Thursday, February 24, 2011

Victims and Accusers

What is the difference?

This comes to light as part of the national exposure GA State Representative Bobby Franklin (R-Marietta) is receiving on account of his penchant for proposing ridiculous and destructive legislation. One of his claims to fame is legislation that would require the government to investigate natural pregnancy terminations to ensure that they weren't artificial pregnancy terminations.

One of his other national claims to fame is a bill that would reclassify individuals subjected to rape, children subjected to sexual harassment, domestic violence and stalking as "accusers" instead of "victims."

Let us first talk about the necessary splitting of hairs in the instances of the alleged crimes under discussion, and the removal of the legal term "victim" or "victim of an alleged crime" and replacing it with the term "accuser."

When someone is a "victim" of something, that something has been proven to have happened to them. When you "accuse" someone of doing something to you, it may or may not have happened, based on the evidence you present. This legislation's supporters focus on those legal ramifications, because those terms indicate a significant difference, you see, in regards to the law.

The legislation in question appears to require that a criminal act should be proven in a court of law before the "victim" is legally described as a "victim." Until that determination by a court has been made, the individual bringing the charges is nothing but a "person making an accusation."

At least, that's what it appears to do. What it actually does is call into question the very existence of even alleged crimes, even those based on evidence or arrests made based on probable cause. The reason so many individuals are upset nationwide, and labeling this legislation part of a "Republican War on Women" is because, to a great extent, that is exactly what this legislation is meant to be.

When someone is "hit by a bullet discharged from a firearm" we call that person a "gunshot victim." They are described, in almost every way, as the "victim," because something demonstrable has happened to them. We do not say, legally, that they are "accusing someone of shooting them," because it is obvious that person has been shot.

Now, I don't know for sure, but I'd say there is language all throughout the Georgia code, and the codes of the several states, where individuals who have suffered a robbery, identity theft, assault and battery, hit and run, fraud, and many other alleged crimes are described as "victims" of the alleged crime. In non-legal parlance, these individuals are described as "victims," because something demonstrable has happened to these individuals. They are known as victims before and after a criminal conviction, they are known as victims sometimes even without a provable criminal conviction. The only time they are NOT considered victims is if it can be proven that no crime had actually been committed.

Changing the text in the code describing the "victims" to "accusers" negates the idea that something has happened to these individuals, and places the burden of proof on them to demonstrate that a crime has been committed (and that law enforcement should take their claims seriously), which is different from proving who committed a crime. The legal parallel to this would be to assume that every gunshot wound was self-inflicted until proven otherwise.

Does this legislation's credibility still exist? I'll get preventative, and go one step further than the self-infliction theory of victimless crime. Looking at this legislation, it seems that there might be some small reason to adjust the legal language, some hiding place where credibility might still be found.

Then you read it in the context of the whole Georgia Code, and you begin to see that convictions were already assumed when the revisions start changing who is a "victim."

Ergo: A person commits the act of stalking when they engage in thus and such criminal behavior. The punishments are thus. A person commits the act of aggravated stalking when they engage in thus and such criminal behavior. The punishments are thus. The victim of the aforementioned crimes has these enumerated rights.

I fail to see a need to revise the definition of "victim" in this case, unless A) you aren't reading the code in its proper, easily understandable context or B) your intention is to undermine the understanding of the term "victim."

This becomes even more obvious when you read the revision to the term "victim" as it relates to rape, even in the context of the individual section of the Georgia code. Here, the text of the law already makes explicit the existant relationship between an alleged rape and a person who is the victim of an alleged crime. It recognizes that taking an allegation of crime seriously is not mutually exclusive to the presumption of innocence. Something demonstrable happened to the victim; law enforcement must take that seriously and investigate.

Ergo: Rape is thus and such, punishments are thus and such (including DEATH!), "when evidence relating to an allegation of rape is collected in the course of a medical examination of the person who is the victim of the alleged crime," the local law enforcement pays for it.

I fail to see a legal inconsistency there as it relates to victims of alleged crimes. The replacement of the word "victim" with "accuser" is nothing more than culture war syntax, hiding behind a veneer of "fairness to the accused," which does not appear undermined by the current reading of the text. Especially since the code does not presume the guilt of some party, but rather the existence of a crime and the need to collect evidence and investigate.

As the legislation continues, and I could pick apart more of it if I wanted, but this post is already 50% longer than it should be. I figure that by destroying the first two revisions, and proving that they are unnecessary in the first place and actually damaging to victim's rights in the second, I have no need to further tear apart this legislation, or spend much more time on this yahoo Republican who is obviously letting some interest group (or deep seated motive) drive his legislative agenda.

I will close with the more shocking things I found out while researching this post. I would like to say that I'm stunned that these items were ignored by the media and internet folks investigating this guy's legislation, but that is just further demonstration that no "side" holds a monopoly on incomplete examinations of fact.

In Georgia, a victim of stalking or aggravated stalking is only informed by law enforcement that their stalker has escaped, posted bail, or been released if that victim has a land-line phone law enforcement can call. That's a problem.

Also, rape is not just something that happens to a woman at the hands of a man. Defining it in such a way is another problem.

Finally, no one should be convicted of a crime based on unsupported testimony of one individual (this is in regards to third of Franklin's revisions). If that needs to be stated, that's probably also a problem.

The lesson? Georgia's criminal code has lots of places where improvement is needed. Changing the word "victim" to the word "accuser" as prescribed by Rep. Franklin's legislation do not represent needed improvement, and in fact represent either a complete misreading of the law or a demonstrated and deliberate attempt to trivialize the crimes of stalking, aggravated stalking, rape, domestic violence, and obscene telephone contact with a child.

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4 comments:

Thomas said...

Thank you. I was arguing this point with your brother the other day, and couldn't put it quite as thoroughly as you have here.

Cousin Pat from Georgia said...

You're welcome. That argument was actually the inspiration for this post. I knew it couldn't be so easy to defend as he was making it - or the law would have been changed sooner by a far more credible legislator.

patsbrother said...

"Now, I don't know for sure, but I'd say there is language all throughout the Georgia code, and the codes of the several states, where individuals who have suffered a robbery, identity theft, assault and battery, hit and run, fraud, and many other alleged crimes are described as "victims" of the alleged crime."

Or: let's not consider the representations made by people with specialized training in the area, let's just guess that reality comports with the reality I need to exist in order to justify the conclusion that I was told to draw.

Cousin Pat from Georgia said...

So you're saying the few cases cited by this legislation are the only times the word "victim" is used in Georgia Code, or in any legal definitions in Georgia?

I searched for hours, and could find no stated definition of "victim" in the Georgia code. I could find only where a crime was described and defined, and then a "victim" of such a crime or alleged crime was discussed.

And my admission that I'm not sure of language I'm not sure of cannot be translated as "let's not pay attention to people who have specialized training in the area."

I like to think I paid special attention to the claims of those who have specialized training in this area. I did so by challenging the credible need to change these legal definitions based on the actual wording of the law, the definitive differences between "victim" and "accuser", and challenging the true legislative motivations of the author of such changes.