Criminal Justice

No Jail Sentence for Woman Who Falsely Claimed Rape by Three Unidentified Black Men

What should the proper punishment be in such cases?

|The Volokh Conspiracy |

Drew Smith (Sherman/Denison, Texas Herald Democrat) reports:

Breana Harmon, the [19-year-old] Denison woman who falsely claimed she was raped in March 2017, entered a plea of guilty Thursday to four felony charges of tampering with physical evidence and government documents…. Harmon told investigators three black men had approached her in a parking lot, forced her into an SUV and drove her to wooded area where two of the three men raped her.

Two weeks later, Harmon confessed that she had lied. Her motive was apparently that she had cut herself because she was upset about the likely breakup of her relationship with her fiancé, and then made up the rape because she was worried that "her family would be upset with the self-inflicted injuries."

Harmon and the prosecutors apparently agreed to a plea deal, under which she would either get probation, or get "deferred adjudication," which would mean the charges would be automatically erased if she stays out of trouble during the deferment period.

Now the offense does seem less egregious than one in which a specific person is falsely accused—but it still strikes me as pretty serious.

Readers: What, generally speaking, do you think is the proper punishment in such cases? Should the punishment turn in part on the possibility that the false accusation, of three black men raping a white woman, would be especially likely to cause tension and hostility in the community, or should that be considered legally irrelevant?

Naturally, the sentence may well turn on the circumstances of the particular defendant, which we don't know. But assume there's nothing exceptionally unusual for a crime such as this, and assume no insanity or other delusion on the defendant's part.

Thanks to Glenn Reynolds (Instapundit) for the pointer.

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123 responses to “No Jail Sentence for Woman Who Falsely Claimed Rape by Three Unidentified Black Men

  1. Any false accusation of a crime is an attempt to perform kidnapping, imprisonment, and rape using a misled government to provide the force. Thus it should carry the same penalty as trying to do those things with a gun in your own hand, plus an enhancement for perverting the course of justice. Or the same penalty that the government would have inflicted on the victims if she had succeeded, whichever is greater — including having to register as a sex offender for life.

    And most importantly, since women doing this routinely get undeserved sympathy and get away with it — the victim needs to have the legal right to prosecute the crime himself.

    If the legal system does not provide this justice, then it has broken the social contract and I would not convict the guy if he took revenge on his own.

    1. Well, that was a helpful non-response. Did you read the fact pattern? She didn’t accuse anyone; there is no “guy” or “victim.” (There potentially could’ve been — someone might have been arrested — but there wasn’t.)

      1. No, she didn’t point at three random black guys and say “That’s them.” She pointed at all black men and said “Pick three.”

        1. This is awful, and I would hope for more of a penalty.
          But group libel isn’t a thing for good reason.

    2. Dang! I am so used to being the only one with that attitude that I posted a similar response without reading prior comments first. I’d only extend it to all perjury, such as crime lab techs who perjure themselves, cops, other witnesses, etc.

      1. Indeed. Anyone who falsely accuses another is committing a crime, the punishment for which should be the same as they accused a person of.

        Deterrence only works, when it deters. Some minor embarrassment is not a punishment.

        1. I would like to agree with you on punishing the person who makes a false accusation with the penalty she might have inflicted on someone else. However, if we adopt such strict penalties for false accusations, what, exactly are we deterring?

          I suspect that extremely harsh penalties for false accusations will not only discourage some false accusations, harsh penalties will discourage coming clean about having made a false accusation in the first place. I suspect the second part of that equation will be relatively stronger than the first. The original false allegation is likely made with less forethought (i.e., consideration of consequences) than the later retraction. Yes, some false accusations can be proven beyond a reasonable doubt without cooperation from the accuser. More often, I suspect, they cannot be. This means the accuser will have a strong interest in not recanting false testimony that landed someone in jail for domestic assault or sexual assault or rape.

          I think false accusations like the one in the story are awful crimes. My desire for retribution, like yours, is pretty strong. However, we should be careful in crafting the penalties that we aren’t deterring something we want more of. (This doesn’t mean there should be no penalty, obviously, but maybe the penalty should not be as draconian as would make us feel like the wrongdoer got what they deserved.)

        2. Deterrence only works when the person is acting rationally. A possibly suicidal 19 year old who just went through a breakup is not likely to respond to deterrence.

          On the other hand, when she calms down and 3 black men stand falsely accused of rape you’ve now given her a very strong motivation NOT to come clean about having made up the accusation.

    3. Not quite. A false accusation is the waste of a bunch of government investigatory resources and MAY cause intrusion into the lives of innocent suspects. All those costs (government expense, plus actual suspects’ time and damages included) should be paid by the false claimant, not the potential worst case penalty that would have been inflicted on them.

      As for harm to all who fit the “3 black men” description – cost of living in civilization, sorry.

  2. If a specific person got formally accused, or smeared in the media, as a result of a false report (whether of rape or any other crime), then I’d be sympathetic to providing a punishment equivalent to that of the falsely-reported crime. So if some black person had actually been arrested for rape, and the person making the report is later convicted of making a false accusation, then the sentencing should be as if the false accuser had actually done the things the arrested guy was accused of doing.

    Same if someone gets smeared in the media like Richard Jewell.

    If nobody specific gets accused, I’d be OK with a lower penalty.

    Incidentally, though f course I’m not saying this happened here, I recently read a distressing book about a woman who was raped but was bullied by cops into “confessing” she’d made it up. They discovered the error after *other* cops arrested the serial rapist who was responsible, by which time the woman had pled guilty to false reporting and gotten a deferred sentence.

    The general point is that guilty pleas aren’t always true. This isn’t just a rape thing, actually.

    1. Correction – maybe simply being smeared in the media shouldn’t be enough to trigger my proopsed penalties. This is just an idea I cooked up on the Internet, not a finished product.

    2. I agree with this. I don’t think the racial angle should have any affect. I’m also okay with a softer punishment based on lack of actual harm even if the risk of harm still occurred.

      But I think a small amount of jail time is appropriate. Some person could have been seriously hurt based on this both physically (during arrest) and reputationally (being arrested for rape is a universally bad look). The risk of harm was still there. Which is why unlawful discharge of a firearm is still a crime even if nothing gets hit. Specific deterrence, general deterrence and Kantian restributive Justice all come into play as appropriate justifications for punishment in a matter such as this.

      1. “I don’t think the racial angle should have any affect”

        You mean effect.

        “Affect” is precisely why the false accusation is a bit more reprehensible than it might otherwise be.

        I tend to agree with Bret that in the absence of an actual victim of the false accusation it’s not a big thing. I haven’t read to the end of the thread so maybe someone else has made the point, but as well as wasting police time, and adding a peanut to the scales of racial animus, it adds a second peanut to the scales of “rape claim credibility” – which harms real rape victims.

    3. That’s about my position: A false accusation that results in a real person being targeted should carry the same penalty as they’d have gotten if convicted.

      If it’s not that specific, perjury charges and bill them for wasted police resources.

      1. I very much hate how this falsely feeds a narrative about black violence.

        But I can’t come up with a limiting factor on any way to make that a crime that doesn’t loop in lots of protected speech, or go into deep hate-crime-esque interrogations of intent.

        The bloodthirsty ones who want you to be punished for the crime you accuse others of are favoring deterrence over mercy to the point that justice is lost.

        I reluctantly have to agree with Brett & co.

        1. “The bloodthirsty ones who want you to be punished for the crime you accuse others of are favoring deterrence over mercy to the point that justice is lost.

          “I reluctantly have to agree with Brett & co.”

          I’m a bit confused by this…does this make you one of the “bloodthirsty ones”?

          1. Based on suggestions by others, I could see a sliding scale where the potential punishment gets bigger depending on how far into the process the victim was dragged.

            So if he’s arrested but then let go, that would be less serious than arrested and actually put on trial. And serving several years would be worst.

            So that would suggest upping the punishment the further the offender takes the process. That would provide an incentive at each stage to say “wait, I better stop with the false accusations, because the penalties if my lies are detected keep adding up!”

            1. Touche – I’m more with Bob than Brett. The penalty for perjury is what it is because the act is what it is.

              Deterrence does not increase linearly with punishments – humans are much less rational than that. And mercy for is also something the justice system needs, not just punishments made in service of immediate offense.

              I hate what this woman did, but people are getting carried away in the angry mob mentality way the Internet does so well.

              1. So you’re saying we should have mercy for people who abuse the justice system and knowingly accuse others of a crime they did not commit? Where’s the justice for the victims falsely accused and who suffer harm?

                1. I think what is so far missing from this conversation, at least from my perusal of the comments, is that stiff penalties (someone who falsely claims rape gets the sentence for rape) has two effects: Yes, it deters false accusations (though as Sarcastro points out, probably not as much as people here seem to think) BUT it also deters recanting. In the case at hand, they suspected she was lying and no one was arrested, much less convicted. But there are plenty of cases where someone was wrongly convicted based on false accusations and the person was later exonerated when the witness admitted to perjury. How likely is it that such perjuring witnesses will come forward to exonerate an innocent person serving a 20 year sentence if that means they will then get a 20 year sentence? I would say the deterrent effect on recantations (usually made after lots of reflection and consideration of consequences of both the lie and coming clean) will be much stronger than the deterrent effect on false accusations (usually, I suspect, made without much reflection on the consequences to the person making the accusation).

                  I suspect the perverse result of sentencing a person who falsely accuses others of rape to the usual term in prison for rape is that more people people will go to jail and stay in jail based on false allegations. Where, indeed, is the justice for the victims who are falsely accused?

                2. Why not kill all criminals, then, Billy? Think of the deterrence!

                  1. “Why not kill all criminals, then, Billy? Think of the deterrence!”

                    What a stupid comment. I mean, truly idiotic. BillyG didn’t say anything about maximizing deterrence. He talked about justice. It’s telling that you have to change “justice” to “deterrence” to make your little joke.

        2. Yet there have been several incidents that were the other way with black women accusing white men with Duke lacrosse players being the most prominent. Another involved a white student being threatened by a pro football player based on a false accusation.

          Any punishment needs to be color blind and based on the accusation along with how far along the process goes, including is there a victim of the false accusation.

  3. I’d be interested in seeing a survey of prosecutorial / sentencing outcomes for the dozens or hundreds of “fake hate crimes” in recent years.

    I don’t see why the perpetrator’s motive shouldn’t be considered as a mitigating circumstance if it was purely personal, as opposed to political, and the collateral harm was not intended. But in any event, nonadjudication strikes me as far too lenient.

  4. It would be useful to know — maybe a Texas lawyer could tell us — what the normal range of sentence is for the crimes charged. I’d much prefer working off some definite information like that than my gut outrage.

    1. “– what the normal range of sentence is for the crimes…”

      lets see… black man even accused of looking in the direction of a white woman in the south, I wonder what the historical punishment would have been.

      1. I cannot imagine what you think this has to do with being charged with tampering with evidence in 2018

  5. My attitude is that perjury ought to be punished by the maximum penalty which the fraud could have caused. Frame someone for murder, lie about it under oath, swear out a false complaint — you get that. In this case, she should have gotten 3 consecutive sentences for the rape she tried to frame them for.

    1. No one is more “throw the book at them” than me but that is way excessive.

      Perjury/false reports have specific penalties, apply those.

      1. Since they are not prosecuted with great vigor already, raising the penalty would most likely end up reducing even that. This is practical, since I agree with the sentiment.

      2. I am saying change the specific penalties to match the accusation. You are saying keep the status quo because … why? You say you want specific penalties. Why not list the penalties? Do you even know what they are?

        I want the punishment to fit the crime. Not all perjury is the same. Framing somebody for shoplifting is different from framing somebody for rape or murder.

        1. The crime is perjury.

          Its typically a maximum penalty of 5-10 years. I do not know what Texas specifically is.

          Under your theory, you could execute someone for perjury. Leaving aside that the S/C has limited the death penalty to murder, that is nuts.

          1. If I commit perjury and someone is executed due to that for a crime they did not commit, I have caused someone to die through my perjury. Are you still saying that’s nuts?

          2. Perjury over stealing an apple is different from perjury over murder. Are you saying the punishment should be equal? Are you letting the murder perjurer off or sending the apple perjuerer to death row?

            1. “Perjury over stealing an apple is different from perjury over murder.”

              Not really.

              The punishment in any event should be within the range of the perjury statute, not the statute for the alleged crime.

              1. Ah, so you admit the punishment should fit the crime.

                That’s exactly what I propose.

                1. “That’s exactly what I propose.”

                  No, it is not, You want to make the perjury punishment fit the underlying crime inch for inch.

                  Let’s say the perjury statute has a 5 year maximum. The punishment, whether you perjured yourself regarding alleged misdemeanor theft [of an apple] or an alleged rape, should be no greater than 5 years.

                  1. So you’re saying the impact of the perjury should have no impact on the punishment. Get someone locked away for life (or executed), max of 5 years.

                    1. “So you’re saying the impact of the perjury should have no impact on the punishment.”

                      Within the context of the perjury punishment, you can take it into account just like any number of factors. For example (Theft = 1 year. Murder = 5 years)

                      “Get someone locked away for life (or executed), max of 5 years.”

                      Yes.

                      Don’t like it, change the perjury statute to allow for greater punishment.

                    2. I agree with Bob.

                      Even if the consequences are horrible, I executing someone for lying is draconian. And I don’t think such a regime would be constitutional under current jurisprudence.

                    3. Yet committing perjury leading to an execution is functionally different from murder how?

                    4. “Yet committing perjury leading to an execution is functionally different from murder how?”

                      A judge, prosecutors, police, other witnesses, other evidence, a jury of his peers, appeals, collateral review, pardons, and 20 to 30 years come to mind. No single witness is responsible for the execution of an innocent man. It takes a team effort.

                    5. executing someone for lying is draconian.

                      Why? You’re just talking about murder through deception

                    6. Two things:

                      1. If you frame someone for murder with the intent to have them get the death penalty and they are executed (or killed during the arrest), arguably felony murder statutes apply, if not actual murder statutes.

                      2. If you lie on the stand in a murder trial and the person is convicted of murder and sentenced to death, how likely are you to recant your false testimony if it means you end up in the electric chair in his place? Your proposal is meant to deter perjury, I suspect it would do more to deter admitting the perjury and thereby exonerating falsely accused people.

                    7. I agree. Change the perjury penalties to align with the falsely accused crime.

            2. In Colorado:
              (18-3-102)
              “1. A person commits the crime of murder in the first degree if:
              …(c) By perjury or subornation of perjury he procures the conviction and execution of any innocent person”

              This used to be eligible for the death penalty. I’m not sure if it still is.

      3. The specific penalties for false accusations of criminal behavior should be at a minimum, the penalty they were accusing someone of.

        This should be treated similarly to the hoary ‘bomb at the airport’ kind of report: Swift, certain and extremely painful penalties for even trying it. The potential ramifications of false reports at a minimum tie up law enforcement resources, progress into inflicting harm onto society because those resources were not available for real crimes, and potentially have dire consequences for anyone accused. As I mentioned in another report, a google search on the Duke Lacrosse case will bring up the names of men falsely accused: It will take something more than a casual review of the headlines to find out they were falsely accused. What kind of lifetime harm have they suffered?

  6. Oh, I would add that allegations (and, indeed, substantiated allegations) of black on white crime are rarely reported by the media as such. So while there was a potential to stoke racial unrest, it was unlikely to actually happen.

    On the other hand, fake hate crimes routinely make national news.

    1. It made its way around the internet, including white supremacist sites.

      Sorry, you don’t get to make up a story about three black men raping you, waste police time, stoke racial tensions and all so you don’t tell your mother that you cut up your new pair of jeans.

      As I said below, 2 years incarceration.

      1. Since pretty much no one reads those sites who isn’t already a white supremacist, that’s not a very persuasive argument.

        I don’t mean to say that I disagree with your sentencing recommendation. 2 years would be on the light side in my opinion.

      2. Jeans?

        She cut herself (self harm/injury). I don’t think any denim played a major role in the incident.

  7. One of my first cases as an OSI agent was a rape allegation from a young spouse of a deployed airman. She claimed she was raped by an unknown assailant, possibly a black male, but couldn’t provide any other details. Turns out she got drunk at the club on base, had sex with another guy, got knocked up, and was too ashamed to admit it.

    The military doesn’t have jurisdiction to prosecute a civilian (except limited cases in a war zone), and since this was at base in Germany the German authorities basically said it’s our problem, so not much happened to her under any judicial system (not sure what the husband did though).

    Anyhoo, as in many cases, intent is a key factor. If the false allegations were directed towards a single individual (e.g. Snuffy Smiff raped me), and the intent is to cause Snuffy some harm (arrest, etc.), then obviously the penalties should be harsher than a case were the intent is to cover embarrassment and does not identify an individual.

    I think the penalty in the above case was appropriate for the situation.

    1. Too many reports?both real and fictitious?are related to alcohol and drugs.

    2. I heard about several cases like that when I was stationed in Germany.

  8. I’d scale it based on the impact to those accused. This is regardless of the crime accused (I’m looking at the staged hate crimes for instance).

    False Accusation/Police Report: 50% of sentence of crime accused
    Individual(s) tried for crime (regardless of conviction/acquittal): 100% of sentence of crime accused
    Individual(s) sent to prison for crime: Triple what the person falsely imprisoned went through (e.g. 3 years for every 1 served), plus 100% of sentence of crime accused, plus triple damages

    So, woman basically should be serving at least 20 years for 3 false accusations.

    1. Agree with your scaling.

      20 years for this one seems harsh, since she did not accuse anyone specifically. But 2 years incarceration seems right.

      1. How about:
        20% for False Accusation/Police report when not naming an individual
        50% for False Accusation/Police report when naming an individual

        In this case, that would probably still be more than 2 years due to stating 3 suspects.

  9. Actual prison [or jail at least] time, not probation, for false reports of serious crimes. It wastes police time and when race is involved, aggravates tensions.

    Since no one was arrested, in her case, maybe 30 days in jail to teach her a lesson.

    If people get arrested, at least half of the maximum penalties. If someone is falsely tried and convicted, the maximum for the false report/perjury.

  10. This seems fairly typical. False accusations or reports are seldom prosecuted. Perhaps they should be.

  11. I would say that any reasonably-verifiable incidents of false accusation (involving law enforcement; not just “she said something to her best friend), be a required prosecution by the DA (no posecutorial discretion), with the sentencing left to judicial discretion.

    In this case, there were no individuals accused, arrested, or harmed; there were few resources spent on the case; and it seems the woman was dealing with some degree of mental illness (depression, etc.) A punishment is appropriate, but a mild one is enough. There was no malice intended, she just panicked.

    In a case where an individual (or individuals) are named, arrested, formally charged, taken to trial, etc., the punishment should be significant. The extent and/or severity of that punishment should be determined by the particular facts of the case. Whether that be via jury sentencing or judicial, I’m not sure (though I think I’d lean towards judicial).

    Factors of non-specific harm (e.g., race relations) should not, in my opinion, be factored in.

    1. “a required prosecution by the DA (no posecutorial discretion)”

      Does due process allow such a thing?

      1. Even if it did, the DA could just throw the case.

        You’d need to have somebody in the state whose only assigned task was prosecuting such cases, so that they’d have an incentive to be seen doing their job.

        1. Or you could allow victims to prosecute, since they are the only ones with real skin in the game.

  12. In a perfect world, the penalty would be for her to be raped by three actual black men. But it’s an imperfect world, so the penalty should be that she has to make a movie with Harvey Weinstein.

    1. “In a perfect world, the penalty would be for her to be raped by three actual black men. ”

      Officer, I was just walking down the street, and three gorgeous young women, one blonde, one black, and one Asian, accosted me and forced me to do sexy stuff. Ok, ok. I lied. It didn’t happen. But I’m prepared to face my punishment.

      1. Why don’t you just post an ad on Backpage and leave the cops out of it?

    2. When your perfect world is some sort of hideous hellish dystopia.

  13. Interesting topic!!

    I’m astonished at how many people find 4 felony convictions (which will certainly impede and likely prevent the 19 year old from many professions [most institutions of higher education react negatively to even expunged felony convictions]) to be not enough punishment for “false reports” that may have inconvenienced some LEOs, but never impacted any specific individual at all.

    I distinguish this case from cases where the accuser actually identifies individuals (e.g., Tawana Brawley or the Duke stripper), which appears to be more significant wrongdoing (along the lines of the distinction between non-actionable group libel and actionable libel). Nonetheless, I can’t go with sentences for false statements to police and sentences for violent crime needing to be equal.

    Lastly, I think the “outrage factor” should not be a factor, if only because I see no way that it would be applied in a content-neutral factor. I note this girl had 4 felony convictions for a non-specific, quickly recanted story, while Ms. Brawley and Mangum were not even charged.

    1. The cases were nonadjudicated, meaning that if she keeps her nose clean for a certain amount of time the convictions won’t be entered and she’ll walk away scot free.

      1. With nearly 25 years in higher education (specifically medical profession colleges), I can assure you that the convictions *ARE* in the records and they *WILL SHOW UP ON THE BACKGROUND CHECK REPORTS*. That’s why applications to medical and dental schools (and law school, for that matter–at least it was there 30 years ago) tell the applicant to list all convictions, whether or not expunged or otherwise “adjudication withheld” type pled. Maybe it shouldn’t be that way, but it is, and I have seen more than one student over the years who was qualified enough to have been offered admission, but then had the offer withdrawn.

    2. “but never impacted any specific individual at all.”

      Impacting several thousand individuals by creating a hostile environment against them is a harm. Punish the perpetrators. Looks like obstruction of justice and harassment has been used against some previous perps.

    3. “I distinguish this case from cases where the accuser actually identifies individuals (e.g., Tawana Brawley or the Duke stripper),”

      Neither of which were prosecuted, IIRC.

      1. “Neither of which were prosecuted, IIRC”

        Indeed, which is why I thought 4 felony convictions (even if of the semi-vanishing sort) might be a touch harsh under the circumstances, given the comparison with the far more egregious conduct Brawley and Mangum managed without penalty (or even threat of penalty?).

        1. I’d be OK for with a misdemeanor. Certainly not years in jail. But we generally over-punish people. And being extremely tough on sex crime is all the rage nowadays. And this is sort of a sex crime.

  14. The proper punishment for her is what anybody would’ve received if they were convicted for her lie.

  15. Interesting question. My first thought is that the punishment should fit the crime.

    Where the crime, as here, results in merely wasted time and money, the appropriate punishment is probably just restitution. Fine her enough that our tax dollars are (roughly) recovered from what her false testimony caused police and prosecutors to waste.

    On the other hand, if her crime had led to specific false accusations against an individual, possibly including jail time (even if only pre-trial detention) for the person falsely accused, her punishment should be in line with the harm she caused. Jail time herself might be the only way to balance the scales.

    “Creates tension in the community”, however, strikes me as too indirect a standard to use. Too many other things could cause “tension in the community” and I would be very reluctant to give prosecutors even more latitude to make such discretionary arguments. Direct effects only, I think.

    1. “Inducing panic”? I’m thinking about the students at some colleges who hung a noose in a tree and the Air Force cadet who posted epithets on his own door. In the case of the Air Force, the cadet was expelled, but in others there’s no punishment. Just cause there’s no direct harm to an individual doesn’t mean harm hasn’t been done to a group.

  16. It’s tough because you want to craft incentives in future cases to deter lying in the first place, but encouraging coming clean before someone is falsely convicted (or eventually either way).

    1. I came here to the comments to make the same point.

    2. I note that the “coming clean before someone is falsely convicted” is a relatively rare thing. Like the Duke cases, what really happens is that after lots of defense work (and expense) the case blows up as the lies are exposed.

      So this point of crafting incentives is important. At this point the innocent defendants get smeared … probably permanently to some extent and suffer often crippling debt to pay for the defense work required. The false accuser …. is not punished and his or her name is seldom significantly exposed based on “protect the victim” media policies.

      The current system does not work. I like the progressive punishment approach where there is jail time involved from the start, and it increases the longer the lie continues. Maybe, give them a free 24 hours to come clean … after that … jail time.

      1. “I note that the “coming clean before someone is falsely convicted” is a relatively rare thing.”

        Of course they are. They are predicated on a relatively rare thing–someone deliberately filing a false police report–so a subset of that category is going to be rare by definition.

  17. Putting aside murder cases; sexual assaults are about the worst thing one human can do against another. The second-worst thing one can do is to falsely accuse someone of sexual assault. (Not only for the great harm to that accused person–not applicable in this case, but for creating an atmosphere where future real accusations are more likely to be disbelieved.)

    It is hard for me to imagine a case where jail time–or at least intense psychological counseling–is not called for, at a minimum.

    1. “second-worst thing one can do is to falsely accuse someone of sexual assault.”

      Worse than breaking someone’s legs with a bat?

      Worse than breaking into a house and tying up the occupants?

      1. Yes, worse than those hypotheticals. Physical injuries heal. Relatively quickly, too. The emotional injuries in your second scenario will take longer to heal but they will eventually. On the other hand, the loss of reputation and social stigma even from a false accusation is permanent and debilitating. Those so accused have almost no chance of ever returning to a normal life.

        For another data point, consider the number of people who commit suicide after such an accusation. Compare that to the number of people who commit suicide after having their legs broken (nearly zero) or being a kidnap victim (not zero but still small).

        1. IMO, you are underestimating the emotional scars (and totally disregarding the physical harm] under my examples and over estimating the effect of a false accusation.

          Felonious assault and burgerly/kidnapping get significant higher punishment than perjury in al jurisdictions.

          “Those so accused have almost no chance of ever returning to a normal life.”

          I doubt this. People with actual criminal convictions return to normal lives.

        2. “On the other hand, the loss of reputation and social stigma even from a false accusation is permanent and debilitating.”

          Bill Clinton seems to be doing okay. Roman Polanski too. Kobe Bryant is nominated for an Oscar this year. And, for a kind of crazy person, Mike Tyson seems to be doing alright. There are plenty of famous people, whose alleged transgressions were widely disseminated, that have been able to recover from allegations of (or even convictions for) sexual assault.

          Now maybe this is just one of those benefits of celebrity. But on the other hand, the relative anonymity of the average person might make moving on easier to do, even if they have to relocate to do so.

    2. “sexual assaults are about the worst thing one human can do against another.”

      I’m not sure we can make a comparison. I’d rather be raped by three black women than have someone break my legs with a bat. And I’d certainly rather have my wife say, “hold on, I’m almost there” and continue after I’ve asked her to stop, than to have someone hit me and take my wallet.

      1. First, some of us would rather have our legs broken than to be raped.

        Second, your example of “rape” is telling – it’s something that most right- and libertarian-leaning people would not want classified as “rape” if it happened on a college campus. Are you deliberately not positing being anally raped by a stranger because it actually means you have to wrestle with this issue?

        1. “First, some of us would rather have our legs broken than to be raped.”

          Sure. That’s my point. You can’t really compare a breach of sexual autonomy to physical injury, because the comparison varies greatly among different people, and for different types of breaches.

          “…it’s something that most right- and libertarian-leaning people would not want classified as “rape” if it happened on a college campus.”
          I wouldn’t want it classified as rape whether or not it happens on a college campus or not. But if you start reclassify all sorts of non-horrible things as sexual assault, you can’t continue to say that sexual assault is one of the most horrible things one can experience.
          Awkwardly attempting a kiss at the end of a date is not the worst thing one human being can do to another.

          “Are you deliberately not positing being anally raped by a stranger because it actually means you have to wrestle with this issue?” No, I’m not positing it because it’s a less interesting example. Tbh I’d probably still rather be anally raped by a stranger than have my legs broken (assuming no STD, etc.) although the answer might have been different when I was younger. YMMV.

  18. I would recommend two years (five, if someone specific was named) for each charge to be served concurrently with no consideration of racial animus. For a pretty decent book on the issue of race and rape, see Estelle Freedman’s Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation.

  19. The punishment should be as severe as a man would get for being convicted of raping an ‘undefined woman’.

    1. Um, do you mean for being falsely convicted?

      There is no reason to disbelieve that proven cases with anonymous accusers are not real rapes.

      1. Yes, the punishment for being found to have committed a rape against an unidentified victim would presumably be severe so the punishment for a false accusation against an unidentified perpetrator should also be severe.

        1. Whew!

          I disagree, but now I see where you are coming from.

  20. Well, there was no insanity, and no delusion. She just didn’t want to get into trouble.

    I’d base my opinion on jail time/no jail time on the number of black men who had their days ruined ? officially and unofficially ? over the course of that two weeks.

    I don’t think she should be allowed the clean record.

  21. Considering the ramifications had someone actually been falsely accused, I think the penalty should be the minimum that might have been inflicted on an innocent person.

    Had people actually been convicted, the maximum penalty (up to and including the death sentence) that they received. For three convictions? 3x the sentence.

    People need to be dissuaded from false allegations like this: They are not benign, even if the person is later found innocent. Consider the lacrosse players from Duke, thanks to online search engines they will ALWAYS be associated with that false allegations. Plus the psychological torture, and financial costs, involved in defending themselves.

    Criminal laws are supposed to serve as a deterrent to crime: When a guilty person does not suffer, there is no deterrent.

  22. How about a penalty of having to pay restitution for the hours and resources that law enforcement had to waste on her false claim?

    1. OK, but lots of criminals don’t have very deep pockets.

      1. Criminals can do community service, say 1000 hours worth in this case.

  23. One need not be insane to self harm. If judged to be in need of help for her actions, getting help would be better than any incarceration that would only exacerbate the situation. If it was found that she was acting with malicious intent that would be another matter no?

  24. A thought – if the penalty for lying is sufficiently severe, to what extent would a person making such an accusation be disincented from admitting she lied? If the penalty for someone who bails out before actually identifying anyone isn’t lighter, would fear of the penalty have induced her to continue her story including testifying against people who were arrested and helping send them to jail?

    It seems to me the penalty for someone who bails before a serious crime is completed has to be significantly lighter than the penalty for someone who continues until the main damage is done. Otherwise, why bail if one is going to get the same penalty anyway?

    1. I think I and some other commenters suggested something along these lines – increase the penalty based on how far the false accuser goes through the process: arrest, trial, prison term.

      Each escalation by the false accuser should lead to a higher penalty, and I’d say if the victim goes to prison, the time the victim spent in prison should be the *minimum active sentence* the false accuser gets.

  25. What if she had said “three white men”?

    1. Duke tried that experiment already.

      1. As did UVA, though that was aimed at an entire fraternity (see: “Rolling Stone”).

  26. she was worried that “her family would be upset with the self-inflicted injuries.”

    Pretty bloodthirsty lot of commenters here. Her story probably rang false the moment if fell from her lips, and if law enforcement spent any significant time roughing up ‘usual’ suspects, then it would be as much their fault as hers. Susan Smith is an example of one who’s ‘black man’ story sounded fishy instantly to all who heard it. Likely so this one.

    We have all told lies. Sometimes those lies have spun out of control in ways not foreseen. No one got hurt in this case. If the penalty is too steep for coming clean, then liars potentially will repeatedly double down on their claims to avoid excessively harsh punishment.

    1. I think several people, such as yours truly, have said that if nobody actually gets accused, then the penalty should be lighter than if the false accusation leads to a specific person getting arrested/tried/punished.

  27. I always have thought that it was a felony to file a false police report I guess that I have been wrong all this time. Just because the woman was only 17 at the time she is old enough to have known so if she did not then it is a failure of the educational system. If that is the case maybe then the educational system should be change, in reality the people in the system is what needs to be changed starting with those on the state level.

    1. Um, ignorance of the law is not a defense.

  28. Here’s a case from Michigan where a woman was sentenced to time served (313 days) for raping a man at knife-point.

  29. I’m all for an eye for an eye. One who “bears false witness against [her] neighbor”] ought to be punished the same as the person falsely accused would have been had he been convicted. Absence of evidence for an attack may not be evidence of absence, but any attempt to create much of a case without solid evidence should be looked at askance by the court.

    1. That’s not an eye for an eye. That’s an eye for a hypothetical eye.

  30. Although Eugene says that we should assume that there is “nothing unusual” about this crime, there are certain critical questions that we need the answers to, which have nothing to do with whether the crime was usual or unusual.

    Punishment usually is tied most closely to harm inflicted and to prior record. Was anyone arrested and charged with raping defendant, and did any significant harm to anyone result from her actions? Did defendant have a prior record? If the answer to both questions is no, I think lenience is appropriate, particularly in light of defendant’s mental health problems, which are shown by the fact that she was cutting herself. If her accusation did in fact have an inflammatory effect, then that’s a form of harm, which should have been considered by the judge.

    This is not like Mayella Ewell in To Kill a Mockingbird, who accused a specific Black man of raping her, falsely testified against him, and effectively caused his death.

  31. The statistics are all over the place, but the vast majority of rape prosecutions are not successful (especially when the people knew each other). We can’t have a situation in which unsuccessful rape prosecutions are the basis for criminal and/or civil penalties against the accuser, simply because the accusation was not proven beyond a reasonable doubt. (It is hard to argue that the same arguments governing false rape accusations and “the process is the punishment” do not apply equally to good-faith accusers who are subjected to criminal investigations for perjury or filing false police reports.)

    There are also situations in which someone accuses another in good faith but is completely wrong in the person’s identity, as famously happened with Jennifer Thompson and Ronald Cotton. She was raped, and she thought Ronald Cotton did it, so it’s hard to argue that she belongs in jail for incorrect eyewitness identification. Nevertheless, a badly-constructed statute could have that result.

    As Reader Y stated above, we want women who bring forth false accusations of rape to recant sooner rather than later.

    As such, a tiered system of penalties seems the most sensible, with factors including whether or not a particular individual was targeted for the accusation, how far along the process went, and whether or not the accuser recanted voluntarily. I would add to that “whether or not intercourse actually occurred under roughly the circumstances described by the accuser.”

    1. “We can’t have a situation in which unsuccessful rape prosecutions are the basis for criminal and/or civil penalties against the accuser, simply because the accusation was not proven beyond a reasonable doubt. ”

      Of course not. No one should be convicted of making a false accusation unless it is proved false beyond a reasonable doubt that they are knowingly making a false accusation. Of course, this is more complicated on college campuses where a “preponderance” standard is used. If the same standard was applied to an accuser as an accused, most accusations where the accused was cleared would result in the expulsion of the accuser.

  32. If this person’s claim hadn’t been widely publicized, then it would’ve been a routine lying-to-police matter, no? If she wasn’t the publicizer, then there’s no reason why her punishment shouldn’t conform to the normal range of sentences for lying to the authorities. Indeed, taking her lie to the people shouldn’t increase it either, especially since she didn’t implicate any identifiable persons. Even if her shameful lie could be considered disparaging to black men in general, the US does not yet criminalize disparaging populations, rather than individuals.

  33. This case is further evidence that we live in a False Accusation Culture in which men are oppressed on a daily basis by the Matriarchy, which not only empowers females to destroy the lives of men by falsely accusing them of sex-related crimes, but also creates an atmosphere of Female Entitlement that signals to females that they can make such false accusations at will and that it is “good clean fun” to do so.

    I, for one, am tired of having to change my behavior to avoid being victimized by false accusations. That is victim-blaming. The answer is to teach females not to falsely accuse!

    I have also established a Safe Space so that men who feel pain because they have heard someone argue that the False Accusation Culture does not exist can be comforted.

    ???

    But to answer the Professor’s question seriously, since no specific individual was named, and there is no evidence of an intent to harm anyone else, I would want to know exactly how far she pushed her false narrative. Was it a report she made and then immediately backed away from, or did she layer falsehood upon falsehood? I am more inclined to feel sympathy for somebody who acted out of fear and then immediately came clean than I would be for someone who pushed a false story at length.

  34. “But assume there’s nothing exceptionally unusual for a crime such as this, and assume no insanity or other delusion on the defendant’s part.”
    All right for purposes of your hypothetical exercise. But this is a young woman who cuts herself when upset and depressed. She clearly is not a rational person and her motivation was not to get 3 random black guys arrested. She also recanted when the shit got real. Maybe prison is not appropriate in this case. Now if we’re talking about cops, prosecutors, “experts” and judges, lock ’em up.

    1. Very well. Then give her the same regard as would have been given to the defendant had they been found guilty and of similar mental state. Basically sentence her under the same guidelines and conditions.

  35. I have not read through the other comments, but I preemptively concur that any false accuser that knowingly does so, should be on the hook for treble the defense cost to include damages, and the sentence that would have resulted for the accused. This should gnaw at the very core of those in the legal profession that an innocent person be convicted and imprisoned based on knowingly false accusations.

  36. Shouldn’t we have begun discussing this issue thirty years ago when Tawana Brawley and Al Sharpton first reared their ugly heads on the nation’s racial radar?

  37. “deferred adjudication,” which would mean the charges would be automatically erased if she stays out of trouble during the deferment period

    At least one defense lawyer in Texas has strong feelings about this:

    The Myth of Deferred Adjudication

    The most common misconception about deferred adjudication in Texas is that successful completion removes the criminal charge from one’s record. This is not true.

    Deferred Adjudication does not disappear if the terms are successfully completed. Rather, one must file a petition for Non-Disclosure to seal the record. Some offenses are not even eligible for non-disclosure. Additionally, with a felony charge, one will also have to wait five years from the day one finishes the probation before one can file for non-disclosure.

  38. A dilemma experienced, in kind if not in magnitude, by every parent. A parent can adjust the situation to place the offender into a position that fosters community with the offended. A parent can simultaneously punish the lie and reward the truth.
    But Justice is not, and should not attempt to become, parenting. (If that statement is problematic for you, please feel free to stop reading this. Nothing more I can say will be of value to you.) Justice is the compensation for harm.
    Clearly there is harm. Therefor some compensation, for administrative costs, would seem the least price to be paid. I can not think of a circumstance where it should not be paid. It is quantifiable.
    Deferred Adjudication is an excellent idea here. Because it is not clear what additional harms may later surface, triggering additional measures. The offender may take action to either mitigate or enhance additional harms. Not so easily quantifiable, but worthy of consideration, I think.
    Should the offender be unable to pay administrative compensation, community service could be tailored appropriate to the offense. Most appropriate in this particular case perhaps.
    Minimum incarceration should have no place here, in my view. As the spectrum of additional harm extends from violence to imperceptible.

    An additional consideration here is the concept of punishment based on intent. A problematic idea in law that I can not support. I want to. I just can’t. In parenting yes, maybe. In legal justice, never.

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