California Spousal Rape Bill Will Harm Innocent Men
June 28, 2006
by Jeffery M. Leving and Glenn Sacks

False accusations of violence or abuse are endemic in family law cases. The California Senate and the Assembly Committee on Public Safety recently approved a misguided bill which will make the problem worse by easing the way for spurious spousal rape allegations to be used against fathers.

Victims of spousal rape deserve protection, and current California law provides it. In order for the state to prosecute a spousal rape charge, the accuser need only to have mentioned the violation within a year of its occurrence to any of a wide variety of medical, law enforcement, clerical, legal or psychological personnel, or there must be corroborating, independent, court admissible evidence.

SB 1402, sponsored by Senator Sheila Kuehl (D-Los Angeles), eliminates the distinction between spousal rape and other rapes, thus allowing for spousal rape prosecutions six years later, even if there was no mention or independent evidence of the crime in previous years. Under SB 1402, when aggravated spousal rape is alleged, there would be no statute of limitations.

In family law proceedings there are a multitude of important and emotionally-charged issues which are often contested and re-contested over many years. These include: legal and physical custody; child support; alimony; division of marital assets; liability for legal, health care and child care expenses; requests for relocation; and others. False accusations often allow accusers to gain leverage in these proceedings.

The Senate Judiciary Committee recognized that false spousal rape accusations could be used in this manner when the spousal rape evidence requirement was created in 1979. They noted that in rape cases "the issue of consent often boils down to the word of the victim versus the word of the accused...[in spousal rape] these problems of proof would be exacerbated [by]...the issue of the complaining witness' motive for making the accusation."

The current wave of domestic violence restraining orders based on dubious allegations are illustrative of the problem. According to California Attorney General Bill Lockyer, there are nearly a quarter million domestic violence restraining orders currently active in California. A recent article in the Family Law News, the official publication of the State Bar of California Family Law Section, asserts that the Bar is concerned that the orders are given out practically on demand, and that they are "being used in family law cases to help one side jockey for an advantage in child custody."

Similarly, false allegations of child molestation are also often used for this purpose. According to a study published in Social Science and Modern Society, the vast majority of accusations of child sexual abuse made during custody battles are false, unfounded or unsubstantiated. Reginald Brass, president of My Child Says Daddy, a parenting organization which works with young African-American fathers in Los Angeles, says that when custody is contested, "if the man has a daughter, we always warn him that at some point the mother may well accuse him of sexually molesting his daughter."

Evidence shows that rape accusations in general are often false. Former Purdue sociologist Eugene J. Kanin conducted two studies of rape allegations and found that between 40 and 50 percent of the accusations were false. An Air Force study of 556 rape accusations found that 60 percent of the allegations were false.

Several prominent prosecutors have attested to this problem, including Linda Fairstein, who headed the New York County District Attorney's Sex Crimes Unit. Fairstein, the author of Sexual Violence: Our War Against Rape, says, "there are about 4,000 reports of rape each year in Manhattan. Of these, about half simply did not happen."

Former Colorado prosecutor Craig Silverman, known for his zealous prosecution of rapists during his 16-year career, says "rape is one of the most falsely reported crimes." In an ABC television commentary during the Kobe Bryant trial he cited a Denver sex-assault unit commander's estimate that nearly half of reported rape claims are false.

The widely reported William Hetherington case provides an example of how spousal rape accusations can be used strategically. Hetherington was convicted and incarcerated in the middle of contentious divorce proceedings in which he was likely to win custody of his children because his wife had abandoned the family and moved out of state.

As Hetherington fought the spousal rape charge the family law court froze his assets (as is common in divorce cases), leaving him unable to afford a lawyer. However, the criminal court refused to provide him legal representation as an indigent, since he was employed in the automobile industry.

After being convicted Hetherington was unable to raise funds for an appeal, since his ex-wife won his home and all his assets (as well as custody of his three children). Substantial evidence, including photos taken at the crime scene and obtained through a public records act a decade later, cast grave doubts upon the spousal rape claim.

The accused needn't be convicted to suffer egregious harm. The cost of criminal defense is often ruinous, and the emotional toll can be worse. The mere threat of allegations can and is often used to extort post-divorce concessions from fathers.

Not only is Kuehl's bill damaging but it is also unnecessary, since current law is equitable and respectful to spousal rape victims. SB 1402 won't help victimized women--it will only serve to harm decent fathers.

This is an expanded version of an article which first appeared in the Sacramento News & Review (6/15/06).