Sex Crimes

A Military Trial for Rape with a Twist

Out.com published a feature concerning the trial of Capt. Devery Lane Taylor based upon allegations that he raped a male soldier. The article describes the difficulties and oddities associated with such prosecutions in a "Don't Ask, Don't Tell," military. Among the truly bizarre parts of the story was this segment which included an excerpt from the trial transcript:

Without being able to out anyone as gay officially, in Taylor’s trial government and defense lawyers both resorted to stereotyped circumstantial evidence, pointing out that a soldier who swears to his heterosexuality also trims his pubes or wears a nipple ring or sometimes puts his arm around gay friends. “You’ll hear from him, under oath, that he trims up his pubic hair. He’s a male, and he’s in his 30s, and he trims himself up. That’s how he normally does it,” a lawyer told the jury at one point, talking about one of the accusers. At another, when an accuser said, “I mean, he was draping himself on me. He was constantly trying to come on to me. He was always leaning on me. He always wants to be beside me,” an attorney followed up with “And that is not unusual in the gay community, is it?” Captain Taylor was even asked, “Have you ever received any theater training?” And a line of questioning on the subject of nipple rings produced the following exchange:

Q. He wears a nipple ring?

A. He showed it to me.

Q. He admits that he’s got a nipple ring?

A. Oh, yeah. He showed it to me.

Q. Do you know any straight guys that wear nipple rings?

A. No, I don’t. That’s a gay thing, as far as I know.

So, there you have it. I just don't know what else to say.

Sex Offender Wins Lottery Held by Rape Support Group

A registered sex offender has won a $500,000 lottery sponsored by a non-profit group that helps rape victims.  The man was thrice convicted of sexually abusing minors. From USA Today:

When a non-profit that helps rape victims decided to hold a lottery in Alaska, there's no way that they could have known that the $500,000 jackpot would go to a registered sex offender.

But that's just what happened when they pulled the winning ticket Friday night in the Standing Together Against Rape raffle.

"He said he was going to buy a house and said he was going to donate part of it to God, and you know charity," Abe Spicola, the owner of Lucky Times Pull Tabs, a co-sponsor of the statewide lottery, tells the Anchorage Daily News.

Some Sex Crime Sentences

Sentencing Law & Policy has three posts about three recent sex crimes sentences. In Another notable child porn sentencing decision, Berman points to a notable Judge Pratt opinion in a child pornography case. In An honest (and honorable?) gendered sentencing outcome in adult-teen sex case, there is a story of a woman that was given a lighter sentence in New Hampshire for sexual assault of a boy because of the boy's "raging hormones." And in Is there a law student sentencing discount for federal child porn charges?, an apparent sentencing break was given to a law student. Shouldn't the legally trained be held to a higher standard?

Berman finishes the last post with a concern that I strongly concur with: "As I have stressed in a number of prior posts, anyone seriously concerned about federal sentencing disparities should look very closely at federal child porn cases.  And, critically, this look must focus closely on the operation of prosecutorial discretion, which often seems to have an even bigger impact in these cases than judicial discretion."

British Father Rapes Daughters Over 27 Years

A British man has been accused of raping two of his daughters over 27 years, resulting in nineteen pregnancies and nine births.  The case appears similar to an Austrian case, which was previously discussed here. From CNN:

A British man was jailed Tuesday for raping two of his daughters and fathering nine children over 27 years, a case with echoes of Austria's Josef Fritzl.

The two daughters were made pregnant 19 times; there were nine births, five miscarriages and five terminations. Seven of the children are alive but suffer genetic deformities.

The father, who cannot be named for legal reasons banning the identification of his victims and the surviving children, pleaded guilty Tuesday at Sheffield Crown Court, northern England, and was sentenced to serve 25 life sentences to run concurrently.

The judge said the minimum term the 56-year-old rapist should serve in jail should be 19½ years.

South Yorkshire Police Chief Superintendent Simon Torr said, "The victims of these terrible crimes have asked me to state the following: 'His detention in prison brings us only the knowledge that he cannot physically touch us again. The suffering he has caused will continue for many years, and we must now concentrate our thoughts on finding the strength to rebuild our lives.' "

Speaking for the police, Torr added, "The main concern ... is for those who have been so badly affected: the victims who have suffered a terrible ordeal. We will continue to offer them our full support to try and help them get on with their lives.

"As far as the sentence goes, we are satisfied that this offender has received the strongest possible punishment for his heinous crimes. Now we need to ensure continuing support for those who have suffered as a result of his actions."

The daughters first told police about their ordeal in June, but the abuse dated to 1981.

It emerged that in 1998 one daughter rang Childline, a charity to help abused kids, and asked for assurances about being able to keep her children if she came forward. When Childline could not make that guarantee, the daughter did nothing more to raise her plight.

The UK's Press Association reported that the rapes began in 1981 with daily attacks and that for long periods, they would be raped up to three times a week, and the assaults would continue through pregnancies. Their only reprieve came after they had just given birth or when they were ill because of the abuse.

If either daughter tried to refuse their father's attacks, they would be punched, kicked and or held to the flames of a gas fire, burning their eyes and arms, PA reported.

Despite visiting hospitals and meeting with social workers over the 27 years of abuse, no investigation was launched into the family.

The case comes in the wake of the death of a baby, known only as Baby P, which has dominated headlines in Britain. The baby endured horrendous torture and died despite being on the local authority's child protection register.

In Austria this year, Josef Fritzl was arrested, accused of keeping his daughter in a basement dungeon and fathering seven children through the rapes.

International Day for the Elimination of Violence Against Women

The United Nations has designated today, November 25, International Day for the Elimination of Violence Against Women. A quick Google News search about the day yields some strange results. It seems like almost all of the media coverage of the event is from international news sources with almost none in the United States. As an example of international coverage, here is a story from Rwanda:

Rape as a weapon of war is the most notorious and brutal way in which conflict impacts on women.

As the world marks International Day for the Elimination of Violence against Women today, it is important to realise that violence against women is no longer just a violation of women's rights but also as a crime of genocide.

In a landmark case, Jean Paul Akayesu, a former bourgmestre of Taba commune was charged with rape among other crimes of genocide, which he allegedly committed in the Taba commune. He was the bourgmestre at the time of the alleged acts and was found guilty. The ICTR sentenced him to life imprisonment.

The ICTR judges not only applied the 1948 Convention for the first time but also enriched its definition by arguing that rape, when perpetrated in a certain manner, could constitute as a criminal act within the wider genocide scheme.

It underscored the fact that rape and sexual violence may constitute genocide just as any other act of serious bodily or mental harm, as-long-as such acts were committed with the intent to destroy a particular group targeted.

Feminist Law Professors has an interesting post about the day highlighting some of the history involved.

Sex Crimes Prosecutor Charged With Rape

A California prosecutor assigned to a sex crimes unit has been charged and arraigned for an alleged rape at the home of a fellow district attorney.  From the ABA Journal:

Michael Gressett, 51, who is a 20-year prosecutor assigned to the sex crimes unit of the Contra Costa County, Calif., district attorney's office, has been charged and arraigned in the alleged May 8 daytime rape at Gressett's home of a fellow deputy district attorney, according to news accounts.

Gressett pleaded not guilty this morning in Contra Costa County Superior Court to 12 charges that included rape, sodomy and oral copulation[.]

If he is convicted on all counts, he could be sentenced to as much as life in prison, according to Peter Flores, a deputy state attorney general. The state AG's office is prosecuting the case because the defendant and his accuser both work for the county prosecutor's office.

Gressett, who is now on paid administrative leave, was arrested on Oct. 2 by Martinez police, a week after the department says it learned of the alleged May 8 crimes. He was released on $1 million bail at that time.

Although Flores wouldn't discuss why police apparently only then learned of the situation months earlier, according to the Chronicle, another newspaper reports that "(a)ccording to police, officials with the district attorney's office learned of the allegation much earlier. The reason for the delay remains unclear[.]"

Attorney Michael Cardoza, who represents Gressett, "called the accusation 'bogus' and said this week that Gressett and his accuser were in a romantic relationship," the Contra Costa newspaper writes. "He declined to describe the extent of the relationship, or how it led to a rape allegation."

HLR Publishes Kennedy Case Note

Harvard Law Review's latest issue is now available online. The issue includes a nice case note on Kennedy v. Louisiana.  From the summary:

... Writing for the Court, Justice Kennedy held "that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth" Amendment's proscription of cruel and unusual punishment, basing the ruling "both on consensus and the Court's own independent judgment." ... The Court also rejected Louisiana's broader argument that the few states that had capital rape statutes better represented the current standards of society because they represented "a consistent direction of change in support of the death penalty for child rape," saying that consistent change had not been proven and might not make a difference anyway. ... The Kennedy Court held that capital punishment is disproportionate for the crime of child rape, even though the victim " must endure years of long anguish" - no matter how terrible a rape, it is not murder. ... "These interpretations," said Justice Alito, "have posed a very high hurdle for state legislatures considering the passage of new laws permitting the death penalty for the rape of a child." ... It is troubling that this second part of the Court's Eighth Amendment test rests on even less rigorous methods to define evolving standards of decency than the statute-counting rubric used to determine the national consensus. ... A presumption of constitutionality would allow states to continue to change their statutes during periods of apparent disagreement as to a national consensus, and require the Court to wait to see if a consensus truly emerges before declaring a standard of decency to exist by forcing it into existence.

Former Killer, Rapist Gets Life Without Parole

A California man who committed murder in the 1970s, was eventually let out, committed rape in the 1990s, got out, and then stabbed his wife to death and wounded two others, has been sentenced to life without parole. From the San Francisco Chronicle:

A convicted murderer gave a rambling discourse about guns and violence in Oakland before being sentenced Wednesday to life in prison without the possibility of parole for fatally stabbing his wife and slashing two of her relatives on his 55th birthday last year.

Jesus Jihad said he stabbed his wife of two years, Aisha Hendricks, 35, numerous times July 8, 2007, at the apartment they shared on 92nd Avenue in East Oakland because Hendricks' sister had threatened him with a gun earlier that day. Police have said Jihad laughed during the attack.

"It shouldn't be no surprise that it ended in violence," Jihad said in an Oakland courtroom. "Jihad is going to prison. The problem in Oakland is guns and violence. So this is the end result."

Judge Leo Dorado of Alameda County Superior Court sentenced Jihad to life in prison without the possibility of parole.

An Alameda County jury convicted Jihad last month of first-degree murder with special circumstances and two counts of assault with a deadly weapon for stabbing Hendricks' sister, Emma Bowers, and his wife's then-15-year-old son, D'Anthony Holmes, when the boy came to his mother's aid.

Jihad made his comments after a letter from Holmes was read in court. In the letter, the teenager said he wanted to know why his mother had been killed.

"I know I will have to eventually come to terms with all of this, but for now, I really need to know how, if someone can love my mom so much - how could they let an argument lead to murder?" Holmes wrote.

Prosecutor Casey Bates told the court, "None of this makes sense. All we can do is to try to pick up the pieces. I regret that many pieces will remain on the ground. No sentence will make this family whole again."

Jihad, whose given name is Jesse Crisp, served as his own attorney during the trial. He also took the stand, admitting that he had killed his wife but saying he had meant to teach her family a lesson after Bowers threatened him with a gun.

After Jihad stabbed his wife, he went downstairs to Bowers' apartment and attacked her, authorities said. Jihad then returned to stabbing his wife, who had emerged from their apartment. She fell down some stairs, and Jihad "stood guard over her" as police and paramedics responded, Bates said.

Jihad already had a record of violent crime. He was convicted of murder in 1974 for shooting a sailor in Alameda and had a rape conviction stemming from a 1993 attack in Berkeley.

H/T: Crime and Consequences.

Prison Rape Prosecution

An interesting new paper has appeared on SSRN entitled: Prosecuting Sexual Violence in Correctional Settings: Examining Prosecutors' Perceptions by Brenda V. Smith. Here is the abstract:

The Prison Rape Elimination Act of 2003 (PREA) is the first piece of federal legislation, which expressly and exclusively addresses sexual abuse of persons in custody. Notwithstanding passage of the Act, there is clear belief, echoed by correctional leaders, that prosecutors are reluctant at best, and unwilling at worst, to prosecute cases of sexual violence in correctional settings. In order to gather information on prosecutor interest in and capacity to prosecute these cases, the National Institute of Corrections Project on Addressing Prison Rape at the Washington College of Law the (the NIC/WCL Project) collected data from state and federal prosecutors.

This article draws on that research and data to examine the perception that prosecutors are unwilling to prosecute cases of sexual violence in custody, discusses barriers to prosecution identified by prosecutors regarding investigating and prosecuting allegations of sexual abuse of persons under correctional supervision, and recommends tools to overcome those barriers.

H/T: Sentencing Law and Policy.

Attempted Rape and Self Defense

Eugene Volokh posts about an interesting case with an unsatisfactory resolution:

The trouble is that it's of course impossible to tell from the news accounts — at least the ones I've seen — whether this was self-defense, or even whether there's proof beyond a reasonable doubt that it wasn't self-defense (the rule in Washington and lots of other states). If the girl really "could not recall the incident," then it's hard to tell how much to credit her account that "[Pena] wouldn't let her go until they'd had sex." She also isn't likely to be the most credible witness: She apparently has a history of "convictions for assault, theft, malicious mischief and stealing a car," and while even convicted criminals have a right to defend themselves, jurors may naturally be skeptical of their claims (especially when some of the crimes, such as theft, are evidence of dishonesty).

Also, it's not completely clear what her (paraphrased) statement that "He wouldn't let her go until they'd had sex" means. If it means that he was essentially trying to rape her by physically restraining her, or credibly threatening her with violence, and that she killed him to prevent or interrupt the rape, then that would be self-defense (if her story is believed). But if it means that he did rape her, and then let her go, and she killed him because of what he had done to her, then that would indeed be voluntary manslaughter: An intentional homicide that wasn't justified by the need to defend against a crime (since the crime was over), but that is a lesser crime than murder because of the provocation created by the just-completed crime. It may well be that the facts are clearer than the somewhat ambiguous statement; but the press accounts I saw did not make those facts clear.

So this, I think, helps show the inevitable problems that will sometimes arise even with a law of self-defense that is at bottom fairly sound. The problem is often not in the law, but in figuring out the facts, and in predicting how a jury will react to the contested claim of facts (especially when the defendant was drunk, or when the defendant's criminal record makes the defendant a less than normally credible witness). And in such a situation, it's not uncommon for the defense and the prosecution to reach a plea agreement to avoid the inevitable uncertainties of trial.

I would add that the problem isn't unique to self-defense cases. Any time that a prostitute alleges rape, the accusations are viewed with suspicion. When someone with a criminal history of that length and substance reports a rape, it is doubtful that charges will be pressed. So, the application of a similar conclusion in a self-defense fact pattern is unsurprising.