Wednesday, May 30, 2012

Unusual: Man to be tried for allegedly raping his wife--49 years ago

No sane and rational person wants to see a rapist get away with his vile act. A rapist should not be rewarded for evading justice until a statute of limitations runs out.

But a case in Australia raises concerns for the presumptively innocent.  A man allegedly raped his wife in 1963, when such act was not a crime. He is being tried almost 50 years after the alleged incident, and only after two laws were changed: the law that said a man could not rape his wife, and the statute of limitations that originally barred the claim.

We don't know what the man's defense is, or when he first learned of the allegation. If he is arguing, "she was my wife back then, and it was legal to rape her," then please don't ask us to muster any sympathy for him.

But if his defense is "I didn't do it," and if the allegation was sprung on him decades after the alleged act, then the charge raises concerns about the fairness of a trial. 

Here in the US, in recent years, state legislatures have adopted varying extensions to their criminal statutes of limitations for cases of sexual assault. Some states have eliminated time limitation for bringing rape charges of varying kinds altogether.  Depending on the state, there are special rules for extending the rape statute of limitations for claims involving minors, for claims where the identity of the perpetrator is established by DNA, and for claims involving authority figures.  Each of these changes were enacted based on important societal concerns.

But it is also important to consider the other side of the proverbial scales of justice. Open-ended extensions or eliminations of statutes of limitations for purported cases of rape and sexual assault raise concerns widely shared among the criminal defense bar.

"It is a due process issue," says legislative director Andrea Meyer of the American Civil Liberties Union of Oregon. ". . .  [T]he reason we have a statute of limitations . . . is to provide the necessary safeguards -- not to protect the guilty, but to protect the innocent." See here

Last year, Slate interviewed Prof. Aya Gruber, whose feminist credentials can't be questioned, on this issue: "Aya Gruber, a professor at the University of Colorado Law School, says that when the charge is based on the word of the victim, timing can be especially important. 'For example, if a person comes forward with a claim of sexual assault when he was a 7-year-old, 20 years after the fact, arguably the charge is suspect from the beginning,' Gruber points out. 'The person’s memory has been subject to change and influence, essential witnesses might have forgotten the events or even be dead, it may be impossible to get physical evidence in the case, and the like.' Furthermore, Gruber says, a long-delayed charge lessens the retributive and deterrent value of a conviction." See here

Here, in the prison capital of the world, where there aren't enough jails to hold the men society says deserve incarceration, our zeal to punish rapists is a valid, and appropriate, instinct.  But the concern expressed by Prof. Gruber and the ACLU -- about the need to keep the innocent from being punished with the guilty -- is also a valid and appropriate instinct. Unfortunately, theirs is a concern that is difficult to hear amidst the law and order cacophony of the public discourse.