The Massachusetts legislature is presently considering a version of "Jessica's Law," reports Dave Wedge for the Boston Herald. (Hat tip, James Taranto.) Incredibly, the House removed a provision for mandatory prison time for rape of a child before passing the bill. However controversial mandatory minimums may be in other contexts, it staggers the imagination to think that anyone, much less a majority of a house of a state legislature, thinks that probation can be appropriate for this crime. But if you think that's incredible, read what Rep. James Fagan said in opposition to the bill:
Fagan, a defense attorney, infuriated victims’ rights advocates during a recent House debate when he said he would “rip apart” 6-year-old victims on the witness stand and “make sure the rest of their life is ruined.”
In a fiery soliloquy on the House floor, Fagan said he’d grill victims so that, “when they’re 8 years old they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”
If anyone had any doubt that child witnesses need protection from some defense lawyers who go beyond zeal into fanaticism, that should erase the doubt.
Update: The implication in the Boston Herald article that the bill as it passed the House would leave no minimum prison time for child rape is challeged by Corey Rayburn Yung at the Sex Crimes blog. I'll check it out. In any case, that does not affect the main point of the post. If the quote of Rep. Fagan's comments is accurate, he is a disgrace, the voters of his district should dump him at the next election, and protection for child witnesses from jackals like him is absolutely essential.
Update 2: Comment from a Massachusetts prosecutor is after the jump.
As I know very little about Massachusetts sentencing law, I asked someone who does, Joseph Ditkoff of the Suffolk County District Attorney's Office. Here is his response:
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It's a little complicated, but the basic answer is that current law allows probation under most circumstances.
Rape of a child without force or threat of bodily injury (that is, statutory rape) has a maximum of life and no minimum. G.L. c. 265, § 23. Accordingly, probation is a lawful alternative. G.L. c. 276, § 87. If it's a second offense, there is a minimum of five years. We have truth in sentencing, so someone with a five year sentence will serve close to that. It is not settled whether a probationary sentence is possible for a second offense (though a violation would require at least five years committed).
Rape of a child with force or threat of bodily injury "shall be punished by imprisonment in the state prison for life or for any term of years." G.L. c. 265, § 22A. Sounds like no minimum, but the minimum possible state prison term is one year. G.L. c. 279, § 24. So one year is the minimum, though a probationary sentence is definitely possible. G.L. c. 276, § 87. For a second offense, again there is a five year minimum and it is unsettled whether there is a probationary alternative. A minimum 10 years if the defendant uses a gun. A minimum 20 years if he uses a gun and has a prior.
In summary:
Statutory rape: 0 to life, probationary alternative
Statutory rape, second offense: 5 to life, availability of a probationary alternative unsettled
Forcible child rape: 1 to life, probationary alternative
Forcible child rape, second offense: 5 to life, availability of a probationary alternative unsettled
Forcible child rape, with a gun: 10 to life, availability of a probationary alternative unsettled
Forcible child rape, with a gun, second offense: 20 to life, availability of a probationary alternative unsettled.
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So, it does appear that Massachusetts is in need of a mandatory minimum. A twenty year minimum for all cases may indeed be too harsh, as Corey says, but the status quo is not acceptable.
Perhaps some of the reticence results from the Amirault scandal in Massachusetts. However, probation for convicted child rapists is unacceptable even if only thought to be a "safety valve" to prevent an injustice. First, we all know that some judges would hand out probation to the most obviously guilty of child rapists, and second, the judge, if convinced of someone's innocence could always pull a Judge Zobel (of Louise Woodward fame)and toss the case.
Fagan's statement should remove him from decent company.