Originally Posted by Jack Manfred
(Post 402166)
If I'm correct, I'm the only poster on this board who has actually prosecuted both adults and juveniles for forcible and statutory rape. With that said, let me say that I might understand what Hank is getting at.
As a prosecutor in California today, I am not on board with pleading someone out to a PC 261.5 statutory rape if I believe that the defendant violated PC 261(a)(2) by forcibly raping someone. But sometimes what you thought was a statutory rape case turns out to be a forcible rape case. The victim might be so traumatized in a date-rape situation with an older man that she minimizes or doesn't explain the perpetrator's conduct during the first interview with the police. The reverse is also true: sometimes what you thought was a forcible rape is actually statutory rape. Dad assumes that the reason his precious angel is pregnant is because she was raped, and daughter is too afraid to explain the whole story until after the police have been called.
If I'm the prosecutor now on a case with Polanski's facts, I'm not going to let it settle for a PC 261.5. Not when I can get a conviction on a PC 288(a) for lewd and lascivious acts on a child under 14. That's harder for the defense to fight than either the 261(a)(2) or the 261.5. And unlike a PC 261.5, the judge can't reduce it to a misdemeanor. The middle term is six years prison. The mitigated term is three years prison.
Two more points. First, prosecutors do file charges on statutory rape cases even though there's no issue involving force or actual consent. If you're 25 and your girlfriend is 15, expect charges. Same thing if you're 17 and your girlfriend is 13. And I can file PC 288(a) on a juvenile if they're over 14 and having sex with someone under 14. Now the typical DA's office in California is going to turn down cases where the 17-year old boy sleeps with his 15-year old girlfriend, and her angry parents drop a dime on the boyfriend. But if he gets her pregnant? And she's keeping it? Maybe someone wants to make sure the boyfriend takes a parenting class or a sex ed class or is staying in school so he at least has a diploma for a slightly better-paying job over the next 18 years. Now that's where there's a lot of discretion and leeway, especially in juvenile court, and where statutory rape should be charged as or settled for a misdemeanor.
Second, it's worth noting that the main reason society needs rape shield laws is because judges consistently and appallingly lacked the fortitude to sustain objections to the victim's past sexual history and what she was wearing and other irrelevant evidence that was solicited solely to sully the victim and make her cross-examination an ordeal. Just look at the transcript from the Polanski proceedings. The lawyers make it plain what tactics they had planned for the victim. None of that should have been admissible 30 years ago under a 352 analysis (think FRE 403) or even an FRE 402 analysis. It's shameful that we need them, and it's even more shameful when judges don't use them properly today. [/RANT]
I can't speak to what the prosecutors should have done 30 years ago, as my main interests at that time were Legos, Star Wars action figures, and the Muppet Show.
With today's Penal Code, I'd bury Polanski.
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