Archive for Wednesday, September 29, 2004

More information needed

September 29, 2004

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Normally, I write this column on Sunday evening. It is now 4:30 a.m. Monday. It has been a long night. I have spent the past few hours and the past few days trying to figure out what I want to say about the current furor over Judge Paula Martin's decision in a controversial case this year involving the statutory rape of a 13-year-old girl by a group of men. The case is controversial for several reasons.

First, the facts are ugly. The victim is a child. There is little doubt that she and her family have suffered not only from the rape itself but also from the trial process. Martin handed down sentences that many people in the community felt were too lenient. On the other hand, Martin is a well respected judge, one who has served the people of this community well, as a lawyer and as a judge, for many years. Third, most of us, including myself, don't know all of the facts -- or even very many of the facts -- because we were not present in court to hear the testimony and weigh the credibility of the witnesses.

Now, the girl's mother and other sympathizers have started a movement to see that Martin is not retained on the bench, a question voters will face on the November ballot. Removing a judge from the bench isn't common; it is a painful process for the judge and for the community, but it also is an important exercise of our democratic rights.

Why have I found writing today's column so difficult? I have found it difficult precisely because the various factors I've listed pull me in several directions. Even more to the point, I feel that the media coverage of this case has not yet given us as voters all the necessary information we need to judge how to vote on the retention question. Let me explain why.

Legal definitions

Over the past few weeks this controversy has been the subject of numerous discussions in Lawrence and in Kansas in general. After 10 years as a columnist for the Journal-World, people often ask me questions or suggest possible columns. I've had quite a few of both about this case and the retention question. One point that has struck me is how many people don't understand clearly the concept of statutory rape.

Statutory rape is a type of rape that needn't involve force or actual lack of consent by the victim. It is a crime premised upon the idea that a child -- in Kansas, for this purpose, a victim "who is under 14 years of age" -- cannot ever give consent to sexual intercourse. It is a protective law, designed to shelter children from premature sex.

Two things, I think, need to be clear about this type of rape. First, it is rape, since rape is whatever the statutes define it to be. Second, it does not necessarily involve force or coercion. I have been surprised how many of the comments I've heard on this case showed a lack of understanding of one or both of these points.

Trial process

More important than understanding the definition of rape, however, is understanding the nature of the trial process and the role of the judge therein. I simply cannot make an informed decision about whether I agree with Martin's ruling or not. I cannot do this, not because I'm indecisive, but because I wasn't there to hear the presentation of evidence or see the testimony of witnesses so that I could decide on their credibility. Even though I've read just about everything written about this case in the press, I don't feel confident that I have enough information to make a good decision come Election Day.

Rape, whether statutory or not, is one of the most serious crimes on the books. It is deplorable. There are few things a society can do that are more important than protecting children from sexual exploitation. At the same time, we need good judges and removing a judge from the bench is a very serious step to take. For our justice system to work properly, we need to be sure that we take such actions very seriously and make informed judgements. If Martin is to be removed for her sentencing decision in this case, then it should be done with full information.

Information is key

The other day at a public lecture I gave, the fellow who introduced me mentioned that I wrote this column and that what I said often made good sense. I was pleased to be introduced in that way, because making "good sense" is precisely what I want to do. I think that it is crucially important that over the next several weeks before the election, every voter should inform himself or herself about this case and should be given every fact necessary to evaluate whether the judge should be retained.

I hope Martin will give her side of the story to the extent that she may do so ethically. I hope that the media, including this paper, will do everything it can do to assist voters in making a good decision in this matter. That means that the media needs to do more than print sensational snippets about the case or opinions based on incomplete or incorrect facts. This a local matter, but it is very important. The crime was very serious and the movement not to retain the judge is very serious. It is not too late to help us all make a wise decision.

For those readers who have come to this point and wonder where I stand on the retention question, the answer is quite simple. I don't feel that I have enough information yet to take a stand on one side or the other. I find it easy to sympathize with the victim and condemn the crime.

But I don't yet know enough to know whether the penalty in this case was appropriate given the facts presented. I see my obligation as a columnist and as a voter interested in a healthy justice system to say that I need more information and that I want more and better information before I make so important a decision. Now I can only hope that those in the media who are far better qualified than I to provide such information will do so. That way come election day, we can all vote intelligently and wisely and make the system work.

-- Mike Hoeflich, a professor in the Kansas University School of Law, writes a regular column for the Journal-World.

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