Newly elected judge Kevin Fine isn't your typical jurist -- he's been frank and outspoken about his missteps in life, which include a cocaine addiction. Now he finds himself dealing with another alleged misstep -- accusations that he told a rape victim in his court that he didn't believe she was raped because she was "on top" during the act.I've been waiting to post on this story which was published a week ago in the hopes that there would be additional information such as the transcripts from this post-conviction hearing, but I haven't been able to find anything else so this may be all the news coverage this judge's behavior will get.
Reading this story reminds me of male judges, notably in Italy, who have refused to believe reports of rape because the victim was wearing tight jeans and the judges refused to believe that jeans could be removed unless the alleged rape victim granted legal consent. Thankfully, that tight jeans equals consent defense was finally rejected, but it took too long (nearly a decade) to happen and too many rape victims were denied justice because of this judicial bigotry.
If the allegations against Judge Fine are proven to be true then he should face judicial sanctions and he should resign. He certainly couldn't be depended on to be fair in sex crime trials. Causing one rape victim to be treated as a defendant and putting the conviction of her rapist at risk through his actions is one too many.
The fact that some commenters (read only if prepared for ugliness) to this story agreed that being on top equals consent and proof of a wrongful conviction shows exactly why this line of questioning is so dangerous and works against justice. This type of questioning if allowed to happen without serious sanctions provides instructions to rapists for a quick and easy way to escape justice. Force your rape victim to be on top of you, even if just for a couple of seconds before you complete your rape and nothing else you do will matter to far too many people who will champion you while declaring that they hate all real rapists.
At the end of this hearing Judge Fine is reported to have given the defendant the maximum sentence of 25 years which indicates that the judge's questions were based on stereotypes about real rape. So while the judge may feel the process ended correctly, his actions are likely to be grounds for an appeal and his actions may result in the overturning of a conviction Judge Fine himself now views as correct. The trauma to this victim was immediate and it could extend for years because of Judge Fine.
Here is Judge Fine's response to Connelly's inquiry about his actions:
The manner in which I went about garnering answers to my questions that I had, and that I needed answered prior to assessing appropriate punishment for the defendant, was incorrect. I should not have gone about it in the manner in which I went about it.The backtracking in this statement shows that Judge Fine has not learned from his missteps in this case. He in no way is admitting that his concerns were baseless even though by the reported sentence he gave the defendant they were in fact baseless concerns -- which in this case is evidence of his bigotry related to rape.
In other words, I should not -- probably the better method would have been to call counsel into chambers and express my concerns directly to them, demonstrating all of the physical evidence that I was looking at that did not match what the complainant had to say during [the] guilt/innocence and during [the] punishment [phases of the trial].
And then let them flesh it out with the witness, rather than me question the witness, because of the appearance that I didn't believe the witness, or was picking on the witness, which I don't think a judge should do. Although in certain circumstances maybe it's appropriate.
I think in light of the nature of the offense the better means would have been to call counsel for both sides into chambers, express my concerns, explain my concerns based on the evidence I had in front of me -- and by that I mean the physical evidence -- and then let them flesh it out.
What he did, even by his own admission, was to cross-examine the rape victim post conviction mostly likely in response to her victim impact statement.
The different details provided during the trial and during the sentencing phase are based on basic differences in how information is presented before and after conviction. Some information will not come up during trial because it is prejudicial and not evidence of guilt or innocence.
Some information won't be brought up by the defense because it would prove the defendant to be a liar. If the defense in this case was that no sex happened or that the prosecutors have the wrong person then using details of how the rapist and/or rape victim moved would mean admitting that the original report was not a fabrication or a wrongful identification.
That is more than a procedural misstep, it was an act of disregard for a rape victim and for our jury system.
The reporting on this judge's action doesn't specify who the defendant was or whether this was a stranger or non-stranger crimes. Also not specified is whether the defendant used or threatened to use non-sexual violence.
If anyone can provide links to this case, I would appreciate it.