New York D.A. Robert Morgenthau Urges Repeal of the Statute of Limitations for Rape: Why He Is Right

By SHERRY F. COLB
Wednesday, May. 04, 2005

District Attorney Robert Morgenthau recently announced his desire to see a change in the law of rape, specifically, the repeal of the statute of limitations. (In the context of the criminal law, a statute of limitations provides for a limited period of time after the commission of a crime during which a person may be charged with that crime. The statute of limitations period begins to run when the offense is first committed.)

The announcement comes on the heels of the arrest of Fletcher A. Worrell. Worrell's DNA reportedly links him to at least 25 rapes over three decades.

The D.A.'s proposal raises important questions about statutes of limitations in general, and for the crime of rape in particular.

Why are There Statutes of Limitations?

In defending statutes of limitations, one can invoke three primary rationales: the diminishing value of evidence over time, the need for diligence by law enforcement, and the importance of closure.

First, there is the diminishing value of evidence. After an event takes place, with the passage of time, memories fade and physical evidence may disappear. As a result, delay in prosecuting an offense may compromise the strength of a prosecutor's case against a defendant.

The longer a prosecutor waits to charge a defendant with a crime, therefore, the less likely a jury or judge will have sufficient evidence to conclude, beyond any reasonable doubt, that the defendant is guilty of that crime. The statute of limitations acknowledges this reality by categorically barring the pursuit of what may well have turned out to be the weakest and least compelling prosecutions.

Second, there is the argument for police diligence. Ideally, law enforcement officers should be investigating and handing matters over to prosecutors with speed and efficiency, in part because evidence can degrade over time. A statute of limitations, from this perspective, serves to light a fire under the police and remind them that justice delayed is justice denied.

If police fail to act quickly, then they have failed the public and are unlikely to find a culprit many years later, even if they theoretically might have done so. The statute of limitations dramatizes this reality by eliminating the -- largely theoretical -- possibility that the police might find the perpetrator at a later date. It also, and for similar reasons, permits an innocent defendant to exculpate himself with fresh evidence, if such exists.

Third, there is the notion that statutes of limitations provide closure and relief for those who might be falsely accused. When a crime occurs, there is always the possibility that the authorities will identify the wrong person as the culprit and attempt to build a case against him. Though witnesses and police generally try their best to identify the guilty party, people do on occasion lie or make mistakes. When these things happen, an innocent person can find herself defending against a false accusation.

The burden of such a position can cause great anxiety and expense that may increase over time, as evidence and memories of the truth disappear, while accusations hang over the heads of the wrongly accused. A statute of limitations, for such people, can serve to release them from that burden.

Once the statute has run, the possibility of being charged and convicted on false accusations expires, and this expiration allows closure for the target of unscrupulous or simply erroneous focus. And even for the guilty defendant, the statute provides repose after a period of time.

So Why Repeal the Statute of Limitations for Rape?

These three arguments are substantial, so why does the New York District Attorney urge the repeal of the rape statute of limitations?

Robert Morgenthau is responding to the developing power of DNA analysis to identify a perpetrator from a small quantity of human tissue left at the scene of a crime. And his response makes a great deal of sense.

First, in the past, when a man (the usual perpetrator of a rape) committed a rape against a stranger, and his victim reported it, the most likely path to discovering the attacker's identity was through eyewitness identification. Typically, the victim would look at a book of arrest photographs and identify her assailant. That feature of rape investigation has changed with the routine collection and analysis of DNA evidence.

When a rape occurs, the attacker generally cannot avoid leaving some of his tissue on the victim. And once he does, that DNA can be traced to him if, at any point, the police have had occasion to collect DNA from him.

The fact that memories fade over time is now far less significant in a rape prosecution, for the victim's ability to recognize the rapist is no longer crucial. Indeed, the fact that none of the defendant's DNA is found on a victim may lead to an acquittal even when the victim is confident of her identification. And likewise, a victim's inability to recognize the perpetrator will not necessarily undermine a positive DNA identification.

Second, the police are generally motivated to investigate stranger rapes because they are acknowledged to be violent, frightening offenses that can terrorize the population. The fact that law enforcement has not identified a rapist in five years, the length of the statute of limitations for rape in New York, is therefore more likely to result from the perpetrator's evasive action than from police neglect.

Repeal of the statute of limitations for rape is therefore unlikely to lead to a sudden onset of lethargy in police investigations of this crime.

And third, there is the matter of closure. In this area too, the advent of highly sophisticated DNA identification technology greatly reduces the likelihood of error. In the past, the chance that a witness would make a mistake, years after the fact (or even shortly after the fact) when examining a book of mug shots or at a lineup was substantial. The less we must rely on eyewitness identification, however, the less relevant the passage of time becomes to the accuracy of a trial and its outcome.

Victims Deserve Closure: The Injustice of a Proven Rape That Can't Be Prosecuted

There is also, finally, an affirmative reason to repeal the statute of limitations on rape, and that is closure for victims.

Rape remains a highly underreported crime, because of the stigma that still attaches to its victims, even to this day. At the same time, the crime of rape causes devastating trauma to its victims, from which they do not easily (or always) recover.

As with the crime of murder -- for which no state has a statute of limitations -- a crime as serious as rape merits investigation and prosecution, no matter how much time has passed. The victim and other potential victims of the same predator deserve as much.

In sum, the arguments for the rape statute of limitations are now less than persuasive, given the nature of the crime and the advent of DNA evidence. In this context, this last affirmative reason for its repeal - closure for past victims, and the protection of possible future victims - should carry the day.

For these reasons, New York State should abolish its statute of limitations for rape, just as the New York District Attorney has proposed.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

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