More on the possible jailing of alleged rape victim

Deanna outlines the outrageous case of an alleged rape victim who faces jail time and the prospect of her assailants going free if she refuses to watch a disturbing video of the event.

I was so sickened by the event and the possibility that, as the defense maintains, the refusal to watch the video and question her about it fell under the defendant's "constitutional right to confrontation of a witness," that I checked in with the legal experts at the American Constitution Society, who referred me to Scott Lemieux.

The judge, by the way, agrees with the defendant and has threatened to incarcerate the plaintiff for contempt of court.

After conceding the what the judge has done is legally permissible, Lemieux writes (emphasis mine):

"Having said that, however, Sixth Amendment rights are not absolute--defendants are legally preventing from presenting types of evidence in any number of ways. While of it is in the self-interest of the defense to grasp at every conceivable straw, it's the judges role to consider the other rights and interests at stake as well. And in this case, I just can't agree that the balance of interests is even particularly close. The defense has been allowed to confront the witness--the only question is the very narrow one of whether she should be compelled to watch the tape, and I just can't see what value this would have that would outweigh the obvious intention to intimidate the victim."

"Uh, if she is shown this horrific tape, she will suddenly remember and announce in open court that (despite being a highly inebriated 16-year-old) she consented to have strangers spit on her while she was naked in public? Please. That would have to accrue several levels of probability to rise to the level of being "implausible." We all know what's going on here: the defense wants to show the videotape to intimidate (and punish) the victim, and given the less-than-trivial probative value the balance of interests shouldn't even be close. Unless the transparent goal of intimidation is given essentially no weight at all, I don't see how the balance can favor permitting this defense strategy."

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