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Produced & Maintained by Idaho Mountain Express, Box 1013, Ketchum, ID 83340-1013 
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Copyright © 2003 Express Publishing Inc.
All Rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Express Publishing Inc. is prohibited. 


Wednesday — February 11, 2004

Opinion Column

Judge’s decision
being misrepresented

Guest opinion by ROBERT J. ELGEE,
Magistrate Judge, Fifth Judicial District, Hailey


I was rather surprised last Friday (Feb. 6) to hear that I had dismissed a rape charge at a preliminary hearing. I did no such thing.

Now I see that I am also the subject of e-mails to a number of people in the community, suggesting that the judge has undermined everything that students were taught during Rape Awareness Week; more particularly, that materials distributed to the public about the illegality of sex with under-the-age-of-consent girls has been seriously undermined, and that students will be confused, thinking either that they were given incorrect information or that the judicial system ignores the law. Another e-mail suggests that: "...sometimes judges make very poor choices that do not follow the guidelines of the law" and that: "…this one judge went against how the law was written."

I did not hear this case. I do happen to know one of the families involved and I made sure I would not hear it. It was heard by another judge. The fact the paper got the wrong judge's name in the case is not that surprising. It happens from time to time. However, what is astounding to me is the level of other misinformation generated, and the apparent willingness of many to think that a smart, educated, qualified judge doesn't know rape when he hears it. One other thing I know, aside from the fact that I never heard this case, is that neither did a lot of people that profess to that now.

As near as I can tell, the judge listened carefully to the facts, including the victim's testimony, and made a lengthy, reasoned decision based on the law. I wonder how many people even know what he said. I'll bet less than 10. I am advised by the Deputy Prosecuting Attorney that handled the case that the defendant was not charged with having sex with a girl under age, and therefore the presiding judge declined to rule on that issue.

The next issue may be whether the judge accurately applied the law. Although the judge probably does not know what has been taught during Rape Awareness Week, he does know the law. It is not rape to have sex with a girl who has had 2 alcoholic drinks, or even one who might be "drunk," whatever that means. "Drunk" can mean anything, to different people, from giddy to unconscious. "Drunk" is not a catch-phrase that absolves a woman of all responsibility. The law in Idaho is defined by the Legislature, not the judge. It provides: Rape is defined as the penetration...(1) Where the female is under 18, (2) Where she is incapable, through any unsoundness of mind... of giving legal consent, (4) Where she is prevented from resistance by the infliction,...of bodily harm; or is unable to resist due to any intoxicating, narcotic, or anesthetic substance, (5) Where she is at the time unconscious of the nature of the act. That means she is incapable of resisting because she is (a) unconscious or asleep; or (b) not aware, knowing, perceiving, or cognizant that the act occurred.

Unless the alleged conduct falls within one of the statutory definitions, it is not rape. It may be any number of other things, but it is not rape. (For example, any unconsented touching could be a battery.) The judge is not free to rewrite the law for particular circumstances; he must follow it as written.

At least the judge listened to the testimony of all the witnesses before he reached his conclusions, which seems to be more than a lot of people are willing to do. I would suggest, before anyone is critical of the decision the judge made, each one becomes thoroughly familiar with the law, the facts, and the judge's remarks at the conclusion of the case. As in many cases where people are critical of the judiciary, if they take the time to find out more, they might even find out the judge was right, and the system worked exactly like it should have. It is much easier to be critical than informed.

People can become familiar with the case by reading the clerk's minutes, (which in this case are lengthy and detailed), or by listening to the recordings of the hearings, or by talking to one of the attorneys involved. Anything else is rumor and innuendo. And if anyone does take the time to listen to the hearing, I am told one of the things the judge said at the conclusion of the hearing was that he wished every parent in Blaine County could have heard the facts of this case, because there are apparently many lessons to be learned. Now, it appears, that goes for all of us.

If anything good is to come out of this, I hope one thing will be that people will take the time to find out what happened before they too, rush to judgment. Second, if they do know the law and the facts, at least be critical of the right judge. And if people find out they don't have the right judge, maybe they should question what else they could be wrong about. Third, I hope that, rather than concluding the judge has "undermined" or dealt a fatal blow to the Rape Awareness Program, this case can be used as an opportunity to educate and instruct. If it teaches hard lessons, or corrects misperceptions about what rape is, or is not, then so be it. Fourth, I hope that people will know what this case is not about. This case had nothing to do with the victim's age. The judge did not decide that issue. The law seems fairly clear that sex with a female under 18 is rape. There is no exception, even if the male is also under 18. So, even consensual sex between pre-18-year-olds, under the statute, is rape. If you have a son, think that one over.


(EDITOR’S NOTE: An article in the Feb. 6 issue of the Idaho Mountain Express incorrectly identified Judge Robert J. Elgee as the judge who presided over a rape case in Magistrate Court, Fifth Judicial District, in Hailey. Lincoln County Magistrate Mark Ingram, a visiting judge, ruled on Wednesday, Feb. 4, in the case. The Express regrets the error.)


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