This week, hard work and persistence paid off. The Boulder District Attorney filed to dismiss the felony sexual assault case against my client and the Court signed the order. Dismissals on sex cases are rare. It helps if you are righteously confident in your ability to try your case to a jury. I am.
My client was vilified in the press when the charges were filed. The information released by the prosecution was woefully incomplete and suggested that he fled the country because he was guilty. The truth is much different. My client returned home only after his prior attorney relayed word that no charges would be filed. He did not run. He always planned to return to the US and did so, getting arrested as he entered the country.
Despite the arrest warrant affidavit suggesting that the complainant immediately left the dorm and sought help, the truth was that she and her friend chose to stay with my client and his friends. Although the complainant's friend reported to police she immediately learned of the assault, they chose to stay. Both reported they just wanted to get into the sober friend’s car and drive to a safe place, they chose to stay. Videos show that they were free to leave, they did not. Videos show they walked into the parking area within feet of their car. They chose to stay, smoke marijuana and drink alcohol with a large group of students. They chose to continue to spending time with my client and his friends, even attempting to find and return to the boys’ room later that night after separation. At the end of the night, the complainant and her friend rode up and down an elevator, at the dorm, alone, for a significant amount of time, laughing and using social media, rather than leaving. When police asked why, they reported they could not find the ground floor to leave.
While these facts do not completely reveal what happened, they do beg the question of why did they lie, why did they act this way, why do they continue to lie to the police? One answer is that there was no crime.
There is more to this case. A future post may address that.
The complainant will not face charges nor even be identified. She suffers no consequences. Many people will believe she is a victim and he is a perpetrator. There is no database of false accusers. If she falsely accuses someone in the future, there will be no way to learn of this case and use it to assess her credibility. If you want to avoid someone like this, you cannot run a background check and learn what she did. This is true of all cases like this, even the ones that do not get filed.
Compare that to my client. It will take several weeks to seal this case from public view. The defense must file a motion, pay fees and wait. In the meantime, my client’s record will suggest he is a rapist, preventing him from getting jobs or renting apartments or living a normal life. A background check is cheap. After sealing, the case will remain in the police and DA files indefinitely. If granted, sealing will not affect any news articles or other internet content. Therefore, this false claim will be findable on the internet forever. We only hope that those that find the initial article, will also find the one showing it was dismissed. Even so, some will think he got away with it. This is in part due to the recent publicity of a statistic that only 2-8% of sexual assault allegations are false. That just is not true.
To say only 8% of sexual assault claims are false suggests 92% are true. The study does not support that. If you review the literature of False Allegations of Sexual Assault, the type that victim advocates, prosecutors, detectives, prosecution experts and title IX investigators are trained on, this case would not be called a false allegation. (See https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf and https://atixa.org/wordpress/wp-content/uploads/2012/01/Lisak-False-Allegations-16-VAW-1318-2010.pdf). The misleading statistic is based on a contrived definition of false allegation. In the studies, a false allegation must be proven false by police investigation. Of the 136 cases reviewed, almost 45% percent did not proceed and could not be determined whether they were false or not. Another 14% did not have sufficient information for a determination. Only 35% proceeded, and some of those were probably false, just not proven. The study’s authors suggest only 2-8% of sexual assault claims are false where of the remaining 92%, only a third were arguably true reports of sexual assault. If you have to rig the statistics to make your point, you are probably lying. Lies, damn lies and statistics. If you do not like the results, change the definitions.
As with prior exonerations where the case was reported in the press, I requested a follow up article (with my client’s approval). I respect the need for a free press and the public’s right to get this information. Certain facts help to sell papers – fear is a powerful motivator. At the same time, I see the damage that this can do to an innocent person. I give great credit to Mitchell Byars and the Daily Camera for telling the rest of the story.