Tuesday, November 25, 2014

The Bill Cosby rape allegations do not warrant eliminating statutes of limitations in rape cases

The Bill Cosby rape allegations have fueled the expected calls to eliminate statutes of limitations in sex offenses.

The allegations against Cosby are alarming. That the women speaking out have chosen to wait until it is likely too late even to consider prosecuting him for the alleged crimes raises complicated issues -- issues about their motivations in failing to report the alleged misdeeds in a timely fashion. Would they be "ready" to report their ordeals to law enforcement now, if they were permitted to do so?  Or have they made a decision not to report their ordeals to law enforcement under any circumstances? If the latter, should this be acceptable be society?

These are thorny questions, and we don't have the answers. We do know this: the Cosby allegations do not counsel in favor of eliminating statutes of limitations for sex offenses.

Christine Flowers has an excellent column on this issue here.

Statutes of limitations in criminal cases are designed to protect the innocent, and, yes, sometimes they protect the guilty but not because we want them to. The longer an accuser waits to lodge a complaint, the more difficult it is to fairly defend against it. The horror stories of the repressed memories witch hunts are examples of what can occur. In rape cases, there is a national trend to lengthen or eliminate statutes of limitations entirely. This is a concern to the criminal defense bar, the ACLU, and many others.

Feminist legal scholar Aya Gruber explained the necessity of statutes of limitations in sex cases here.

The ACLU has explained the necessity for statutes of limitations in sex cases:
. . . lost in the consideration of these proposals were the compelling reasons to have a statute of limitations, including protecting the falsely accused person who could be charged with one of these crimes.

The statute of limitations provides important safeguards designed to permit the prosecution and the defense to present a case before the evidence goes stale. Prosecution within a few years of the crime allows a defendant to confront the accuser, and allows the defendant to call witnesses and prepare a defense. As time elapses between the crime and the trial, it becomes increasingly difficult, if not impossible, for the defendant to prepare a meaningful defense – memories are lost, witnesses have died and exculpatory evidence is no longer available.

Criminal defendants are presumed innocent, and the prosecution must prove their guilt beyond a reasonable doubt. In highly emotional cases, however, juries usually presume that the defendant is guilty, otherwise he or she would not have been charged with a crime. This dynamic makes it exceedingly difficult for an innocent person to mount a defense decades after the crime occurred.
Every lawyer knows that one's ability to defend against most claims diminishes with the passage of time. “The statute of limitations is more important in sex cases than really in almost any other,” said defense attorney Gail Meyer, “and the reason is: innocent law abiding citizens engage in sex, all day long … And that’s not so with other crimes. Innocent law-abiding citizens do not engage in burglaries. If you find some one’s fingerprint on the inside of a stranger’s house that’s a pretty good indication they shouldn’t have been there. And if they were to be prosecuted 25 years later, it would be difficult for the defendant to suggest that he had a reason to be in some stranger’s house. …. If you eliminate the limitation period entirely, you are robbing the defendant of the ability to re-create the circumstances of that event.”

Is it fair, or just, to prosecute a man 50 years after an alleged rape? How about 40 years?

What are the practical implications if an innocent man is accused of raping an acquaintance ten, or twenty-five, or even fifty years ago? In all likelihood, the man’s accuser would assert that the supposed act occurred on a specific date, at a specific place, and she would paint a vivid picture of the supposed surrounding circumstances of the sexual encounter. She would justify her ability to remember with specificity by the supposed trauma she experienced.

In contrast, the innocent man’s memory will have faded to the point that he likely would have no recollection of even where he was at the time in question; whether he was out of town with the high school basketball team; sick in bed with the flu; away visiting grandma; whether he or she were drinking; what they might have discussed; where they went or with whom they interacted prior to and after the supposed sexual encounter. In fact, the most an innocent man might be able to honestly assert is, "I would never rape a woman and did not do what she alleges, but I have no clear recollection of the night in question."

He almost certainly would have long ago destroyed any evidence proving he was somewhere else at the time of the alleged act (for example, he would have discarded calendars, plane tickets showing he was out of town, credit card invoices showing he ate at some out-of-town restaurant, and any other tangible evidence that would exonerate him). He almost certainly would have destroyed any evidence showing a consensual relationship with his accuser (e.g., love letters or cards, voice mails, emails or text messages). Alibi witnesses likely will have disappeared or even died.

In short, an innocent man hauled into court on rape charges ten, twenty-five, even fifty years after the alleged act would be like the warrior of old entering battle stripped of his shield and sword. His ability to defend the charges would be decimated by the passage of time.

When it comes to sex cases, unfortunately, mob rule prevails, and state after state after has extended or eliminated statutes of limitations for these crimes. Note that there is no similar public outcry to eliminate statutes of limitations in cases involving false allegations of rape.