Tuesday, January 17, 2012

Sexual assault is not a private crime

A disturbing You Tube video shows a seemingly unconscious, motionless man in an LSU shirt slumped in a chair, his head pressed to a table, and two fast-food containers on his back. Young people who appear to be University of Alabama fans proceed to mock, sexually assault, and otherwise assault him.

The New Orleans Police Department's Sex Crimes Unit is aware of the online video and has reviewed it. The apparent victim, as well as everyone involved in the incident, is unknown, and no one has filed a complaint or come forward.  "In sexual assault cases, victims make the ultimate decision to inform police so that we can thoroughly investigate a situation," a police spokeswoman wrote. "Should that person in this video decide to come to us, we will launch a complete investigation."

I'm confused. Shouldn't the police be asking for information about the incident from anyone who might know about it?  The apparent perpetrators committed what appear to be degrading acts against an innocent member of society. The fact that the man was incapacitated doesn't give the apparent perpetrators license to use him as their their human plaything. Society's paramount interest in cases of this nature should be to bring these people to justice so that they are less likely to do it to others.

And so what if the alleged victim doesn't want to cooperate? That certainly would make the prosecution more difficult, but the incident has been captured on video. In any event, an incapacitated victim wouldn't be able to shed as much light on what happened as the video does. The video, not the apparent victim, would be the state's star witness.

Sexual assault is no more a "private" crime than is murder or robbery.  When a dead body is found in the woods, police don't issue statements proclaiming there won't be any prosecution unless the victim comes forward.

Professor Alan Dershowitz recently instructed: "A civil trial . . . seeks justice for the victim." But, "[a] criminal trial is never about seeking justice for the victim." See here.

Some insist that the alleged victim of a sexual assault or rape should decide whether to prosecute. They reason that it is unjust to force a victim to endure the prosecution of such a crime if the victim doesn't want to come forward.

That argument has a certain appeal, but it ultimately must give way to larger interests. While it is rare that a sexual assault case can be prosecuted without the cooperation of the victim, where it can be done (and I submit this might be one of those cases), it is more unjust not to prosecute since not prosecuting allows a criminal deviant to go unpunished to prey on other innocent members of society.

It is time to stop thinking of rape as a "different" sort of crime.