Jailing Rape Victims: Cheaper Than A Lawsuit
September 21, 2016 (Fault Lines) — Brandy Buckmaster completed her sentence, and yet she’s still languishing in jail, now as a material witness. Meanwhile, the man who raped her is free on bond.
Brandy Buckmaster says that she was raped. She was an inmate at Coffee Creek Correctional Facility, where she says a guard, Brian Balzer, used his position of authority to coerce her into sex. As a matter of law, Brandy couldn’t consent, because Brian held her life in his hands. On his say-so, she could be placed in isolation or plunked down in the mental health unit. Or he could use his authority to provide her with “perfume samples” or coveted assignments to work details.
Brian Balzer wasn’t alone. From its inception, Coffee Creek has been a flashpoint for staff sexual assaults on inmates. By 2012, over $1.2 million dollars had been paid out to seventeen victims—not through trials, of course, but passed under the table in the muffled hush of a settlement agreement. This was only, of course, after the Oregon Department of Justice abandoned its argument that the women had brought the sexual assault on themselves through their conduct.
Still, if it was worth arguing once, it’s worth trying again. Deputy District Attorney Dan Hesson has kept Buckmaster in the Washington County Jail since August 16th, arguing that it was necessary since she was “complicit” in “perpetuating the illicit relationship between she and the defendant.” As Hesson notes, Buckmaster even contacted Balzer after being released from jail, thus establishing her unreliability as a matter of law.
Beside, Hesson argues, she’s “led a life of crime.” There’s no measure, short of incarceration*, apparently, that will make sure Buckmaster shows up to court to confront the man who kept up Coffee Creek’s proud tradition of locking women away in utility closets to have sex with them. If convicted, Balzer will join eight others successfully convicted of sexual misconduct.
But in the meantime, Balzer remains free on bond, able to gather evidence, retain counsel, and make telephone calls or write letters without unlimited government surveillance. Now, as a criminal defense attorney, it’s certainly hard to begrudge Balzer that liberty. In your average case, pre-trial release should be the norm, because leaving someone in custody pending trial, potentially for years, provides the State with tremendous and deeply unfair leverage.
But here, the script has been flipped on its head. Every day that Balzer delays his trial is another day that his victim remains in custody. Another day that she reconsiders whether she might want to recant, thus heavily diminishing the impact of her testimony at trial. Even the statements of the prosecutor, publically, that Buckmaster was “complicit,” suggest a hope that some jury might nullify on the theory that she was “asking for it.”
Could Hesson have some hidden interest in ensuring that Washington County doesn’t end up paying out another huge settlement? It’s certainly of no consequence that he led a grand jury to tour the Coffee Creek Correctional Facility in 2015. What were the grand jury’s “independent” conclusions? Well, among some troubling findings of minimum security, overcrowding and a broken padlock:
- “The facility has a wall which recognizes certain employees honors and achievements. This is a great reinforcement tool for those doing a good job, and motivation for all employees.”
- The diversity of spiritual programs and the spiritual library available to inmates were both beneficial to the inmates and we commend the efforts that are made to provide faith and cultural opportunities to inmates.
- The entire CCCF facility was clean and appeared to be well-maintained, safe, and well managed.
But at least Buckmaster can’t be held forever, right? Actually, Oregon state law does not appear to require that a material witness warrant ever end. In one recent, controversial case, a man was held for 900 days pending a murder trial. That’s 900 days without a job. Without family. Without decent medical care.
Doesn’t the Constitution have anything to say about this? Let’s check:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The 4th Amendment (or to those of us who aren’t “constitutional absolutists,” the 4th Suggestion) says that you can’t hold someone unless you have probable cause to believe that they have committed a crime. Even stopping someone in the street requires at least more than a hunch. And, the Fifth Amendment doesn’t allow you to hold someone for a “capital” or “infamous” crime without the assistance of a grand jury to insulate citizens from the willy-nilly whims of the State. Or, for that matter, to deprive citizens of their liberty without “due process of law.”
Yet somehow, in most states, but in Oregon in particular, we’ve managed to do away with all those hard-coded rights with a mere wave of a prosecutor’s hand. “We need her, your Honor.” No trial. No body of citizens to stand in the way. Nothing but the prosecutor’s personal integrity, and a judge’s spine, to keep an innocent person outside the confines of the local jail.
As much as prosecutors complain about criminal defense attorneys “putting the victim on trial,” in the crucible of cross-examination, there’s an important distinction. The worst thing a defense attorney can do to a victim is ask her to explain herself. But a prosecutor can silence her, maybe forever, with a flick of his pen.
Buckmaster would dearly love to be put on trial. To accuse the man who abused her. But to do that may require a harsher punishment than he’s ever likely to face. She deserves better. So do we all.
*At her material witness hearing, Buckmaster was brought to court.
“She was in chains” at the hearing, [Buckmaster’s attorney, Betsy] Rawls said. “Belly chains and shackles. And she’s the victim.”
An incarcerated person is an incarcerated person.