In the transcripts this is described by Judge Fine as "odd" and in a clearly meaningful way to him. The first possibility is that if this judge can't personally imagine raping a woman in this way that no other man could ever try to commit rape in this way and the alleged victim must be lying in her testimony and has fabricated a ridiculous story about what happened.
Alternately, is the assumption that if a man tries to rape a woman without pinning her underneath him that she can always get away if she really wants to get away. With this assumption a woman not getting away becomes evidence that she freely consented. This makes physical force and death threats legal in rape cases if there is the possibility in the minds of the judge or jury that the intended victim might have had the physical capacity to break free and that this possibility in an observer's mind should always lead to an acquittal.
Neither of these assumptions uphold the values of our rule of law, but instead both uphold the belief that anti-victim bigotry should trump evidence in sex crime cases.
Now that the transcripts are out and the Houston Chronicle has reported on what happened, Judge Fine's actions in the 177th Criminal Court on July 31 have been revealed to be far more troubling and indicate to me that Judge Kevin Fine is not impartial enough to proceed over rape trials.
This is a case where one woman was raped as her friend ran for help.
After listening to the 911 tape of the screaming girls “for the sixth time,” Fine told the court, “there's no doubt in my mind” that “no means no, period.”This 911 call which the jury heard and understood during the trial needed to be listened to by the judge 6 times before he couldn't dismiss the conviction of this rapist as a wrongful conviction. That's clear bias since what he assumed to be in that call after hearing the transcript the first 5 times was undeniably not there.
Judge Fine's baseless assumptions and bias were likely helped by the known fact that the victim and her friend met Escobar in a bar and got into the car with him willingly. It's like Judge Fine was hearing a loop of, "Yes, but she consented by getting into that car," over every bit of evidence provided during the trial which proved Escobar's guilt. This would give the issue of the victim's position much more weight than it deserved.
The judge crossed the line, [the rape victim] said, during sentencing, which Escobar had opted to let Fine decide instead of a jury. Although the jury already had found Escobar guilty of aggravated sexual assault, Fine went on to challenge the victim's version of events, doubting her truthfulness on details from her vague time line to the method in which her clothing was removed. Near the end, Fine remarked that “sending an innocent man to prison in the name of law and order is the greatest injustice this society can do.”
All of the evidence from the trial which this judge questioned or dismissed comes back to the idea that brutal force and death threats to force sexual contact are not enough to make someone guilty of sexual assault.
Under this approach, the victim's response to force and death threats must be judged and found to match that of the perfect victim as envisioned by those who may have no real understanding of sexual violence.
Not only will the victim's actions be judged, the victim is expected to remember the timeline perfectly and to remember every detail of the crime perfectly. Fear for your life is no excuse for not being able to describe every requested detail exactly to the satisfaction of the person judging you with the assumption of your guilt which you need to disprove beyond all doubt -- reasonable or not.
The lawyers for the defendant who Judge Fine now acknowledges to have been rightfully convicted will be using Judge Fine's actions as fodder to claim their client should have his conviction overturned. Any additional trauma this causes to this rape victim will be thanks to Judge Fine's unacceptable behavior.
Those who defend Judge Fine or are apathetic about his actions are taking positions which help rapists.
H/T: The Curvature.