In America, we have a large variety of “rights.” A lot of things people consider “rights” today – health care, college education, etc – aren’t really “rights.” There is no right, for instance, to not be offended… indeed, the actual right we have (the right to free speech) seems specifically designed to ensure that one can say things that may be offensive, a right that is nonexistent in many other countries.

Thus it comes to one of the weirdest cases the Supreme Court has declined in recent memory: a rape trial in which the judge ruled that the plaintiff was not allowed to use certain words.

The conflicting rights brought up in the case:
– The right to face one’s accuser (she took the stand against him).
– The right to free speech.
– The right to a fair trial.

The other weird things in the trial:
– The first trial ended in a “mistrial” when the jury couldn’t reach a verdict, at least partially due to the fact that they found the plaintiff “unreliable.” She was, quite believably, constantly stopping to check her words, terrified of the judge attacking her for violating his word-ban order and holding her in contempt of court (which could carry jail terms and other issues). In other words, the witness was being tampered with and intimidated by the judge himself.
– The retrial ended in mistrial because the judge called it so, citing media attention and victims’ rights protesters who were upset at the bizarre ruling.

Unfortunately, this is a lousy case to go on – and as the saying goes, “Easy cases make bad law”, with the necessary corollary, “Hard cases make bad law.” In this case, we have one of the classic he-said she-said conundrums that always gets advocate groups (on both sides) upset; a case in which we know sex occurred and that verbal consent appears to have been possibly given, BUT the woman is (now) claiming it was rape because she was too drunk to actually consent to sex.

Not to make light of these sorts of situations, but it’s entirely possible that this ought to have been one of those “mistrial and no jury will ever come to a unanimous verdict” situations to start with, because it could be any one of any number of situations. It could be that she was drunk, and “consented” without consenting (and equally possible that he was ALSO in a drunk enough state not to be able to consent… which would mean two people, neither of who was in a condition to consent to sex, had sex anyways and she is merely the first one to go to the police). It could be that it was consensual, but she felt guilty (for religious reasons or anger reasons later) and went to the police, changing her story. It could be that this is one of those situations where sex contract advocates always say to get something in writing… though, again, “too drunk to consent” would also apply to a written contract I’m sure.

Again, are there situations where men get women drunk (or slip them drugs) merely to have sex with them? Yes. There are also men who do it to other men, women who do it to men, and women who do it to women. I don’t mean to minimize this as real rape; I do have to consider that in this particular case, the chance of getting a real and just verdict is a matter of severe difficulty and that the judge was dealing with a very difficult situation trying to balance the right to a “fair” trial against the usage of some very severe words, the societal impact of which has very much become a “guilty until proven innocent” problem, and as we mentioned above… bad cases make bad law.

On the one side, the right of the victim to make her accusation, in full exercise of her 1st-amendment right to free speech, and see her rights represented in the courtroom. On the other, the accused’s right to a fair trial. In the middle, a case of “he said, she said” in which the physical evidence means little-to-nothing and the line between “consent” on the part of either party comes down to the particular BAC levels of each individual… and since we lack a notarized breathalyzer test and signed sexual consent form, we probably will simply never know the 100% objective “truth” of what happened that night.

He said, she said… and a bad case winds up making bad law. I’m actually not surprised the Supremes took a look at this and said “oh heck no, we’re not getting anywhere near this mess.”


Category: Courthouse

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4 Responses to When Rights Collide

  1. Barry says:

    There’s always the argument that, if it’s possible to consent to sex while under the influence of alcohol when normally you wouldn’t, then the person loses some of that right to use it as a defense the moment they take that first drink. One might say by taking that first drink, you open yourself to the possibility that one might lead to another, and another, and another and eventually waking up next to a guy (or girl) you don’t know and terribly afraid of something you (or they) did that night.

    To me, sure there’s a lot of grey areas in that forbidden land of who said what and when and under what degree of impairment – but it’s the responsibility of each individual to not drink if there’s a chance that such an unwanted event could occur.

    I guess I’m just saying if you’re going to complain he got you drunk and raped you, when in reality you have no real clear memory of whether you really consented or not, then you may be just as much to blame as the other person.

    This obviously doesn’t apply to someone who’s been slipped a drug without their knowledge. I’m only talking about those who choose to drink alcohol in leading up to a romantic encounter.

    That said, the judge is an idiot.

  2. Bobvis says:

    Barry, you could a organize society according to the rule you propose, but we have not. In general, I cannot agree to sell my house for you $10 when I am drunk. Neither can a nurse get me to consent to giving her my kidney as I am coming off of general anesthesia (despite my having known fully well that I would be groggy when I got out of it.) Maybe I should be able to, but keep in mind that’s a political science question. The law, as it currently stands attempts to protect all of us when we don’t have our whits with us.

  3. Transplanted Lawyer says:

    If this is the case I read about several months ago, the issue was the ruling that the prosecutor and prosecution witnesses could not use the word like “rape” and had to use a more clinical phrase, “sexual assault,” instead. The complaining witness could not be identified as the “victim.”

    It becomes more than faintly ridiculous when a defendant cannot get a fair trial if he is even accused of doing anything wrong. The question is whether the use of words like “rape” and “victim” are so inflammatory that their mere use poisons the jury pool.

    To this, I say that people have been acquitted at trials where the crime was called by its proper, and very unpleasant, name many times in the past. Rape should be called “rape.” Murder should be called “murder.” Here, the defense is consent. So a competent defense attorney can and should say something like “Ladies and gentlemen, my client is accused of rape. Sex with consent is not rape. She consented. You should find him not guilty.” Really, how hard is that?

  4. Brandon Berg says:

    Actually, the proverb is “hard cases make bad law.” It gets about 50 times more googits than “easy cases make bad law.”

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