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March 02, 2006

Watch Your Rape Or Go To Jail

Feministing has written about a horrid case in which a judge is requiring a rape victim to view a videotape of her own rape - or she will go to jail. According to an article about the case, "[t]he woman was 16 years old when she allegedly was assaulted and videotaped four years ago at a party in the Burr Ridge home of Adrian Missbrenner, 20. He was one of four men charged in connection with the incident, and his trial on charges of aggravated criminal sexual assault and child pornography began Tuesday in Cook County Circuit Court in Bridgeview. He faces 6 to 30 years in prison if convicted. [...] The woman testified that she woke up in Missbrenner's house the next morning, naked from the waist down with vulgar words written on her legs with a marker."

This is horrendous. Women are being attacked from all sides these days, and this is yet another case of how women are poorly treated in this country.

Posted on March 2, 2006 at 07:36 AM | Permalink

Comments

Alternet reports on where you can express your outrage (pasted below)

Outraged? Call the Cook County court and let them know:


Cook County Court
District 5- Bridgeview
10220 South 76th Avenue
Bridgeview, IL 60455
Telephone 708-974-6500
FAX 708-974-6384
TDD 708-974-6550


Office of the Chief Judge
Richard J. Daley Center
50 W. Washington, Suite 2600
Chicago, IL 60602
Telephone 312-603-6000
FAX 312-603-5366
TDD 312-603-6673
Director: Judge Timothy Evans, Chief Judge


General email address for the Cook County court system: cookcountycourt@chi.syn.net


UPDATE: Shakespeare's Sister has contact info for the Trib:


And if you’d like to send a comment to the Chicago Tribune’s Public Editor, go here. For a Letter to the Editor, go here. Email the author of the article, who saw fit to mention a rape where the victim recanted by clicking here

Posted by: silverside at Mar 2, 2006 9:04:16 AM

My understanding was that she refused to answer any questions about the tape. If she wants him prosecuted, then she needs to answer questions about the tape.

I do not see it as unreasonable.

When you accused someone of a crime, you have to answer questions about your accusation. If there is evidence regarding your accusation, then you have to answer questions about that evidence.

Posted by: will at Mar 2, 2006 9:16:58 AM

She had been answering questions about the rape. The defense and the judge want to force her to watch a tape of the rape, where she is unconscious, being assaulted, and being written on with magic marker. I understand why she would not want to see it. It would be like reliving the rape. If the tape is going to be shown as part of the trial, the judge could have removed her from the room before showing it. I think it's abominable that she is being forced to relive her rape, or go to jail.

Posted by: The Countess at Mar 2, 2006 9:23:22 AM

I should probably go read about this case more before I am commenting. But why let the facts get in the way of a good argument.

The judge should and would typically screen this type of questioning for relevance. I cannot stand up and ask a victim totally out of bounds questions that are clearly designed simply to intimidate the victiom.

However, I am allowed to question her about evidence introduced by the prosecutor or other relevant evidence.

In other words, if there is some uncertainty about the tape, I should be able to examine her about it.

She chose to relive the rape by choosing to prosecute someone. Necessarily, you have to go back through that rape if you want someone to go to jail.

I read someone else state "when you say "a rape victim should not have to view a tape of her being raped, then you are prejudging the case. At this point in the criminal justice system, the defendant is entitled to the presumption that it is a tape showing them having consensual inercourse.

Posted by: will at Mar 2, 2006 9:42:52 AM

There's an update

Posted by: le lyons at Mar 2, 2006 10:37:47 AM

Update from the Chicago Tribune:

http://www.chicagotribune.com/news/custom/newsroom/chi-060301missbrennertrial,1,7979722.story?coll=chi-news-hed&ctrack=1&cset=true

(the previous post didn't accept my html...)

Posted by: le lyons at Mar 2, 2006 10:38:51 AM

This is perhaps a good time to ask:

How do you think a rape trial should be conducted?

Posted by: will at Mar 2, 2006 12:02:59 PM

Will, are you stupid or what? How on earth could viewing a tape of your own rape be anything but traumatic?

The defendant is NOT entitled to be assumed to be having consensual intercourse with the victim. That's assuming the victim is a liar. You want the offender to be innocent till proven guilty, but you're willing for the victim to be guilty until proven innocent, and you leave out the fact that this doesn't happen in a vacuum.

Posted by: ginmar at Mar 2, 2006 11:34:24 PM

I've been following comment threads about this case on several blogs since yesterday morning. I am left with some unescapable conclusions.

feminist = logically challenged

feminist = fact-averse

feminist = anti-fair-trial

Posted by: at Mar 3, 2006 1:00:02 AM

Ginmar:

Our system of government says that a defendant is innocent until proven guilty. How would you prefer a rape trial to take place?

I am certain that viewing that tape is going to be traumatic to her. However, a defendant is entitled to ask his accuser about the evidence presented against him. It is a difficult, fine line between harassment and cross-examination. But, there are many legitimate reasons to show her portions of the tape and ask her questions about it.

A rape trial is traumatic. Judges have a fair amount of discretion to make the process less public (ie close the hearing, turn the tape away from the viewing of the general public, etc).

From what I read, it sounded like a normal statement by the judge how what a witness could expect if they do not cooperate. However, I think the judge should have been much more sensitive about the jail part. That was an unnecessary comment at that point.

Posted by: will at Mar 3, 2006 7:47:28 AM

Just thinking - if it's necessary for the tape to be shown, isn't it possible for the judge to only require that the victim's lawyer watch the tape? In addition, even supposing that the victim has to watch the tape for the trial to be fair, it's unreasonable to expect her to cooperate, especially given that she obviously didn't know she'd have to do it in advance. The absolute most that might possibly be defensible is saying that if she doesn't watch the tape, the rape charge will have to be dropped (how it might be used to drop the child porn charge is beyond me).

Now, Silverside, did you intend to link to the relevant contact pages? Because the words "here" in your post don't link to anything, at least not on my browser.

Posted by: Alon Levy at Mar 3, 2006 9:21:45 AM

Will, this kind of obtuse question is just why so many people believec you're a troll. She doesn't remember the rape. The rape is of an assault on her. You want her to watch that, which will accomplish absolutely nothing except to further traumatize her, in the name of some nebulous cncept of fairness to the defendant. You can accomplish examining the tape by showing it to the jury in a closed courtroom without the victim being present.

Your callousness toward women and your complete refusal to place this event in the context of rape history is not feminist in the slightest.

You're a defense attorney, right?

Posted by: ginmar at Mar 3, 2006 9:34:33 AM

Doesn't anyone who first ventures into a tightly-knit blog or forum community and doesn't know how to exactly tow the line get tagged as a troll? I mean, if I hadn't known the basics of FRAs and their arguments from reading a few threads on Alas, I'd have probably been mistaken for a troll, too.

Posted by: Alon Levy at Mar 3, 2006 9:47:19 AM

Alon, that's an insult in and of itself. "Oh, you irrational people, just accuse anyone of being a troll."

Will has been posting on feminist blogs for quite some time nad his every posting amounts to just one long extended cry of, "but what about the men!" He uses neutral, minimizing words to describe the victim's ordeal and admits he hasn't read about the case, and after watching him post here, there and everywhere, he doesn't appear to have picked up anything whatsoever. Dealing with him requires one to constatnly refight the same battles.

A good example is how he claimed that the defendant should be assumed to have been having consensual intercourse. That's a good deal past the the presumption of innocence. It presumes the defendant is telling the truth, and that the victim is lying. With some effort, one can believe botht he victim and the defendant are innocent.

Will also persistantly upholds the status quo and despite having posted on feminist blogs for quite some while repeatedly reduces the conversation to such tight specifics that the larger context of sexism is lost. Nor does he ever display any realization that the things he thinks are necessary for men to get what they want require actual trauma for women, as he does in this case, where he appears to have given no thought at all to what viewing a tape of the rape might do to the victim. More than that, it's been explained to him and he just ignores it. Nor is this the first ting he's done it on.

Posted by: ginmar at Mar 3, 2006 10:06:22 AM

Ginmar:

The defendant is entitled to a presumption of innocence. The question in the trial is whether the woman has been raped. I am sorry that is such a shocking statement to you.

Perhaps I spoke inprecisely. You are assuming that she was raped prior to the trial starting? Sorry. But I prefer the system of government that we have.

You never seem to want to discuss issues. Your method is to attack me as a troll instead of discussing what I actually said.

You got upset because I dared to disagree with you when you said that a video tape is not enough to convict someone of rape. When I asked you about that specific statement, you refuse to answer and get bent out of shape.

And I didnt not say that I want her to watch the tape as if I get some sick pleasure from it. I said :
"I am certain that viewing that tape is going to be traumatic to her. However, a defendant is entitled to ask his accuser about the evidence presented against him. It is a difficult, fine line between harassment and cross-examination. But, there are many legitimate reasons to show her portions of the tape and ask her questions about it."

I will ask you again how you think a rape trial should be tried? (of course, I do not expect you to answer, but simply insult as you seem to prefer to do.)

Posted by: will at Mar 3, 2006 10:33:36 AM

will, there is absolutely no reason that a presumption of innocence demands that an alleged victim view a tape of her own abuse. The jury may need to watch the tape. The judge may need to watch the tape. The attorneys may need to watch the tape. But what possible legal motive justifies demanding that a woman who was gangraped be forced to relive in public the rape? The evidence is there on the tape. The accused is being faced by his accuser in the form of that tape.

Furthermore, it does not follow from a presumption of the accused's innocence that the accuser must be guilty of something, only that perhaps the accuser is mistaken: i.e. about the identity of the guilty party. It is not okay to assume that the event didn't happen unless the court said it happened.

And just for kicks and giggles, Will, suppose that you had been fed a roofie and gangraped by five guys, and that in court you were required to view the tape in the presence of twenty or so strangers, with the lower half of your body exposed on the tape and the graphic details of it on display for anyone to see. Would that be justifiable? Would that be traumatic? In what way would that promote justice?

Posted by: odanu at Mar 3, 2006 10:48:32 AM

odanu:

You are absolutely correct that the presumption of innocence does not demand her to view the tape. It depends on the case and the probabtive value of why the defense is requesting her to view it. That is the judge's job to weigh those competing interests.

I also cannot imagine that the judge would not close the courtroom in some fashion.

Posted by: will at Mar 3, 2006 10:59:55 AM

As usual, Will, you're mis-stating things to a considerable degree. Quite a few feminists have called you a troll. Your questions are disingenuous---"Well, how would YOU like a rape trial to be conducted?" Christ, waht a stupid question. If you tried paying attnetion to what people actually said to you, you wouldn't even have to ask.

Furthermore, on another blog, you used the term 'bashing' to refer to any criticism of men as a group, which indicates to me you're not reasding carefully or cautiously at all. Your comments here have repeatedly minimized the victim's trauma and maximized discussion of the rapists' rights. You restate people's statements dishonestly and I must say, in rather stereotypical terms.

Trish and Odanu have both answered your questions. So I have I, must like the posters over at Twisty's place have done so, repeatedly. Hhowever, when you refuse to grasp what's being said, you just revert to type the way you do above. Read what I wrote. You need to display some comprehension and focus of feminist issues, or else clean up the way you write, because waht you say is often exceptionally offensive---in other words, the 'victim chose to relive the asssault by prosecuting.'? You're blaming the victim for the trauma, not the scumbag defense attorney. And he is a scumbag.

At the very least, go read about the damned case, which you breezily admit above you haven't read.

Posted by: ginmar at Mar 3, 2006 11:07:51 AM

I think having her view her taped rape is a moot point now, since the judge decided that she doesn't have to do that. One of my commenters pointed it out on this thread. I think having her view that tape was outrageous. It has nothing to do with giving the accused rapist a fair trial. It's just cruel and inhumane. I'm glad the women's groups who protested got through to that judge. There was no reason for her to have to view that tape or go to jail. And now it's no longer an issue.

Posted by: The Countess at Mar 3, 2006 11:10:44 AM

I think having her view her taped rape is a moot point now, since the judge decided that she doesn't have to do that. One of my commenters pointed it out on this thread. I think having her view that tape was outrageous. It has nothing to do with giving the accused rapist a fair trial. It's just cruel and inhumane. I'm glad the women's groups who protested got through to that judge. There was no reason for her to have to view that tape or go to jail. And now it's no longer an issue.

Posted by: The Countess at Mar 3, 2006 11:11:16 AM

I should probably go read about this case more before I am commenting. But why let the facts get in the way of a good argument.

Yes, you probably should, that's how one makes a good argument.


The judge should and would typically screen this type of questioning for relevance. I cannot stand up and ask a victim totally out of bounds questions that are clearly designed simply to intimidate the victiom.

This is one of those facts one ought to look up. Barring a responsory (which is to say all the questions are prepared in advance, and no deviation is allowed) set of questions (which is typically a pre-trial excercise) once an attorney gets up and starts questioning, they can ask anything they like. Opposing counsel can object, but the question is out there. It is a common tactic to present questions which will be struck from the record, because they can't really be purged from the juror's minds. The fine line to not cross is one which will cause one to lose on appeal, which makes it more of a restriction on the prosecution than the defense, as an acquittal is not reversible, unless one can show over jury tampering.


However, I am allowed to question her about evidence introduced by the prosecutor or other relevant evidence. Only if one is attempting to impeach her testimony, and only if one can show the witness has reason to have personal knowledge of the events. In this case the allegation is she's lying (and perjuriously) and somehow confronting her with the tape, in open court, will make her break down and confess to her lies. That's, in my opinion, a shaky theory.

In other words, if there is some uncertainty about the tape, I should be able to examine her about it.

That would be true, if the question were about the tape, and she would have personal knowledge of the answer. It isn't. The question is about what she recalls, and the defense admits (as it must) that the tape itself can't resolve the question of consent (which is what they are alleging, she consented, and that consent was informed, before the camera started rolling), as such cross-examing her is probably more predjudicial than probabtive.


She chose to relive the rape by choosing to prosecute someone. Necessarily, you have to go back through that rape if you want someone to go to jail.

For certain values of relived. It wouldn't be appropriate to make the complaintant take part in a recreation of the event, as presented by the defense.

I read someone else state "when you say "a rape victim should not have to view a tape of her being raped, then you are prejudging the case. At this point in the criminal justice system, the defendant is entitled to the presumption that it is a tape showing them having consensual inercourse.

That would depend on what the tape shows. The camera can lie. It might show someone pointing a gun at the complaintant, and telling her to have sex ot be shot. That might be accurate, it might be a film of a sex-game. The presumption of innocence doesn't mean that all evidence must be seen in the light most favorable to the defense. The entire point of a trial is determine the facts of the case, as they relate to the law.

There are several presumptions to be made, one is that all evidence presented will be, to the best abilities of the opposing sides, legitimate and true.

The other is that the prosecution (as we are discussing criminal trials) will not go forward unless they have good reason to believe they can prove to a jury/judge (the trier of fact) that the defendant is guilty, "beyond a reasonable doubt."

Nothing in that says we must (as I said above) cast all the evidence in the best light for the defense, and (which is more on point) none of that means one has to be forced to respond to evidence which in the way described here.

Not having seen the motion, nor the prosecution's response; not knowing the relevant rules of evidence, I can't say, out of hand, the judge was wrong in his initial ruling (and if he wasn' the contempt charge was legitmate, and fair) but I can say, that as a general rule, the arguments you make are wrong.

I also think (as I said above) the probative value of the tape is outwieghed by the predjudicial nature of it, and the harm it might do to the victim (assuming the rape occured, which is completely independant of the legal guilt, or innocence, of the defendants).

TK

Posted by: Terry Karney at Mar 3, 2006 1:15:40 PM

TK:

I agree on just about everything that you wrote. I do not that I wrote anything much different.

Posted by: will at Mar 3, 2006 2:42:13 PM

Will: "I should probably go read about this case more before I am commenting. But why let the facts get in the way of a good argument."

Will, if you haven't read more about this case, why are you making arguments in favor of a defendent you admit you know little to nothing about? As you've been told, the rape victim has already discussed the rape during the trial. The judge has also decided in the end that she doesn't have to watch the tape. Forcing her to watch the tape or go to jail was an infringement of her rights and personhood. The tape will be aired. The defendent has not seen his rights broached.

Before you comment on this case, or any case, it would be a good idea to read about it and get good information before commenting on it.

Posted by: The Countess at Mar 3, 2006 2:49:40 PM

I suspect that I had read as much as everyone else had. I had read some blogs' descriptions and some of the Chicago papers.

Notice that TK said "Not having seen the motion, nor the prosecution's response; not knowing the relevant rules of evidence, I can't say, out of hand, the judge was wrong in his initial ruling (and if he wasn' the contempt charge was legitmate, and fair)" and "That would depend on what the tape shows".

I don't have a problem with the judge ruling against the defendant because I assume that the judge weighed those factors and actually saw that tape.

Posted by: will at Mar 3, 2006 3:01:06 PM

Yes, the judge weighted all the relevant factors and decided that the woman claiming rape didn't have to watch the tape after all. The tape will likely be shown to the judge and others in the courtroom. The defendant is and will get a fair trial. Which is how everything should be. The point wasn't whether or not the tape had shown what the woman claiming rape said, or what the defendant had said about it. The point was was it warranted to force the woman to watch the tape, or go to jail? That was over the line, and thankfully the judge finally saw the error of his way.

Posted by: The Countess at Mar 3, 2006 3:33:46 PM

It appeared that the jail comment was an off-handed comment as if he was dealing with an ordinary situation of a witness not cooperating. That was clearly insensitive and inappropriate from what I can tell.

Posted by: will at Mar 3, 2006 3:48:05 PM

off-topic, but: Absinthe party at my place.

Also: everyone here is a troll except me. That includes Trish.

Posted by: Violet Socks at Mar 3, 2006 4:32:59 PM

Yeah, you wimmin all are man-haters and loosers!

That makes me a troll. Now go git me a glass of absinthe, woman!

Posted by: The Countess at Mar 3, 2006 4:37:30 PM

Sweet! I will bring some port and lots of good cheese.

Wait a minute...I think I have seen this movie before. Big party at house in the woods. Lots of alcohol. Very few clothes. It looks like lots of fun. Then, all of a sudden, the lawyer gets an axe in his skull.

Posted by: will at Mar 3, 2006 4:39:24 PM

Also: everyone here is a troll except me. That includes Trish.

That's obviously a comment by a troll who refuses to understand that it's I who is the only non-troll here.

Wait a minute...I think I have seen this movie before. Big party at house in the woods. Lots of alcohol. Very few clothes. It looks like lots of fun. Then, all of a sudden, the lawyer gets an axe in his skull.

Doesn't the nerd bite it first?

Posted by: Alon Levy at Mar 4, 2006 5:48:29 AM

I am an ex-prosecutor who has handled a number of rape cases and I have seen a lot of rape victims get raked over the coals. There is no doubt in my mind that cultural prejudices are stacked against rape victims and that, historically, the system has been grossly unfair to rape victims. I am also a feminist blogger.

I honestly think, however, that there very well may be all sorts of valid reasons to show the victim the tape and question her about it on cross-examination. Without knowing very specifically what's going on in this trial, it is very hard to conclude that the judge's ruling that she should watch the tape is incorrect. We're all just speculating here.

I do take issue with Will's statement that the victim should have to watch the tape because she CHOSE to prosecute. She may have chosen to make a police report (or did someone else report it?) but we don't have any basis to conclude that she chose to pursue the prosecution. The decision to prosecute is the decision of the State. Most prosecutors will take the decision's wishes into account, but the victim's wishes don't necessarily carry the day. Prosecutors frequently choose to prosecute over the victim's objections (particularly in domestic violence cases, but sometimes in other cases as well). The primary purpose of the prosecution is to protect the interests of the State, the idea being that if someone has committed a rape, the State needs to take steps to protect the public at large from that person. The victim is legally considered to be just a witness almost like any other. Thus she can be compelled to testify under subpoena against her wishes. (I should note that victims do have some special statutory rights in most states, such as the right to be kept informed of any plea bargain, the right to remain in the courtroom throughout the trial even if other witnesses are sequestered, etc.)

That having been said, I do not approve of the judge's threat to jail the victim. He legally may have had the right to do so, but his threat was way over the top and should not have happened. (This touches on another issue -- what should the State do if a reluctant witness refuses to testify? Often it's be
cause the batterer or rapist has intimidated her. Do you let the batterer win or do you try to force the witness testify by jailing her? I don't think to many prosecutors actually would go that far. I would always just tell victims, "Look, you're under subpoena" and that was generally enough to get them into court.)

I don't mean anything I have said to be insensitive to victims. These are tough cases and there are a lot of different interests to balance.

Posted by: The Happy Feminist at Mar 4, 2006 7:50:53 AM

I'm sorry, there's just no way making this victim watch this tape can be anything but an attack on the victim. Or are defense attorneys entitltd to do whatever they wish in getting their clients acquitted?

When an all-white jury did the same thing with the Rodney King vicdeo, people rioted. Now another scumbag has gotten away with it.

Posted by: ginmar at Mar 4, 2006 11:16:48 PM

When an all-white jury did the same thing with the Rodney King vicdeo, people rioted. Now another scumbag has gotten away with it.

Uh, the judge said that the victim will not have to watch the tape.

Posted by: Alon Levy at Mar 5, 2006 4:49:09 AM

Alon, can you try thinking now and then? It would help.

Rodney King: a black man beaten savagely by four LA police officers. An all white jury found him innocent after the defense attorney got anal with the frame-by-frame analysis of the tape.

This case: anotehr scumbag defense attorney went frame by frame and got an acquittal.

If you don't know who Rodney King is, try google. I won't do it again for you.

Posted by: ginmar at Mar 5, 2006 9:05:29 AM

I said what I said before I saw that the rapist got acquitted.

Posted by: Alon Levy at Mar 5, 2006 11:22:58 AM

Ginmar: I saw the video. I also read (I was an intern at the Los Angeles Daily News) the radio transcripts, and I know both the roads, and that specific offramp, and the road past it.

From the tape, what was alleged (54 blows, including many to the head) with anodized aluminum (T7075, a very hard, aircraft aluminum, used for structural members in wings, among other things) PR-24 side handle batons, with ball-bearing grips (standard issue, for the LAPD) which have great acceleration) couldn't have happened as shown. Had some of the blows landed, as they looked to have landed when seen at full speed, Kings head would have been in about the same shape as a watermelon hit with a bad by Mark McGuire.

That aspect of the trial was fair use of the tape, as it put some of the allegations in perspective.

What caused the riots was, 1: years of friction between the police (both LAPD and LA Sherrif's Dept) and the patently absurd claims of what led to the officer's response.

Where the initial call was made (just over the crest of a long hill, on the 210 fwy) the odds of a Hyundai doing more than 90mph are really slim. Of it doing 110, as claimed by the CHP, well it's not-believable. The offramp (Osborne, Northbound 210) has a 120 angle; the road is divided at that point, by the support panels of the overpass. The offramp itself has a curve. There isn't a street legal car (not even a Lambourghini; as tricked out as anything) which can hold the road on that offramp, at more more than about 50 mph, so the claim that King took it at 80+mph is ludicrous on its face.

That he was pulled over less than a block past that offramp also makes it seem the 80mph claim is a tad absurd.

What wasn't pointed out to the jury, but was known to anyone who wanted to check, in the area, is that the offramps between where the CHP saw him, and he pulled over, are all isolated, dark, and not the best place for someone who mistrusts the police to be pulled over. If he'd been beaten at one of those offramps (say La Tuna Canyon Road) the only thing which could have made the news, would be the hospital report.

That the trial was moved to Simi Valley, instead of San Francisco, or Santa Barbara, etc. was probably the most catalytic aspect of the trial. Simi Valley is not a change of venue; at least not one of any merit. They have the same media market, so they were as predjudiced by the media treatment as any other. But it's also a bedroom/retirement community. Many of the people there settled there to get away from bussing in the area where King was beaten. A lot of the people there are retired cops. It is, in short, a prosecutors dream area, esp. if the charge is against a black guy, who attacked a cop.

It's, therefore, a defense attorneys dream area, when the accused is a cop, said to have beaten a black man: one who can be painted as having attacked a white, female, cop (which is part of what they claimed, it was King's attitude toward the female CHP officer, which made them start whaling on him).

That's what led to the acquittal, and the riots.

TK

Posted by: Terry Karney at Mar 6, 2006 10:57:39 AM