Sex Crimes

Rape in International Conflict

Stories like this are far too common, but CNN recently covered the ongoing sexual violence in the Congo:

Eve Ensler can't find the right words to describe what she's seen and heard.

"Obscene. Horrible. Out of control...." The activist tosses out a cluster of angry words, trying to describe what is, in some ways, indescribable.

She talks about a woman being gang-raped by 15 soldiers. Some violated with sticks and knives. Cannibalism. She has returned from the Democratic Republic of the Congo, where thousands of women and girls have been systematically raped during a 10-year war that some say has cost more lives than any other war since World War II.

"It's 'femicide,' " Ensler says, using another word to describe the treatment of Congolese women. "It's the systematic destruction of women. It's an economic war fought on the bodies of women. It's the destruction of the Congolese people and life itself."

Supreme Court Denies Cert. for Case Involving Ban of "Rape"

The U.S. Supreme Court denied certiorari in a case (previously discussed here and here) involving a Nebraska judge who banned the word 'rape' in a criminal trial for sexual assault. The victim later sued the judge and appealed to the 8th Circuit Court of Appeals, who denied her claim. From The Associated Press:

Lawyers for Tory Bowen had argued that Lancaster County District Judge Jeffre Cheuvront violated their client's constitutional rights by barring her from using such words as "rape kit" and "victim" during her testimony in the trial. The judge said he banned the language because was concerned about the accused's right to a fair trial.

While restricting Bowen's testimony, Cheuvront allowed attorneys for Pamir Safi to use such words as "sex" and "intercourse" to describe the encounter between Safi and Bowen.

Bowen says Safi sexually assaulted her in October 2004 while she was too intoxicated to give consent. Safi maintains the sex was consensual.

The Associated Press usually does not identify accusers in sexual assault cases, but Bowen has allowed her name to be used publicly because of the issue over the judge's language restrictions.

Bowen attorney Wendy Murphy said in an e-mail Monday that she was disappointed but not surprised by the high court's decision.

"Tory Bowen and this case will forever be known as the beginning of reform on this important issue, because we laid the groundwork for the inevitable day when judges will stop making such ridiculous rulings," Murphy said.

A mistrial was declared in Safi's first trial in November 2006 when the jury deadlocked. Bowen said afterward that the judge's ban had a negative effect on her testimony, causing her to pause to ensure her words didn't violate the order.

Cheuvront declared a second mistrial in July 2007 during jury selection, citing news coverage and public protests on Bowen's behalf.

The decision to deny cert. isn't at all surprising given the procedural disposition of the case. Because the victim, and not the defendant, was denied the ability to say "rape" during the trial, the case is not the result of a criminal appeal. Instead, the case arose from a subsequent civil suit by Bowen against the judge. That sort of litigation is just doomed to fail. Perhaps, if proposals like that of Paul Cassell, are enacted, victims might have a greater role in the criminal process. However, as of now, concerns like those of Bowen are largely unable to be properly litigated.

LAPD Failed to Test DNA for Sex Assualt Cases On Time

An audit of the Los Angeles Police Department released Monday has revealed that as many as 200 possible sex assault cases have not been prosecuted because police officials did not meet the legal deadlines to test DNA forensic evidence.  From The Los Angeles Times:

As many as 200 potential sexual assault cases have gone without prosecution because Los Angeles police officials failed to meet legal deadlines to test DNA evidence that might have identified a suspect, according to a city audit released Monday.

The audit was the second critical assessment of LAPD forensic work in as many weeks. A confidential report obtained by The Times last week disclosed shoddy work by the department's fingerprint experts that had falsely implicated people in crimes.

Chief William J. Bratton said late Monday that he had set up a task force to examine the Scientific Investigations Division, which oversees the department's fingerprint analysis unit and DNA lab. He said he had asked the FBI and Los Angeles County district attorney's office to join the task force probe.

According to the audit by City Controller Laura Chick's office, the LAPD has a backlog of 7,000 sexual assault test kits that have not been examined. Of those cases, 217 are beyond the 10-year statute in which to prosecute the crimes, according to the report.

Each kit, officials say, contains a potential genetic road map to the perpetrator of a crime.

The LAPD has been repeatedly criticized for its huge backlog of untested DNA evidence, but officials have said that they lacked the money to move faster on the cases. Bratton said his department needed more staff and at least $7 million to address the backlog.

Bratton said he was so frustrated that he turned to the Los Angeles Police Foundation to raise private funds. So far $1.5 million has been raised.

Now, Bratton said, the unit that tests the kits is working at maximum capacity and is able to keep up only with the new cases and ones that must be processed because the statute of limitations is close to expiring.

Chick's report found that the LAPD's logjam continued to worsen even though the department had received nearly $4 million in grants in recent years to address the problem.

Auditors also found that the LAPD was failing to comply with a state law that requires sexual assault victims to be notified by the police if their rape kits are not tested within a two-year period. Bratton said such failures would be among the issues that the task force would take up. If authorities had made those notifications the statute of limitations would have been extended.

abyss2hope calls for a repeal of the California statute of limitations in the cases because of the delay.

Connecticut and Propensity Evidence

apublicdefender has a long, well researched post about propensity evidence in a Connecticut rape case. The post is difficult to excerpt, so you should definitely check out the whole thing. He is a small snippet:

So basically, once a rapist always a rapist. In fact, the Court blatantly states that it agrees that uncharged misconduct doesn’t fit the “true scheme” requirement of admissibility. However, the Court has no qualms about buying into the sex offender hysteria  by stating that since these are sex crimes, however, it is always better to let that evidence in, even if there is no rational connection between the uncharged misconduct and the conduct at issue. I doubt we will ever see a case again where uncharged sexual misconduct is deemed inadmissible. As if sex assault convictions weren’t easy enough for the State to obtain.

New Article about Kennedy v. Louisiana

Bidish Sarma has written a short article at the Yale Journal Pocket Part about the legacy of the Court's decision in Kennedy v. Louisiana. Sarma was involved in the litigation, so the article comes from an interesting perspective. I think the article is a valuable contribution to defining what Kennedy will stand for in future cases. On that point, this is what Sarma had to say:

The decision’s lasting legacy shall emerge from the Court’s “independent judgment” analysis. The majority stated that it struck down Louisiana’s law because of “both [the] consensus and our own independent judgment.” In his statement respecting denial of rehearing, Justice Scalia contended that the majority opinion turned only on the independent judgment of the Court; “there is no reason to believe that absence of a national consensus would provoke second thoughts.”

The Court’s response to the State’s petition may support Scalia’s conclusion. The petition squarely asked whether the Court’s independent judgment could serve as a stand-alone justification. The majority tweaked its opinion with a footnote, but did not address this question. This silence bolsters Scalia’s claim, despite the majority’s insistence that the national consensus “is entitled to great weight.”

Anti-death penalty advocates are now surely encouraged to pressure the Court to declare inhumane laws unconstitutional without the typical inquiry into the number of state legislatures that have abandoned the practice. The opportunity to appeal to the Court’s independent judgment provides great hope for those seeking to defeat the death penalty. Indeed, as Justice Stevens’ concurring opinion in Baze v. Rees foreshadows, the moment a plurality of the Court will find the arbitrary application of the death penalty cruel and unusual—without tallying state laws—is now foreseeable.

I am not sure I agree with Sarma on this point. I think the "independent judgment" analysis is really the same as the subjective component applied in prior cases. I think Sarma may be giving too much credence to Scalia's characterization of the majority opinion. To my mind, this decision is a logical extension of the objective analysis that has been used in every case since Coker.

To be fair, though, I am sure Sarma would have a lot to say in response to my argument. While I'm generally a fan of the online law review format, Yale's article limitations sometimes limit the author's ability to make sophisticated legal argument. The word cap, I believe, is 1,500 words. By the time an author sets up the argument, it is difficult to fully analyze the legal issues involved. So, my criticism should be taken with a grain of salt as I have the luxury of no length limitations, no need to explain the background, and no editors breathing down my neck. So, I recommend checking out Sarma's piece for yourself.

Sentencing Law & Policy is also covering the article here.

Rape Victim Devotes Herself to Science After Misidentifying Her Attacker

A Texas rape victim, who discovered that she misidentified her attacker nine years after his death in prison, has decided to study the science of human memory. From The Dallas Morning News:

Michele Mallin said she was "100 percent sure" when she identified Timothy Brian Cole as the man who raped her.

Her resolve never wavered, Ms. Mallin said, until she learned last May that DNA testing had invalidated her 1985 identification. The revelation came nearly nine years after Mr. Cole died at 39 in a Texas prison from an asthma attack.

"I was more shocked than I think I had ever been in my entire life," Ms. Mallin said during a recent lawyers workshop in Fort Worth

More than two decades after she quit Texas Tech University because of the rape in Lubbock, Ms. Mallin, 43, is trying to educate herself on the science of human memory and what it can tell her about the tenuousness of eyewitness identifications.

She is learning what some social psychologists have preached for more than a century: A crime victim's memory is fleeting and often faulty.

The problem starts with how the mind commits faces to memory. Researchers compare the process to piecing together the visual images a camera would capture.

"It's really a process of construction and reconstruction," said Dr. Elizabeth Loftus, a leading memory researcher at the University of California at Irvine.

The human eye collects information in what Dr. Loftus, a psychology professor, called "fixations" that last a fraction of a second. "Even though it feels to us like a movie camera, actually we are taking in the world in a series of eye fixations," she said.

Memory of those original images is subject "not only to decay, but to contamination and distortion" from outside influences, Dr. Loftus said. She gave the example of a witness being fed false information about the person who was identified.

"Then you're going to think that's the guy, rehearse the face in your story, and pretty soon you can develop a strong memory that that's the person even though it isn't," she said.

The memory process works well when someone is shown a face repeatedly. But when the exposure is episodic, "we end up with the gist" of a person's looks, said Dr. Gary Wells, a nationally known expert on eyewitness testimony and a professor of psychology at Iowa State University.

H/T: How Appealing.

The Lessons of the Iowa Sex Assault Scandal

I've blogged before about the sexual assault at my alma mater by former football players. abyss2hope has an interesting post about the policy lessons we can draw from the incident:

To see what can go wrong when a university has a flawed sexual assault policy, just look at the University of Iowa's handling of a report of rape by a student athlete. The findings of an independent review led to the firing of Phillip Jones, the vice president of student services, and Marcus Mills, the university's general counsel....

Too often when a rape case has been mishandled this way, the statement that all policies were followed would be the end of the college's response. When that happens then the college is promising only more of the same.

The first report by Tom Evans issued in June essentially did just that. But a month later the victim's family's letters were made public and about a week after that the U of I regents authorized a special counsel to investigate the university's response and actions....

The first weeks of college are the most dangerous for both first and second year students. In the SAFER statements about what makes a good sexual assault policy, prevention is a key element.

The problem of sexual violence is compounded if students use alcohol or other drugs as a tool used to suppress another student's ability to say no or to suppress a student's ability to testify with certainty about what was done to her/him when incapacitated....

I don't know much about the training programs the University of Iowa has offered. When I went there, I never lived in the dorms and never was part of the Greek system. Given my status, I didn't receive any preventive training regarding alcohol and sexual violence. That was a little while ago, but I wonder if most big universities fail to include persons outside of the dorm environment.

Army Seeks to Lower Incidents of Sexual Assault

The U.S. Army is launching a new effort to decrease incidents of sexual assault.  The move is comes in response to new data showing disparate sexual assaults in the Army relative to the other military branches. From The Wall Street Journal:

The Army is launching a new war against an old foe: the lingering problem of sexual violence within the military.

Last month, 80 high-ranking generals gathered at a hotel in Alexandria, Va., for a mandatory, weeklong summit devoted to combating the crime. In a Sept. 22 essay in Army Times, Army Secretary Pete Geren and Gen. George Casey, the service's chief of staff, said it was "repugnant to everything a soldier stands for" and promised a "zero tolerance" policy for harassment or assault.

The approach comes in direct response to a batch of new Pentagon data indicating that 2.6 soldiers per 1,000 reported a sexual assault last year. In the Marine Corps and Navy, it was 1.1 per 1,000; in the Air Force, 1.6 per 1,000. The Army began tracking the numbers only in 2006, and officials say they don't have enough comparable data to determine whether the problem is getting worse over time.

Army leaders hope a major change in their strategy for combating these acts of violence can bring the numbers down. The service has long focused on dealing with the aftermath of an assault. Now it will try to prevent the crime from occurring in the first place.

The centerpiece of the new effort -- known as "I AM Strong," with the I AM standing for "intervene, act, motivate" -- is a call for soldiers to confront peers who are abusing alcohol or exhibiting other possible harbingers of an assault, such as making suggestive comments. The Army also wants soldiers to alert higher-ranking personnel if their colleagues' behavior doesn't improve.

"We're trying to change the culture," said Carolyn Collins, the program manager for the Army's Sexual Assault Prevention and Response Program. "We want soldiers to look for red flags and take steps to address them before they turn into something serious."

The military has been wrestling with the problem for decades. But some female veterans say the Army's macho culture has enabled soldiers to behave in ways that would be unacceptable in the civilian world.

"We've heard all of this talk before, but nothing ever seems to change," said Wanda Story, the national commander of the United Female Veterans of America, an advocacy group. Ms. Story said she was raped twice by fellow soldiers, in 1985 and 1986. She said she continues to be contacted by young veterans who say they were assaulted at the hands of other military personnel.

Just last week, Justice Scalia in his Kennedy rehearing statement seemingly dismissed the idea that the military might have special issues in dealing with sexual violence (albeit against child victims). I think it goes without saying that the military has unique concerns in this area and it is good that leaders are taking efforts to rectify the growing problem.

Kennedy Rehearing Roundup

To finally put the blogger's nail in the Kennedy v. Louisiana coffin, here are some interesting links about rehearing (including a couple that were actually posted before the Court voted against rehearing):

Death Penalty for Child Rape: How to Measure Consensus?
Kennedy (lack of) rehearing wrap-up and the future of criminal justice federalism
Deep thoughts about Kennedy while rehearing motion pending
A Westerbergian analysis of Kennedy v. Louisiana
Instant evolution's gonna get you
Supreme Court Won't Change Decision Preventing Executions for Child Rape
Case Closed (HT: Crime & Consequences)
Analysis: The death penalty calculus is unchanged

The final update to the Kennedy v. Louisiana Resource Page should be up in the next week.

A New Error in Kennedy

CAAFlog has the details on an error (albeit a less significant one) in the majority's statement regarding rehearing in Kennedy:

I'm not sure what the word "final" means in that sentence (does he mean "approved"?). But regardless of what "final" means, the sentence is wrong. There are currently only five individuals sentenced to death under the UCMJ.

It's apparent why Justice Kennedy got that wrong -- he cites NAACP LDF's authoritative Death Row U.S.A. as the source of his numbers. But on page 1 of the Winter 2008 Death Row U.S.A. issue, the words, "As of January 1, 2008" appear in huge type. Had Justice Kennedy written that as of January 1, 2008, there were six individuals subject to a sentence of death under the UCMJ, he would have been right. But as we know, since January 1, 2008, the Navy-Marine Corps Court of Criminal Appeals set aside LCpl Wade Walker's death sentence, a decision that is now final (though he remains vulnerable to being resentenced to death). United States v. Walker, 66 M.J. 721, 757 (N-M. Ct. Crim. App. 2008) ("The sentence is set aside and a rehearing on sentence is authorized."). So when Justice Kennedy writes that there are six individuals "now" subject to military death sentences, he is wrong.

I have to say that I was shocked that the Court didn't make any mention of Col. Sullivan and his discovery of the original error. That a blogger caused the Court to reconsider one of its opinions is unprecedented. It's a crime that the Court didn't see fit to note that fact.