I would have thought that was pretty clear - use legal means to legally coerce a victim to testify. As noted above, assume you could do that without throwing the witness in jail, mis-identifying her as the perp, etc.
Not sure what is so complex about that - seems to me you can either do it, or not do it. Not sure how that is a “false dilemma”.
Saw this edit now.
In short, you do not think the dilemma would ever arise in reality, absent the DA screwing up.
Not screwing up. Actively not giving a shit about the victim, so much so that the DA thinks it’s reasonable to say “well, her life was in danger, so prison was the only choice.”
Here’s an example of a legal means of trying to convince a victim to testify: sitting down with a victim witness advocate and the victim and having a meeting where you make clear to the victim that what she wants is important, and that her safety is paramount, and that for the sake of the safety of the community you think it’s critical that you find a way that she is able to safely provide testimony, and ask the victim what she thinks. Which side of that black and white hypothetical does that course of action fall on?
And – to be clear – my answer to your original question is still no. At the end of the day, if she didn’t want to testify, and I found myself in a bizarro headspace where I thought my only options were lock her in prison and force her to testify, or not, I would choose not.
I choose not to do what this DA did. The chost to the victim is too high. I find another way to help the victim remain lucid, calm, and stable for er return to the stand. The well being of an actual, identifiable person outweighs that of unknown, hypothetical persons.
To my mind at least, if it came down to legal compulsion or not, I would choose compulsion - because a weighing of the two harms favors that.
On the one hand, you have the harm to the victim/witness’s autonomy, and also potentially to her mental state.
On the other hand, you have releasing a person that you have very good reason to assume is guilty of serial rape. Chances are good he’d go on to commit further crimes.
To my mind at least, while both are harms to members of the public, the second outweighs the first.
And that could very well be the pareto optimal state of affairs if those were really the only choices. But:
I would add to this that there are also unknown hypothetical persons being harmed by a law enforcement system that traumatizes and retraumatizes victims to such a great extent that a victim finds the costs of testifying in court to be higher than not testifying and seeing the rapist walk.
It may be the case, although I’m not in a position to say, that somebody who doesn’t pay a lot of attention to this kind of thing could reasonably see this case in a vacuum and think well, under the circumstances, the DA’s job is to put the bad guy in jail, right? But there’s an entire infrastructure in place here to put bad guys in jail, and one thing that cases like this make abundantly clear is that the infrastructure is inadequate at protecting real world victims from the kinds of costs Skald is talking about. For every case where we say, well, no alternative but to put the victim of this crime in jail, that’s one more instance where the infrastructure is being reinforced rather than torn up and started fresh. An American prosecutor’s office has a comparative wealth of resources available to do things differently if they so choose. There is no lack of information or willing parties out there to help build an infrastructure conducive to encouraging rape victims to tell their stories, including telling their stories to a jury. It’s not a sign of an unwinnable conflict when a victim decides that continuing engagement with law enforcement is more traumatic than walking away and seeing the rapist go unpunished; it’s just a sign of how little a priority that victim really was to the larger systems at work there.
If you find yourself, as a prosecutor, facing a choice between imprisoning someone because their courtroom experience inflicted such trauma as to be life-threatening, and losing your case because that person’s continued testimony is imperative, you have started thinking about the interplay between those two things wayyyy too fucking late in the game.
It’s hard for me to come to any firm opinion on this other than “the devil is in the details”. Just how much harm is really done to the particular victim at hand by coercing testimony? It seems to me that a sensible arrangement in practice is that the D.A. should factor in the interests of society and advocate accordingly, whilst social workers, counselors and mental health workers and the victim’s own attorney should advocate solely for the immediate impact on the victim at hand, and a wise judge should weigh all of this and have the final say. So far as I’m aware, that is what’s supposed to happen in the system, isn’t it?
The issue to my mind isn’t merely the punishment of the guilty, though that is not trivial. It is about removing someone from society who is likely to re-offend. Most studies I have seen show that serial rape is one of those crimes in which re-offence is a particular problem.
That ought to weigh in the calculus, I contend: that in making your choice, one of the outcomes is to release into society someone who you have very good reason to suppose will commit further rapes.
I have little interest in ‘tearing up the system and starting afresh’, because I view that as very unlikely to help anyone.
Well, it appears this particular victim suffered a life-threatening mental health crisis and was going to be homeless until she was put behind bars, where she was treated like a criminal, assaulted, and apparently had a second “psychiatric episode.”
Does that seem like enough harm, Riemann, or do you need a little more?
I’m not surprised that you have little interest. Most people, when it comes down to it, behave in ways that are very consistent with having very little interest in doing anything that will actually be beneficial to the real world victims of sexual assault.
Other than not being interested in it, it also doesn’t seem to me that you’ve addressed my point at all, which is that there’s no point agonizing over the “difficult choice” this DA had to make unless you pretend there are no other choices.
How on earth do you infer from my comment that I think the system worked as is it should work in this particular case?
Are you incapable of separating your anger at a particular horrific outcome from a discussion of the underlying principles at stake?
My anger is about the principles. This is not really that horrific a particular outcome; this is just an instance of one of the more splashy outcomes being realized because someone filed a lawsuit. More often the victim, having been marginalized and traumatized, disappears from polite society and nobody worries about her again.
The system worked here as it is designed to do. Which isn’t “should,” but it is what it is – the system, working as intended.
That is what I was trying to get at. Is the system (including the law itself) okay in principle, provided the parties involved are competent; or is the system fundamentally flawed, inasmuch as the interests of victim/witness are systematically inadequately represented, or that the D.A. systematically has too much power?
I rather see myself as more interested in preventing people from becoming real world victims of sexual assault.
But suit yourself with your characterization of ‘most people’.
Fight the hypothetical!
I’m still waiting for spamforbrains’ cite for “rape victims were routinely executed.”
But these law students are unrealistic, in real life nobody would fight a hypothetical.
Malthus in your wonderful hypothetical where you are so concerned about stopping a rapist, could you please tell us how many other rapists get to go free since their victims are now afraid to come forward due to your prosecutor not caring about their wellbeing?
I think you may wait a while.
I had a sister raped so it is not just a mental game or interesting discussion to me.
Note: Contrary to most SDMB members thinking that victims have no value or right to comment on solutions or punishments because they are too close and only totally uninvolved people who have never been in or related to anyone in a similar crime have the right and ability to really look at these kinds of things as dispassionately as is needed, a stance I fully dis-agree with.
So, first, the DA is fired, the jailor and physic Doc are fired, fined and a part of the defendants of the civil suit. Period Dot.
If this happened in Waco, never mind, that is one of the most corrupt law enforcement places in this nation. They rival Washington, DC. And I am a born Texan. Stay very far from Waco.
When it is all said & done, better 10 bad people go free than one innocent be convicted. This goes double for this kind of treatment of this victim. IMO
Correctly detaining a person until trial in a compassionate and civil manner, if legal in that jurisdiction, OK… But any attempt at forcing the victim during or before trial in an attempt to influence or force the victim to speak should always be wrong. IMO
If a belief of future criminal activity is believed to be so likely, sufficient expense at monitoring the accused if/when he goes free should be done.
Effectively destroying an victims life for even a 99% chance, even a 100% chance that the bad guy will strike again is not the victims job but the DA and ultimately the juries job.
The fact that this is a rape case just makes it harder emotionally due to all the baggage that comes with it which everyone is aware of and so trying to be only concerned with cold ‘rule of law’ is very difficult because that is not the predominant position of most people.
IMO, self determination ( I was going to say ‘trumps’ but that might not be a good idea on the SDMB so ) sits higher in my mind than, in this particular type of case/crime when forcing or trying to force a victim into this corner if they do not want to testify. She is the victim and she knows he will get off unless she says certain words, tough. They should have taken better care of her and given her more help. ( I smell and uncaring DA in this )
General population with the defendant in same??
She was going to testify but no one was helping her with the problems she had in waiting??
General population with the defendant in same??
That was their only choice??
Was it Waco??
General population with the defendant in same??
The problem in this thread is that every single post should have stated first that what happened to this victim in this case is/was wrong and those responsible should be punished in some way.
Now the point of law I want to make and/or the most good will be this…
People won’t read the whole thread, they never do. Except me of course, so they do not know if you are one of them or one of those so you really need to make sure with every post that everyone knows where you stand.
Now if you are willing for anything to happen to this victim in this case including her destruction mentally and/or emotionally or actual death is OK because the potential good is worth it, say so in every post so all the new comers to the thread will know where you stand.
Unless this thread is split, we need to deal with the fact that we have two different discussions going on with a sorta third one coming up once in a while also. 
Note that this wasn’t in Waco but in Harris County (home of Houston).
Literally nobody, let alone “most”, thinks that victims or others indirectly involved have “no value or right to comment”.
On the other hand, with the last paragraph quoted above, you do seem intent on providing a textbook example of rushing to judgment.
Yes … you can be forced to testify in a court of law. If need be, the court can grant immunity then wave goodbye to your 5th Amendment rights. If there’s a flight risk, then the witness sits in jail until it’s time for them to testify. The orderly conduct of the trial is paramount.
Two mistakes: å) The DA should have been all over this, primary fault lies with this person. It was his job on behalf of the citizens of the State of Texas to notice this error; and if it’s not an error, then an Emergency Injunction application at the appellate court. ß) The intake clerk at the jail, they wrote “defendent” instead of “witness”. Do they even read the orders before letting the prisoners in? Wrong wrong wrong wrong wrong.
Jails and prisons are where we provide mental health services. So if she had a nervous breakdown on the stand, maybe jail is the best place for her.
Systemic and institutionalized …