December 04, 2005

Is This Justice?

On Friday in Beaverton, Oregon, a judge ruled that a girl who had accused 3 "boys" of raping her wasn't credible so he convicted her of filing a false police report, a conviction that if held up could lead to 30 days in jail and a fine upto $1250. But the problem is, the judge didn't have any proof she had lied. All he had was a feeling that the she wasn't as credible as the 3 "boys" and the evidence of the girl's "friends" who said she didn't act as traumatized as a rape victim should act in his opinion.

After a day-and-a-half trial, Municipal Judge Peter A. Ackerman on Friday convicted the woman of filing a false police report, a class-C misdemeanor. Ackerman explained his decision, saying there were many inconsistencies in the stories of the four, but that he found the young men to be more credible. He also said he relied on the testimony of a Beaverton police detective and the woman's friends who said she did not act traumatized in the days following the incident.

This was a pretty crappy case even before the judge made his ruling. According to the Oregonian, the young woman was 17 at the time of the incident while the "boys" were 18. This meant that she under the legal age of consent according to Oregon law when the incident happened. The "boys" who were not under the legal age of consent testified that she instigated the affair. But how credible is that? Why would she have even reported the incident if it had been consensual? Evidently she finally talked about this incidence with her friends who talked her into going to the police. And even by the laws of Oregon, the boys were acting illegally whether or not she "instigated" it just by having sex with her. So how could the judge decide she was guilty of a false accusation and they were credible?

And how many women do you know who will suggest sex with three men just for the thrill of it? Gang-sex is not a female fantasy and most women would find it an extremely intimidating experience. Here's some more of the story from Kevin Hayden, who knows the victim and believes there has been a tremendous injustice done:

The young woman went to a park with two friends, to meet these guys, where they planned to proceed to a party. They were drinking something like wine coolers, but the woman says she wasn't drunk. The two girlfriends left. The three guys and the young woman headed out toward the party. The conversation turned to sex, and the woman was open about hers, though suggestions that they all go have sex were met with "I don't think so' and other refusals. They stopped at the house of one guy - the one she had dated briefly and shortly before. That's where she alleged they ignored her refusals and faced with three big guys, she didn't fight physically with them.

Afterward, they were going to take her home. On the way, they stopped at TWO parties. She made no effort to tell anyone then or to escape, but she says that's because one of the guys remained constantly at her side. Once back home, she told no one for two days.

More from Kevin can be found here and here.

I agree with Kevin that there was a tremendous injustice done in this case. It sounds like the police investigation was wrong from the start. According to EVAW International, determining if potential rape case is unfounded or not is documented in the Successfully Investigating Acquaintance Sexual Assault training manual. This manual was developed by the National Center for Women and Policing as part of the Violence Against Women Office in the Office of Justice Programs. Within this training, the police are given a number of case studies that try to help them distinguish between cases where a rape charge is justified and where it is not. Here was one case that has aspects of the Oregon case:

A 15 year old female reported having been raped by two males 21 years of age. The victim hadgone to the park with a friend where they drank malt liquor. They then proceeded to a houseabout 3 blocks away, where there were several Hispanic males. The victim was drinking heavily the day of the incident. The victim said that she had sexual intercourse with two Hispanic males at the house. Furthermore, the victim stated she did not really want to have sexual intercourse, but did nothing to stop the two male suspects. ...Although coercion is possible, the elements of force or fear could not be established based on the victim’s statements. As the victim put it, she just “let it go” when the two suspects proceeded to have sex with her. The victim did not attempt to fight against having sex with the suspects....The detective investigated the crime as though it was a forcible rape and unfounded it as such. In reality, it is a drug facilitated sexual assault and was investigated improperly.

This crime report was improperly canceled as unfounded.

So why did the assistant city attorney decide to prosecute the case? According to the Oregonian, it was because the "false accusations were serious enough to lead to charges. The young men faced prison sentences of at least 7 years and a lifetime labeled as sex offenders. In addition, police spent considerable resources investigating the accusations."

Yup, he was going to teach her a lesson and make sure that other women who thought about reporting rape were advised that they could go to jail if their case didn't have sufficient evidence to prove their case.

It seems obvious to me that this assistant city attorney, the Beaverton police detective and the judge are all part of the backlash against women who bring forward an accusation in acquaintance rape cases. And what would this young woman have gained with making a false charge? Unless the judge had clear evidence that she was lying, then it does not seem reasonable that he would convict her for this charge unless he was prejudiced against women who have stepped out of the bounds of what was acceptable behavior. Note that the "boys" who participated in a gang-bang with an underaged girl were not even admonished as far as we know. Obviously, for women, having a sexual history, or even sex outside of marriage is bad. For men, it is a natural god-given right.

Here's a piece from the State of Virginia on how they expect to handle Sexual Violence. I guess they don't find that charging the victim is a credible solution to the problem. One myth? That victims are hysterical after a "real rape".

FACT: After being raped or sexually assaulted, victims may have a range of emotions from hysterically crying to being absolutely numb. However someone responds is okay. People deal with things in different ways and should not be judged based on how society perceives someone should act after being raped or sexually assaulted.

I hope the appeals court overturns this travesty of justice as soon as possible. And I hope the young woman can get some therapy to help her get past her ordeal.

Dave Johnson has been compiling a complete list of blog posts that are covering this story.

Posted by Mary at December 4, 2005 03:26 PM | Law/Justice | TrackBack(2) | Technorati links |

Peter A. Ackerman
Attorney at Law
2875 Marylhurst Drive
West Linn, Oregon 97068

Voice: (503) 697-9633
Fax: (503) 635-6668

"Mr. Ackerman also serves as a Municipal Judge for the city of Beaverton, Oregon"

Posted by: a at December 4, 2005 09:25 PM

Impressive run down. Cited you. More developing here today at Unheard, Unseen

Posted by: The Heretik at December 5, 2005 05:23 AM

this is just unbelievable.

dear god.

Posted by: Hubris Sonic at December 5, 2005 05:30 AM

Since much of the blogosphere is linking to you with your claimed legal analysis, you should probably act to the law right.

I think you have it wrong.

My summary (and I am engineer and not a lawyer) is that while the age of consent is 18, if the accused were within three years of the age of the alleged victim, they cannot be charged with statutory rape. If the only problem was the age of the alleged victim, the most the accused can be charged with is:

163.435 Contributing to the sexual delinquency of a minor. (1) A person 18 years of age or older commits the crime of contributing to the sexual delinquency of a minor if:

(a) Being a male, he engages in sexual intercourse with a female under 18 years of age; or

(b) Being a female, she engages in sexual intercourse with a male under 18 years of age; or

(c) The person engages in deviate sexual intercourse with another person under 18 years of age or causes that person to engage in deviate sexual intercourse.

(2) Contributing to the sexual delinquency of a minor is a Class A misdemeanor. [1971 c.743 s.117]

163.440 [Repealed by 1971 c.743 s.432]

163.445 Sexual misconduct. (1) A person commits the crime of sexual misconduct if the person engages in sexual intercourse or deviate sexual intercourse with an unmarried person under 18 years of age.

(2) Sexual misconduct is a Class C misdemeanor. [1971 c.743 s.118]

Please do not take my word for it. I don't know. Please find a blogosphering lawyer and ask them.

Otherwise, I found the Oregonian article pretty thin on the actual facts, and thin on answering interesting questions such as the age of consent.

I did find your analysis weak as well:

The "boys" who were not under the legal age of consent testified that she instigated the affair. [A] But how credible is that? [B] Why would she have even reported the incident if it had been consensual? [C] Evidently she finally talked about this incidence with her friends who talked her into going to the police.

[C] answers [B]
[A] cannot be answered unless you were a witness to everyone's testimony and the record. You cannot begin to answer [A]. Neither can I. The judge and the DA can answer [A], and they found that she was not credible.

Since my experience of both men and women are that they are rational actors, and that both desire sexual satisfaction, and that both can be engaged in "risk taking behaviors", I find it plausible that the woman did in fact instigate the encounter.

I don't know what happened. As someone at Drum's site mentioned, most likely the record has been sealed due to the age problems.

I don't understand your 100% confidence in your being outrage based on the limited information available.

Posted by: J Pierpont Flathead at December 5, 2005 06:27 AM

Don't know Oregon law but in most states under 18 is nonconsensual up to a point. IF the victim is within 4 years of the age of the other person, it is not considered statutory rape in West Virginia, thus a girl 17 and a boy 18 can have sex.
As to the rest, why do we assume women don't lie?
The Kobe Bryant case comes to mind.
There is no "backlash against women," just the usual "innocent until proven guiulty" thing we've tried for the last couple of centuries.
You want it the other way, move to France where Napoleonic law presumes guilt.

Posted by: donsurber at December 5, 2005 09:20 AM

>>a conviction that if held up could lead to 30 days in jail and a fine upto $1250.>>

It's much worse than that. As commenters on other threads have pointed out, it will also make her essentially unrapeable from a legal standpoint: this is admissible evidence if she is ever raped and presses charges in the future. What jury would convict with an accuser convicted of filing a false rape accusation?

Flathead, the friends who convinced her to go to the police became star witnesses in the case against her; they testified that she didn't seem traumatized. They convince her to make the accusation and then turn around and swear that it's false. Does that make sense to you? Moreover, no one's saying these friends convinced her that she had been raped, only that she should press charges for rape.

>>I don't know what happened. As someone at Drum's site mentioned, most likely the record has been sealed due to the age problems.>>

You know that the court found that it didn't know enough about the encounter to find the defendants guilty of rape. You also know that the only evidence the judge had against her was that she didn't act like a typical rape victim--which is untrue--that there were "inconsistencies" between the accounts given by plaintiff and defendants, and that the boys "seemed more credible." That's the only evidence the three-page newspaper article mentions. Given that this evidence is really flimsy, and that the judge would probably want to seem as reasonable as possible, can you think of any reason why good evidence, sufficient evidence, would not find its way into any account?

>>As to the rest, why do we assume women don't lie?>>

Oh, look, an ugly little strawman! No one here is assuming that women never lie. We are assuming, based on a fairly detailed account, that there isn't enough evidence to prove that _this woman_ lied. We are assuming that she should therefore not have been convicted of filing a false accusation of rape. In other words, if there's not enough evidence to prove they raped her, there's certainly not enough evidence to prove she was lying.

Posted by: piny at December 5, 2005 05:22 PM