II. THE CASE FOR OUTRIGHT REPEAL

Evidence necessary to convict of any offense defined in the Penal Law must meet the necessary quantum, standard of proof beyond a reasonable doubt. This standard applies to: (1) each and every element of the offense charged, and (2) the connection of the defendant with its commission. This standard is more rigorous than that required in the trial of an issue of fact in non-criminal matters. The requirement of corroboration adds an additional burden of proof. Certain non-sex situations in criminal prosecutions require some sort of corroboration under the new Penal Law and the proposed Criminal Procedure Law. A rational basis may be found for each of these situations. Where the offense is criminal solicitation," the situation is similar to that of the accomplice, in which the probability of false accusation of complicity in a crime is sufficiently high to command general attention. Thus, a special charge is required of the trial judge to the effect that "accomplice testimony is inherently suspect owing to possible motives of self interest on the part of such witness and that the jury must scrutinize and weigh such testimony with care and caution." " As to the offense of perjury," the statutory requirement of corroboration is a codification of long standing judge-made law with respect to a contradiction between the veracity of an accuser and that of an accused. Where the offense charged is promoting prostitution, as in the situation of accomplice testimony, the testimony of a prostitute given against her procurer or "pimp" may also be said to be "inherently suspect." The statutory requirement as to confessions and admissions codifies case law of long standing. It is based on the identical inherent suspicion of such testimony. It should be pointed out however, that the traditional requirement extends only to corroboration of the fact of the commission of the offense.

24

23

25

21

With respect to the requirement of corroboration for sex crimes in the new Penal Law, no rational basis for inherent suspicion of the testimony of the alleged victim can be found. Professor Wigmore observed that:

"At common law, the testimony of the prosecutrix or injured person in the trial of all offenses against the chastity of women was alone sufficient evidence to support the conviction; neither a second witness nor corroborating circumstances were necessary." 20

The corroboration requirement, a requirement which is found in only a few statutes, originally found its way into the statutes of New York for the crime of rape only." Certainly, the gravity of sex offenses, as determined by their classification, does not justify the requirement. No corroboration is required for conviction of any of the four class A felonies in the Penal Law (each is a non-sex crime punishable by mandatory life imprisonment). The highest grade of sex offense is a class B felony; two crimes, rape 28 and sodomy" in the first degree, are punishable by a maximum of 25 years imprisonment. The possibility of extortion and blackmail by a false, mistaken, or deluded accuser exists for any offense, and not necessarily for a sex offense alone.

30

The requirement of corroboration is a rule of thumb. Any rule if thumb, for the trial of an issue of fact, is no substitute for a thorough exploration of the credibility of a witness by scrutinizing his capacity and opportunity to observe, his ability to recollect, his power to narrate and, above all, his veracity (ie., that his recollected observations, and nothing else, are actually narrated). In the search for truth, to convict the guilty and acquit the innocent, one fully credible witness outweighs a dozen of questionable credibility. If the complaining witness in a sex offense lacks sufficient credibility in any respect, no amount of other evidence can compensate for that deficiency. If the complaining witness is

20 Penal Law § 115.51.

21 Proposed N.Y. Crim. Proc. Law § 300.20(1), S. 4624, A. 6579 (1969).

22 Penal Law § 210.50.

23 Penal Law § 230.35.

24 Proposed N.Y. Crim. Proc. Law § 60.50. S. 4624, A. 6579 (1969).

25 See The Boorn Case, 7 American State Trials 73 (J. Lawton ed. 1916), where, in Vermont, in 1819, two brothers were tried for murder. While one was serving a sentence of life imprisonment and the other about to be executed, the alleged victim, after an absence of seven years, returned alive and well.

287 J. Wigmore, A Treatise on the Anglo-American System of Evidence § 2061, at 342 (3d ed. 1940).

27 See F. Ludwig. Youth and the Law 181 (1955).

29 Penal Law § 130.35.

Penal Law § 130.50.

30 Penal Law § 70.00 (2) (A).

completely credible, any other evidence is superfluous and should be unecessary. The assumption underlying the requirement of corroboration is that persons who are victims of the ten offenses defined in article 130 (rape, sodomy, sexual misconduct and sexual abuse, in various forms and degrees) and of adultery and incest defined in section 255.30, belong to a class of people who possess characteristics diminishing their credibility as compared with the credibility of the reasonable man. The class of such victims is by no means well defined. Except for rape in its various degrees, the sex of the victim may be either male or female. As to disparity of age, one study has found victims to have the outstanding characteristic of immaturity.

"With a range from 2 to 68 years, the average age of these 1395 victims was 13 years, 8 months. Seventy-three of them were under 6; 260 were between 6 and 10; 655 were between 10 and 16. Two of the victims were 2 years old; eight were 3, twenty-three were 4, forty were 5, thirty-eight were 6, seventy-two were 7, seventy-four were 8, and seventy-six were 9." 31

III. THE CASE AGAINST AN AMENDED VERSION OF CORROBORATION

32

Two alternative courses of amendment are possible. The first would make mandatory the cautionary instruction contained in the proposed Criminal Procedure Law for accomplice testimony. It cannot validly be asserted, however, that victims of sex offenses constitute any sort of class whose testimony is "inherently suspect" owing to possible motives of self interest.

The second alternative would limit corroboration to the fact of the commission of the sex offense, rather than to both the fact and the connection of the defendant with its commission. The simple language contained in the proposed Criminal Procedure Law, with respect to corroboration of confessions and admissions "without additional proof that the offense charged has been committed," will not suffice to formulate this amendment. This is so because the judge-made "doctrine of circumvention," which extends the corroboration requirement beyond the dozen sex offenses that its statutory language explicitly embraces, must be overruled.

It is virtually impossible to draft any provision that will enable the legislature to overrule the multi-phrased versions, adopted by this state's highest court, as to precisely what must be corroborated in the case of sex or sex-related offenses.

34

No less insurmountable is the additional hurdle of what the court of appeals considers sufficient corroboration. The most recent pronouncement of that court shows sharp division on the question of sufficiency. In People v. Reynolds, the complainant testified that on May 26, 1962 she had been beaten and raped by the defendant, while the defendant's brother was asleep in an adjoining room. Immdiately after the crime, the compainant informed the defendant's brother and her aunt that the defendant had raped her. The policeman summoned to the scene testified that the victim's "hair was disheveled, her clothes were disarrayed, she was crying, had difficulty speaking and scratches and bruises appeared on both sides of her throat." 5 At the station house, the officer asked the defendant if he knew the complainant was having her menstrual period, he answered "No, but I found out." The officer further testified "that at the station house he observed blood stains on defendant's trousers near the groin area which to his touch were damp." " The above testimony was supplemented by medical testimony establishing that sexual intercourse had taken place.

37

On an indictment charging rape in the first degree and assault in the second degree with intent to commit rape, the jury acquitted the defendant on the rape count, and found him guilty of assault. The trial judge charged that defendant could not be found guilty of rape without corroboration. No similar charge was given as to the second count charging assault with intent to commit rape. Defense counsel took no exception to the charge on corroboration, and did not request a similar charge on the assault count. The court of appeals affirmed the conviction. Five judges based their decision on the non-retroactivity of the

Supra note 27, at V168.

Proposed N.Y. Crim. Proc. Law $ 300.20. S. 4624, A. 6579 (1969). Proposed N.Y. Crim. Proc. Law § 60.50. S. 4624, A. 6579 (1969). 2425 N.Y.2d 489, 255 N.E.2d 548, 307 N.Y.S.2d 201 (1969).

Id. at 492-93, 255 N.E.2d a 1549. 307 N.Y.S.2d at 203.

Id. at 493, 255 N.E.2d at 549, 307 N.Y.S.2d at 203. ld.

38

decision in People v. English, holding that corroboration is required for assault with intent to commit rape when there is evidence that an actual rape has taken place. The tenor of this decision would seem to indicate that, but for the fact that the crime under examination was committed prior to the holding in English, the defendant would have been acquitted. Only two judges, concurring in the result, held that the facts in this case supplied the requisite corroboration. Judge Breitel in his concurring opinion stated:

"Moreover, there was ample corroboration of the assault with intent to commit rape. At the very least there is sufficient corroboration from his admissions of sexual intercourse and the testimony in part, if believed, that defendant's face was scratched, his clothing was blood-stained, and that he fled from arrest immediately after the crime. Consequently, the rule in People v. English ... was not, on any view of the matter, violated.

"There is, therefore, no occasion to invoke any rules of retroactivity, or nonretroactivity, or to engage in the subtle and unhappy distinctions whether retroactivity should run to the date of trial or to when the process of direct appeal has been exhausted." "

Would the problem be solved by an amendment to the two separate corroboration provisions, Penal Law sections 130.15 and 255.30, which would provide: (1) for limiting the current corroboration requirement simply to the fact of the commission of the sex crime, and (2) that additional evidence need not tend to confirm every material element of the offense? Evidently, neither provision takes into account the "doctrine of circumvention" or the evidence sufficient to corroborate one or more elements of the offense charged, as indicated by People v. Reynolds. How many elements of a given offense that must be corroborated must be the subject of future appellate court debate under one of the aforementioned proposals.

In 1969, in the County of Queens, the police arrested and charged 8,117 persons with felonies, 103 of whom were charged with forcible rape. During the same year, the grand jury in Queens was able to indict only 79 persons for sex felonies-58 for rape and 21 for other sex offenses. Thus, of persons arrested and charged with rape, 56.3 percent were actually indicted. Since the effective date of the new Penal Law, September 1, 1967, there has not been a conviction after trial for any sex felony under article 130 in Queens, the scond most populous county of the state (2.3 million inhabitants).4°

40

Simple outright repeal offers a direct, fair, and unequivocal solution to a concededly grave problem in the current criminal law administration.*

Appendix C

Proposed § 1641 Federal Criminal Code

[From The New York Times, Monday, Feb. 14, 1972]

RAPED BY THE LAW

New York City police statistics-which undoubtedly grossly understate the true situation-show that 2,415 cases of rape were reported here in 1972, a 12 per cent increase. The understatement reflects the fact that many victims do not report this crime because of fear, shame, and a deep sense of personal humiliation.

Another deterrent is the enormous obstacle imposed by New York State law impeding prosecution and conviction of a rapist. The law requires corroboration of the victim's complaint for every element of the crime. The law regards the victim's testimony by itself as unworthy of belief.

In a memorable opinion delivered just before he switched recently from Family Court to Surrogate, Judge Millard L. Midonick properly denounced the law on this point. He noted that New York and Iowa are the only states that compel corroboration without leaving any discretion to the courts, and added: “The

People v. English, 16 N.Y.2d 719, 209 N.E.2d 722. 262 N.Y.S.2d 104 (1966).

3 People v. Reynolds, supra note 34, at 496, 255 N.E.2d at 551, 307 N.Y.S.2d at 206. 40 See N.Y.C. Dep't of Police, Crime and Related Activity Arrests, City ComparisonStatistical Report 29 (Dec. 1969).

As this publication went to press, a bill (S. 8879) proposing repeal of the sex corroboration requirement of Penal Law § 130.15 was introduced in the New York State Senate. The bill was sponsored by the Committee on Rules during the 1970 session.

corroboration requirement denigrates the testimony of women who claim to have been victimized sexually. . . . When an individual is robbed or wounded, her (or his) testimony can be used to convict the assailant without regard to whether the victim of the crime was a man or woman." The result of this double standard, as Martha Weinman Lear pointed out in The New York Times Magazine recently, is that only eighteen rapists were convicted here in 1969, though 1,085 arrests were made.

The other extreme, in which any man could be convicted of rape solely on the unsupported charge of any woman, is also abhorrent. What is needed is a reasonable middle ground between the extremely harsh corroboration requirement of the state's present law, and its opposite extreme. A bill sponsored by the District Attorneys Association of New York would relax the corroboration requirement by permitting easier references to additional evidence of an objective nature that a rape or intended rape had been committed. Such a move would restore balance to a law that is now weighted heavily against victims and encourages rape by making its punishment so difficult and so rare.

Mr. LUDWIG. Thank you.

Generally speaking there are only two questions; two questions, I am told, in the problem of preparing a criminal code.

The first question is drawing the line between criminal and lawful conduct; a line that is sufficiently clear to give warning to everybody in advance of where he stands. And the second question is what happens to you when you overstep that line.

That is the question of treatment.

Now I am concerned here primarily in the area of sex with the question of drawing the line between criminal and noncriminal behaviour in the sex field, specifically with respect to rape and gross sexual imposition.

As I take it, the proposed Federal Criminal Code in this respect has two kinds of rape. What we would call rape in the first degree and rape in the second degree: gross sexual imposition being what constitutes rape in the second degree.

The purpose of any statute dealing with rape generally, giving a background, is to prevent physical injury and emotional outrage on a female. It has been a crime under the Mosaic law and under the Roman law and also in the Anglo Saxon law before the time of William the Conqueror.

William the Conqueror and his Normans experimented a little bit with rape. They at first took off the death penalty and they substituted castration and blinding of the perpetrator. Then for a 10-year period between 1275 and 1285, between the statutes of Westminster I and II, they experimented with 2-years' imprisonment for rape. But that experiment apparently failed and the death penalty was reinstituted and made nonclergyable in 1576. Clergyable meant that if you could read and write you would be spared from the hangman's gallows. Rape remained a capital offense in England until 1861. After that four crimes were capitally punished.

The reason rape had been considered so seriously in the AngloAmerican law is partially evidenced by the fact that 17 of our States make it discretionarily a capital offense.

The thing I would like to point out about the Federal statute, and then we will get into the corroboration requirement and the controversy that has been aroused in my State. First of all, there are certain strengths.

The elements of rape, we may point out, are four fold and very simple. First, you must have a male who is the perpetrator. Second,

you must have a female who is the victim and the female cannot be married to the male or be the commonlaw spouse of the male. Third, you must have sexual intercourse which means under the Federal Code, the slightest penetration. And fourth, you must have force or fear: force, i.e., actual force, or constructive force.

Those are the four elements in New York and the four elements of the code. Some of the strengths of the Federal Code should be pointed out because here the Congress is attempting to resolve questions that have been the subject of divided judicial opinion in the past.

The first question that Congress has resolved in its proposed code, if it be adopted, is that emission is not necessary that the slightest penetration is sufficient and it makes that the case by statute. We do also in New York.

Second, under gross sexual imposition or rape in the second degree, they have resolved the question of the female who is suffering from an infirmity as the victim. The question that divided judicial opinion at common law and in many American States was whether the male perpetrator had to know of that infirmity in order to be guilty of rape. The proposed Federal Code resolves that question by saying you have got to know in order to be guilty and it is an affirmative defense that you don't know.

Third, a strength in the Federal Code in my opinion, is the old question of the impersonation of the victim's husband in perpetrating the act. That divided American judicial opinion in the absence of a statute's permanently resolving the question. Many courts said that this question of impersonation, inasmuch as the female consented to the act of intercourse, was a mere collateral matter, as to which person was perpetrating the act of intercourse. Only a minority of jurisdictions took the position that went to the essence of the act of intercourse, that the female's actual and reasonable belief that she was engaging in the act with her husband made all the difference in the world.

The proposed Federal Code in my opinion quite salubriously takes the side on this third question, that impersonation is criminal.

Finally, still another strength, in defining the female, the wife, the Federal Code quite clearly embraces a commonlaw relationship and does not leave that to judicial definition.

As to some of the weaknesses, just before we come to corroboration, we note in the Federal Code a deficiency that we have also in the New York law, that one big area of constructive force, namely fraud, is eliminated as one of the situations in which either rape or gross sexual abuse may take place.

Let me give you an illustration. These cases primarily deal with physicians who treat females. A physician represents to a female that he is performing some kind of operation on her when in fact he is having sexual intercourse with her. If the female believes and submits. under the belief that this is not intercourse but some surgical instrument that is being inserted into her anatomy, under nearly all of the cases such conduct judicially was made rape, because that was called fraud in the factum. On the other hand, if the physician represented to the female and she actually did believe him and submitted to him,