CALIFORNIA
SPOUSAL RAPE BILL WILL HARM INNOCENT MEN
by Jeffrey Leving and Glenn Sacks
July 2, 2006
NewsWithViews.com
False
accusations of violence or abuse are endemic in family law
cases. The California Senate and the Assembly Committee on
Public Safety recently approved a misguided bill which will make
the problem worse by easing the way for spurious spousal rape
allegations to be used against fathers.
Victims of
spousal rape deserve protection, and current California law
provides it. In order for the state to prosecute a spousal rape
charge, the accuser need only to have mentioned the violation
within a year of its occurrence to any of a wide variety of
medical, law enforcement, clerical, legal or psychological
personnel, or there must be corroborating, independent, court
admissible evidence.
SB 1402,
sponsored by Senator Sheila Kuehl (D-Los Angeles), eliminates
the distinction between spousal rape and other rapes, thus
allowing for spousal rape prosecutions six years later, even if
there was no mention or independent evidence of the crime in
previous years. Under SB 1402, when aggravated spousal rape is
alleged, there would be no statute of limitations.
In family
law proceedings there are a multitude of important and
emotionally-charged issues which are often contested and
re-contested over many years. These include: legal and physical
custody; child support; alimony; division of marital assets;
liability for legal, health care and child care expenses;
requests for relocation; and others. False accusations often
allow accusers to gain leverage in these proceedings.
The Senate
Judiciary Committee recognized that false spousal rape
accusations could be used in this manner when the spousal rape
evidence requirement was created in 1979. They noted that in
rape cases “the issue of consent often boils down to the word of
the victim versus the word of the accused…[in spousal rape]
these problems of proof would be exacerbated [by]…the issue of
the complaining witness’ motive for making the accusation.”
The current
wave of domestic violence restraining orders based on dubious
allegations are illustrative of the problem. According to
California Attorney General Bill Lockyer, there are nearly a
quarter million domestic violence restraining orders currently
active in California. A recent article in the Family Law News,
the official publication of the State Bar of California Family
Law Section, asserts that the Bar is concerned that the orders
are given out practically on demand, and that they are "being
used in family law cases to help one side jockey for an
advantage in child custody.”
Similarly,
false allegations of child molestation are also often used for
this purpose. According to a study published in Social Science
and Modern Society, the vast majority of accusations of child
sexual abuse made during custody battles are false, unfounded or
unsubstantiated. Reginald Brass, president of My Child Says
Daddy, a parenting organization which works with young
African-American fathers in Los Angeles, says that when custody
is contested, “if the man has a daughter, we always warn him
that at some point the mother may well accuse him of sexually
molesting his daughter.”
Evidence
shows that rape accusations in general are often false. Former
Purdue sociologist Eugene J. Kanin conducted two studies of rape
allegations and found that between 40 and 50 percent of the
accusations were false. An Air Force study of 556 rape
accusations found that 60 percent of the allegations were false.
Several
prominent prosecutors have attested to this problem, including
Linda Fairstein, who headed the New York County District
Attorney's Sex Crimes Unit. Fairstein, the author of Sexual
Violence: Our War Against Rape, says, "there are about 4,000
reports of rape each year in Manhattan. Of these, about half
simply did not happen."
Former
Colorado prosecutor Craig Silverman, known for his zealous
prosecution of rapists during his 16-year career, says “rape is
one of the most falsely reported crimes." In an ABC television
commentary during the Kobe Bryant trial he cited a Denver
sex-assault unit commander’s estimate that nearly half of
reported rape claims are false.
The widely
reported William Hetherington case provides an example of how
spousal rape accusations can be used strategically. Hetherington
was convicted and incarcerated in the middle of contentious
divorce proceedings in which he was likely to win custody of his
children because his wife had abandoned the family and moved out
of state.