"Why Would She Lie?"

Yesterday I posted about Brian Banks.

You recall that Banks spent five years in prison for rape because a woman lied about consensual sexual activity.

To follow up, UCLA law professor Eugene Volokh has offered some interesting comments about the case and its implications.

Since the accuser, Wanetta Gibson received a civil damages reward of $1,500,000 for her lie, the question naturally arose: can she be forced to give it back. Are there claw-back rules in such cases?

Volokh comments:

I assume that — absent some statute of limitations barrier (a subject on which I’m not knowledgeable) — what’s left of the $1.5 million will indeed have to be paid back. 

Volokh continues to make an important legal point. Iff the accuser in a rape case stands to profit civilly for her testimony then her testimony will be less credible to a jury.

He writes:

I suspect that in a typical such case, one factor that cuts in the prosecution’s favor is “Why would she lie?” A defendant has ample reason to lie by saying that nonconsensual sex was actually consensual — his liberty is at stake. But a complainant in many cases has much less reason to lie by saying that consensual sex was actually nonconsensual; sure, in some situations there might be possible motivations for lying, but they are usually not nearly as strong as the defendant’s motivation.

Not only has Gibson robbed Brian Banks of years of his life and gamed the system, but she had made it harder, in general, to prosecute rape.

In Volokh’s words:

The jurors don’t know for sure who’s telling the truth. But once they know that the complainant has a potential motive to lie, they’ll be less inclined to believe her — and at least to conclude that there’s a reasonable doubt about whether she’s telling the truth. If you were a juror and the evidence against the defendant besides the complainant’s testimony was weak, wouldn’t you be influenced by evidence that the complainant has a possible financial motive for making up the charges?

What can be done? Volokh does not see a way to reform tort law to prevent this kind of thing from happening again.

What to do about this, though, is not clear. Even if negligence liability against employers, school districts, and others for crimes by their employees or on their property is cut back — some people have argued that it should be — a victim could still sue a rich defendant, or even an upper-middle-class defendant who has some assets that could be seized. If someone physically attacks you, you’re entitled to get compensation from him. But this very possibility makes it harder to criminally prosecute rapists. I don’t know of a good solution to the problem, absent perfect lie detection technology …

For those of us who know less about the legal system, clawing back the entirety of the money Gibson received seems like a good place to start. If she spent the money, then take what she has left, confiscate her property, and garnish her wages until she has paid it all back.

Next, the legal profession should reconsider the statute of limitations on offering false testimony, lying to police officers, and conspiring to deprive a man of his freedom.

I am confident that our best legal minds will be able to find a way to dis-incentivize lying about rape.