was dismissed with prejudice.

In 2004, Jovanovic sued the city of New York, seeking $10 million for damage to his life and reputation, also asserting that the prosecution had prior knowledge of other false rape allegations made by the woman. An attempt by the city to have the case dismissed was denied by a federal judge.

A case grabbing even more headlines was that of Marv Albert, a formerly legendary sportscaster who pled guilty to assault stemming from an allegation made by his then girlfriend, Vanessa Perhatch. In a story that put Alpert’s admittedly unusual sexual proclivities in living rooms across the world, he was accused of sadistically biting Perhatch during a sexual assault.

Withheld from evidence by rape shield laws was Perhatch’s history of aggressive and vindictive actions against men who left her (Albert was about to be married) and the testimony of a former boyfriend that claimed that biting was a normal part of sex play for the woman.

Under the circumstances, Albert was compelled to either plead to a lesser charge or face very severe penalties at the conclusion of a trial. He opted for the former, was completely disgraced in the public eye, and in the process became nearly unemployable.

He was last seen playing a sidekick role on the television show Marriage Ref.

There are many more of these cases that are known, and undoubtedly many more that will never see the light of day. They are part an parcel to a system gone woefully astray, even if the original intent had some merit.

And there are more problems with many practices in courts during the course of a sexual assault trial. In some cases, the court will erect a partition; a screen that separates the alleged victim from the defendant, the logic being that the sight of the him will cause traumatic stress.

It has the prejudicial power of putting a sniper in the room with a gun trained on the defendant in case he decides to jump up and rape the plaintiff during proceedings.

It is clearly the presumption of guilt, legitimized by the same court that is supposed to protect the presumption of innocence.

These are all problems in need of a solution. And solutions are not forthcoming.

It would seem clear that reforming or eliminating these laws is in order. But neither is likely to happen. Imagine the professional life expectancy of a politician that tries to address this in the legislative sense. He, or even she, would be immediately branded as pro rape by feminist academics throughout the western world, and the pro-feminist machine we call the mainstream media would assassinate their image till they could not get a job alongside Marv Alpert.

Police are not going to help. They are a fundamental part of the problem.

Prosecutors? Who, Mary Kellett?

No. This is a problem so intractable and entrenched in the culture that any attempt to address it through conventional means is certain to result in failure and vilification.

So, what do you do within the system when the system is the problem? What do you do when laws that purport to serve the cause of justice can be so easily wielded as an instrument for revenge or the next rung up on a political ladder? And when there is all but impunity for those that do so?

What do you do when courts practice tyranny and innocent men are ground to dust along with their rights?

What do you do when these concerns are dismissed out of political expedience by a system that has built, with the majority of public support, a brick wall around its own systematic malfeasance?

Extreme circumstances call for extreme measures. And there is no better example of extreme than in the way this false rape culture has run common decency and sacred rights into the ground.

One possible extreme is jury nullification. When a law or system of applying laws becomes the source of injustice, jury nullification has long been a viable option.

Nullification occurs when a jury acquits a defendant despite the weight of evidence against him. It is legal and completely moral depending on the application.

For instance, a 1930’s white jury finding a white male not guilty of murdering a black man despite a mountain of evidence that points to a conviction would be an immoral application of this principle.

But on the other hand, what would you think if a cancer patient were on trial for possession of marijuana, and you knew that drug was the only resource they had to help them tolerate their chemotherapy? Would it be immoral to ignore the law and let them go?

The law is clear. Marijuana is illegal. If they were in possession of it they were breaking the law. Should we not then send them to jail?

Now, I am not comparing an accused rapist to a cancer patient, but simply pointing to the fact that when the legal system fails to seek justice, when it is, in fact, undermining the very concept of justice, juries are equipped to put a stop to it.

Now what if you are on a jury in a rape trial, and you know that it is highly likely that evidence that may be exculpatory has been deliberately hidden from you? What if you think there is a genuine possibility that the trial is more about the career of the prosecutor than about the pursuit of justice?

What if you know you cannot trust what you are seeing?

In your mind, here and now, I challenge you to ask yourself. What kind of impact do the answers to these questions have on the concept of reasonable doubt?

And I would argue that if you are aware of how the system actually works, then you must be aware that reasonable doubt cannot be ascertained in a rape trial. There is just not enough trustworthy information in many cases to make that judgment, and unfortunately as a juror, you are not able to discern if the case you are seeing is one of the ones that has been tainted.

There are perhaps exceptions to this. If the state is able to prove, beyond a reasonable doubt that breaking and entering, an abduction, the use of a weapon or extensive bodily harm occurred during the alleged attack, then a guilty vote may be justified.

But I say perhaps for a reason. Remember the Jovanovic case? He was convicted of kidnapping with the other charges. It never happened. The Albert case as well. There were “injuries” involved there. All consensual. And he was convicted anyway. So even with these possible exceptions the state could be running a political circus instead of a legitimate trial.

Now, as to nullification, it is easy to conclude that the chances of getting 12 people on a jury knowledgeable enough of the system to see it for the railroad that it is, are highly unlikely. Actual acquittal is out of the question.

Never happen.

But in most cases it still takes unanimity to convict. It ususally takes unanimity to convict on retrial as well. It takes only one to bring the system down, even if only for the time being. And it is a system so tainted that it quite clearly needs to be corrected- for the sake of justice.

There are people that will react to this with outrage and indignation. “How could you?” they will demand, “How could you let someone walk when the evidence shows you that they have committed something as heinous as rape?!”

It is understandable. These are horrendously difficult decisions that test the moral bearings of any human being.

But often the same people who would react to the idea of nullification with such outratge, after reading account after account of innocent men being imprisoned, raped, tortured; destroyed, killed, on lies, will reveal the utter depravity of their indifference by refusing to face what is happening or acknowledge that it even matters.

Their idea of justice is just as corrupt and selfish as the false accuser. They want only punishment, and only where it suits them, at any cost. They care less for the rights of men than Mike Niphong, and their objections should be discarded as quickly as they are raised.

Jury nullification may not be the appropriate route to take in a rape trial, but until society learns to approach this problem without pitchforks and torches, it must be an option that is on the table.

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