Saturday, May 17, 2008

All together now: A rape accuser is not necessarily a 'victim'

The Concord Monitor recently ran a well-written article about the decision of a prosecutor not to retry a man for rape following the state supreme court's holding that his due process rights were violated in his first trial. However, the article included a quote (from someone who should know better) that inadvertently referred to the accuser as the "victim."

First, the article. Then, a letter to the editor properly calling attention to this error.

Man won't face new rape trial
Chance to question accuser was denied
By Margot Sanger-KatzMonitor staff
May 13, 2008 - 6:36 am

County prosecutors have opted not to retry a man whose rape conviction was overturned by the New Hampshire Supreme Court. Karl Kornbrekke of Concord, who has been out on bail since March, is now free.

The court found that Kornbrekke should have had the opportunity to question his accuser about a previous rape allegation that she recanted. Prosecutors had the option of trying Kornbrekke again, allowing this new evidence, but opted against it.

Merrimack County Attorney Dan St. Hilaire said that after reviewing the case, he was not confident he would be able to convict Kornbrekke in a retrial. Kornbrekke's first trial ended in a hung jury. He was convicted in a second trial after lengthy jury deliberations. Kornbrekke served 18 months in the state prison, but he has been out on bail since the Supreme Court decision in March.

"It was very difficult, even with the suppressed evidence," St. Hilaire said. "Now with the evidence coming in, and reviewing our past two trials, we just determined that we may not be able to prevail the third time around."

There were no witnesses to the alleged rape, and there was no definitive physical evidence of assault, according to the Supreme Court decision. Kornbrekke's lawyers argued that sex between the two was consensual and that the accuser became angry later, after Kornbrekke refused to buy her drugs.

The accuser, whom Kornbrekke met a few days before the alleged rape, had made a previous rape allegation, then recanted that accusation. Because some details of the older incident were similar to those alleged in the Kornbrekke case, the justices found that evidence of the previous accusation should have been allowed at trial.

"Given the nature of this case - a sexual assault case with no eyewitnesses other than the complainant and the defendant - the complainant's testimony, and thus her credibility, is crucial," said the opinion, written by Justice Gary Hicks.

Defense attorneys and prosecutors interviewed at the time of the decision said the court clarified a standard that had been uncertain but only applies in a small number of cases. The decision does not expose victims to cross-examination about their sexual histories, but it does allow defendants to question victims about previous accusations of rape that may have been false, said Ted Lothstein, a Franklin Pierce Law Center professor who handled Kornbrekke's appeal.

"We're not interested in the details of someone's sex life, we're interested in honesty," he said in March.

Now, the letter to the editor properly correcting the improper terminology:

Accuser is not necessarily a victim
Tim Murray, Pittsburgh
May 17, 2008 - 12:00 am

Re "Man won't face new rape trial" (Monitor front page, May 12):

A minor point, but an important one: Your article notes: "The [state Supreme Court] decision does not expose victims to cross-examination about their sexual histories, but it does allow defendants to question victims about previous accusations of rape that may have been false, said Ted Lothstein, a Franklin Pierce Law Center professor who handled Kornbrekke's appeal."

Please do not refer to the accuser as "the victim" until the defendant in a rape case is finally adjudicated guilty - especially in this classic "he said/she said" case where a man faced substantial prison time on the basis of nothing more than a woman's complaint. Why is it not just as likely here that the defendant was "the victim" of a false rape claim?

Your newspaper protects the rights of the accuser by not naming her. The defendant, on the other hand, has already served substantial prison time for a crime he may not have committed, and his reputation has been marred, probably beyond repair.

Your newspaper has freely named him as it does anyone else accused of a crime. In any event, we really need to better respect the rights of innocent men who are accused of this foul crime. The implicit assumption that the accuser was a "victim" is unwarranted until the man's due process rights have been exhausted. Here, the "victim" moniker for the accuser is wholly inappropriate.

TIM MURRAY
Pittsburgh