Robert Kennedy is purported to have said:
"Whenever men take the law into their own hands, the loser is the law. And when the law loses, freedom languishes."
The British Broadcasting Corporation (BBC) is reporting on an intriguing example of someone taking the law into her own hands, but within the parameters of the law itself. This is not vigilantism by any stretch, but it is intriguing. It employs a reasonably rare process of state law in the great plains; a process available in few jurisdictions apparently.
The BBC says that this case "could change how rape is charged." The situation in question begins with two people who know each other. They are friends and university students. One is invited to the dorm room of the other and there is kissing. They "began to have sex," when "suddenly, he slapped her," and things became more violent. The victim reports resisting and attempting to stop the encounter. She says that she then became scared and stopped resisting, that he raped her. The BBC says she accuses him of trying to kill her.
Sexual assault is a difficult topic. There are many complexities. There are various statistics that support sexual assault is an underreported phenomenon, and that is true on college campuses. According to the Justice Department, "only 20 percent of campus sexual assault victims go to police." According to the Brennan Center, that figure is reasonably consistent outside of the academic setting as well. Significant volumes of those who allege assault do not report it to authorities.
In this Kansas instance, the alleged victim did report it to the police "soon afterwards." She then had the opportunity to meet with "a county attorney," responsible for making decisions about whether to prosecute cases. That attorney declined to "file a sex charge . . . but instead charged" the assailant "with aggravated battery." That resulted in the young assailant pleading guilty, being "sentenced to two years' probation and," paying a fine/restitution of $793. That left the alleged victim dissatisfied, and through coincidence, she happened across an uncommon Kansas law that she could aspire to take into her own hands and seek justice in a different manner.
This 19th-century law is referred to as the "citizen's grand jury." (The "law dates back to 1887."). This is a process available in "Kansas, along with Oklahoma, Nebraska and three other states." The alleged victim in Kansas had to collect signatures on a petition, the necessary required signature volume is related to the county population. She had to get 2% of the county population that voted in the last gubernatorial election, plus 100, to support the convening of a grand jury. Even in a sparsely populated county, that volume of signatures would likely be a significant challenge. This compels the prosecutor to convene a grand jury. The BBC suggests that this process recently in Kansas may be a harbinger of the future, with "far-reaching consequences for the accuser and the accused, and perhaps the rest of the country."
It is important to remember that Grand Juries are not about guilt or innocence. They merely make decisions about whether charges should be brought. They are an alternative course to prosecution, beyond that discretion that lies with the prosecutor. And, there are those in the legal profession who believe "most district attorneys can 'indict a ham sandwich' if they so desire." That derision generally refers to the belief held by some that a prosecutor could manipulate a Grand Jury into the outcome desired by the prosecutor.
As Quartz reported, some were surprised earlier this century when a Grand Jury in Ferguson Missouri did not indict a police officer who was accused of shooting a youth there. The case ended with peaceful protests that destroyed millions of dollars in businesses and real estate. Had the demonstrations not remained peaceful, the costs might have been higher still. But, Quartz notes that this "ham sandwich" reference refers to:
"district attorneys who abuse their prosecutorial discretion—either by pushing through weak cases, or, as critics have alleged in the Ferguson case, by derailing cases that they don’t want to prosecute."
That might be seen as troublesome by those who see great potential in the "citizen's grand jury." Despite forcing the convening of the panel, it may not result in the outcome the alleged victim seeks.
It is important to remember that there are two sides to each story. And, in this particular topic, there are pitfalls and problems aplenty. The BBC concedes that in the midst of this process, both accuser and accused find themselves awaiting closure. While some proponents trumpet that this 19th-century law is "a way to make sure that every citizen has access to the legal system," It may or may not receive the support of those who manage the Grand Jury or the Jury itself.
The BBC concludes, however, that this case may be a landmark. They note that "some . . . believe that it will help strengthen the resolve of others who have gone to the police," and yet not received the outcome they wished. One activist explains that "consent" is a contentious issue and that "A lot of cases around lack of consent are still dismissed."
The story also concedes the "two sides to every story" perspective. It notes that the accused's "life has certainly been upended." It discusses the potential for devastating consequences of such allegations "even when they are exonerated: People's lives are wrecked." In this instance, the accused has suffered suspension from college, loss of a job, the battery conviction, and four years have passed since the time of the events about which these two people have varied perceptions and recollections.
I know, by now there is someone out there that is likely repeating that old saw "What does this have to with workers' compensation?" (This blog is about workers' compensation)? The fact is that the legal foundations and processes being engaged in Kansas are fascinating, and this blog is about the law. This story illustrates the efforts to balance the rights of both sides of a story when it comes to legal proceedings (which happen frequently in litigation of all kinds, including workers' compensation). But, more importantly for the workers' compensation community, this is a reminder that legal processes are often not as swift as would be hoped, and closure is sometimes not so easy to reach.
In the 1990s, I practiced workers' compensation in various Florida venues. Justice was not swift, and delays were often extreme. Years passed without hearings, continuances were rampant, and closure was elusive. Four years seems a long time in this Kansas case, but I have seen many workers' compensation cases take longer. As William Gladstone noted, "justice delayed is justice denied." And, denied it was in this system as a rule back then. For those who would manage tribunal dockets, the lesson is also that each case is really a human being. They may profoundly disagree on facts, the law, and the outcome. However, we are here to resolve those differences. That we do so with diligence and timeliness is important regardless of which perspective prevails. Closure in itself has importance.
In the broader context, should citizens be able to force a legal system to be responsive? Is the Kansas idea a harbinger for good? If nothing else, it is worthy of thought.
