Rape Conviction Overturned When Supposed Victim Recanted — What About the Civil Damages Award?

The Los Angeles Times reports:

A Los Angeles County Superior Court judge has reversed the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.

Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.

Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.

Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that [led to his spending 5 years in prison].

Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.

Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.

The AP account adds a twist:

According to documents in the case, she met with Banks and said she had lied; there had been was no kidnap and no rape and she offered to help him clear his record.

But she subsequently refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

She was quoted as telling Banks: “I will go through with helping you but it’s like at the same time all that money they gave us, I mean gave me, I don’t want to have to pay it back.”

It’s not clear whether she ultimately did repeat the story to prosecutors, or whether the prosecutors got her admission some other way. In any event, 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. (Thanks to Robert Dittmer for the pointer.)

This, by the way, raises again a difficult problem with he-said-she-said rape cases, where civil liability is available. 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.

Yet when the complainant can get millions of dollars in damages, either from a rich defendant on an intentional tort theory, or from some other entity — such as an employer or a school district — that could be held liable on a negligence theory, the complainant now has lots of reason to lie. Of course, this by no means that such a complainant will be lying, just as the defendant’s incentive to lie doesn’t mean that all defendants who testify that they’re innocent are lying. But it does, I think, make the defense’s case stronger and the prosecution’s case weaker.

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 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 or pervasive recordi

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