Burdens of proof matter in the criminal justice and the civil justice systems. In the criminal courts, the state must prove its allegations by the law’s highest standard: proof beyond a reasonable doubt. In the civil system, there is a lesser standard, what the law call’s preponderance of the evidence. No one walks into court, by virtue of merely making an allegation, and gets special status.
Not even people accusing others of sexual assault.
Hence, it makes no sense to call a person a victim merely because they’ve made an accusation. A person claiming rape is an accuser; they become a victim by proving their claim.
That doesn’t satisfy some folks.
Consider Zerlina Maxwell. She believes that “we should believe, as a matter of default, what an accuser says. Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.” She wrote these words for The Washington Post. I doubt it: a victim gets sympathy, a secondary gain; rapists are scorned.
In Ms. Maxwell’s mind every man, woman and child who cries rape is a victim. I suspect that it is thinking like this that yields statistics about a “epidemics” of rape and “rape culture.”
Ms. Maxwell should know better. She’s trained as a lawyer, after all. But she’ll defend her position by saying, as she did in her article for the Post, “This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what should happen outside the legal system.”
This is the sort of thinking that spawned the #MeToo movement.
Ms. Maxwell is a lawyer. She was graduated from the Rutgers University law school. She now works as Director of Progressive Programming for Sirius XM, and was director of Progressive Media for the Hilary Clinton presidential campaign; she worked for Obama, too. Chartwell Speakers Bureau lists her a speaker. You can pay her to listen to her speak on such things as “Rape Culture and Victim-Blaming.”
People are free to reject the criminal law’s presumption of innocence. And no one is required in their private affairs to require proof beyond a reasonable doubt. Neither are folks required to require any standard of proof at all.
But I find it difficult to comprehend how someone can claim that it is moral to say that it is somehow less harmful to call someone a rapist than it is to “wrongfully disbelieve” an accuser.
Not long ago, my office tried a campus sexual assault case involving two Yale students. The jury found my client not guilty of all charges. Interviews after trial report that jurors did not find the accuser credible; in other words, she wasn’t a victim.
In the days following the verdict, we received hate mail from around the country and were excoriated in publications and social media throughout the United States. How dare we attack a victim; we are scum for defending a rapist! Not one of these outraged souls were at trial.
They all, each and every one, indulged Ms. Maxwell’s presumption of victimhood.
There is no mob quite so dangerous as a self-righteous mob.
It is defamatory to call a person a rapist, if the claim is false. The law says our reputations matter. Should those quick to call a man a rapist be held to account?
I’d like to see a few defamation claims brought against those who rally behind unfounded claims of accusers. I’m wondering why more of those held to scorn by waves of #MeToo groupies crying foul don’t hold accountable those who bring these claims to the press. Yes, rape is a violent crime; ambiguous sex is not. Neither is boundaryless flirtation.
Legal standards matter, even in civil discourse. A person making an accusation is entitled to respect, not belief. Belief should be a product of proof. It makes no sense to claim, as Ms. Maxwell does, that we should default to belief. How can we know whether we are, as Ms. Maxwell puts it, “wrongfully believing” someone if we can’t test the accusations?
Mae West had it right: “Men are like linoleum floors. Lay 'em right and you can walk all over them for years.” My hunch is that a fair number of the surfeit of sexual assault claims now almost daily appearing in the press are false. I don’t know that, of course. But I think those raising the claims should be required to prove them.
Crying rape doesn’t make you a victim; it makes you an accuser with the responsibility to prove your accusation. If you don’t want to assume that responsibility, then don’t raise a hue and cry. The possessors of the reputations you seek to ruin are required to respect, too.
How dare I ask questions about text messages, alcohol consumption and what an accuser wore on the night she claimed she was raped by an acquaintance? That’s the media’s take away after last week’s acquittal of Saifullah Khan in New Haven. The former Yale student was accused of sexually assaulting a classmate on Halloween night in 2015.
Time magazine, Buzzfeed, The New York Times, and a host of other publications wrote about the trial. In the days following the verdict, reporters focused on isolated aspects of the case. Only one newspaper captured the nuances of the trial – the New Haven Register – and it did so by publishing lengthy accounts of the testimony after each of the seven days of evidence.
I’ve long been skeptical of press coverage of trials. From time to time, I’ve picked up a newspaper after a day in court only to read about a proceeding that looked a whole lot different to the reporter than it did to me in court. In general, court reporting is a lost skill.
But reaction to the Khan case gave me a whole new appreciation of “fake news.”
I attacked the accuser showing her text messages between her and the accused; I questioned her about her attire the night of the claimed assault; I challenged her on what she drank that night.
Yes, I did all of that – and more. But here’s the kicker – the state introduced all of this evidence first. You wouldn’t know that reading press accounts.
The state charged Khan with four different types of sex assault: two relied on a claim he used force to compel intercourse and/or sexual contact; one was based on assertion that the accuser lacked the capacity to consent to sexual intercourse because she was intoxicated. The fourth count was misdemeanor sexual contact.
The accuser – I don’t call her a victim because the jury’s non-guilty verdict rejected her accusations and found my client not guilty – claimed not to recall most of the events the night of her assault. She claimed to have drank too much, and to have, in effect, blacked out.
I challenged her on how much she had to drink, showing her plastic cups and asking her to estimate the volume of liquid in each as she drank. She fumbled through this testimony in a manner that cast doubt on the amount she drank. I did this in order to rebut the prosecution’s claim she drank to the point of losing consciousness.
The accuser did vomit on several occasions on Halloween night. She claimed it was because she drank too much. The state offered no medical evidence about this.
Because she waited a day and a half to report her claim to the police, the only physical evidence of having vomited was her clothing. There were minute fragments of some material the witness claimed was vomit on her clothing. The state introduced each and every piece of her cat costume, including the sequined mini-skirt and tube top, holding each up for the jury to see.
I asked her one and only one question about her choice of costume, asking her why she did not choose a long-flowing Cinderella costume. Yes, I did that to call attention to her choice of clothing. The costume was scant and alluring. My client testified he found it so.
Why was this relevant?
In the week’s leading up to Halloween, the accuser and my client exchanged numerous text messages and planned to see one another Halloween night. The state offered those into evidence. The accuser testified in response to the state’s questions that the messages did not reflect any romantic interest in my client. In other words, the state put this issue into the case.
I cross examined the accuser using the messages and asked her to explain obvious flirtatious remarks and symbols she used in the texts. She began to lose the jury when she tried to explain obvious interest in my client. When she said she hadn’t really read the sonnet she sent my client – Shakespeare’s Sonnet one – she was in trouble. I’m still waiting for an answer I can understand as to why she sent Mr. Khan the following lines: “From fairest creatures we desire increase, That thereby beauty’s rose might never die; …”
I’ll say it again: each and every one of these pieces of evidence was offered by the state in its case in chief.
And why was that necessary? Because the state wanted to show lack of consent and lack of capacity to consent. My task as defense counsel was to the turn the state’s interest against it, and that meant impeaching the accuser.
She testified for the better part of three days. But only about a third of that time was on cross-examination. Yes, she wept during the testimony. But she did so in response to questions from both sides.
To politicize this case and to suggest that the questions I asked the accuser set back woman’s rights or was otherwise an exercise in unconscionable conduct is not just wrong, it is asinine. Any defense lawyer has the responsibility to cross-examine a witness on the topics on which the state has the witness testify. We did nothing unusual.
Ironically, none of the testimony that has drawn so much ire may have been critical to how the case was decided. This was a he-said/she-said case. Jurors had good cause to be skeptical of the testimony of accuser and accused. What jurors could take at face value was a surveillance video of the two walking across Yale’s campus moments before arriving at her room. The state said it showed her stumbling, relying for support on my client, and, at one point, walking with eyes closed.
In closing argument, I challenged the jury to watch that video again. It showed no such thing, I said. One juror told a reporter after trial that the jury watched the video several times in the three hours it took to decide the case. The juror reported that the video did not show what the state contended it did. It certainly looked to me like two young lovers walking across campus. We showed a freeze frame of it as one of our exhibits. When I asked the accuser if that was her in the photo smiling, she, of course, denied it, claiming she was shivering.
The lunatic fringe of the #MeToo movement thinks that sex crime accusations should be treated differently. One writer told me this case proves why men should not be permitted to defend these cases, suggesting that the fundamental rights to counsel and confront witnesses need gender-specific rules. That is repulsive nonsense, and would not be tolerated in any other context.
The accuser claimed my client raped her. She needed to earn the right to be called a victim by convincing a jury what she said is true. My client testified that she invited him back to her room after he left her in the entryway to her suite; she asked him if he had condoms; she disrobed in his presence; she asked him if he enjoyed the fellatio she performed.
I’m not surprised that my client was acquitted. And I am not surprised the state prosecuted. Yale has enormous clout and power in New Haven. The University’s treatment of sexual assault complaints is appalling. Accusers are deemed victims without proof, and fundamental fairness in the investigation of these complaints is sorely lacking. Perhaps this acquittal will shed light on what comes of assuming that every accusation is true.
Those who decry the verdict, or the defense tactics, based on incomplete reporting of the case are reacting like hysteric fools. Their motives might be pure enough, but the data on which they rely is, if not fake, then certainly misleading.
Reprinted with permission of the New Haven Register.