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Domestic violence: Justice from hell!
Pietro Malovich knew why the police came for him. Someone had
denounced him, but almost immediately recanted. He waited a
month in jail for his trial, knowing that his accuser would
confess it was all a lie, but something went wrong. Only the
police appeared at trial to testify, repeating the first
accusation, and so Pietro Malovich, a deacon at his church, was
convicted. No, this is not the prologue from a tale of the
Gulag. Pietro lives in San Francisco, California, and his crime
was that he cheated on his wife. She wanted to hurt him back, so
in anger she said he pushed her. She immediately regretted it,
but the police and the prosecutor would not drop the charges.
The sixth amendment to the U.S. Constitution provides in
criminal cases: "the accused shall enjoy the right ... to be
confronted with the witnesses against him." None the less, in
California if the wife refuses to testify against her husband,
statutory law allows him to be convicted with just a replay of
the 911 call. Wives of clients have also told the author that
the prosecutor threatened her with prosecution if she didn't
stick to the first story.
Traditionally, American police had responded to domestic
violence (D.V.) calls by buying the man a cup of coffee until he
"cooled off." Police were even taught that if the husband had a
warrant out for his arrest, they should warn him to get lost or
face arrest. Since then, the laws governing domestic violence,
rape, and other violent crimes against women have changed
extensively to do more to protect women. Some people are now
asking: "Have we gone too far?" Others counter, "It isn't
possible to go too far in protecting women." The following
incidents are true cases from the author's own caseload. Please
judge for yourself.
In an East Bay community in California, a wife told police that
she was the first to hit her husband, striking him repeatedly in
the face. Then he pushed her down, so she bloodied his ear with
a hard bound book, and then he bit her. Only he was prosecuted,
however. The judge explained why: "He overreacted." Under
California law, the police are to arrest only the "primary
aggressor," not necessarily the first one. Men arrested on D.V.
charges routinely complain to their attorneys that the police
would not even listen to their side before they were arrested.
The determination of who was the "primary aggressor" is thus
often made based upon who called 911, or upon talking only to
the woman.
In another case, a man's live-in girlfriend refused to repay a
loan, so he sued her in Small Claims Court. On the day of the
trial, she had police arrest him outside the courtroom for
allegedly slapping her on the buttocks three weeks earlier (to
which there were no witnesses). She won the debt trial by
default, neglecting to tell the judge that the plaintiff
actually had shown up. Prosecutors knew about all of this, but
refused to dismiss the assault charge because "We want her to
have her day in court anyway." Every year in California,
prosecutors use their discretion to discharge thousands of weak
or doubtful complaints on all manner of charges, including
homicides, but never in these cases.
A San Francisco man let his drug-addicted girlfriend and her son
move in with him. She had two warrants out for her arrest for
probation violations. Tired of her selling his household
possessions for drugs, he gave her a week to get out. Within
hours, she called the police and reported that he pushed her
down. He was arrested, and the court immediately issued a
"stay-away order" preventing him from approaching her, or going
near his own home. His apartment was now hers. She proceeded to
sell off all his belongings under the protection of the court
order.
Officers unfamiliar with this case caught her accomplices
loading my client's furniture into a van, but the police already
assigned to this case shrugged it off with "She says she had
permission." That was good enough, despite my client’s telling
them that she didn’t. After all, he was a woman beater. When she
fled the state with the profits, she left his $2000 trading card
collection soaking in the bath tub. The judge still refused to
lift the stay-away order. If this fleeing felon returned to San
Francisco, my client would have to leave his home again to avoid
violating the stay-away order, so she could live in his home,
rent free. Now you know why this article is entitled as it is.
Law enforcement bias in crimes against women is not limited to
domestic violence. It also applies to sexual assault, only more
so. Many will say "And it's about time!" Perhaps, but excesses
in criminal enforcement could pose a danger to women greater
than ever.
Under current California law (Penal Code § 667.61 and § 289),
the penalty for "forced penetration by foreign object" (such as
a finger into her vagina) is life in prison if he entered her
home to do it. He would not be eligible for parole for 25 years.
"Good!" you say. Maybe. The penalty for removing her as a
witness by murdering her with a gun (2nd degree), is fifteen
years to life [P.C. § 190 (a)], and he would be eligible for
parole in approximately ten years, according to the California
Supreme Court in People v. Barella, (1997) 57 Cal. 4th 1369, at
1375. What happens when two prisoners compare sentences, and the
man who murdered his victim gets out before the man who left his
victim alive and uninjured? It may be politically beneficial to
be perceived as a lawmaker who is "tough on abusers," but
popular laws may still be unwise ones.
New laws have been passed to facilitate sex crime prosecutions
and to protect the privacy of the victim. One law attempts to
prevent the parading of the victim's personal psychiatric
problems in court to humiliate her. The defense can't subpoena
her psych records before trial. That's fine in theory, but what
if her illness is such that she told her psychiatrist "I
fantasize about having men falsely jailed for rape."? That
relevant fact would never see the light of day before the jury,
because after trial begins, it is too late to find and produce
an expert psychiatric witness. Tens of thousands of Americans
are seriously mentally ill. Many don't even know the difference
between reality and fantasy, and roughly half of these people
are women. Perhaps that has not occurred to our legislature.
On what basis should we assume that no mentally ill person will
make a false accusation of crime? Ironically, the "hide the
psych history" rule primarily targets the innocent defendants.
Among all rape victims, which are more likely to have
psychiatric histories, the true victims, or the ones fabricating
or imagining the rape? It might be answered that the "rare"
conviction of an innocent man is an "acceptable cost" of
protecting rape victims. But how rare is it?
What happens when people learn that the legal system will leap
to imprison men on even the most unbelievable accusations? Won't
they realize that they now have an incredible amount of power?
Predictably, there is a growth industry in sexual assault
lawsuits. I believe that most rape complaints are well founded
and honest, but not all of them. The lack of forensic evidence
or corroboration is not a bar to conviction, nor is the absence
of injuries. Signs of struggle are unnecessary, because a threat
of harm is (rightfully) enough to establish a rape. The absence
of semen does not prove there was not a rape or an attempt. Many
men are convicted without any such corroboration. Does it not
occur to anyone that these circumstances are ideal for an
extortionist to make a fortune, or for someone to exact
vengeance for an emotional hurt?
A criminal conviction can be used as automatic proof in a civil
lawsuit for money damages, so there can be a financial motive to
make a false accusation. In San Francisco, I represented a
portly 65 year old grandfather with no arrest record whatever
after he was accused of an after-hours rape by a co-worker. The
"victim" was 32 years old, and had multiple convictions for
fraud, theft and violence. There was no physical or medical
evidence found, because she refused the medical exam. She
claimed he knocked her unconscious with a metal pot, but had no
mark whatever on her head. She had just settled a lawsuit
against another county on allegations that a guard "talked
dirty" to her and touched her breast while she was serving a
sentence for fraud. Now she planned to sue my client’s employer
for maintaining the "hostile workplace environment" that led to
the "rape." |
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The City Attorney who settled the first case told
me, "If he's convicted, she can name her own settlement figure.
It's an automatic win." Never the less, he stayed in jail,
because "Even imperfect women are entitled to be free of rape,"
as the prosecutor told me. One might conclude that any woman's
word is enough to jail a man for sexual assault, no matter how
incredible the accusation. Charges were eventually dismissed and
the court issued its order adjudging him factually innocent of
the crime, but not until he had spent 45 days in jail and the
entire community knew he "went to jail for rape."
Consider this: At the time of the writing of this article, the
population of women in jail or prison in the U.S. was around
140,000. Add to this the women who have already served their
sentences, and there are undoubtedly at least 250,000 women in
the U.S. capable of criminal acts to achieve some sort of gain
or benefit. With an estimated 1250 counties in the U.S., that
would allocate at least 200 women to every county who have
certifiably criminal ethics. What are the odds of dating one of
them unawares? With the present state of American laws on sex
crime, that question might keep some men awake nights. If not,
maybe it should.
There is much at stake in the frequently voiced assumption that
"No woman would cry rape if it weren't true." Each separate
intimate act in a sex assault is often treated as a distinct
crime with separate punishment. It is not rare for the
consecutive sentences to total eighty years or more for one
incident.
If the above true cases aren’t frightening enough, perhaps the
following case will be. On October 26, 1999, the First District
of the Court of Appeals of California issued its decision in the
case of People v. Roundtree, (2000) 77 Cal. App.4th 846. This
case establishes that if a woman is actively engaged in
consensual intercourse and indicates that she has changed her
mind, it is rape if he continues. (“When a victim is forced to
submit to continued intercourse for a period after she has
revoked her original consent, the crime of rape is committed.”,
Roundtree, at page 851) On the surface, this might sound
reasonable. But what is “a period” of time?
Let's think about this. Only two people are usually present
during intercourse, so who will be the judge of whether she has
clearly communicated this change of mind, and whether he
"stopped" fast enough? Her, of course. Since cases don't come to
court unless the woman complains to police, obviously she
subjectively thinks she's been raped, so we know what her
answers to these questions will be. The Appellate Justices
failed to indicate how fast a man has to "stop" to avoid being a
rapist. Is he allowed to ask "What?" before he jumps up? What if
she is breathless and her words are indistinct?" Is that a
"clear" change of mind? If she suddenly says "Ow!" does it mean
he inadvertently caught her hair in his watch band, or that he's
raping her? Is two seconds from the word “Stop” to the
withdrawal fast enough? Oddly, the California Supreme Court is
silent on this, so the only “judge” on that issue is....the
woman who within two seconds goes from consensual sex to feeling
“raped.” Good system, isn’t it?
If a woman suddenly says "Stop" during intercourse, the most
likely explanation is not that she just suddenly changed her
mind about having sex. Instead, a man might reasonably think at
first that his beard stubble hurts her; or that she does not
like the manual stimulation he's giving her, or she wants to
changes positions, or she has a more exciting act in mind. In
romantic relationships, it is hardly rare to hear the words:
"You expect me to read your mind!" or "If you loved me, you'd
know without being told." Given the frequent failure of men and
women to communicate on the same wave length, eighty years in
prison are high stakes to wager on the infallibility of this
particular communication. It is in just such cases that the
prosecutor's charging discretion is most needed, but these are
just the ones in which they abdicate it.
When a woman changes her mind in mid-intercourse, she is most
likely upset about something, so she will probably be very
impatient with any degree of delay while he tries to understand
what is happening. Isn't it clear that if she changes her mind
while he is already inside her, that she already feels violated?
Isn’t it also clear that the woman most likely to change her
mind in mid stroke is the woman who is feeling guilty about
deciding to have sex? What an invitation this case is to
suddenly convince herself that she didn’t agree and that she was
a “victim”! Under those circumstances, could any amount of haste
in withdrawing be fast enough for her? With this new rule, the
primary essence of the rape is the woman's subjective feeling
that she has been raped. One can only shudder at the prospect of
having to mount a legal defense to that crime. Since having sex
was initially consented under this scenario, proof that she
rented the motel room, or that she told her best friend she was
going to sleep with him doesn't matter. Even if the neighbor
hears her shout "Yes! Yes!" it means nothing if she testifies
that right after that, she whispered "Stop."
Why would a woman make a false accusation? Perhaps she's his
wife and she learned of infidelity. Maybe she's just crazy or
hates men. Maybe he's rich and she is criminally disposed to
score a large piece of it. Maybe she loves him and he just told
her this was their last time together. It doesn't matter why.
What matters is that, at present authorities will usually jail a
man based upon no objective evidence at all, and it is done in
cases where jealousy, love, spite, possessiveness and vengeance
are common complications of the relationship. Then the accused
finds that the playing field of justice slants uphill against
him with rules that apply to no other area of criminal justice.
To understand the gravity of this situation, one need only
honestly answer this question:
In which of these crimes will there probably be the largest
number of false accusations?: Drug sales, forgery, welfare
fraud, burglary, murder, or acquaintance rape? If someone called
police and said they saw you stabbing that child that was
attacked, and you are innocent, what would you feel about a
legal system that prevents you from obtaining and introducing
evidence that your accuser is a psychotic with hallucinations?
And yet, you’ll do more time in prison for the rape you never
committed than for the stabbing you never committed. Does anyone
besides me see anything wrong with such a system?
A female attorney commented to me on the Roundtree decision, "If
I were a man, I would be terrified to ever have sex again." Few
people besides defense lawyers have much concern with protecting
the rights of the accused, especially in sex crimes. It's
certainly not Politically Correct to take up the cause of an
accused sex criminal. On the other hand, it is unlikely that the
65 year old grandfather's wife was terribly grateful for the
"protections" her husband's accuser was being given. Another
female public defender commented cynically, "Oh hell, let's just
put all men on probation at birth and save the State a lot of
money."
It is certainly not desirable to return to the old days when the
rape victim was victimized again by the authorities. Severe
punishment for sexual assault or domestic brutality should be
meted out, but it is unclear why those goals cannot be served
while still maintaining the legal rights and due process
protections that will allow an innocent person to prove his
innocence. The lop-sidedness of current laws in this area seems
to rest upon the unspoken assumption that all complaints of
domestic violence and sexual assault are true. However, one will
search in vain for a judge, prosecutor, or criminal defense
attorney who actually believes that.
The problem with tinkering with criminal laws to weaken
individual protections for the accused is that, despite the most
noble intentions, sooner or later bad laws are used against good
people. Remaining unanswered is the question asked above: "How
rare is it" for an innocent man to be accused or convicted under
these laws? Well, consider this: all of the above histories are
from the case load of one lawyer in one city in one state out of
fifty. One can only imagine what must be happening all across
America.
I’m sorry if this is all very upsetting, but if it scares you,
you have lots of company, including me. The bottom line is this:
If you have a criminal complaint of domestic violence or any sex
crime made against you, run, do not walk to find a defense
attorney, preferably before you are arrested. |
