Putting the Victim on Trial

Posted on May 30, 2013

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It used to be pretty standard practice in the bad old days to tarnish a rape victim’s reputation in court in order to invalidate her claim of rape, or at the very least, to cast doubts as to whether the act was consensual.  Was she a virgin?  Was she sexually active?  How many boyfriends had she had?  What was she wearing?  Why was she out alone at night?  Was she flirty?  Asking for it?  The victim’s entire past and present sexual history was on trial, when the sole question to be decided should have been about one incident of assault between her and the defendant.

Aren’t we glad those days are over?  Oh, wait…

There is a current case ongoing right now in the state of Florida, in which a victim’s pre-incident character is under attack as a way to defend the accused assailant’s actions.  That is the case of George Zimmerman, accused of murder in the killing of Trayvon Martin one rainy night last year.  Oh, that’s different, you might say, but I don’t think it is.  It wasn’t a justifiable defense in rape cases, and it isn’t a justifiable defense in this murder case, either.  The sole question to be decided is about one incident of assault between Mr. Zimmerman and Mr. Martin.

But in the grand old tradition of smearing the victim, the defense wanted to introduce Mr. Martin’s personal photos and texts at trial to demonstrate that he was a bad, bad kid.  Sadly for them, the judge in this case ruled that the defense is not allowed to mention Mr. Martin’s past use of marijuana, school suspensions or alleged fights.

But the defense beat the judge to the punch in at least one way; they already released much of that past material to the public, improperly so in my opinion.  If this isn’t tainting the jury pool, it’s pretty dang close.

To justify Mr. Zimmerman’s suspicious frame of mind, much has been made of past events in the neighborhood: a series of burglaries by young black men, and ineffective police responses, might have predisposed Zimmerman to take action when he saw Mr. Martin.  In the 911 call, he shared his impression that Martin was up to no good, and complained that “these punks” always got away.  Given the recent events in the neighborhood, that’s probably even understandable, but it doesn’t make it right.  We know it was in fact wrong, because as it turned out, Mr. Martin was visiting the neighborhood overnight with his father and had a perfectly good reason to be where he was at the time.   He was not committing any crime; he was just walking in the rain with his Skittles and iced tea, and having a phone conversation with a girl.

The only possible reason for publicizing Mr. Martin’s past misconduct would be a desire to introduce doubt into the minds of the public and potential jurors: well, he was a bad kid.  Mr. Zimmerman’s impression of him was justified, not only because of past events in the neighborhood, but because of Mr. Martin’s bad background.  The logical problem with that is that Mr. Zimmerman had no way of knowing anything about Mr. Martin at the time, and that’s why he should have left matters to the police.

Even if somehow, Mr. Zimmerman had known that Mr. Martin had been in trouble at school, even if he had seen those texts and photos, it still does not justify chasing him down and confronting him in the darkening rain, any more than a woman’s clothing or sexual past justifies assaulting her.

I will be very interested to hear the arguments and evidence when this case goes to trial in a couple of weeks, and very interested in the outcome.  When one considers that an armed Mr. Zimmerman ignored a police dispatcher direction to remain in his car, followed the unarmed Mr. Martin and confronted him, things don’t look too good for Zimmerman in my mind.

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