Legislating for Innocence – the kid who cried wolf and the system that should know the difference

After spending over 5 years in prison and a further 5 on probation, Brian Banks’ rape conviction was dismissed last Thursday. He was 16 years old and had just accepted a full sports scholarship to the University of Southern California when Wanetta Gibson accused him of assaulting her at their high school in Long Beach. While there was no firm physical evidence that nonconsentual sex had happened, and a variety of inconsistencies in Gibson’s testimony, Banks was advised to plead no contest to the charges to avoid risking a possible 41 years to life sentence.

Then, last year, Gibson sent Banks a facebook friend request and asked that they let bygones be bygones, assuring him that she had matured. They agreed to meet, and Gibson was caught on camera admitting that she had never been raped, and that she had fabricated the whole tale.

At the outset it should be noted that the rate of false accusations of rape and sexual assault are generally accepted to be about the same as that for other crimes. Most people aren’t malicious enough to knowingly make any sort of allegation against an innocent other. And women are no more likely to be in that malicious minority than men.

But the legal system is basically there to do two things – deal with people who do bad things, and deal with other people who make stuff up. If it were the case that people only ever truthfully accused other people of committing crimes, then all cases would be much more straighforward. That we have to be wary of the possible ulterior motives of those who make allegations against others is in no way unique to sexual offences. One of the main functions of the justice system is to weed these accusations out. If it fails to do that, then the system is failing fundamentally.

So the question here is not why Gibson lied (though the motives of 15 year old girls clearly demand much closer cultural attention than they currently receive), but rather why Banks was encouraged to make the no contest plea in the first place. There is surely something wrong with the system when someone who knows he’s innocent can be so easily convinced that there is no hope of vindication, and that the best possible option is to be convicted as a rapist, spend years in prison and forfeit such a bright future.

The issue here really seems to be this whole practice of plea bargaining. According to Justin Brooks of the Innocence Project, about 95% of cases are resolved by plea-bargain in the US, and it is especially prevalent in California. Obviously it’s integral to the justice system as it stands, since it vastly reduces the time and resources expended on each individual case. It’s in the state’s interest (narrowly construed) to avoid going to jury trial where possible and minimise prison terms. An LA Times report on the situation back in 1990 described how this predictably leads to the twin problems of, on the one hand, under-prosecuting guilty parties, where more serious charges are dropped in return for guilty or no contest pleas, and, on the other, wrongful prosecution of innocent parties since the interests of defence attorneys lie in simply getting through cases as quickly as possible, as well as maintaining good relations with prosecutors for future deals.

While this state of affairs might be purely borne of budget concerns initially, it surely contributes to the climate of cynicism which had Gibson’s attorney telling her to shut up and say nothing, after Wanetta suggested that “things were getting blown out of proportion” and that she and Banks had in fact been “just playing,” according to the Innocent Project’s review of the case. If this report is accurate then we have a clear illustration of how it is the inherently unjust culture of the ‘justice’ system that is to blame for Banks’ ordeal in the main, rather than a foolish, but perhaps at least momentarily repentant, 15 year-old girl.

In any case, Banks was placed under huge pressure to submit a no contest plea in exchange for a reduced sentence. By his own account he was told that he would be facing just 18 months instead of 41 years. While it might seem inconceivable that an innocent person would take such a dichotomy seriously, the harsher sentence was made to appear inevitable because of his race –  Banks recounts how his lawyer “told me I was a big black teenager and no jury would believe anything I said.” Seemingly he was forced to make this decision at the last minute and without consultation with his parents.

Dan Simon, Professor of Law and Psychology and USC, explained how the psychological pressure placed on a defendant by investigators (sometimes even involving completely fabricated evidence) is intended to overcome the denial of a guilty criminal who has every reason to continue to protest innocence. In this way it should be unsurprising that a truly innocent suspect would equally buckle.

Things are looking up for Banks. This week it was confirmed that he will be trying out for the Seattle Seahawks, and others are lining up to take him on.
While that won’t restore to him the ten years he lost, we can surely look at this case as a prompt for reform in the way justice is carried out in the States. We can’t stop individuals like Gibson from being greedy, confused, or just too dim to understand the consequences of their words. But we can change the way in which those words impact the lives of innocent people.

10 thoughts on “Legislating for Innocence – the kid who cried wolf and the system that should know the difference

  1. While there is a problem with the system, you seem to have completely downplayed her lying. None of this would have happened if she hadn’t have lied in the first place. If a building firm makes a building complex that by design completely lights up and traps people if a fire is started in a certain place – it’s not just the building firm that screwed up, it’s the arsonist who started the fire as well.

  2. Thanks for your comment, Chris. I think your example highlights exactly why I decided to focus on the system rather than Gibson here – we’d surely wonder at how someone could set a building on fire like that, and want them to be held accountable for their crime as we do in this case. But as you suggest, buildings are meant to be constructed so to deal with fires – whether caused maliciously, accidentally or otherwise. Sure we can be angry at Gibson for lying, but what’s really scary about the case is that the legal system maximised, rather than protected against, the ill-effect of her wrongdoing.

  3. One question. How come when a woman is disenfranchised, it is cited as evidence that our male dominated society hates women, but when a man is disenfranchised, it’s a “flaw in the system?”

    How about let’s look at all the anti-male legislation, lobbying, and male-bashing that gender feminists have perpetrated over the past 50 years? How about let’s look at the fact that prominent gender feminists have claimed “No women lie about rape” and still others claim that false rape accusations are needed to teach men a lesson?

  4. Thanks for thinking about this issue. I agree that there is a systemic problem that needs to be resolved, far beyond the specifics of this case. I will leave you with a few thoughts:

    1) To what extent is the inexcusably draconian punishment for the crime of rape (when rape really happens) responsible for innocent people pleading guilty to something they did not do, to prevent the possibility of life in prison?
    2) Why would any justice system put a man (or woman) behind bars for life for the crime of rape?
    3) In cases of nonconsensual sex, where there is no further harm or injury, do you agree that 3 years confinement with the possibility of parole after 1 year, plus 5 years on the offenders registry, is an appropriate punishment that balances firmness with compassion?
    4) To what extent is feminist activism responsibly for a hysterical and inexcusably draconian rush to judge and punish men accused of rape?

    Thank you for your thoughts.

  5. By the way, this is what I call “nonconsensual sex with no further harm or injury”:


    What punishment should that man receive, if this were a real event? In my mind, 3 year sentence, out in 1 with good behavior, 5 years on the registry. Any more is lacking in compassion, any less is ineffective and inappropriate to the injured party.

  6. “And women are no more likely to be in that malicious minority than men.”

    That’s quite a statement given that we’re talking about rape accusations and most men would never admit to having been raped by a woman. I’d like to see some research that supports this. Otherwise it’s a safer bet to assume that, concerning rape accusations, women constitute the vast majority of perpetrators.

    It’s not even necessarily malicious as you put it. Often crying rape is used as an excuse or a quick explanation for cheating. Yes it’s horrifying but apparently many think it’s so easy and inconsequential (to themselves) that they use it without giving it much thought. Then, once things are in full motion, it’s too late to back down and they simply hang on to the runaway train.

    Other examples where rape or sexual harassment accusations are used non maliciously include parents trying to save face once they find out their teenage daughter has been sleeping around. They will tell themselves and everyone else that she was forced to do it so they don’t have to feel ashamed.

    The sad reality is that the crime of false rape accusations is disproportionately easy to commit and disproportionately unpunished – often even socially rewarded (as we saw in this case and others). Meanwhile the harm it can do is unlimited. Many innocent men have taken their own lives as a result. Others have been murdered. The mere accusation is a punishment in itself long before the court rules for or against the defendant.

    Feminists are not entirely to blame for this. A lot is down to chivalry and gender stereotypes. Nonetheless, many feminists downplay or outright deny this problem. Even this article, while attempting to address the problem, gives the reader the impression that the problem is far less widespread than it is.

    Many feminists speak about male privilege. Well here is an example of female privilege: The certainty that you will never be a victim of a false rape accusation. I suppose an article like this is the best we can hope for from the this privileged class.

  7. His axes of oppression are not being male but race and class. The Duke lacrosse players weren’t told to plead guily and ask for lenience. They had large law firms litigating the shit out of their case and ultimately embarrassing the DA to the tune of a bar complaint.

    Our system, prosecutors, judges, jurors, give some people the benefit of the doubt and not others. That’s a reality defendants have to consider.

  8. ” it should be noted that the rate of false accusations of rape and sexual assault are generally accepted to be about the same as that for other crimes.”

    Searched for a feminist response to this case and fully expected to see this trotted out, and was not disappointed. It is the standard response of feminism to the crime of malicious false accusation.

    Not only do you state your self-serving opinion as fact, you avoid any discussion on the way rape and sexual assault charges are treated differently than any other crime. Try accusing your neighbour of stealing from you – do you honestly believe that the police will arrest your neighbour and charge him with theft based solely on your accusation? Do you believe that your neighbour will have his picture posted in the newspaper, or get fired from his job, based solely on your accusation?

    I would like to believe that Feminists stand for true equality, but this problem goes far beyond any other in proving that is not so. Feminism is for female entitlement, and nothing else.

  9. Every one’s making good points but Im wondering why isnt she being convicted she took years of this man life took money from the goverment and it turns out it was all a lie but she still walking free what kind of justice is that? I think there should be a law that if somthing like this happen the person should have to serve the time that the inocent person did plus 5 more years…..

  10. I was directed to your article after finding the link to it on Reddit as “A Feminist perspective on the Brian Banks case”. You have raised some valid and serious issues regarding the justice system and how an innocent man of color was persuaded to accept a plea bargain on questionable premises. However – I think you went way, way too far in downplaying the maliciousness of Wanetta Gibson’s fabrication, and this downplaying would not be tolerated if false allegations of sex crimes were judged even a fraction as seriously as the sex crimes themselves.

    In my opinion, there is a valid feminist angle on this story, that does not involve glossing over Gibson’s crime: when a woman fabricates allegations of a sex crime against a man (be it rape, child molestation etc), she is also doing a huge disservice to all the women who are victims of these crimes. As well as being a heinous crime against Brian banks, Gibson’s actions showed a callous disregard for all genuine rape victims. I believe that people like her who do more damage to feminism and to women’s voices than any man could.

Am I wrong?

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