Even criminal defense attorneys, like me, need to be reminded occasionally about the presumption of innocence.
I read a piece recently in Seattle’s “Stranger” about Matt Hickey (no joke, that’s his name), a well known techie who was being accused of sexually assaulting several women. I confess. After reading it I was pretty convinced that he must be guilty of rape. I’m not on his jury and not his lawyer, so I am free to think (and say) whatever I want.
But, then, I began to reflect on similar cases I have worked on as a criminal defense lawyer.
There are several main components to the case against Hickey: First, the Modus Operandi, or signature of the crime, appears to be the same with different women. Second, the fact that more than one woman is accusing him makes him look guilty. And, finally, the fact that intoxicants were involved and the parties involved previously knew each other complicates things.
I have seen more than one sexual assault case where multiple women made similar accusations against the same guy. When a defendant is charged with rape or sexual assault or molestation it seems as if there can only be one explanation for why different women make identical claims about what happened: that explanation is that it must have happened.
But, think about it. It depends on many variables, none of which we really know in Hickey’s case.
How did the different women find out about the other women’s accusations? Were they friends? Did they talk before they contacted authorities? Did they read something about the other women and have time to match it with their own accusations?
Or did they all come forward separately and independently without any knowledge of each other? If it’s that last scenario it’s pretty strong proof that it must have happened.
But, if they were friends, or talked before they reported it, or heard about the other accusation(s) and had time to conform their own claims to match, then we have a totally different situation.
The fact is that jurors automatically assume someone must be guilty if they are charged with doing the same thing more than once. This is why criminal defense attorneys file motions to sever the counts (charges), which move (ask) the court to separate the charges against different victims and set them for separate trials.
The court doesn’t always grant these motions. In fact, they usually don’t. Then it is up to the defense attorneys to uncover possible problems, such as prior contamination of witness testimony through suggestibility, or even collusion between the witnesses, which can be explained to the jury.
I once represented a man accused of sexually assaulting several women. The first alleged victim who came forward said that she and my client were both massage students. One night she called him very late, and suggested that they get together to practice massage. Right then. She came over, bringing with her a cold bottle of Chardonnay and proceeded to whip out a pot pipe and suggest they get a little buzzed before their “session”. She then suggested they take off all their clothes, go into the next room with their respective buzzes on, and begin to rub body oil all over each other.
Is it just me? Does this scenario seem a bit, uh, perhaps ambiguous? I mean, I’ve never heard of a woman wanting to conduct a study group by getting high and asking someone to rub warm oil all over her naked body. Law school was just not that exotic.
Is it possible that things got a bit… confused? Lines got blurred? Is it possible that this guy thought he was going to “get lucky”? Or did he see it as an invitation to rape? Of course, some sex happened, or I wouldn’t be talking about this.
But nothing is ever that simple.
Several days later she was feeling bad about what happened. She told her fellow massage student (and friend) about it. Turns out, her girlfriend had once also had sex with my client during a similar “study session”. Upon hearing the story, the friend suddenly remembered that he had also forced himself upon her. She had never said anything like that before; she reached this conclusion only after hearing her friend describe what happened to her.
After that the word went out. Suddenly several other students came out of the woodwork, all claiming similar things, all doing so only after hearing all about the first two.
My client was charged with multiple rapes. Reasonable people might reach different conclusions about this scenario; they might decide, as the prosecutor did, that my client was a dangerous rapist. Or they might wonder whether the women in some way influenced one another and convinced themselves that what had happened had been without their consent. They may wonder if the women felt weird or guilty about what happened, regretted it, and now wanted to disavow having sex with him willingly. In other words, maybe he was a addicted to sex, but not a rapist, and they felt weird about having sex with him.
So, you can see how two witnesses may not always be better than one, especially if they have had a chance to discuss their “testimony” before hand.
Even with only one woman (or man) claiming that a sexual assault occurred, like it or not, it gets complicated when friendship and drugs or alcohol are involved.
Take the situation where two former lovers get together for drinks – another case I had once. They were on friendly terms, and the woman initiated the date. The man, admittedly, was still in love with her and jumped at the chance to meet up. Several drinks were consumed. Before long, the woman had invited the man back to her place for more drinks, and, again, sex happened.
The next day the woman could not remember what happened. The man freely explained that they had had sex, and that he was amazed that she had been too intoxicated to remember. They had lived together for a year or two when they were together and she had not consumed more alcohol than normal for her. He actually thought this had all meant that they were about to move back in together.
She filed a complaint alleging rape. But, again, what had really happened? Stranger things have happened than for someone to have a few drinks, lose their inhibitions or judgment or whatever, and wind up doing something they wish they hadn’t. This can apply to people who lose control and commit assaults. But is it also possible that someone might engage in sexual activity while under the influence, and then regret it? I’m pretty sure that people having consensual sex after ingesting drugs or alcohol happens. I mean, there is a well-known song written about getting drunk and doing that.
These are but two examples of how cases like this, even when there is more than one witness, can be interpreted different ways.
This fact is true of many criminal cases. If a bank robber goes into a bank with a gun and a note to hand over the loot we have a pretty clear open and shut Robbery First Degree. But many crimes are not so clear-cut (of course, even with the bank robber scenario, proving identity is frequently not as simple as it seems, unless the robber is arrested at the scene.)
There is a reason defendants are presumed innocent unless and until a criminal charge is proven to a unanimous impartial jury of their peers beyond a reasonable doubt. And there’s a reason that the testimony of the witnesses must be evaluated by that jury only after they are able to observe the witnesses being cross examined by criminal defense attorneys. Only in that way can we flesh out and properly consider all of the possible explanations for things like “date rape”, as it is typically called.
But, remember, I admit that upon my first reading about this, I was pretty sure that Hickey was guilty of rape. It was only when I remembered how important it is to get all of the facts before reaching a conclusion that I reconsidered.
Hopefully everyone remembers this when they read articles accusing even famous people of crimes. The tendency is to believe that it must have happened or they wouldn’t be accused. But the fact is that sexual assault allegations are often not as simple as they first appear to be.
When sexual assault happens it is horrible. When someone is falsely accused of such a thing it is horrible. Unfortunately, it is simultaneously one of the worst crimes to be charged with and one of the easiest to be falsely accused of.
For this reason everyone, whether reading about it in The Stranger or sitting as a juror in a courtroom, needs to be incredibly careful before jumping to conclusions.
You may have noticed that I left my sarcastic humorous self at home on this one. Rape is just too serious of a topic for that.