Hunh?

[pecunium]

I don't know quite what to make of this.

The recent flap about the rape case in Illinois, where the judge wanted to force the complaintant to watch a videotape of the event; which she says she has no memory of, because she was blackout drunk, because the defense claimed it would jog her memory.

Ok. I think the odds of it being probative were small, but if the judge decided the arguments were persuasive, and so allowed the thing, then she was compelled to watch.

So far so good.

But in the various too and fro-ing I saw lots of people making the arguments that the forcing her to watch the tape wasn't just something which a judge might acede to, but was in fact imperative.

One person argued that it never should have gone to trail, but she ought to have had counselling instead.

I waded into a few of those, with some snark, and what I know of procedure and evidence.

Two of those the person said they agreed with me, as though I hadn't just said they were wrong, one of them (a lawyer, who confessed he didn't really know anything about the case, but when did that stop a good argument...?) said I was right, on everything (even the legal stuff, which while I might be more familiar than most layman, it's not my profession, just an interest).

I don't know what I'm doing... if my snark is dead, or I have (at least on this issue) managed to be both so smooth, and persuasive, that the people I am ripping into not only don't care, but they don't notice.

The real annoyance is I don't think they've really changed their mind (esp. the one who thinks that there was a rape, but that prosecuting it would be bad) but I can't see any way to really go back and address the things I still think them wrong about.

Comments

[soldiergrrrl.livejournal.com]

Got a link? It's really early here and I'm not awake enough to know what the heck you're talking about.

[ourika.livejournal.com]

I feel better; I was just about to ask him the same thing.

[pecunium.livejournal.com]

Ok, I the fact of the matter is, for all that I care about the case, I didn't want to seem as if I was beating the drum for my persuasiveness.

But here's a link to the story.

Details

[ourika.livejournal.com]

I don't understand why she would have to watch it? I can see why they'd show it to the jury, but why force her to watch it (let alone put her in jail for refusing)?

[ourika.livejournal.com]

I'm also confused - if it was consensual, why did they mark her legs up with vulgar words? The only time I've heard of things like that happening were rape cases.

[pecunium.livejournal.com]

The case goes like this (as I understand it).

She goes to the party.

Gets drunk.

Has some sort of physical interaction with one boy, after this another boy tapes her having sex with a second boy... somewhere in this she passes out. I think a third boy then has sex with her.

After that they write on her.

The one kid (with the camera) pled guilty to child porn (because she was under 18... had she been 17 that would still have applied; Rob Lowe got off lucky, the 16 year old he was taped having sex with was above the age of consent, but had he made the tape [which I don't recall the details of]he could have been nailed for child-porn. If she made the tape, then no, but that's the only loophole, and some have tried to prosecute people for making tapes of themselves, when they were minors, but I digress).

One kid has fled the country.

One is on trial (as I said, the third I am not sure of).

There is no point on the tape which has her giving consent. The defense claims she did give consent, at least tacitly, before the tape began to roll (this might not matter, since a different part of the Illinois statute says that someone as drunk as she was, de facto, can't give consent, but that's not the issue here).

The defense tried to say that she might recall her actual consent (or her state of mind) if she saw the tape, and the actual events were refreshed in her mind. They argue she did give consent, and want to use some "shock therapy" to jar her memory.

TK

[ourika.livejournal.com]

That's horribly ridiculous. "Shock therapy" so to speak by a lawyer? Funny, I thought that psychiatrists were supposed to do therapy, not the prosecution.

[pecunium.livejournal.com]

The term was mine, by way of summing up the general argument.

The defense is doing this.

If you ask me the point was to show the early part of the tape, and so make her look as if she were of loose morals, and so, "of course," gave consent/was of such nature that she, were she sober, she wouldn't have refused.

TK

[ourika.livejournal.com]

Whoops, I mixed up the sides.

Because, of course, a woman of loose morals automatically consents to sex with anyone and thus can't be raped *rolls eyes*

I really, really hate reactions to rape cases.

[pecunium.livejournal.com]

Ok, I the fact of the matter is, for all that I care about the case, I didn't want to seem as if I was beating the drum for my persuasiveness.

But here's a link to the story.

Details

[moropus.livejournal.com]

I understand the girl was only 16, in which case it's rape whether she consented or not and those who are passed out can't consent.

I think she should watch it in private, if at all, and everyone in the peanut gallery should be kicked out when the jury sees it.

[pecunium.livejournal.com]

There are two charges to address, and forcible rape has different punishments from statutory.

From a deterrent point of view the forcible rape is a better charge, because anyone can commit statutory, and it need not have intent.

Illinois has an age of consent of 17. I don't know if it has windows of exemption (where one of the individuals is a minor and the other isn't, but the ages are so close that consent no longer becomes an issue.

If the tape had been allowed it would surely have been to a closed court, but the heart of the issue was the defense saying they needed to examine herm under direct; with the tape being used as an aide memoire.

If she consented, the charge of forcible rape would have to be dismissed, and a new action, for statutory, initiated.

Looking at the specific statutes for Illinois, there is a subset of the law which grants more protections to those who are still minors, but able to consent (those persons who are 17, if that minor was in a position where the offender had a position of authority. Interestingly [perhaps because of the age of consent in Ill., the person in authority can be as young as 17).

Sec. 12-13. Criminal Sexual Assault.

(a) The accused commits criminal sexual assault if he or she:

(1) commits an act of sexual penetration by the use of force or threat of force; or
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or
(3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member; or
(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in relation to the victim.

TK

[moropus.livejournal.com]

What I really mean is that if the defense really must examine her about the tape, she whould be allowed to watch in private and then give testimony. Personally, I think they are just being losers and those passed out cannot give consent. And if one does consent and then passes out, the consent is nil and medical advice should be sought. I don't believe one who is too drunk or drugged to legally drive should be able to give consent. And I'm enough of a prude to wonder why her parents didn't know where she was.

[pecunium.livejournal.com]

I don't think, if the tape is considered probative, she can watch in in provate, and answer questions later.

The point of the excersize is to challege what she's saying now, with what she apppears to be doing then; at least that's the surface argument.

I think the real point was to present her as a slattern to the jury and get them to nullify the carge by way of moral disgust. Which is why I think the judge was wrong, and that it was more predjucial than any positive value it might have to the defense's case might have provided.

It seems there is some point of Illinois law which supports that, as the reports on the reversal of the judges opinion are based on statutes relating to aspects of privacy for complaintants in rape cases.

TK.