September 2, 2012

Should victims be able to stop plea bargains?

By Cynthia Alkon

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.

 

 

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Comments

  • Lawyer Jim says:

    This is a very contentious case. These days everyone has a camera in his/her pockets. Every person must know that if they expose themselves, there is a possibility that someone may be videoing them. Perhaps that was the parent’s responsibility. Don’t know, wasn’t there.

    The issue stands somewhere between the private and public. A very difficult issue to deal with in our technological world. Natural self-expression has been undermined by the video age. Better to know this if you are a teenager going out on a night.

    At the end of the day, tough decision for the judge. They do the best they can.

  • ohwilleke says:

    The case for juvenile proceeding confidentiality is quite a bit weaker than the case for mandatory victim involvement in criminal cases, particularly in those states where victim’s rights laws or simply general criminal procedure provisions give a victim a right of allocution at sentencing comparable to that of a criminal defendant, which the judge may consider in accepting or refusing to accept a plea bargain.

    The empirical benefits of juvenile proceeding confidentiality are not well established, and many of the considerations that result in adult proceedings being mandatorily public are relevant in juvenile cases as well.

  • Mea says:

    Interesting question. As the OJ case showed, the American system also has a civil side. I suspect that the victim – if she has sufficient resources and determination and support (a big if) could also bring a civil case. Or does the gag order that accompanied the plea deal somehow also limit her ability to bring a civil case that would get the names of the assailants out in public?

    Although Lawyer Jim provides a shining example of attitudes that can make it difficult for the victim in such an incident to get justice even if the civil route is available. The victim didn’t expose herself, she was assaulted when incapacitated. It isn’t a woman’s obligation to avoid any situation where a rape or sexual assault could conceivably occur, it is everyone’s obligation to not commit crimes like assault. I do agree that the news aricle implies that the parents of the boys seem to have failed to teach such basic lessons to their sons.

  • Lawyer Jim says:

    Response to Mea,

    This is not an attitude but a clear fact of teaching self-responsibility. One can not hope to control the behaviour of others, but one CAN control one’s own behaviour, even from a young age.

    In no way am I condoning the actions of the perpetrators but you have to realize that by “incapacitating” yourself, you are putting yourself in jeopardy in any case. There are two faults here: the self-incapacitation creating a precarious situation and the assault itself. The former does not give carte blanche for the occurrence of the latter, clearly. However, there must be some degree of accountability in each case, otherwise self-responsibility goes out the door entirely. Granted, they should have just left her alone,obviously, but let’s be realistic about the scope of human behaviour and teenage tom-foolery in particular. There were wiser actions to be taken by both parties involved.

    Viral video is a fact and everyone by this time must understand that your picture can end up on the internet at any time and there may be little recourse to having it expunged. Thinking before acting (or drinking) can go a long way to nipping opprobrious behaviour of others in the bud. With privacy laws becoming more extinct by the day, more caution has to be observed.

    Your definition of “justice”, as you have used it in this instance, implies quite a “subjective” turn on the event. I see that the objective is perhaps the better route here. For at the end of the day, the judge is seeking objectivity which must include all facts, from both sides, and a firm grasp of cause and effect on the whole. Just to label the event as “good girl” vs “bad boys” is virtually dismissive and would do a disservice to lesson learning in general. It really is not that black and white.

    But when all is said and done, she should have had more say in the plea bargain. She must have the right to pursue her assaulters as she deems fit.

  • Mea says:

    Lawyer Jim, please read my comment again. I emphatically did not ‘label the event as “good girl” vs “bad boys” ‘ because a central point of my comment is that women (and girls and all victims of crimes) do not have to be “good” in order to be worthy of legal recourse, and they should not be subjected to post-crime victim blaming. I am glad that the end of your comment shows we have a large swath of common ground, but I am highly disturbed by the idea that a girl who gets drunk is called a situation where “accountability” is having pictures of her POST ASSAULT posted on the internet. No. Just, no.

    Now, here is where you and I agree. When I was a teenager and I got drunk and we all took pictures of the party (pictures that I knew were being taken, and to which I consented) then I just have to live with the consequences of having those pictures posted on Facebook someday. Accountability for what I do, and what I consented to while buzzed – when no crime was committed? Sure.

    But to have that discussion about accountability placed into the context of talking about a victim of assault (no grey area, no need for me to mince words, the boys were convicted of a crime) is mixing apples and oranges in a way that I find highly objectionable.

    Generic “end of privacy” discussions and warnings have their place, but I hope that you will consider why having that discussion in this context can be interpreted as an attempt to switch the focus away from the crime, silence the victim (or people who are listening who might have also been victimized) and push exactly the framework we both reject.

    I don’t care if she is a “good girl” or an absolute bitch who gets drunk every weekend. The issue is what rights ought a person have after being a victim of a crime? and how should those rights be weighed against society’s interests – including the twin and sometimes dueling goals of full rehabilitation while protecting the right of other members of the public to be warned when an offense is of a general nature that makes risk of repetition high?

    This is not the case of a repeat child molester, but is a completely sealed record of these boys’ sex crimes appropriate? Reasonable people can disagree. I want young people who commit crimes to be fully reintegrated into society, but I personally favor disclosure. Not because i think they are “bad boys” versus a “good girl” but because if the boys can’t admit their past actions I worry they won’t fully understand their need to change future behavior.

  • Lawyer Jim says:

    Response to Mea,

    Let me just say that you are attempting, in some way, to sit on two stools at the same time. Either one can take the road of punishment or compassion, objectivity or subjectivity. Let’s just say that your argument is laced with subjectivity and that you ARE labelling and no circumlocution or eloquent hair-splitting can veil that.

    I actually think that getting drunk should be a crime and, actually, in public it is. Therefore where do we stand? Shall we label the girl a criminal? No wait, that’s up to an elected official to make the labels. In any case, it never helps to be so focused on “getting your man” since that always leads to over-personalization and revenge. “Revenge” is a highly undesirable human flaw, whether you are a civilian, lawyer or a judge. I have seen prosecutors let their own personal history and revenge-driven blood-lust get in the way of objective justice and this has to be one of the ugliest things I have ever seen in this world and usually it leads to future regret. Let us not forget that two wrongs do not make a right. Just because some attorneys are provided a “license for revenge” doesn’t make it right.

    In the earlier comment I was addressing cause and effect. One can not hope to see the entire picture when he/she is over-focused on “punishment”. The boys may need counselling and perhaps, at this point, that is all.

    One last word here. Let’s not get carried away here with the word “criminal”. I highly doubt these boys are sociopaths who need to be “reintegrated” into society. That’s a little over the top. No, that’s WAY over the top. Over-focusing on one thing is a very dangerous thing. It misses the mark entirely. Ever tried to squeeze your body through an extremely narrow corridor? Painful, isn’t it? Narrow thinking is equally as painful.

    If you feel the “end of privacy” discussion is too “generic” for your tastes, I would be more than happy to provide a more detailed extrapolation. If you are at all familiar with the internet, cell cameras,twitter and tracking technology, it should be pretty clear by now.

  • Mea says:

     The news  article states the following about the particular crime that started this discussion:
    “They said they lifted her shirt, pulled down her pants and penetrated her vagina with their fingers”

    So, the boys who pleaded guilty do not dispute that they disrobed a fully clothed incapacitated girl without consent and sexually assaulted her.

    Here are the Lawyer Jim’s arguments:

    1. Boys will be boys 
    (“Granted, they should have just left her alone,obviously, but let’s be realistic about the scope of human behaviour and teenage tom-foolery in particular”). Tom-foolery? 

    2. Lets switch the focus of discussion to judging the victims behavior (“getting drunk should be a crime”) and give the impression the girl got herself into the state where she was photographed (“Every person must know that if they expose themselves, there is a possibility that someone may be videoing them”)

    3. Straw man choices between extremes (“Either one can take the road of punishment or compassion, objectivity or subjectivity”)  when the point of the discussion is how to balance the competing policy goals of punishment/retribution, victims rights, juvenile offender rehabilitation often coming with sealed records, and the right of the general public – including women who in the future would want this knowledge to make their own risk assessments – to know of past criminal offenses.

    4.  Instead of a substantive reply to my arguments, labeling me subjective. (“Let’s just say that your argument is laced with subjectivity and that you ARE labelling and no circumlocution or eloquent hair-splitting can veil that.”) Lovely old chestnut, telling a woman she is subjective to dismiss an argument.

    5. Arguing that  the boys convicted of sexual assault should not be labeled criminals (“Let’s not get carried away here with the word “criminal” ) – and that society need not worry about risks of the same behavior recurring in the future (“The boys may need counselling and perhaps, at this point, that is all.”)

    A tour de force performance. 

    There is a constructive conversation to have about point number 5, but I have no good faith left to have that discussion with a person who has been pushing points 1-4. 

    ohwilleke, I would be interested in hearing more about your views, and those studies looking into the empirical benefits of juvenile proceeding confidentiality. 

  • Chelsea Brocker says:

    I am mixed on this issue. I do believe victims should have some say on plea bargains but at the same time I believe this is what the judge is for. He or she makes the ruling on fairness and is a dislocated party so is not driven by emotions. Although on the other hand I do believe this type of “ignorance” that prosecutors may have is another form of “victimizing” the victim again. The victims came to the police and prosecutors to get justice and in this case they did not receive it. I am sure this girl feels abused by the system and this may lead to distrust in the system in the future. I am split on this decision. My hope is the judge, as a unattached party, could listen to the plea of the victim for fairness and base their decision on that and the facts of the case, and make a “fair” ruling.

  • Lawyer Jim says:

    @Chelsea

    What you say is spot on. The judge has a difficult decision to make. The woman involved should have had more say in the matter. Period.

    Problem for reputable judges is that he or she knows much of life is driven by a miriad of emotions. This cannot be just “ignored” because it is comprehensive reality.

    The judge will always have a difficult decision because of all factors involved. Not easy at the best of times.

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