A False Report

by T. Christian Miller

Hale, known for his piety, integrity, and sober judgment, wrote a massive, two-volume criminal law treatise, The History of the Pleas of the Crown. He called rape “a most detestable crime,” then added words quoted many times hence: “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

  Hale evoked the fear of the false accuser—which has roots even in the Bible, where Potiphar’s wife, rejected by Joseph, accuses him of rape—and made for that fear a legal frame. He described two cases of men he believed to have been wrongly accused, one by a fourteen-year-old girl with designs of blackmail. Jurors, Hale wrote, should consider: Is the woman claiming rape of “good fame”—or “evil fame”? Did she cry out? Try to flee? Make immediate complaint afterward? Does she stand supported by others? Judges and jurors must be vigilant, Hale wrote, lest the crime’s heinousness fuel them “with so much indignation, that they are over-hastily carried on to the conviction of the person accused thereof by the confident testimony, sometimes of malicious and false witnesses.”

  The English judge was full of advice, even beyond the law. He wrote a letter to his young grandchildren, 182 pages long, prescribing counsel for each. For Mary: “If she cannot govern the greatness of her spirit, it will make her proud, imperious, and revengeful…” For Frances: “If she be kept in some awe, especially in relation to lying and deceiving, she will make a good woman and a good housewife.” As for Ann, he perceived a “soft nature,” and therefore forbade plays, ballads, or melancholy books, “for they will make too deep an impression upon her mind.”

  Hale, in his letter, shudders at the world around: “The whole constitution of the people of this kingdom is corrupted into debauchery, drunkenness, gluttony, whoring, gaming, profuseness, and the most foolish, sottish prodigality imaginable…” He especially despises what has become of young women: They “learn to be bold” and “talk loud.” They “make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest fashions. If they rise in the morning before ten of the clock, the morning is spent between the comb, and the glass, and the box of patches; though they know not how to make provision for it themselves, they must have choice diet provided for them…” His complaint continues, with one sentence lasting 160 words. Hale was married twice. There was gossip his first wife cheated; he was mocked as a “great cuckold.” He refers to English gentlewomen as “the ruin of families.”

  “There is…evidence that Sir Matthew Hale might have been somewhat below the norm for the times in terms of his views of women,” Gilbert Geis and Ivan Bunn write in their book, A Trial of Witches. The book details an event that blotted Hale’s legacy, “be it only so slightly.” In 1662, at Bury St. Edmunds, Hale presided at the trial of two elderly women accused of witchcraft. He instructed the jury that witches were real, saying Scripture had affirmed as much. Upon the jury’s verdict of guilty, Hale sentenced Amy Denny and Rose Cullender to hang. (He had condemned another convicted witch four years before.) Thirty years later, Hale’s handling of this trial, preserved in written record, served as a model in Massachusetts. “Indeed, the Salem witch-hunts might not have taken place if there had not been a trial at Bury St. Edmunds: the events at Salem notoriously imitated those at Bury,” Geis and Bunn write.

  Hale’s influence upon witchcraft trials would expire as belief in witches waned. But his influence on rape cases would endure. As long as three hundred years after Hale’s death in 1676, many a jury in the United States would be cautioned with his words. Courts called it the “Hale Warning”: an instruction to jurors in rape trials to be wary of the false accusation, hard to be defended and easily made.

  —

  On December 16, 1786, Thomas Jefferson, while away in Paris, penned a letter to James Madison. He complained of a dislocated right wrist—“the swelling does not abate”—permitting him to write only with “great pain.” He wrote of setting out soon for the South of France, in hopes the mineral waters there would heal. He wrote of commerce—fish, flour, turpentine, tobacco—between the United States and France. Then, almost in passing, he wrote of his opposition toward harsh punishment for rape, “on account of the temptation women would be under to make it the instrument of vengeance against an inconstant lover, and of disappointment to a rival.”

  The man who had authored the Declaration of Independence was writing to the man who would author the Bill of Rights—to warn of the woman scorned, crying rape.

  Seven years later, a criminal prosecution in New York City captured how the early American legal system used Lord Hale’s criteria to undermine a woman’s credibility. Henry Bedlow stood trial in 1793, accused of raping Lanah Sawyer. Bedlow was an aristocrat, described in annals as a “libertine” and “rake.” Sawyer was a seventeen-year-old seamstress, daughter of a seaman. The two met when Sawyer, taking a summer stroll, was harassed on the street and Bedlow interceded. He gave a false name, telling Sawyer he was a lawyer named Smith. She agreed to accompany him days later on a nighttime walk. On that night, Bedlow pulled her into a brothel and raped her, she said. He said he seduced her.

  At trial, five defense lawyers spoke on Bedlow’s behalf. One warned the twelve men of the jury that this case put “the life of a citizen in the hands of a woman, to be disposed of almost at her will and pleasure.” Another said: “Any woman [who] is not an abandoned prostitute will appear to be averse to what she inwardly desires.” A third asked how a “sewing girl” could imagine a lawyer paying her any attention “unless with a view of promoting illicit commerce.” She walked with him late into the night. “Is it probable that a girl who had thus abandoned the outworks of her chastity, and left every pass to it unguarded, would be long in surrendering the citadel?”

  The defense attorney who spoke the longest was Henry Brockholst Livingston, who would later be named to the US Supreme Court. (He was appointed by Thomas Jefferson.) Addressing the jury, Livingston quoted Hale—“an accusation easy to be made”—and applied Hale’s prescribed inquiry to Lanah Sawyer. Was she of good fame? Although “a cloud of witnesses” said she was, “she may have had the art to carry a fair outside, while all was foul within,” Livingston told the jury. She said she screamed. But did she also stamp her feet? And why, upon agreeing to stop for ice cream, did she draw the night out? “Instead of taking a single glass of ice cream, and returning, as would a girl jealous of her reputation, she stays with him here a full hour and [a] half.” Livingston argued that Sawyer made up the story of being raped upon finding that Bedlow had no further occasion for her. “You all know how strong the passion of revenge exists in a female breast; a deserted woman sets no bounds to her anger.”

  The trial lasted fifteen hours. The jury deliberated fifteen minutes. The verdict was “not guilty.”

  —

  The twentieth century’s leading expert in the field of evidence was John Henry Wigmore. A mustachioed scholar, accomplished in twelve languages, he helped found the Harvard Law Review and served as dean of Northwestern University’s law school for twenty-eight years. Law professors and students call his masterwork Wigmore on Evidence, which is easier to say than A Treatise on the Anglo-American System of Evidence in Trials at Common Law: Including the Statutes and Judicial Decisions of All Jurisdictions of the United States and Canada. A University of Chicago law professor called Wigmore’s tome “perhaps the greatest modern legal treatise,” saying its analysis forms “the very structure of the law of evidence today.”

  Wigmore also read up on psychiatry and psychology, becoming “the best legal friend that psychology had.” In cases where women alleged rape, he urged psychiatry’s merger with the law. In his treatise’s third edition—what became his final, authoritative version, published in 1940—Wigmore expanded on some language he had written in the 1930s on women and credibility. He took the notion expressed by Henry Brockholst Livingston a century and a half before—fair outside, while all was foul within—and added
Sigmund Freud.

  Modern psychiatrists have amply studied the behavior of errant young girls and women coming before the courts in all sorts of cases. Their psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions. One form taken by these complexes is that of contriving false charges of sexual offenses by men. The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man…

  To summarize: She imagined it.

  “No doubt,” Wigmore wrote, every judge and prosecutor had seen cases of this.

  Henceforth, he wrote: “No judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.”

  Wigmore died in 1943. Forty years later, Leigh Bienen—then a public defender, later a faculty member at Wigmore’s Northwestern University—examined the scientific source materials upon which Wigmore built his argument and found them wanting. But despite Wigmore’s dubious research and “repressive and misogynist position,” his views remained influential with lawyers and judges. “If there is a single source of the law’s concern with false reports in sex offense cases, it is the Wigmore doctrine,” Bienen wrote.

  For women alleging rape, the doctrine’s core premise—“she imagined it”—was simply another variation of “she wanted it,” a presumption long voiced in courts and legal literature. “Although the woman never said ‘yes,’ nay, more, although she constantly said ‘no,’ and kept up a decent show of resistance to the last, it may still be that she more than half consented to the ravishment,” Greene Carrier Bronson, a New York Supreme Court justice, wrote in 1842. In 1952, a Yale Law Journal article said that “many women” require “aggressive overtures by the man. Often their erotic pleasure may be enhanced by, or even depend upon, an accompanying physical struggle.”

  In the 1970s and ’80s, the feminist movement generated powerful pushback, helping reform rape laws around the country. While Marty Goddard and Susan Irion helped institute rape kits and trauma training, legislatures adopted rape-shield statutes—restricting evidence about a rape accuser’s sexual history—as courts abandoned jury instructions that used the language of Sir Matthew Hale.

  As some legal commentators have noted, the repudiation of Hale was about three centuries late. His words aren’t true now: When most rapes go unreported, the accusation cannot be considered “easy to be made.” But his words weren’t true then, either. The era offered plenty of examples of women made to suffer for coming forward. In 1670, two indentured servants in Virginia accused their master of rape; for this, they were punished with extra years of servitude. In the early 1700s, in trials seven years apart, two women in Maine reported being raped. One received an admonition for public rudeness, the other fifteen strips for lewdness.

  And though Hale may have faded, his legacy yet lurks. In 2007—one year before Marie reported being raped—a state legislator in Maryland, a criminal defense attorney who chaired the House Judiciary Committee, invoked Hale’s warning during a hearing on whether to deny parental rights to rapists whose victims conceive. The lawmaker, Joseph Vallario Jr., said he quoted Hale as a history lesson. But his words caused “outrage,” according to a headline in the Washington Post. A Maryland anti-rape advocacy group criticized Vallario for citing “archaic and misogynistic doctrine.” The law didn’t pass. Ten years later, when state delegate Kathleen Dumais tried for the ninth time to push the measure through, an all-male panel drawn from both houses of the legislature let the bill die, leaving Maryland as one of sixteen states that does not allow a rape victim to terminate the parental rights of her attacker.

  —

  One morning in July, Weiner got a phone call from O’Leary’s public defender, Jeffry Dougan, a young trial lawyer with three years’ experience. Dougan brought a message from O’Leary.

  “My guy wants to plead guilty. He wants to get it over with. He doesn’t want to put the victims through this,” Weiner recalled Dougan saying. Dougan had advised O’Leary against taking a plea, but O’Leary was insistent. There was only one condition. Weiner had to drop all of the charges pertaining to kidnapping.

  O’Leary’s request surprised Weiner. But he figured he knew the reason for it. And it wasn’t a sudden change of heart.

  Weiner knew that O’Leary was nervous. In a recorded jail phone call, O’Leary had told his mother that he thought the detectives were going to find stuff on his computer. He just wasn’t sure how much.

  He found out when Weiner had turned over discovery to O’Leary’s public defender. Contrary to the gotcha moments in courtroom dramas, the justice system frowns on surprises. To allow for investigation before trial, each side must show the other certain evidence it is prepared to present. Weiner had recently provided Dougan with the photos Evans had recovered, alerting O’Leary for the first time that police had managed to salvage images of him—or at least a person with his exact body marks—raping women. Images that he thought were safely locked behind layers of unbreakable computer encryption.

  Now, he was exposed.

  Still, Weiner didn’t understand what O’Leary would get out of the deal. Even if Weiner dropped the kidnapping charges, O’Leary would still face life in prison. There would be no reduction in his sentence. So what was the point? Why not fight it out, no matter how overwhelming the evidence—what, after all, did you have to lose? “It was unusual,” Weiner says. “But it was an unusual case as well.” Weiner figured it was something psychologically important. Maybe O’Leary could accept being a rapist. But not a kidnapper.

  Whatever the reason, Weiner figured he might have some leverage. Like Evans, Weiner had become obsessed with the Wretch, the encrypted file from O’Leary’s computer. Weiner wasn’t tech savvy—he called the computer file a “container.” But he knew that anybody who’d gone to that much trouble to conceal its contents had something worth hiding. He wasn’t sure just what. Could there be other women, other rapes? Or evidence of some kind of secret club of men who raped women and swapped pictures? Was there child pornography?

  He needed to know what was inside.

  “I’m thinking it’s pretty bad,” he says.

  Weiner called Dougan back with a counteroffer. He would consider a plea deal—but O’Leary had to turn over the password to the Wretch. Dougan got back to him quickly: unequivocally no. The speed and surety of the response heightened Weiner’s suspicions. It “told me that there was something pretty significant there,” he says. Galbraith shared the news with Hendershot, Burgess, and Hassell in an email on July 7, 2011: “O’Leary WILL NOT give up the encryption code. PERIOD.”

  Though O’Leary wouldn’t give up his secret, Weiner believed he still had the terms of a good deal: Drop the kidnapping charges in return for the guilty plea. Before he signed off, Weiner consulted with the victims, one by one, in his office.

  Each woman had a different reaction. Doris was hesitant to drop any charges. She had no fear of a trial. “She’s really tough, like, ‘I’m not afraid of this guy,’ ” Weiner recalled. Amber was nervous that news of the case might reach her friends and family. Sarah was still emotionally blasted, ready to take the deal. And Lilly was distrustful. She was upset at Hassell—if he had investigated her case more thoroughly, he might have stopped the rapes in Golden and Westminster.

  Weiner described to the women what the process ahead would entail if the case proceeded to trial. The public testimony. The tough cross-examination. The possibility that O’Leary might try to influence their mental states through words or gestures at trial. “Sex offenders are the biggest manipulators of human beings that there are,” he warned.


  At times, the law could seem not to care much for victims. In the strictest legal sense, these crimes had been committed against the state, not the four women. Weiner would give great consideration to their concerns, but he was under no obligation to follow their desires—his client was the public. And O’Leary was innocent until proven guilty. The judge and the attorneys would give deference to his right to a fair trial. “Oftentimes, you will be frustrated because it appears that the focus is not on you, but it’s on the offender,” Weiner told the four women. “Rest assured, it’s not lost on us.”

  Eventually, each of the women agreed: take the plea. Weiner thought it for the best. It would spare them the indignities of trial. And O’Leary would still face a long time in prison—his ultimate sentence to be determined by a judge.

  Before Weiner signed off on the deal, he asked once more. Would O’Leary give him the password?

  Once more, the answer came back: no.

  —

  O’Leary’s sentencing was held on a freezing day in early December at the towering, curvilinear Jefferson County district courthouse. You could see its sparkling glass dome from the apartment complex where O’Leary had raped Amber almost a year earlier. It was easy to imagine that O’Leary had glanced at it, looming against snow-covered Rockies, during the hundreds of hours he stalked the graduate student.

  The small gray-and-brown courtroom brimmed with people. Galbraith, Hendershot, Burgess, and Grusing were there. So were Ellis and Shimamoto. Lilly and Doris sat on one side. O’Leary’s mother, stepfather, and sister sat on the other. O’Leary sat up front, at a long, shiny table directly in front of the judge. He had close-cropped hair, a black shirt, and a thick brown security belt. His long, pale face contorted violently every few minutes—a nervous tic that had the effect of squeezing all his facial features together toward his nose.

  Judge Philip McNulty sat up front. White hair framed his bald pate. In fifteen years on the bench, he had earned a reputation for fairness, compassion, and a preternaturally calm demeanor. He would one day be appointed the district court’s chief judge. McNulty called the court to order. The People of the State of Colorado v. Marc O’Leary had begun.