MA State Rep Vows to "Rip Apart" 6-Year-Old Rape Victims on Witness Stand

[srmom]

"When they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody."...MA Rep. James Fagan, addressing the MA State Legislature last month

From Daily Kos:

I realize that everyone is entitled to a fair trial, but should a defense attorney emotionally destroy a child rape victim in the process of defending an accused rapist?

Listen to this rant by James Fagan of Taunton, MA, who is a representative to the State Legislature and a criminal defense lawyer. In a speech last month opposing mandatory sentences for child rapists, he delivered some shocking statements about how he would make child victims suffer on the witness stand:

http://www.dailykos.com/story/2008/6...856/541/531368

DISGUSTING!! This guy is unbelievable. I wonder how he sleeps at night if he truly thinks this is the proper way to defend his scum bag clients.

What do you think?

[CBU Jeff]

It's sad. I realize that his job to defend rapist's and such, but when does ethics come into play???

[Kevin]

Originally Posted by CBU Jeff

It's sad. I realize that his job to defend rapist's and such, but when does ethics come into play???

Even an accused child rapist deserves an adequate defense. If the state really doesn't want the witness to suffer, then the state can plea bargain.

There are cases where the entire rape scenario was something the child just made up by the child.

If the defense attorney, however, subjects the child to too much abuse, that sort of strategy is very likely to backfire with the jury.

Any sort of law limiting the right of cross examination will likely be held unconstitutional.

[KSig RC]

Originally Posted by srmom

From Daily Kos:



http://www.dailykos.com/story/2008/6...856/541/531368

DISGUSTING!! This guy is unbelievable. I wonder how he sleeps at night if he truly thinks this is the proper way to defend his scum bag clients.

What do you think?

I think you didn't pay attention to the actual speech.

It appears his point was that mandatory sentences are silly because they warp the process of trying the accused. He noted that he would have to change his tactics to the ones noted because that would be the only way to fight against a "Draconian" mandatory sentence.

Additionally, the specter of mandatory sentences plays havoc with jury deliberations. Seriously, it's not "cut and dry" - this is a complex psychological issue.

This is without going into the fact that his "scum bag clients" are actually innocent until proven guilty, and have a Constitutional right to a vigorous defense - no matter what.

The kids don't have to take the stand. The attorney's ethical duty is to his clients, first and foremost. Come on - don't take this out of context and think the guy just hates rape victims. He was making a point.

[KappaKittyCat]

But the statement was made in the context of a debate over whether to impose mandatory minimum sentences for child rape in Massachusetts. Nearly all of the Massachusetts Attorneys General are opposed to this change because it would prohibit plea bargaining and all these child rape cases would go to trial. The representative was talking about what would happen to these child victims if a vicious defense attorney cross-examined them. He was using hyperbole to make a point. I think he could have gone about it better. But I do agree that if reporting a child's rape automatically entail a trial in which the child victim would have to testify, there'd be a lot fewer child rapes reported.

[KappaKittyCat]

Originally Posted by KSig RC

Additionally, the specter of mandatory sentences plays havoc with jury deliberations. Seriously, it's not "cut and dry" - this is a complex psychological issue.

I can state for a fact, having just been on a jury deciding a child abuse case, that a mandatory sentence would have made it even harder for us to decide.

[srmom]

I think he just went WAY over the top in his impassioned speech. He could have gotten his viewpoint that mandatory sentencing was the wrong tact to take legislatively without saying that he would "rip apart" child rape victims.

And, while there are cases where

the entire rape scenario was something the child just made up by the child.

there are many more that are not.

People are already afraid of going to the police and pressing charges because of what might happen, that they won't be believed, or that they will be ripped to shreds by defense attorneys, being victimized by, not only the rapist, but by the legal system as well.

Do you think this type of diatribe helps reassure victims that they will be treated fairly by the system?

Also, IMO, child molestation is a sickness. There have been too many cases of repeat offenses, often escalating in violence. Many molestors themselves have testified to a uncontrollable compulsion. With courts being too lenient in some cases, mandatory sentences may be the only way to get some jurists to take seriously the crime.

Case in point:

This is on the heels of Massachusetts Judge Richard Moses releasing dangerous sex offender Corey Saunders from custody after the man served just four years for attempted child rape. After Judge Moses let him out, Saunders was arrested again, charged now with raping a 6-year-old boy in a library.

I can keep googling and will find case after case of this.

How is it "draconian" to be sentenced to a lengthy prison sentence AFTER being convicted of a heinous crime? And, I personally find raping a child under the age of 12 pretty darn heinous.

[KSigkid]

Originally Posted by srmom

I think he just went WAY over the top in his impassioned speech. He could have gotten his viewpoint that mandatory sentencing was the wrong tact to take legislatively without saying that he would "rip apart" child rape victims.

And, while there are cases where there are many more that are not.

People are already afraid of going to the police and pressing charges because of what might happen, that they won't be believed, or that they will be ripped to shreds by defense attorneys, being victimized by, not only the rapist, but by the legal system as well.

Do you think this type of diatribe helps reassure victims that they will be treated fairly by the system?

Also, IMO, child molestation is a sickness. There have been too many cases of repeat offenses, often escalating in violence. Many molestors themselves have testified to a uncontrollable compulsion. With courts being too lenient in some cases, mandatory sentences may be the only way to get some jurists to take seriously the crime.

Case in point:



I can keep googling and will find case after case of this.

How is it "draconian" to be sentenced to a lengthy prison sentence AFTER being convicted of a heinous crime? And, I personally find raping a child under the age of 12 pretty darn heinous.

What happens if the person didn't do it? What happens if the child made it up? You seem to be saying that we should start with the premise that the person is guilty, work from there, and that anyone accused of the crime should be railroaded through the system.

I understand that his wording was unfortunate, and he should have thought of a calmer way to say it. I get his point, though.

[srmom]

No, I don't think that someone who is accused of a crime should be railroaded through the system. All should be presumed innocent until proven guilty and we are all entitled to an attorney But, I also don't think that an attorney should have this attitude:

Fagan said he’d grill victims so that, “when they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

But, I do think that if a person is convicted of the heinous crime of child rape (and I'm not talking statutory rape, I mean forcible rape), they should go to jail, not plea out for probation.

Just one excerpt from an article (of which there are innumerable):

The reason many convicted sex offenders go out and molest more children, say sociologists and criminologists, is similar to why alcoholics continue to drink.

“Their sexual preference is for children. They have a compulsion to molest children,” said Keith F. Durkin, a criminologist at Ohio Northern University (search) and an expert in the study of pedophilia. “Many, if not all, will molest children until the day they die. They’re dangerous and they’re going to reoffend.”

[MysticCat]

Originally Posted by srmom

How is it "draconian" to be sentenced to a lengthy prison sentence AFTER being convicted of a heinous crime?

It's not necessarily. But the point being made was not that long sentences are per se draconian; rather the claim was that it is draconian if the judge has no flexibility at all to impose a shorter sentence even where he or she finds that to be appropriate in a particular case.

Originally Posted by srmom

But, I do think that if a person is convicted of the heinous crime of child rape (and I'm not talking statutory rape, I mean forcible rape), they should go to jail, not plea out for probation.

A plea bargain might not result in probation; I doubt it would except in excpetional cases. But a plea could very well result in a shorter active sentence.

I know that lots of people have a very negative view of plea bargains. However, unless society is willing to put in the resources that would be necessary to try every case -- court facilities and staff, more judges, more assistant district attorneys, funding for more court appointed defense lawyers, more jail facilities for those who are sentenced to active time or longer terms of imprisonment, more corrections officers, etc. -- they aren't going away.

Originally Posted by KappaKittyCat

Nearly all of the Massachusetts Attorneys General are opposed to this change because it would prohibit plea bargaining and all these child rape cases would go to trial.

I think you might mean the Massachusetts district attorneys -- Massachusetts only has one Attorney General -- but very good for pluralizing attorneys general correctly.

[Senusret I]

Originally Posted by Kevin

Even an accused child rapist deserves an adequate defense. If the state really doesn't want the witness to suffer, then the state can plea bargain.

There are cases where the entire rape scenario was something the child just made up by the child.

If the defense attorney, however, subjects the child to too much abuse, that sort of strategy is very likely to backfire with the jury.

Any sort of law limiting the right of cross examination will likely be held unconstitutional.

I completely agree with this and I totally understood what Fagan was saying.

I also believe the way in which he said it was awkward (first person when third person would have been more appropriate) but I still agree with the overall point that mandatory sentencing will have an adverse affect on alleged victims.

[srmom]

A plea bargain might not result in probation; I doubt it would except in excpetional cases. But a plea could very well result in a shorter active sentence.

Sometimes WAY too short as in the above mentioned case in Mass. where the guy got out after 4 years and then raped a 6 year old in a library bathroom.

I know that lots of people have a very negative view of plea bargains. However, unless society is willing to put in the resources that would be necessary to try every case -- court facilities and staff, more judges, more assistant district attorneys, funding for more court appointed defense lawyers, more jail facilities for those who are sentenced to active time or longer terms of imprisonment, more corrections officers, etc. -- they aren't going away.

That's very true, and sad.

[MysticCat]

Originally Posted by srmom

Sometimes WAY too short as in the above mentioned case in Mass. where the guy got out after 4 years and then raped a 6 year old in a library bathroom.

I'm not sure how that argues for mandatory minimum sentences, though. Just based on the quote you offered earlier:

Originally Posted by srmom

no sentence will be long enough except for a life sentence, where they are kept away from children altogether.

Say the guy you're talking about had been held for 20 rather than 4 years. While the specific 6-year-old might have been spared this horrible thing, you can't assume that the longer sentence would keep the offender from raping some other child when he finally got out.

I agree completely that the rape of or sexual assault on a child is utterly reprehensible. But I think there is some validity to the argument that mandatory minimum sentences won't address the problem -- that they are a band aid solution for a problem requiring surgery.

[KSig RC]

We can find case after case, sure - but we still have no idea how this affects the overall point (that sometimes, the arrests are wrongful and invented by the child or put into the child's head by an elder) . . . anecdotes are great, because they get us all riled up over the extreme cases, but they also occlude our minds when we try to figure out just how often the accused is indeed wrongly accused.

Even beyond that, it's true that judges make mistakes - that's why you can vote judges out of office very few years, in most jurisdictions. However, mandatory sentences are a pretty bad idea on the whole, for a variety of reasons:

-First, they tie prosecutors' hands, because mandatory sentences cause problems with plea bargains or scenarios that are "special cases." While we always hear negative things about plea deals, it's selection bias - more options is generally better than fewer when it comes to this sort of thing. No one is going to bargain into a mandatory sentence, and if there's an iffy case (remember the burden in criminal court), the prosecutor would be completely remiss to not get something out of it.

-Second, it's pretty clear after a couple decades of research that juries have difficulty with crimes that have mandatory sentences. You may very well see conviction rates go down as a result, or lesser included charges become more successful. The cure might actually be worse than the current sickness.

-Third, with literally nothing to lose because of a mandatory sentence, defense attorneys are forced to "go for broke" whereas before, they might hedge by seeking a guilty verdict with a reduced sentence. It changes the risk/reward dynamic, and that's exactly what Mr. Fagan was describing in his diatribe.

I think Mr. Fagan's description was pretty on-point, to be honest, but I'm surely coming from a completely different place than someone with children or etc.

[GeekyPenguin]

Interestingly enough, I think one of the sponsors of this bill also was pushing one requiring sex offenders to vote absentee because of the library incident mentioned up thread. His argument was that if a sex offender went to a library to vote there might be a kid around.