Saturday, January 4, 2014

Action Alert: HB403 Contaminating the Virginia Justice System with Bias

HB403 patroned by Delegate Rob Bell:
Provides that in a criminal case in which the defendant is accused of a felony sexual offense involving a child victim, evidence of the defendant's conviction of another sexual offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant. The bill includes a second enactment requiring this new rule of evidence to be applied in conjunction with the Virginia Rules of Evidence. 

I spoke against this proposal at the September 2013 Virginia Crime Commission meeting but here it is for the 2014 Virginia General Assembly session, as expected.

New laws are supposed to strengthen our Democracy, not weaken it. But this proposal does just that. 

Our Justice System prohibits a complaining witness’ character or sexual history to be discussed or debated. Even if the plaintiff has previously accused someone of sexual misconduct, we claim it’s irrelevant and prejudicial, but yet here we are trying to flip the coin on the defendant by injecting bias into the courtroom. 

For years the Virginia Legislature has been making the standards of guilt easier. 

If this proposal becomes law, would the defendant be permitted to testify in opposition to the prior conviction or would this be considered irrelevant by the State? It seems to me that any mitigating circumstance in the prior conviction must be allowed as it’s being held up as evidence in the new case. And if this occurs the Commonwealth must allow the defendant the right to face the original accuser even if they took a plea deal. The Constitutional issues with this proposal are countless.

Why is this change even needed? 

It’s NOT because the recidivism rates for Registered Sex Offenders is high.  

In fact the re-offense rate for convicted “sex offenders” is the second lowest of ALL crimes (U.S. Department of Justice).  

I questioned how many current Virginia sexual statutes ALREADY include a “second or subsequent offense”. I found 16 different acts where the Commonwealth is already charging and sentencing defendants with past convictions much more harshly than a first time offender. So it’s not like the small percentage of recidivist aren’t already being punished more harshly by the State. 

Justice is supposed to be blind but when it comes to Sex Crimes it seems we are willing to throw away all checks and balances put in place to prevent assumptions, personal opinions or agendas from contaminating a fair system.  

Let me give you all a real-life example of presumed guilt because of a prior conviction in Virginia.  

October 2012 in Bedford County, VA a man had been approaching children at a bus stop, attempting to lure them to his home. The Bedford police and the parents concluded that it must be a Registered Sex Offender so they went to the registry and picked a photo that came close. The man they selected had an alibi but he was still held without bond and charged with a felony for trespassing on school property, even though a bus stop is not school property. Days later the real perpetrator re-approached the bus stop and with the Registered Offender sitting in a jail cell, the authorities had NO choice but to conclude they had the wrong man.  

This is where faulty rationale about those listed on the Virginia Registry has led us. The State ONLY had a misidentified man with a prior sex offense and THAT was enough to deny him bond, to charge him with a crime that doesn’t apply to other citizens and to presume he was guilty. Imagine if the real perpetrator had gone into hiding, if this proposal was in place a finding of guilt for the wrongly accused man would have been certain. 

The job of the Prosecution is to prove guilt beyond a reasonable doubt; the burden of proof lies with the one who declares, not who denies. If the state believes this proposal is necessary to get a conviction; then we are pursuing citizens who shouldn’t be prosecuted.   

In Virginia we already allow an accusation alone with no corroboration as the only evidence in many cases (Johnathan Montgomery/ Elizabeth Coast) and the fact is an accusation is NOT proof! Why are we considering making this second mistake by adding prior convictions to that list? 

This proposal if it becomes law would irreparably damage our system of justice whose very foundation is the presumption of innocence.

Please Email or call your one State Delegate and your one State Senator asking them to vote “NO” on HB403. They will be arriving in Richmond on Monday and Tuesday for Wednesday the first day of session so be sure if you call to call the Richmond location as of Tuesday!

Mary Devoy