November 13, 2007

The limits of due process

Due process is not easy to define, although it's a concept that figures prominently in our country's constitutional scheme. Criminal defendants in particular are guaranteed due process by both the 5th and 14th Amendments to the Constitution, the former on the part of the feds and the latter the States.

Briefly, the government is empowered to deprive you of life, liberty, or property, but not without extending to you the benefits of whatever legal procedures are due. And while it's not easy to define due process, it's very easy to show examples of it.

Comes now the Wisconsin District I Court of Appeals with an extension of the benefits of process everyone can agree was due to the defendant. Arguably, well and way beyond what was due.

Anderson was convicted of two counts of third-degree sexual assault of a four-year-old girl. That assault, according to the victim's testimony, involved sodomy — in the literal sense, not in the euphemistic common law sense, which includes for activities aside from anal intercourse.

Apart from some very narrow exceptions, defendants facing sexual assault charges are not permitted to present evidence of the victim's past sexual activity. In this case, Anderson wished to present evidence that his mother had once observed the victim simulating cunnilingus on a Barbie doll.

Anderson claimed that, by not being allowed to have this evidence recorded, he was denied his own constitutional right to the presentation of an effective defense. That's correct: Anderson considered his mother's claimed observation a defense against charges he'd sodomized a four-year-old girl.

Such are the ways of the law.

In any event, the judge who presided over Anderson's trial — it was a bench trial, where the judge additionally assumes the fact finding role of the jury — discounted the credibility of Anderson's mother's testimony in favor of the victim's mother's claim that not only did the incident never take place, the child never even played with dolls.

As for the evidence that Anderson's right to due process was more than justly satisfied, the court's lengthy analysis of his purported defense is available here (.pdf; 12 pgs.).

And, of course, outside the referent legal paradigm, the notion that a four-year-old licking the crotch of a Barbie doll constitutes sexual activity in the first place is, to put it charitably, vaguely preposterous. Which is why this defendant may never claim he was not afforded due process pursuant to the court's extended treatment of what is, it seems to me, a pretty wild claim.

Accordingly, Anderson was deprived of several years' worth of liberty.


capper said...

I cannot argue towards the legal aspects of this post, as I am not a lawyer. But, as I have more than a passing education and experience in the mental health field, including training and experience in dealing with victims of sexual abuse, I'd like to offer some input.

First, the behavior that the child is reported to have exhibited is common among children that have been sexually abused at some point in time. This would lead to the question of the credibility of defendent's mother's testimony.

If her testimony was indeed accurate, it could have had a detrimental effect in the sense that this would have led to the suspicion of ongoing abuse, with the defendent as the primary suspect.

If her testimony was not credible, as in this case, it makes me wonder how the defendent's mother knew about what the behavior might signify. Studies have shown that an amazingly large percentage of sexual abuse perpetrators were sexually abused themselves when they were children. This would make me wonder if the defendent's mother was sexually abused at some time, and if she perpetuated the cycle with her son.

Of course, this all speculation, based on my training and experience, and the limited facts available. What is not speculative is that this is a sad story. I feel sorry for the little girl.

illusory tenant said...

It is indeed a sad story and I'm sure your observations are correct.

What's remarkable is what appears to me the ongoing delusion of the defendant, in his seeking after mitigating factors by attempting to demonstrate a heightened degree of sexual awareness on the part of a four-year-old child.

To add to your comments, it's also not uncommon for individuals accused of sexual assault to indulge in various forms of victim blaming -- at least at the outset.

This guy really took that to considerable lengths.

capper said...

Having worked in a correctional setting in the past, I can verify that the perpertrator will be in for some 'interesting' times while incarcerated.

A small token of consolation to society be it that it may.