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Jailing Rape Victims

Jill

Is apparently something we do now in the great state of California.

In a case that has pitted law-enforcement officials against advocates of victims’ rights, prosecutors in Sacramento County, Calif., have detained a 17-year-old girl for twice failing to appear in court to testify against the man accused of raping her.

The prosecutors say that testimony from the teenager, who twice ran away from a foster home before scheduled court appearances, is critical in the upcoming trial against a man who has a long criminal record and is also suspected of raping at least one other woman. But the teenager’s lawyer and victims’ advocates say that the detention would discourage others, especially those who have been sexually assaulted, from coming forward. They described the move as a setback in a state with some of the country’s strongest laws protecting victims.

I understand the need to get victims and witnesses to testify. I understand being embarrassed in front of the judge when your lead witness doesn’t show up. But we’re talking about a 17-year-old girl who is a rape victim and in foster care — not exactly someone who has a lot of support or resources, or is living a low-stress life.

The trial against Mr. Rackley is now scheduled to start on April 23. The suspect, a convicted felon with a criminal history two decades old, was identified by the teenager because of a large swastika tattooed on his chest, Ms. Franco said. According to prosecutors, DNA evidence from the suspect was also found on the teenager. Lawyers from the Public Defender’s Office representing Mr. Rackley could not be reached for comment.

I can’t imagine why a teenage rape victim who lives in a foster home would be scared to testify against that guy. I’m sure that jail is definitely keeping her safe from a man with two decades of felony convictions, lots of time behind bars and white supremacist ties. Nice work, California. Keep advocating for the public good.

224 thoughts on Jailing Rape Victims

  2. There’s definitely an episode where the SVU squad locks up a rape victim for refusing to testify. But Detective Benson does complain about how she feels terrible about it afterwards.

  3. What’s with the dueling headlines on that article? The headline I see says “Victims’ Advocates Protest as Prosecutors Detain 17-Year-Old Rape Victim in California” but the url says “california-prosecutors-defend-detention-of-teen-rape-victim”

  4. Yet another instance of injustice that discourages me from trusting the law system in the USA.

    This is absolutely horrible.

  6. What’s with the dueling headlines on that article? The headline I see says “Victims’ Advocates Protest as Prosecutors Detain 17-Year-Old Rape Victim in California” but the url says “california-prosecutors-defend-detention-of-teen-rape-victim”

    This happens a lot – the URL was generated based on the original article title that got edited at a later point. There’s probably a way to update it, but most times it seems they don’t bother.

    Re: OP. Well fuck. Wish I was surprised. Not. Court systems tend to care about process, not people. (People *within* these systems care sometimes, but it’s not always enough to overcome.)

  7. Unnamed asshole prosecutors: it may be time to take a step back and try to remember just who it is you’re supposed to be serving here.

  8. It seems like just an extension of the whole idea that as a rape victim, if you don’t prosecute your rapist to the fullest extent of the law, you’re responsible for his actions afterward, forever and ever, amen. Even though the legal system has decades of failing to keep him off the streets, and now all of a sudden it’s this poor kid’s responsibility, for the public good.

  9. This made me ill. If anybody ever has any doubt that our “legal” system (as opposed to “justice” system) is completely unequipped to deal with the complexities of sexual assault, this is yet another case to point to.

    Well-meaning (white) people often forget what nasty streak of white nationalism lives here in California. My father’s been locked up not far from Sacramento and his swarthy Mediterranean-ness was enough for intake to house him outside of the white block (apparently neo-Nazis haven’t come to a consensus on the Portuguese). This poor girl is in so much danger because of this arrest and the prosecutor who decided to lock a rape victim up in a place where her assailant’s allies hold considerable power amongst inmates should be ashamed. Since the assailant is already a felon, it smells like someone at the DA’s office is trying to make sure they get a politically-expedient three-strikes conviction. Despicable.

    Where is Detective Benson when you need her?

    It’s so funny you brought this up, I was just having a conversation with my brother, who wanted to know why feminist me watches Special Victims Unit all the time. He refers to the show as L&O:Soft Core Rape Pr0n Unit. I told him i like imagining a world in which law enforcement gives half as much a shit about sexual assault as they do in that show. For escapist television, one could do worse.

  11. I understand the desire for desperate measures here. This guy will likely rape again if not convicted. It’s a tricky issue.

  12. She is a hostile witness, pure and simple, and the only way to make sure she testifies is to detain her in a single cell. Sad, but true.
    It wouldn’t have come to this if she did not run away.

  13. It wouldn’t have come to this if she did not run away.

    So it’s the *victim’s* fault. Thanks for clearing that up!

    It’s not her fault she was raped. And nor will it be her fault if this guy rapes 40 more women. There is one and only one person responsible, and it’s the dude who did the raping.

  14. Of course she isn’t responsible for his rapes; she is only responsible for her escapes. If she testifies the rapist will probably go to jail; if not, well, he has a good chance of wiggling his way out of this.
    Well, her choice.

  15. Nothing like a sensationalist headline to get the adrenalin flowing, eh.

    How about “Prosecutors do everything they can to get a rapist off the streets and into jail”?

    The rape wasn’t her fault. The non-prosecution of the rapist might be. Why are people so insistent that every victim has to be so pure and clean, and never have any fault laid on them?

  16. See? You’re still blaming her for his future rapes. Well done.

    And she bloody well ought to have the option of not testifying. Please keep this case in mind the next time you see a woman chided for not reporting her rape.

  17. Wirbelwind, the reason many victims do not testify or even report their cases is because rape has a low conviction rate, and there is substantial risk to the victim of character assassination in court and exacerbated trauma. To blame the victim for her own imprisonment is to display a massive failure of understanding and empathy. She seems to have weighed the costs and benefits and come to the conclusion that testifying is likely to cause more harm than good. It is a travesty that such a calculation is often quite accurate, even in 20 fucking 12.

    At any rate, imprisoning harmless people who just want to be left alone is an absurd abuse of human rights and a waste of resources.

  18. “I’m not blaming the rape victim, but I’m blaming the rape victim.”

    Excellent contribution, wirbelwind.

  19. When I was 19 years old, I lived for the summer in the same mid-sized city I went to college in. (Steel town) I was assaulted on my way home from the bus stop in a fairly busy part of town.

    It took the cops three months to arrest the man who assaulted me, even though I identified him to them that night.

    When I showed up for court, and felt uncomfortable and railroaded by the DA, and decided to leave, it took them less than a day to send a warrant to my house letting me know that if I didn’t come to testify at the next court date, I would be arrested.

    I’m not at all surprised by this. Just sad.

  20. Thinking some more about how because this involves a rape, it’s easy to see it in sensationalistic terms.

    Suppose the girl was the victim of some other crime. What if the criminal beat her up and robbed her, and any prosecution of him depended on her showing up in court. So she runs off instead of testifying, and the prosecutors resort to jailing her to make sure she’s available.

    Now is this an issue that people here would get worked up over? I don’t think it is. I don’t think there’d be a headline saying “Jailing Assault and Robbery Victims”, and in fact I’d bet that it would never have caught Jill’s eye in the first place. The difference is the emotion it stirs up in us. Maybe that’s understandable, but I do think we ought to separate the way the legal system works (if you have information that’s needed in a legal case, you have no option but showing up and telling it) from our anger over “blaming the victim”.

  23. Well, she can do whatever she pleases.

    Absolutely. You know, except live without the trauma of having been raped. That is, up to Wirbelwind’s standards. But aside from that, yeah.

  26. Wirbelwind is being an epic troll. Congrats, Wirbelwind, you have no empathy!

    I’m suprised by all the love for SVU in the comments. All I ever see when I watch that show is cops yelling at rape victims “for the common good”, just like in this case here.

  27. Now is this an issue that people here would get worked up over? I don’t think it is. I don’t think there’d be a headline saying “Jailing Assault and Robbery Victims”

    I would be, actually. It’s not about it just being a rape case – it’s about how fucked up our general approach to “justice” is when it’s all about punishment and not about healing and restoration.

  28. Actually, I have empathy. The guy was released last time because a girl didn’t want to testify- just like her now. It seems they are now determined to put him in jail once and for all- that’s why they detained her after two escapes. And I know that testifying can be painful, but doing so can prevent other rapes from happening- she can help justice that way.
    Healing and restoration are important parts of justice, but without punishment for crimes justice is just a joke.

  29. Thinking some more about how because this involves a rape, it’s easy to see it in sensationalistic terms.

    Suppose the girl was the victim of some other crime. What if the criminal beat her up and robbed her, and any prosecution of him depended on her showing up in court. So she runs off instead of testifying, and the prosecutors resort to jailing her to make sure she’s available.

    Now is this an issue that people here would get worked up over? I don’t think it is. I don’t think there’d be a headline saying “Jailing Assault and Robbery Victims”, and in fact I’d bet that it would never have caught Jill’s eye in the first place. The difference is the emotion it stirs up in us. Maybe that’s understandable, but I do think we ought to separate the way the legal system works (if you have information that’s needed in a legal case, you have no option but showing up and telling it) from our anger over “blaming the victim”.

    Well, like it or not, rape has historically been treated differently than other crimes, and has significantly lower reporting rates than other crimes. The evidence allowed to be presented against the victim at trials for sexual assault was long far outside what was allowed for other crimes — hence the necessity of rape shield laws.

    There’s also a balance of interests here. The prosecution is very loudly making this about the “greater good” — that not jailing this young woman might mean that the guy goes free. But that’s pretty short-sighted, since jailing rape victims might ultimately mean that even fewer women report rape at all. Which certainly doesn’t help the greater good.

  30. Tei Tetua, since rape is a well-established feminist issue, people being unjustly jailed for other reasons might not make it onto the Feministe front page. However, I wager that most of the people on Feministe would be equally opposed if the issue were robbery or physical assault instead of rape.

    Victims of rape, again, face potential character assassination and emotional trauma in court that victims of other crimes usually do not. This informs our perspective on why it is cruel and unjust to punish a rape victim for refusing to testify.

  31. This makes me just seethe with rage. And seriously, these victim-blaming comments? That sure didn’t take long!

    I’ve had this type of argument (Re: Being the victims responsibility to get the perp locked up) a few times – with people who I thought were my friends. It pretty much always goes like this:

    1. “You didn’t call the cops? How could you let him get away with that? Don’t you know he’s going to do this to his next girlfriend? Don’t you care about her? What do you mean, there’s no evidence and (inner city) police will just blow you off? What about those rape kits you always hear about?! They could have convicted him based on the vaginal tearing and injuries like that!”

    2. “What do you mean, there was no vaginal tearing? I thought you said it was rape? What about the bruises? No bruises, either?! That’s not rape!”

    3. Me: D: D: D:

    Seriously, is there some sort of “How To Be A Victim Blaming Bastard When Your Friend Shares An Important Life Trauma With You” handbook floating around out there?

    Oh, right, there is. It’s called The Media and Our Justice Legal System.

  32. Wirbelwind, you are only presenting a case for why it is worth it to testify. Your failure comes in presenting a decent case for why this person should be jailed. That is why we are attacking you on empathetic grounds.

  33. Suppose the girl was the victim of some other crime. What if the criminal beat her up and robbed her

    Except that robbery victims aren’t dismissed by cops as having asked for it or having “buyer’s remorse.” No one wonders if maybe, possibly, perhaps, the victim consented to being robbed. They aren’t aren’t called sluts and demonized in the courtroom. They aren’t subjected to physical examinations of their genitalia. No one cares how drunk they were when they were robbed. No one asks if they were a virgin, because it doesn’t freaking matter.

    There are a whole lot of reasons why rape victims may not want to become involved with the legal system in the US that just don’t apply to the victims of other sorts of crimes.

  34. Well, I understand that she was detained because of her two escapes right ? It also seems clear she does not have any “roommates” and is treated properly. I know it’s a pain to be detained, but do you see a better way to make sure she testifies ? A 24/7 police escort ?

  35. Wirbelwind,

    The problem is MAKING her testify. She should have the option no to, and she shouldn’t be jailed for exercising that option. Because seriously? If it were me in her shoes, facing the same thing? I wouldn’t report the rape. How does THAT help anyone?

  36. @ Wirbelwind

    You’re missing the point. We’re not outraged because we think there’s a “better way” to force someone to testify against her rapist. The outrage comes from the fact that it is not anybody’s place to force her to do that. ‘Cause, like, no. There’s not. Not even for the “greater good”. No. Nope.

  38. Yes, victims should have the option not to testify without repression, which will most likely result in more rapists walking free.

    Less (re-)traumatisation for survivors, fine, but I can’t see how this will do anything good to get reporting rates up, let alone conviction rates.

  39. Well then, let’s agree to disagree.

    No. You don’t get to continue on being a judgmental asshole on the [remiae that this is simply a difference of opinion. Getting up in frpnt pf a room full of strangers ans explaining in detail how you were raped isn’t just embarrassing or inconvenient. Very often its traumatizing. Even without your rapist staring at you and his defense attorney preparing to cast you as a lying slut. Until you’ve experienced that or even metaphorically held the hand of a survivor trying to get through that experience you can take your reasoned disagreement and shove it.

  40. Ha. All the people here claiming that if only this victim testifies, the rapist will be jailed and justice will be served! Obviously you know nothing about how rape is (not) prosecuted in the U.S. Rapists are rarely caught. When caught, they are rarely prosecuted. When prosecuted, they are rarely convicted. When convicted, they do not receive sentences commensurate with the evil level of their crimes.

    To claim that the only thing standing between rapists and long jail sentences is the refusal of their victims to cooperate is to be willfully ignorant of the facts. It’s also more and better slut-shaming, brought to you by The People Who Know Best – i.e., everyone other than a given rape victim.

  42. @Tei Tetua–

    My mom got the ever-loving shit beaten out of her by a man. He cracked her skull and beat her to the ground twice, and the only way she could even stand the idea of being in the same state as him was to have me or my father within’s arm reach 24/7.

    So, yeah, it would still be a fucking big deal to me if she was sent to jail for not wanting to testify against someone in the fucking white power movement who beat them up.

  43. Why aren’t the prosecutors trying to encourage this teenager to testify using positive reinforcement? Jailing her can only result in worsening the trauma she’s undergoing. The little written about her circumstances are enough to make me wonder what kind of trauma she has already suffered prior to being raped – a 17-year-old in a foster home who runs away to avoid confrontations she fears will not react well to being imprisoned. I’d be willing to bet cash money she’s been placed into harmful living situations by individuals and the state in the past, has developed complex trauma, and is not likely to trust anyone without being shown a lot of compassion and respect. Locking her up is the polar opposite of offering her help and a good, positive reason to participate in the legal process. It’s obvious she’s scared shitless and under enormous stress – how will treating her like she committed a crime help prepare her for dealing with whatever smears and gaslighting the defence is preparing to unleash upon her? Does everyone involved in this decision lack empathy?

    I wouldn’t be surprised if she simply remains silent on the stand. What a shitshow.

    Re: SVU. The show was much more enjoyable before it became CSI: SVU. It was much more watchable before they started doing Government Conspiracy Plots and Bizarre Mid-episode Plot Redirects every. single. week, along with nonlinear storytelling and cheesy intercutting.

  44. Now maybe someone who is a lawyer can correct me if I am wrong… but my understanding is that if you are subpoenaed and summoned to appear in court, it is not optional. Even if you are testifying against the mob and are in fear for your life (or for your families lives) you are required to show up. Granted, you can show up and then choose to say nothing, but you still have to show up.

    Also, it is my understanding that in the cases of minors and young children, video statements are accepted so that they do not need to undergo the additional trauma of appearing in court. If this young woman was in fear of appearing in court (and told the prosecutors about her fear) why was this option not made available to her?

  45. Nobody would be trolling this girl’s decision not to testify if he were, say, in the mob and committed an assault on her. Everyone would understand that she is rightly terrified to testify, due to what she rightly fears the consequences would be. Maybe she is scared for her life, and weighing that against the hypothetical common good, she decides what anybody would.

    But I guess since she was raped and he is just some kind of white power asshole, it behooves her to put her fears aside and testify.

  46. Wirbelwind, Tei Tetua, speedbudget, anyone else “not blaming” her for her rape but blaming her for the failing prosecution of her rapist–please take a minute and think about how traumatizing the process of testifying is for a survivor of rape. It’s not like she just shows up and says, “He raped me, bye now.” He’s in the room staring at her. His lawyer cross examines her and does everything s/he can to humiliate, belittle, and demean her. Not to mention that even if she were to testify, as tinfoil hattie pointed out, that is in NO WAY a guarantee that this asshole will magically be convicted. Rapists are almost never convicted. The statistics are insane. And that is not the victims’ fault either.

    Kara, I’m not sure about the video thing–maybe it varies from state to state?–but based on some things my gf has said (she used to work at a rape crisis center), I don’t think it’s allowed in California. Shreve (in Wyoming) of Daily Coyote has a series of posts starting here about how she was legally obligated to be in the same room as the man who stalked her when she testified due to the Confrontation Clause.

  47. if you are subpoenaed and summoned to appear in court, it is not optional.

    Most prosecutors wouldn’t subpoena a rape victim. Its a shit move.

    Video testimony in California is only applicable to minors under the age of 15.

  48. Hey, does everybody remember all that noise we were making about transformative justice earlier this year? About the need to create a system that centers the needs and well-being of victims?

    The fact that the foster child has been raped means the system already failed. We need a better one.

    If the victim was the daughter of somebody wealthy or well-connected, can anybody even imagine the prosecutors jailing her do refusing to testify? Anybody? Bueller?

  49. Now maybe someone who is a lawyer can correct me if I am wrong… but my understanding is that if you are subpoenaed and summoned to appear in court, it is not optional. Even if you are testifying against the mob and are in fear for your life (or for your families lives) you are required to show up. Granted, you can show up and then choose to say nothing, but you still have to show up.

    Correct. A subpoena is a court order. No matter what crime you are the victim of or witness to, if you choose not to appear or testify, you can be arrested and detained.

    Also, the prosecutor does not represent the victim. The prosecutor represents the government, and generally speaking, the government’s primary interest is in ensuring that criminals are convicted and imprisoned. In many cases, not just those involving rape, what the victim wants and what the prosecution wants are in conflict. Many victims of domestic violence, for example, may not want their abusers prosecuted. Many victims of fraud may not want to testify against the person who stole from them. Many rape victims may not want to testify. This tension is built into the system–while prosecutors should (and usually do) take the victim’s wishes into account, they are not bound by them.

    I’m not judging this girl’s desire not to testify–I have no doubt she is, quite reasonably, scared of this guy. I think the prosecutor should be working with her to address those fears. But there is nowhere in the criminal justice system where the victim’s desires determine the state’s course of action. We do not have a system of private prosecution. The girl may not bear the responsibility for any future rapes this guy commits–but what about the prosecutors? The police? The government as a whole? Are we willing to let them entirely off the hook if this guy rapes another woman? Do they have any obligation to seek rape convictions in cases involving victims unwilling to testify?

    In isolation, the government’s actions here seem pretty reprehensible. But honestly, what happens if rape prosecution (unlike any other crime) is left totally to the discretion of the victims? Is the victim the only person with an interest in prosecution, or does society in general have such an interest? How do we balance those claims to justice in cases where they don’t agree?

  50. I should add, I genuinely don’t know the answers to those questions. On the one hand, jailing rape victims is abhorrent–it seems pretty clear that something went terribly wrong in this case and it is natural to question the prosecutor’s judgment here. On the other hand, I do want to see rapists convicted, and not just rapists who happened to rape women who are willing to testify against them. I think that prosecuting a higher percentage of rape cases is a good idea–even if some of them are unsuccessful, having police and prosecutors who take rape seriously and are willing to go after these criminals is important. I don’t know how to balance these two things.

  51. I feel for this victim, and I’m pretty shocked by some of the bashing she’s taken in this thread. But defendants do have the right to face their accuser, so what is a good way to address the conflicting interests of prosecutors, victims, and defendants?

  52. I just can’t get over the white nationalist ties of the assailant. The victim is essentially a witness against organized crime and should have been treated as such from the get-go.

  53. I keep trying to write a comment that doesn’t run up against the cold hard wall of my desire to swear viciously.

    I don’t give a shit if the state has an interest in prosecuting rapes independent of the interests of the survivor. The state should have an interest in not traumatising rape survivors, and gaoling a survivor to force her to testify is exactly the sort of bullshit which reinforces the traumas of sexual violence.

    I mean, this is California. You want to be serious about sexual violence? Stop spending ridiculous amounts of money on a racist drug war, stop being the civilisation that’s gaoled the greatest proportion of its citizens in history, and maybe you’ll find a giant pile of money to throw at supporting survivors, including in ways that will make it easier to for them to testify against rapists.

  55. I don’t give a shit if the state has an interest in prosecuting rapes independent of the interests of the survivor. The state should have an interest in not traumatising rape survivors, and gaoling a survivor to force her to testify is exactly the sort of bullshit which reinforces the traumas of sexual violence.

    Exactly. Is everyone’s empathy bone broken? A survivor doesn’t owe you shit and particularly doesn’t owe you participation in the farce we call the justice system. Fix the system and perhaps survivors will voluntarily testify.

  56. Prosecutors routinely come up against witnesses who don’t want to testify and have to decide whether to back a subpoena up with jail or let it go if the witness won’t testify. It would be interesting to know what made the prosecutors in this case decide the best choice was to detain this woman rather than drop the case.

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  58. Suspect,

    Just looking at the limited information presented in the article I’d have to guess the severity of the crime coupled with a truly abhorent defendant. I came up against this situation a few times as a prosecutor but only went down this road a couple of times. Both cases were strikingly similar to this one. Needless to say the victims advocates I worked with reacted similarly to many of the commenters here. It’s a very tough, and very emotional, call to make but sometimes it’s necessary to get a demon off the street (at least imho).

  59. I don’t give a shit if the state has an interest in prosecuting rapes independent of the interests of the survivor. The state should have an interest in not traumatising rape survivors, and gaoling a survivor to force her to testify is exactly the sort of bullshit which reinforces the traumas of sexual violence.

    Well said.

  60. Exactly. Is everyone’s empathy bone broken? A survivor doesn’t owe you shit and particularly doesn’t owe you participation in the farce we call the justice system. Fix the system and perhaps survivors will voluntarily testify.

    Totally agree…Or perhaps come up with a way for a frightened victim to not testify and still convict the rapist.

    Having said that, I don’t feel ALL the differing responses are lacking in empathy, some of the commenters are unfortunately giving their empathy to some random future victim (or multiple victims,) over the living breathing victim, which I think is misplaced. I understand these people who want to prevent future rape are coming from a good place, but when there is an actual victim still suffering you shouldn’t allow that to overshadow your empathy towards her.

  61. Everyone saying “but otherwise the rapist will get away” can fix that problem by killing the rapist. That’ll fix it, and they’ll let her go free, and the world will be a better place. And if you don’t, all the trauma they’re putting her through is now your fault.

    Now, that’s a stupid argument, right?

  62. Needless to say the victims advocates I worked with reacted similarly to many of the commenters here.

    So…did you listen to a single thing they said?

  63. Needless to say the victims advocates I worked with reacted similarly to many of the commenters here. It’s a very tough, and very emotional, call to make but sometimes it’s necessary to get a demon off the street (at least imho).

    Yeah, if you’re going to make an omelet, you gotta break a few eggs in the process, amirite?

  65. I’m angry. I wish these stupid fucking prosecutors would take some responsibility for doing their own fucking job properly. They shouldn’t even need this survivor’s testimony. If they can’t convict a violent racist of a rape using DNA evidence then they are just shitty prosecutors and should get another job. And If these prosecutors can’t convict because of the fact that the overall system is broken and they actually care that it’s broken, maybe they should use their political capital trying to transform the system and dismantle rape culture rather than using their political capital to brutually re-traumatize rape survivors. But, of course, they would never make this decision because it goes against their priorities as craven, careerist, power-hungry asshole fucks.

    Everyone saying “but otherwise the rapist will get away” can fix that problem by killing the rapist. That’ll fix it, and they’ll let her go free, and the world will be a better place.

    I’m not sure if this was just a rhetorical device, Thomas, but you are absolutely dead on. Why is it the responsibility of the survivor to step up and stop future rapes? Almost everyone in this society is complicit. Victim-blamers: until you’re doing everything you can to prevent rape, up to and including being a rapist-killing vigilante, shut the fuck up and leave survivors alone.

  67.  If they can’t convict a violent racist of a rape using DNA evidence then they are just shitty prosecutors and should get another job.

    While I agree with the sentiment, prosecutors do need survivor testimony when the survivor is capable of consent. DNA is evidence of sex but not of rape. None of which means that a survivor should provide testimony, only that our legal system requires it to convict

  68. If they can’t convict a violent racist of a rape using DNA evidence

    I completely agree with those who put the interests of the victim first, but this isn’t television. Not all rapists, violent or otherwise, leave DNA evidence. You know that rapists sometimes use condoms for that very reason, right?

  69. Thomas Millar won the thread.

    I think a big part of transformative justice is realizing that the legal system isn’t *failing*, it’s just successfully carrying out interests that aren’t ours.

    So, I mean, should the state have an interest in stopping violence? I don’t know how to make sense of that question, but I know that they don’t. This is in no way a move for the “common good,” it’s fucking disgusting.

  70. Seriously, people? No. No, you can’t convict a rapist just using DNA evidence. Our system is set up so that even the worst people in the world have rights. Including facing their accuser, and having a trial where the prosecutor must prove his/her case beyond a reasonable doubt.

    Does that suck for the victim? Absolutely. I can’t emphasize that enough. We should focus on fixing that, not waste our outrage on prosecutors who are forced BY THE CONSTITUTION to work within that system.

  72. Is the constitution forcing them to imprison a 17 year old kid for the crime of having been raped and being afraid to testify?

    No, and I agree it was a pretty awful thing to do. There were compelling reasons for her being unwilling to testify.

    But due process does require a high burden of evidence. If there’s victim testimony, a prosecutor usually needs it to make his/her case. And the defendant has the right to see that person in court. Again, this is horrible for the victim. I agree with that 100%. My argument is that this horribleness is built into our system, and we should try to change that. Yelling at prosecutors (even ones who deserve it) who use the system in place to get their convictions just seems like a waste of time.

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  74. tholbrook, until this kind of horribleness is produced entirely by individual prosecutors’ shortcomings, and not an entire system stacked against the weak and powerless, I’ll yell all I want, thank you.

    And making it sound like we’re just harping on the prosecutor for doing their job, as many harsh words as there’ve been, completely misses the point. Emphasis on maintaining conviction rates leads prosecutors to play too safely and only take sure fire cases to trial, which too often means a perfect …which is how many sexual assault cases? In today’s climate?

    We know the answer to that one, and it ain’t pretty. One place that mentality leads is from one of the places I went to school, the De Anza rape case, which I believe Cara covered on this very blog. The DA had an intoxicated underage girl, covered in fluids, a room full of intoxicated dudes with their pants down, and two upstanding citizens as eyewitnesses. The DA declined to prosecute, didn’t even investigate really, because we’ll never know what happened, everyone was drunk, blah blah blah, even though a 15 yo can’t consent to a damn thing. Good for her conviction rate, bad for that poor girl who never even got to believe for a minute that society gave a damn about what happened to her.

    These are not isolated incidents. Some prosecutors treat their job like a goddamn baseball game where the stats are everything, and I’m not going to shy away from calling that despicable.

  75. oof, edit. in the post above I omitted the word “victim” in the sentence that should read “which too often means a perfect victim…” Fail.

  76. oof, edit. in the post above I omitted the word “victim” in the sentence that should read “which too often means a perfect victim…” Fail.

    Mind you, a sex worker is believed to be another one of this guy’s victims and the prosecutor’s office felt the teenage girl had a much better chance of getting this guy convicted than the sex worker. If this teenage girl is considered the “good victim” in this case, and they treat her this way, I shudder to think how the prosecutors would treat the “bad victim,” the sex worker.

  77. While I agree with the sentiment, prosecutors do need survivor testimony when the survivor is capable of consent. DNA is evidence of sex but not of rape. None of which means that a survivor should provide testimony, only that our legal system requires it to convict.

    That’s interesting Kristen; I didn’t actually know that. But yeah, like you, I obviously agree that the survivor shouldn’t be pressured into providing testimony. I’m against anyone being forced to testify in court, in general, and I agree with the people who are saying that such coercion seems particularly heinous and uncompassionate in instances like this because a rape survivor is being re-traumatized.

    I completely agree with those who put the interests of the victim first, but this isn’t television. Not all rapists, violent or otherwise, leave DNA evidence. You know that rapists sometimes use condoms for that very reason, right?

    Yeah, Donna, I definitely know that not all rapists leave DNA evidence, and it would be horrible for anyone to say that if there isn’t any DNA evidence, then there wasn’t really a rape. According to the article, this particular rapist apparently did leave DNA evidence. But regardless, I was more just being snotty toward the prosecutors here. What proves he is a rapist (for me) is that the survivor identified him out of a lineup.

    We should. . .not waste our outrage on prosecutors who are forced BY THE CONSTITUTION to work within that system.

    First, I’m not wasting my outrage. I’m both outraged at the criminal injustice system overall for being sexist, pro-rape, and oppressive AND at the prosecutors who play a small but signifcant role in maintaining this system. My outrage at one does not diminish my outrage at the other, rather my outrages reflect and mutually reinforce each other.

    Second, the prosecutors are forced to do no such thing by the constitution. They have free will, you know–same as everybody. And I’m sure that for people with legal degrees and general backgrounds such as theirs many various careers are available. They could’ve gotten jobs as lawyers for the ACLU, for instance. Or as sandwich artists at Subway. I don’t care. In any event, this is the job they did choose, and if they are going to choose to do shitty, abusive things in the course of performing that job, oh well. But I’m not going to personally give them a pass just because some people are all “boo-hoo they had to do it because of the Constitution and if they didn’t do it they might eventually get fired.” Tough. I’ve been fired from jobs because I refused to use my postion to violate someone else’s rights at my superior’s command. Thus “I was just doing my job” usually doesn’t cut it for me, particularly when we are talking about people of high socioeconomic status who have many other options.

    tl;dr: If you crave my approval then don’t get a job for a criminal injustice system that primarily serves to defend patriarchy, rape culture, capitalism, white supremacy, and heteronormativity.

  78. Is the constitution forcing them to imprison a 17 year old kid for the crime of having been raped and being afraid to testify?

    If her testimony really is critical for a successful prosecution, then the choice seems to be between
    1. Force her to testify, or
    2. Let the rapist walk

    I do not see an obvious answer to this dilemma and based only on the very limited information in the NYT article I can not say that the prosecutors made the wrong choice.

  79. Including facing their accuser, and having a trial where the prosecutor must prove his/her case beyond a reasonable doubt.

    …Isn’t the government the accuser here? i.e. “The state vs. this asshole rapist”?

  80. Since the (very!) creepy trope of rape vs. robbery has been brought in, I will point out that robbery is routinely prosecuted successfully without a witness. Why can’t rape be treated the same? Why does it need to boil down to he said vs. she said when there’s plenty of physical evidence for the case?

  81. I know it’s a pain to be detained,

    No. It is “a pain” to be caught in traffic when already running late. It is “a pain” to have to schlep into work on your day off for an hour-long meeting when your commute is longer than an hour each way.

    It is not “a pain” to be imprisoned and denied the most basic freedoms in the wake of being raped. It is a re-traumatization of the most disgusting kind that causes intense misery and will leave permanent scars.

  82. I will point out that robbery is routinely prosecuted successfully without a witness.

    OT, but is this really the case and if so how would that work? With no witness it would seem hard to tie the robber to the crime (assuming you do not for example have the luxury of video evidence).

    (Btw I do agree robbery is a poor analogy for rape, which is why I judged this whole question OT above)

  83. I pretty much agree with what you’ve said, Gratuitous_violet. I didn’t mention conviction rates in my post, but it does create poor incentives as far as choosing which cases to prosecute. It comes back again to the defendant’s rights. If a prosecutor can’t meet the burden of evidence, they can’t convict (and therefore won’t prosecute- again, I think we agree on how horrible this is).

    As far as why victim testimony is needed for rape, it has to do with how the statutes are written and the elements of the crime the government must prove. For example burglary at common law is “breaking and entering the dwelling house of another with the intent to commit a felony therein”. All of those things can presumably be proven without the victim. Rape, on the other hand, requires proof of “without (her) consent”. Pretty hard for the government to establish without victim testimony.

    Also, the confrontation clause extends to witnesses and the right to cross-examine them. So yes the government is bringing the charges, but that case relies on the victim’s accusation so the jerk gets to face her in court.

  84. Isn’t the government the accuser here? i.e. “The state vs. this asshole rapist”?

    I think that the issue is with testimony. One of the lawyers in the house can certainly speak to this better than I can, I’m usre, but my understanding is that, because of the Confrontation Clause, the defendent has the right face *all* accusers. That means they have the right to question anyone who is providing testimony relating to the charges. So, if the state is basing their charge on the victim’s testimony, then the defendent has the legal right to cross examine the victim. If the state has a case without the victim’s testimony, then the perpetrator wouldn’t have a right to question her. For example, if they found out about the rape through some other source.

    That’s easier with other types of crimes, though. If someone robs a bank, there are cameras showing it happen, so you might not need the testimony of any particular victim. Because rape is about (lack of) consent, the testimony of the victims tends to be significantly more important.

    Jailing the victim for refusing to testify, though… so wrong. Indefensible to me.

  85. Something that I think is getting missed in this discussion and that wasn’t really addressed well in the article itself is the fact that this girl is a minor ward of the state. Granted, I don’t have first hand knowledge of how the deliquency laws read in California, but I am very familiar with them here in Illinois. Running away from a foster home repeatedly is sufficient for a ward to be remanded to a locked Juvenile facility, and one may make the inference from these facts that this victim was declared delinquent as a result of her runaway status. Furthermore, the refusal to cooperate with a criminal subpeona is additional grounds for remand here in Illinois.

    As far as why victim testimony is needed for rape, it has to do with how the statutes are written and the elements of the crime the government must prove. For example burglary at common law is “breaking and entering the dwelling house of another with the intent to commit a felony therein”. All of those things can presumably be proven without the victim. Rape, on the other hand, requires proof of “without (her) consent”. Pretty hard for the government to establish without victim testimony.

    This is absolutely correct, burglary is often committed in the absence of the homeowner/tenant and thus does not necessitate her first person testimony in order to gain a conviction. Unfortunately, rape does require the victim to testify in open court. Some states do permit minors to testify via close circuit camera in certain situations, but in my experience that is often limited to very young victims.

    In the bigger picture, I agree that the punitive nature of this string of events is pretty horrible for this victim. I don’t doubt that she is only being further traumatized by her circumstances. I don’t have an easy solution to how to deal with the balancing of the victim’s right to refuse to testify with the state’s interest in trying the defendant.

  86. The defendant has a right to confront anyone who testifies against them. That doesn’t just mean witnesses who testify in court — if the prosecutor wants to use a statement that the victim gave to police, or a diary entry she wrote, or her testimony at an earlier proceeding at which the defendant didn’t have the chance to cross-examine her (like a grand jury), they can only do so if the defendant is given the opportunity to cross-examine the witness at trial.* That’s a basic right, and it’s an important one.

    The Constitution does *not* require that the defendant have the opportunity to cross-examine the victim if the victim does not give testimony against them. If you murder someone, you don’t get to walk free because you don’t have a chance to cross-examine your accuser. If someone tells police they saw you steal something and the only evidence the prosecutor uses at trial is surveillance video of the theft, the defendant doesn’t have a constitutional right to question the person who reported them to police.

    But as a lot of commenters have pointed out, victim testimony is often essential in sexual assault cases. Many assaults do not leave DNA. Many victims do not report in time to collect DNA. Many people accused of sexual assault admit that sexual contact occurred, but claim it was consensual. In many cases (though certainly not all), the assault happens in private, where there are not other witnesses. In short, in many cases it is impossible to successfully prosecute sexual assault without victim testimony.

    We shouldn’t try to minimize or ignore that fact when having this discussion. Because if the choice was between jailing a teenage victim of sexual assault who was too scared to testify against her assaulter, and letting the defendant go free, the prosecutors should have chosen the latter.

    I’m fully aware of how subpoenas work and the fact that crime victims are sometimes made to testify against their will. But there are two factors that I think make sexual assault (and I would add domestic violence and child abuse to the same category) a situation in which the victim should never be jailed for not testifying: (1) the level of trauma that victims–especially victims who are so opposed to testifying that they would rather go to jail–experienced from the crime and would experience from being forced to testify about it; and (2) the fact that the justice system is so uniquely terrible at prosecuting these offenses. If you’ve ever seen victim testimony in a sexual assault case and victim testimony in a robbery or simple assault case, you know the difference. Sexual assault cases require incredibly invasive, traumatizing testimony from a victim. They have to describe exactly what was done to them. They often have to describe their past sexual experiences with the perpetrator. They have to answer questions about whether they initiated the sexual act, whether they did something to indicate they wanted it, what they’ve told other people about the assault, whether they have a motive to lie about what happened to them. And they are more likely than any other kind of victim to be disbelieved by the jury and to see their attacker walk free anyway.

    That isn’t meant to discourage victims of sexual assault from testifying. Most cases that get to trial still result in a conviction. Victim testimony is often incredibly important, and courts are getting better (not fast enough or to a great enough extent, but they’re progressing) in providing resources to support victims and in preventing unnecessary and irrelevant questioning of victims. But there are still plenty of very compelling reasons that a victim of sexual assault might rather see their attacker go free than be forced to go through testifying at trial. And while the decision is the prosecutor’s–both whether to bring a case and whether to force a victim to testify–they have discretion for a reason. This is one of the situations in which they should have used it.

    * This is obviously oversimplified, and there are exceptions.

  87. Btw: I do not believe I have seen a reference to this slightly related UK case on Feministe.

    It’s about “…a mother of four young children who was jailed for falsely retracting an accusation of rape against her allegedly violent and abusive husband.”

    I think that is an even worse case than this one, since in that case it will not even help with getting the rapist off the streets.

  88. It looks like she’s been released, but still wearing a GPS ankle bracelet. But at least the judge said he was sorry.

    I also like how suddenly she’s an “alleged” victim. I get that it’s a journalistic and legal convention to prevent libel, but my understanding is that since there was DNA evidence of sex and she was (and still is!) a minor, she is automatically a victim.

    The phrase just gets my hackles up. If they stuck to the phrase “alleged assailant,” it would cover the same legal ground without directly implying victims were making up the attack itself, no? Without creating a journalistic convention steeped in rape apologism?

  89. Running away from a foster home repeatedly is sufficient for a ward to be remanded to a locked Juvenile facility…

    Here in TN, she would’ve been placed in a group home. If she ran from there, then she would’ve been referred to a hardware-secure youth development center with a waiver (normally, a juvenile has to be convicted of 3 felonies in order for a YDC to be considered).

  90. The Confrontation Clause itself does not require the victim to testify. What it means is that if the words of the victim are used as evidence against the defendant, the defendant has the right to cross-examine her; therefore, you can’t substitute a video of her relating her story or the police report of what she said, because the defendant can’t cross-examine that.

    It doesn’t matter how the police learned of the rape or what the prosecutor relied on in deciding to prosecute the defendant–if they have sufficient independent evidence such that they don’t need to use her words at all, they don’t have to call her. But if they do use her words, then she has to be available for cross-examination.

  91. Just an FYI: It appears that the defendant is not charged with statutory rape, but with kidnapping and forcible rape. The victim’s testimony is probably necessary for those counts. According to the news, the government had to drop the charges when the victim didn’t appear before, so they evidently can’t make the case without her.

    I don’t think this is about a lack of empathy with the victim. It’s about balancing that empathy with the desire to see rapists punished and incapacitated. For some people, it’s easy–whatever the victim wants is what happens. For others, though, it’s not so easy–defendants will get away with rape if the victim’s desire not to testify is the end of the story. I don’t like the idea of rewarding a rapist for intimidating his victim. I don’t like the idea that he gets to keep raping people because he chooses vulnerable victims. That’s not the victim’s responsibility, of course, but maybe it is the prosecutor’s responsibility to consider all those things.

  92. This is a mess, plain and simple.

    1)How many other rapists are going to get away with it all the easier with this message sent to victims that this is what could happen if you report a rape?

    2)The rapist is a white supremacist. The victim is, as I understand it, a woman of color. The white supremacist movement has more people in it than this guy. Ergo, she will be endangered by testifying. You can bicker all you want about the ethics of a responsibility to testify, but they need to do more about making it safe for her to testify.

    3)They are going to challenge her testimony as being given under duress.

    4)It’s a small thing, but I’ve heard of dogs being used to come up to the stand with victims so they can have something soft and furry and warm and comforting to hug while they testify—usually for kids who testify against molesters, but it might be helpful to this young woman. It is something they should offer.

    5)Shitty behavior pretty much all around. The judge apologized, which is good, but the way she’s being treated by everyone else? I mean, if you’ve gotta be ethically bankrupt in pursuit of some greater justice, at least be honest and kind about it. Something like “I’m sorry, [insert reasoning] requires that we hold you and compel you to appear in court,” and then keep her someplace comfortable with access to recreational activities and contact with loved ones, and some fucking therapy, dammit.

  93. It’s about balancing that empathy with the desire to see rapists punished and incapacitated.

    As Thomas pointed out @61, any of us can choose to take steps to incapacitate any known rapist at pretty much any time. I’ve never done this, and I’m not necessarily saying I ever will, but clearly the responsibility for incapacitating rapists rests on all of us who live in this society, not merely on those who work for the criminal injustice system. I think the idea of trusting prosecutors to stop rapes when they are people whose job is partially to uphold some of the key institutions of rape culture is a very misguided idea.

  94. @Grace #46 oh dear Lord was I that unclear in my comment? I didn’t read the rest of the stream BUT I APOLOGIZE PROFUSELY if my comment at 45 came off sounding like I was blaming her for not wanting to testify. I don’t use sarcasm tags.

    I thought I was pretty clear, setting up a situation in which people would support her decision not to testify, and then showing this as a similar situation, but I supposed I wasn’t?

    Jesus. I am a victim of rape, and NO FUCKING WAY was I going to go to court and testify. I would never question any other person’s choice. I just. . .Wow. I feel like shit now. So very sorry. Will try to be clearer in future.

  95. I’m reading that again, and I don’t see it, but really, I am so, so sorry.

    And I am not even blaming her for the prosecution not being to do what they need to do. Maybe if we weren’t so wrapped up in a rape culture and so hell-bent on keeping it this way we wouldn’t need to force ONE of the many victims, the one with the least resources, to testify.

    And, Grace, believe me. I work in a court room. I know exactly what goes on in there, and I really. I am sorry. Would never force anyone.

  96. I don’t think this is about a lack of empathy with the victim. It’s about balancing that empathy with the desire to see rapists punished and incapacitated. 

    No. There is no balancing here. Its an either/or proposition. Its a choice between allowing a rapist to go free possibly resulting in another woman being raped or retraumatizing a rape victim by forcing them to cooperate in a sexist and hostile process in which they may be hurt both physically and psychologically. So pick your poison, causing harm directly by your own action or indirectly by failing to prevent another from causing harm. That is the moral dilemna.

  97. Just to pile on people who think eyewitness testimony isn’t necessary because we have the wizardry of forensics, here’s a great WaPo article about how the Justice Department has, for years, suspected that they’ve convicted and incarcerated thousands of innocent people based on faulty DNA evidence and have done absolutely nothing to stop it.

  98. I don’t like the idea of rewarding a rapist for intimidating his victim. I don’t like the idea that he gets to keep raping people because he chooses vulnerable victims. That’s not the victim’s responsibility, of course, but maybe it is the prosecutor’s responsibility to consider all those things.

    Certainly, but I think that the way to combat that isn’t to intimidate and bully witnesses on the other side, too, which is what it ends up feeling like, to me. “Oh, you’re afraid of the person who assaulted you? Well, we’re going to threaten you with jail unless you testify. Which are you more afraid of?” The message that sends is “Don’t report the crime unless you’re 100% sure you’re willing to testify, no matter what.”

    I think that a better way would be to work hard to make sure that there are resources for survivors to help them not only feel, but be, safe when they make the difficult choice to press charges. This woman needed an advocate who could help her, and if she decided that she didn’t want to testify, I think that her choice ought to have been respected, even if it’s not what the prosecution wanted.

  99. I’m suprised by all the love for SVU in the comments. All I ever see when I watch that show is cops yelling at rape victims “for the common good”, just like in this case here.

    There are a lot of episodes and I can’t defend all of them (I’ve especially stopped watching the more recent seasons), but there really is something appealing about the idea that there are these squads of police out there who dedicate their lives to protecting victims of sexual assault, and that care about it so dramatically.

  100. Apparently some people aren’t cognizant of the fact that Thomas was being sarcastic.

    We give alleged rapists trials because the alternative , besides rewarding false accusations, is an anarchy where anyone is vulnerable the moment they run afoul of a convincing liar.

  101. Everyone saying “but otherwise the rapist will get away” can fix that problem by killing the rapist. That’ll fix it, and they’ll let her go free, and the world will be a better place. And if you don’t, all the trauma they’re putting her through is now your fault.

    Now, that’s a stupid argument, right?

    Yes, that certainly does constitute a stupid argument, in addition to showing a mastery of irony on your part, but the conclusion that we (i.e. society) are somehow to blame is more convincing to me than that the victim is to blame.

  102. Why not jail rape victims? If they commit a crime that calls for jail time, they should be jailed, regardless of whether they are rape victims or really nice people or from foster families or have tough lives or any other inane drivel that, of course, doesn’t actually absolve people who break the law from serving prison time.

  103. but there really is something appealing about the idea that there are these squads of police out there who dedicate their lives to protecting victims of sexual assault, and that care about it so dramatically.

    You evidently have not heard much about NYC’s unit. Did you know that if you ask to speak with a woman cop, you must be a liar? This message has been brought to you by the NYPD.

  106. @Brocephus: Theoretically you could read the heading and first line of the OP like that if you took it out of context and wanted to do some pointless trolling.

    However, it might be more useful to address the actual content of the post.

  107. You evidently have not heard much about NYC’s unit. Did you know that if you ask to speak with a woman cop, you must be a liar? This message has been brought to you by the NYPD.

    Um, I said I liked the TV show, not the actual real-life NYC cops.

  108. Brocephus, people are upset she’s in jail because SHE DIDN”T COMMIT A CRIME!!!!!!!!!!!!!!!!!!!!

    Well, I am not Brocephus, but…. well, she did commit a crime. Now, you might disagree whether or not it was a crime that should result in detention (regardless of her victim status) but that doesn’t change the facts stated in the article.

    According to the article she was jailed for ….

    twice failing to appear in court

    … which is a crime.

    As other posters have pointed out, ignoring a subpoena/summons to appear in court is a crime which can result in detention. And other posters also pointed out that she is a runaway juvenile ward of the state, which means she could be declared (has been declared apparently) delinquent and be remanded to detention.

    And she is in a juvenile detention center, not an adult jail.

    Being a rape victim is not a (forgive the phrasing) “get out of jail free card”. One can be a victim of a crime and someone who has acted in violation of the law at the same time.

    Yes, it is terrible that a rape victim has been detained. But, her lawyer should have walked her through her options and helped her find some kind of middle ground that was acceptable to her… the lawyer should never have allowed things to get to the point where her client was detained for twice ignoring a subpoena. I would want to know why this young woman’s lawyer failed her so badly.

  109. @Kara,

    You know what? Fuck right off. Seriously. You know zip about law (including that failure to appear is not criminal). Your victim blaming comparison off criminal access is disgusting. That you are now blaming her advocate (assuming she had one) shows how little you understand the stress this *child* is under.

  110. @speedbudget–Sarcasm is so hard on the internet! Rereading your comment, I should have noticed it! No harm done, really.

  111. I hate Swype. “of comparing criminal acts”. Sheesh. Can’t even properly rant on the interwebs.

  112. Wow. Are you people (Brocephus and Kara) just right-wing fucking morons or what’s the deal? No one here cares if she committed a crime. It’s a fucking crime to be gay in Uganda. It’s a crime to carry a small amount of marijuana in your back pocket. Are you people taking talking points from the anti-immigration people–“these Mexicans broke the law!! OMG!! Evil! This is America! We’re descending into lawless chaos!” If this rape survivor did, in fact, break the law then this just makes this whole situation more of an atrocity. This means that not only are these prosecutors completely insensitive fucking assholes but there is also a mega-stupid fucking law that needs to be changed ASAP. So please just eff off.

  113. I would like to third the sentiment that Brocephus and Kara should fuck off.

    Because seriously.

  114. Raincity, Matlun: Wait, I’m the one who needs to read the content? She was detained in a juvenile holding center, to make sure she testified, because she ignored a subpoena. This was a proper administration of justice. Do either of you think she did not, in fact, commit a crime? Because that would indicate either poor reading comprehension or a poor understanding of the US justice system.

    And Lotusbecca, “Subpoena” means “under penalty.” The witness is required to bring evidence to the court, under penalty of fine or detainment. This is an extraordinarily useful right, dating back to English Common Law, and is not really on par with “being gay in Uganda” or whatever BS. Also I’d like to know why exactly you think that bad laws existing in 3rd world countries makes it is excusable to disobey a subpoena in the US. It sounds like utter stupidity but my interest is piqued.

  115. Being a rape victim is not a (forgive the phrasing) “get out of jail free card”. One can be a victim of a crime and someone who has acted in violation of the law at the same time.

    Fuck you. This is not a goddamn matter of a rape survivor committing a crime completely unrelated to the crime against her and people saying she shouldn’t be put in jail for the completely unrelated crime. She was put in jail for the crime of being a frightened rape victim who didn’t show up to testify against the man who raped her and who still fucking terrifies her. She is being punished for THAT.

    Seriously, what the blue fuck is wrong with you defending this shit?

  116. No, Annaleigh, being a frightened victim is not a crime and she is not being punished for that. She is being detained, probably as a ward of the state, for violating a subpoena. She had the option to contest the subpoena, and instead decided to ignore it. What about this is NOT a case of a victim being guilty of a separate crime? The law is objective, there is no room for the sort of thinking that says “rape victims can ignore subpoenas because they are scared.” The point of a subpoena is to compel people to bring witness, and any wiggle room has to be granted by a judge (which might have been granted had the witness asked for some). If the only necessary witnesses were people who weren’t scared or intimidated or whatever, there would be no need for a subpoena.

  117. Brocephus, my point was the most laws are bullshit so if someone does break a law and gets unjustly and brutually punished (like this teenage girl who is a rape survivor), then that means the law is shitty and should be changed, not that she deserves the abuse she got from the legal system. Not sure how to make my point any clearer. I don’t expect you to agree, but I’m being pretty clear I think.

  119. LotusBecca most laws are bullshit? What if a person who had witnessed the rape and could potentially convict the perp was given a summons, but he was also too scared to testify and instead ignored the subpoena? Since when is being intimidated a legitimate excuse to break a law?

    She was not unjustly or brutally punished, she was put in a juvenile detention center, which was probably the only way the court could get her to testify. What you’re saying is that detaining a person who does not respect a subpoena is brutal and unjust, but what I’m saying is that the law does not (and should not) discriminate based on victimhood or “how intimidated someone is.” If it did, the door would be opened for much more abuse than our current “bullshit” laws allow.

  120. she was put in a juvenile detention center, which was probably the only way the court could get her to testify.

    Load of bullshit. If we had a government that cared about creating and maintaining support systems and services for rape survivors, more survivors would testify; if the government has no interest in doing such a thing, that says something about our national priorities, and the court has no place punishing survivors in order to get them to testify.

  121. I’m sorry Angel, I don’t understand the question. Law is, by definition, objective. It is not arbitrary or whim-based. It does not, for example, say that a rape victim can ignore a subpoena while the rest of America cannot, no matter how frightened she may be.

  122. EG the court absolutely has the right to detain people who refuse to testify. She is not “being punished in order to testify,” they aren’t torturing her for her testimony. She has a legal responsibility to show up in court and bear witness, and that is undisputed. How she gets there is her choice: she can either go freely or the court can detain her.

  123. No, Annaleigh, being a frightened victim is not a crime and she is not being punished for that.

    This is one instance of intention being meaningless.

  124. Let’s cut this “it’s just a juvenile detention center” bullshit right now. Do you want to know what happens when a youth enters custody?

    First, strip search.

    Second, drug test while an officer watches the youth urinate to make sure that the urine isn’t being substituted for somebody else’s.

    The youth is then taken to a clinic where they must take a shower and submit to a full physical, including having blood drawn and their genitals swabbed. If any of this is refused, the youth is put into an isolation cell until he/she complies.

    This is not the kind of shit that a rape victim needs to go through just because she was too intimidated to testify. And if they drag her into court, so what? They can’t make her open her mouth. They can’t make her speak. Then what? They lock her up until…when? How is anyone supposed to benefit when the law is misused in order to bully a child this way?

    This arrest was bullshit. The law is bullshit. The heavy-handed prosecutor is bullshit. The system is bullshit. “Objective”, my ass.

  125. I’m sorry Angel, I don’t understand the question. Law is, by definition, objective. It is not arbitrary or whim-based.

    Bullshit. The very idea goes against the racist, misogynist, homophobic, and transphobic laws that have existed – and continue to exist – in this country.

  126. Wait…Where is the code cite for the criminality for a failure to appear as a witness? You still haven’t demonstrated that a crime was committed.

  127. EG the court absolutely has the right to detain people who refuse to testify.

    That’s not what’s up for debate. What’s up for debate is whether the court should exercise that right in this case.

    She is not “being punished in order to testify,” they aren’t torturing her for her testimony. She has a legal responsibility to show up in court and bear witness, and that is undisputed. How she gets there is her choice: she can either go freely or the court can detain her.

    So…she’s not being punished in order to force her to testify, but if she doesn’t testify freely the court will detain her? Do you see the contradiction there? She is absolutely being punished in order to force her to testify. Otherwise, they could put her up in a nice hotel somewhere without strip-searching her (thank you, Angel, for the info; I had suspected as much, but didn’t have it in me to do the research just now).

  128. Angel that’s all very informative and tragic, but I’m not suggesting that all child victims be placed in custody. Just ones who violate the law.

    And it is true that objectivity is difficult to attain when our laws are created and enforced by error-prone humans. But this is clearly not a case of too much objectivity, wouldn’t you say? She is being treated as would any person who ignores a subpoena. And yet you seem to think that, by treating rape victims differently from the rest of society, we would actually be more fair? Please explain.

  129. Kristen J

    California Code Section 1993
    “the court may issue a warrant for the arrest of a witness who failed to appear pursuant to a subpoena or a person who failed to appear pursuant to a court order. The court, upon proof of the service of the subpoena or order, may issue a warrant to the sheriff of the county in which the witness or person may be located and the sheriff shall, upon payment of fees as provided for in Section 26744.5 of the Government Code, arrest the witness or person and bring him or her before the court.”

  130. And it is true that objectivity is difficult to attain when our laws are created and enforced by error-prone humans. But this is clearly not a case of too much objectivity, wouldn’t you say? She is being treated as would any person who ignores a subpoena. And yet you seem to think that, by treating rape victims differently from the rest of society, we would actually be more fair? Please explain.

    Whew…It must be difficult to maintain that level of cognitive dissonance. Laws are tools for maintaining order. In so far as they are used by magical fairy people that are objective, laws usage will be objective. When used by people they are as biased as we are. Very few prosecutors will subpoena a victim because forcing someone to undergo that trauma is fucking evil.

  131. And yet you seem to think that, by treating rape victims differently from the rest of society, we would actually be more fair? Please explain.

    I’m saying that the system shouldn’t punish the ones it’s meant to protect, especially the most vulnerable. If the only answer is to bully a child rape victim into submission, then someone isn’t asking the right questions.

  133. She is being treated as would any person who ignores a subpoena. And yet you seem to think that, by treating rape victims differently from the rest of society, we would actually be more fair? Please explain.

    Except that she’s not.
    There are plenty of cases where complainants refuse to testify, even in the face of subpoenas. It is a choice whether to detain and try to compel testimony at that point. In this case it was decided to detain and incarcerate the victim of the crime being prosecuted to try to force her to testify. These things are not, as you seem to be implying, automatic and across the board. Might her refusal to testify result in her attacker escaping justice? Yes, that’s a possibility. But, no, there’s not actually some sort of universal standard response in these kinds of cases. The court could have decided not punish her for ignoring the subpoena. They chose to detain her. Someone actively had to sign off on that and say “Yes, find this person and detain her.” It didn’t just automatically happen.

    And, frankly, yes, I do think that some consideration needs to happen with regards to trying to compel the victims of violent or traumatic crimes to testify. I think that detaining them against their will and trying to use force to compel testimony is further victimizing people who’ve already been through shitty situations. Context is important, even in law.

  134. KristenJ & EG & Angel

    She is not being charged with a crime. She is not being punished by the law. She was arrested and detained in accordance with the code I posted so that the prosecutor can make his case against a criminal.

    “Evil” is subjective. The law allows for the DA to determine how much he wants to push the victim, but at its objective core, it allows him to arrest and detain any witnesses the court deems appropriate. I don’t think it’s evil at all, and I’m glad that your definition of “objectivity” (by which nice DAs can let victims decide if they want to testify or not) is not the version employed by the State of CA.

  135. There is also the fact to consider that future rape victims are now less likely to report in the first place, because they know now that if they’re too scared to testify, they could be locked up for that “crime”.

  136. OMG Brocephus you’re right!! It’s totally important and cool to kidnap a rape victim, lock her in a cage, and strip search her because that’s what a piece of paper somewhere says! And, of course, a bunch of rich, straight, white, cis men wouldn’t have written it down if it weren’t the right thing to do! I’m so enlightened now!!! I’m going to move to Huntsville, Texas tomorrow and get a job at the state penitentuary! YAY!!! Thank you so much, Brocephus, for opening my eyes to the importance of an orderly society built around objective laws! How else are we to maintain a system that works for white, male capitalists the world over?!?!?!?!

  137. Roymac
    Of course it didn’t just happen. I’m sure the court does not just issue arrest warrants and subpoenas willy-nilly. They weighed the cost of her trauma against the benefit of her testimony, and in full accordance with the law, detained her.

  138. Nothing to add to all the good comments, I just wanted to amend my earlier one, which I think could be read as me thinking it would be OK to imprison a young rape victim if the imprisoning were done at a nice hotel. I don’t, obviously (I hope it’s obvious). What I was pointing out was that if the “justice” system had wanted only to “detain” her they would not need the child abuse that is the juvenile detention facility. They wanted to punish her until/unless she complies with their wishes.

  139. Lotus
    The Constitution is “just a piece of paper.” It is what our country is built upon. If you have a quarrel with how the US Constitution favors white men around the world, fine. Write a poem about it for the womyn in your herstory club. It doesn’t belong here, though.

  140. If you have a quarrel with how the US Constitution favors white men around the world, fine. Write a poem about it for the womyn in your herstory club. It doesn’t belong here, though.

    Fuck you and the “objective” horse you rode in on.

  141. They weighed the cost of her trauma against the benefit of her testimony, and in full accordance with the law, detained her.

    Congratulations. You have arrived at the point. That’s the part we’re all objecting to. Whose cost? Whose benefit? Funny how it’s not the person who’s paying the cost, isn’t it?

  142. Write a poem about it for the womyn in your herstory club. It doesn’t belong here, though.

    Quoted for anyone who was under the impression that Brocephus was here in good faith.

  143. EG
    “Officials in the Sacramento district attorney’s office have said that they were reluctant to detain the teenager but that it was necessary for the public good.” – Sacramento DA’s office.

    I have no issue with questioning whether or not the public good outweighs this girl’s private trauma. It is a hard question and open to debate. What is not ok is saying, point-blank, that a rape victim’s testimony is never worth the public good of putting away the criminal if she is at all uncomfortable giving it. And if there was ever a case to force someone to testify, it seems to me like this would be the one: a white supremacist with a mile-long rap sheet accused of raping a child.

  144. The Constitution is “just a piece of paper.” It is what our country is built upon. If you have a quarrel with how the US Constitution favors white men around the world, fine. Write a poem about it for the womyn in your herstory club. It doesn’t belong here, though.

    I think here, a feminist website, is the most obvious place to object to patriarchy. Like, of all the places where that could happen, if I was looking I’d look here.

  145. librarygoose
    I was thinking more specifically, as in, make that comment after an article outlining how exactly our laws affect white people worldwide. Ranting about how our laws support the patriarchy in an article about how the government is punishing a man who rapes women is incongruous and off-topic.

  146. And if there was ever a case to force someone to testify, it seems to me like this would be the one: a white supremacist with a mile-long rap sheet accused of raping a child.

    …

    In our system, the following things mattered more than the victim of the crime:
    – white supremacist’s right to confront and cross-examine the people bringing evidence against him

    – ‘public safety’ (apparently this up to victims! I guess they don’t have enough crap to deal with?)

    – overzealous judge’s opinion of how to handle the fact the victim didn’t want to testify

    Do you maybe see why people in this thread, along with victim rights advocates and compassionate human beings, object to that?

  147. I think here, a feminist website, is the most obvious place to object to patriarchy. Like, of all the places where that could happen, if I was looking I’d look here.

    Yeah, but, there’s a MAN in the thread, so now we need be good little women, to take our feminism, and our empathy and shit, and put it aside, because objectivity!!!1

  148. Ranting about how our laws support the patriarchy in an article about how the government is punishing a man who rapes women is incongruous and off-topic.

    Quoted for anyone who was under the impression that Brocephus actually read the post.

  149. She is not being charged with a crime. She is not being punished by the law. She was arrested and detained in accordance with the code I posted so that the prosecutor can make his case against a criminal.

    And yet your initial argument was:

    Why not jail rape victims? If they commit a crime that calls for jail time, they should be jailed, regardless of whether they are rape victims or really nice people or from foster families or have tough lives or any other inane drivel that, of course, doesn’t actually absolve people who break the law from serving prison time.

    In short…you’re a trolling asshole who doesn’t know anything about the law, justice, or empathy.

  151. If the choice is forcing her to testify and letting him go free, what stops him from stalking, raping and or killing her? Why does “he goes free” come with this air of oh it’s ok *NOTHING* bad happens when a RAPIST is free to rape again and has a pretty damn good idea where his past victims are or how to find them ?

    Did someone use that angle with her and she thought it best to run away? Or how about the fact that she ran away (if he’s claiming it was a consensual sex act and not rape) would cast doubt on allegations of rape for the jury? These thins are not simple at all.

    I am not ok with the idea of jailing rape victims, that’s apalling! But, how did it get to this point? As traumatizing as testifying is could it really be better to NOT testify, not have a case against him without her testimony and live in fear of him walking down the street/around the corner and rape her again or kill her?

  152. Why not jail rape victims? If they commit a crime that calls for jail time, they should be jailed, regardless of whether they are rape victims or really nice people or from foster families or have tough lives or any other inane drivel that, of course, doesn’t actually absolve people who break the law from serving prison time.

    No one is saying that rape victims shouldn’t be jailed if they murder someone or assault or whatever. It’s as if the headline read ‘Arkansas Man arrested’ THAT DOESN’T MEAN HE WAS ARRESTED FOR BEING FROM ARKANSAS!

  153. I am not ok with the idea of jailing rape victims, that’s apalling! But, how did it get to this point? As traumatizing as testifying is could it really be better to NOT testify, not have a case against him without her testimony and live in fear of him walking down the street/around the corner and rape her again or kill her?

    Obviously people wouldn’t want him out on the street because he’s dangerous, but it’s an incredibly cruel and unfair thing to put all the burden of putting this guy behind bars on the back of a vulnerable 17 year old girl who is in foster care. Other women have come forward, and this guy has a violent reputation as a white supremacist period, and if the prosecutors have so much trouble making hay of these facts that they feel the need to abuse a teenage girl in order to get their conviction, then they are inept and very fucked up.

  154. First of all I am furious that the district attorney and the judge could not have figured out a humane way of treating this rape victim other than locking her up. The law did not require that the judge imprison the 17 year old rape victim, a minor. He imprisoned her at his discretion, but I hope that Mr. Rackley is imprisoned for the rest of his life. And the right of the accused to be able to confront the victim even in the case of rape is conditional and not absolute. For example, babies, young children and mentally handicapped who may be unable to give testimony have been raped and the DNA evidence obtained. Also, she is not the only witness in this rape trial. She is only the more credible witness since the other victim is a prostitute. The job of the prosecuting district attorney is to get a conviction, and any other assumption such as the district attorney or the judge considering the psychological state or stress on the victim is just that an assumption. The only logical (if you wish) consideration from the prosecuting attorney is whether the action of locking up the victim would hinder the ability to get testimony from the victim. Yes, now that is the definition of objective. The link I am going to provide concerns the Fifth Amendment. Apparently, the defendant can evoke the Fifth Amendment which says that a defendant can avoid answering questions that would lead to self-incrimination, but the witness or victim has no such right. The case mentioned in the article mentions a burglar (first paragraph).
    http://www.andrewschulman.com/Briefs/Fifth%20Amendment%20Article.pdf

  155. I should rephrase my last statement. That the entire burden of putting this man behind bars may be totally on the back of this vulnerable teenage girl is horribly unfair (you can argue whether she should or should not testify but that’s beside the point). For the prosecutors and judge to compound that by bullying her into testifying is unacceptable.

  156. This is the philosophical dilemma known as Morton’s Fork, correct? (Google has differing definitions, so one of the academics can correct me.) It’s pretty much a choice between two shitty outcomes. Jailing a rape victim sucks, letting a rapist free sucks.

  157. Azalea, what do you think conviction rates are like? If we’re so concerned about what happens to her if she doesn’t testify, why aren’t we concerned about what happens when she’s forced to testify and he goes free anyway?

  158. So in what fairy tale world will this guy and others like him be convicted and jailed? – there is no way to prove the allegation other than testimony – so we have to put the brakes on these trials until the system is all fixed and perfect? This reminds me of the Michael Jackson child abuse cases where so many of the abused kids did not testify, families were paid off etc. The ones who did were put through hell.

  159. If you have a quarrel with how the US Constitution favors white men around the world, fine. Write a poem about it for the womyn in your herstory club.

    HAHAHAHAHAHAHAHAHAHA!!!! OMG OMG that’s so entertaining!!! Poems!! Herstory!!! Womyn!!!!

    But seriously, that’s the wrong demeaning stereotype for me. You’re looking for the one about how I really want to get into the herstory club to read my poems, but alas the womyn just won’t let me in. Because of you know

  160. Mr. P. in Connecticut had to testify about the sexual assault on his family and their murders by two career criminals. He was the only survivor and the only witness to most of the crimes. I can’t imagine a system where we do not need victim and/or witness testimony to convict criminals. So yes society should care more about protecting the rest of itself from criminals (whether it does a good job of that is another debate) than about the individual victim’s desire to testify or not testify.

  162. Alright. Time for an inflammatory, somewhat OT late night rant.

    So yes society should care more about protecting the rest of itself from criminals

    Society should focus on protecting itself from the assholes who run the criminal “justice” system first. People are far more likely to be “arrested” and “incarcerated” (translation: kidnapped and enslaved) by the criminal injustice system than by all habitual or career criminals outside of it combined. People are about as likely to be raped when inside the system as they are when outside of it (and often while inside by agents of the system itself like prison guards).

    And this unfortunately is only half the horror of it all. If you are part of the 99% in economic terms, then the legal system serves to keep you oppressed by enforcing the private property rights and contract laws of the capitalist class. It’s so easy to get evicted if you don’t pay your rent or get your cell phone turned off if you don’t pay your bill, but if you get fired from your job for no reason at all (or because you are a victim of discrimination) good luck getting any money from your former employer. This fairness is thanks to the legal system.

    Moving on. If you are a woman, then the legal system serves to keep you oppressed by reinforcing rape culture through victim-blaming and sexist police departments and judges. If you are a person of color, then the legal system serves to keep you oppressed by heavily patrolling your neighborhood, harassing you for committing victimless “crimes,” being more likely to arrest you, more likely to try you, more likely to convict you, more likely to murder you (whether through police brutality or “capital punishment.”) If you’re transgender, then the legal system will make you jump through unnecessary hoops when you want to change your name, unnecessary hoops when you want to change your legal sex, and will be ten times more likely to put you in prison at some point in your life than it will to those who aren’t transgender.

    So yeah, no. Fuck the system. It lacks compassion, fairness, and basic legitimacy. I don’t blame anyone for not wanting to testify in court.

  163. Demanding that a kid who has been raped not be imprisoned is saying that trials have to be postponed until the system is “all fixed and perfect”? I didn’t realize that, you know, not jailing raped children was such a high bar to set.

  164. there is no way to prove the allegation other than testimony – so we have to put the brakes on these trials until the system is all fixed and perfect?

    Listen. When the only fucking concern is the prosecutor’s convict batting average and not the actual victim of a crime, I couldn’t give a fuck about your opinion. Thx, bro, but until you’re constantly at risk for getting raped, or HAVE BEEN raped and had the entire fucking world turn on you, you can stop pretending your opinion on this matters.

  165. @Henry

    The problem with that kind of attitude is that it ignores the consequences of bullying witnesses and victims. Even if it works this time–that is, if they convince her to testify against the man who attacked her–there’s no guarantee that she’ll give the sort of testimony they want. If she’s scared to testify, using force to compel her to testify sends a very loud message that the prosecution isn’t actually on her side, and doesn’t actually care about her or her safety.

    Our justice system is already viewed with a lot of skepticism and reservation (or outright hostility) by a lot of groups. Using violence and coercion to force the victim of an assault to testify won’t necessarily make our society safer–it might lead to a conviction in a particular case, but it does so at the expense of the victim. It also stands a good chance of convincing other victims not to come forward. If someone is afraid of testifying, this sort of bullshit sends the message loud and clear “Don’t come forward. Don’t report the attack. Don’t press charges.”

    The ones who did were put through hell.

    Yes. And when you advocate for detaining victims to compel their testimony, you’re advocating for putting them through more hell.

    I just don’t see how further victimizing people is a winning strategy for convincing people to testify and report crimes.

  166. If I were the 17 year old rape victim who would I have more anger towards, the rapist, Mr. Rackley, or the judge and prosecuting attorney. There might be some emotional satisfaction to somehow torpedo the case to get even with the judge and prosecuting attorney, but then Mr. Rackley would get away. I would do my best to testify in order to put Mr. Rackley away for life since a conviction might put him away with the California 3 strikes law and then direct my attention to the judge and the prosecuting attorney. I think that those who support the 17 year olds jailing are displaying a sadistic feelings and using it’s a law to hide that fact. As I wrote above it was at the judge’s discretion to jail the rape victim. The fact is the judge did not have to jail the rape victim, because now she is out of prison and has a GPS device on her. This could have been done before. Also, both the judge and prosecuting attorney have received a lot of unfavorable national and international attention for their actions. I agree with what others have written that jailing her is about the district attorney’s scorecard and not the victim or even the safety of the public. Once the trial is over if she could receive some legal help to expose and heap ridicule on them and make sure this kind of action never happens again.

  167. Anybody else hearing the monotonous “for the greater good” chant from Hot Fuzz when that argument comes up? Using it in this situation seems just as ridiculous as in the movie.

  168. If its okay to jail innocent people without trial just to make the rest of society feel safer, why are we concerned with trials at all? We should just arrest this white power rapist for the good of society and detain him indefinitely. Because society should care more about protecting itself from criminals that one individuals need for a fair trial before being tossed in jail.Amirite?

  169. @Kristen J: That reads as if you are against the justice system having subpoena powers in general. That would be quite a different argument from just saying that those powers have been misused in this specific case.

    The letter of the law seems to have been followed here, and I would not say that this is a case of bad law (subpoenas are necessary in many cases). I see this discussion as more addressed to the (lack of) use of prosecutorial discretion and compassion in the specific case.

    This is hardly a case of indefinite detention.

    (That the current US government does claim the power of indefinite detention without charge is a different discussion)

  170. But, her lawyer should have walked her through her options and helped her find some kind of middle ground that was acceptable to her… the lawyer should never have allowed things to get to the point where her client was detained for twice ignoring a subpoena. I would want to know why this young woman’s lawyer failed her so badly.

    Would she necessarily have had a lawyer before this happened? Up until she didn’t appear in court, she wasn’t charged with a crime and therefore wasn’t entitled to a free lawyer. I doubt she could afford one on her own just to give her advice on how to legally avoid testifying.

  171. Would she necessarily have had a lawyer before this happened?

    It depends on whether she was brought into state custody for dependant/neglect or delinquency. Either way, she would have had a social worker who followed her case.

  172. hmm, theoretically she should have a Guardian ad Litem, but I’m not sure if all foster care systems do that or just the one I had contact with through work. Again, not sure if the GAL would be able to provide this sort of advice. The ones I’ve met were really stand-up folks who did this work pro bono and cared about the children and youth they worked with.

    I’m not sure if I’m able to articulate this well, but what I see is some victims in the criminal justice system are treated as individuals who deserve justice for themselves, and then other victims are treated in a way that sends a message that they are not intrinsically worth it for the system to work on their behalf. So this girl is being told that she has to put away this guy for the public good or to prevent other rapes. I don’t see any criminal justice authorities in this story display any compassion and empathy towards her; there is no indication that she is important to them as a person and as a victim and so deserves justice. She’s just a witness to them. And youth, especially foster youth or youth who have otherwise been harmed by adults, are very sensitive to that. I don’t know why adults in positions of authority over young people ever consider that. Why would she want to testify under those circumstances? Someone brought up the man in Connecticut who had to testify in the trial of his family’s killers. I’m sure it was unbelievably traumatic for him and I would wager that the prosecution in that case provided him with care and support in this situation. If the prosecutors showed this girl that they wanted to get justice for her, and that it was important to them to get her rapist off the street, not just to protect other hypothetical rape victims, she would probably be more inclined to testify. How about some trauma counseling for her? But she’s simply convenient for them, because she’s a “better” witness than the other witnesses they have available.

    To me, it’s obvious that her rapist should be punished because he raped her. Not because he might rape again, or because there’s societal interest in getting him off the street. Because he raped her. And the conditions should be created for her to feel safe enough to testify. We obviously can’t get into a pattern where cases are dismissed because the witnesses can be intimidated into not testifying. We need to create conditions under which the witnesses aren’t scared, not conditions like this case, where the prosecution is engaging in bullying behavior that is really something that we expect criminals to do.

  173. @matlun,

    I am not in favor of subpoena power as currently constructed in the US. Governments should not be able to indefinitely detain people without trial. Its absurd and abusive. Very often I think we focus on procedural fairness to the detriment of actual fairness and this is one of those cases. The law is unfair and its use on these facts was abusive.

  174. Material witnesses get a hearing and a lawyer under federal statute. This is a state case, so I looked up the relevant state law, California, and I do not see any provision for a defense counsel appointment – that should change if they are truly not providing one (anyone out there know for sure?):

    Cal. Penal Code Section 881:

    (c) Once the material witness has been taken into custody on the
    bench warrant he or she shall be brought before the magistrate
    issuing the warrant, if available, within two court days for a
    hearing to determine if the witness should be released on security of
    appearance or maintained in custody.
    (d) A material witness shall remain in custody under this section
    for no longer than 10 days.
    (e) If a material witness is being held in custody under this
    section the prosecution is entitled to have the preliminary hearing
    proceed, as to this witness only, within 10 days of the arraignment
    of the defendant. Once this material witness has completed his or her
    testimony the defendant shall be entitled to a reasonable
    continuance.

    882. When, however, it satisfactorily appears by examination, on
    oath of the witness, or any other person, that the witness is unable
    to procure sureties, he or she may be forthwith conditionally
    examined on behalf of the people. The examination shall be by
    question and answer, in the presence of the defendant, or after
    notice to him or her, if on bail, and conducted in the same manner as
    the examination before a committing magistrate is required by this
    code to be conducted, and the witness thereupon discharged; and the
    deposition may be used upon the trial of the defendant, except in
    cases of homicide, under the same conditions as mentioned in Section
    1345; but this section does not apply to an accomplice in the
    commission of the offense charged.

    She’s not charged with a crime, she’s being detained to compel her to appear in court and testify, and can be held a maximum of 10 days or can be deposed on notice to the defendant if she can’t post the surety for her appearance at the later court date.

    @Pretty Amiable: You are so wrong for so many reasons I don’t feel like posting here.

  176. Henry @ 161:

    False analogy. Mr. P wasn’t the one sexually assaulted and murdered. He may have suffered their loss, but he wasn’t the victim.

  177. I disagree, Mr. P was tied up and they tried to kill him by lighting the house on fire. He managed to crawl out. He is a victim of kidnapping, robbery and attempted murder (in the order of occurence).

    Back to the detention from the press article:

    The girl, who has been held in a juvenile detention center since March 23, is scheduled to appear on Monday at a hearing concerning her detention at Sacramento Superior Court.

    Monday was April 16th

    How is CA holding her past the 10 days? Are they using more than the material witness law, e.g. that she’s run away from foster care? This is abusive, they should have held her for no longer than necessary to get the testimony they needed.

  179. I disagree, Mr. P was tied up and they tried to kill him by lighting the house on fire. He managed to crawl out. He is a victim of kidnapping, robbery and attempted murder (in the order of occurence).

    Citations? Links? You drop this story about Mr. “First-Initial-Only” and we’re supposed to take for gospel that not only it happened the way you say it did, but that it justifies what’s going on with this girl.

  181. One thing that keeps tripping me out about these comments is that people keep showing up saying “It’s the law! It’s the law! The law must be followed strictly because it is the law and the law is objective!” as if the laws weren’t made by and for the protection of rich, cisgender, heterosexual, Christian White men. The law should not be applied at all times without fail because the law does not protect all people all the time. Anyone who can’t see that has been living their entire life with their heads stuck up their asses.

  182. She likely wasn’t held as a material witness. She was likely arrested for FTA which is often a contempt of court offense. On those you may be held until you comply or until your habeas petition is granted. Off course thou have to have an attorney and know how everything works. One of my colleagues had a client held for six months for refusing to testify in a case against his girlfriend where the max sentence she was facing was 90 days.

  183. @ Henry

    Dr. Petit is an adult male with economic and societal privilege. The victim in the OP is a female child who is in state’s custody.

    Again, false analogy.

  184. Henry, that story is horribly tragic but totally irrelevant. There’s no indication in the article that Dr. Petit was unwilling to testify against the men who assaulted him and killed his family. The prosecutors didn’t have him detained, unlike with this girl.

  185. Thank you Kristen. I wish the press would get these things right, they reported her as a “material witness”. At some point it is pointless to hold the witness, though often the justice system needs to coerce witnesses to talk, given that they often face coercion from the perpetrator or her/his cohorts to not talk. This is a much more complex issue than many realize, my opinion is that we can’t just have a blanket rule that it’s ok to not testify if you do not want to.

  186. @ Angel H. and Raincitygirl, My point is that if he had refused to testify (as many posters here seem to think should be allowed by right to any crime victim (and by extension witnesses in general)) these two criminals might be out free, he was the only living witness to the crime.

  187. though often the justice system needs to coerce witnesses to talk, given that they often face coercion from the perpetrator or her/his cohorts to not talk.

    And nothing says “you can talk to us” quite like locking a scared, vulnerable teenage girl up, amirite?

  188. @ Angel H. and Raincitygirl, My point is that if he had refused to testify (as many posters here seem to think should be allowed by right to any crime victim (and by extension witnesses in general)) these two criminals might be out free, he was the only living witness to the crime.

    And your point is still useless here. Who wants to bet that if Mr. P had shown discomfort with testifying, they would not have locked him up for it? And if they did, all hell would break loose, which is why his story has nothing to do with this poor girl, who is a ward of the court, has no familial support, is apparently according to what I’ve read, of color while her rapist is a violent white supremacist, etc. etc., and yet has a line of people coming in here defending the abusive treatment she has received from the court system.

  189. Henry
    Annaleigh is right. The argument you use concerning Dr. Petit is irrelevant. You are using an argument fallacy called a Red Herring or Smoke Screen. Since you cannot win the argument concerning the 17 year old rape victim you have changed the subject. Even the argument you present is full of holes. Murders do not always need a witness but rather conviction can depend on other evidence. Otherwise, any murder which did not have a witness would never result in conviction. The judge used poor discretion in locking up the 17 year old rape victim. The fact that she was released with a GPS device proves that she did not have to be locked up. As I wrote above I hope that Mr. Rackley is convicted and that alternative means other than locking the victim up are used in the future especially in the case of a minor. The judge and prosecuting district attorney showed a lack of compassion for the victim.

  190. Sorry, but it is not a red herring it is reductio ad absurdum. People have proposed a rule whereby victims of violent traumatic crimes get to choose whether they testify or not. The consequences of such a rule are dire for society. Exactly because we have a sympathetic stereotypically vulnerable victim here (foster care teenager), is why this rule is being proposed. In some instances a contempt of court penalty, up to and including jail is necessary to coerce testimony. It may or may not have been in this case, but removing the ability of the courts to do so would lead to an absurd result where no one who is traumatized enough need testify, resulting in the nonconviction of criminals accused of the most violent of crimes.

  191. In other words, in order to convict a child rapist it’s necessary to further traumatize and degrade the child he’s raped?

    And this is how our society fails.

  192. Your conclusion doesn’t follow. Coercing victims does not result in more convictions. If you coerce victims fewer rapes will be reported and even fewer rapists will be convicted.So even if we were to accept your ends justify the means morality, you should not coerce victims.

  193. Exactly because we have a sympathetic stereotypically vulnerable victim here (foster care teenager), is why this rule is being proposed.

    Fuck you, she’s not a goddamn stereotype, she’s a person. A person who is suffering. A person which you’ve already stated you don’t give a shit about. Which, as I said quite snarkily, the best way to communicate to rape victims that it is safe to come forward and prosecute their attackers is demonstrate that the justice system doesn’t actually give a shit about them as a human being, just as a goddamn batting average.

  194. Exactly because we have a sympathetic stereotypically vulnerable victim here (foster care teenager)

    Yes, because no one ever questions the “victimhood” of a young WOC who is already deemed “trouble”.

  195. Henry, if you happened to be the sole witness to a mob hit, and happened to see the killer’s face, and were able to identify him and he turned out to be someone who’d committed dozens of murders and would probably commit dozens more, but had never been convicted because of the absence of witnesses (or the sudden silence or disappearance of witnesses when they did exist), and you then received threats to your and your family’s lives if you did testify (the “we know where you live and your children go to school,” kind of thing, with dead rats nailed to your front door, etc.), and decided not to testify as a result of those threats, I gather from your posts that you believe it would be entirely OK, and, in fact, necessary, to put you in jail until you agreed to testify, for the greater good, and if you and your family ended up being killed as a result, well, that’s unfortunate but it’s still necessary?

    Somehow, I doubt you’d be quite as sanctimonious in that case. But a 17-year old you clearly don’t see as a real human being and are capable of describing sneeringly the way you did in comment # 190? Who cares, right? Put her away. Even though I see no real difference, except that I think it’s even worse to put an actual victim in jail to force her to testify, thereby redoubling her trauma.

  196. Donna, actually yes I would testify in a heartbeat. You don’t know much about me, we’ve seen a lot of crime in our family (as victims not perps) and we’ve done what we needed to do. When you have relatives victimized by someone nobody would even bother to trun into the cops it will change your perspective.

  197. When you have relatives victimized by someone nobody would even bother to trun into the cops it will change your perspective.

    Your relatives, not you. Again, you haven’t been the direct victim, just as Mr. P (again, useless point) was not the direct victim of the worst of the attackers actions. Gee, let’s see, when I was this young girl’s age, I was sexually assaulted in public. I chose not to report it, but also, none of the witnesses so much as picked up a phone to call the police. That is my perspective. And I can tell you that the way this poor kid has been treated by everyone from the judge down is an excellent reminder of why I never reported the crime.

    And denigrating her as a “stereotype” getting in the way of your precious argument is still an asshole move, no matter what, no matter what you think you would do if you were in her shoes, no matter what your relatives have or haven’t done in their cases.

  198. Henry
    I did not write that she should not have been subpoenaed. What I wrote was that she did not have to be imprisoned. And, in fact, that she was released with a GPS proves that she did not have to be imprisoned. She could have had a GPS or some other means used to insure her testimony. Now, please answer the question. Did she need to be imprisoned? That is the relevant question. Again, as I stated above, the judge showed poor discretion. I stand by my statement that your argument was a Red Herring and not even a good one.

  199. @Oatmeal – In her case no – if GPS ensures she will come to court that’s of course great. I’m not here to denigrate her or make light of what she’s been through, testifying as a victim of violence is probably the most diffcult thing the government makes us do as citizens (other than being killed in a war). I am here to say we cannot have a rule that allows people to choose whether they testify or not, that’s all. I stand by my statement that it was reductio ad absurdum – that’s the way we are going by leaning so far towards victim’s rights that we actually create yet more victims.

  200. I’m not here to denigrate her or make light of what she’s been through

    Then maybe you need to stop posting for a while, because that is exactly what you are doing.

  201. Henry
    The reason there has been so much publicity is not that she is being forced to testify but that she was imprisoned. Even her lawyer does not say that she should be allowed to skip her testimony. Her lawyer simply said (and you can find her video statement) that the rape victim should not be imprisoned, and that an alternate means of insuring her testimony (GPS device) could be used. Her imprisonment is the main reason for the widespread anger in this case and not that she has to testify although some may feel that way too.

  202. @LotusBecca :

    tl;dr: If you crave my approval then don’t get a job for a criminal injustice system that primarily serves to defend patriarchy, rape culture, capitalism, white supremacy, and heteronormativity.

    Good and fine, but when you ever get screwed by somebody, and you need legal recourse to get justice, I hope that you can figure out a way to accomplish said justice without the legal system.

  203. @Pretty Amiable: You are so wrong for so many reasons I don’t feel like posting here

    Oh hey, good come back asshole. Now tell me how you’re better qualified to give your stupid opinion on a rape victim than THIS rape victim. Because one time you saw something that happened to someone else? FUCK YOU. IT IS NOT THE SAME. Seriously, shut the fuck up.

  204. I don’t think we need to minimize Mr. P’s trauma in his particular situation–judging from the link Henry posted, it was bad, bad stuff, and I could completely understand if Mr. P would had felt too traumatized to want to bring it all back on the stand.

    But Mr. P’s case remains irrelevant to the case of this girl. We have no evidence that Mr. P didn’t want to testify. To my knowledge, he was never imprisoned to coerce his testimony. He was testifying about a home invasion by individuals who weren’t likely to come after him or have friends who might do so, whereas this girl is facing down a white supremacist who has already victimized her at least once and almost certainly has friends who would love to punish her for her testimony. Murder doesn’t generally hold the same kind of social stigma, shame, and guilt that rape often does. A well-respected doctor isn’t going to face the kinds of attacks to his character from the defense team that a teenage WOC in the foster care system is going to face in order to discredit her. No one is going to accuse him of lying about a home invasion and murder.

    Given the choice to testify, Mr. P most likely would have done so anyway. This law is not about Mr. P. It’s about girls like this one–who is a person, not a “vulnerable” “stereotype.”

  205. Good and fine, but when you ever get screwed by somebody, and you need legal recourse to get justice, I hope that you can figure out a way to accomplish said justice without the legal system.

    You seem to be implying that the system doesn’t need to be changed.

  206. Good and fine, but when you ever get screwed by somebody, and you need legal recourse to get justice, I hope that you can figure out a way to accomplish said justice without the legal system.

    Fuck off. I have been screwed by somebody before. I’ve been fired from jobs for no good reason. I’ve been kicked out of where I was living and been homeless. I’ve been harassed by police officers. Somehow the legal system didn’t seem to want to help me in any of these situations. Rather, they seemed more likely to be on the side of my oppressors, or in some cases they, in fact, were my oppressors. So again, screw you and your condescending ignorance of my life.

    If the entire legal system got abolished tomorrow I wouldn’t shed a single tear. Actually, I probably would. Tears of joy.

  207. I really find large parts of the discourse and attitudes here disgusting. All caps profanity is not discourse. I must agree or f*** off it seems 🙂 You want to talk about solutions or just bash away at the “system”, (prosecutors, judges and police many of whome are hard working, underpaid people) as if we are not part of it? You know why they don’t investigate rape cases properly, why they let guilty criminals walk out of jail…part of it is the system to be sure, we need longer sentences for violent offenders, and part of it is us – juries fail to convict the glaringly guilty on a routine basis – what motivation are we providing to anyone to do their jobs when yet another criminal walks out of court.

  208. You know why they don’t investigate rape cases properly, why they let guilty criminals walk out of jail…part of it is the system to be sure, we need longer sentences for violent offenders, and part of it is us – juries fail to convict the glaringly guilty on a routine basis – what motivation are we providing to anyone to do their jobs when yet another criminal walks out of court.

    Yes, people let violent offenders go. Because rape is not treated like any other offense in the system. Rapists go free because people expect the victims to be ruined, to be strong, to be virgins, to be white, to get attacked at night (but why were they out?) to be attacked by a stranger, to not be poor/homeless/already in system, to fight, to scream, to be sober, to be young, to be dressed in sweaters and long pants, to never ever waver in their quest for justice. The system and society is already rigged against the victims, jailing them helps no one. It just reinforces the idea that being raped was a crime YOU committed.

  209. I really find large parts of the discourse and attitudes here disgusting. All caps profanity is not discourse. I must agree or f*** off it seems 🙂

    Oh goodie, a tone argument!

  210. what motivation are we providing to anyone to do their jobs when yet another criminal walks out of court.

    And what’s the motivation for survivors to testify, exactly, when rapists walk out of court because, for instance, the defense attorney says that she probably bruised her own cervix while showering? Why are we sacrificing the rights and well-being of a raped child so that an adult professional has the proper motivation to do his or her job? Why don’t we care about the child’s motivation?

  211. I really find large parts of the discourse and attitudes here disgusting. All caps profanity is not discourse. I must agree or f*** off it seems 🙂

    Way to continue proving that you have absolutely nothing to add that is of any worth. I’m so sorry that you are so unbelievably stupid that you cannot realize you do not have the life experience to contribute intelligently to a conversation about rape culture. I’m frankly not sure how you manage to string together a sentence at all, so consider that a small victory.

    And you are not entitled to discourse. You can’t go around acting like a complete fucking idiot and think that I would deign to treat you like a worthwhile human instead of the scum that you are. And you find our attitudes disgusting? The feeling is mutual, you self-absorbed sack of shit.

  212. Also, Henry, if you can’t handle people telling you to fuck off when you say reprehensible things and instead have to whine about it, maybe the internet just isn’t for you. It must be so hard to be so sensitive.

  213. I really find large parts of the discourse and attitudes here disgusting. All caps profanity is not discourse. I must agree or f*** off it seems 🙂 You want to talk about solutions or just bash away at the “system”, (prosecutors, judges and police many of whome are hard working, underpaid people) as if we are not part of it?

    When acting self-righteous and indignant as you tell people off, why not throw in a completely inappropriate smiley?

  214. Everyone saying “but otherwise the rapist will get away” can fix that problem by killing the rapist. That’ll fix it, and they’ll let her go free, and the world will be a better place. And if you don’t, all the trauma they’re putting her through is now your fault.

    Now, that’s a stupid argument, right?

    No that isn’t a stupid argument at all it makes perfect sense. It doesn’t work legally though, you can’t even get the conviction. Now if someone had access to the rapist that would be the perfect solution.

  215. @196

    Hell I would do it at that point just to get me and the family into witness protection, but I don’t think anyone is offering her that. What that poor girl needs is assurance of personal safety, relocation etc.

  218. I really find large parts of the discourse and attitudes here disgusting. All caps profanity is not discourse. I must agree or f*** off it seems 🙂

    No. 🙂 Don’t bother to agree. 🙂 Just fucking off would work. 😉

  219. @LotusBecca, the fact that law enforcement and the justice system didn’t work for you generally is not a compelling reason to abolish it completely. Also, what would you replace it with, may I ask?

  220. @Angel H

    One thing that keeps tripping me out about these comments is that people keep showing up saying “It’s the law! It’s the law! The law must be followed strictly because it is the law and the law is objective!” as if the laws weren’t made by and for the protection of rich, cisgender, heterosexual, Christian White men.

    Yet, if a law, or laws were passed that YOU liked, you’d most likely expect it to be obeyed, not matter what, even if said law was actually more harmful than the problem it was created to stop (like the stalking law that was created to stop anybody of BOTH sexes from acting on being lovesick, because people found it to it be uncomfortable being followed for whatever reason.)

    BTW, a mentally ill man in Canada was jailed just recently for following on said romantic impulses, instead of getting the help he needed-where’s the outrage on people who are mentally ill being treated like that for a law that you would support?

  221. like the stalking law that was created to stop anybody of BOTH sexes from acting on being lovesick

    You don’t know the difference between stalking and being “lovesick” or following “romantic impulses”? Then you’re the problem. Here’s a hint, though: being lovesick or romantic typically does not strike fear into the heart of the person with whom you’re in love.

  222. @Mothra:

    It’s not about not liking a certain law; it’s about recognizing that people in power have their own interests in mind. Anything else is secondary, coincidental, and/or a political show of empathy.

    Also, you’re talking to a mentally-ill woman who was a victim of stalking. DO NOT go there with me.

  223. Also, you’re talking to a mentally-ill woman who was a victim of stalking. DO NOT go there with me.

    Me too (sorry to hear about you, Angel).

    Fuck you Mothra. I can’t believe this thread has been resurrected again with even more cluelessness.

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