Should the Statute of Limitations for Rape be Abolished in NY?

Yesterday there was an article in the New York Times entitled In New York, Power of DNA Spurs Calls to Abolish Statute of Limitations for Rape (registration required).  As the title suggests, the article discusses the movement to elevate rape from a Class B felony with a statute of limitations of 5 years (or 10 years if the perpetrator's whereabouts are unknown) to a Class A felony, which has no statute of limitations.

Although I'm a former Assistant Public Defender and generally view criminal issues from a very defense-oriented perspective, I'm 100% in favor of that proposition.  While I can understand the concern that the police may not be as motivated to promptly investigate a rape if the statute of limitations is abolished, I think that it is outweighed by the extreme injustice that occurs when a rapist is allowed to roam the streets in search of additional victims in spite of a positive DNA match.  (I cringe when I read my prior statement, since it sounds oh-so-prosecutorial, but that's my perspective on this issue, nonetheless.)

Comments

[slickdpdxslickdpdx]

You can be pro-prosecuting the crime of rape and pro-vigorous defense of accused rapists. The SOL proposal does put you in a pickle though.

[wdegraw]

There is hope for you yet, Nicole.

[ohwilleke]

This would be fine if DNA evidence was sufficient, by itself, to prove a rape. But, it isn't. DNA evidence proves sexual contact (if semen, or simply physical presence, if from some other source). But, the absence of consent, is another key element. And proving consent or the absence thereof many years after the crime is very difficult. Most people don't videotape themselves having sex.

The converse, of course, is not true. If there is DNA evidence and it doesn't match, that can still be very definitive evidence decades later that the person convicted was not guilty. If someone else had the sexual contact, the guy who got convicted probably didn't have sexual contact and hence didn't have sexual contact without consent.

[wdegraw]

Objectively speaking, ohwilleke makes a great point. But, practically speaking, assuming that there is no other admissible evidence such as, say, a victim or a corroborated confession, such a case wouldn't make it past the Grand Jury - nor would it be presented. True, the issues in rape cases solved by DNA are almost never whether the sex was consensual.

Ohwilleke's point IS well taken when a defendant - cornered by the fact that DNA evidence excludes all but him as the perpetrator (with a statistically reliability of 1 to 160 billion) - alleges that the sex was consensual, The issues, however are the same as in every other case -credibility, reliability, believability.

Further, neither the elements of rape nor the rules of evidence require a videotape of the sexual contact, regardless of when it allegedly happened. In fact, those who do use the videotape, are more open to credibility attacks than those who don't get to turn their videocameras on by virtue of getting dragged into an alley, awoken by a masked stranger or raped in an elevator - to name a few scenarios.

Ohwilleke's second paragraph illustrates my point. The issue there seems to be DNA as source of identifying a case of misidentification, not one of consent. In that scenario, the wrong guy was convicted by mistaken ID, not mistaken intent. (Unless, Oh was referring to a scenario inwhich the victim simply lied to blame an innocent of the crime, but then why is it a DNA issue so many years later?
I mean, if there was a sample collected from the victim during the investigation, and a live suspect on trial, why didn't the DNA exonerate him contemporaneously? Unless it all happened before DNA tech. was developed, but then why take the sample.) So I don't see the point.

I'm rambling, and I'm treading lightly because I still think the point is a good one. I think.

[Nicole Black]

While I agree that ohwillike makes a good point, I don't see how extending the statute of limitations precludes that avenue of defense to any great extent. As wdegraw points out, it's an issue of credibility, which is an issue of fact for the jury to decide, and that can be assessed at any point in time. Usually it's a he said/she said, and there are no other witnesses to the sex/rape. The accused is free to offer his version of events 1 year after the rape or 15 years after the rape. I don't see how the passage of time affects the opportunity to present that defense.

And, the situations that concern me the most are not those where consent is a feasible defense. Rather, it's the situation where you've got a serial rapist raping women whom he does not know, and the only evidence available is the common DNA sample obtained from all of the women, but no match is available since the guy's not in the system yet.

I simply cannot fathom the idea of allowing him to walk free in that type of situation simply because his DNA wasn't yet in the database.

I do realize that it's not as black and white as I am making it out to be and that all cases are not that simple, but I'm the first to admit that I have a hard time seeing the "gray" areas on this issue.

[ohwilleke]

There are a class of cases where it is possible to prove rape very convincingly, basically, those where (1) DNA evidence is taken at the time of the rape, (2) the perpetrator can be shown to be in the vicinity of the victim at that general time frame, and (3) there is no reason to believe that the perpetrator and victim knew each other. This combination is particularly convincing when the perpetrator is someone with a history of violent crime, particularly if that violent crime is rape. The consentual sex v. non-consentual sex argument in such a case is perhaps beyond a reasonable doubt (although one worries about an inability to impeach evidence collection techniques and for either party to accurately recollect the events).

But, the scope of the change goes well beyond that class of events. In a scenario where a consentual relationship is not implausible (e.g. two people who frequent the same bar and knew each other in passing), or rape allegations based on "reconstructed memories" and there is no physical evidence or contemporaneous police report, the concern about a statute of limitation is very real, and I do not hold any comfort in the notion that a grand jury might fail to indict, which is more a theoretical than real possibility, if the prosecutor is at all persausive, and the evidence needed to defense oneself from otherwise unrebutted witness testimony might very well not be available.