United States v. Wiley

OPINION BY: WISDOM

At about 5:00 p.m. on March 17, 1971, Maxine Lewis arrived at 240 W Street, N.W. to meet a friend, Sandra Wiggins, with whom Miss Lewis planned to visit a relative in the hospital. She was invited inside the apartment by Wiley's girl friend, Delores Smith. There, she encountered Eugene Cunningham, a friend of another woman who also lived in the apartment. Miss Lewis testified that Cunningham came and sat next to her. He "started feeling all over me and I try to get away from him, but I couldn't". Miss Smith went to a bedroom in the back of the apartment and returned with Wiley, who looked as though he had been sleeping. Miss Lewis testified that Wiley grabbed her by the legs while Cunningham was choking her. They dragged her into the bedroom, closed the door, put a dresser across it, and threw her on the bed. Cunningham held her in a choking grip and Wiley held her legs and pulled her clothes off. She testified that Cunningham then "had sex with me." Then, "David had sex with me". On closer questioning, Miss Lewis stated that the penis of each man had penetrated her and that each ejaculated. As soon as Wiley and Cunningham freed her, she went to the bathroom to "fix [herself] up", then ran out of the apartment, leaving her coat behind.

[After a discussion about the need for plaintiff's testimony to be corroborated the court concluded that the defendant's conviction must be reversed]


CONCUR BY: BAZELON
The notion that the testimony of a single witness is inadequate to prove a crime is an ancient one. The Code of the Emperor Justinian provided that on any important issue the testimony of one witness was insufficient. Ecclesiastical law refined this approach by requiring, for example, that against the word of a Cardinal, forty-four witnesses were required. But the common law gradually moved toward other modes of inquiry into the truth. Ultimately the common law rejected the requirement of corroboration for all crimes except perjury. Thus there was no common law requirement of corroboration for any sex offense.

Today thirty-five states have similarly rejected the corroboration requirement for rape. Of those jurisdictions that retain the requirement, about half, including the District of Columbia, do so in the absence of legislation. The substance of corroboration requirements varies enormously from state to state, ranging from a requirement of corroboration for force, penetration and identity, to minimal corroboration of any part of the complainant's testimony.

Numerous justifications have been advanced for the requirement of corroboration in sex cases. An examination of these rationales reveals a tangled web of legitimate concerns, out-dated beliefs, and deep-seated prejudices.

The most common basis advanced for the requirement is that false charges of rape are more prevalent than false charges of other crimes. A statement such as this is extremely difficult to prove, and little or no evidence has been adduced to support it. Two reasons are generally given for the belief that unfounded rape charges are common. It is argued, first, that women often have a motive to fabricate rape accusations and second, that women may fantasize rapes.

It is contended that a woman may fabricate a rape accusation because, having consented to intercourse she is ashamed and bitter, or because she is pregnant and feels pressured to create a false explanation, or because she hates the man she accuses or wishes to blackmail him. It is said to be relatively easy to create a false description of rape in convincing detail.

There are, however, countervailing reasons not to report a rape. One said to be a victim of rape may be stigmatized by society, there may be humiliating publicity, and the necessity of facing the insinuations of defense counsel may be a deterrent. Moreover, those claiming to have been raped may be treated harshly by the police and by hospitals. One result of all of these obstacles is that rape is one of the most under-reported of all crimes.

In addition to the problem of false charges, the corroboration requirement is justified on the theory that rape is a charge unusually difficult to defend against. In 1680 Lord Chief Justice Hale wrote, in one of the most oft-quoted passages in our jurisprudence, that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." The same theme has been echoed by modern commentators and courts. The usual absence of eye-witnesses damages the defendant as well as the complainant. Juries are said to be unusually sympathetic to a woman wronged, thus weakening the presumption of innocence.

Again, there is little hard evidence with which to test this theory. What studies are available suggest that a defendant is unlikely to be convicted of rape on the uncorroborated testimony of the complainant in those jurisdictions that do not require corroboration. Thus juries may be more skeptical of rape accusations than is often supposed.

Still another basis for the corroboration requirement lies in "the sorry history of racism in America." There has been an enormous danger of injustice when a black man accused of raping a white woman is tried before a white jury. Of the 455 men executed for rape since 1930, 405 (89 percent) were black. In the vast majority of these cases the complainant was white.

All of the safeguards that developed in this context should not be automatically applied today. Juries are more integrated than in the past and racial prejudice may be at a somewhat lower level. Numerous rape victims are black and their interests, as well as those of white women, may have been slighted by the concern for black defendants.

A final theory of the corroboration requirement is that it stems from discrimination against women. It is said that traditional sex stereotypes have resulted in rape laws that protect men rather than women. Penalties are high because a "good" woman is a valued possession of a man. Corroboration is required because to a "good" woman rape is "a fate worse than death" and she should fight to the death to resist it. If no such fight is put up, the woman must have consented or at least enticed the rapist, who is therefore blameless. In sum it is said to be the "male desire to 'protect' his 'possession' which results in laws designed to protect the male -- both the 'owner' and the assailant -- rather than protecting the physical well-being and freedom of movement of women."

This point of view, which has been expressed by men as well as women, may well have some validity. It would be surprising if entrenched notions of sexuality did not play a role in the law of crimes dealing with sexual violations. Corroboration rules may be structured, for example, to protect male rather than female defendants. This could explain the fact that conviction for soliciting for homosexual purposes requires corroboration while soliciting for heterosexual prostitution does not.

Analyzing all of these justifications in order to separate the valid from the invalid is no easy task. As I have said in another context, we are in that terrible period known as "meanwhile." We know enough to be troubled but not enough to know how to resolve our troubles. As evidence, mores, and attitudes change we too must remain open to change. Next year or twenty years from now available information may require at different approach. But at least for the immediate present, I find that the flexible corroboration rule developed by this Court provides the best accommodation of numerous conflicting considerations. There may still be the possibility of special fabrication problems relating to rape, particularly where, as in this case, the complainant is young. There are still severe penalties for rape. There is still racism in our society and that racism may be particularly likely to surface in a case involving alleged sexual violations.

To guard against these possible dangers we retain a corroboration rule which provides that "independent corroborative evidence will be regarded as sufficient when it would permit the jury to conclude beyond a reasonable doubt that the victim's account of the crime was not a fabrication." We adhere to no absolute tests or concrete guidelines. We only require evidence of the crime of probative value outside of the complainant's testimony. In cases such as this one where that evidence is lacking the dangers to the defendant outweigh the difficulties created for the prosecution.

The net effect of our current approach does not appear to make convictions for rape unusually difficult in this jurisdiction. Available statistics indicate that the conviction rate for rape in the District of Columbia is actually higher than it is for the United States as a whole, and most states do not require corroboration.

Thus I concur in the court's opinion reversing defendant's conviction.