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Rape is a crime of consent, not regret!

Rape is a crime of consent, not regret!

In my 25 years of practicing criminal law, one of the most surprising and upsetting trends I have seen is the frequency with which a charge of sexual assault between acquaintances is falsely claimed. This is often referred to as "Date Rape" - however, that is not a legal term, it merely refers to non-consensual sex between people who know each other.

Early in my career as a criminal prosecutor, I handled many of these cases. I was surprised that in so many of these types of cases, the victim often later recanted their original allegations of non-consensual sex. At first I assumed they were ashamed, and did not want to expose themselves further through the legal process in court.

However, in talking with many victims who had withdrawn their claims, I learned that often their initial complaints were made not because their sex had been non-consensual, but because of other issues. They were angry at their partner, or they regretted having had sex with them—they were ashamed, or hurt, or filled with regret, but over a consensual decision they had made.

As a defense attorney I have represented numerous young men who are left traumatized with their lives irreparably damaged from such false claims. Just imagine, when a one-night-stand becomes a criminal nightmare. Often, their forgivable mistakes of being young and not knowing better—being unfaithful, lying, callousness and treating women badly after a sexual encounter becomes conflated with a criminal offense. However, if the sex is consensual and the woman later regrets it because of the man's bad behavior, that does not make it a crime.

One such client was a student named E.R., who met a young woman in a class they were taking together at a Los Angeles university. After engaging in what they both described as casual "hook-ups" over a brief period of time, they planned to spend a weekend together at his parent's house while they were out of town. Things turned badly when E.R. abruptly cut their weekend short, saying he was called in to work.

Days later, when his partner learned that he had lied, and in fact left her to be with another woman, she was furious. She was anxious and depressed over the events and went to the women's health center on her college campus to receive tests for sexually transmitted diseases. She learned that she had contracted chlamydia and was prescribed an antibiotic, and encouraged to speak with a "rape counselor" who the university provided to help her deal with her anxiety over the events.

During that meeting, the woman's story somehow shifted into a criminal complaint, with her claiming that my client had held her hostage at his parent's home over the weekend and repeatedly raped her. The school-assigned rape counselor accompanied her to the university's police department, and acted as her advocate in filing this false complaint.

Subsequently, E.R. was arrested, and charged with aggravated sexual assault, false imprisonment and kidnapping for the purpose of rape. He was released from jail on $500,000 bail and was facing life in prison if convicted of these charges. E.R. admitted to me that he exercised poor judgment, that he had treated the woman unfairly, but certainly did not kidnap and rape her.

Fortunately, my client had the proof to back up his innocence. E.R. had taken the woman to dinner and a movie with another couple that weekend. In addition, they had made videos and taken pictures of their consensual sexual activities, and they were on my client's computer which was seized by the police at the time of his arrest. Once the witnesses were able to confirm the double date, and with the physical evidence (pictures and videos) to support that the sexual activity was consensual, all criminal charges against my client were eventually dismissed.

There has been much discussion about the so-called "culture of sexual violence" on college campuses today. And while this should sound alarming, much of the reporting that has been done on the topic relies on dubious statistics and erroneous methodology, manufacturing a message that is fabricated at best, and dangerous at worst. In fact, the media's desire to prove their point has led to major false news stories, and thousands of false claims of rape.

Famously, Rolling Stone Magazine recently ran a 5,000-word cover story detailing a horrific violent gang rape in a fraternity house on the University of Virginia campus. The story captured the nation's attention, as its violent account of rape was truly harrowing. The public outcry led to the university shutting down every fraternity on campus. The University's Law School advocated categorizing fraternities as criminal street gangs. The problem was, none of the story was true. The victim's account was not just fabricated; it was completely fictional. The alleged victim had attended no such frat party, the alleged violence had in no way occurred. However, the story fit the media's narrative of campus "sexual violence culture," and so it was at first unquestionably believed.

This was one high-profile case that made a splash in the news. However, hundreds of individuals are being falsely accused in a similar manner every day on college campuses across the country. Although sexual assaults are egregious and true victims need to be heard and believed, this witch hunt mentality needs to end. Sexual assault and criminal actions are not a political or hot cultural issue, they are a legal issue which needs to be addressed fairly, with due process of law pursuant to the United States Constitution. Efforts to protect women from sexual assault cannot violate the civil rights of men because this issue has become fashionable.

My client E.R. is just one of the many innocent men I've represented who are falling victim to this frenzy. And it is not just men who are negatively affected. College-age women are being infantilized, told that they cannot even determine whether they truly are the victim of a crime. In effect, women are being told if they regret engaging in consensual sexual activity, then they are rape victims. This mentality disparages true victims of the crime of rape, and makes it more difficult for actual victims to be heard and believed.

California Penal Code Section 261 defines rape as rape as sexual intercourse without the consent of the woman. This consent cannot be withdrawn after the act, just because a woman regrets the decision she made. Rape is a crime of consent—not regret. Our justice system should be vigilant in its actions against guilty perpetrators of violent sexual crimes. However, women should not be manipulated into misinterpreting their undesirable experiences into criminal accusations.

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