Relive Your Rape Or Go To Prison (While Your Rapist Goes Free)

Jessica points us to this extraordinarily disturbing story:

A Naperville woman who on Tuesday refused a judge’s order to view a videotape of her alleged rape could be jailed on a contempt of court charge if she does not change her mind Wednesday, and the judge is considering a request to drop sexual assault charges against the Burr Ridge man on trial.

“I am ordering you to answer these questions,” Judge Kerry Kennedy told the woman after an hourlong recess to discuss her refusal. “The consequences are that you would be held in contempt of court, with incarceration possible. Are you still refusing?”

Wow.

While conceding that the story is horrifying, iocaste offers a modest defense of the judge in this case. It’s true that defendants accused of rape do not give up their right to confront their accuser, and that given the videotape arguing that the sex was consensual is essentially the only defense strategy available. I assume it’s true that the judge is within his legal discretion. Having said that, however, Sixth Amendment rights are not absolute–defendants are legally preventing from presenting types of evidence in any number of ways. While of it is in the self-interest of the defense to grasp at every conceivable straw, it’s the judges 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. In comments, iocaste suggests some potential bases for the claim that forcing her to watch the videotape might have probative value: “Well, for one thing, she claims she doesn’t remember — but she was apparently conscious. What if the tape can jog her memory? What if she remembers it was consensual? What if she recognizes her own behaviors as consensual? Would we even ask the question of the relevance if this were any other kind of crime?” I’m sorry, but I just don’t see any real value here. Let’s consider what the videotape shows:

The videotape was viewed in the March 2005 trial of Christopher Robbins of Brookfield, who was acquitted of sex charges after arguing she consented to sex with him in an incident that wasn’t videotaped. Robbins allegedly is seen on one segment of the tape, but not engaging in sex with the woman.

Prosecutors allege that the videotape first shows another defendant, Burim Berezi of Brookfield, having sex with the woman, then it shows Missbrenner. They say the tape shows her unconscious as people spit on her and write derogatory words on her naked legs and abdomen.

Uh, if she is shown this horrific tape, she will suddenly remember and announce in open court that (despite being a highly inebriated 16 tear-old) she consented to have strangers spit on her while she was naked in public? Please. That would have to accrue several levels of probability to rise to the level of being “implausible.” We all know what’s going on here: the defense wants to show the videotape to intimidate (and punish) the victim, and given the less-than-trivial probative value the balance of interests shouldn’t even be close. Unless the transparent goal of intimidation is given essentially no weight at all, I don’t see how the balance can favor permitting this defense strategy.

Moreover, I think it’s worth noting that rape is not like any other crime, and since Tennessee Illinois [thanks to commenter Gordon] (like 48 other states) has a rape shield law this concept is embedded within public policy. It is hardly uncommon for patriarchal assumptions to manifest themselves in judicial decisions. The state has (correctly) determined that given the great disincentives against going forward with sexual assault charges, and the way in which rules of evidence have been routinely exploited to put victims on trial, defendants in rape trials should face some constraints in terms of the evidence they are allowed to present. In a historical vacuum, perhaps the judge’s decision is defensible; once the broader context of sexual assault is considered, I believe the judge’s decision is every bit as outrageous as it appears on first glance. The defendant should not be compelled to watch the tape of her assault, and that she might end up on jail while her attacked goes free is utterly unconscionable.

UPDATE: Accroding to Shakes, the judge has backed off his threat to send the accuser to jail. She also has some objections to the Tribune’s coverage. iocaste clarifies that she felt that the jail threat was “over the top” but maintains that dismissing the case is a defensible judgment call. More discussion at Feministe .