Accused Rapists Cross-Examing Victims
December 10, 2011 8:56 PM Subscribe
In Washington, alleged rapists can act pro se, as their own attorneys, and in so doing can question the person accusing them.
These cases can sometimes be expected drag on for more than a year. It happens in Florida too. And apparently it can happen in the UK.
Washington state sexual assault laws.
Rape statistics for Washington state and national statistics.
Awful cross-examination of victims doesn't have to come from the abusers. Here's a nasty little clip showing Rep. James Fagan of Massachusetts in 2008 threatening to brutally cross-examine child rape victims if mandatory minimum sentences are passed for child rape convictions.
These cases can sometimes be expected drag on for more than a year. It happens in Florida too. And apparently it can happen in the UK.
Washington state sexual assault laws.
Rape statistics for Washington state and national statistics.
Awful cross-examination of victims doesn't have to come from the abusers. Here's a nasty little clip showing Rep. James Fagan of Massachusetts in 2008 threatening to brutally cross-examine child rape victims if mandatory minimum sentences are passed for child rape convictions.
This post was deleted for the following reason: Sorry: overly editorialized, single view presentation of a very complex and difficult issue, plus flagged like mad, equals not a good post this time. There might be a better way to do this, but this one isn't working. -- taz
Distasteful as you might find it, this is a feature, not a bug. Confrontation Clause and all that.
posted by Holy Zarquon's Singing Fish at 9:11 PM on December 10, 2011 [8 favorites]
posted by Holy Zarquon's Singing Fish at 9:11 PM on December 10, 2011 [8 favorites]
Representative Fagan is a defense attorney. His example was intended to illustrate the potential unintended consequences of mandatory minimum sentencing.
And I'm not sure what we're supposed to take away from this post. Outrage that we have an adversarial justice system that allows pro se representation?
posted by BitterOldPunk at 9:14 PM on December 10, 2011 [7 favorites]
And I'm not sure what we're supposed to take away from this post. Outrage that we have an adversarial justice system that allows pro se representation?
posted by BitterOldPunk at 9:14 PM on December 10, 2011 [7 favorites]
Awful cross-examination of victims
Blatant editorializing in this FPP. Is everything an accused rapist does to avail himself of his legal rights automatically "awful"?
posted by John Cohen at 9:15 PM on December 10, 2011 [2 favorites]
Blatant editorializing in this FPP. Is everything an accused rapist does to avail himself of his legal rights automatically "awful"?
posted by John Cohen at 9:15 PM on December 10, 2011 [2 favorites]
Isn't this true of everywhere in the US? We have a right to confront our accusers and the right to represent ourselves. Alleged murderers can cross their victim's family members too.
posted by Mavri at 9:19 PM on December 10, 2011 [3 favorites]
posted by Mavri at 9:19 PM on December 10, 2011 [3 favorites]
Is everything an accused rapist does to avail himself of his legal rights automatically "awful"?
Of course not. Can you tell me how you came to that conclusion?
posted by thelastcamel at 9:19 PM on December 10, 2011 [1 favorite]
Of course not. Can you tell me how you came to that conclusion?
posted by thelastcamel at 9:19 PM on December 10, 2011 [1 favorite]
BitterOldPunk: And I'm not sure what we're supposed to take away from this post. Outrage that we have an adversarial justice system that allows pro se representation?What you're supposed to take away is that, similar to how a little bag of crack can trump the Constitution, rape is something so heinous it should trump due process.
As Holy Zarquon pointed out, this is a feature: people are free to defend themselves (as stupid as that idea usually is) and people have the right to cross-examine the person(s) accusing them of crimes. We've heard of cases where a child accuser is kept in another room, about which I have reservations, but in the case described in first link the accusers are now both adults. I don't see the problem here, or the reason for this post.
posted by hincandenza at 9:20 PM on December 10, 2011 [4 favorites]
Remember, the prosecution can object, and the judge can exclude irrelevant topics of testimony. A pro se party "can" do all sorts of things, but that doesn't mean they'll be allowed to elicit the testimony they'd like to.
Going pro se is almost a surefire loser, so the idea that it endows the pro se litigant with this great power is absurd. What's much more powerful is the accusation of rape.
posted by John Cohen at 9:20 PM on December 10, 2011
Going pro se is almost a surefire loser, so the idea that it endows the pro se litigant with this great power is absurd. What's much more powerful is the accusation of rape.
posted by John Cohen at 9:20 PM on December 10, 2011
Can you tell me how you came to that conclusion?
What conclusion are you referring to exactly?
posted by John Cohen at 9:21 PM on December 10, 2011
What conclusion are you referring to exactly?
posted by John Cohen at 9:21 PM on December 10, 2011
I think Fagan's point is a valid one and not just a "nasty little clip". He is saying that as a defense attorney he is neigh on required to provide the best defense he possibly can, and that mandatory sentencing guidelines is essentially such an all-or-nothing proposition that it just about forces defense attorneys to adopt such an aggressive approach. It is a valid concern, especially as not all rape allegations are automatically true, not even all child rape allegations. Rape is such a horrible crime and people an legitimately say that all sorts of idiotic social conventions stand in the way of effective prosecutions, but mandatory sentencing, while the heart may in the right place also leads to all sorts of very legitimate, and very nasty side effects.
posted by edgeways at 9:23 PM on December 10, 2011 [3 favorites]
posted by edgeways at 9:23 PM on December 10, 2011 [3 favorites]
He is saying that as a defense attorney he is neigh on required to provide the best defense he possibly can,
That's true in any case, no matter what the sentencing recommendation possibilities.
posted by thelastcamel at 9:25 PM on December 10, 2011
That's true in any case, no matter what the sentencing recommendation possibilities.
posted by thelastcamel at 9:25 PM on December 10, 2011
In that comment, I think "best defense" was used to mean "most aggressive possible defense on the issue of guilt." It's not a given that a defense lawyer must always give that kind of defense. If guilt is very obvious but there's a lot of leeway in sentencing, it could be a better strategy to not pull out all the stops on the guilt issue, in order to appear relatively sympathetic when it comes time to sentencing. The less discretion there is in sentencing, the less incentive there is to adopt that kind of strategy. These kinds of nuances are why you should pause and try to understand what someone is really saying before you characterize their comment with inflammatory words like "awful," "brutally," and "nasty."
posted by John Cohen at 9:31 PM on December 10, 2011 [3 favorites]
posted by John Cohen at 9:31 PM on December 10, 2011 [3 favorites]
Yes, but in many criminal cases, pleading out to reduce jail time is a perfectly valid way to approach that goal. When mandatory minimums come into play, that option is off the table and an aggressive defense starts to look better, especially when discrediting the accuser is the defendant's only reasonable hope of a not-guilty verdict.
posted by Holy Zarquon's Singing Fish at 9:33 PM on December 10, 2011 [1 favorite]
posted by Holy Zarquon's Singing Fish at 9:33 PM on December 10, 2011 [1 favorite]
That's true in any case, no matter what the sentencing recommendation possibilities.
Mandatory minimums take pleading guilty and seeking leniency at sentencing off the table. It's often the best choice, especially if there's a sympathetic victim. But if there's no leniency to be sought then a defense attorney is required to go into the trial guns-a-blazing since all the other options have been foreclosed.
Mandatory minimums sound very pro-victim but they very much aren't. The realities of a just adversarial system ensure harsher cross examination of victims will happen if they're employed.
posted by Doublewhiskeycokenoice at 9:33 PM on December 10, 2011 [2 favorites]
Mandatory minimums take pleading guilty and seeking leniency at sentencing off the table. It's often the best choice, especially if there's a sympathetic victim. But if there's no leniency to be sought then a defense attorney is required to go into the trial guns-a-blazing since all the other options have been foreclosed.
Mandatory minimums sound very pro-victim but they very much aren't. The realities of a just adversarial system ensure harsher cross examination of victims will happen if they're employed.
posted by Doublewhiskeycokenoice at 9:33 PM on December 10, 2011 [2 favorites]
(Is everything an accused rapist does to avail himself of his legal rights automatically "awful"?)
Of course not. Can you tell me how you came to that conclusion?
Because you framed it that way in the FPP: 'In Washington, this [awful-sounding thing] can happen.' Focus on a single state like this implies its something exceptional, when in fact this is the norm, and for sound constitutional reasons. At best, this displays ignorance, at worst, axe-grinding.
In fact, any defendant in a criminal case can act pro se is s/he sees fit to disregard the warnings from the court about the likely negatives but abides by the rules of court. True, this is most unpleasant for the victim of a crime who finds themselves being cross-examined by a criminal antagonist, but so it goes. I doubt it's any more pleasant for victims of attempted murder or relatives of murder victims, who face that situation more often than rape victims, if California case reports are any guide. I have not done any research into frequency of pro se representation against offense type in other jurisdictions.
posted by anigbrowl at 9:34 PM on December 10, 2011 [1 favorite]
Of course not. Can you tell me how you came to that conclusion?
Because you framed it that way in the FPP: 'In Washington, this [awful-sounding thing] can happen.' Focus on a single state like this implies its something exceptional, when in fact this is the norm, and for sound constitutional reasons. At best, this displays ignorance, at worst, axe-grinding.
In fact, any defendant in a criminal case can act pro se is s/he sees fit to disregard the warnings from the court about the likely negatives but abides by the rules of court. True, this is most unpleasant for the victim of a crime who finds themselves being cross-examined by a criminal antagonist, but so it goes. I doubt it's any more pleasant for victims of attempted murder or relatives of murder victims, who face that situation more often than rape victims, if California case reports are any guide. I have not done any research into frequency of pro se representation against offense type in other jurisdictions.
posted by anigbrowl at 9:34 PM on December 10, 2011 [1 favorite]
Or what John said.
posted by Holy Zarquon's Singing Fish at 9:34 PM on December 10, 2011
posted by Holy Zarquon's Singing Fish at 9:34 PM on December 10, 2011
Yes, but in many criminal cases, pleading out to reduce jail time is a perfectly valid way to approach that goal. When mandatory minimums come into play, that option is off the table and an aggressive defense starts to look better, especially when discrediting the accuser is the defendant's only reasonable hope of a not-guilty verdict.
Discrediting the accuser, especially when they're not that credible to start, is a perfectly legitimate defense strategy. People just get up in arms when the accusation happens to be of rape.
posted by kafziel at 9:35 PM on December 10, 2011 [1 favorite]
Discrediting the accuser, especially when they're not that credible to start, is a perfectly legitimate defense strategy. People just get up in arms when the accusation happens to be of rape.
posted by kafziel at 9:35 PM on December 10, 2011 [1 favorite]
Wow, I don't see "alleged" used much in that first article.
posted by likeatoaster at 9:35 PM on December 10, 2011
posted by likeatoaster at 9:35 PM on December 10, 2011
It is encouraging to know that "attacking child victims on the stand" is NOT the standard method of defense, and it is sad that in heinous cases like the proven bogus accusations and child brainwashing in the infamous McMartin case, it becomes necessary. Let's just not make it necessary more often.
posted by oneswellfoop at 9:36 PM on December 10, 2011
posted by oneswellfoop at 9:36 PM on December 10, 2011
I understand why pro se is a big deal in the US. Given our history of shitty, underpaid public defenders, and cops who try to railroad people, I fully support pro se representation. I do not support that as far as allowing possible perpetrators of violent crime to grill their victims. I think there's a third option, one that would be fair. I'm talking about allowing the accused to formulate questions for the accuser, and then a neutral public counsel (or lawyer of their choice) asking those questions of the accused. Sure, it would take a little more time for the accuser to communicate with the accused through a neutral third party, but I think in the end this would be absolutely worth it.
I'm curious about countries other than the US and the UK. What is this like in other countries? Anyone one else want to tell us about what it's like where they live?
And for those accusing me of editorializing, sure I have a bias. So does everyone who posts anything potentially loaded. I tried to make it as neutral as possible, going to some lengths to use gender neutral language, and using words like alleged and accused. I understand that not everyone accused is guilty. I also understand that most women don't report rape, and attitudes like those shown above are one of the reasons why.
posted by thelastcamel at 9:38 PM on December 10, 2011
I'm curious about countries other than the US and the UK. What is this like in other countries? Anyone one else want to tell us about what it's like where they live?
And for those accusing me of editorializing, sure I have a bias. So does everyone who posts anything potentially loaded. I tried to make it as neutral as possible, going to some lengths to use gender neutral language, and using words like alleged and accused. I understand that not everyone accused is guilty. I also understand that most women don't report rape, and attitudes like those shown above are one of the reasons why.
posted by thelastcamel at 9:38 PM on December 10, 2011
« Older Slugs: not as delicious as they seem! | More Zatoichi Newer »
This thread has been archived and is closed to new comments
posted by michaelh at 9:07 PM on December 10, 2011 [2 favorites]