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4.2.12
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all men should be presumed of being guilty of this crime. This led one of my colleagues to quip that “some feminists regard rape as so heinous a crime that even innocence should not be recognized as a defense.”

Mostly the changes in the laws governing rape prosecutions were for the better: Many more guilty rapists were successfully prosecuted and the number of rapes went down perceptibly.79 But these radical changes were not cost free: more innocent defendants, or those against whom the evidence was doubtful, were also convicted. When it comes to changing the rules of governing prosecution of serious crimes, there is no free lunch. Virtually every change that makes it easier to convict the guilty also makes it somewhat more likely that some innocents will be convicted as well. The difficult question is whether, as to any particular crime or rule, the trade off is worth it.

I have experienced and participated in the changing approaches to the prosecution and defense of rape cases. At the beginning of my career, when the rules were heavily skewed against women, I was reluctant to defend accused rapists because I didn’t want to cross examine alleged victims about their sexual history. I regarded it as an unfair tactic designed not to probe their credibility as witnesses, but rather to discourage rape victims from bringing charges. Were I to have defended an accused rapist in those days, I would have no choice other than to use every legally permissible tactic. As the rules changed, I began to defend accused rapists—and to teach and write about rape—in order to help assure that an appropriate balance was maintained in the inevitable trade-off between the rights of the alleged victim and those of the accused defendant.

A revealing example of how this trade off works in practice is provided by the controversial rape prosecution of Mike Tyson, in which I served as his appellate lawyer. Tyson was convicted of raping Desiree Washington, a young woman who he met when she was a contestant in the Miss Black America pageant in Indianapolis, and he was an invited celebrity. He called her at 1:45 in the morning and invited her to his hotel room, where they engaged in sexual intercourse. She subsequently claimed that he had forced her. He said it was entirely consensual. The jury believed her and convicted him. Following his conviction, Don King asked if I would represent the former heavyweight champ on his appeal.

79 The dramatic reduction in rapes coincided with an equally dramatic increase in the easy availability of pornography, thus disproving the causation claim made by some radical feminists: that pornography causes rape.

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