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The Price of Silence

Would allowing victims the right not to testify ultimately help or hurt the prosecution of sex offenders?


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Is it in the interest of justice, much less civilized, to force a victim of a sex crime to take the stand and testify in a public forum — in other words: court — spelling out the details of the crime, which is then shared with the world via the Internet?

Here in Virginia, your local commonwealth's attorney can lock you up if you refuse to take the stand despite your family, your doctor and your religious adviser believing such an ordeal would be detrimental to your health. If not for the renewed interest in Roman Polanski, the highly overrated film director who raped and sodomized a 13-year-old girl and then fled the country to avoid prosecution despite having received a “celebrity plea bargain,” this question wouldn't have been mentally pressuring my aging brain pod. 

At first reading about the capture of Polanski in Switzerland after his 31-year run as a fugitive, my reaction was: good, finally got the SOB. I bet the victim has been waiting for this moment for all these years. Finally she gets to seek justice in a court of law.

Only this wasn't her reaction. Indeed, as further stories were written about yet another high profile case for the Los Angeles district attorney (the various sex crimes were committed in Jack Nicholson's house where Polanski was staying), it turns out the victim — no reason to mention her name — would have preferred to be spared having her husband and family endure the lurid details of the crime, and the ensuing public scrutiny. (There are reports, however, that Polanski and the victim reached a civil settlement in 1993, which further clouds her motives.)

The victim wanted the state to drop the whole matter, but the law doesn't give her such authority. However, in the Golden State the law allows her to refuse to cooperate with the Los Angeles district attorney during prosecution without fear of being jailed. That wouldn't be the case in Virginia. As best I can tell, the California law is in the minority when it comes to victim cooperation, while Virginia is in the status quo.

Which is the better law? 

This poses the classic law-school debate, weighing the interest of the individual against that of society. Let's assume the family, the religious adviser and the victim of a sex crime all agree that testifying would be too harmful, in effect making her a victim all over again in our 24/7 Internet culture that makes tabloid fodder out of everyone else's misery. Surely in the Polanski case, in which the harm to the victim seems out of proportion to the benefit to society of incarcerating a 76-year-old has-been, the California approach seems best because a prosecutor might see that the situation has great publicity for a future political campaign.

But this is the rare case. In general, society has a very strong interest in sending sexual predators the following message as strongly as possible: The full power of law will hound you to the far corners of the globe if necessary to bring you to justice, even if it takes decades. Americans surely agree with this approach, and in that regard they must accept their responsibility in making the process work.

Assume the victim here was the only survivor of vicious serial killer. Should prosecutors be given the power to put the victim in jail if she refused to testify? Most Americans, I suspect, would say yes, the potential harm to the individual is outweighed by the potential harm of a serial killer still on the loose.   

Most cases fall in between these two examples. There are any number of conflicting factors, many heart-wrenching on the personal side, others infuriating on the criminal side. We all want these monsters put “under the jail” as the saying goes. On the other hand, we know that forcing victims to relive these horrible moments under cross-examination in open court inflicts mental cruelty of a kind no innocent person should be forced to endure. 
Some 95 percent of all criminal cases are pleaded out, never reaching trial, according to a recent U.S. Supreme Court case. Accordingly, most victims never have to take the stand, and there exist ways to protect their identities, along with the lurid details, from public consumption. Would allowing victims the right not to testify ultimately help or hurt the prosecution of sex offenders?

Would the wealthy and powerful use their leverage to buy silence, while the vast majority of society is forced to play by other, less favorable rules? That may happen in some circumstances. No one wants to see an innocent victim forced to testify when it might do her more permanent damage. No one wants to see a rapist walk because his daddy, or benefactor, had Michael Jackson money.
There's no perfect solution. But surely there's a better solution than the one we have in Virginia. The commonwealth's laws are too cruel to certain innocent victims of sex crimes. The next attorney general needs to help change that. S

Paul Goldman, a former mayoral candidate and senior adviser to Mayor L. Douglas Wilder, is a Richmond-based political consultant.



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