The Providence Journal reports:
A 48-year-old Narragansett man has been charged with raping someone 32 years ago when both he and the alleged victim were 16 years old, the attorney general's office said this week.
Harold Allen, of 30 Riverview Rd., was indicted last month on a charge of first-degree sexual assault, and he pleaded not guilty, court records show. Allen is accused of raping the girl in North Kingstown between April 1 and Oct. 31, 1975, the records show.
"The traumatized victim decided back then not to tell anybody what happened and repressed the memory of it until recently," said Michael J. Healey, a spokesman for Attorney General Patrick C. Lynch’s office. "The victim came forward and made a complaint to the North Kingstown Police Department on June 15, 2006."
No statute of limitations applies to charges of first-degree sexual assault ....
"If this incident happened today, it would be [handled in] Family Court," [Healey] said. "But Family Court never attained jurisdiction because no petition was filed against the defendant before his 21st birthday saying he had committed the crime before he was 18 years old. So you bring the charge in the court that would have had jurisdiction if the crime was committed by an adult. And that means the Superior Court." ...
[Allen's lawyer says that] "[Allen] says they never had intercourse -- willing, unwilling or otherwise."
Sounds like a pretty troubling prosecution -- one person's word against another's, with no physical or documentary evidence, about something that happened two-thirds of a lifetime ago. I'm no expert on memory, repressed or otherwise; and it may well be that there's some other evidence available here, hard as it is for me to imagine what it might be. Still, it seems to me highly unlikely that a jury could sensibly discover beyond a reasonable doubt what really happened between these two pepople 32 years ago.
Thanks to Sean O'Brien for the pointer.
Related Posts (on one page):
- Charges Filed 32 Years After Alleged Rape Have Now Been Dropped:
- "Man Charged 32 Years After Alleged Rape":
Otherwise?
I also wonder if the "adult" courts have jurisdiction for delinquent acts under Rhode Island law. Additionally, wouldn't this defendant have an equal protection challenge for being treated as an adult for the crime instead of like every other 16 year old who sexually assault someone else is?
I don't doubt that a very skilled and ethical hypnotherapist could do wonders, but I suspect those are few and far between.
As far as the repressed memory goes, I would be interested in how well it is corroborated by verifiable facts.
What other evidence could their be? Well, how about diary entries, written by either side, near the time of the attack? How about witnesses who observed unusual and extreme or unusual behavior in either the victim or the alleged rapist around the time of the attack? One can imagine other evidence as well. I am assuming that the AG has reason to believe that a conviction beyond a reasonable doubt is probable. I made that assumption with Nifong, and that turned out to be wrong. Nifong notwithstanding, I think that usually prosecutors are responsible and don't just bring cases without any solid basis. In any case, I do not think we should prejudge these sorts of cases when we really do not know what evidence lies behind the charges.
This is also going to raise thorny issues about the appropriateness of expert witness testimony on repressed memories.
The very long time span in an allegation of a single incident is also troubling. The time span encompasses spring, summer and fall in two separate school years and a summer vacation. While exacting details are not required, proof beyond a reasonable doubt (indeed even probable cause) normally requires greater specificity than that.
Also, is it really an adult crime if committed as a juvenile? Isn't part of the point of juvenile crime statutes to recognize that minors have a lower inherent degree of culpability? And, does the fact that adult first degree sexual assault has no statute of limitations really imply that juvenile delinquency which would have been first degree sexual assault if charged as an adult also has no statute of limitations? Generally, one of the core principle of the juvenile justice system is that adults start their lives at age eighteen with a clean slate expect to the extent that they are currently incarcerated for juvenile crimes.
Just what would "unusal and extreme or unusual behavior" be in this case that would lend support to the DA's theory? You aren't seriously suggesting that weird behavior (by the alleged perp, the alleged victim or both) plus an accusation can establish proof beyond a reasonable doubt are you? IMO, you're on more solid footing thinking about possible diary entries (especially if by the perp) but I doubt we're going to see that.
It is hard to imagine how you prove a case if you do not even know the approximate date on which the crime occurred. But, if there are multiple incidents, that might explain it. Or is the victim just saying that this happened sometime during the summer?
This case seems pretty interesting. I would like to know what evidence there is behind it.
Still, I don't see how even a normal memory would be reliable enough to put someone in jail this far down the road without further evidence.
But, weirder things have happened. Heck, a court today just let off an officer who shot an unarmed man in the back BECAUSE he complied with a lawful order (that the officer said incorrectly).
From the linked article:
I agree that hypotheetical diary entries are more persuasive. But, I think that other behaviors might be informative. Not necessarily completely dispositive, but informative. They might tip the weight of the evidence in one direction or another a little.
I am not saying that, if I were on a jury, I would convict based on the testimony of an eyewitness + unusual behavior. Of course, it is somewhat difficult to say in the abstract. I would have to know what the unusual behavior was and what the content of the testimony was and the credibility with which the testimony is delivered.
I guess ultimately, you need to look at the concrete. Is the explanation offered by the prosecutor plausible and are the alternatives (whether suggested by the defense or not) implausible to the point of unreasonableness. It is hard to say ex ante exactly what might lead one to eliminate alternate explanations as implausible. Obviously, the standard of proof beyond a reasonable doubt is your guide.
I was thinking of another possible persuasive source of evidence. A recorded (or witnessed) apology, perhaps recently delivered.
This is all hypothetical speculation, obviously.
Did prosecutors present anything other than the naked accusation at the indictment?
1) Whatever she says it is.
2) Whenever she says it happened.
3) Whoever she says did it.
Possibly so. Under most state laws, the word of the victim in a sexual assault case is sufficient to establish probable cause (and even guilt beyond a reasonable doubt if the jury chooses to believe the victim)
(ba-dum-bump!)
Whew, that was a good-un. But back to the point-- "repressed" memory is a completely theoretical entity. There is no neurological or scientific data to suggest it exists, or even that it could exist. What's more, it is an idea that has been abused again and again by over-zealous prosecutors, and by overly credulous therapists. I hope to Gosh that they have more in this case than just "repressed memories." Or this prosecution will will make Mike Nifong look like a model of prudence.
Hypothetically, if she got pregnant and gave the child up for adoption, that would be "weird or unusual behaviour." It would also be physical evidence.
To be more serious, guidance counselors may have noted odd behaviour (formerly good student skipping classes, depressed, moody) and referred her to the school psychologist. All of this would remain on the child's record, which may still be in existence.
I don't think it is wierd to charge him in adult court. The reason juvi court exists is because they have a broader range of remedies available and special juvi prisons. Generally a minor has no absolute right to be tried as a juvenile and in many states (for example, Virginia when I did some of that there) kids as young as 12 or so are tried as adults if charged with extremely serious crimes.
Most of the mass of juvi business is not about serious crimes, but stuff for which adults would only get 30 days or so, or even a fine. A lot of attention is also taken up by "pure" delinquency and neglect (very much related sopmetimes). In short, there would be no point in trying this in juvi court, since if convicted he'd have to be sent to an adult prison.
Also, my experience was that juvi courts (which do not have juries) often require a lower standard of proof - sometimes it comes down to the preponderance of the evidence, in practice. This makes more sense when you look at the overriding purpose of rehabilitation - some of these kids are clearly in a bad place and you need to do *something.*
I have to agree that it seems implausible that a convincing case could be put together given the lapse of time. I seem to recall, though, that there was a case in Conneticut involving a distant Kennedy relative charged with murder which also involved a huge lapse of time. If I recall right, that case ended in a conviction.
The absence of a statute of limitations in a murder case is mostly unproblematic. The murdered victim is unlikely to rise from the grave with an emotionally compelling story of how they were murdered, and the 'victim's' state of mind is mostly irrelevant (few consenting murder victims). Most importantly the defense and prosecution will generally face equal difficulty in finding witnesses who remember the crime.
On the other hand for crimes like rape there are serious problems with prosecution of an ancient crime. False testimony may become even more emotionally compelling over time as it is embellished in the 'victim's' mind while the accused faces huge hurdles in remembering or finding witnesses who remember the events at that time Even if we think that few juries are likely to convict someone on nothing more than an accuser's word surely the chance that someone is falsely convicted has greatly increased.
Moreover, there is little good reason for allowing prosecution so long after the fact. The ability to prosecute at any time removes an incentive from the victim to come forward while the evidence is fresh and locking up some guy 40 years later isn't doing much to protect the public. While it's reasonable to think that murder might be deterred by the thought that at anytime for the rest of their life the murderer might get punished I very much doubt this would significantly deter rapes.
I think there is a plausible argument for indicting DNA samples when a match hasn't yet been made but the cost/benefit analysis for allowing individuals to make rape charges 30 years after the fact just doesn't work out.
Sure I feel the emotional pull not to let a guy who raped a woman get away with it even after thirty years as well. However, it is the very strength of that pull which makes me suspicious of a juries ability to evaluate a 'victim's' plea for justice against the lack of evidence the passage of time is likely to create.
I would argue that the repressed memory approach is not reliable as a matter of law.
Yeah, try to find someone who's repressed the memory of being in a Nazi concentration camp as a child. ("What's this phone number on my arm?") They don't exist. That's the perfect example of the sort of trauma people should be repressing, yet I guarantee you, setting aside the entirely non compos menti, there is no such person.
I think there is another motivation for the prosecutor's actions that has not yet been mentioned here - if there is some ground to suspect Mr. Allen of other crimes but they have not been able to get a warrant to search for what they hope to find, the indictment on this charge will justify a search warrant for (among other things) any documents in his home that might contain a record of the alleged rape.
I'm not saying that's a proper motivation; I just consider it more plausible than a prosecutor thinking he can get a "she now remembers he said, she said" conviction 32 years later.
Nick
Both the trial and appellate courts rejected his contention that he should have been tried in juvenile court.
Then again, if an adult were tried in juvenile court, what punishment could be imposed? You can't confine someone until age 18 if they're already older than that, and IIRC, juvenile courts can't impose a longer sentence or confine someone in an adult facility.
This assumes, of course, that the complainant actually believes what she is saying.
it's RHODE ISLAND
wasn't it alan dershowitz who basically commented in regards to the sunny von bulow case, that rhode island law is singular?
rhode island is a unique state in oh so many says. rhode island laws/trials among them
"it's pretty ignorant to blame a ill-concieved case on feminist jurisprudence"
cmon! spend a little time in domestic violence trials and investigations, not to mention sex assault ones, and you will see that "feminist jurisprudence" has a lot of blame. everybody loves blaming 4th amendment erosion on drug law, but again - DV law and sex assault law (not to mention sex harassment law) is (imo) worse when it comes to rights erosion and that is primarily due to political feminist influence. VAWA is a great example of this.
The current thinking is that repressed memory is a cultural phenomenon based on literary sources, as no examples of it have been described prior to 1800 or so. In fact two doctors are currently offering a $1000 prize for any example prior to that which as far as I know is unclaimed.
The reality is, unfortunately, that the accused in cases like this presumed guilty unless he can prove himself innocent. But how do you disprove something that is supposed to have happened 30 years ago?
I'm sure Mr. Allen would love to. Know any experts who'd be willing to form an expert opinion for him and testify on it for free? For the members of the criminal bar who post here, how do defendants afford your services and the services of the experts you retain? Does homeowners insurance cover it some of the time?
What a nightmare of a charge to have to defend against. As FredR noted, "how do you disprove something that is supposed to have happened 30 years ago? If all that it takes to secure an indictment for a 32-year old alleged sexual assault against someone with no criminal record is an accusation unbacked (so far) by any documentary, physical or other corroborative evidence, why do we even have a grand jury in the first place?
I share plunge's and Mr Impressive's belief that there just has to be more evidence than just her recollection; I can't see any ethical prosecutor bringing charges otherwise. Of course, at first I believed that Nifong had the goods too...
Ah, the stamina of youth...
But there is an argument that the more than 30 years delay in bringing charges violates due process. According to the story, the alleged victim decided voluntarily not to report the incident when it happened and thereafter repressed her memory of it until now. That raises the question of whether a due process violation may result from a decision by the alleged victim, who is essentially a private actor until the state criminal process is invoked.
It may be that the defendant will be left to invoke the delay not in support of a legal argument for dismissal made to the court but as a factor going to reasonable doubt of guilt before the trier of fact.
The defendant in the current case apparently has led a blameless life apart from this charge. There'd better be some pretty good evidence beyond the alleged victim's claim of recalled memory. How could this defendant possibly defend himself? His only available evidence appears to be his denial. How could he prove alibi more than 30 years after the fact, particularly given the months-long time frame in which the offense allegedly occurred? Presumably all the physical evidence in the case has disappeared--clothing and the like. No rape tests were performed since she didn't report the rape. Perhaps she saw her own doctor. The case is a nightmare.
Either that, or there is something suspect in the Professor's logic of dismissing criminal charges because the alleged events occurred when the aggrieved party was only one third of her current age. Shall we ask a nine-year-old victim of a rape at age three for clarification?
But it does appear that the prejudice to the defendant must stem from state action. The unilateral decision of an alleged victim not to report the crime apparently would not qualify.
Or maybe you're just playing nincompoop for the amusement value.
1) Whatever she says it is.
2) Whenever she says it happened.
3) Whoever she says did it."
several corollaries...
4) women don't lie about domestic violence
5) women don't lie about rape
6) when a woman changes her story it is because of the trauma of being raped/assaulted (iow, telling two or more mutually inconsistent stories ADDS to her credibility)
7) all men are potential abusers/rapists
8) critical words are domestic violence (if he calls you fat, it's domestic violence)
9) marriage is a way of legalizing rape
But it also involved physical evidence, including the body of the murder victim, and records of witness interviews from a few days after the crime. The police had to wait for other witnesses to come forward to make a case as to who did the crime, but there never was any doubt that there was a crime. (IIRC, they also had narrowed the case down to just two closely related suspects long ago, but family members and friends clammed up so they couldn't pin it down to one.)
In this case, there's more than reasonable doubt that the complainant was raped, let alone that the correct identification of the attacker has emerged from her suppressed memories. And there seems to be a complete lack of details that prevents looking for exculpatory evidence such as an alibi.
That he'll get a stupid jury that just accepts the prosecutor's take on everything rather than thinking about the "evidence". Sort of like how prosecutors have often obtained convictions on the unsupported word of known felons who were rewarded for their testimony with being let off for their crimes. (And in at least one case, one of those informants turned out to be the actual murderer, once the DNA evidence was finally tested after two innocent men spent over a decade in prison.) If you have ever dealt with the criminally-inclined, you'll know that they're more likely to lie than to tell the truth even when there's no reward for the right lie...
I agree, and it's a shame that prosecutors are so rarely called....oh wait. You were talking about those they get to turn state's evidence?
Unfortunately, hypnotism only makes the situation worse. Hypnotized people are in a suggestible state where they are even more likely to make up details to fill in the gaps in their memory. Once people have unknowingly invented details they come to believe that these new details are true.
There was a great study where after being cleverly and very simply prepped, 1/3 of the participants thought they remembered hugging Bugs Bunny at Disneyland. Implanting memories is easy and happens way, way more often than people realize:
Loftus Memory Study. Ironically, the study was by a memory expert who's defense testimony was rejected in the Libby Case. However, she has been a leading academic fighter against false claims of "recovered" memories.
Just call up the local prosecutor and tell him you want to screw somebody you don't like.
He'll bite.