Commentary by Susan Estrich: In rape cases, somebody is always lying; often, there are lies on both sides. Deciding who to believe should not turn on the race or political party of the accused.
Not so many years ago, many states refused to prosecute cases of rape unless there was "corroboration" for the woman's complaint. (And in those days, it was always a woman.) Sometimes, for instance when more than one man was involved or when it was a black man being charged with raping a white woman, prosecutors and judges would ignore the corroboration requirement and let charges go to the jury without any witnesses or visible signs of beating, much less other physical evidence. On the other hand, when women complained about men they knew, worked with or dated, such requirements were enforced strictly enough that most women forced to have sex against their will never reported it to authorities.
The District of Columbia was among the last to abandon corroboration as a requirement in rape cases, in an opinion that I proudly drafted. I explained to my boss, the late (and great) Judge J. Skelly Wright, that I had been raped, and there were no witnesses and there was no evidence of physical injury because the rapist threatened me with an ice pick but didn't use it.
But getting rid of the corroboration requirement doesn't necessarily get rid of the problems it was designed to address. Quite the contrary. In rape cases, somebody is always lying; often, there are lies on both sides. Deciding who to believe should not turn on the race or political party of the accused. If we don't know and can't be sure beyond a reasonable doubt (or on the civil side, by a preponderance of evidence), then the matter should be dropped. We shouldn't be talking about it. I shouldn't be writing about it.
And yet, here we go again. Al Gore got a massage in 2006. Maybe powerful men should never get massages in their rooms, lest they be vulnerable to false charges, but I'm not willing to blame him for that. There is certainly no law against it.
I have no idea what happened in that hotel room. Neither do any of the other people talking about it. Gore's spokespeople at first suggested he didn't remember and later denied the reports, leading to criticism that if the woman was indeed fabricating her complaint, why didn't he come out and forcefully deny it?
Easier said than done. Some years ago, an orchestrated leak charged that Tom Foley, on the eve of his ascension to the speakership of the United States House, was secretly gay, and that his marriage was a sham. On the day he became speaker, he held a press conference, with his wife by his side, to deny that he was gay. "Why didn't you tell me Tom Foley was gay?" my mother asked me later that night.
Denying that you beat your wife rarely works. "Dukakis Not Crazy, more at 11," was the headline that day in 1988 when my former boss was forced to deny another orchestrated rumor.
The Portland police have announced that they are reopening the 3-year-old investigation of a 4-year-old massage. Good luck. Proving such things — or disproving them — at the time is hard enough; doing either four years later is almost impossible. But until and unless an indictment is returned, there is no justification for a public debate.
No one should be immune from the law's prohibition of unlawful sexual contact, but innocence remains a defense. We all, hopefully, learned the lesson in the case of the Duke lacrosse rape scandal — about rushing to judgment and ruining lives on no proof.
The former vice president, no less than the Duke players, deserves to be tried, if at all, in a court of law, not in the tabloids. In the absence of proof, the less said the better.
To find out more about Susan Estrich, visit the Creators Syndicate Web site at creators.com.