Dear Colleagues,

 

These remarks do not relate to the WC Resolution.  I have said all I have to
say about that in my previous posting.  Rather, these are some more general
thoughts on rape and the due process of law.  I am somewhat distressed by a
similar thread in two recent postings by Lyn Miles and Marcia Noe.  Compare
the two statements below:

 

Lyn Miles writes:

 

I note as an aside, that much as rape victims now have to defend how many
vaginal tears they have, how long the tears are, and how "drunker than
drunk" they were, etc.,

 

Marcia Noe writes: 

 

How big does a vaginal tear have to get before we get concerned about
it? Oh, one inch isn't enough? Would two inches be enough to get our
attention? How about five or six? Maybe we should have some DEBATE and
DIALOGUE about this question. If that girl had been abandoned in that dorm
room, drunk and passed out, and had choked on her own vomit and died, would
we get worried then? Or would we say, ah, well, it was her decision to
drink, it was her decision to go back to the dorm with the boys, it was her
decision to have sex with seven boys and then pass out and vomit? Students
are really adults, aren't they, and what they do on their own time, in
their own dorms, really shouldn't be regulated, should it? It might
violate their civil rights to become seriously injured, or die. Why don't
we debate that issue for a while?

 

Clearly, both authors are very passionate about this issue.  In their heat,
however, they seem to suggest that the person who brings a rape complaint to
a district attorney ought not to have to be judged for the truth of her
claims and ought not to have to go to the trouble of having them heard in
all their details in a court of law.  How big does a vaginal tear have to
be?  That's not a minor question in a rape case. Could that tear have come
through consensual sex?  That's a crucial question to answer in a criminal
trial.  How drunk does a person have to be?  That's also not a trivial
question when what hangs in the balance is whether or not a man goes to
prison for three to six years.  Rape is not a joke or a minor matter, and
neither is prison a joke or a minor matter.    

 

The above messages suggest that in bringing up such "details" at the
criminal trial the defense, or if I brought them up in my discussion of the
appendix, we are being petty, that we are trivializing the crime by focusing
on mere trifles.  Lyn Miles appears to insinuate that a woman who accuses a
man of rape should not be put through the distress of demonstrating that she
had vaginal tears, the length or depth of those tears, or whether  she was
intoxicated (which as we have seen demonstrates nothing by itself in the
eyes of the State).  That, however, is how our legal system works.  The
burden of proof is on the state, not the defendant.  The jury or judge in a
trial (as opposed to a hearing, yes, I know they aren't the same) has to be
convinced beyond a reasonable doubt.  The fact that the process of
convincing a jury beyond a reasonable doubt might be a severely
uncomfortable process for the accuser does not change that, nor should it.  

 

After all, the authors of the above message would also argue vigorously,
wouldn't they, for an accused person's right to a fair and speedy trial.
That's a basic, constitutional right.  How are there to be fair trials if we
do not take the time to look into "minor details" like the length and number
of cuts on a victim or the degree of intoxication of a victim?  This is the
stuff that all criminal trials - rape, assault, robbery, aggravated robbery,
murder, etc. - are made of.  They are precisely the questions that are
debated in courts every day all over the country.  The devil is always in
the details, and whether or not a man is sent to prison for a decade or more
frequently depends upon such petty, little, "details."  Let us remember that
there have now been more than 100 people who have been released from death
row because it was discovered they were the wrong folks.  What kinds of
measures were presented at their trials?  Did prosecutors not present
evidence like the length of tears, the depths of the cuts, and the levels of
intoxication of their supposed victims in convincing a jury that their
penalty should be death?  The process goes both ways.  

 

For those of you who feel so cheated by the court's recent decision, you
should take some comfort in the fact that everything happened that was
supposed to happen.  Professor Noe is wrong to insinuate that the case
didn't get our attention.  The case DID get our attention and still HAS it.
A young woman brought a complaint to the police.  They did not laugh in her
face and tell her to go home.  Instead, they investigated.  The accused were
dismissed from school and arrested.  State resources were expended so that
the police and D.A.'s office could gather evidence.  The D.A. vigorously
argued her case before a judge (and not a Grand Jury, the D.A.'s decision).
The accuser in this case got everything that she was guaranteed by law and
the constitution.  The only thing that did not happen was a conviction, and
no complainant in this country is ever guaranteed the right to a conviction.

 

In reference to Marcia Noe's final paragraph in her recent posting, I do not
believe there is ever a time when passion or outrage ought to trump
reasoned, civil argument.  That's why I think the criminal justice system is
the best thing going, and it's why I'm heartened by the fact that
prosecutors and defense attorneys will continue to battle it out over every
half-inch "tear" and every beer drunk by every complainant and every
defendant in every case.  

 

That's your protection and mine.

 

Sincerely,

 

Chris Stuart

 


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