courts

Somalia Jails Alleged Rape Victim

A Somali woman who accused government security forces of rape was sentenced to one year in prison on Tuesday after the court ruled that her accusation was false. A journalist who had interviewed the woman but never published a story was also sentenced to one year in prison.

The Somali court ruled that the woman had not been raped based on the testimony of a midwife who performed a “finger test.” According to the Human Rights Watch, the so-called “finger test” is “an unscientific and degrading practice that has long been discredited because it is not a credible test of whether a woman has been raped.”

As I’ve said before, that test has got to go. It’s rooted in ignorant beliefs about female anatomy held over from the days when a woman’s only worth came from her monetary value as a bona fide virgin on the marriage market.

Radical Woman of the Day: Mary Gaudron

On this day in 1987, Mary Gaudron became the first woman to be appointed to the High Court of Australia. She had also previously been the first female Solicitor-General in Australia and the first female Queen’s Counsel in New South Wales.

While studying at the University of Sydney from 1961 to 1965 to earn her law degree, Gaudron sought articles of clerkship—a form of apprenticeship—from many lawyers but was turned down every time because of her gender. She worked for the Australian Public Service instead but had to quit by regulation when she got married.

Beginning her career as a barrister in 1968, she had to share her room in New South Wales with another female barrister, Janet Coombs, because other male-occupied barrister’s chambers had refused to sell her a room. She experienced a major career breakthrough in 1970, though, when she successfully argued for the plaintiff in O’Shaughnessy v Mirror Newspapers Ltd. After winning another major case in 1972 for the Whitlam government, she became the youngest ever Australian federal judge when the government appointed her Deputy President of the Conciliation and Arbitration Commission in 1974.

Appointed to the High Court in 1987, Gaudron served as justice for 16 years before retiring at the age of 60. She subsequently went to work for the International Labour Organization where she is currently President of the Administrative Tribunal.

California Senator Proposes Bill to Rectify Antiquated Rape Law

Remember last week, when an appeals court in California overturned a rape conviction because the victim was unmarried? State Senator Noreen Evans (D-Santa Rosa) has had about enough of that.

The new legislation, SB 59, would replace “spouse” with “sexually intimate partner,” extending a provision–which previously only counted sex-by-impersonation as rape if the victim is married–to all cohabitants, including single women and men, domestic partners and gay, lesbian, bisexual or transgender pairs.

This sounds great, but I worry that future convictions could hinge on the definition of “sexually intimate partner”. For example, what if someone tricks a woman into thinking he’s the guy from her hook-up of the previous night?

Rape Conviction Reversed Due to Marital Status of Victim

It’s not as bad as it sounds, but it’s still pretty bad. The man in question, Julio Morales, had sex with a woman (“Jane Doe”) while she was unconscious, so he should have been convicted on the grounds of non-consent. But in addition to making that argument, the prosecution also contended that he had tricked Doe into having sex with him by pretending to be her boyfriend, who had been lying next to her when she fell asleep.

But Morales’ lawyer also claimed that his client hadn’t done anything to trick Jane into thinking she was with her boyfriend, and that California law only explicitly makes it a crime to trick someone into having sex if she believes she’s having sex with her husband. That’s technically true of the law. The judges said that because they couldn’t be sure whether the jury had convicted Morales based on correct theory (that she was unconscious) rather than the incorrect one (he pretended to be someone else), the whole case had to be retried.

Doesn’t it seem like the appeals court could have removed some of the legal weight from this out-of-date law by refusing to apply it so strictly in this case? I’m a huge fan of due process, but this seems a little excessive.

India's Accused Gang Rapists Unable to Find Representation

Police reports revealed today that the six men accused of the fatal gang rape of a 23-year-old student allegedly tried to run over over her after they raped and attacked her with an iron rod. That, on top of worldwide outrage, is making it really tough for these men to find legal representation. “We have decided that no lawyer will stand up to defend the rape accused as it would be immoral to defend the case,” said Sanjay Kumar, a lawyer and a member of the Saket District Bar Council.

This is an interesting ethical situation. I recently had a debate with some friends over whether a court-appointed defender could ethically refuse to lie on behalf of their client. My opinion: yes—all a just society can expect from defense lawyers is that they represent the accused person(s). “Represent” != “Represent with every technique available”. Hypothetically, if I was an Indian lawyer I might take this case in the interest of due process, but I would refuse to misrepresent the facts in the interest of “representing” my clients.

"Two-Finger" Test for Rape Needs to End

Tom Wright at The Wall Street Journal’s India Realtime blog addresses several components of the country’s ongoing rape culture, including the above-mentioned “two-finger test”:

In the test, which appears in Indian jurisprudence textbooks and is admissible in court, a doctor inserts two fingers into a women’s vagina to determine its laxity and whether the hymen is broken, signaling previous sexual activity.

The test perpetuates stereotypes of rape survivors as loose women and often is used by defense counsels to achieve acquittals, human-rights groups say.

In case you missed it when I linked to it a couple months ago, here’s Scarleteen’s post on the vaginal corona, which should tell you all you need to know about why the “two-finger test” makes absolutely no sense.

Via The Atlantic Wire.

"The Body Shuts Down"

Scratch another mark on the prison wall for “legitimate rape”. The California Commission on Judicial Performance has voted unanimously to publicly admonish Superior Court Judge Derek Johnson, who, during the trial of a rapist (eventually convicted), said the following:

I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case.

Here’s some Life Advice from your pal Ryan, kids: If you have to preface a remark with “I’m not a [insert title here], but…. ” you should probably, at the very least, refrain from basing important decisions on the next words that come out of your mouth.

Beyond Akin

The phrase “forcible rape,” which Akin claimed he ought to have used after his initial remarks became controversial, is just as wayward as his original phrase. Both the notion of “legitimate” rape and that of “forcible” rape fail to recognize that force shouldn’t be required to conclude that a rape takes place. But in too many courts across the land, it is.

James Warren nails it: the onus should be on sexual initiators to obtain consent, not on sexual responders to deny consent. Our sexual assault jurisprudence needs to come out of the dark ages.

Justice for One

Dr. Thomas Bray has been sentenced to 25 years in prison for the assault and rape of Jennifer Bennett:

Bray slapped, raped, sexually abused and strangled her until she passed out. She thought she was going to die– and so she’d resorted to scattering her hair that he’d pulled out around his condo, so police investigating her disappearance would know she was there.

Bennett showed remarkable foresight, not only in this action, but in her counter-instinctual decision not to shower before going to the police. She also successfully resisted a subpoena of her Facebook account, email, and personal computer and a court-ordered investigation of her Google search history.

It’s a victory on every level, not just because her rapist was convicted and sentenced but because the victim-blaming privacy violations were not permitted be carried out. As sad and frustrating as it is that women have to be this bold and determined to obtain real justice for sexual violence, this is a win.