Tuesday, May 12, 2009

Proescutors try teen boys for rape despite the unequivocal recantation of a critical witness -- the alleged victim's girlfriend

Sometimes it's not difficult to get the impression that law enforcement officials are willing to play Russian roulette with the lives of young men accused of rape in the hope of possibly getting a conviction -- even though the evidence is incredible and justice dictates that the charges be dropped.

There is a very troubling rape trial ongoing in Canada. It involves an allegation that two 17-year-old boys raped a 13-year-old girl. But evidence admitted at trial thus far suggests that the parties engaged in a consensual threesome, and that the girl lied to the boys about her age.

As explained in greater detail below, six months after the purported rape, the alleged victim's girlfriend, who was present at the home where the alleged rape occurred, recanted her earlier statements to police that suggested the alleged victim was forced to have non-consensual sex. The girlfriend also told police that the girl subsequently had sex that night with a 14-year-old boy.

The trial won't be concluded until June at the earliest, but if justice were to prevail, the charges probably should have been dropped already. The incident is chronicled in a series of articles in the Hamilton Spectator. Here is a summary.

On the night of December 7, 2007, the 13-year-old alleged victim, who was intoxicated from vodka coolers, alleges she was sexually assaulted by the 17-year-old boys. The alleged victim's girlfriend was present and initially supported the alleged victim's story.

However, in June 2008, the girlfriend recanted. According to the one of the news reports, the girlfriend told police that the alleged victim "had been a willing participant in a threesome with the two older youths." In addition, the alleged victim "instructed her to make the teenage boys' behaviour sound more aggressive than it was and not to mention the fact that the girl shortly afterward had sex with a third boy, who was 14 years old."

The girlfriend "admitted that contrary to what she told [a police detective] in December 2007, she did not try to prevent her girlfriend [the alleged victim] from going with the older boys into another bedroom of the home, where the girls (both 13 at the time) were visiting the younger brother of one of the accused youths. . . . 'When it happened, they didn’t force her because if she really didn’t want to, I would not have let them (have sex with the girl),' the [girlfriend] told [the police detective] when she changed her story six months later. 'They [the 17-year-old boys] were encouraging her,' she told the detective. 'She never actually said no.' The [girlfriend] admitted that she lied the first time around about the aggression of the older boys and about how they were angry with her when she tried to stop the assault on her friend."

That same month, June 2008, the alleged victim finally corroborated a portion of her girlfriend's story when she confessed to police that, indeed, she did have a third sexual episode that night with yet another teenage boy, this one 14-years-old -- and, guess what? She claims the 14-year-old boy raped her, too.

Is every teen boy in Canada a rapist?

With this gross inconsistency in accounts that are critical to the fate of the two teen boys, why were the charges against them not dropped?

On the witness stand, the detective handling the case was asked if he thought it was "unusual" that both the alleged victim and her girlfriend had initially failed to report the alleged victim's third sexual encounter on the night in question, with the 14-year-old boy?

Read his answer slowly: "A little bit," replied the officer.

The defendants' counsel asked the police officer if there was any reason he did not confront the alleged victim about her girlfriend's assertions that they had initially conspired to fabricate evidence and mislead the police.

"I can't ... No," said Johnston.

Did you get that? "I cant ... No." This is a trial for the most serious felony short of murder, and the officer in charge of the case can't answer the most fundamental question in the whole case?

According to the news article: "The detective said the witness had pleaded to be released from her responsibility as a witness because she believed it would interfere with her summer vacation plans. 'The reason I didn't put stock in her story was because I believed she was a witness trying to get out of coming to court. I didn't believe it (the recantation) to be sincere.'"

So the police officer rejects out of hand the girlfriend's recantation (even though it was partially corroborated by the alleged victim), but he believes the uncorroborated musings of a tipsy 13-year-old, who somehow forgot to mention that she also had a sexual encounter shortly after the "rape" with yet another teenage boy, and then six months later, she somehow remembered it -- and, oh, yeah -- she then remembered that this sexual encounter was was also a rape. (So, was she initially afraid to come forward to report the 14-year-old's "rape"? Hell, she'd already accused two other boys of rape, why would she be fearful about adding another notch to her bedpost? Watch out, this girl might just get hot and accuse every teen boy in Canada of raping her -- and Canada would probably put them all on trial.)

We must await the trial's outcome, but it's already a tragic miscarriage of justice. Based on the news accounts, the attitude of law enforcement seems to be, "Hey, so what if the evidence is incredible? Let's spin the wheel and maybe we'll get lucky and nail these kids' balls for a rape they may -- or may not -- have committed."

And here's the bottom line: rape is too serious a subject to play Russian roulette with the lives of two teenage boys. Prosecutors have a responsibility not to jack up rape convictions but to further the cause of justice. Trying two boys on a charge that could send them away to prison for decades on the basis of witnesses that have proven to be untrustworthy about incredibly serious matters is not merely unjust, it is morally grotesque.