I am a lawyer, but have never practiced criminal law. My exposure to criminal law is therefore limited to the standard first year class, a police procedures class I took because the professor was cool and lots of Law and Order. I found myself in an argument with a relative (a vice-detective and notorious bullshitter) about a sexual assault case. The relevant facts and my questions are as follows:
Facts (and some commentary):
Defendant is videotaped in what appears to be a sexual assault as defined by state law (in other words, one can conclude from the tape that the necessary elements are their - the appropriate touching, unwelcomeness, etc). There are multiple witnesses to the actual assault and the “cameraman” is available to authenticate the tape. Let’s assume the cops can also verify the tape’s chain of custody. In other words, the tape gets in, and the witnesses can be subpoenaed for trial (we’ll assume for the sake of this that the witnesses will all cooperate and to the extent necessary, cut the appropriate deals). The victim refuses to testify. So we’ve got the tape and we’ve got eyewitnesses (but not the victim), and with the evidence, a reasonable jury might conclude that the Defendant sexually assaulted the victim.
Here’s the “supposed” rub (according to the bullshitter, vice-detective relative).
According to the BVDR, because of “victims rights” and “rape shield laws”*, the D.A. cannot (not “will not,” cannot) prosecute. I called bullshit. BVDR said it also had to do with the Confrontation Clause (didn’t use the term but this is what was being referenced). I, of course, replied that the Confrontation Clause simply means an accused can confront the witnesses against him (the folks subpoenaed, the cameraman, etc.). I explained that if every accused had the right to confront the victim, we’d never have a murder trial.
We adjourned to supper and agreed to drop the conversation.
So help me out. What’s the Straight Dope?
Must a victim testify in order for the DA to: a) bring a rape charge; b) (as a matter of practicality) obtain a rape conviction?
If the answer is yes, why?
Is this just another example of someone believing the whole, “if the victim won’t ‘press charges,’ there is nothing the cops/DA can do” falsehood (or is that not a falsehood)?
Thanks in advance.
*It’s my understanding rape shield laws prevent the introduction of evidence regarding the victims prior sexual history.
I, too, am a lawyer, but not a litigator, so my expertise is about equal to yours.
I, am, however, in complete agreement with you. If there is evidence to prosecute, the victim need not testify. Confronting witnesses is the right to cross-examine, and rape-shield laws are designed to prevent the bullshit defense of “she’s promiscuous, so she must have been asking for it”. And, as you already know, the State brings charges on behalf of society as a whole, so a victim’s cooperation is not necessarily required to prosecute a crime.
Well, but doesn’t that just mean that if the DA charges the guy with rape, he can call the supposed victim to testify. Except, if she’s really the victim, he’s not going to do that…he’s only going to demand the victim testify if he’s innocent. Sure, he could conceivably force the victim to testify, but he’s doing it at the cost of increasing his likelihood of conviction.
IANAL but I did serve on a jury where this situation occurred. Underage girl (15) shows up pregnant. Mom blows a gasket. Girl concocts various unprovable stories before finally implicating the stepfather. Mother blows a gasket, times two. In the heat of rage, mother calls the police on stepdad.
Fast forward to the trial… the story has changed again in a way that suggests the defendant is innocent. It is an unbelievably outlandish story that defies all logic, but it is technically possible. Mother, stepdaughter, and stepdad all claim the same story. At the trial, both mom and stepdaughter sandbagged and played stupid as if they didn’t even understand what the assistant DA was saying. Eventually the interrogation became contentious and, the defense attorney demanded that they be declared hostile witnesses. Trial continued in that manner.
Based on arguments and evidence, we in the jury decided that since the baby was born healthy at the time of the trial, mom+stepdaughter had wised up and realized that stepdad was worth more to them as a wage-earning father figure than an inmate. But by then the prosecutorial train had left the station, so they tried to derail it with this absurd alibi.
We the jury did not buy this huge bag of bullshit. Defendant was convicted and got 10 years, served 3. So yes, at least in Georgia, you can prosecute rape with uncooperative witnesses and even get a conviction.
I practiced criminal law, so perhaps I can add a bit of real-life perspective to the discussion, although I should point out that my days were well before everyone carried a video camera-capable cell phone, and I’ve never encountered an actual set of facts like the scenario mentioned above.
There is no rule requiring the victim to testify in order to obtain a conviction. The evidence you describe would enable a reaosonable jury to find guilt on each required element.
However, as a practical matter, and ESPECIALLY if the accused testifies and claims that the acts were consensual in nature, it will be very difficult for a jury to return a guilty verdict.
Things that are helpful: if the victim’s refusal to testify can get her declared “unavailable” for purposes of hearsay, and if she made any statements that inculpate the accused (interview with a detective, for example) then the prosecution can get those statements in over a hearsay objection. That’s helpful. Also helpful would be calling a mental health professional as an expert to testify about the general phenomemnon of victims not wanting to testify (obviously, this testimony can’t invade the province of the jury by opining that this particular victim’s refusal having the meaning that this particular defendant is guilty).
But to answer you basic question: I know of nothing that, as a matter of law, would forbid a prosecution under the circumstances you describe, even if as a matter of practicality conviction is an uphill climb.
Well, there are cases where the victim was unconsious, and unable to consent to the sex. (Slipped a “micky” at a party, for example.) In these cases, the victim may not be able to testify as to who did what. But a conviction is still possible.
One big fact I forgot to omit from my story… paternity tests did in fact show the defendant had fathered the child, otherwise the conviction would probably had been impossible. The alibi to beat the DNA paternity test went like this, and I am not making it up… supposedly the girl said she wanted to have a baby, so the stepfather, trying to be helpful, filled a turkey baster with his own semen, then gave it to her, whereupon she inseminated herself.
I ran into the DA some years later… he said that they were still calling it “the Turkey Baster Incident” around the office.
Genarlow Wilson might be a good example to illustrate your case. The “victim” has never been identified, but the young man was prosecuted anyway, based on videotape evidence that he received oral sex from a young lady who, even though she has steadfastly held that she did consent, was legally a minor at the time (she was 15, he was 17; the age of consent is 16) and was therefore statutorily unable to give consent.
FYI, the Georgia State Supreme Court is holding a hearing on his case today.
Actually, this is the case that we were discussing though not in the context you mention. The Wilson case in front of the Ga. Supreme Court is NOT a good example of the hypo in the OP because, as you noted, Wilson was convicted of child molestation – for which there is no element of consent. This fundamentally alters the scenario.
I am talking about a rape where consent could have been given but was not yet the victim will not testify. It came up because BVDR claims that a friend of a friend of a friend saw the tape and says there is an additional sexual assault in there (one for which Wilson was not tried because the victim would not cooperate). I told him I thought that was silly and he said Wilson couldn’t be prosecuted, for the reasons set forth in the OP. I said he certainly could and even though it would be difficult, it would take a lot of heat off the state, especially if it’s true (which I doubt).
I have a related story, but it is not a sex crime though. A close relative was busted, in his possession were many stolen items, all taken from the same person. CR is taken to jail and sits for 30 days because no one will post bail. His is finally released and a trial is scheduled. While waiting for trial, CR and victim talk things over, victim decides he does not wish to press charges. Despited attempts by the DA to push the victim to testify against the CR, he refuses. DA moves for dismissal based on lack of victim co-operation and the judge accepted the dismissal. This was despite the fact CR was busted while in possession of the stolen property.
Actually, he was tried for the other encounter, and the jury returned a verdict of ‘Not Guilty’ on the rape charge. And not only did that woman testify, it was her who filed charges of rape in the first place, which is the only reason the videotape even came into evidence at all. And in viewing it and investigating further, the police determined that another crime other than the one being brought to them was depicted in that video, so the Prosecutor added the charge of aggravated child molestation, without the “victim’s” testimony. If there were yet another event depicted on that video, I have little doubt the Prosecuting Attorney’s office would have added that one, too, even without the victim’s testimony. And actually, there were indeed other depictions that resulted in charges being brought, but against other young men who have all accepted plea deals, unlike Mr. Wilson, who refuses to make a guilty plea.
Would it be possible for the prosecution to suggest that the victim had been so traumatised by the event that she no longer had an accurate recollection of the event?
I am looking for options to protect my 33 year old disabled daughter who has been sexually abused by her biological father since the early '90’s. Then, she changed her name to mine, and a CPS letter threatening to return the matter to juvenile court, kept him away. Unexpectedly he picked her up some three years later and by the time she was back at her group home she was saying she wanted to get to know him again. Ten years later she disclosed, after several years of serious health problems (not necessarily a confirmation of her accusations) continuing abuse of a horrible nature. Her father is a fetishist who does sick and strange things and he is often accompanied by a woman friend. In 2010 my daughter opted to move to an undisclosed location and when he brought three lawyers into a hearing for a TRO, we were advised to try for an agreement as she was/is too dissociated (DID) to testify competently although she was eager to. The agreement relies on our being able to prove to an arbitrator that he attempted to contact.
Now, it is clear from her behavior that he has found her. For the first time in her life, she is rejecting me, and although I pay her rent, bills, budget I have no rights as a mom. Even if we catch him in flagrante, she may be too traumatized to testify. I believe he has a restricted number and am unable to access th #s or to prove anything.
The “turkey baster defense” has been around quite awhile, being known by this name at least 10 years ago in media reports (which indicates it was named before the 2003 news report I read)
There was a lesbian couple child custody battle, IIRC in Toronto in the 1980’s circumstances which involved a turkey baster and “a cooperative gay male friend”. It’s obviously a useful household appliance.
Does the victim HAVE to cooperate? Ask who was it, … R. Kelly?
The prosecution lays out its case with the evidence at hand. If it does not include the victim’s testimony, the question is whether the case contains sufficient evidence for “guilty beyond reasonable doubt”. That’s a judgement call by the prosecutor.
If the victim just wants to stay silent and forget, then odds are the defence won’t call her either and risk having her break down and state the truth.
If the “victim” denies a crime took place, there’s a good chance there’s reasonable doubt, unless significant other evidence contadicts that testimony.
I assume once the victim is on the stand, the prosecution can ask “did you tell Sargeant Friday that the defendan raped you?” without running afoul of the hearsay rule?