What if You Were Falsely Accused?

Alan Dershowitz has a terrific op-ed in the Wall St. Journal, "A Nightmare of False Accusation That Could Happen to You."

I don't know how he tells the whole story in one op-ed column, but he does. My last post on his current travails was 5,000 words.

Go read Dershowitz. You'll learn a few things about the shortcomings of the criminal justice system. As he puts it, if there's no legal recourse available to someone with all of his resources, what does it mean for the rest of us? [More....]

He explains his situation in two paragraphs, and makes it crystal clear he has never met the woman who is accusing him and never had sex with anyone except his wife during the relevant time period.

Imagine the following situation: You’re a 76-year-old man, happily married for nearly 30 years, with three children and two grandchildren. You’ve recently retired after 50 years of teaching at Harvard Law School. You have an unblemished personal record, though your legal and political views are controversial. You wake up on the day before New Year’s Eve to learn that two lawyers have filed a legal document that, in passing, asserts that 15 years ago you had sex on numerous occasions and in numerous locations with an underage female.

The accusation doesn’t mention the alleged victim’s name—she’s referred to as Jane Doe #3, and the court document includes no affidavit by her. But her name doesn’t really matter, because you have never had sex with anyone other than your wife during the relevant time period. The accusations against you are totally false, and you can prove it.

Well, that is my situation: I’m the one who has been falsely accused. But let’s continue to imagine it was you.

In another post on the Dershowitz claim, I wrote:

Have they explained how their filing, on a dead news day (the day before New Year's Eve) in an obscure federal civil case that as far as I can tell, no major publication in this country outside of the Palm Beach Daily News regularly reports updates on found its way to the Miami Herald, the Washington Post, the Wall Street Journal, the New York Times, and world media by Jan. 3? It's hardly a time reporters sit around scrolling through PACER. It seems to me someone tipped the media.

Dersowitz writes in the op-ed:

How did the accusation get from a court filing in an obscure courthouse in Florida to the first page of many newspapers and the first item on many television broadcasts? Obviously, it was leaked; who is going to be checking court filings the day before New Year’s Eve.

One point I didn't make yesterday: The docket in the case has plenty of sealed pleadings. Why didn't Jane Doe #3's lawyers at least seek to file the pleading under seal, due to the nature of the allegations against Dershowitz? They didn't hesitate to ask the court to seal pleadings that revealed information about their clients they thought was too "personal."

The media double standard of naming the accused and detailing the allegations against him while shielding the identity of his accuser, who has not yet been found to be a victim , needs to end -- especially when the accused says it is a false accusation. The Kobe Bryant case was one of the most egregious examples in my view.

Just last month in Colorado, a woman was sentenced after a jury convicted her of falsely accusing a man of rape:

The Fort Collins woman told police in November that Dustin Toth, then 25, had kidnapped her from the Windsor Safeway parking lot, and drugged and raped her at knifepoint at his nearby home before she was able to run from the house.

Toth was arrested, but the case against him was quickly dropped when police discovered Bennett had fabricated the entire story.

Her sentence: 32 days. Not much of a deterrent. What happened to the man she falsely accused?

Toth said he lost his job at OtterBox and was barred from deploying with his Army National Guard team to Cuba. He has since struggled to find work, been denied on multiple apartment applications and has become prone to anxiety attacks, he told the judge Friday.

The judge told Toth:

"You have been a true victim," Kerns said to Toth, sympathizing with the setbacks and lack of follow-up media coverage since his name has been cleared. "You are unequivocally a very good person."

It's interesting that the judge mentioned the lack of media follow-up. I think that's a consequence of living in a society where guilt sells and there's little public interest in innocence. Without public interest, there's fewer readers and lower TV ratings, which translates to less revenue for the media organizations. So they don't cover it. How many people can remember the name of more than one wrongfully convicted innocent person released from prison after 10 or 20 years? I'd bet not many.

When a person, male or female, accuses another person of sexual assault, the media should either protect both of their identities, or neither. Especially when the person accused says the claim is false.

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    Professor Dershowitz, it (5.00 / 1) (#17)
    by KeysDan on Thu Jan 15, 2015 at 04:20:35 PM EST
    seems to me, is facing a challenge that is different from those of his long and distinguished career where he has focused on the defense of others.  The inseparable emotional attachment to the accusations may prevent his mounting an effective defense.

    While not to the point of "he who serves as his own lawyer has a fool for a client" (he does, I believe, have his own counsel), he certainly runs the risk of being much too close to his client.

    His crafting of the WSJ article gave opportunity for study, external input and reflection, and it shows.  However,  television interviews that I have noted were more defensive than defense.  He seems to be working hard to suck all the charm out of his defense rather than to generate sympathy for his claim to outrageous charges.

    How many can remember? Peter G, for one. (none / 0) (#1)
    by Mr Natural on Thu Jan 15, 2015 at 05:07:59 AM EST
    I wouldn't worry too much about Dershowitz.  He can take care of himself.  Moreover, he's going to enjoy taking care of himself.  This could be the biggest battle of his life, the most involving, and therefore, the most fun.

    Thank you (none / 0) (#8)
    by Peter G on Thu Jan 15, 2015 at 11:16:40 AM EST
    for the nod.

    yeah, i'm figuring mr. D is crying crocodile tears (none / 0) (#2)
    by cpinva on Thu Jan 15, 2015 at 09:08:45 AM EST
    unlike mr. toth, Prof. Dershowitz has plenty of media exposure, at a phone call, to make sure his name is cleared in the public forum. when he takes the next step, and agrees, pro bono, to help those, such as mr. toth, to get their names cleared in the public forum as well, i'll take his whining a tad more seriously.

    i don't expect to have to.

    He is representing Mr. Polanski, (none / 0) (#32)
    by oculus on Sat Jan 17, 2015 at 12:56:35 AM EST
    a conficted felon, who serks dismissal of the criminal case.

    My one quibble is (none / 0) (#3)
    by Big Tent Democrat on Thu Jan 15, 2015 at 09:55:02 AM EST
    I think Dershowitz has been the main person publicizing the allegations.

    Why not just file your legal papers and only respond outside it if the story goes big?

    well, yeah, he could do that. (none / 0) (#4)
    by cpinva on Thu Jan 15, 2015 at 10:02:43 AM EST
    but then he wouldn't get to be all self-righteous and everything in public, now would he? no, he wouldn't, and.....................ok, that's all i got.

    We all know Dershowitz (none / 0) (#7)
    by Reconstructionist on Thu Jan 15, 2015 at 11:08:18 AM EST
      craves attention and that's going to color some people's perceptions, but these are not run of the mine allegations. Unless you're a Rolling Stone being accused of adulterous statutory rape is the kind of thing that understandably would provoke extreme action. Using every weapon at your  disposal to refute the allegations seems a reasonable response to me.

      I don't think the legal outcomes---either his, Doe's or her attorneys' ---are his real concerns. I believe he wants to do everything he possibly can to make people believe the allegations are false. I also think it is a reasonable assumption on his part to believe that the scorched earth tactics will do more good than harm when it comes to causing people to believe him.

       There is reasonable cause to believe that a different approach would cause some to think:

     Dershowitz,  a man who never before passed up an opportunity to dive in front of a camera, is being uncharacteristically   reticent, does he have something  to hide?


    My little quibble is (none / 0) (#6)
    by lentinel on Thu Jan 15, 2015 at 10:48:58 AM EST
    with this:

    He explains his situation in two paragraphs, and makes it crystal clear he has never met the woman who is accusing him and never had sex with anyone except his wife during the relevant time period.

    He seems to imply that outside of the relevant time period, he might have ... strayed.

    Do we need to know that?

    All he needed to say is that he never had sex with that woman...
    and leave it at that.


    For what it's worth, that phrase struck me (none / 0) (#10)
    by Anne on Thu Jan 15, 2015 at 11:30:45 AM EST
    the same way; it may just be an inartful turn of phrase, or a reflection of the lawyer's tendency to qualify everything.

    He's been married to his current wife for nearly 30 years; his first marriage ended in divorce in 1975, I think, and his ex-wife committed suicide not long after.  There was a stretch of time, I guess, between his divorce and meeting and marrying his second wife, during which time it's reasonable to think he was dating and having sex.


    Yes, well... (none / 0) (#19)
    by lentinel on Thu Jan 15, 2015 at 04:58:53 PM EST
    but.. he writes:

    But her name doesn't really matter, because you have never had sex with anyone other than your wife during the relevant time period.

    Maybe it's just me, but I don't particularly want to hear that he had sex with his wife either...

    Certainly not around dinner time anyway.;;


    Might that not be just a tad... (none / 0) (#21)
    by gbrbsb on Fri Jan 16, 2015 at 06:57:48 AM EST
    ... oversensitive or prudish?

    I mean, AC doesn't out and out say he had you know what  -- should you be reading this at dinner ∑`●) -- with his wife but that a fictitious accused did... well, the fictitious accused 'did' YKW with his own wife, that is,  not with AC's!

    And perhaps I'm naive, but the way it's written, and even though he affirms it's his story too, it doesn't to me in any way leave him implying that outside the relevant period either he or the fictitious accused 'might' have strayed (goes without saying that either could have), merely limits the denial to the time period in fictitious or real issue, something any lawyer would advise his client to do anyway.

    Personally, and contrary to Anne above, I find involving the reader as the falsely accused an artful, emotive and compelling way of getting his version and his situation across and certainly a much more emphatic and decisive way of saying exactly what you think he should have limited himself to saying, i.e.:

    "I never had sex with that woman...",

    Words that for cases as these I would have thought had been rendered pretty much meaningless in the US by Clinton, and that have even less meaning for his critics and doubters since the obvious reply to them is just as the call-girl Mandy Rice-Davies quipped to the prosecution when questioned about Lord Aster's denial under oath that he even knew her in a scandal that brought down a UK Government,

    "Well he would say that, wouldn't he!"

    "contrary to Anne, above?" (5.00 / 2) (#31)
    by Anne on Fri Jan 16, 2015 at 07:18:43 PM EST
    Talk about a false accusation...

    I never made the point you claim I did; I responded to lentinel's mention of the qualifying phrase, and added some additional information.

    You should really be more careful about ascribing to others comments they didn't make.


    My mistake for which I sincerely appologise. (5.00 / 2) (#33)
    by gbrbsb on Sun Jan 18, 2015 at 03:15:38 PM EST
    That said, I believe my mistake was even worse than you note. I didn't ascribe just a "comment" to you, more like a complete literary critique!

    And not, I can assure you, from disrespect or reckless disregard for your words or opinions, rather I recalled your comment using the term, previously unknown to me, "inartful" but forgot you were using it to refer to a single phrase. My fault further compounded when I wrongly assumed that by "inartful" you were aluding to the author's writing skills and focus, (i.e. devoid of "art") and adjudicated it as your opinion for the whole piece.

    A positive outcome was that I researched the term "inartful", and after discovering that it does not figure in any mainstream dictionary and finding a very appropriately named humorous piece titled, "Why "inartful" isn't in the dictionary", (imo worth a read), in which an Oxford University Press Lexicographer explains why he thinks it isn't, I finally recalled a second interpretation that as a Brit weaned on Dickens I should have known all along, i.e. the "artful dodger" in Oliver Twist.

    I was at least consoled by the fact that persons much more knowledgeable and better read than I have been misled by the term, not least the author and etymologist William Safire whose delightfully witty and sarcastic piece for the New York Times, "INARTFUL", imo a very worthwhile read, relates his gaffes with the ever changing meaning of the term in the political arena.

    Of course none of the above exempts my fault so I once again apologise and take on board your advice to try to be more careful in the future.


    Apology accepted - thank you. (5.00 / 1) (#37)
    by Anne on Mon Jan 19, 2015 at 09:00:27 AM EST
    We've all been there a time or two, and I appreciate not just the apology, but the gracious way it was communicated.

    Dersh (none / 0) (#22)
    by lentinel on Fri Jan 16, 2015 at 09:51:21 AM EST
    is clearly talking about himself - the Harvard professor etc...

    In setting up the denial of the charges levied against him - I reiterate that all he would have had to say is that he didn't schtup the lady in question - ever.

    Adding his bit about "outside the relevant period" is, as Anne says, perhaps lawyerese... although I personally feel it adds nothing to the dialogue or the disclaimer.

    But he absolutely did not have to refer to his conjugal relations with his old lady. No way.

    I do not consider myself to be over-sensitive or prudish. But I do consider myself to be sensitive to what comes across as unnecessary b.s. - and I do admit to not wanting to hear about people's sexual liaisons. Not prudish. Just don't like to be a target for trash slipped in when I am reading what purports to be - and otherwise is - a serious discussion involving the rights of the accused - and what happens to someone once they accused in our society.

    What comes across to me is that Mr. Dershowitz has a bit of a macho streak - and he is taking this opportunity to express that to a wide audience - albeit in a veiled manner.


    I don't think that's correct, BTD (none / 0) (#9)
    by Peter G on Thu Jan 15, 2015 at 11:19:50 AM EST
    The story about the legal filing that accused Dershowitz was widely circulated and reprinted on New Years Eve and thereafter - mostly because it also accused Prince Andrew - before Dersh went on the counter-offensive.

    Personally I heard about it (none / 0) (#11)
    by Big Tent Democrat on Thu Jan 15, 2015 at 01:33:54 PM EST
    when Dershowitz started talking, not before.

    Politico reported it on Dec 31 (none / 0) (#30)
    by Jeralyn on Fri Jan 16, 2015 at 05:11:33 PM EST
    It was filed on Dec. 30. I think it's highly unlikely reporters were just cruising PACER and came across it. Here's the first Politico report. They also spread iton Twitter the same day (Dec 31.)I don't think there is any way the press would have gotten hold of it so quickly but for someone who knew about it disclosing it.   Dershowitz responded after Politico reported it. The other papers here and in the UK broadcast it over New Years weekend.

    I Am Not Down With... (none / 0) (#12)
    by ScottW714 on Thu Jan 15, 2015 at 03:21:18 PM EST
    ...'Falsely Accused'; he is presumed innocent which to me is not the same as falsely accused, which presumes people are lying.  

    Proving a negative is very hard, especially if it's he/she said, and I doubt many people can actually prove they were falsely accused, rather than found not guilty.

    The problem isn't really the criminal justice system, so much as nearly every person who ever committed a crime claims they didn't do it.  He should blame all his clients for proclaiming innocence when they weren't, makes it hard for the innocent ones to profess the truth.

    That was super snark.

    Has he dropped Polanski as client yet, the charge probably doesn't bode well for either.

    A total canard, though a common one (5.00 / 1) (#15)
    by Peter G on Thu Jan 15, 2015 at 03:58:00 PM EST
    "[N]early every person who ever committed a crime claims they didn't do it."  Not remotely true. At least 95% of those accused of crimes plead guilty, to start with. Very few of those, though not a null set, claim they "didn't do it." In fact, in my 35+ years' experience in criminal defense, very few of those who plead not guilty even "claim they didn't do it."

    I would note (none / 0) (#18)
    by Reconstructionist on Thu Jan 15, 2015 at 04:29:16 PM EST
     that the 95% (I believe I read it was even 97% in 2013) refers only to federal cases.

      I can't quickly find data for state cases overall but, I did find this:

    75 largest Counties

    Acquittal 1.3 1.6
    Case dismissal 23.0 21.2
    Guilty by trial 4.4 4.3
    Guilty by plea 71.0% 72.8%

    The left column is for defendants represented by appointed counsel and the right column for retained.  (Off our topic, but the lack of difference in those numbers probably surprises a lot of people, including me.)

       I'd also note anecdotally that in my experience people saying they didn't do it, doesn't necessarily correlate that highly  with pleading not guilty and going to trial. I get calls virtually every day from inmates or their families claiming they were forced/tricked, etc. into pleading guilty despite being innocent.



    No Canard... (none / 0) (#38)
    by ScottW714 on Mon Jan 19, 2015 at 10:10:10 AM EST
    ...in that I can't think of one publicly known person who has admitted to a crime after charges were filed.  What Mr.D is doing is practically protocol, and comparing a public statement of innocence to people who have had their day in court and plead guilty is distorting my original point.  Which was he should blame the folks before him, some being his clients, for falsely stating they were innocent when in fact they were not.

    And who knows, if they got the goods, Mr.D might join the 95% when this is all said and done.  Seems unlikely, but still in the realm of possibilities.

    I would like to believe he is innocent of this crime.


    It can be very hard to prove that you have (5.00 / 1) (#16)
    by vml68 on Thu Jan 15, 2015 at 04:08:01 PM EST
    been falsely accused.  A finding of "not guilty" while most welcome, usually comes months or a year or two later by which time your life and reputation is in shreds.

    To be fair (none / 0) (#14)
    by sj on Thu Jan 15, 2015 at 03:46:53 PM EST
    the headline of the post proposes a thought experiment. "What if You Were Falsely Accused". Presumably you would know if that was so or not.

    And were it I, "presumed innocent" would be a legal status that is little or no comfort while my reputation was ignominiously and publicly being shredded.

    So read the post again while imagining yourself being falsely accused.

    Just saying.


    What are the penalties for false accusations? (none / 0) (#13)
    by Aspidistra on Thu Jan 15, 2015 at 03:46:09 PM EST
    Does the legal system have a set of rules for people who make false felony accusations?  And if so, are these penalties not applied to people who falsely accuse others of rape?  If not why not?

    It seems like there should be really, really serious repercussions (like an automatic two years in prison) for people who make false rape accusations, given the seriousness of the crime.  

    These people just make it harder for actual rape victims to be believed.

    It would be very hard to prove (none / 0) (#39)
    by CST on Mon Jan 19, 2015 at 10:14:17 AM EST
    That one has falsely accused someone.

    Given the nature of rape accusations - that they are largely a question of he said/she said - that would be an even harder point to prove.

    The whole "innocent until proven guilty" thing would apply to the accuser as well.  So you would have to have some form of proof that they knowingly and intentionally lied about it.  The fact that the other person wasn't found guilty is not going to cut it.

    Also, rapists don't even get an automatic 2 years.  Mandatory minimums are a horrible idea.


    Depends on the nature of the false accusation (none / 0) (#40)
    by Peter G on Mon Jan 19, 2015 at 10:51:37 AM EST
    If the credibility contest boils down to "He raped me" vs. "No, I didn't; we had mutually voluntary sex," that is one thing, a classic he said/she said. But if the dispute is between "He raped me" and "No, I didn't; in fact, I was never in the place you say the rape occurred, during the time period you say it occurred," then it is much less likely -- although not impossible -- that the accusation is inadvertently mistaken rather than maliciously false.
      I certainly agree with you about mandatory minimum sentences, however.

    the second scenario (none / 0) (#41)
    by CST on Mon Jan 19, 2015 at 12:05:38 PM EST
    could also be a case of mistaken identity, or getting the details (timing) wrong.

    In either case defamation (including falsely accusing someone) is already a crime in a number of states.  But there is a good reason it's very hard to convict someone of that and rarely used.

    I don't see a need for a new law on the books for basically the same thing only harsher because it's related to rape, and I feel like that could be  abused to keep victims quiet.


    I posted this in another thread a while ago... (none / 0) (#20)
    by McBain on Thu Jan 15, 2015 at 10:25:01 PM EST
    It seems we treat people falsely accused of rape worse than people proven to have made false allegations.  It's as if an alleged rapist must be a horrible criminal, but a false rape accuser just has some issues and made a simple mistake.

    I don't believe there was any serious legal punishment for Tawana Brawley's or Crystal Magnum's false claims?  I believe they were both rewarded with free college tuition offers?  Compare that to what happened to Dustin Toth.

    The media protects alleged victims by not publishing their names but has no problem publishing names of the accused.

    civil remedies (none / 0) (#23)
    by thomas rogan on Fri Jan 16, 2015 at 10:27:58 AM EST
    A successful slander suit, with the judgment being renewed decade after decade, would be something of a deterrent.  Criminal charges for a false affidavit would be another.  Perhaps if lawyers involved in such cases were at least investigated by the state bar for "possibly suborning perjury" they wouldn't be so quick to jump into these cases.  Didn't Nifong get disbarred about the Duke case, or something?

    Dershowitz didn't exactly come across (5.00 / 1) (#24)
    by jondee on Fri Jan 16, 2015 at 12:34:42 PM EST
    as a man of unimpeachable character and integrity during his dirty little feud of accusation and counter-accusation with Professor Norman Finkelstein a few years back..

    To put it mildly.



    In most financial cases (none / 0) (#25)
    by NYShooter on Fri Jan 16, 2015 at 12:38:47 PM EST
    you can forget civil "remedies"unless you're a millionaire, and you have several years of your life you'd like to throw away.

    But, if you should choose to go forward, and, if you would be so fortunate as to win, guess what? Your troubles have just begun. It's not like the defendant is compelled to write you a check upon the judge reading the decision.

    No, no. The court then says to you, "congratulations on your victory, now go out and try to collect your money, we're done." And, that's when your troubles really begin. First of all, the defendant may very well announce he/she/it will appeal the decision. You get nothing until that process is completed. And, the cost of proceeding with an appeal can easily equal, or even exceed, the cost of your original trial.....and take just as long.

    But, assuming you haven't comprehended how the system works yet, and that no one gives a crap about you (the "damaged" party) and you go through the whole appeal process.......and, win again, it's back to square one. Now go and try to collect your money, the amount which by now is probably far less than the "damages" you incurred.

    The many ways a losing defendant can thwart your attempts to collect the money you "won" are much too numerous to enumerate in a blog like this one. Suffice to say that their filing for bankruptcy is simply the first, and the easiest. Even if the defendant is wealthy, and precluded by law from moving their money in an attempt to screw you once again, it's up to you to prove they did that, and, you get to start the process all over again.

    In case you haven't quite gotten the message of this post, it's that the system, be it criminal, or civil, is designed by the wealthy, and for the wealthy.

    Just one caveat: I don't want to forget to give credit to the many fine attorneys who give of their time and expertise (at no pay) defending those who cannot afford proper representation. I was speaking here only about a plaintiff in a civil case.

    I can't imagine I would cope well if falsely (none / 0) (#26)
    by ruffian on Fri Jan 16, 2015 at 01:37:46 PM EST
    accused. Even identifying with such characters in books keeps me up nights. I have a lot of sympathy with people like Dershowitz and Toth.

    I don't know what punishment is fair for accusers. In Toth's case, I feel the state has to bear some responsibility for prosecuting him, but I know it is hard to make it happen. From reading other posts, it seems like suing accusers might be more trouble than it is worth.

    It seems hard to swallow that getting out of jail and a public statement of vindication is all you get after an experience like that.

    Since Dershowitz was not arrested and (none / 0) (#27)
    by oculus on Fri Jan 16, 2015 at 02:15:09 PM EST
    charged with a crime, and since he is a public figure, it seems a stretch for him to compare his situation to Mr. Toth's.

    True, but if even in his safe situation it causes (none / 0) (#28)
    by ruffian on Fri Jan 16, 2015 at 03:50:50 PM EST
    consternation, you can imagine it being so much greater for someone like Toth that actually did time in jail.

    But Dershowitz's entire livlihood and legacy rely on his reputation, so I'm sure that public accusation part of it is a bigger deal than it would be to most of us.


    He reminds me a bit of (none / 0) (#29)
    by oculus on Fri Jan 16, 2015 at 03:58:17 PM EST
    people who ask the public and media to respect their privacy but then are suddenly on all the national TV interview shows.

    We get it (none / 0) (#34)
    by sj on Sun Jan 18, 2015 at 06:51:26 PM EST
    You don't like him.

    I don't know if he as been falsely accused or not. But false accusations ruin lives.


    Most people don't care (none / 0) (#35)
    by McBain on Sun Jan 18, 2015 at 07:07:17 PM EST
    They think if someone was falsely accused of a crime, they must have done something to bring it on. Rarely is there outrage towards the false accuser. Rarely does the voting public hold elected officials responsible for over prosecuting.

    I very much doubt that oculus (none / 0) (#43)
    by Mordiggian 88 on Wed Jan 21, 2015 at 07:49:27 AM EST
    would be a shrinking violet with "no comment" if she faced a similar accusation of having sex knowingly with an underage minor.

    I think his legacy and livelihood are (none / 0) (#42)
    by Militarytracy on Tue Jan 20, 2015 at 06:48:17 PM EST
    Probably advanced by this public/publicity fight

    Dershowitz didn't make the comparison (none / 0) (#44)
    by Jeralyn on Wed Jan 21, 2015 at 05:49:57 PM EST
    to Toth. I did. Please re-read the post.

    A bit of backstory on Prince Andrew (none / 0) (#36)
    by Mr Natural on Sun Jan 18, 2015 at 10:59:48 PM EST
    aka Randy Andy, and the dynamics of his relationship with Epstein and others of his much richer, more powerful, and much cleverer than Andrew ilk.