Sunday, October 05, 2008

Defense Attorneys And Their Understanding Of The Difference Between Consent And Compliance

From Salem News:

SALEM [MA] — When Salem police officers showed up at the home where a 19-year-old woman said she had just been raped, they found a disturbing scene.

A second woman was lying unconscious, naked and bruised, on a sofa. Four men were also on the sofa. A fifth man was sleeping in an upstairs bedroom.

Based on a description offered by the woman at the hospital, police charged one of the men, Dwayne Dillard, with rape.

Now Dillard's lawyer is challenging whether police had the right to go into the condo at all, and once they did, whether they violated the Fifth Amendment rights of the men by demanding their clothing before they could leave.

Lawyer Tatum Pritchard said the three men who turned their clothing over to officers felt they had no choice — particularly after one other person who refused and began yelling at officers was arrested for disorderly conduct.

What I find fascinating about this challenge is that if a defense attorney's client demanded sex from a woman as a condition of allowing her to leave, any compliance given because she believed she had no choice would be described as consent which should not be overruled by the criminal justice system. If she really didn't want to consent she shouldn't have complied.

Consent is consent and the how doesn't matter or so the story goes when a rape defendant is claiming consent. Making the how matter allows women to play the victim.

Yet when a defense attorney's client complies, the defense attorney suddenly understands that there is an important difference between compliance and genuine legal consent and demands that the criminal justice system must step in to protect those who complied -- something the law must never do if it a crime victim who complied.

Since the condo where the men were found was the residence of the original victim, the police clearly had legal consent to enter the premises. But again consent is supposed to be disregarded when it doesn't benefit the defense attorney's client.

For those who demand DNA evidence for convictions, all evidence which potentially contains DNA evidence needs to be collected when the police come upon what they believe to be a crime scene which in this case would be room where they saw the unconscious, bruised woman and the men who were asked to provide their clothing.

If the current law allows those at what the police reasonably believe to be an active crime scene to be able to walk out with potential evidence of that crime, the law needs to change.

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posted by Marcella Chester @ 2:25 PM   2 comments links to this post


At October 06, 2008 12:20 AM, Blogger J. Davidson said...

Marcella have you seen this from the Leadership Council?:

It is one thing for a defense attorney to make sure their client gets a fair trial and a good defense, it crosses the line in a big way when they do anything to win.

At October 06, 2008 8:14 AM, Blogger Marcella Chester said...

Thanks for the link. I hadn't see that press release. I agree with the Leadership Council about the need to differentiate between cross-examination and witness intimidation in the name of cross examination.


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