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"YES: Let police detectives, medical examiners and prosecutors do their jobs objectively and professionally"
By Richard Rosen
Has the pendulum swung too far? Should the credibility of women who allege rape be challenged? Yes. The credibility of women who allege rape should be challeged and investigated on exactly the same basis as the credibility of women who report any other serious crime.
When the police investigate a crime such as arson or burglary, they carefully consider the credibility of the complaining witness. If it appears that witness is mistaken or intentionally lying, the police will investigate because they do not want to arrest an innocent person. Prosecutors need to know if a case can be proved in court. Judges and juries need to know if a witness can be believed. When there is evidence that an alleged victim (male or female) is lying, there is every reason to investigate further.
Unfortunately, there is a different standard applied to the investigation of rape cases. In the name of "sensitivity to victims," most police and prosecutors treat women who report rape as a special class whose credibility is not to be questioned or investigated.
"Political correctness demands that investigators blindly assume that the victim is telling the truth--even if the evidence raises serious doubts. Police and prosecutors will often ask a suspect to take a lie detector test, but they will never ask the alleged victim to do so.
When a woman has been raped by a stranger, injured or kidnapped, her credibility is rarely in doubt. But, in cases of "date rape," especially when there is no injury and no force, the case may rest entirely on the victim's credibility. Police who refuse to question the credibility of such a witness, when there is evidence that she is lying, may end up arresting an innocent man.
The recent case of an off-duty police officer arrested for "date rape" in Pacific Grove illustrates this problem. The "victim" told a story that was full of holes and contradictions. A dozen red flags cried out for scrutiny, but law enforcement refused to conduct any meaningful investigation of the "victim."
Police did investigate the suspect's credibility. They sent an investigator to Los Angeles for a week to interview people regarding his background. This was standard procedure, designed to discover evidence that we relevant and admissible in court. No such investigation of the victim took place. After three months of this one-sided investigation, prosecutors indicted the officer for forcible rape.
The defense investigator then investigated the "victim," asking the questions that law enforcement refused to ask and following the leads that law enforcement ignored. In three weeks, the defense found witnesses and evidence that proved the "victim's" credibility was zero. Shortly thereafter, all charges were dismissed.
The underlying problem is that the criminal justice system has confused the roles of "victim advocates" and "fact finders." "Victim advocates" such as the Rape Crisis Center provide support and unconditional love to their clients. They never question or doubt the women who claim to be victims. Let them continue their valuable work.
The "fact finders"--police detectives, medical examiners and prosecutors--have a very different task. Let them do their jobs objectively and professionally. Stop asking them to be "advocates" at the same time.
Let the detectives follow the evidence wherever it leads. Do not ask them to be sympathetic to one side or the other. Let the medical examiners do their jobs with scientific objectivity. Do not skew their finding by requiring them to be "politically correct." Let prosecutors be free to do their jobs: to do justice, regardless of whose ox is gored.
Genuine victims will not be discouraged by separating the advocates from the fact finders, and we will have fewer cases of innocent people falsely arrested.
Commentary appeared in the Monterey County Herald on April 1, 2001
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By Richard Rosen
As an attorney who has been defending medical marijuana patients in Monterey County for 15 years, I was extremely surprised to read the article here two weeks ago describing local law enforcement as "thoughtful, forward thinking people who appreciate nuance and exhibit common sense" with medical marijuana ("Sticky Stuff," Jan 20-26).
The truth is that most Monterey County police departments, and the district attorney, have een extremely hostile to the medical marijuana law ever since it was passed. The police departments have essentially ignored the law. They continue to arrest qualified patients, ignore their doctors' recommendations, confiscate their medicine and refer the cases to the district attorney for prosecution. The district attorney, who should be rejecting these cases, instead files criminal charges against documented patients, forcing innocent people to fight it out in court. The judges will eventually dismiss the cases, but only if the patient is willing to put up a fight.
Monterey County is one of the worst in the state for medical marijuana patients. Almost every county north of Monterey is more compliant with state law and more understanding of the needs of the patients. The very fact that so many lawful, documented medical marijuana patients have to hire me as a lawyer should tip you off to the fact that something is very wrong here.
The only medical marijuana dispensary that ever dared to open in this county was quickly declared a "nuisance" and ordered to close. In 15 years, no other dispensary has ever been allowed in Monterey County.
In 1996, California voters passed the Compassionate Use Act, legalizing the use of marijuana for medical purposes. Now, 14 states have medical marijuana laws. Although the state laws conflict with some federal laws, the federal government now recognizes and allows all 14 states to have medical marijuana laws without federal interference.
When local police claim that there is "confusion" about the law, they are laying a smokescreen to conceal their personal disapproval and to create an excuse not to follow it. There is no real confusion about the California law. It has been on the books for 15 years. It's been to the Supreme Court and back. It was re-affirmed by the Legislature in 2003. Go online and take a look at California Health and Safety Code sections 1136.5-11362.9.
The police promote confusion when they say things like "a doctor's certificate is only a recommedation" or "you are not legal unless you have a state I.D. card." The law is exactly the opposite. The doctor's recommendation is not just "a recommendation." It is the only documentation required [sec. 11362.5(b)(1)].
The state I.D. card is never requied [sec. 11362.71(f)]. The reason the police push the state I.D. card is because it forces the patient to file his confiential medical records with the state [sec. 11362.715(a)(2)]. Few people sign up for the state I.D. card because it is not required and because it si a huge invasion of privacy.
When they say that the laws and regulations "vary by county," that is another smokescreen. The California medical marijuana law is exactly the same for every county. This is a state-wide law. Some cities use local zoning regulations to keep dispensaries out, but the law that protects legitimate patients is uniform throughout the state.
What varies from county to county is the attitude of the police and prosecutors. Monterey County is unfortunately a throwback.
If a patient has a recommendation, the local police demand to see an I.D. card. If the patient has a card, the police demand medical records. If there is any doubt, the police make the arrest and seize the medicine.
I laughed when I read that prosecutors say: "We are not in the habit of going behind the doctor's recommendation." That is exactly what they have been doing in court for 15 years.
The police have tremendous political power. When the district attorney and the judges are up fro election, they know the most important endorsement they can get comes from the police. So, when the police want to pretend that the medical marijuana law does not exist, most DAs and many judges go along with the charade.
It is time for the law enforcement establishment of Monterey County to start following all the laws, not just the laws they like. Once they do, the citizens of Monterey County will begin to enjoy the same protections that their neighbors do.
Editorial appeared in the Monterey Coast Weekly.
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