Wednesday, October 14, 2009

PA Superior Court Overturned Troubling Ruling On Adult Alleged Victim Competency

From the Times Leader:


WILKES-BARRE – In a decision that will have statewide impact, the state Superior Court on Tuesday overturned a Luzerne County judge’s ruling that ordered an alleged rape victim to undergo an involuntary psychiatric evaluation.

The court, with one dissent, determined Judge Peter Paul Olszewski Jr. misapplied the law when he determined the defendant, Daryl Boich, had presented compelling evidence that the evaluation was needed to ensure the woman was competent to testify.[...]

[Boich’s attorney, Al] Flora sought to force the woman to undergo a psychiatric examination after she testified at Boich’s preliminary hearing that she could not recall various details regarding the evening.

The woman also acknowledged she was taking prescription medications and that she was intoxicated. Flora argued that the only way to determine the cause for the “blanks” in the woman’s memory was through a psychiatric examination.
This overturned ruling is very dangerous since many of those who commit sexual violence use alcohol and/or drugs to help them commit their crimes. Temporary incompetency (or the victim slipping in and out of consciousness) due to intoxication is often desired by rapists or even facilitated by them with or without the knowledge of their victims.

But the impact of the original ruling could harm more than those who are intoxicated. Those who are classified as having disabilities are at a higher risk of being assaulted than the general population and this ruling, if it is reinstated by a higher court, could have a major impact on their safety.

The first national study on crime against persons with disabilities was released today [Oct. 1, 2009] by the Justice Department's Bureau of Justice Statistics (BJS), Office of Justice Programs. In 2007 persons age 12 or older with disabilities experienced about 716,000 nonfatal violent crimes, including rape or sexual assault (47,000), robbery (79,000), aggravated assaults (114,000) and simple assaults (476,000).
The increased violence against those who have disabilities is even greater when it comes to sexual violence. According the NCVS report (pdf), "Persons with a disability had an age-adjusted rate of rape or sexual assault that was more than twice the rate for persons without a disability."

Those with cognitive functioning disabilities experienced the highest rate of violent victimization of any group with disabilities.

To have the vulnerability sex criminals exploit be used to help alleged rapists escape legal accountability is abhorrent. The entire premise of the psychiatric exam in this context is flawed because it doesn't matter why an alleged victim has "blank" moments.

If there were a valid claim that the woman might have been incompetent and therefore should not be allowed to testify it would have be about the non-blank moments when the defense is claiming no sexual contact happened. There would need to be evidence that the alleged victim had previously suffered delusions and could not tell the difference between those delusions and memories which are spotty due to impairment.

If the defense is correct in the assessment of the alleged rape victim's competency on the night of the alleged rape then she would have been unable to give meaningful consent and that would make any sexual actions the defendant took toward or with this alleged victim a sex crime and therefore any defense claim that the alleged victim consented would be invalid.

Since Boich gave the alleged victim a ride after she left a bar intoxicated, the possibility that the woman was not competent to consent wasn't an unknown possibility. When there is interaction between a person who is clearly competent and someone who is potentially not competent then the burden for ensuring mutual competency belongs to the clearly competent individual.

The bottom line is that if the defense attorney is correct about the alleged victim's incompetency and sexual contact happened then this attorney's client is guilty of rape by intoxication.

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posted by Marcella Chester @ 10:29 AM   0 comments links to this post

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