(DISCLAIMER: The Author is not a lawyer and the following information
is not given as legal ADVICE, but to give readers ideas of possible
legal avenues to research and pursue to redress their own grievances.
The author assumes no responsibility for the results of the strategies
herein…and is in fact ashamed he’s the only one who’s
thought of them…K.K.)
It’s October 25, 2008. In the preceding days, the Nevada Review-Journal
published a human interest story entitled “A Mother’s Struggle”.
The story documented a local divorcee’s attempts to gain custody
of her daughter, as she was convinced that her ex-husband was sexually
abusing the child.1
To her credit, the writer did list the facts in the case: that the
divorcee had left the marriage while pregnant, and initiated the divorce;
that her husband had passed a polygraph test; that she herself failed
a polygraph test; that her husband had been investigated three times
by the police, twice by court-ordered psychologists, and once by a private
investigator—none of whom could discover any evidence of sexual
abuse by the husband. The divorcee had also denied the husband’s
court-ordered visitation rights and served 48 hours in jail for contempt
of court. With only arguments, allegations and accusations, the divorcee
continued to petition the courts. Finally her ex-husband gave up his
paternal rights altogether by leaving the United States for his country
of origin. The divorcee now has sole custody of her daughter, lives
in her parent’s house, and is seemingly content. The writer implies
that justice, although delayed, has apparently been served.
Still, the article remains titled “A Mother’s Struggle”.
While every actual fact exonerates the ex-husband, the specter of sexual
abuse looms large in any reader’s mind, defeating the notion that
the article could just as easily been entitled “A Father’s
Struggle”.
Bear in mind, this is just one article.
Some months earlier, in the Osceola County Corrections Facility, a
man in an orange jumpsuit confided to me that his wife had come home
drunk at four in the morning. He said “Enough of this”,
and immediately began packing his children’s clothes to take them
to his parent’s house. His wife’s mother, who was on the
premises, called the police and reported that he was hitting his wife.
The police came and summarily arrested him.
Since the passage of the Violence Against Women Act (VAWA) in the United
States, a majority of states have created Mandatory Arrest Laws dealing
with domestic disputes.
These laws oblige the investigating officers to make an arrest, and
in the overwhelming majority of cases it is the man who is arrested.
Beyond domestic disputes, we have seen that in allegations of rape,
the alleged rapist’s name quickly becomes a matter of public record,
whereas Rape Shield laws guarantee anonymity to the accuser. Incredibly,
the assistant Dean of student life at Vassar College has said that “Men
who have been falsely accused of rape can benefit from the experience”.
Meanwhile, investigations of rape cases within the United States Air
Force revealed that 55% of rape charges were falsified. Reasons that
were given for making the false rape charges ranged from covering up
a pregnancy, to testing a husband’s love, to a reason for being
late to work.
The Innocence Project, which uses DNA testing to free the wrongly
imprisoned, has given 205 unjustly accused convicts their lives and
freedom back. 204 of them were men.
If there is indeed still a ‘battle of the sexes’, then
false accusations are its secret weapons. They pierce Constitutional
Rights and freedoms, mangle due process, and shatter reputations, relationships
and families. No witnesses are required, nor is physical evidence of
a crime. As previously demonstrated, a mere phone call is enough to
serve as ‘probable cause’ for search, seizure and arrest.
The effectiveness of the false accusation lays in the perception of
the heinousness of the accused crime: assault, battery, rape and/or
sexual molestation of women and children almost universally brings emotion
to tread roughshod over logic. (The reader comments of the Nevada Review-Journal
story all vilified the accused father.)
While both sexes are able to use false accusations, victims in the
overwhelming majority of cases are male. Men have even been victims
of domestic abuse by their female partners, and have either been denied
police protection or arrested themselves. It therefore behooves men
to imagine worst-case scenarios, research legal precedents, and know
their rights—while they last.
Not enough men are standing up for themselves. Far too many are shocked
and cowed by false allegations, and the legal system is far too willing
to take a woman’s word over a man’s (the prevailing logic
being that the man is ‘bigger’ and therefore capable of
more damage, even though he may have never harmed a fly). Truly law-abiding
men remain ignorant of the legal process, thinking “It can’t
happen to me”. When it does, policemen and court officials are
more interested in telling a man what he can’t or shouldn’t
do than what he can or should.
BEFORE A FALSE ACCUSATION:
Perhaps the best defense against false accusations would not to be
giving anyone a reason to make one against you. In a just and perfect
world, that would suffice. The phrase ‘Love Is Blind’ has
a good deal of truth in it; when you’re in love, you may very
well be blind to behaviors that could prove harmful to you in the future.
At Vassar College, a male student may have consensual sex with a female
student—that night—and the next day, she can say she ‘felt
bad about it, in retrospect’, and the male student can be charged
with rape.
John Dias, creator of the website www.Don’tMakeHerMad.com,
suggests using surveillance as proof of one’s innocence. There
is a valid danger of legal ‘collateral damage’—surveillance
of another person without their knowledge may constitute a crime in
itself, but when used solely as a means of legal defense, it should
be less prosecutable. There are hidden closed-circuit cameras and recording
devices that can be placed throughout one’s home, or worn on one’s
person (in the form of pens, watches, lapel pins and more).
BEFORE ALLOWING A WOMAN TO ENTER YOUR HOME…actually before allowing
anyone to enter your home…hopefully you can answer one or more
of these questions:
BEFORE MOVING IN WITH A WOMAN:
Even if a woman has a place that puts the Taj Mahal to shame, and
invites you to move in with her, remember that you are moving in with
her. She can tell you to leave whenever she wants, so it is in your
best interests to prove that you live there. When you contribute to
the rent, ensure it is in the form of a check, and request your bank
to furnish you with receipts. Signing a lease makes you legally liable
for all rent payments through out the rental contract. You may wish
to offer to ‘cover all utilities’ (And/or groceries) instead,
which can provide proof of residence without making you liable for the
rent.
Realize that once a woman has moved in with you, and made some contribution
to the household…anything from rent payments to utilities or groceries,
she may be able to legally claim “I live here”. As such,
you may encounter difficulty having her legally removed from your domicile.
You should also ask her if she has any serious allergies, debilitating
health issues, and how to contact her closest next of kin.
DURING A FALSE ACCUSATION:
Some women will often use the threat of a false accusation to achieve
some desired goal…anything from changing your behavior to having
you removed from your house.
Note that if she does threaten you in this manner: “I’ll
tell the police you did such and such…” you will probably
want to take steps to sever all ties with her. It may have been a heat-of-the-moment
threat, but she can’t ‘un-make’ it, and will probably
realize that option will always remain open to her. Calmly reply to
her threat with “If you do that, you leave me no choice but to
charge you with Wanton Endangerment2,
making a false police report, and sue you for defamation of character.”
If your woman fights with you verbally, that can be grounds for Nuisance,
especially if she’s loud enough to be overheard by neighbors.
If she’s verbally goading or provoking you towards violence, tape
it if possible, but walk away as soon as possible. Verbal provocation
to fight—in conjunction with ‘fighting words’, insults
with no redeeming Free Speech defense—is a form of disorderly
conduct known as a fighting ruckus.
As unpalatable as it may be, imagine yourself accused of misdemeanor
domestic battery, and the police have been summoned. The phone call
alerting them serves as probable cause to enter any establishment. Note
that in many areas, interference with such a phone call…disabling
the phone, for instance…can constitute a felony in itself.
If the woman in the situation has in fact not been harmed, try to
get a photograph of her (many cellular phones are equipped with cameras
ideal for this situation). You may wish to hold up the day’s newspaper
within part of the photo to prove the date, unless the camera ‘time-stamps’
its images.
See if any neighbors are nearby and within earshot. If so, you may
wish to open the door and tell her she can leave, in a voice loud enough
to be heard. Not that she must leave, but she can leave. If she does
leave, you can make a good case for refusing to let the police enter
your home without a warrant. However, if she does live at the place
in question, she can give police her consent to enter or search the
premises. The police can and probably will still try to gain entrance
to your home to make an arrest, but you have a much better case for
Unreasonable Search and Seizure.
If she refuses to leave, it may be in your best interest to leave the
area, even if it’s your own domicile, before the police arrive.
Take whatever you can with you; your wallet, house and car keys at the
very least. Before leaving, inform your accuser that telling a police
officer that you abused her when you didn’t warrants a criminal
charge of making a false police report and will be grounds for a separate
lawsuit of Slander. If she or the officers in question make a written
statement accusing you of battery, there will be an additional lawsuit
for Libel. This warning in itself may be enough to convince her to withdraw
the accusation, but if the police are en route they will probably follow
through with an investigation anyway.
Leaving the area, especially if it’s your own domicile, may
be a nuisance, but it can give you time to take steps you would not
be able to take if you were arrested: contacting employers, loved ones,
attorneys, setting up alternate phone service or a post office box,
transferring or securing bank accounts, getting a credit line increase,
et cetera. If the police have an arrest warrant for you, the warrant
must be “fresh”, or between three and ten days old. Misdemeanor
warrants normally have to be served during the daytime—between
6 am and 10 pm.
It’s probably better not to call your home from a land line,
as police technology can often triangulate your physical location from
them. If you do call, assume the police are listening.
If the police do arrive before you can leave, be on your best behavior,
although it normally goes without saying. Police need a warrant to arrest
you at your home, but they do not need a warrant if they believe A)
you have committed or are about to commit a crime, B) other people are
about to get hurt, C) you’re about to destroy evidence or property,
or D) there’s already a warrant out for your arrest. This obviously
gives the police a lot of leeway.
Once the police begin asking questions, it is in fact an interrogation.
Keep your voice audible, but calm and low. Memorize the time, the location,
and the names and badge numbers of the officers. Police are looking
for any evidence that a crime is committed, so even sarcasm will work
against you (“Oh yeah, just look at her, I beat her to a pulp,
that’s why she doesn’t have a hair out of place.”).
There is a possibility that, by communicating calmly and reasonably
with the officers, you can convince them that the dispute is not or
should not be treated as a domestic situation. This possibility is unfortunately
slight. Flattery and bribery generally don’t work and should not
be attempted. Apologies, however, have been known to work. “I’m
sorry you were put to all this trouble, I know you’re just doing
your jobs, but I really would rather not answer any questions without
a lawyer present.”
Police will use a variety of techniques to gather evidence for a case.
They can lie, and say they have evidence they actually don’t.
One policeman may seem to be ‘gunning’ for your arrest,
while their partner may seem friendly and say “we just want to
hear your side of it”. A policeman may say “This happens
all the time, and the judge will go easier on you if you confess.”
(However, the policeman is most definitely not the judge.) They may
threaten you with obstruction of justice if you don’t confess,
but only the DA can charge you.
If you are arrested—and police do not have to use the term ‘arrest’—do
not panic or resist arrest. You can ask the officer if he can simply
issue you a citation. Regardless, remain as polite as possible; say
only “I’m remaining silent, I want a lawyer.”
If you are in custody, and interrogated by police or different law
enforcement official, and have been not been informed of your Miranda
Rights (Right to remain silent), the police have acted improperly and
your case can be thrown out. This only applies if the police take you
into custody (a situation you feel not free to leave) and interrogate
you, not either/or.
You should consider the idea of Malicious Arrest, where police know
you are innocent and arrest you anyway. This may be difficult to prove,
but if you have evidence of her false accusation (on audio or video),
whereas she has no evidence to back up her accusation, it could have
the foundations for a case. Consult your attorney.
Note that you are not legally entitled to ‘one phone call’.
You are entitled to speak with a lawyer, and if you need a phone to
contact one, you’ll be provided with access to a phone. If you
don’t have a lawyer or know a lawyer’s phone number, call
a friend or family member and ask them to contact a lawyer for you.
Never assume that your phone call is private!
Some states will have an officer of the court called a pretrial officer
that can enable you to pay a bond fee and be released on your own recognizance.
If you can qualify for the bond and afford it, you’ll agree to
appear in court, then be released.
While you are being processed, the police assisting your significant
other will strongly suggest that she get an Injunction, or Temporary
Restraining Order against you. The TRO can be processed immediately,
and you will be notified in jail that a TRO has been issued against
you. It succinctly states that you are not allowed to come within a
certain distance—anywhere from 500 yards or more—of your
significant other’s place of residence (even if it’s yours
as well) or her workplace. Most TROs will also have a ‘no contact’
clause which considers any attempt at communication-phone calls, letters,
e-mails, etc., a violation of the TRO. Communications through another
person are considered ‘contact through a third party’ and
may also represent a violation.
Defense lawyers in your area routinely check daily arrest records,
and will offer their services via mailings as soon as your name appears.
Ironically, the TRO may in most cases prevent you from receiving your
mail.
This in itself may provide a grievance in your favor: in the case
of a live-in girlfriend—not a wife—if you are restrained
from accessing your own mail, and if she takes your mail from the mailbox,
even just to save it for you, that may legally constitute Theft Of Mail,
a Federal offense. Also, if a restraining order bans you from collecting
your mail, you clearly cannot be ‘served’ court papers through
the mail.
You will be given a hearing before a judge, hopefully within 48 hours.
A public defender told this writer “The less you say to the judge,
the better”. The judges in initial hearings may not even address
you, but only hear statements from the attorney and prosecutor (sometimes
over a closed-circuit TV system). The judge will set a bond (bail) amount
and any other conditions for release. If you have a credit card among
your personal effects, you can use it to bond yourself out if you have
enough to cover the bond. In cases where you can’t afford the
entire bond, you may call a bail bondsman who will cover 90% of the
bond if you can pay 10% of it.
If you have been served with a TRO while in custody, do not attempt
to return home on your own. If so, you can be charged with violation
of the TRO and arrested all over again. With a police escort, you should
be able to return home to get certain necessities. The TRO is temporary;
generally lasting two weeks or until a court hearing to determine if
the TRO should be permanent.
Note that some women have been known to use TROs ‘offensively’…that
is, they will shop at stores they know you also shop at, in the interest
of reporting that you violated the TRO. If you see this occurring, immediately
leave the area. Contact the venue’s management and ask if they
have their premises under video surveillance (a great many businesses
do). You may need to subpoena their tapes later. You should also consider
filing a Stalking charge or Criminal Mischief charge.
Also, an Injunction or TRO does not give her the right to change the
locks on your home (generally both the permission of all lease-holders
is necessary to change the locks), nor can she destroy or dispose of
any of your property. Wrongfully interfering with another’s personal
property is one definition of Criminal Trespass.
As for lawyers, it is better to have one than not have one, although
you can use a public defender, or represent yourself. If you do choose
to represent yourself, you owe it to yourself to do as much research
as you can beforehand. Judges will not accept ignorance of the law as
an excuse.
Once you have been released, it may be extremely tempting to leave
the state, or even the country. The father in the Review-Journal case
ultimately did leave the country. While you may remain technically ‘free’
by doing so—perhaps indefinitely—refusal to appear in court
will result in a bench warrant against you, and a simple traffic stop
thousands of miles away would result in your arrest. Leaving the area
also smacks of guilt. It’s probably better to remain in the area,
with friends or family, until your court date(s) are finalized.
You will probably be better served by preparing and researching your
own case, as well as filing whatever civil suits you can.
AFTER A FALSE ALLEGATION
If you retain counsel—even a public defender—you should
work closely with him or her to present the best defense you can. Give
your attorney all the facts you can: date and time of the arrest, any
witnesses, the approach and behavior of the police, your work history,
anything you can think of. Don’t hold anything back from your
attorney. If the allegation is flagrantly false, add your willingness
to take a polygraph test and ask if your accuser could be given one
as well.
Some very harried or underconfident public defenders may suggest that
you plea bargain. The ‘deal’ may be tempting, but you should
not ever plead guilty to something you didn’t do.
As mentioned previously, some criminal charges may apply to your accuser:
Wanton Endangerment, Assault, Criminal Mischief, Disorderly Conduct,
Making a False Police Report. These charges may seem ‘retaliatory’,
but turnabout is fair play, and criminal charges should let your accuser
know that A) there are consequences for her actions, B) you’re
fighting mad, and C) you’re fighting mad within the boundaries
of the law.
It’s best if you’re able to provide evidence, of course.
You may be able to use a photocopy of your own arrest record. If the
police demand that you provide evidence or witnesses, politely ask them
why, since they did not require evidence or witnesses to arrest you.
If the Watch Commander tells you to forget it, note his name and badge
number and politely ask when the next Watch Commander comes on duty.
You can bring a civil suit for Defamation of Character (Libel or Slander)
in small claims court without a lawyer, but the maximum amount you would
be able to sue for would be $5,000.00. Beyond small claims court, civil
trails become very lengthy and expensive.
Libel should be proven through the police report itself. It is—or
should be—an unproven accusation of a criminal offense. You should
sue for the amount of your release bond, court costs, attorney’s
fees, any time lost from work and any expenses incurred from being restricted
from your residence (hotels, meals, etc.). If this amount totals more
than a small claims court can award, consider filing a claim in a higher
court. You should also ask for your record to be expunged.
You will need to subpoena the responding and arresting officer(s)
as witnesses -- since the allegation was fabricated, they will actually
be ‘anti-witnesses’—to all the events they were told
occurred but did not actually see. If you are representing yourself,
here are some sample questions you might consider asking. Only ask questions
that you are certain will be answered to your satisfaction!
