Rape, Campus Rape, Alcohol, and Sexual Predators

NPR had a mind-boggling look at new research on rape, generally; and campus-rape, specifically during last Thursday morning's broadcast of All Things Considered.   As I've said many times, the bete noir of the Bad Lawyer when he practiced law was the representation of rape victims, expecially children or adults who were raped as children. 

The new research establishes from surveys of college males the extent to which young men knowingly and routinely sexually assault and feel not only that they have not done anything wrong but in fact actually boast about the behavior.  A couple of factors jump out, these college "men" take advantage of freshmen girls in particular, apparently because, the more naive the better; and. the unsurprising role alcohol plays as a tactical weapon in these assaults.

An associated news report, also on NPR looked at the extent to which colleges fail woefully to address the crime in their response.  Instead of looking at sexual assault as a crime to be dealt with as a crime, academics who deal with these acts frequently re-victimize the girls by looking for "teachable moments."  Often perpetrators receive suspensions when action, if any is taken.  Not surprisingly victims often transfer away from the school or stop going to college at all, to avoid having to be on the same campus when the rapiest returns.  Pretty depressing.

I actually had precisely this scenario on behalf of a young local woman.  Unfortunately, "Theresa" was attending a college out of state and our efforts to find her a legal advocate near the college where this occurred was unsuccessful.  I'm still angry about what happened to Theresa who abandoned financial assistance to get away from this school that did not stand up for her--and which we were unable to sue in local courts.

Oh My God, You Aren't Your Twin Brother!

This story of identical twin brother confusion and "sex assault" arrives via the Toronto Sun, Sam Pazzano's story:

"She was inebriated and sleeping in her lover’s darkened bedroom and she believed it was her lover who cuddled next to her in bed.  But he had sex with her in a way they never had before. She was alarmed by it. When she turned on the bedroom light, she discovered to her disgust that it wasn’t her lover but his identical twin.

'Oh my God. Oh my God. Oh my God,' she recalled saying on that day in 2006 as she grabbed her clothes after she realized what happened.

He [BL: it's one of the oddities of the foreign press that names are omitted from stories--stateside we'd know the guy's name from the moment he was arrested, in fact as you might have figured out from the Al Garcia, Esq. story witnesses in these sorts of cases come forward as a result of reading or hearing news accounts] was convicted of sexual assault two years ago and sentenced to six months imprisonment in 2008, but lawyer Peter Copeland argued Thursday at the Ontario Court of Appeal that the trial judge made several legal errors in finding his client guilty. He asked Ontario’s highest court to quash the conviction and order a new trial for the now 30-year-old man, who is now free on bail pending the court’s decision.

Both the accused and the woman cannot be identified due to a publication ban on the victim’s identity.  The accused said he had an 'honest but mistaken belief' that she had consented to having sex with him, court heard.  'It would be a rare case that an accused committed a fraud and then got the benefit of the honest but mistaken belief,' Crown attorney Kim Crosbie told the Court of Appeal panel. The three judges heard arguments over whether the woman properly gave her consent or whether her lover’s twin duped her and thus negated that consent."
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Strange story, but a unifying theme in almost all rape cases is the use of alcohol as a weapon.  While I'm not so sure this guy made an "honest mistake," this is one of those scenarios laden with doubt.  This joker was obviously a pig, but did he commit assault?  Assault technically is the threat of unconsented touching, at least stateside.  What's being described in this story is "sexual battery."  Battery is unconsented touching. 

There is a whole body of law, (no pun intended) relating to "mistake."  What we might have, here, is the notin of mutual mistake which is where both parties have the same intention but a transaction occurs because of a mutual mistake of fact.  I think Shakespeare may have played with these concepts?

Al Garcia, Esq.--Coked-Out Rapist-Part 2

I reported on the arrest and prosecution of lawer Al Garcia, former Minneapolis City Hall mover and shaker and I offered the observation that at his rape trial the victim testified to Garcia's matter-of-fact manner.  Garcia's blatant behavior as he pulled out cocaine ingested it like a pig in a trough then raped his prospective client, suggested to me that this hardly his first victim.  After reading the former client's testimony you could easily infer that Garcia was a serial sex offender.  These kind of guys, don't start out with dope and rape--no, there have been years of pulling this lesser sorts of stunts. 

In Garcia's case he was probably fully at it in college.  Since then who knows, my educated guess there are many victims since then--most of whom won't publically number themselves as his victims.  Garcia possessed power and coercion along with a now permanently void law license. 

Sure enought today 3 further Garcia victims testified at the trial according to the Minneapolis Star Tribune.  The evidentiary part of the trial concluded today and the jury returns next week for instruction and deliberations.

Law School Question Fact Patterns

This LA Times story sent to me, yesterday, by my friend Okiedoke presents the cliche` law school question "fact pattern."  It's also a frightening tale of violence against a woman by her ex-boyfriend. 

The maniac in the picture raped a woman in what he claims was an invitation for sex role play on Craigslist.   In fact the victim's ex-boyfriend was able to induce this idiot to rape his ex- by placing an ad on Craigslist.   The question my friend Okiedoke asks, who if anyone committed a crime?  My answer is, both the ex-boyfriend and the perpetraor of the "role-playing rapist" are guilty of rape. 

As a first step let's let DeeDee Correll summarize the facts for us: 

The advertisement appeared on Craigslist in early December.

"'Need a real aggressive man with no concern for women,' read the posting on the Internet classified advertising forum. Its purported author was a Casper, Wyo., woman, whose photo also was posted.  One week later, a man accepted the offer, forcing his way into the woman's home, tying her up and raping her at knifepoint. 'I'll show you aggressive,'  he allegedly said, according to court testimony.

In fact, authorities say, the woman had nothing to do with the ad. Instead, they say, a former boyfriend had posted it, soliciting her assault.  Such an incident would have been impossible -- or at least much less likely -- 20 years ago, Natrona County Dist. Atty. Mike Blonigen said. 'It's probably only possible in our modern age,' he said. . . The Wyoming case began to unfold Dec. 5. Jebidiah James Stipe, 27, a Carbon, Wyo., native and Marine stationed at Twentynine Palms, Calif., allegedly posed as his ex-girlfriend and placed the ad seeking an aggressive man.  Two days later, she spotted it and contacted the Natrona County Sheriff's Office, as well as Craigslist, which took down the ad.  But Ty Oliver McDowell, 26, from Bar Nunn, Wyo., had allegedly already seen it.  McDowell, an employee of the Wyoming Medical Center's radiology department, e-mailed the address listed in the ad, according to an affidavit in the case.  McDowell later told authorities that he and the woman exchanged instant messages, and she described what she wanted -- 'humiliation, physical abuse, sexual abuse,' according to investigators -- and gave him her home address.  In fact, authorities say, McDowell was communicating with Stipe.  On Dec. 11, McDowell allegedly went to the woman's home and forced his way inside. He bound, blindfolded and gagged the 25-year-old woman, then raped her as he pressed a knife to her throat, the affidavit said.   Detectives said he told them he thought he was fulfilling her rape fantasy.  McDowell was arrested and charged with first-degree sexual assault, aggravated kidnapping and aggravated burglary. Stipe was also arrested and charged with conspiracy to commit first-degree sexual assault."
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Let's assume that the facts as set out in the LAT are proved, both Stipe and McDowell are rapists.

The elements of a crime are both and act and requisite mental intent or mens rea, which is Latin for something.  The act in this case is the sexual assault on Stipe'sl ex-girlfriend.   The fact that Stipe himself did not perpetrate the physical act is not relevant in the same way a contract murder is still murder committed by the criminal soliciting the commission of the crime.

McDowell's defense will be that he lacked the requisite intent to commit rape, I say bullshit.  Let's bear in mind, your "consent" to the commission of a violent crime against yourself does not relieve the perpetrator of criminal liability.  The criminal law is for the protection of not just individuals but of the community as a whole.  Thus, a victim's consent is not relevant--McDowell's mistake of fact may be interesting but it's a distraction from the fact that he committed a thoroughly violent and criminal act--and his actions in binding, gagging, and holding a knife to her throat are damning on the issue of his requisite criminal intent. 

I say, weird case, weird fact pattern--it's a damn good thing these two sick bastards are off the street.

Dr. Earl B. Bradley, Pediatrician-Monster

The Bad Lawyer has been following with horror the story of Earl B. Bradley, M.D. (pic) a Lewes, Delaware pediatrician.  If true, this pediatrician's abuse of children is unprecedented outside the crimes of pedophile priests. Delawareonline reports at length on this unbelievable, ghastly story of sex crimes by Dr. Bradley against his patients which he videotaped in some instances with multiple cameras. 

Let me give you a sense of what we're talking about by quoting Delawareonline's story:

"Former Delaware prosecutor Ferris W. Wharton, who at times directed the state Justice Department's rape and sexual-offense unit, said the possible scale of the crimes dwarfs any in his experience.


'Obviously, the potential number of victims that has been put out there exceeds any that I've heard of in Delaware before,' said Wharton, now in private practice. "It's an order of magnitude greater than what I'm familiar with.'

Because of that, defense and prosecution teams could face an extra challenge in focusing on the legal issues of the case 'without allowing their feelings about what the allegations are to override,' Wharton said.

Bradley's arrest capped months of suspicions and unsettled investigations into his conduct at BayBees Pediatrics, 18259 Coastal Highway, that were prompted by complaints. Police said after the arrest that Bradley had six cameras that recorded apparent crimes involving children, including one incident in which he appeared to be 'violently enraged.'"

Once again we confront the worst that we are capable of, as humankind. What was the professional and educational failure that permitted this sociopath to slide through?  What systems failed that permitted him to again and again victimize these children?   Help me understand how this happened?

What a Dick!

http://www.huffingtonpost.com/lawrence-lessig/plain-sight-corruption-se_b_346277.html

Great piece of bloggery by Lawrence Lessig re: the vote of of Sen. Richard Burr against Sen. Al Franken's amendment to do away with mandatory arbitration clauses in defense contracts that prevented Jamie Leigh Jones from suing her employer and the co-workers who gang raped her!

Now why did this republican Senator from North Carolina vote against the Franken amendment?  


MONEY?  Lots of money.  This genius took $700,000 from defense contractors and the Chamber of Commerce who actively opposed the amendment.  


Isn't life grand?  


This is the link to my earlier post of Franken's examination of witnesses including Miss Jones:  http://badlawyernyc.blogspot.com/2009/10/al-franken-gets-to-heart-of-it.html

Lessig' blog post at Huffington Post has links to petitions, etc. designed to publically embarass Burr--like anything is beneath this creep.

The Polanski Petition

http://www.slate.com/blogs/blogs/browbeat/ Hilarious deconstruction.

Prosecutor Lies

According to news reports: http://www.huffingtonpost.com/2009/09/30/pivotal-player-in-polansk_n_305772.html, the Polanski prosecutor lied when he told a French documentary that he had an ex parte commucnication with the sentencing Judge in the Polanski rape case, and that he, the Prosecutor encouraged the Judge to put the screws to Polanski despite a plea deal.

My first reaction to this report is a big so what, because prosecutorial misconduct of any kind is not relevant to the real story--the march of the Hollywood apologists.

On reflection, as an attorney you see the reason why the rules governing professional conduct require lawyers in public office not to act in ways that bring discredit on the profession; i.e. carrying on ex parte communications with a sentencing Judge, lying about professional acts to the media--this kind of stuff brings discredit on lawyers in the most direct way and more importantly undermines trust in the "just us" system. So, now you have one of the major actors, the prosecutor, in a symbolically important rape case undermining the faith one could have had in the fairness with which Polanski was treated at the time of his rape conviction. In actuality it's ridiculous, Polanski was treated more than fairly, but the sheer fact that the prosecutor admits to a lie gives wind to the bogus arguments of the apologists.

At the end of the day, this lawyer needs a good smack.