26 April 2010

Rape Charge Dismissed After Article 32


Being a victim of rape is obviously a terrible thing. A close second to this is being falsely accused of rape. False allegations of rape are serious. They have the potential of destroying the lives of the person accused - costing the accused his career, his family and even his freedom.

Some in the legal system seem to believe that false allegations do not happen. They are quick to come to the aid of someone that says they were raped. Instead of making sure that the allegations are true, these individuals tend to reinforce the false allegation. Sadly, many in law enforcement ignore evidence that is inconsistent with their belief that a rape occurred.

This is the situation that an officer client of mine found himself in just last month. A female soldier alleged that he had raped her. Despite having evidence that the allegations were motivated by spite and regret over a sexual indiscretion, the government charged him with rape and aggravated sexual assault. Under the UCMJ, he was facing the very real possibility of spending the next few decades in prison.

At the Article 32 hearing, I was able to convince the Article 32 officer and the government that these charges were false allegations. The government chose to do the right thing. They followed the advice of the Article 32 officer and dismissed the rape and aggravated sexual assault charges.

If you have been accused of rape or some other offense, seek defense counsel immediately. Do not answer any questions about the alleged incident or talk to law enforcement until you have a defense lawyer present. If you are innocent, your first instinct may be to try to clear things up with law enforcement or your chain of command, but you need to realize that your words can be twisted and used against you. An attorney with a proven record of successful rape defense is your best ally if you have been falsely accused.




15 April 2010

LTC Faces a Court-Martial

LTC Terry Lakin, an Army doctor, is facing a court-martial for refusing to deploy to Afghanistan. Soldiers in the past have refused to deploy to Iraq or Afghanistan for various reasons. LTC Lakin's, however, is by far the most interesting.

LTC Larkin is refusing to deploy based upon his beliefs as a "birther" A "birther" is a group that does not believe that President Obama was born in the United States. As such, LTC Lakin considers any order from the President to be illegal. For more details on this story, go to the following link: CBS News.

08 April 2010

Client Satisfaction


Client satisfaction revolves around a complex set of factors that include, but are not limited to, competency and results. Client satisfaction is about the overall experience of working with a lawyer and law firm. Key factors that contribute to that experience include communication, responsiveness, and value. Communication is an essential aspect of any attorney-client relationship.

At the Law Office of David E. Coombs, client satisfaction is our number one goal. We take the steps necessary to ensure that the lines of communication are open. To facilitate communication, Mr. Coombs works in tandem with his clients to achieve the very best possible outcome in their case. At the beginning of a client relationship, Mr. Coombs will talk to the client to identify client objectives, discuss the sequence and phases of the case, communicate anticipated fees and costs, and answer all questions.

By continuing this dialogue as the representation progresses, Mr. Coombs will ensure you always have the answers you need to make intelligent decisions about your case. Office procedures are in place so that clients are updated regularly. And, of course, you will be advised of key developments in your case as soon as they happen.

The acid test for client satisfaction is whether the client feels that he or she is getting good value for the money being expended on the representation. Mr. Coombs takes pride in the fact that clients always feel that he has more than earned his fee. Satisfying clients is hard work for all attorneys. But, at the Law Office of David E. Coombs, it is an everyday occurrence.

07 April 2010

Crying Rape


Crying Rape
*The following is an excerpt from "False Rape Allegations: An Assault On Justice" by Bruce Gross, PhD, JD, MBA available at:  False Rape Allegations Article.
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Although there is no doubt that false rape allegations occur, it is extremely difficult to determine what percentage of rape reports are intentionally false. This is due to many factors, including jurisdictional variation in definition, criteria, and reporting practices, as well as the fact that not all rapes are reported. Although the FBI had set 8% as the average rate of false (actually, unfounded) accusations during the late 1990s, there is remarkable variation in the estimates of false allegations of rape found in the literature (Kanin, 1994; Epstein, 2005). A review of those studies on false rape accusations conducted between 1968 and 2005 showed a percentage range from 1-90% (Rumney, 2006).
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Very little formal research has been conducted on the prevalence of false allegations of rape. One study looked at the 109 cases of forcible rape that were disposed of in one small Midwestern town between 1978 and 1987 (Kanin, 1994). The given town was specifically selected for study because the police department used a uniquely objective and thorough protocol when investigating rape complaints. Among other procedural safeguards, officers did not have the discretion to drop rape investigations if they concluded the complaint was "suspect" or unfounded. Every rape accusation had to be thoroughly investigated and included offering a polygraph to both the accuser and the accused. Cases were only determined to be false if and when the accuser admitted that no rape occurred. The researchers further investigated those cases that the police, through their investigation, had ultimately determined were "false" or fabricated. During the follow-up investigation, the complainants held fast to their assertion that their rape allegation had been true, despite being told they would face penalties for filing a false report. As a result, 41% of all of the forcible rape complaints were found to be false. To further this study, a similar analysis was conducted on all of the forcible rape complaints filed at two large Midwestern public universities over a 3-year period. Here, where polygraphs were not offered as part of the investigatory procedure, it was found that 50% of the complaints were false.
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Charles P. McDowell, a researcher in the United States Air Force Special Studies Division, studied the 1,218 reports of rape that were made between 1980 and 1984 on Air Force bases throughout the world (McDowell, 1985). Of those, 460 were found to be "proven" allegations either because the "overwhelming preponderance of the evidence" strongly supported the allegation or because there was a conviction in the case. Another 212 of the total reports were found to be "disproved" as the alleged victim convincingly admitted the complaint was a "hoax" at some point during the initial investigation. The researchers then investigated the 546 remaining or "unresolved" rape allegations including having the accusers submit to a polygraph. Twenty-seven percent (27%) of these complainants admitted they had fabricated their accusation just before taking the polygraph or right after they failed the test. (It should be noted that whenever there was any doubt, the unresolved case was re-classified as a "proven" rape.) Combining this 27% with the initial 212 "disproved" cases, it was determined that approximately 45% of the total rape allegations were false. Unfortunately, like the two studies presented here, the empirical studies that exist on the frequency of false rape allegations are sparse in number and have notable limitations. Small sample sizes and non-representative samples preclude generalizability. Regardless, the mere number of publicized incidents of false accusations of rape over the last two decades indicates not only a need for further investigation into the problem, but a better understanding of how to identify such cases.
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The Truth Behind the Lie
As with all of human behavior, there are numerous reasons why a person would lie about being raped. In the study of false rape allegations in the Midwestern town and state universities, over half of the accusers fabricated the rape to serve as a "cover story" or alibi. This included 56% of the non-student and 53% of the student false accusers. The most frequent context and motive for the fabricated rape was consensual sex with an acquaintance that led to some sort of problem for the accuser. The perceived problem was typically something that caused feelings of shame and guilt in the accuser (such as contracting a sexually transmitted disease or becoming pregnant), which was bound to be discovered and received negatively by family or friends. Approximately half of the accusers who were motivated by a need for an alibi identified the alleged rapist. Their goal was not to harm or cause problems for the acquaintance, but to protect themselves in what they perceived to be a desperate situation.
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As with most lies, the false rape accusation allowed the accuser to deny responsibility by creating an alternate reality into which to escape. The next most common reason for lying about being a victim of rape was revenge, rage, or retribution. In the Midwest study, this included 27% of the non-student and 44% of the student accusers. In these cases, the false victim had suffered some real or perceived wrong, rejection, or betrayal by the alleged rapist. As the purpose of making the accusation was to obtain some measure of revenge, the "suspect" was always identified. Researchers in the Air Force study also found that spite or revenge and the need to compensate for a sense of personal failure through an alibi accusation were the primary motives for false rape reports.
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There are a range of other reasons why women made false allegations of rape. For some, it was to meet the overwhelming need for attention often associated with Munchhausen Syndrome or Borderline Personality Disorder. In those cases a specific suspect was seldom identified. Others filed false reports in an attempt to essentially "extort" money from the accused, who was typically wealthy. Because the goal was financial, the accuser was typically not motivated to pursue the case through formal legal channels, preferring to push for a settlement. As with certain false allegations of child sexual abuse, false allegations of rape may be the unfortunate byproduct of "recovered memory therapy." False allegations (of child abuse and domestic violence, as well as rape) are also known to arise in the context of divorce and disputed child custody. Within the context of the military, false reports of rape may be filed in order to avoid deployment to war zones.
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Telling a Lie from a Truth
McDowell's research into the prevalence of false rape allegations provided some direction for the difficult responsibility of differentiating between a potentially true and a possibly false report of rape. McDowell compared the initial rape accusations made by "proven" victims with those made by "disproved" complainants. His analysis revealed a number of notable differences between the two groups. That is, there were certain characteristics or indicators that were found with greater frequency in baseless reports than in proven reports. For example, in terms of the initial disclosure, unlike false accusers, true victims tend to go directly to law enforcement to file a report. False accusers are more apt to tell family members or close friends, who either report the rape themselves or push the victim to do so.
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In discussing the alleged rape, false accusers may be unable to provide detailed descriptions of the rape or may provide too much detail. Although a significant number of true rape cases include numerous sexual acts in addition to penile penetration, those fabricating allegations of rape tend to describe very limited and narrow sexual activity. False accusers may describe the incident with inappropriate affect, such as pleasure or even pride. Because they may have never actually suffered a rape, the allegations of false accusers may be physically improbable (if not impossible) or bizarre. Perhaps most telling are numerous inconsistencies between the accuser's description of the rape and the presence or absence of physical evidence.
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Approximately 50% of the women who filed false reports claimed their assailant was a stranger or someone they knew indirectly (but whose name she never knew or couldn't remember). Claiming an unknown perpetrator makes the rape random and perhaps more importantly, makes the case unsolvable. This, in turn, frees the false accuser from the need to fabricate additional lies and the demands of being confronted by the alleged assailant. Another 30% of false reporters identified their attacker as someone they "kind of knew." In comparison, 75% of proven victims knew and were able to identify their rapist.
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It seems that the quality of physical injuries may be the most significant of all indicators. According to McDowell's findings, the physical injuries sustained by false victims tend to be inconsistent or "odd." Because the injuries are self-inflicted, they seldom involve highly sensitive parts of the body, such as the vagina, nipples, lips, or eyes. Similarly, the injuries of false complainants seldom involve permanent injury or disfigurement. As the wounds are self-inflicted, they tend to be on parts of the body that are easily reached by the false accuser. There may be numerous lacerations and abrasions, all of which are comparatively minor in severity. Unlike the true victim, false accusers may seem comparatively indifferent or nonplussed by their injuries. As suggested above, for the vast majority of false reporters, the allegation of rape solved a perceived problem the accuser was, or anticipated, facing. The same cannot be said for proven rape victims as, for most, rape marks the onset of numerous, long-term, and not easily resolved problems.
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None of the factors identified by McDowell are individually or independently conclusive or diagnostic of rape. Rather, the presence of one or more of the criteria suggests the possibility of a false allegation that should be carefully and sensitively investigated and explored. To test the efficacy of his criteria, McDowell had three independent judges review all of the initially "unresolved" rape reports using his criteria. This group included the cases of those women who had admitted their allegation was fabricated when confronted with taking a polygraph. For a case to be classified as "unproved," all three of the judges had to determine a given complaint was false. After the judges review, 65% of the cases in McDowell's study were found to be false. There is no certainty that any or all of the indicators identified by McDowell will be present in rape reports that appear to be "suspect." When present, however, they may serve to focus an investigation of the charges, as well as to guide the treatment of the alleged victim.
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The Cost of the Crime
In most jurisdictions, and lately especially in the military due to its renewed focus on sexual assault, the accuser must admit that the accusation was false before the charges against the suspect will be dropped. Yet before the accuser decides to recant, the life of the falsely accused may have been disrupted, if not destroyed. They may have suffered any number of inequities, such as being arrested and questioned; dealing with the expense of hiring an attorney; being subjected to time in jail; having trouble with their employer; and fall-out with family and friends, to name just a few. Even if the case is dropped, the reputation of the falsely accused may be irreparably harmed, because some people may believe the retraction was "pressured," and not true. Worse yet for the accused, the case may go to trial. Even if the falsely accused are acquitted, technically that does not mean they are innocent, only that they could not be found guilty. Regardless of the outcome of a criminal trial, the accuser can pursue civil action against the accused, resulting in further loss of resources. The worst possible outcome for those falsely accused of rape might be conviction and incarceration. There is no way of knowing the number of defendants who have been convicted of rape on the basis of a false allegation.
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One study found 28 cases in which the defendant had been convicted and served an average of 7 years in prison before being exonerated by DNA evidence (Connors et al., 1996). Of note, all 28 cases involved sexual assault with the trials taking place in the mid- to late- 1980s when DNA was not routinely tested. According to the Innocence Project, since 2000 there have been 156 cases of post-conviction exoneration based on DNA testing, an untold number of which involved sex crimes (Innocence Project, 2008). The average time the wrongfully convicted person served prior to release was 12 years. Regardless of the exact number, processing those who have been falsely accused of rape is a clear waste of legal, judicial, and penal resources. Essentially, there are no formal negative consequences for the person who files a false report of rape. Not only did the false allegation serve a purpose for the accusers, they actually never have to fully admit to themselves, their family, or their friends that the report was a lie. Although there are grounds for bringing legal action against the accuser, it is virtually never done. Even should a charge be filed, in most jurisdictions filing a false report is only a misdemeanor.
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When rape cases go to trial, alleged victims are protected by "rape shield statutes" - in the Military this is Military Rule of Evidence 412. In brief, these statutes are designed to prevent defense attorneys from using the accuser's sexual history "against" her. At the same time, these rape shield laws may suppress evidence related to the woman's history that is relevant to the issue before the court. In particular, they have been used to exclude prior false accusations of rape filed by the alleged victim. Although courts have ruled inconsistently on this issue, there is legal foundation for admitting prior false accusation into evidence in criminal proceedings (Epstein, 2005).

**When facing a false allegation it is critical that your defense is aggressively pursuing every piece of evidence.  If there is no physical evidence and no witnesses (especially if the victim delays in filing a report), the case will come down to the credibility of the accused versus the credibility of the accuser.  The general practice of law enforcement is to not confront their victim when there are inconsistencies in the alleged victim's version.  They do this under the well-meaning, but mistaken belief, that they are avoiding further traumatizing the victim.  By not confronting an alleged victim with their inconsistencies and their motives to fabricate, law enforcement is inadvertently facilitating the false allegation of rape.  When law enforcement does this, a victim will feel embolden, and worse yet, may even start to believe in the false allegation.  When this happens, then the likelihood of a false allegation of rape resulting in a conviction - goes way up.