September 2, 2012
Recently, a teenage sexual assault victim from Kentucky disagreed strongly with the plea deal her assailants reached with the prosecutor and publicly expressed her disapproval, including tweeting the names of the defendants. The problem was that her assailants were also juveniles and under Kentucky law, juvenile proceedings should remain confidential. After she publicly exposed the defendants’ names, the victim was threatened with contempt charges. Those charges were apparently dropped after press reports about the case.
The defendants plead guilty to felony sexual abuse and misdemeanor “voyerurism” after sexually assaulting the victim and taking photos of her undressed. The defendants committed the assault and took the photos while the victim was “very drunk” and they thought it would be “funny.” The defendants later showed the photos to “numerous” other teens. Under the plea deal the defendants will do 50 hours of community service and the convictions can be expunged when the defendants are 19 ½ years old, if they have successfully completed all the terms of the deal and not committed any new offense.
The victim did not think this was sufficient punishment. The victim alleges that when she told the prosecutor this he told her to, “get over it and see a therapist….jail is for ‘real’ rapists, murderers and robbers.” The prosecutor denies saying that.
As Representative Akin illustrated through his recent statement distinguishing between “legitimate” and other rapes, there are still those in the United States who fundamentally misunderstand rape and sexual assault. What should victims do if the prosecutor seems to be someone who isn’t prosecuting the crime in a way that indicates he/she understands how serious it is? Should the victim have the right to stop the plea deal?
Traditionally, in the United States, the answer is clear: no, the victim is not a party to the plea bargain and has no standing to prevent it. In the most basic terms, plea bargains are deals between the prosecutor and defense that the judge must agree to accept for it to go forward. The victim is not part of the negotiation process, nor can the victim prevent the deal from going forward by not approving it (as a judge can). In recent years, with legislation to better protect victims, many states now require that victims be informed about any plea deals. And, a few prosecutors around the country have it as their stated policy to not proceed with plea deals if the victims do not agree.
But, should victims have the right to stop the deal? Russia is an example of a country that has just this provision in its law. Russia has a system for abbreviated trials, under which a defendant can get a standard reduction in their sentence in exchange for a guilty plea. The Russian system doesn’t include, at least officially, informal negotiation, but it does include a provision that allows
the victim to prevent the abbreviated trial (and therefore, the reduced sentence). If the victim refuses to agree with the abbreviated trial, the case goes forward to trial. This provision is within the context of a criminal justice system that has traditionally given the victim a greater role. This included, historically, rape victims “privately prosecuting” their own cases, as the offense was not considered a public offense for the public prosecutor to bring forward. The Russian criminal justice system also has a tradition of extraordinary prosecutorial power without a strong tradition of judicial independence or respect for the rights of defendants.
In the USA, with a strong tradition of judicial independence, the idea is that judges will prevent deals from going forward that are contrary to the public interest. But, is that enough protection in cases, such as this, that involve crimes that are still misunderstood? Should the victim have more power in the plea negotiation process?
For more information about the case in Kentucky see here.
Last 5 posts by Cynthia Alkon
- Police Abuse and Mediation - September 25th, 2014
- On Jimmy Fallon and Finding Common Ground - August 23rd, 2014
- “Tell her Capt. Johnson is sorry and he apologizes.” - August 14th, 2014
- Negotiating Silicon Valley - August 12th, 2014
- "Don’t Skimp on Legal Training" - April 15th, 2014