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Susan Estrich
20 Aug 2014
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He Said, She Said

Comment

Not so many years ago, many states refused to prosecute cases of rape unless there was "corroboration" for the woman's complaint. (And in those days, it was always a woman.) Sometimes, for instance when more than one man was involved or when it was a black man being charged with raping a white woman, prosecutors and judges would ignore the corroboration requirement and let charges go to the jury without any witnesses or visible signs of beating, much less other physical evidence. On the other hand, when women complained about men they knew, worked with or dated, such requirements were enforced strictly enough that most women forced to have sex against their will never reported it to authorities.

The District of Columbia was among the last to abandon corroboration as a requirement in rape cases, in an opinion that I proudly drafted. I explained to my boss, the late (and great) Judge J. Skelly Wright, that I had been raped, and there were no witnesses and there was no evidence of physical injury because the rapist threatened me with an ice pick but didn't use it.

But getting rid of the corroboration requirement doesn't necessarily get rid of the problems it was designed to address. Quite the contrary. In rape cases, somebody is always lying; often, there are lies on both sides. Deciding who to believe should not turn on the race or political party of the accused. If we don't know and can't be sure beyond a reasonable doubt (or on the civil side, by a preponderance of evidence), then the matter should be dropped. We shouldn't be talking about it. I shouldn't be writing about it.

And yet, here we go again. Al Gore got a massage in 2006. Maybe powerful men should never get massages in their rooms, lest they be vulnerable to false charges, but I'm not willing to blame him for that.

There is certainly no law against it.

I have no idea what happened in that hotel room. Neither do any of the other people talking about it. Gore's spokespeople at first suggested he didn't remember and later denied the reports, leading to criticism that if the woman was indeed fabricating her complaint, why didn't he come out and forcefully deny it?

Easier said than done. Some years ago, an orchestrated leak charged that Tom Foley, on the eve of his ascension to the speakership of the United States House, was secretly gay, and that his marriage was a sham. On the day he became speaker, he held a press conference, with his wife by his side, to deny that he was gay. "Why didn't you tell me Tom Foley was gay?" my mother asked me later that night.

Denying that you beat your wife rarely works. "Dukakis Not Crazy, more at 11," was the headline that day in 1988 when my former boss was forced to deny another orchestrated rumor.

The Portland police have announced that they are reopening the 3-year-old investigation of a 4-year-old massage. Good luck. Proving such things — or disproving them — at the time is hard enough; doing either four years later is almost impossible. But until and unless an indictment is returned, there is no justification for a public debate.

No one should be immune from the law's prohibition of unlawful sexual contact, but innocence remains a defense. We all, hopefully, learned the lesson in the case of the Duke lacrosse rape scandal — about rushing to judgment and ruining lives on no proof.

The former vice president, no less than the Duke players, deserves to be tried, if at all, in a court of law, not in the tabloids. In the absence of proof, the less said the better.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Comments

6 Comments | Post Comment
"OUR" MOST CROOKED "CORPORATISM"!
OUR “MOST BELOVED” AMERICA'S MOST CROOKEDLY EVIL ANTI-AMERICAN “CORPORATISM”!
Most Respectfully, This Most Earnest Patriotic Appeal was also submitted to almost all of The Heads Our Churches and to almost all of The Presidents and Provosts of Our Universities – “personally”!
UNIVERSAL PSEUDO-CORPORATISM!!!
This Most-Loving Prayer was also addressed to Pope Benedict XVI – Most Faithfully!
THE WORST CRIME, EVER, AGAINST ALMIGHTY GOD'S HUMANITY – FOREVER?
(In True Honor to Dr. Martin Luther King's Most Patriotic Legacy!)
The Nucleus of Our Whole World's Ever-Growing Suicidal Nuclear Crisis is created by No Other than the most Defrauding and Most Greedy Ultra-Conservative and by the most Ultra-Libertine Politico-Religionism everywhere – Universally! Our Whole World has no True Religion anywhere!
The Nucleus of The Most-Dominant Over-Ambition of Our Universal True Atheism is none other than The Most Voracious Globally Inhuman “Corporatist” Economic Exploitation; all by the most Extreme Global Disregard to The Most Fundamental UNIVERSAL HUMAN LITERACY and also to The Most Fundamental UNIVERSAL GOOD-SAMARITAN HEALTH INSURANCE. These two together Indeed Constitute ALMIGHTY GOD'S TRUE UNIVERSAL ELEMENTAL DEMOCRACY'S Most Vitally Essential Means for TRUE INDIVIDUAL EQUAL OPPORTUNITY to reach THOSE INDISPENSABLE ALMIGHTY GOD'S INDIVIDUAL ELEMENTAL HUMAN GIFTS (RIGHTS), NO-MORE, NO-LESS!!!
All of Our Vast World-Wide Perpetually Shackled – AS ILLITERATE AND INFIRM – HUMANITY in Our Western World is ever more and more so “CRUCIFIED” as threatened with impunity by instilling in them “Our” Religionist-Inculcated Utmost Fear of “GOING TO HELL” if they have “NO FAITH” – that is, if disobedient to “Our” Politico-Religionist False “Leadership”; as just like telling them “THEIR ‘HEAVEN' IS LIVING IN OUR SATANIC EXPLOITATION”!
Our Totally Politico-Religionist Western World has always even tried to expand Our Most Voracious Greedy Corporatism to Our Islamic Eastern World's “Friendly” Governments, but I most-strongly suspect that Islamic Religionism has an opposite but Equally Religionist-Inhuman Self-Defense: when Our Western Corporatist Inhuman Intervention reach their Eastern Critical Religionist Level – as in Our Unending Warring Perplexity with The Islamic World – Their Islamic Religionist Counteracting General “'Inspiration'-To-Go-To-Heaven” is no other than Their Ultra-Terrorist “Salvific” Individual Self-Immolation!
ALL OF THESE, FOR SURE SO FAR, ARE THE IRREFUTABLE PORTENDING SYMBOLISM OF A-MOST CERTAIN-NUCLEAR ARMAGEDDON: THERE IS NOT THE SLIGHTEST DOUBT ABOUT THE CERTAINTY OF THE WHOLE WORLD'S TOTAL HOLOCAUST! MAY WE TRULY PRAY, SO THAT WE ALL – TRULY AND SOLIDLY HONEST AMERICANS – REALLY ENABLE THE ALMIGHTY GOD TO BLESS (SAVE) OUR MOST BELOVED TRUE AMERICA!!! OTHERWISE, ANY OTHER “CRIME” OR “ABORTION” IS AN INNOCENT BY-PRODUCT!!!






Comment: #1
Posted by: Octavio Saenz MD Sr
Fri Jul 2, 2010 7:51 PM
"OUR" MOST CROOKED SATANIC RELIGIONISM!
OUR “MOST BELOVED” AMERICA'S MOST CROOKEDLY SATANIC ANTI-AMERICAN RELIGIONISM!
Most Reverently, This Most Earnest Patriotic Appeal was also submitted to both All The Presidents of The Universities, and to Their Provosts – submitted to both personally.
UNIVERSAL RELIGIONISM !!!
This Most Loving Prayer was also addressed to Pope Benedict XVI – Most Faithfully!
This is about The Most Criminal, World Wide, RELIGIONISM – Ever!
All that Our Whole World has ever needed - and still presently needs, foremost and more than ever – is A TRULY AMERICAN National Incorrupt Reevaluation!
“HAPPY HOLIDAYS”!!!
“MERRY CHRISTMAS”!!!
“HAPPY NEW YEAR”!!!
“HAPPY NEW CENTURY!!!”
ALMIGHTY GOD'S “NUCLEAR” WORLD'S TRUE AMERICAN DEMOCRACY; THAT IS, UNIVERSAL INDIVIDUAL EQUAL HUMAN OPPORTUNITY TO ACHIEVE ALMIGHTY GOD-GIVEN HUMAN RIGHTS (HIS “BEST” “GIFTS”), - NO-MORE AND NO-LESS - shall never exist for us in “Our America”, and in our “Free” “Nuclear” World, UNTIL BOTH MOST CRUCIAL GOD'S DETERMINANTS – UNIVERSAL FUNCTIONAL LITERACY AND UNIVERSAL “GOD-SAMARITAN” HEALTH INSURANCE – are Legislatively COMPELLED (CONSTITUTIONALLY) as a Fully-Punishing TRULY HUMANITARIAN CRIMINAL LAW; that is, until Our Insatiable Ultra Filthy-Wealthy CORPORATIST “American” Government so give The True Example, OF SUCH A SACRED UNIVERSALLY HUMAN EQUAL OPPORTUNITY, for the sake of Our Most Exploited and Most Suffering Illiterate and Sick “American” World!
Almighty God did not write HIS BIBLE just to “Inspire” The Implacable Religionist “Sacrosanct” Church-like Corporations of This World to use IT as toilet paper – that is, to use IT as Such a Globalized, Religionist, Materialist, PIOUSLY MUM, AND SO ULTIMATELY EQUALLY SUICIDAL-TERRORIST, SUBLIMINAL INHUMAN EXPLOITATION!
Why “THE TRULY UNIVERSAL CHURCH” - as “FREE AND SEPARATE FROM THE STATE” - NEVER TAKES ALL OF THESE, AS ITS TRUE DAILY PREACHING INITIATIVE – AS ITS TRUE RELIGIOUS LEADERS DID BEFORE???!!! BECAUSE THEY ARE NOT ANY- MORE “THE TRUE SERVANTS OF ALMIGHTY GOD” (AS THEY SO “FERVENTLY” CLAIM) BUT OF THE GOVERNMENTAL “MOST COMFORTABLE” RAPACIOUS CORPORATIST MOST INHUMAN WORLD POLITICS OF EXPLOITATION!!!
WHY ABSOLUTELY NOBODY SAY ANYTHING – SPECIALLY AT THE MOST IMPORTANT ELECTIONS' TIME -- ABOUT DENOUNCING AND UPROOTING ONCE AND FOR ALL OUR EVER ANTI-AMERICAN AND ANTI-DEMOCRATIC MOST SHAMELESSLY “HIDDEN” EVER HIGHEST LEVEL OF OUR WORLD'S ILLITERACY AND LACK OF “GOD-SAMARITAN” MOST BASIC HEALTH INSURANCE!
THE TRUTHFULNESS EVER MISSING IN ALL OF OUR POLITICAL SPEECHES PRETENDING TO “HONOR” OUR MOST BELOVED AMERICA – AND MOST SORELY MISSING FOR OUR SALVATION – IS THE TRULY POLITICAL AND TRULY RELIGIOUS TRULY DEMOCRATIC INSPIRATION!
WHY ARE WE SO SILENT AND OBSTINATE?
MAY WE TRULY PRAY THAT WE ALL TRUE SOLID AMERICANS REALLY ENABLE ALMIGHTY GOD TO BLESS (SAVE) OUR MOST BELOVED TRUE AMERICA!!!
OTHERWISE, ANY OTHER “CRIME” OR “ABORTION” IS AN “INNOCENT” BY-PRODUCT!!!















Comment: #2
Posted by: Octavio Saenz MD Sr
Fri Jul 2, 2010 7:54 PM
Dear Ms. Estrich,

Talk about absolute gall, it was the Liberals who savaged the Duke Lacrosse Team men. How dare you attempt to link us moderates and Conservatives who did wait to see before coming to a conclusion to the bigoted Liberals and your absurd statement 'We all hopefully learned the lesson in the case of the Duke players' should read I and my Liberal friends all hopefully learned a lesson.

How do you sleep at night with the absolute hypocrisy you stated in this column?

Nuff Said...Dennis
Comment: #3
Posted by: Dennis
Fri Jul 2, 2010 7:58 PM
You argue that there need not be corroboration to prosecute a sexual abuse/assault case, but then state that the mere discussion of this particular accusation should be off limits.
What level of evidence is required for us to discuss the matter? When we are in possession of a detailed, internally consistent story that has not changed over time, why do we have to rely on a prosecutor's office for us to draw our own conclusions?
Based upon her police statement, and assuming the introduction of other evidence (such as near-contemporaneous notes, referenced in the police statement), I would find Gore did what she said he did, not beyond a reasonable doubt but by the preponderance of the evidence. Am I allowed to discuss it, but you are not? The woman, who has no evidence of having been high or crazy, calls a friend that night, she calls a rape crisis hotline within 72 hours, and writes a statement of the event soon thereafter. There was no motivation to lie (she's a very inefficient gold digger), and plenty of motivation to withhold the presentation of the case to the police. Look, even Susan Estrich essentially says she needs corroboration and by the way Duke lacrosse case, people in cases like this often lie on both sides, etc. And you're one of the more civil ones.
The Duke Lacrosse case should not be some magic talisman to undermine all allegations of illegal sexual contact. In that case, just by the first example of inconsistent testimony enumerated in Wikipedia, the accuser changed the number of attackers from 20 to 3. There is nothing like that here.
You also implicitly fall into a strange fallacy of demanding a trial to establish the truth of a matter. Under that theory, Mohamed Atta never dove a plane into the World Trade Center. Where was the trial?
It's so interesting that on one hand, you tout the lack of a need for corroboration, then spin around and say, none of the people have any idea what happened in the room, and there's no "proof". Of course, that's conclusory. If you need corroboration, then there's no proof. If you listen to the accuser's statement, and think how possibly this all fabricated, then the matter is ripe for public discussion.
Comment: #4
Posted by: weffie
Mon Jul 5, 2010 4:27 AM
Corroboration or no corroboration, every woman who is raped should report immediately, get a physical examine for evidence, tell supportive family or friends immediately, and take it as far as she can get in the legal system. She should not expect a conviction, however. We're nowhere near the place where a woman's word carries equal weight with a man's. Even other women are prejudiced against a woman who claims rape. The point should be to tell the truth of what one man did to her, not just suffer in silence. If he gets a bad reputation and some other woman steers clear of him, that's good, too.
Comment: #5
Posted by: Laurie Craw
Mon Jul 5, 2010 8:18 PM
Dear Ms. Estrich,
I welcome your observations on this event. I am an admirer who has read many of your works, including your essay on rape and your experience of that crime. Having said that, the complainant in this instance has not claimed that she was 'forcibly penetrated', rather that she was traumatized by a 'crazed sex poodle' or words to that effect.
The complainant is a fifty something massage therapist who has practiced in the industry for many years. Are we to believe that no one had ever propositioned her previously? I would think that would be what is known as an occupational hazard. I really have to ask, where is the harm that has been perpetrated upon this complainant? And yet, the debate is raging far and wide, at the expense of Mr. Gore.
I have to divluge a certain prejudice regarding these matters. I am a sixty something woman whose only son is sitting in a Texas prison under a sentence of thirty years for having 'raped' the mother of his three children.
I guess you could say I have a jaded view of what young women, and now it would seem old women, describe as sexual assault. Thank you for your balanced commentary.
Marsha James McClanathan
Comment: #6
Posted by: Marsha James
Wed Jul 7, 2010 3:56 PM
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