Posted on September 20, 2016 in Criminal Law
Toby Willis, head of the country music group the Willis Clan and one of the stars of the TLC reality program “The Willis Family,” is currently being held in a Kentucky jail without bail on charges alleging he raped a child. Authorities assert Willis fled to Kentucky to avoid being arrested in Tennessee. In his first court appearance Willis waived extradition, meaning Tennessee authorities have 60 days to bring him to court in that state.
It’s way too soon for there to be details of the alleged crime, but run a search on the internet and you can find plenty of stories about Willis’ arrest, law enforcements claims that Willis fled in order to avoid being brought in to custody and ominous sounding statements about how Willis has and will continue to be held without bail.
Let’s face it –- he sounds guilty. But take a step back, we actually know nothing about what allegedly occurred, or what kind of proof there is or isn’t.
Words Are Important
The charge Willis is facing is being described as ‘rape of a child’ – the actual charges have not been released yet. Tennessee Code section 39-13-522(a) defines ‘rape of a child’ as any sexual penetration of person who is under the age of 13. The charge sounds horrible because the conduct it describes is horrible, but the use of the word ‘rape’, while legally accurate, may not mean what you think it means.
The term ‘rape’ for most people conjures images of a violent event, forcible sexual conduct. That’s not what the Tennessee statute describes. Tennessee, and lots of other states, defines ‘rape’ as any sexual conduct that for any reason is unlawful. The Tennessee definition involves sexual conduct with a person too young to consent. Contrary to what most of us assume when we hear the charges, there is no requirement of violence, danger, fear or force.
Law enforcement released a statement indicating Willis fled to avoid being arrested. No evidence. No proof. No accounting for the fact that the Willis Clan was on tour in August and September and Willis legitimately could have been nearly anywhere. The basis for the conclusion that Willis ‘fled’ is, at this point anyways, completely speculative. ‘Fled’ is a loaded term. Guilty people flee. Using the word ‘fled’ has an enormous impact on public opinion – it immediately and irrevocably frames our opinions.
Willis was arrested on a fugitive warrant, a specific type of arrest warrant issued in one state for a person who has criminal charges in another state. This variant allows law enforcement to arrest a person and then transfer them across state lines for prosecution in another state. But the word ‘fugitive’ immediately evokes images of someone on the lam, a person running from the cops when in fact a ‘fugitive warrant’ is a necessary legal device to arrest and transport a person between states.
People and companies who supported Toby Willis and his family are withdrawing their support, websites are being taken down and soon tour dates will be cancelled. Willis is being convicted in the court of public opinion because he’s accused of something awful, he ‘fled’ and he was arrested on a fugitive warrant. He’s being ‘convicted’ before anyone has any idea of what did or didn’t happen.
But what if he’s innocent? Or what about other people who are accused of horrible things, whose reputations are forever ruined, but who aren’t, in fact, guilty?
The Consequences of Being Accused
It’s one thing if a guilty person, accused and convicted of a crime, loses their formerly good reputation, their livelihood and their money. We as a society consider this to be the collateral consequences of their conduct – just punishment if you will. But the same collateral consequences face innocent people who are wrongfully accused of a crime.
The justice system is far from perfect. Innocent people can and often do get accused, and sometimes convicted, of crimes they simply did not commit. The worse the allegations, the worse the collateral damage. Ask a person wrongfully accused of rape. The accusations were dismissed almost as soon as they were filed. However, two years later he can’t pass a background check. He can’t get a job. Or how about the person tried and acquitted of child molest? Charges so ludicrous they never should have been filed and to prove it he spent his life savings proving his innocence and then had to move from his home because of the social fall out. Or the doctor who struggles to renew his license or change jobs because his ex-wife made horrid accusations during a particularly nasty divorce?
Allegations follow people, even those who aren’t famous, for a lifetime. While some states have ways to remove dismissed or disproven criminal charges under certain circumstances the legal burden that must be met is high and the financial cost great. Most people who are wrongfully arrested cannot clean up their records and are forced to spend the rest of their lives explaining events they could not control.
If Willis, or someone like him, is innocent, the criminal defense team doesn’t just have to defend their liberty. The defense is battling the court of public opinion, trying to protect their client’s reputation and their ability to earn a living in the future. The court of public opinion isn’t just the media coverage of a famous defendant. The court of public opinion is also the perspective jurors in any given case, regular people called for jury duty and read the charges before being questioned about being sat on a jury. And these people, “We the people,” hear all these terms which mean one thing under the law but have quite a different connotation in everyday language.
Reconstructing the Past In Order to Have a Future
The allegations surrounding Willis include conduct that purportedly occurred in 2002. Tennessee, like a lot of other states, has a long statute of limitations for these kinds of allegations, 15 years. In addition, most states allow very general pleading of times and dates, especially when a crime is alleged to have occurred a significant period of time in the past. A single criminal charge can be alleged to have occurred without stipulating a specific date or even a specific year. In other words, most states allow prosecutors to write the crime occurred “on or about and between January 1, 2001 and December 31, 2003.” Consider an innocent person suddenly asked to prove where they were and what they were doing and why they couldn’t possibly be guilty when the conduct is allegedly 12-14 years ago and covers over 700 days.
Most people don’t keep calendars, digital devices, day planners or any other records detailing their day-to-day activities years after the fact. Regardless of the simple truth that the prosecution legally has the burden of proof beyond a reasonable doubt in order to prove guilt, the reality is the defense has the burden to prove their client is innocent, that they weren’t present, that they couldn’t have committed the crime. A heavy burden in any case made weightier when you’re talking about events a decade old or more. Most prosecutors are hardworking people who try not to make crucial mistakes. But they’re human and they do make mistakes. There are prosecutors who are unethical, who don’t care about things like truth and justice. Unfortunately most crime victims are real. Everyday people who have had horrible things happen to them. But a few are liars, people out for money or fame or revenge.
It’s something to think about before reading the next headline about a star fallen from grace and a cautionary reminder that – by law – those being tried are innocent until proven guilty.