Caveat Amator

Post image for Caveat Amator

by Featured Guest on October 14, 2010

Strategies for Men Before, During and After False Allegations

By Ken Kupstis

(DISCLAIMER: The Author is not a lawyer and the following information is not given as legal ADVICE, but to give readers ideas of possible legal avenues to research and pursue to redress their own grievances. The author assumes no responsibility for the results of the strategies herein…and is in fact ashamed he’s the only one who’s thought of them…K.K.)

It’s October 25, 2008. In the preceding days, the Nevada Review-Journal published a human interest story entitled “A Mother’s Struggle”. The story documented a local divorcee’s attempts to gain custody of her daughter, as she was convinced that her ex-husband was sexually abusing the child (Names withheld).

To her credit, the writer did list the facts in the case: that the divorcee had left the marriage while pregnant, and initiated the divorce; that her husband had passed a polygraph test; that she herself failed a polygraph test; that her husband had been investigated three times by the police, twice by court-ordered psychologists, and once by a private investigator—none of whom could discover any evidence of sexual abuse by the husband. The divorcee had also denied the husband’s court-ordered visitation rights and served 48 hours in jail for contempt of court. With only arguments, allegations and accusations, the divorcee continued to petition the courts. Finally her ex-husband gave up his paternal rights altogether by leaving the United States for his country of origin. The divorcee now has sole custody of her daughter, lives in her parent’s house, and is seemingly content. The conclusion of the writer infers that justice, although delayed, as apparently been served.

Still, the article remains titled “A Mother’s Struggle”.(1) While every actual fact exonerates the ex-husband, the specter of sexual abuse looms large in any reader’s mind, defeating the notion that the article could just as easily been entitled “A Father’s Struggle”.

Bear in mind, this is just one article.

Some months earlier, in the Osceola County Corrections Facility, a man in an orange jumpsuit confided to me that his wife had come home drunk at four in the morning. He said “Enough of this”, and immediately began packing his children’s clothes to take them to his parent’s house. His wife’s mother, who was on the premises, called the police and reported that he was hitting his wife.

The police came and summarily arrested him.

Since the passage of the Violence Against Women Act (VAWA) in the United States, a majority of states have created Mandatory Arrest Laws dealing with domestic disputes.

These laws oblige the investigating officers to make an arrest, and in the overwhelming majority of cases it is the man who is arrested.

Beyond domestic disputes, we have seen that in allegations of rape, the alleged rapist’s name quickly becomes a matter of public record, whereas Rape Shield laws guarantee anonymity to the accuser. Incredibly, the assistant Dean of student life at Vassar College has said that “Men who have been falsely accused of rape can benefit from the experience”. Meanwhile, investigations of rape cases within the United States Air Force revealed that 55% of rape charges were falsified. Reasons that were given for making the false rape charges ranged from covering up a pregnancy, to testing a husband’s love, to a reason for being late to work.

The Innocence Project, which uses DNA testing to free the wrongly imprisoned, has given 205 unjustly accused convicts their lives and freedom back. 204 of them were men.

If there is indeed still a ‘battle of the sexes’, then false accusations are its secret weapons. They pierce Constitutional Rights and freedoms, mangle due process, and shatter reputations, relationships and families. No witnesses are required, nor is physical evidence of a crime. As previously demonstrated, a mere phone call is enough to serve as ‘probable cause’ for search, seizure and arrest. The effectiveness of the false accusation lays in the perception of the heinousness of the accused crime: assault, battery, rape and/or sexual molestation of women and children almost universally brings emotion to tread roughshod over logic. (The reader comments of the Nevada Review-Journal story all vilified the accused father.)

While both sexes are able to use false accusations, victims in the overwhelming majority of cases are male. Men have even been victims of domestic abuse by their female partners, and have either been denied police protection or arrested themselves. It therefore behooves men to imagine worst-case scenarios, research legal precedents, and know their rights—while they last.

Not enough men are standing up for themselves. Far too many are shocked and cowed by false allegations, and the legal system is far too willing to take a woman’s word over a man’s (the prevailing logic being that the man is ‘bigger’ and therefore capable of more damage, even though he may have never harmed a fly). Truly law-abiding men remain ignorant of the legal process, thinking “It can’t happen to me”. When it does, policemen and court officials are more interested in telling a man what he can’t or shouldn’t do than what he can or should.

BEFORE A FALSE ACCUSATION:

Perhaps the best defense against false accusations would not to be giving anyone a reason to make one against you. In a just and perfect world, that would suffice. The phrase ‘Love Is Blind’ has a good deal of truth in it; when you’re in love, you may very well be blind to behaviors that could prove harmful to you in the future.

At Vassar College, a male student may have consensual sex with a female student—that night—and the next day, she can say she ‘felt bad about it, in retrospect’, and the male student can be charged with rape.

John Dias, creator of the website www.Don’tMakeHerMad.com, suggests using surveillance as proof of one’s innocence. There is a valid danger of legal ‘collateral damage’—surveillance of another person without their knowledge may constitute a crime in itself, but when used solely as a means of legal defense, it should be less

Prosecutable. There are hidden closed-circuit cameras and recording devices that can be placed throughout one’s home, or worn on one’s person (in the form of pens, watches, lapel pins and more).

BEFORE ALLOWING A WOMAN TO ENTER YOUR HOME…actually before allowing anyone to enter your home…hopefully you can answer one or more of these questions:

Do you know her FULL NAME? (Thousands of men have only needed to hear “Hi, I’m Bambi”, and it’s good enough for them.)

Have you seen her car, and its license plate number?

Is she employed? Do you know where she works?

Is she wearing a wedding ring? (Married women who indulge in extramarital affairs may seek to contact other men as patsies for false rape charges in the event of a pregnancy or venereal disease.)

BEFORE HAVING SEX WITH A WOMAN:

Is she SOBER? Very inebriated women may claim to want or even demand sex, but it may be wise to see if “that was the alcohol talking”.

Are you sober? Did you leave any of your drinks unattended, or consume any drinks that she bought for you that you didn’t see being made? (The origin of the term “Mickey Finn” comes from a bartender who enabled female thieves at his tavern to drug men’s drinks.)

Are you using Birth Control? Note that while she may claim to be using birth control, it does not automatically mean that she is…she may normally be on birth control but has forgotten to take it, or is experiencing a false period, or is using a form of birth control with a lower rate of effectiveness. Most of these factors have not legally excused men for having to pay child support, although they should.

Has she verbally consented to sex? It is better to ask “Do you want to make love?” and receive a positive response then to merely assume she’s consenting to sex via body language. Some colleges insist that males must receive verbal consent prior to intercourse, and any sex without it is non-consensual.

Does she display or claim enthusiasm for BDSM (bondage and sadomasochism) activities? As exciting as it may seem, do not permit a barely-known woman to handcuff you to anything (that you can’t break loose from on your own)!

Does she claim to ‘like it rough’? Even if so, that claim does not obligate you to play rough. No matter how insistent she may be, you should not bruise or break the skin.

During foreplay, or before or during coitus, does she ‘tense up’, act frightened or apprehensive? Does she cry? If so, she may have been previously raped or molested. Her sex drive still exists, but she may psychologically equate sex with pain, servitude or dishonor.

In any event, you should get to know a woman as well as you can, and think very hard, before A) giving her a key to your home, B) signing a lease with her, C) merging any financial assets into joint accounts.

BEFORE MOVING IN WITH A WOMAN:

Even if a woman has a place that puts the Taj Mahal to shame, and invites you to move in with her, remember that you are moving in with her. She can tell you to leave whenever she wants, so it is in your best interests to prove that you live there. When you contribute to the rent, ensure it is in the form of a check, and request your bank to furnish you with receipts. Signing a lease makes you legally liable for all rent payments through out the rental contract. You may wish to offer to ‘cover all utilities’ (And/or groceries) instead, which can provide proof of residence without making you liable for the rent.

Realize that once a woman has moved in with you, and made some contribution to the household…anything from rent payments to utilities or groceries, she may be able to legally claim “I live here”. As such, you may encounter difficulty having her legally removed from your domicile.

You should also ask her if she has any serious allergies, debilitating health issues, and how to contact her closest next of kin.

DURING A FALSE ACCUSATION:

Some women will often use the threat of a false accusation to achieve some desired goal…anything from changing your behavior to having you removed from your house.

Note that if she does threaten you in this manner: “I’ll tell the police you did such and such…” you will probably want to take steps to sever all ties with her. It may have been a heat-of-the-moment threat, but she can’t ‘un-make’ it, and she’ll realize that option will always remain open to her. Calmly reply to her threat with “If you do that, you leave me no choice but to charge you with Wanton Endangerment*, making a false police report, and sue you for defamation of character.”

(*You may wish to substitute Assault or Criminal Mischief for Wanton Endangerment. Assault is the threat of harm. Being taken from one’s home under threat of force, incarcerated, and forced to pay a bond should legally constitute harm. Wanton Endangerment is placing someone in harm’s way by proxy…i.e., someone who’s HIV positive is guilty of Wanton Endangerment when they don’t inform their sexual partners of their status.)

If your woman fights with you verbally, that can be grounds for Nuisance, especially if she’s loud enough to be overheard by neighbors. If she’s verbally goading or provoking you towards violence, tape it if possible, but walk away as soon as possible. Verbal provocation to fight—in conjunction with ‘fighting words’, insults with no redeeming Free Speech defense—is a form of disorderly conduct known as a fighting ruckus.

As unpalatable as it may be, imagine yourself accused of misdemeanor domestic battery, and the police have been summoned. The phone call alerting them serves as probable cause to enter any establishment. Note that in many areas, interference with such a phone call…disabling the phone, for instance…can constitute a felony in itself.

If the woman in the situation has in fact not been harmed, try to get a photograph of her (many cellular phones are equipped with cameras ideal for this situation). You may wish to hold up the day’s newspaper within part of the photo to prove the date, unless the camera ‘time-stamps’ its images.

See if any neighbors are nearby and within earshot. If so, you may wish to open the door and tell her she can leave, in a voice loud enough to be heard. Not that she must leave, but she can leave. If she does leave, you can make a good case for refusing to let the police enter your home without a warrant. However, if she does live at the place in question, she can give police her consent to enter or search the premises. The police can and probably will still try to gain entrance to your home to make an arrest, but you have a much better case for Unreasonable Search and Seizure.

If she refuses to leave, it may be in your best interest to leave the area, even if it’s your own domicile, before the police arrive. Take whatever you can with you; your wallet, house and car keys at the very least. Before leaving, inform your accuser that telling a police officer that you abused her when you didn’t warrants a criminal charge of making a false police report and will be grounds for a separate lawsuit of Slander. If she or the officers in question make a written statement accusing you of battery, there will be an additional lawsuit for Libel. This warning in itself may be enough to convince her to withdraw the accusation, but if the police are en route they will probably follow through with an investigation anyway.

Leaving the area, especially if it’s your own domicile, may be a nuisance, but it can give you time to take steps you would not be able to take if you were arrested: contacting employers, loved ones, attorneys, setting up alternate phone service or a post office box, transferring or securing bank accounts, getting a credit line increase, et cetera. If the police have an arrest warrant for you, the warrant must be “fresh”, or between three and ten days old. Misdemeanor warrants normally have to be served during the daytime—between 6 am and 10 pm.

It’s probably better not to call your home from a land line, as police technology can often triangulate your physical location from them. If you do call, assume the police are listening.

If the police do arrive before you can leave, be on your best behavior, although it normally goes without saying. Police need a warrant to arrest you at your home, but they do not need a warrant if they believe A) you have committed or are about to commit a crime, B) other people are about to get hurt, C) you’re about to destroy evidence or property, or D) there’s already a warrant out for your arrest. This obviously gives the police a lot of leeway.

Once the police begin asking questions, it is in fact an interrogation. Keep your voice audible, but calm and low. Memorize the time, the location, and the names and badge numbers of the officers. Police are looking for any evidence that a crime is committed, so even sarcasm will work against you (“Oh yeah, just look at her, I beat her to a pulp, that’s why she doesn’t have a hair out of place.”).

There is a possibility that, by communicating calmly and reasonably with the officers, you can convince them that the dispute is not or should not be treated as a domestic situation. This possibility is unfortunately slight. Flattery and bribery generally don’t work and should not be attempted. Apologies, however, have been known to work. “I’m sorry you were put to all this trouble, I know you’re just doing your jobs, but I really would rather not answer any questions without a lawyer present.”

Police will use a variety of techniques to gather evidence for a case. They can lie, and say they have evidence they actually don’t. One policeman may seem to be ‘gunning’ for your arrest, while their partner may seem friendly and say “we just want to hear your side of it”. A policeman may say “This happens all the time, and the judge will go easier on you if you confess.” (However, the policeman is most definitely not the judge.) They may threaten you with obstruction of justice if you don’t confess, but only the DA can charge you.

If you are arrested—and police do not have to use the term ‘arrest’—do not panic or resist arrest. You can ask the officer if he can simply issue you a citation. Regardless, remain as polite as possible; say only “I’m remaining silent, I want a lawyer.”

If you are in custody, and interrogated by police or different law enforcement official, and have been not been informed of your Miranda Rights (Right to remain silent), the police have acted improperly and your case can be thrown out. This only applies if the police take you into custody (a situation you feel not free to leave) and interrogate you, not either/or.

You should consider the idea of Malicious Arrest, where police know you are innocent and arrest you anyway. This may be difficult to prove, but if you have evidence of her false accusation (on audio or video), whereas she has no evidence to back up her accusation, it could have the foundations for a case. Consult your attorney.

Note that you are not legally entitled to ‘one phone call’. You are entitled to speak with a lawyer, and if you need a phone to contact one, you’ll be provided with access to a phone. If you don’t have a lawyer or know a lawyer’s phone number, call a friend or family member and ask them to contact a lawyer for you. Never assume that your phone call is private!

Some states will have an officer of the court called a pretrial officer that can enable you to pay a bond fee and be released on your own recognizance. If you can qualify for the bond and afford it, you’ll agree to appear in court, then be released.

While you are being processed, the police assisting your significant other will strongly suggest that she get an Injunction, or Temporary Restraining Order against you. The TRO can be processed immediately, and you will be notified in jail that a TRO has been issued against you. It succinctly states that you are not allowed to come within a certain distance—anywhere from 500 yards or more—of your significant other’s place of residence (even if it’s yours as well) or her workplace. Most TROs will also have a ‘no contact’ clause which considers any attempt at communication-phone calls, letters, e-mails, etc., a violation of the TRO. Communications through another person are considered ‘contact through a third party’ and may also represent a violation.

Defense lawyers in your area routinely check daily arrest records, and will offer their services via mailings as soon as your name appears. Ironically, the TRO may in most cases prevent you from receiving your mail.

This in itself may provide a grievance in your favor: in the case of a live-in girlfriend—not a wife—if you are restrained from accessing your own mail, and if she takes your mail from the mailbox, even just to save it for you, that may legally constitute Theft Of Mail, a Federal offense. Also, if a restraining order bans you from collecting your mail, you clearly cannot be ‘served’ court papers through the mail.

You will be given a hearing before a judge, hopefully within 48 hours. A public defender told this writer “The less you say to the judge, the better”. The judges in initial hearings may not even address you, but only hear statements from the attorney and prosecutor (sometimes over a closed-circuit TV system). The judge will set a bond (bail) amount and any other conditions for release. If you have a credit card among your personal effects, you can use it to bond yourself out if you have enough to cover the bond. In cases where you can’t afford the entire bond, you may call a bail bondsman who will cover 90% of the bond if you can pay 10% of it.

If you have been served with a TRO while in custody, do not attempt to return home on your own. If so, you can be charged with violation of the TRO and arrested all over again. With a police escort, you should be able to return home to get certain necessities. The TRO is temporary; generally lasting two weeks or until a court hearing to determine if the TRO should be permanent.

Note that some women have been known to use TROs ‘offensively’…that is, they will shop at stores they know you also shop at, in the interest of reporting that you violated the TRO. If you see this occurring, immediately leave the area. Contact the venue’s management and ask if they have their premises under video surveillance (a great many businesses do). You may need to subpoena their tapes later. You should also consider filing a Stalking charge or Criminal Mischief charge.

Also, an Injunction or TRO does not give her the right to change the locks on your home (generally both the permission of all lease-holders is necessary to change the locks), nor can she destroy or dispose of any of your property. Wrongfully interfering with another’s personal property is one definition of Criminal Trespass.

As for lawyers, it is better to have one than not have one, although you can use a public defender, or represent yourself. If you do choose to represent yourself, you owe it to yourself to do as much research as you can beforehand. Judges will not accept ignorance of the law as an excuse.

Once you have been released, it may be extremely tempting to leave the state, or even the country. The father in the Review-Journal case ultimately did leave the country. While you may remain technically ‘free’ by doing so—perhaps indefinitely—refusal to appear in court will result in a bench warrant against you, and a simple traffic stop thousands of miles away would result in your arrest. Leaving the area also smacks of guilt. It’s probably better to remain in the area, with friends or family, until your court date(s) are finalized.

You will probably be better served by preparing and researching your own case, as well as filing whatever civil suits you can.

AFTER A FALSE ALLEGATION

If you retain counsel—even a public defender—you should work closely with him or her to present the best defense you can. Give your attorney all the facts you can: date and time of the arrest, any witnesses, the approach and behavior of the police, your work history, anything you can think of. Don’t hold anything back from your attorney. If the allegation is flagrantly false, add your willingness to take a polygraph test and ask if your accuser could be given one as well.

Some very harried or underconfident public defenders may suggest that you plea bargain. The ‘deal’ may be tempting, but you should not ever plead guilty to something you didn’t do.

As mentioned previously, some criminal charges may apply to your accuser: Wanton Endangerment, Assault, Criminal Mischief, Disorderly Conduct, Making a False Police Report. These charges may seem ‘retaliatory’, but turnabout is fair play, and criminal charges should let your accuser know that A) there are consequences for her actions, B) you’re fighting mad, and C) you’re fighting mad within the boundaries of the law.

It’s best if you’re able to provide evidence, of course. You may be able to use a photocopy of your own arrest record. If the police demand that you provide evidence or witnesses, politely ask them why, since they did not require evidence or witnesses to arrest you. If the Watch Commander tells you to forget it, note his name and badge number and politely ask when the next Watch Commander comes on duty.

You can bring a civil suit for Defamation of Character (Libel or Slander) in small claims court without a lawyer, but the maximum amount you would be able to sue for would be $5,000.00. Beyond small claims court, civil trails become very lengthy and expensive.

Libel should be proven through the police report itself. It is—or should be—an unproven accusation or a criminal offense. You should sue for the amount of your release bond, court costs, attorney’s fees, any time lost from work and any expenses incurred from being restricted from your residence (hotels, meals, etc.). If this amount totals more than a small claims court can award, consider filing a claim in a higher court. You should also ask for your record to be expunged.

You will need to subpoena the responding and arresting officer(s) as witnesses. Since the allegation was fabricated, they will actually be ‘anti-witnesses’—to all the events they were told occurred but did not actually see. If you are representing yourself, here are some sample questions you might consider asking. Only ask questions that you are certain will be answered to your satisfaction!

“Did you check for priors through your NCIS database?” (Yes)

“Did I have any previous arrests?” (No)

“Had you ever been summoned to the residence before on a similar complaint?” (No)

“Had any of the neighbors complained previously?” (No)

“When you arrived, did you see a struggle taking place?” (No)

“Did you see any signs of a struggle?” (No)

“Was I acting in a violent manner?” (No)

“Did you notice any injuries to the accuser?” (No)

“Did she ask for medical attention?” (No)

“How many domestic disputes have you responded to previously?”

“Among those disputes, how many resulted in your arresting the man?”

If your accuser cross-examines the officer(s), remember that anything not witnessed or corroborated is hearsay.

If you win in court, ask that the case be either sealed or expunged (erased from your record).

It may be possible to sue for the police (or sheriffs) for Malicious Arrest, or the Prosecutors for Malicious Prosecution.

Malicious arrest occurs when police arrest you knowing you were innocent. You ARE innocent until proven guilty. Unfortunately, Malicious arrest is notoriously hard to prove, as is Malicious Prosecution. Malicious Prosecution occurs when the prosecution came after you with malice and without probable cause. In the case of someone with no previous criminal record—especially a case without evidence or witnesses—a good

attorney could argue that Arrest and/or Prosecution are malicious, since the ordeal and trial will seriously malign your reputation.

Using the letter of the law itself, it may be possible to bring additional charges against your accuser, and/or the law enforcement officers in question. For example, Kidnapping is simply detaining, or taking someone to another area against their will. Conspiracy, and Aiding and Abetting the same may technically apply to the police, along with Unreasonable Search and Seizure.

These may seem like extreme measures, and may require a very aggressive and creative attorney.

However, if the victims of false accusations continue to remain on the defensive, merely leaving their fate to an attorney or public defender, and do not research, explore and demand their rights, then the wheels of injustice will continue to grind our lives with impunity. It is only if we consistently challenge and punish false allegations—and hold the judicial system accountable—that we can hope for any true justice and change.

SOURCES AND SUGGESTED READING:

The Street Law Handbook: Surviving Sex, Drugs and Petty Crime. Neeraja Viswanathan, Esq. Bloomsbury Books (bloomsburybooks.com, streetlawhandbook.com)

SCAM-PROOF YOUR LIFE by Sid Kirchheimer, AARP Books/Sterling Publishing.

6-Hour Guide To Protecting Your Assets by Martin M. Shenkman

WEBSITES:

www.falseallegations.com

www.falseabuse.com

www.standyourground.com

www.RADAR.org

www.dontmakehermad.com

FALSE ALLEGATION ACCOUNTABILITY ACT

Whereas, false allegations of criminal behavior or activity are acted upon by law enforcement personnel and are resulting in ‘warrantless’ arrests depriving citizens of due process of law and unconstitutional search and seizure, regardless of the motive behind the allegations;

Whereas, otherwise law-abiding citizens with no prior criminal records are being deprived of liberty, property and dignity by false allegations;

Whereas, false allegations of crimes strain police resources, overload the court system, result in lost work, wages and tax revenue;

It is thereby suggested that the provable False Allegation of a Crime shall be classified as a Class D Felony (Assault), punishable by a maximum of 6 months in jail and a fine of $1,000, and/or probation, mandatory counseling, community service, and full financial restitution to the victim, including lost wages and court costs.

{ 48 comments… read them below or add one }

Leave a Comment

{ 2 trackbacks }

Previous post:

Next post: