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.)