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August 26, 2009

Interesting debate over judge's questions to rape victim at sentencing

Thanks to Scott at Grits for Breakfast, I have learned of an interesting debate over how a Texas state judge at sentencing questioned a rape victim.  Here are some links to the story and reactions:

These stories raise broader questions about the procedures that are used and should be used when victims are involved in the sentencing process.  Because nearly all sentencing proceedings take place in front of the sentencing judge, rarely are the formalities of the adversarial system followed (and, of course, many constitutional and statutory rules applicable at trial do not even apply at sentencing).  But, as this story highlights, victims may be surprised and troubled when judges get directly involved in asking probing and challenging questions concerning the nature of the offense.

August 26, 2009 at 03:12 PM | Permalink


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Now, this happened in Texas, where, we are told nonstop, all the state court judges live in fear of a rampaging, club-wielding, Neanderthal public and therefore side with the prosecution against the defendant every single time, right?

Maybe not.

Posted by: Kent Scheidegger | Aug 26, 2009 3:45:54 PM

Kent, FWIW this is a brand new judge just elected in a first-time-in-many-years Democratic sweep of district judge slots in Houston in 2008. (Dallas County made the same flip in 2006.) Judge Fine has been in that job about five minutes. Texas earned its reputation long before he got there! :)

Posted by: Gritsforbreakfast | Aug 26, 2009 6:55:51 PM

Judges need to be neutral. Just as they need to ensure defendant's rights when they accept a plea, they also need to protect victim's rights. This judge bought into the defense arguments that "It is a first-degree rape, but it's as close to not being a first-degree rape as one can get." If multiple people carry an unconscious victim and they then take turns in raping a victim - then that's first degree rape. If a judge wants to be lenient in sentencing, that is the judge’s prerogative. However, blaming a victim for a rape when the victim was unconscious is not appropriate. If someone came across an unconscious person and someone stole money from and then killed the unconscious person, wouldn't the offender be guilty of theft and murder and the fact that the victim was an easy mark because the victim was unconscious wouldn’t have mitigated the offense or punishment. Judges should not attempt to blame the victim for the offense.

Posted by: Russell Butler | Nov 29, 2009 12:06:08 PM

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