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
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.
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.
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.
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.”
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.
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.
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
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.
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.
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
This is an expanded version of an article
which first appeared in the Sacramento News & Review
Jeffery M. Leving
is one of America's most prominent family law attorneys.
He is the author of the book Fathers' Rights:
Hard-hitting and Fair Advice for Every Father Involved
in a Custody Dispute. His website is
Sacks' columns on men's and fathers' issues have appeared in dozens of America's
largest newspapers. Glenn can be reached via his website at
via email at Glenn@GlennSacks.com.