Mimesis Law
16 August 2017

You Might Remember That Night If You Were Committing Rape

July 30, 2015 (Mimesis Law) —

[S]tatutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide the primary guarantee against bringing overly stale criminal charges.

United States v. Lovasco

The problem with “overly stale criminal charges” is that with time it becomes increasingly difficult to disprove them. And so it is, both to protect the innocent and to encourage the government not to dally, we have statutes of limitations.

With all sorts of exceptions and loopholes, of course, the basic rule is that if more than “N” years have passed since the crime, the government can’t bring charges.

For most serious crimes (murder was always the exception – no limitations period for that), the rule in Ohio, as I think in most states (I’m not doing the research; it doesn’t matter here), used to be six years.

Imagine you’ve been charged with a crime that occurred nearly 6 years ago. You know you didn’t commit it. But where were you? Who were you with? And can you prove it? June 23, 2009 – around 9:30 in the evening. When they say you were breaking into the warehouse and assaulting the night watchman. Where were you?

Maybe you can. Maybe you can prove that you were giving the after-dinner address at an awards banquet in Hawaii that night. Or that you happened to be in prison in Idaho.

Most of us aren’t so lucky. Where were you? Probably home. Probably watching whatever was on TV. Probably with your spouse, but maybe you were alone. Or you were sitting at the bar down the street where you often but not always have a boilermaker or two in an evening.

But frankly, chances are you don’t remember a thing about June 23, 2009. Unless you happened to be breaking into that warehouse and assaulting the guard, the odds are that the evening was just like any other: A blur a week later, let alone 6 years later. And you weren’t documenting it for an alibi, because why would you ever think you’d need one.

Did I mention that Ohio changed the limitations period? Didn’t think so.

Effective March 9, 1999, it went from 6 years to 20 for many crimes. And not just for new crimes. As long as the 6 year period hadn’t run, the state suddenly had another 14 years to bring charges.

March 19, 1993. A woman was raped. Police had couple of suspects. They were living in the same semi-secure facility as the women. Police dropped the case when the woman wasn’t in when they called (I’m not making this up), but the facility did its own investigation which led to no punishment.

Ten days before the statute ran, it got extended by 14 years. Police still did nothing. The rape kit they’d collected in 1993 sat in the property room. For almost two decades, until 2012, when they sent it for testing.   DNA pointed to one of the suspects they’d known about in 1993. So they charged him.

He said they’d had consensual sex. Didn’t know about a rape. Maybe that happened later. Maybe it didn’t happen at all. But he wasn’t a rapist.

Over the years, the records from the facility got lost. Including the records of the 1993 internal investigation he said cleared him.

How the hell does he prove that?

Another guy, charged with a 20 year old rape because DNA they finally got around to testing. He was home. He had sex with the accuser. It was cool. His mom was awake in the next room. The woman claimed she screamed. He says Mom would testify that she didn’t hear any screams. Except Mom died three years ago.

Maybe a horrible rape. Maybe consensual sex. Who knows? Proof beyond a reasonable doubt? It’s whatever the jury believes, and why would she lie? Besides, the DNA proves something, doesn’t it?

One guy argued that she must have been wearing his girlfriend’s dirty underwear if they found his semen in her undies. How’s he gonna prove that now?

These 20 year old cases? There are hundreds, maybe thousands of them in Ohio. And coming to your state, too.

Rachel Dissell in the Cleveland Plain Dealer:

On Aug. 26, 2014, a Seven Hills detective told a 56-year-old woman that rape kit testing had identified the man who bound and raped her 21 years earlier. She thought it was the end of a nightmare.

Soon, though, in addition to being a crime victim, she started to feel like a victim of the justice system.

___________________, the 59-year-old man a state lab identified as her attacker, was arrested and charged.

Then, months later, he walked free after his attorney successfully argued that the case against was filed too late.

By the time Seven Hills sent the woman’s rape kit to be tested, the 20-year statute of limitations that existed in Ohio at the time had passed.

(One note and one disclosure: NOTE: I deleted the accused guy’s name because while he may or may not have done what they say, unless and until he’s someday convicted, he’s innocent and shouldn’t be treated as a criminal. DISCLOSURE: the state appealed the dismissed charges and I represent him in that appeal.)

That woman who was “bound and raped” led a charge in the Ohio legislature to extend the statute of limitations, which they just did. It’s now 25 years for rape. Actually, it’s eternity. It’s 25 years or 5 years from whenever DNA testing identifies a suspect which could, after all, be 100 years from now.

The statute of limitations, you’ll recall, is the main protection against stale prosecutions. It encourages diligent law enforcement. It provides some protection for the innocent accused against lost evidence and failed memory.

Of course, that means that maybe some bad guy will go free because the cops are lazy. Can’t have that. Of course it also means bunches of innocent guys will be convicted because the cops are lazy.   Small price to pay for getting a bad guy or two off the street.

After all, better 10 innocents should be convicted than that one guilty person should go free.

Oh, wait. That’s not what Blackstone said.

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  • Wrongway
    2 August 2015 at 8:00 am - Reply

    Now that’s some scary shit..