An Epidemic of Prosecutorial Abuse?
By Robert Franklin
29 April 2013
Has prosecutorial abuse reached epidemic proportions in cases involving allegations of sexual assault or domestic violence? A new white paper put out by Stop Abusive and Violent Environments (S.A.V.E.) persuasively argues that we are dangerously close to exactly that state of affairs.
Just last year, Brian Banks was released from a California prison, exonerated of the crime of rape when his accuser admitted that her allegation against him had been completely fabricated. Banks had been in prison for five years and his accuser had been paid almost $1 million by the state based on her claim of victimization. Banks is out, but no one has asked the woman to repay the money and she will not be prosecuted for perjury or even filing a false police report.
But apart from the unique nature of the Banks case, the twin trends of overzealous prosecutors and relaxed-to-non-existent evidentiary standards in sexual abuse and domestic violence cases have made for a perfect storm of a lack of due process. They also contribute to the perpetration of domestic violence by women against their intimate partners.
First, recall that the role played by district attorneys and their assistants in the judicial system is not the same as that of other attorneys. Because they wield the awesome power of the state, prosecutors are ethically bound to evaluate cases based on probable cause. If there’s not enough evidence to win a conviction, a prosecutor is ethically required to refrain from bringing charges. That’s because, once charged, the power of the state and the likely impecunious state of the defendant make it all too easy for the latter to end up in prison regardless of his guilt or innocence. So the American Bar Association’s very first ethical rule for prosecutors requires them to refrain from charging a person without probable cause.
So what happened in the Brian Banks case? How could a prosecutor under such an ethical obligation send an innocent 17-year-old to prison? After all, there was no forensic evidence of any crime; there was no DNA evidence and indeed, no evidence that any crime had occurred, which in fact turned out to be the case.
But Brian Banks went to prison despite an entire absence of evidence against him. Why? For one, at 17 he couldn’t afford good representation but more importantly, the prosecutor elected to charge Banks in the first place. He shouldn’t have because there was only the word of the complaining witness on which to base a conviction, but the prosecutor ignored his ethical obligation in favor of railroading an innocent teenager into prison. Needless to say, that prosecutor has never been disciplined for violating his ethical obligations.
That brings us to the second part of our perfect storm – the shocking decline in evidentiary requirements in cases of alleged sexual abuse or domestic violence. At this time, no state requires any form of corroboration of a complainant’s statements in a case of sexual violence. Her statement that she was raped or abused is alone sufficient not only to bring charges but to obtain a conviction. In that way, claims of sexual abuse stand alone in American jurisprudence. All other allegations of criminal wrongdoing require some form of corroboration for an accused to be convicted.
So if the charge is murder, there’s a dead body. (In the extremely rare instances in which no body can be found, other corroborative facts must be in place for a charge to be brought.) If the crime alleged is car theft, the defendant either has the car or it can be traced to him. No prosecutor would even consider charging John solely on the word of Joe that John stole his car. The Assistant District Attorney handling the case would rightly demand evidence that Joe owned the car, that it was stolen, that John stole it and that Joe hadn’t merely loaned it or given it to John.
Not so with allegations of sexual assault. In those cases, no corroboration is necessary; the say-so of the woman is enough to send a man to prison for life. So it’s no surprise that one study found that a whopping 15% of convictions in sex cases were proven wrong by post-conviction DNA testing. And, as the SAVE paper accurately shows, that figure actually underestimates the true false conviction rate. That’s because DNA evidence connects the accused to the complainant in cases of consensual as well as nonconsensual sex.
Yet another part of our perfect storm is the selective prosecution of cases. As they should, prosecutors have discretion about which cases to charge, but that discretion may not legally be practiced in a discriminatory way. But it is, particularly in allegations of domestic violence.
Almost 300 separate studies and analyses of data, conducted over the course of 37 years show that men and women are equally likely to engage in domestic violence. So we’d expect a roughly equal number of male and female defendants in DV cases, but that’s far from the truth. In fact, in 2008, the U.S. Department of Justice found that only 16% of defendants in aggravated assault cases involving intimate partners were women.
In 2012, yet another study found that “[M]ales were consistently treated more severely at every stage of the prosecution process, particularly regarding the decision to prosecute, even when controlling for other variables (e.g. the presence of physical injuries) and when examined under different conditions.”
Meanwhile, the State of Iowa makes explicit what the social science shows. There, the state’s Attorney General adopted a policy at least as early as 2005, prohibiting prosecutors from charging women with domestic violence. The AG’s office stated in writing that “the prosecutors we fund are prohibited from prosecuting female cases.”
Apart from the fact that the refusal, either explicitly or implicitly to charge female perpetrators of domestic violence (and by extension to protect their victims, whether male or female) cannot reduce the half of DV that is female perpetrated, clearly prosecutors have no constitutional authority to discriminate in their charging decisions on the basis of sex. But they do.
Closely related to the failure to charge female perpetrators of intimate partner violence is the refusal by prosecutors to charge – either with perjury or making a false police report – women who later recant their claims. For decades now, family attorneys, prosecutors and judges have admitted that a great percentage of domestic violence claims are lodged out of momentary anger or simply to gain an advantage in a child custody case. The former are often recanted and the latter shown to be without foundation.
At least one researcher has concluded that between 80 and 85% of claims of DV will be recanted at some point in the judicial process. Yet another researcher has found similar percentages for domestic abuse claims found to be baseless by family court judges.
In a nutshell, if domestic violence is the national scourge advocates claim it to be, prosecutors need to start doing their jobs within the confines of due process of law. That means prosecuting those for whom there’s probable cause to believe violence was committed against a spouse or partner. It also means dropping claims that lack sufficient evidence to bring a criminal case. Finally it means holding those who make false complaints responsible for wasting public servants’ time and taxpayers’ money.
Finally, prosecutors must abandon the clearly unethical practice of bringing charges of sexual assault in cases in which the only evidence is the complainant’s word. The current “system” of convict at any cost is ripe for abuse and the imprisonment of innocent men.
Don’t believe me? Just ask Brian Banks or the hundreds of other men who have been exonerated of sex crimes only after years behind bars.