Judge orders rape victim to hand over access to Facebook page

[Eugene]

Source: Associated Press

Judge orders rape victim to hand over access to Facebook page

Associated Press in Trenton, New Jersey
theguardian.com, Friday 8 August 2014 20.15 BST

A New Jersey judge has ordered a teenager who accused a man of rape to turn over access to her Facebook page.

Mercer County superior court judge Robert Billmeier this week agreed to a request from David Stevens-Parker’s defence attorney, and the judge said he will privately review two weeks of Facebook postings for any comments related to the alleged rape before deciding whether any can be used in court.

The defence attorney, Andrew Ferencevych, said he wants to see if there are any hints that the sex was consensual. Stevens-Parker, 22, was charged with providing the then-16-year-old Princeton girl with alcohol before sexually assaulting her in April 2013.

Assistant Prosecutor John Carbonara said Ferencevych cited a state court ruling that allowed a defence attorney to require a victim to submit to an eye exam, but Carbonara argued that ordering the teenager to turn over Facebook access was a greater invasion of privacy. He said courts do not typically order crime victims to turn over information.

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Read more: http://www.theguardian.com/world/2014/aug/08/judge-orders-alleged-victim-access-facebook-page

[riqster]

1. Rape culture. Yes. It DOES exist, god-fucking-dammit.

[In_The_Wind]

8. Doesn't look like it's gotten any better.

[Brigid]

2. I don't do Facebook.

If I were raped, would they even believe me if they demanded access to my Facebook account and I said I didn't have one? It's going to be bad enough when I start job-hunting; I hear employers often demand access to your Facebook account these days.

[justiceischeap]

3. There can never be sexual consent in this case

whether she "wanted it or not" because she is 16 or under and the accused is 18 or older. (Unless the law has recently changed)

In New Jersey, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone 16 or younger), even if the sex is consensual. Those who break the law have committed statutory rape.

http://www.criminaldefenselawyer.com/resources/new-jersey-statutory-rape-laws.htm

[redqueen]

4. And once again it is demonstrated that our default position is assumed to be YES.

[Orrex]

5. This is ugly

Assistant Prosecutor John Carbonara said Ferencevych cited a state court ruling that allowed a defence attorney to require a victim to submit to an eye exam, but Carbonara argued that ordering the teenager to turn over Facebook access was a greater invasion of privacy. He said courts do not typically order crime victims to turn over information.

So the defense is arguing that the rape was in fact consensual, and they want the victim's FB posts as evidence. To that end, the analogy between this victim and other victims of crime is problematic, because consent isn't usually a factor in those cases.

Viscerally, I feel that this is indeed an invasion of the victim's privacy,

However, it's not surprising that the defense would try to demand it. Further, they will ask why the victim would refuse to reveal that info unless it supported the claim of consent. And if the defendant is convicted without having had access to the victim's FB info, you can bet that they'll appeal on those grounds.

An ugly situation to inflict upon the victim. Honestly, I'm surprised that it hasn't come up before.

[cui bono]

13. They don't want the FB posts as evidence, they want to see if there might be any evidence.

What would they even find in there that would prove anything? Even if the victim stated she thought about having sex with the defendant, it does not prove it was consensual at the time of the rape. I might like to have sex with someone at some point yet not want to have sex with them at the time that they raped me.

I believe it's just another way to try to shut up this and future victims. Now there is just another way to shame the victim, to make it more difficult to want to speak out.

And of course, as others have said, the default position is "yes". As if rape victims enjoy the treatment they get for speaking out and are doing it for the fun of it even though they really consented.

[Orrex]

18. I agree with all of that.

I suppose that FB posts after the event might potentially show consent, but I agree with you that it's a fishing expedition.

[Arkansas Granny]

6. Since she is only 16, isn't she considered to young to give consent?

I thought the difference in age would make it statutory rape, regardless.

[Lee-Lee]

9. They may be charging "forcible rape" vs statutory rape

If so, communications before and after the event could be valid evidence.

[davidn3600]

11. Age of consent in New Jersey is 16

In New Jersey, the age of consent for sexual conduct is 16 years old. This applies to both heterosexual and homosexual conduct. As a general matter, this means that a person who is 16 years old can generally consent to have sex with any adult, regardless of age.

http://www.legalmatch.com/law-library/article/new-jersey-age-of-consent-lawyers.html

So statutory rape can't be charged.

[itsrobert]

14. Post #3 disagrees with your assessment

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=5356342

[tblue37]

22. Also, if he gave her alcohol, that in itself is a crime, since she is

under the drinking age.

[Sherman A1]

7. Pardon me for a moment

[hifiguy]

10. Um, wut?

[historylovr]

12. Always the same.

Our default setting is yes. Women lie about rape. Over and over and over.

[joeybee12]

15. Why only two weeks...hell, ask for EVERYTHING she ever posted and wrote...

Because it's clear this judge is trying to help the defendant...the asshole.

[madinmaryland]

16. The kid's dad is probably a drinking buddy of the judge. nt

[joeybee12]

20. Or relative...

This judge bending over backwards to help him with this request.

[dickthegrouch]

17. Unless the order is extremely explicit, ...

which I highly doubt, she should offer supervised access to the page only.

She MUST NOT be compelled to hand over any password to the defense team. That would constitute an absolutely unwarranted intrusion of her privacy.

[Thinkingabout]

19. Why was the victim required to turn over her FB, just have the rapist turn over his FB.

[aikoaiko]

21. I think Jersey has a romeo and julliette exemption

http://www.njlawattorney.com/Articles/What-New-Jersey-teens-and-parents-need-to-know-about-Romeo-Juliet-laws.shtml

New Jersey's Romeo and Juliet law

Essentially, there are two major types of Romeo and Juliet laws. For example, in some states Romeo and Juliet laws protect those accused of sex crimes from conviction for consensual sex acts if they fall under the close-in-age exemption. Alternatively, other states protect those accused from having to register as sex offenders if they are ultimately convicted of purported sex crimes.

New Jersey's own Romeo and Juliet law falls under the first category. In particular, New Jersey's law states that an accused is guilty of sexual assault if sexual intercourse occurs with an alleged victim who is at least 13-years-old, but younger than 16-years-old, and the accused is "at least four years older" than the alleged victim. For example, if a 17-year-old has consensual sex with a 15-year-old in New Jersey, the 17-year-old will not be in violation of the statute since the two are close in age. However, if the age of the older individual is actually 23-years-old, this individual will be in violation of the statute for consensual sex with a 15-year-old.

As this article illustrates, Romeo and Juliet laws - as with most sex crime laws - are heavily dependent on the facts specific to the situation. Accordingly, if you have been charged with a sex crime, it is often best to seek the counsel of an experienced sex crime defense attorney who is familiar with these laws. A knowledgeable attorney can assist in reviewing the facts of your case and help ensure your rights are protected.

[Jim Lane]

23. This isn't unique to rape cases. Many people are being ordered to provide Facebook access.

For example, if someone claims damages for being injured in an auto accident, and alleges impairment of day-to-day activities, the defense may be able to look at the plaintiff's Facebook page to seek post-accident pictures of the plaintiff skiing or whatever.

One obvious difference is that, in bringing a lawsuit based on the accident, the plaintiff has placed his or her own physical condition in issue. That's not a factor in a criminal prosecution brought by the state.

Nevertheless, there is a long-standing principle that the law is entitled to compel people to provide information that may be relevant to the prosecution or the defense. Suppose Joe was at a party where a rape allegedly occurred. He can be compelled to testify about what he saw. If he protests that he doesn't want his wife or his boss or someone to know that he was at that party, for whatever reason, too bad -- his privacy is going to be invaded to that extent.

Facebook and other social media can contain valuable evidence, but access can also be a significant invasion of privacy. This is a developing area of the law and courts are still working on how to balance these considerations. The linked article gives some other examples.

One possibility is in camera review, meaning that the defendant and his lawyer don't see the material, but it's provided only to the judge. The judge can then decide what specific posts or photos, if any, will be released to the defendant. That's what's being done here. From the linked article: &quot T)he judge said he will privately review two weeks of Facebook postings for any comments related to the alleged rape before deciding whether any can be used in court." The article also says that the victim did not object to this procedure.

[niyad]

24. apart from all the other bs involved with this order. . .since when are rape victims ORDERED

to take eye exams.

no, we have no rape culture.

does anyone know- was this idiot judge elected or appointed? (so, he was appointed after years of civil (not criminal) practice)