We Can’t Have Justice if We Don’t Scrutinize Accusers

James Patrick Whalen, right, leaves the Grand Forks County Courthouse with his attorney, Robert Hoy, after pleading guilty to sexual assault and corruption of a minor. photo by Eric Hylden/Grand Forks Herald

Yesterday I wrote a post responding to outrage over comments made by Robert Hoy, defense attorney for James Patrick Whalen, a Grand Forks teacher who recently pleaded guilty to charges related to a sexual relationship he had with a 16 year old female student.

Many in the media were outraged that Hoy brought up the fact that the student pursued a relationship with Whalen during a sentencing hearing. Some said Hoy was “slut shaming” the victim, but he wasn’t. He wasn’t invoking that fact as proof of Whalen’s innocence, only a mitigating factor for his sentencing, which state law actually requires.

Hoy would have been remiss in his duties if he’d failed to bring up any facts which could be to his client’s favor during sentencing.

Anyway, today in a letter to the editor, Shirl Kuhla (the aunt of a student who alleged an inappropriate relationship with a teacher who was also Hoy’s client and maintains those allegations) responds to me.

I thought her responses worthy of some rebuttal.

For instance, she accuses Hoy of trying to “break” Whalen’s victim:

I witnessed Robert Hoy put my niece, Maggie Wilken, through an eight-hour deposition. In my eyes, this was an eight-hour interrogation used only to try and break the victim down.

The problem with this argument is that the accused in a criminal proceeding have a constitutional right to confront their accusers. While that can certainly be an emotionally fraught process, it’s also necessary.

Because what’s the alternative? Just believing the accuser because questioning her (or him, as the case may be) could be upsetting?

Kuhla references Marsy’s Law – the ballot measure which put supposed “victim’s rights” into the state constitution – ending this sort of questioning. “It is my hope that because of Marsy’s Law, a victim will never have to go through a deposition lasting eight hours,” she writes.

But that was a major concern many in our state – including this observer and numerous legal experts – had with Marsy’s Law. It gives alleged victims the right to decline any pre-trial questioning by the defense. Which puts the accused in the position of only being able to explore the alleged victim’s claims in real time in court before the jury.

Kuhla and those inclined to agree with her see that as a positive, and pre-trial questioning of alleged victims as an affront to decency, but the police/prosecution get all sorts of time to question accusers and the accused in every case without having to do so before a jury.

Why shouldn’t the defense get the same opportunity?

Kuhla and those inclined to agree with her see that as a positive, and pre-trial questioning of alleged victims as an affront to decency, but the police/prosecution get all sorts of time to question accusers and the accused in every case without having to do so before a jury. Why shouldn’t the defense get the same opportunity?

Especially given that the burden for proving that a crime happened beyond a reasonable doubt lays with the prosecution. It is the defense’s job to try and raise that reasonable doubt, and while limiting opportunities to establish that doubt is no doubt gratifying to the prosecution and the believe-every-victim crowd, it doesn’t facilitate justice.

“Furthermore, Mr. Port, it is never acceptable for a teacher to have a sexual relationship with a student. Never,” Kuhla concludes in her letter. “The blame goes solely to the person in power – Male or Female, not the underage student who doesn’t have the ability to consent.”

But nobody – not me, and not Hoy – is blaming the student for the crime.

Here are the comments from Hoy that set off this controversy in the first place: “I agree … that he is the adult and she is incapable of consent by statute, and he is at fault for that,” he told the judge during a sentencing hearing. “The law does not say that she is incapable of facilitating it or encouraging it or asking for it.”

Not the wording I would have chosen – the “asking for it” bit makes me cringe even now – but Hoy said explicitly that his client is guilty. He brings up the victim pursuing his client only as a factor for sentencing.

Maybe that still creeps you out. Maybe it will make more sense if we put this in the context of a less disgusting sort of crime.

Let’s say that we’re talking about someone who has pleaded guilty for assault at a bar. During the sentencing of that person it’s relevant – indeed, the law requires that it be a factor – to ask whether or not the victim provoked or facilitated the assault. So the attorney for the defendant might point out that, before the assault occurred, the victim insulted the defendant’s wife.

That’s important. I think most of us can agree that someone provoked to assault isn’t necessarily free of criminal liability is is perhaps worthy of a lesser sentence than someone who launched an unprovoked attack.

That same principle is at play here. Whalen was pursued romantically by a student. That is a relevant fact in the case, and Whalen’s defense attorney was trying to use the facts to get his client a better sentence.

That really is the man’s job.

Initially in this post I misidentified Kuhla as the aunt of Whalen’s victim. That was inaccurate, and I’ve corrected the post to reflect that.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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