IMPORTANT UPDATE AT BOTTOM OF PAGE

The wheels of justice can grind the victims of crime to powder almost as easily as the criminal. And once they start moving, they can be a fearsome thing to behold.

There is no more emotionally wrenching ordeal for the victim of a crime than having to testify against a criminal who has physically violated them. By being forced to relive the attack, all of the fear and psychic pain caused during the ordeal is brought to the surface and the process of victimization reaches perhaps it zenith as memories of the violation are recounted in excruciating detail.

For the victim of rape, the experience is not only painful, but usually embarrassing as well. We are told by psychiatrists that the rape victim is full of self loathing as well as fear, humiliation, anger, guilt/shame and feelings of degradation and powerlessness. By being forced to relive details of the rape in open court, the woman also is forced to relive the actual event – all the sensations and feelings she experienced during the attack are resurrected in all their horrifying detail.

Is it any wonder that so many rapes go unreported?

But the justice system is based on the Constitution. And the Constitution gives the accused the absolute right to face their accuser. With lawyers taking an oath to do their utmost to defend their client, the adversarial process almost guarantees that the defense in rape cases will seek to “blame the victim” for the attack. There really is little else a defense lawyer can do in many cases. The law has changed over the years so that some things like the victims past sexual history and other factors cannot be brought up during the trial. But that is usually cold comfort to the victim of a rape who must endure the assault of a defense attorney who seeks to make it appear that the attack was in fact consensual sex.

In Illinois, a woman has been told by a judge that she must answer a defense lawyer’s questions while watching a videotape of her own rape or face jail for contempt:

The woman was 16 years old when she allegedly was assaulted and videotaped four years ago at a party in the Burr Ridge home of Adrian Missbrenner, 20. He was one of four men charged in connection with the incident, and his trial on charges of aggravated criminal sexual assault and child pornography began Tuesday in Cook County Circuit Court in Bridgeview. He faces 6 to 30 years in prison if convicted.

The woman answered questions from prosecution and defense attorneys for about an hour. But when Missbrenner’s attorney, Patrick Campanelli, placed a video monitor in front of her and said he was going to play segments of the 20-minute videotape as he questioned her, she stated emphatically “I don’t want to see it.”

After the judge warned the woman that she was expected to testify Wednesday, Campanelli quickly asked that the criminal case against Missbrenner be dismissed.

“Your honor, my client has a constitutional right to confrontation of a witness,” he said.

Assistant State’s Atty. Michael Deno argued against dismissal. “This witness has testified to every other question, and she has testified that she doesn’t have any recollection or memory of the videotape incident at all,” he said.

The judge has refused to rule on the motion to dismiss until today when he will once again ask the woman to view the tape while the defense attorney peppers her with questions. The defense contends that the sex was consensual despite the fact that she appears to be unconscious during the attack.

Three other men have been charged in connection with the case. One was acquitted, while another pled guilty to making the tape itself and was sentenced to boot camp for child pornography. One other man fled the country and has not returned.

One might question whether it is necessary for the tape to be shown to the woman who has refused to view it in the past. Chicago columnist Eric Zorn points out the obvious:

Defense attorneys argue that the tape impeaches the woman’s account.

And that may be. I certainly haven’t seen it.

But surely it speaks for itself. Surely the jury in the case can compare what they see on the tape to the woman’s testimony and decide for themselves if she consented to having sex.

Surely, surely nothing can justify re-traumatizing—re-victimizing, if you will—this woman on the grounds that the defendant has the right to “confront” his accuser.

She accuses him of nothing during the time the videotape was shot. She says she has no memory of that time whatsoever. If the jury in the Bridgeview courthouse thinks she’s lying when she says she can’t answer questions about it, let them come to that conclusion and rule accordingly.

Zorn downplays the notion that the tape may be exculpatory which could be true. The fact that the defense feels it necessary means that in our system, there would have to be a pretty good reason for the accused to be denied the opportunity to confront the witness with the evidence.

As horrifying as this ordeal is for the woman, this is how the system works (or continues to victimize depending on your point of view). We make it hard to convict someone of rape because of of the possibility that the victim isn’t a victim at all but a spurned lover or a regretful one. Here’s the defense attorney:

Campanelli argued that the sex was consensual.

“One-night stands happen all the time, and in the morning you regret it,” he said, adding that he thinks the witness’ answers to questions while viewing the videotape would “strongly help Adrian’s case.”

[...]

Campanelli said Missbrenner was concerned the girl was going to claim that the sex was not consensual so he gave the tape to the friend to save, if needed, to support his claim.

Reading a newspaper account of this outrages us. We feel for the victim and have nothing but contempt for the defense attorney. But do we have all the facts? Do we know what the defense attorney is going to point to on that tape that may place reasonable doubt in the minds of the jury when they see the woman’s response?

We don’t know which is why sensational stories like this should be viewed in context.

One thing we know for sure; the story will make it less likely that more women will come forward and report attacks which means that rapists will be free to rape again. Until some solution in the law is found that will protect the victim while allowing the accused a fair trial with an impartial judge and a determination made by a jury of his peers based on evidence fairly presented – including the right of the accused to confront all of his accusers – we will continue to be outraged by forcing victims to relive their worst nightmares.

UPDATE

Shakespear’s Sister is outraged:

This is just utter bulls**t. If the woman has testified she doesn’t remember anything about the incident, then the video should be allowed to speak for itself—whether that hurts her or helps her. Why is the case predicated on her willingness to relive her attack and be asked questions about it she can’t possibly answer in front of a courtroom full of people? And, more importantly, why is she being threatened by having charges against the defendant dismissed and being put in jail herself if she doesn’t watch the tape? Does her reluctance to watch the tape somehow change what’s actually on the tape? If the tape shows men having sex with her while she’s unconscious, spitting on her, and writing on her body, her impressions of the tape matter a hell of a lot less than the jury’s.

Good points. I would like to point out that not knowing what exactly the videotape shows, the victim’s contention that she doesn’t remember anything cannot be verified. And I suppose that’s the reason why the judge might – might – feel it necessary for her to view it while the defense is questioning her.

Would the defense be hamstrung if they were only allowed to show the video to the jury without being able to question the victim about its specifics? The judge must think so which is why one must conclude either the judge is acting improperly or the law stinks.

I wouldn’t be surprised in the end if it turned out to be a little of both.

And Scott Lemieaux weighs in with some definitive legal opinions:

Sixth Amendment rights are not absolute—defendants are legally prevented from presenting types of evidence in any number of ways. While it is in the self-interest of the defense to grasp at every conceivable straw, it’s the judge’s role to consider the other rights and interests at stake as well. And in this case, I just can’t agree that the balance of interests is even particularly close. The defense has been allowed to confront the witness—the only question is the very narrow one of whether she should be compelled to watch the tape, and I just can’t see what value this would have that would outweigh the obvious intention to intimidate the victim.

Okay then. It may not even be a close call in which case the judge is a cretin and the defense attorney, scum. That is, unless there are factors that Scott is not privy to from a newspaper story, something that is possible but perhaps not likely.

UPDATE II: JUDGE RELENTS

The judge in the case relented today and agreed that the rape victim would not have to view the videotape:

After a brief hearing on the issue in the Bridgeview branch of Cook County Circuit Court, Judge Kerry Kennedy backed off the threat he made Tuesday to jail the woman if she continued to refuse to watch the tape.

With little elaboration, Kennedy agreed with prosecutors’ arguments that the Constitution grants special treatment to rape victims.

Before making his decision, the judge today asked the woman, visibly shaken, if she would view the video. She declined, as she had Tuesday, the first day of testimony in the jury trial of the 20-year-old Burr Ridge man charged in the crime. Today, however, Kennedy acquiesced.

“I am not going to force her to watch the video during cross-examination,’’ Kennedy said. “I don’t believe Adrian Missbrenner’s case is being injured.’‘

Was the judge influenced by the outpouring of rage and disgust against him?

If he was, it wouldn’t be surprising but at the same time, it would be troubling. The law must be beyond anything that the “passions of the people” can influence. I realize the judge is only human and that he is basing his decision on solid legal principles. But one wonders what would have happened if this story had remained buried.