I am trying my third "acquaintance rape" case of the year. Is there any victim jurors subject to greater scrutiny than the adult sexual assault victim? In the past few weeks I have run across a concept in the literature called "attrition." The theory runs that cases of sexual assault fall out of the system along the way at a much higher rate than any other type of charge. There is an up-front decimation in that there are still large numbers of women who simply do not report the assualt at all. Researchers charge that skeptical investigators and timid prosecutors along with unbelieving grand jurors wipe out another substantial sub-group of cases. Because conviction rates in theses cases are historically lower than any other variety of charge, the net effect is that many sex offenders walk free. What do you think about this line of thought?here,here,and here are some examples of the range of scholarship on the issue.

Ben,

I have always been wary of having child sexual assault victims on a child sex crime trial because of two reasons. First, if they did not receive prosecution or even attention by parents/teachers/etc, I fear that they may resent a vigorous prosecution of an offender where nothing was done in their case. Secondly, and also if the case was not prosecuted, they may minimize the assault done to my victim in comparison to what was done to them.

I always ask panelists whether they, a close friend or family member was a victim of childhood sexual assault, and I tell them I will not inquire as to whether it was them who was victimized or the facts. Usually about 1/5th to 1/3rd of my panels will respond to that question and I standardly try to eliminate as many of them as possible out of an abundance of caution.

Another major voir dire question in these trials is (1) whether they lied as a child (all hands go up) and (2) if they did lie as a child, did they ever lie about being sexually assaulted (all hands go down).

Having been trained in the same place as you, I remember the process. I can think of two cases I had as a grand jury attorney - in one, my victim wrote a statement, then another one, and a third. Then she spoke with me in my office, and finally she testified in front of the grand jury. Without violating any secrecy provisions, I can say that no version was quite like any other version. No bill.

In the other, a guy sold his sister to the neighborhood dealer for a $50 rock. Brother's response when confronted by the detective four days later, "she was just supposed to clean his house." Unfortunately, she suffered paranoid delusions and stopped taking her meds after she got home. She told me that she had begun to trust people again by being on her meds, and look what happened. Marty Purselley and I agreed that it would be mean even to put her in front of the GJ, and she would be torn apart at trial.

But I have also taken a smart, articulate woman before a grand jury, prepped them to ask her some really hard questions, told her to expect it, and walked out with a true bill after she addressed every concern they (and I) had about going ahead. I do not know what happened to that case, but I hope the inheritor gave it the effort it deserved.

These are hard cases because the victims are judged so harshly. Being honest with the victim about the difficulties of the case is essential, but may drive some away. All I can say is that good victim advocates have built some of my victims up emotionally to give them the strength to go forward, but have managed to walk the line and keep the victim realistic about just how hard going forward will be.

So three cheers to those around us who make it possible to do our jobs. They embrace the emotional side of the work even more intensely than we prosecutors do at times, and feel both our successes and failures just as keenly, if differently.

The last couple of trials I have included a slide with a sample of rape law history. The crime originated as a property crime against the husband or father of the victim. Even as late as 1968 our most "progressive" states required evidence of physical injury for prosecution. Heck, today in Texas there must be corroboartive evidence of an adult sex case. My word, standing alone can legally support an agg robbery charge but not that of a sex assault victim.

I have also found women to be far, far harder on these victims than men are. These days, with careful explantion as to why, I spend a good deal of time counseling with my victims about what they paln to wear to court...down to ear rings. The sexual predator has a very finely tuned radar, a radar that leads him to his victim. The "vibe" for lack of a better word that draws the predator's attention seems to also be off-putting to the avg. juror.

I started my prosecutorial career as a child sex crimes prosecutor assigned to the "in the process of forming" Children's Advocacy Center. They are horrible cases to try to say the least. My first jury selection lasted from 9:00 am until 8:30 pm. I lost about 25 to 30 jurors to the "I could not consider the full range of punishment question" ---from both directions. Some said they couldn't consider probation and wanted all of the defendants hung (by various body parts). Some thought all alleged victims were liars because they had been wrongly accused and would never send someone to jail.

I think sex cases are pleaded out more often than not because they are so hard to win. At leastin in most counties. In some counties, jurors are eager to convict but not in most of the counties I have prosecuted in.

We however had a policy that we never dismissed unless the victim requested it and her/his family agreed with one notable exception. We did dismiss one where the victim changed her story to the day before trial saying the defendant didn't actually penetrate her but touched her on the buttock. Then, while I was talking to the elected DA about what to do, the mother stormed into the office to "correct" the last statement (victim in tow) that the defendant had actually penetrated her.

So if the proposed changes, making 25 years a minimum, capital offense for victims below a certain age, etc. come about; how will that affect these cases?

Ben says:

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I have also found women to be far, far harder on these victims than men are. These days, with careful explantion as to why, I spend a good deal of time counseling with my victims about what they paln to wear to court...down to ear rings. The sexual predator has a very finely tuned radar, a radar that leads him to his victim. The "vibe" for lack of a better word that draws the predator's attention seems to also be off-putting to the avg. juror.

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Truer words have never been spoken.

If the legislature passes the law they look tough on crime. Every case gets set for trial.

And I will say it:
We either lose a bunch or we change the charges to injury to a child or (on adults) misdemeanor assault or, if we are very lucky, aggravated assault, so we can offer a probation on the bad cases and then everyone accuses us of being soft on crime.

They pass laws - we get to make sure they get enforced. But a bad case is a bad case. Everytime prosecutors lose discretion, we have problems.

Now there are certainly prosecutors who exercise their discretion poorly, but I would rather give a guy deferred for a difficult to prove sex case - knowing he has to register and may screw up his conditions later - than try a case I expect to lose (especially these days) without any corroborating evidence (like the DNA from the defendant's pants - imagine, his DNA on his pants!), leaving our hero to walk out the door a free man. What good does that do anyone? Unfortunately, pragmatism almost never plays well in politics or the press.

Nobody ever said this was easy.

amen to all Whitney

We are already losing a bunch. One study found that 48% of "acqauintance rape" cases never make it to the courtroom. Once tried, they produce the very lowest percentage of conviction of any felony case. One cannot escape the conclusion that a substantial number of wrongfully acquitted sex offenders are walking around out there.
After 7 1/2 hours of deliberation over two days, I lost my case this week. I feel like we am fighting 50,000 years of human fears, attitudes and assumptions about sex.

We are at times losing more than winning, and I've lost my fair share of these cases, but somebody has to fight the good fight. And as hard as they are, for the times when we succeed, we have indeed done a good thing.

Besides Ben, I saw you in action at the seminar this summer, and if you couldn't win your case this week, no one could. The crime victim got their day in court at least with an aggresive intelligent advocate, but sometimes the system works this way.

Thank the lord you are on our side.

G

Thanks, Greg. With a week to reflect, I am at peace with the case we put on. This was one of those cases, Whitney, that was either trial or dismissal and no in-between. I agree that we sometimes must plea bargain creatively to save ourselves from the sight of the d waltzing out the door.......

A defense atty. I know told me he somehow ended up on the jury of a statutory rape case. The girl was about 15, and said she had wanted to have sex with the def., who was in his 30s. The def. said the girl kept bugging him to have sex, and in a weak moment he gave in.

They went back to deliberate, and my friend figured they'd all vote guilty, and he could be back in his office within the hour.

Wrong. He said every man on the jury voted guilty, and every woman agreed he was guilty, but voted Not Guilty. The woman all agreed: that girl was just like the girls that hang out at The Rock House (a local dive), trying to steal our husbands away.

Even if she had been such a girl, they were duty bound to convict, but there had been no evidence at all about The Rock House, or that this girl had ever been near the place.

My friend said the men really didn't care that much, and were willing to vote NG to just get the thing over with. He, however, insisted that they follow the instructions, and several hours later, he finally rung a vote for conviction out of every one.

When they returned to decide punishment, all the women were adamant that they would not go higher than 2 years probation. The men didn't care, and agreed. My friend was too exhausted to disagree, and that settled that.

Sex cases are difficult for a variety of reasons. One is that if the act is between people of age, who are dating, it is only a crime if the woman did not consent. If the woman consents, and later has "buyer's remorse" or feels guilty, or decides she hates the guy, or any of a 1,000 reasons, wishes she had not had sex with the guy, it still is not a crime. There has to be a certain degree of skepticism in such cases.

The other reason is that sex touches one of the darkest areas of one's soul. The prospect for utterly irrational decisions is very high. Every sex case voir dire I have done resulted in at least a few tearful women saying they were not up to sitting on the jury, and often times a man or two who likewise streniously begs to be let off. That never happens in any other kind of case. For every venireman who is honest enough to admit that he is not up to sitting as a juror in this kind of a case, there are probably many more who are simply unable to sit and rationally decide a sex case, but are too repressed to even admit this to themselves, much less to the court.

This can cut both ways, however. Defendants who are convicted of such crimes, can end up with extremely heavy sentences, in part, I believe, because of the highly emotional element in sex.

It would be a horrible tragedy to be forced due to a Jessica's law gislation to have to turn perverts out on the streeet when you can aleast get them on probation in some cases. I try many more than I plead but sometimes they must be pled Ie a retarded victim, or avery young child who has bee molested more than once by several men.Life sentences are readily given out here so why mess with the law?

The victim can truly be harmed twice. Once by the perpetrator and once by the system. The thought of testifying can cause as much pain as the offense itself.

At one time I could not see how that could be true, but it is. And the fear and anger lingers for a long time.

I think we'll be ok as long as they don't take away Deferred as an option. I know we don't like putting sex offenders on def. adj., but I think that as long as that is an option, we won't have the bargain door completely closed.

If it's so egregious that deferred isn't appropriate, we're just going to have to get better at jury selection.

There are lots of sex cases, especially child sex cases, which are better handled with a plea for deferred rather than a trial. To paraphrase Darrel Royal, there are 3 things that can happen in a trial, and 2 of them aren't good.

A man molested a 10 year old in one of my counties. It turned out he was on deferred for Agg. Sex. Asslt. of a Chilid, from a county a couple of hundred miles away. Had he been sent to prison for that offense, my victim would not have been harmed. But had he been aquitted, the best possible outcome I could have is 20 years, and that assumes everything falls my way. As it was, I enhanced his indecency charge with his deferred; he was convicted, and the court gave the only sentence available: life.

This man had molested at least 3 other little girls and my guess is probably several others not known to us. Yet, for a variety of reasons, he was never prosecuted for the other crimes. I think the prosecutor who put him on deferred did the State of Texas a great service, because it set him up for his ultimate downfall. Yes, it took another little girl being molested, but at least he's where there are no little girls to molest, in great part because of that earlier deferred.

In another county I had a fellow charged with molesting 3 of his little nieces. One was extremely young. Another was a cheerful, talkative, show-off, until I got around to discussing her uncle, at which time she shut down, and completely withdrew from me. The third was terribly frightened to go into court and tell what happened, but she was clearly the best witness I had. It took us half an hour to coax her to come sit on the witness stand. She finally felt she had enough protection when her stepfather, 2 bailiffs and my partner and I escorted her to the chair during a break.

She broke down a couple of times, but she got her story out. I was very impressed. We had plenty of other evidence as well, but the jury acquitted anyway.

So I pled this guy to deferred for 3 of the remaining cases. And I am watching this guy like a hawk. If he is caught out past his curfew by 10 minutes, or has any other technical violation of his probation (you know: the kind some legislators think is a waste of prison space to revoke on), I'll be asking to court to revoke and sentence to life in the pen.

There's more than one way to skin a cat, and deferred gives us that possibility.