Friday, July 3, 2009

Proescutors play Russian roulette by pressing rape charges against two teen boys despite significant evidence that it didn't happen

The following post is lengthier than usual, but I urge you to read it -- it is a chilling reminder of how vulnerable young men are to false rape claims.

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 and boys accused of rape in the hope of possibly getting a conviction -- even if the evidence is incredible and justice dictates that the charges be dropped.

There is a very troubling rape trial ongoing in Canada. We reported on it back in May, and it is still going on, so an update is appropriate. Trial won't resume again until July 13, and if justice were to prevail, the charges would be dropped before then. Read this and ask yourself if Russian roulette is an appropriate image.

The case involves an allegation that two 17-year-old boys raped a 13-year-old girl. But substantial 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 scene where the alleged rape occurred, recanted her earlier statements to police that suggested the alleged victim was forced to have non-consensual sex. In her recantation she made clear there was no such force. The girlfriend also told police that the girl subsequently had sex that night with a 14-year-old boy.

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." The girlfriend recently corroborated her recantation on the witness stand.

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?

Last month, one of the teen defendants took the stand and swore under oath that the alleged victim claimed she was 14 (the age of consent at the time) and that she was a willing participant to a threesome. According to the news story: "The girl, who had been drinking alcoholic coolers, was asked to show everyone her breasts, but she said not without seeing the boys' private parts, he told the court. The two 17-year-olds said they would show only her in another bedroom, he said. The accused said he then suggested the threesome. 'At first, it was an idea tossed out there as a complete joke,' he said. When the girl asked about it and he explained what was involved, she agreed, but only after she finished her drink, saying, 'I want to be more drunk for this,' he said. The girl appeared excited, but 'I didn't think she'd go for it,' he said. 'When she was up for it, I was shocked and surprised. Now, I had to go through with it.'"

The recantation of the victim's girlfriend has created a gross inconsistency in evidence critical to the fate of the two teen boys. Why were the charges against them not dropped? Is the prosecutor banking on his little "victim" being a better actress than her girlfriend? What's to stop him from coaching her to be more credible? And is that an appropriate way to mete out justice for any offense, much less a very serious offense?

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 carefully: "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," he said.

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 one of the news articles: "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 herself), 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 -- at that time she also remembered that the 14-year-old boy also raped her.

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 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 or wildly inconsistent? Let's spin the wheel and maybe we'll get lucky and nail these kids' balls to the wall for a rape they may -- or may not -- have committed."

Sexual assault is too unspeakably 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 to prison for decades on the basis of witnesses who have proven to be untrustworthy about incredibly serious matters is not merely unjust, it is morally grotesque.