Statutory rape in Wisconsin. Disappearing jury trials.

michael curtis curtism at bellsouth.net
Thu Aug 9 05:17:21 PDT 2007


A major reason for the disappearance of jury trials is the excessive 
sentences and charges prosecutors can stack on df's.  So if you don't want 
to risk spending the rest of your life in jail, the safe option is to plead. 
I think Ron Wright has written an empirical piece on the disappearing right 
to jury trial. Or consider this:  a rape charge which for various reasons is 
extremely weak.  The df says it was consensual and there is circumstantial 
evidence to support his version.  The prosecutor offers a plea to assault on 
a female (a misdemeanor) with no time.  Rape carries life at the time.  The 
df says I should not plead because I am not guilty of that crime.  What you 
the df atty say--fine your choice, or I believe you (assuming she does) but 
consider the risks.  The escalation of sentences makes it often very risky 
to plead not guilty.

Michael Curtis
----- Original Message ----- 
From: "Robert Sheridan" <rs at robertsheridan.com>
To: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Cc: <CONLAWPROF at lists.ucla.edu>
Sent: Wednesday, August 08, 2007 9:46 PM
Subject: Re: Statutory rape in Wisconsin


>I don't know how many prosecutorial, executive branch, decisions have
> been held a violation of Equal-Protecton-As-Applied, but since I
> can't think of a case offhand, either on the Supreme Court or local
> levels, I suspect that the number is vanishingly close to zero.
>
> Prosecutorial latitude generally favors both sides:  it lets the
> prosecutor elect not to prosecute to the max, and allows the defense
> to suggest lesser alternative dispositions.  Even where the
> prosecutor is given greater leverage by statute, such as 3-Strikes
> laws, an 'out' is usually given to allow for necessary exceptions
> such as lack of evidence, disappearance of a witness, sufficient
> other punishment for other offenses, etc.
>
> An argument offered in this thread to justify the unlawful sexual
> intercourse laws (aka stat rape), i.e. that it allows prosecutors
> latitude to opt for this instead of, say forcible or violent rape,
> strikes me as consistent with reality but nevertheless odd, since it
> doesn't seem to provide for the case where the aggravating factors
> cited (threats, violence subject to some doubt, etc.) are absent or
> otherwise not clear.  How justify stat rape when these aggravating
> factors are absent?  Why opt in favor of prosecution, or justifying
> the decision to prosecute,  merely because unprovable factors (aka
> 'silent beefs') may, or may not, exist?
>
> The fact is that in many cases, the decision to prosecute is
> tantamount to coercing a plea of guilty to the charged offense, or in
> many cases, a lesser or related offense.  Why?  Because who can
> afford to go to trial?  Not private counsel or their clients, except
> in the rare case, and even the P.Def., where economics is a factor.
> About the only place where economics is not a factor, except in cases
> in which the DA, for various reasons, does not wish to prosecute, is
> in the DA's office.  Did Kenneth Starr curtail his lengthy
> investigation because of lack of resources?  The McMartin child sex
> abuse prosecution, which lasted in jury trial for more than a year?
> Prosecution is politically driven, to wit the recent North Carolina
> rape prosecution which...Surprise!...forced the resignation, apology,
> and perhaps disbarment of the prosecuting attorney.
>
> I hate to say it, but prosecutors have almost all the cards when it
> comes to abusing the 'justice' system.  I served seven years as a
> prosecutor, and many more in private defense practice.
>
> rs
> sfls
>
> Incidentally, few prosecutors offices have the energy to go after
> speech offenses when they have so many gunshot wound cases to
> consider, and when they do go after speech offenses, you really have
> to wonder why.
>
> On Aug 8, 2007, at 10:50 AM, Scarberry, Mark wrote:
>
>> I do think there is a very real risk of coercion in such cases that
>> may
>> justify the law even where both persons are under 16. Of course then
>> there are questions whether such a statute gives too much
>> discretion to
>> a prosecutor to decide which person to prosecute, whether in effect
>> the
>> statute will be enforced discriminatorily against boys, whether such
>> discrimination by a prosecutor would be just, and whether
>> (notwithstanding Michael M v. Superior Court) such discrimination by a
>> prosecutor would violate the Equal Protection Clause.
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>>
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
>> Lawrence
>> Sent: Wednesday, August 08, 2007 10:22 AM
>> To: Paul Finkelman; Eugene Volokh; CONLAWPROF at lists.ucla.edu
>> Subject: RE: Statutory rape in Wisconsin
>>
>> The statute appears to be applicable to both if they had both been
>> under
>> 15.  That is the law in many states, as far as I can tell.
>>
>> Larry Rosenthal
>> Chapman University School of Law
>>
>>
>> ________________________________
>>
>> From: Paul Finkelman [mailto:PFink at albanylaw.edu]
>> Sent: Wed 8/8/2007 10:22 AM
>> To: Rosenthal, Lawrence; Eugene Volokh; CONLAWPROF at lists.ucla.edu
>> Subject: RE: Statutory rape in Wisconsin
>>
>>
>>
>> If they had both been fifteen would they have both been guilty of the
>> crime of sexual contact with someone under the age of 16, or, does the
>> statute require that the the offender be over 16.
>>
>> Paul Finkelman
>> President William McKinley Distinguished Professor of Law
>>      and Public Policy
>> Albany Law School
>> 80 New Scotland Avenue
>> Albany, New York   12208-3494
>>
>> 518-445-3386
>> pfink at albanylaw.edu
>>
>>>>> "Rosenthal, Lawrence" <rosentha at chapman.edu> 08/08 12:59 PM >>>
>> Pertinent Wisconsin law provides:  "Whoever has sexual contact or
>> sexual
>> intercourse with a person who has not attained the age of 16 years is
>> guilty of a Class C felony."  Wi. Stat. s 948.02(2).  "Sexual contact"
>> is defined to include "[i]ntentional touching by the complainant,
>> by the
>> use of any body part or object, of the defendant's intimate parts
>> or, if
>> done upon the defendant's instructions, the intimate parts of another
>> person."  Wi. Stat. s 948.01(5)(a)(2).
>>
>>
>> Larry Rosenthal
>> Chapman University School of Law
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>
> _______________________________________________
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