More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them.
This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following:
• A lack of credible witnesses.
File this under “Now I’ve really seen it all,” and “This world is spiraling down faster than a toilet flush.”
I am — what are the words here? – disgusted, mortified, shocked and appalled at the new “Animals” music video that was released this week by one Adam Levine, the American ‘singer’ who heads the group Maroon 5. In this disgusting display of blood-lust, violence, and criminal intent, Levine plays a butcher who stalks a woman (played by his real-life wife, who must be just as twisted as he), secretly takes pictures of her, and then ultimately sexually assaults her while blood rains down on both of them. Oh yes, and he apparently cuddles with slabs of bloody meat. I saw just seconds of the video, and I wouldn’t waste another nano-second. Part of me wants to speak out against this maggot, as a Boston criminal defense lawyer who sees far too much violence in the media; part of me hesitates even saying a word here because I know that it will only further publicize this twisted moron’s video. I’ll err on the side of speaking out against this perversity, which is one step away from a ‘snuff film.’ (If you don’t know what that is, Google it — be warned, even the definition is not for the sensitive.)
Gratefully, I have seen that many people are outraged at this porno performance, and I’m glad. The Rape, Abuse & Incest National Network RAINN, has spoken against this new video, calling it “dangerous” and a “stalker’s fantasy.” Katherine Hull Fliflet, the vice president of RAINN said in a statement, “[This video] is a dangerous depiction of a stalker’s fantasy – and no one should ever confuse the criminal act of stalking with romance. The trivialization of these serious crimes, like stalking, should have no place in the entertainment industry.” RAINN operates the National Sexual Assault Hotline and features programs to prevent sexual assault, help victims, and ensure that rapists are brought to justice.
According to press reports including The Enterprise of Brockton, Bridgewater State University police campus recently received allegations of two rapes on campus. University officials didn’t make the reports public and inform students. Sound like a foolish, ridiculous decision, no? Before the usual names in the feminist community start screaming how callous this is, and how it’s evidence of misogyny, let’s take a more careful look.
The reason the information wasn’t made public on campus and off? The suspects involved were quickly caught and there was no continuing danger, according to university officials. According to an Associated Press report, the alleged assaults were reported separately on Sept. 3 and Sept. 20. One allegedly occurred in a gym, the other in a dormitory. The university’s decision was explained by Fred Clark, executive vice president and vice president of external affairs, who told The Brockton Enterprise if there’s no perceived ”continuing threat, we don’t send out a notice if a crime occurred.”
Was this the right decision? As a Norfolk County sex offense attorney, I think so. My feeling hinges no only on the presumption of innocence afforded the defendants, but the lack of a continuing threat. I think that the University should have doubled-up the campus police presence and offered increased student awareness training. But to report a continuing threat where the alleged threat has by all appearances been removed, I’m not sure these circumstances justify panicking some students. And let’s not place last on the list: The reports involve allegations. No one yet knows what really happened in these incidents. Boyfriend-girlfriend fights are not all uncommon in these campus situations. Trust me; I’ve defended many a Massachusetts sexual assault charge, where the accusations were completely false. That goes for straight and gay couples, both.
I’ve said something in particular about Massachusetts sexual assault cases on this site many times, but this time I have some more local and recent evidence to make the point again, so here goes:
People will occasionally ask me how I can defend people accused of sexual offenses, such as Massachusetts rape charges or Indecent Assault and Battery charges. My standard answer: “Because the defendant may not be legally guilty of the crime.” Let me make clear: Rape and sexual assault of any kind is an abhorrent crime. And for those found guilty after being prosecuted with solid, incontrovertible evidence, they should be punished accordingly to the law – after they have been given a fair and impartial trial, and have received a competent, aggressive legal defense in court.
But let me make something else clear, based on my almost 25 years of experience as a Boston, Massachusetts rape charges lawyer: Just because someone screams “rape,” does not always mean the person charged is guilty of that crime. What circumstances could make that so?
If it’s up to a company called DrinkSavvy, that straw in your mixed drink – and the plastic cup that holds it – may prevent future incidences of drug rape or date rape.
Here’s a typical “drug rape/date rape” scenario. An attractive woman – or man – is in a bar or nightclub. They could be on a date with someone, or have just met someone. Unbeknownst to that person, their “date” or the person they just met, spikes their drink with a drug that’s designed to neutralize their judgment and memory. The motive? Unconsented-to sex – which is legally rape in Massachusetts.
Up until now, innocent victims of this practice (which used to be known as “slipping a Mickey” to someone,) had no idea they were being given such a drug – not until, usually, the end of the evening, when they woke up after their drugged stupor, and realized that they have been raped.
Some people just don’t get it. What I mean, is that some people just don’t seem to understand that rape is a crime. And not just a word to use – and misuse – in a song.
In another display of complete insensitivity – and stupidity – a rapper, who I will not advertise here, recently wrote a song that condones the crimes of sexual assault and rape. Here are the lyrics to his rape — er, I mean, rap – song. “Put molly all in her champagne, she ain’t even know it/ I took her home and I enjoyed that/ she ain’t even know it.” The words in this song are about placing a drug into a woman’s drink without her knowing it, rendering her unconscious, and then raping her. What an offensive song to listen to.
As a Boston, Massachusetts rape lawyer, I can tell you that no woman in her right mind would ever pay the mere 99 cents it costs to download this “music” (and I use that term loosely.) And by the same token, no man worth his scruples would do the same either. Lyrics like this insult us all. When are these ignorant rappers going to realize that people do not want to hear crimes glorified in music lyrics? Furthermore, when are rappers going to understand that rape is a serious crime? Even worse, when are recording studios and record companies going to wake up and STOP the glorification of this and ANY kind of violence in “music”?
In my career, more than one person has asked me the oft-repeated question, “How can you defend people accused of rape and other terrible crimes?” My answer is always the same: “What if it were you who were accused? Would you want everyone to just assume that you were guilty, and throw away all presumptions of innocence and legal safeguards? Because someone is accused of a crime does not necessarily mean that they are guilty – legally guilty or factually guilty.”
Exhibit “A” on that point is a case I wrote about a couple of months ago, concerning a Boston University student by the name of Max Nicastro, of Thousand Oaks, CA, who was accused of rape by a female student. NiCastro was a star on the BU men’s hockey team, and thought by many to be headed for a career as an NHL pro. He had been a 2008 draft pick for the Detroit Red Wings; he had a promising career.
All that ended with the pointing of an accusatory finger by the young woman who made the accusations against Nicastro (the woman’s name was never released for understandable reasons): After he was arrested on February 19, he was suspended from the BU hockey team, and “withdrew” from the school (there was no comment at the time from either BU or NiCastro as to whether his departure from the school was voluntary or not.) Fast forward 3 ½ months to present: It seems that after extensive investigation, Suffolk County District Attorney Daniel Conley’s office has decided to drop the charges against NiCastro. Reason: Insufficient evidence to prove their case. The DA’s own office acknowledged that the office and “had an ethical obligation not to pursue it further.” Exactly what happened, I’m not presently aware. And I laud the DA’s office for reaching the decision they did. I think Dan Conley is a responsible and ethical prosecutor. I’ve worked with many a District Attorney’s office in defending Massachusetts sexual assault cases, and I know this: If they had any credible evidence to move the case forward, they would have.
As a Massachusetts rape attorney, it is my duty to zealously defend my clients to the best of my ability. However, there are certain things a rape defense lawyer cannot do in the process of defending a client in court.
In the past, criminal defense lawyers would utilize a certain strategy in order to win their rape cases. This very frequently involved bringing up information about the alleged victim’s prior sexual history, and thus, undermining the accuser’s credibility. This now-outmoded legal practice discouraged many alleged rape victims (almost always women,) from pressing charges at all, for fear of aggressive cross-examination in court about their sexual history. Many people, primarily women’s rights activists, felt this courtroom practice should be prevented, since merely because an alleged rape victim may have been sexually active in her (or his) past, did not necessarily mean that the alleged victim consented to the sexual contact that was at issue in a rape trial.
Things have changed, and most people can understand why. In all states today with the exception of Arizona, there exist “rape shield laws,” which prevent the defense from introducing evidence of an alleged rape victim’s prior sexual history or alleged sexual reputation. These laws were gradually introduced state-by-state in the 1970’s. In this state, the Massachusetts Rape Shield Law does not permit the introduction of a rape victim’s prior sexual history and sexual reputation by a defendant’s attorney. That law is governed by Massachusetts General Laws. Ch. 233, Section 21B. Before Massachusetts enacted its own rape shield law, a Massachusetts rape defense lawyer could employ this strategy in a variety of cases, not only in a Massachusetts rape charge, but in a variety of Massachusetts sex crimes charges, including statutory rape, aggravated rape, and assault with intent to commit rape.
Convicted rapist William Polk of Dover, Massachusetts, has good reason to be optimistic today, now that the Massachusetts Supreme Judicial Court has granted him a retrial on the statutory rape charges he was convicted of two years ago. Mr. Polk was convicted in February, 2010, on two charges of Massachusetts statutory rape, for allegedly raping a then 15-year-old girl. What was highly unusual in the case was not the questionable testimony involved, but that almost the entire town of Dover actively spoke out in support of Mr. Polk while he was awaiting trial, during his trial, and after his conviction. Indicative of the level of community support he received, after Mr. Polk was indicted and charged, he was not fired from his job as a sports coach – working with high school-age students – in Dover.
After a jury deliberated five days, the jurors returned a guilty verdict. Superior Court judge Janet Sanders sentenced Polk to four to five years in state prison, but his attorney appealed his conviction. The court granted his application for direct appellate review, and this week ruled that defense testimony was improperly excluded by Judge Sanders, ordering a retrial.
Court documents reveal that there was an exclusion of evidence at the trial two years ago, indicating prejudicial error in the process. That evidence pertained to the expert testimony of a licensed psychologist, Dr. Daniel Brown, and the victim’s biological mother. Dr. Brown’s testimony, for example, would have revealed that he believed that the alleged victim had a psychological condition known as “dissociative amnesia,” and thus, could have fabricated or distorted her allegations against Polk. But Judge Sanders ruled, in favor of the prosecution, that Dr. Brown wasn’t allowed to give his testimony in the Norfolk Superior Court trial. At the time of the trial, Judge Sanders ruled that Dr. Brown’s opinion was speculative.
Call this one the April Fool’s Joke that no one thought funny.
It was all about Massachusetts rape, Massachusetts prostitution, and Massachusetts date rape, involving fairytale characters.
It seems that the editor of the Boston University Daily Free Press newspaper – who interestingly enough, is a woman – thought it would be hilarious to feature a special April Fool’s edition that made light of Massachusetts rape on campus. The editor, one Chelsea Diana, had a top story about seven dwarves who sexually assaulted a student, and included a picture of Snow White drinking a cocktail spiked with a Massachusetts date-rape drug.
The Kickham Comment - Boston Criminal Attorney Blog
