It’s time to change the law
The infuriating mistrial in former cop Michael Pena’s prosecution exposed a serious flaw in New York’s sex crimes law that makes it harder to prove rape than other forms of sexual assault. The statute must be amended before another victim is denied full justice.
The state should apply a single standard of proof to the three most serious categories of sex crimes — and Queens Assemblywoman Aravella Simotas has introduced a bill aimed at doing just that.
Illogically, the current penal law sets two standards. To convict someone of first-degree oral or anal sexual assault, prosecutors need only show “contact” between the attacker and the victim. But when the charge is rape, prosecutors must prove that there was “penetration, however slight.” Simple vaginal “contact” is “sexual abuse,” a much lower category of crime.
This distinction between contact and penetration is unfair to women and has no place a 21st century criminal code.
While the issue thankfully doesn’t come up often, its impact can be devastatingly painful — as New Yorkers saw with the outrageous outcome of the Pena trial.
The jury found him guilty of orally and anally assaulting a woman at gunpoint. But three of the 12 jurors refused to convict Pena of rape.
Even though the victim testified that she had been penetrated.
Even though two witnesses supported the woman’s account.
Even though Pena’s semen was found in her underwear.
Even though a doctor testified to injuries consistent with rape.
The primary blame for the mistrial belongs to the three holdout jurors, including Lloyd Constantine, a former prosecutor, former friend and aide to ex-gov. Eliot Spitzer and, ironically, acquaintance of Manhattan District Attorney Cy Vance.
Constantine’s failure to disclose his ties and arrogant certitude that he was fit for service almost torpedoed the trial. Worse, he participated in extreme nitpicking to dismiss the victim’s unchalleged testimony. Most offensively, one juror reportedly argued that the jury could not accept the woman’s word on the issue of penetration because she could not remember the color of a nearby car.
The Daily News has filed a motion asking Manhattan Supreme Court Justice Richard Carruthers to release the transcripts of jury questioning and discussions of deliberations in the case. He sealed those public records without explanation. Now, they must be open for inspection.
It is virtually certain that none of this would have been necessary if the rape law were consistent with provisions for oral and anal assaults. Pena’s lawyer, who admitted his client had done everything else, could not then have claimed a failure to penetrate.
There is some comfort in knowing that Pena will pay severely for his heinous acts. Using a gun elevated his crime to “predatory sexual assault,” which carries a maximum sentence of 25 years to life for each of three counts.
But his victim should never have suffered the pain of having jurors publicly doubt her brave and unrebutted testimony. And she should have won the verdict she deserved — that of rape.