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To Get An Abortion, Teens In 26 States Must Ask Parent Or Judge : Shots


A Massachusetts woman who had an abortion when she was 15 stands outside the Suffolk County Courthouse in Boston. Right now, girls facing that decision who don’t want to tell their parents must get a judge’s approval.

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A Massachusetts woman who had an abortion when she was 15 stands outside the Suffolk County Courthouse in Boston. Right now, girls facing that decision who don’t want to tell their parents must get a judge’s approval.

Jesse Costa/Jesse Costa/WBUR

The teenager was just 15, and recovering from a rape, when she realized she was pregnant. This young woman, whom NPR has agreed not to name, says she knew right away that she wanted to terminate the pregnancy. But like a lot of states, Massachusetts required — and still requires — minors to get a parent’s consent before obtaining an abortion.

“I knew I couldn’t tell my mom or my immediate family members,” she says, “because my pregnancy was the result of a sexual assault from a family friend.” Her home, she adds, “wasn’t necessarily a safe or healthy one at the time.”

So the 15-year-old pursued her only legal alternative: obtaining permission for the procedure from a state judge. She remembers staring up at a man who never made eye contact with her during their short conversation about grades and whether she played sports. She says the judge never asked her about the assault or her planned abortion.

“And then, right before I was leaving, he just encouraged me to think harder next time, before I had sex,” she recalls. “That was tough to hear.”

The judge issued an order granting her request. But the additional time it took to get that permission pushed the 15-year-old past the point that would allow her to take pills to induce an abortion. Research shows going to court typically delays an abortion for minors in Massachusetts by six days — delays that are most common among low-income, nonwhite teenagers.

So, instead of a medical abortion, she had to have the more invasive surgical procedure. But that’s not what weighs heavily on the young woman, who is now 23, has a masters degree and works for a nonprofit in Boston.

“The feeling that I had — from seeing the judge and those last words he said to me about being ‘more responsible’ ” — is what has stuck with her.

Required parental consent is one of the main reasons Massachusetts, often viewed as a bastion of liberal laws, only gets a grade of “C” for abortion access from an abortion rights group. Now, there’s an ongoing, vigorous debate in Massachusetts about whether to keep or remove this restriction.

It’s part of a larger process, in which both supporters of abortion rights and groups that oppose abortion are re-examining — and often changing — state-level policies in the wake of Brett Kavanaugh’s ascension to the U.S. Supreme Court in 2018. Both sides believe the appointment of Kavanaugh could lead to Roe v. Wade being overturned, which would mean the power to determine abortion policy would return to states.

Abortion-rights opponents say that when minors seek out abortion, having a parent or judge involved is supposed to help protect vulnerable teenagers, such as the 15-year-old who was raped. (That young woman says she has always assumed her lawyer told the judge how she got pregnant, but she can’t be sure.)

“In our laws, we need to do as much as we can — especially given the kind of epidemic abuse that we’re facing — to interrupt that cycle,” says David Franks, chairman of the board of the anti-abortion group Massachusetts Citizens for Life.

And requiring parental consent works to cut down on the procedures, these opponents of abortion rights say. The restriction has prevented at least 10,000 abortions since it was enacted in Massachusetts, according to calculations by Michael New, a visiting professor at The Catholic University of America. That takes into account the hundreds of Massachusetts teenagers who travel to neighboring states every year where parental consent for minors is not required. New says Massachusetts residents have traditionally backed some abortion limits for teenagers.

“Even in these more ‘liberal’ states, some of the existing pro-life laws still enjoy a lot of support,” New says. “I think most people are uncomfortable with minor girls obtaining abortions without their parent’s knowledge.”

Still, a poll out this past summer found that a plurality of Massachusetts voters favor letting minors decide on their own.

Removing parental consent is one of the key elements in a bill being called the “Roe Act” that’s pending in the Massachusetts legislature. It would also allow abortions in the third trimester — if a doctor diagnoses a fatal fetal condition — and, in anticipation of a post-Roe world, would establish the right to an abortion in state law.

The bill’s sponsor, state Sen. Harriet Chandler, argues that abortion is more widely accepted these days as general medical care. Chandler, who is 82, remembers when it wasn’t.

“I think if people realize what a post-Roe world would be, that would make it even more reasonable to do this bill,” Chandler says.

Her proposed legislation is still in committee, and its ultimate fate is unclear. Massachusetts Gov. Charlie Baker, a Republican, says he generally supports access to abortion, but not Chandler’s proposed expansions to state law.

Massachusetts, a heavily Catholic state, was among the first to pass limits on legal abortions in the 1970s, including required parental consent for minors. Twenty-five other states enforce a similar law for minors. No state has repealed the restriction.

‘It’s really been difficult to repeal barriers across the country,” says Rebecca Hart Holder, executive director at the abortion rights group NARAL Massachusetts. “This is a moment for us to take back that narrative and say those barriers are not acceptable.”

The prospect of eroding or overturning Roe v. Wade is triggering a flurry of legislative actions in states across the country. The Guttmacher Institute, which supports abortion rights, says 17 states have passed abortion restrictions or bans this year, as compared to 9 states that have confirmed or expanded access to abortion.

The recent rush in many states to restrict abortion rights is part of what propels Chandler: “We’re going in a different direction than the rest of the country,” she says.

That reaction has also occurred in other left-leaning states, according to Guttmacher’s senior state issues manager, Elizabeth Nash. The increased focus on abortion began in late 2018, Nash says, when Kavanaugh’s arrival on the Supreme Court created a five-member conservative majority. Before then, abortion access wasn’t an urgent priority among liberals.

“People felt that they were OK,” Nash explains, “that their state was safe because they weren’t seeing the same kinds of attacks as, perhaps, in states like Texas or Louisiana.”

In Massachusetts, abortion-rights opponents are lobbying to dilute or defeat the Roe Act and then focus on their long-term goal: a state constitutional amendment to limit abortions.

Meanwhile, supporters of abortion rights say passage of the Roe Act would help Massachusetts cement its commitment to abortion access — and become a legislative haven for women who can’t obtain abortions in other states. With that message, they have stepped up fundraising appeals with the plea that even more women are going to need help with abortions in a post-Roe future.

This story is part of a reporting partnership that includes WBUR, NPR and Kaiser Health News.



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Judge Orders Wisconsin To Purge Nearly 234,000 Voters From The Voter Rolls


A Wisconsin judge ordered the removal of nearly 234,000 people from the state’s voter rolls on Friday because they may have moved, a controversial court decision that could influence the 2020 election in a state Donald Trump narrowly won in 2016. 

In October, the Wisconsin Elections Commission sent a letter warning nearly a quarter-million voters they’d need to reregister their addresses to remain on the voter rolls because the commission believed they had moved. 

“If you move, even to an apartment in the same building, you must update your voter record by reregistering,” Wisconsin’s chief elections official, Meagan Wolfe, said at the time. 

The letter didn’t give people a deadline to reregister and an October press release from the elections commission said anyone who received the letter would remain on the list of eligible voters until 2021. But a lawsuit filed in October by the conservative group Wisconsin Institute for Law and Liberty said the elections commission is required by law to purge anyone who received the letter from the voter rolls if they do not reregister within 30 days of receipt. 

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A judged ordered hundreds of thousands of people to be purged from Wisconsin’s voter rolls.

On Friday, Ozaukee County Circuit Judge Paul Malloy agreed wholeheartedly. Whereas the conservative group simply sought an injunction from the court requiring the commission to purge the voters ahead of its 2021 date, Malloy ordered the commission to do so within 30 days. 

“I don’t want to see someone deactivated, but I don’t write the law,” said Malloy, according to the Milwaukee Journal Sentinel. “There’s no basis for saying 12 to 24 months is a good time frame. It’s not that difficult to do it sooner.”

Malloy was appointed to the bench in 2002 by Republican Gov. Scott McCallum. 

Reporting on the lawsuit for HuffPost in October, Sam Levine noted a 2017 effort by election officials in Wisconsin to purge voters with inconsistent addresses misidentified thousands of people as having moved and deactivated their registration. 

“Some people had registered vehicles at an address other than where they voted,” Levine wrote. “To the state, it looked like they had moved. Ultimately, more than 18,000 people deactivated from the voter rolls were subsequently reactivated in 2018.” 

The Journal Sentinel reported Democratic-leaning areas would be hit harder by the voter purge than Republican ones. On Friday, Wisconsin’s Democratic Gov. Tony Evers denounced the purge as a voter suppression effort. 

Donald Trump defeated Hillary Clinton by 22,748 votes in Wisconsin in 2016. 

Wisconsin is the latest state with a Republican secretary of state to authorize a sweeping voter purge after Trump was elected. Similar attempts this year in both Ohio and Georgia have garnered national attention, and a thwarted attempt to purge the voter rolls in Texas resulted in the secretary of state’s resignation





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American Samoans’ Citizenship Status Still In Limbo After Judge Issues Stay : NPR


John Fitisemanu, an American Samoan, filed the lawsuit against the U.S. government after he was denied the opportunity to apply for federal government jobs listing citizenship as a requirement.

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John Fitisemanu, an American Samoan, filed the lawsuit against the U.S. government after he was denied the opportunity to apply for federal government jobs listing citizenship as a requirement.

Katrina Keil Youd/AP

John Fitisemanu woke up early Friday morning, got dressed and finally completed one of the tasks on a more than 20-year-old to-do list: He registered to vote.

For less than a day, Fitisemanu, who was born in American Samoa, was legally considered a full-fledged American citizen with voting rights and the ability to run for office or hold certain government jobs. But a judge in a Utah federal court has once again thrown his much longed-for status into question.

After ruling on Thursday that anyone born in American Samoa should be recognized as a U.S. citizen, the same judge — U.S. District Judge Clark Waddoups — on Friday decided to put the order on hold until the issue is resolved on appeal.

Since becoming a U.S. territory in 1900, the cluster of Pacific islands southwest of Hawaii has remained the only territory not granted birthright citizenship. Instead, people there are identified as U.S. nationals. That means they are not allowed to participate in federal, state or even local elections in the U.S. They cannot run for any elected office and they’re also denied from applying for government jobs that require citizenship. They’re also issued passports that say, “This bearer is a United States national and not a United States citizen.”

Fitisemanu and two other American Samoans who also live in Utah, sued the federal government to change all that. And Waddoups agreed.

“Any State Department policy that provides that the citizenship provisions of the Constitution do not apply to persons born in American Samoa violates the 14th Amendment,” Waddoups wrote, in a 69-page judgement on Thursday.

The decision contradicts a 2015 ruling in federal court in Washington, D.C., that determined only Congress can resolve questions of citizenship within the nation’s territories. And government attorneys plan to appeal Waddoups’ decision.

Neil Weare, a lawyer for Fitisemanu, Pale Tuli and Rosavita Tuli, said his clients, are eager to have the issue resolved once and for all and “be able to enjoy all the same rights as their fellow Americans.”

In the case of Fitisemanu, who has lived in Utah for more than two decades, Weare said, he’s been a hardworking, taxpaying American. “Yet, based on this discriminatory federal law, he’s been denied recognition of citizenship by the federal government and as a result he’s not able to vote.”

“All he wants is to have his voice be heard, just like any other American would,” Weare added.

In his younger years, Fitisemanu dreamed of landing a government job and all of the security and wages that come with it. “And when he looked in terms of the jobs qualifications, it said, you must be a U.S. citizen. So he was not able to pursue those very attractive, well-paying jobs,” Weare explained.

It was that experience that prompted Fitisemanu, now 56, to file the lawsuit.

Government attorneys dispute the argument that citizenship decisions can be made in federal courts. Their position is that only Congress possesses that power.

“Such a novel holding would be contrary to the decisions of every court of appeals to have considered the question, inconsistent with over a century of historical practice by all three branches of the United States government, and conflict with the strong objection of the local government of American Samoa,” government attorneys wrote.

The government of American Samoa sided with U.S. attorneys, arguing that “imposition of citizenship by judicial fiat would fail to recognize American Samoa’s sovereignty and the importance of the fa’a Samoa [the Samoan way of life].” Additionally, they maintain that an “imposition of citizenship over American Samoan’s objections violates fundamental principles of self-determination.”



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American Samoans should be recognized as US citizens, federal judge decides


People born in the U.S. territory of American Samoa should be recognized as U.S. citizens, a federal judge in Utah ruled Thursday, in a hard-fought legal battle spanning decades.

U.S. District Judge Clark Waddoups also ruled that American Samoans should be issued new passports reflecting his ruling. The disclaimer on their passports currently reads: “The bearer is a United States national and not a United States citizen.”

“This court is not imposing ‘citizenship by judicial fiat,'” Waddoups said in his decision. “The action is required by the mandate of the Fourteenth Amendment as construed and applied by Supreme Court precedent.”

American citizens are defined as people “born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

In this undated file image provided by nonprofit advocacy and legal group Equally American, John Fitisemanu, an American Samoan and the lead plaintiff in a lawsuit against the United States seeking full U.S. citizenship. People born in the territory of American Samoa should be recognized as U.S. citizens, a federal judge in Utah decided Thursday in a case filed amid more than a century of legal limbo but whose eventual impact remains to be seen. (Katrina Keil Youd/Equally American via AP)

In this undated file image provided by nonprofit advocacy and legal group Equally American, John Fitisemanu, an American Samoan and the lead plaintiff in a lawsuit against the United States seeking full U.S. citizenship. People born in the territory of American Samoa should be recognized as U.S. citizens, a federal judge in Utah decided Thursday in a case filed amid more than a century of legal limbo but whose eventual impact remains to be seen. (Katrina Keil Youd/Equally American via AP)

American Samoa became a U.S. territory in 1900, but those born there are only recognized as U.S. nationals, preventing them from being able to vote, run for public office or sponsor family members for immigration to the U.S.

Its status separates itself from other U.S. territories such as Puerto Rico, Guam, the Northern Marianas and the U.S. Virgin Islands.

In 2016, the Supreme Court declined to hear a case from the U.S. Court of Appeals for the District of Columbia Circuit that ruled the Constitution doesn’t confer citizenship to those born in American Samoa.

The lawsuit was brought last year by three people — John Fitisemanu, Pale Tuli and Rosavita Tuli — who were born on the cluster of islands southeast of Hawaii and currently reside in Utah. They claimed they faced restrictions from traveling abroad and were subject to fees that don’t apply to American citizens.

It was not clear if Thursday’s ruling applies outside of Utah. The Justice Department and State Department didn’t immediately return Fox News requests for comment.

“The takeaway from the ruling is that people born in American Samoa living in Utah are now U.S. citizens, and they have all the same rights as other Americans, including the right to vote,” said Neil Weare, president of Equally American and one of the attorneys representing the plaintiffs. “These individuals can now go and register to vote and participate in state, federal and local elections.”

Camel Rock near the village of Lauli'i in Pago Pago, American Samoa. A federal judge in Utah ruled Thursday that people born in American Samoa should be granted birthright citizenship.

Camel Rock near the village of Lauli’i in Pago Pago, American Samoa. A federal judge in Utah ruled Thursday that people born in American Samoa should be granted birthright citizenship.

American Samoans can apply for U.S. citizenship but have to pay the $725 application fee, in addition to any legal fees they incur to help them navigate the process.

Fitisemanu said his employment prospects have been diminished because of his rejection from jobs that specify U.S. citizenship as a requirement. In an interview with The Associated Press last year, he said he avoided political conversations because he couldn’t vote.

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After the ruling, Fitisemanu said he plans to register to vote. The American Samoan government claims automatic U.S. citizenship would undermine local traditions and practices.

The Associated Press contributed to this report. 



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Judge urges Legislature to bar police from using ‘deceptive schemes’ to skirt Miranda rights



A judge on California’s top court implored the Legislature on Wednesday to bar a “pervasive” police practice of using deception to obtain confessions from suspects who have invoked their right to remain silent.

“The use of deceptive schemes to continue questioning a suspect who has invoked Miranda rights appears to be a common police practice throughout California,” Justice Goodwin Liu wrote in a dissent.

The dissent came in response to a Wednesday decision by the California Supreme Court to decline review of a Los Angeles case in which a suspect was tricked into confessing by an undercover deputy placed in his cell with a hidden recorder.

A Los Angeles-based state Court of Appeal upheld a decision by a trial judge in the case to admit the confession into evidence. It led to the murder conviction of Manuel de Jesus Valencia, who was 18 when arrested for the gang-related killing. Valencia was sentenced to 50 years to life in prison.

“Miranda forbids coercion, not strategic deception that tricks suspects into trusting someone they see as a fellow prisoner,” the Court of Appeal wrote in September.

Wednesday’s order by the California Supreme Court denying review contained no explanation of the majority’s reasoning.

Liu, in his dissent, complained that the court has repeatedly refused to take up similar cases.

“Compliance with Miranda is not a game, and the Legislature, if not this court, should make that clear,” wrote Liu, a Brown appointee.

He said no one disputed that Valencia had validly invoked his Miranda rights before “the police devised a scheme to extract a confession from him.” The scheme by an LAPD officer included falsely telling Valencia that a witness had picked him out of a lineup.

Liu cited a long list of decisions by California appellate courts upholding convictions despite such practices.

“These cases, which come from multiple counties up and down the state, are just the tip of the iceberg,” Liu said. “Because courts have consistently rejected challenges to such practices, and because this court has declined multiple opportunities to take up the issue, it is likely that many defendants do not raise this issue on appeal.”

Liu said the police tactic “integrates official questioning and surreptitious questioning into a single coordinated scheme to exhaust defendants into confessing” after they have invoked Miranda to remain silent and ask for a lawyer.

The Miranda right stems from the 1966 U.S. Supreme Court ruling in Miranda vs. Arizona, which set rules for police interactions with citizens.

“‘Once warnings have been given, the subsequent procedure is clear,’” Liu quoted the high court as ruling. “‘If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’”

The U.S. Supreme Court limited Miranda in 1990, ruling in Illinois vs. Perkins that an undercover officer may question a suspect without giving him or her a Miranda warning. But Liu said that case did not involve a suspect who had already invoked his Miranda right.

“Nevertheless, our courts of appeal have extended Perkins to hold that surreptitious questioning of a suspect is permissible even after the suspect has invoked Miranda rights and remains in custody,” Liu said.

He said courts in other states also have upheld the practice, except for Nevada, which has barred it. Liu also noted that Orange County prosecutors have a policy against it.

Officer Tony Im, a spokesman for the Los Angeles Police Department, said he was unfamiliar with Wednesday’s case and could not comment on it.

The California Supreme Court meets privately to discuss which appeals to accept and traditionally does not comment about its reasoning. Liu has taken to issuing full-blown dissents to some of these court orders since he joined the court in 2011.

The court now has four Democratic appointees and three justices appointed by Republican governors.

The court may decline to review a case for a variety of reasons.

Some justices might agree with the lower court’s reasoning, believe the issue should be allowed to percolate further in the lower courts or think the facts of the case would be a poor vehicle for a ruling. When courts of appeal issue contradictory decisions, the state high court generally must step in to clarify the law.

The lower court’s ruling in Valencia’s case was not published, meaning it cannot be cited as precedent.





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Republicans Confirm Lifetime Federal Judge Opposed To Fertility Treatments



WASHINGTON ― Senate Republicans voted Wednesday to confirm Sarah Pitlyk to a lifetime seat on a federal court, despite her extreme views on fertility treatments having “grave effects on society” and her unanimous “not qualified” rating from the American Bar Association.

Every Republican present but one, Sen. Susan Collins (Maine), voted to put Pitlyk, 42, onto the U.S. District Court for the Eastern District of Missouri. Every Democrat present opposed her. The final tally was 49-44.

You can see how every senator voted here.

Alaska Sen. Lisa Murkowski is one of two pro-choice Republicans in the Senate, along with Collins. She did not vote. Her spokeswoman Karina Borger said the senator was not there because she is attending the first meeting of the International Energy Agency’s Global Commission for Urgent Action on Energy Efficiency, of which she is an honorary member.

“She would have voted no” if she were present, Borger said.

Pitlyk, who is special counsel to the Thomas More Society, a conservative, anti-abortion law firm based in Chicago, argued in a 2017 amicus brief that in vitro fertilization, or IVF, and surrogacy lead to “diminished respect for motherhood and the unique mother-child bond; exploitation of women; commodification of gestation and of children themselves; and weakening of appropriate social mores against eugenic abortion.”

In a related 2017 interview with the National Catholic Register, she said that “surrogacy is harmful to mothers and children, so it’s a practice society should not be enforcing.”

Nearly one in six U.S. couples face infertility, according to a 2014 National Institutes of Health study. Sen. Tammy Duckworth (D-Ill.) is among them. She had been urging her colleagues to oppose Pitlyk over her “deeply insulting” views on fertility treatment.

“As a mother who struggled with infertility for years and required IVF to start my family, I would be one of the many Americans who could never enter Ms. Pitlyk’s courtroom with any reasonable expectation that my case would be adjudicated in a fair and impartial manner,” Duckwork wrote in a letter to her 99 Senate colleagues.

Pitlyk fits the mold of many of President Donald Trump’s court picks: young, white and a member of the Federalist Society, a conservative lawyers’ group that has served as a pipeline for judges for this White House. Most Federalist Society-backed nominees also tend to have records of opposing abortion, LGBTQ rights and voting rights.

In private practice and in her work at the Thomas More Society, Pitlyk built a clear record of attacking reproductive rights. She defended anti-abortion activist David Daleiden, who broke federal and state laws by secretly recording and deceptively editing videos that falsely claimed to expose Planned Parenthood’s illegal sale of fetal tissue. She defended Iowa’s six-week abortion ban that was later struck down as unconstitutional. In another case, Pitlyk argued that it is “scientific fact” that “human life begins at the moment when a human sperm fertilizes a human egg.” (It is not scientific fact.) 

After losing that case, Pitlyk lamented that “the trial court’s judgment treated the embryonic children as inanimate objects, not human beings with the same interests as other unborn children.”

Sen. Dianne Feinstein (D-Calif.) said Pitlyk also filed multiple legal briefs with misinformation about fertility treatments, including the claim that children conceived by IVF have “higher rates of birth defects, genetic disorders and other anomalies.”

“I think it is disqualifying for any judicial nominee to make unfounded and unsupported claims, especially in a court of law,” Feinstein said in a statement.

Beyond the controversy over her views on fertility treatments, Pitlyk earned a rare and embarrassing “not qualified” rating by the ABA given her lack of courtroom experience: She has never tried a case in civil or criminal court. She has never examined a witness. She has never taken a deposition or argued any motion in a state or federal trial court. The ABA’s rating was unanimous.

Pitlyk previously clerked for Brett Kavanaugh, also a Federalist Society member, when he was on the U.S. Court of Appeals for the District of Columbia Circuit. When Kavanaugh was credibly accused of sexual assault by Christine Blasey Ford during his Supreme Court confirmation hearing, Pitlyk came to his defense, writing in a Fox News opinion piece that his critics were “trying to tarnish the character of a man we and so many other people admire and respect” on the basis of “a single, unsubstantiated, anonymous allegation about an alleged incident in high school – some 35 years ago.”

Pitlyk also publicly dismissed Ford’s story, saying in a CNN interview that it was “hard to take it seriously … in light of the transparently, politically motivated manner in which it has come to light,” and that “it defies credibility to believe that it is just a coincidence.”

You may be wondering, why on earth would Republicans confirm a lifetime federal judge with such extreme views who was rated unqualified by a panel of senior lawyers?

By all appearances, and in keeping with the agenda of this White House, it is because she is a young Federalist Society member who publicly defended Kavanaugh when Republicans needed it the most. A lifetime seat on a federal court is a pretty sweet thank you present.

It isn’t the first time Republicans have confirmed an unqualified judicial nominee after they went to bat for Kavanaugh.





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MANDEL: Sex assault acquittal overturned after judge use ‘discredited rape myths’


She didn’t dress the way he’d expect. She didn’t react the way he’d expect.

She simply didn’t behave the way an Ontario judge expected a sexual assault victim to behave.

After all these years, some on the bench are still trapped in biases of the past. And so Ontario Court Justice Peter J. Wright acquitted the man on trial, finding Richard Lacombe hadn’t twice assaulted his neighbour who lived in an assisted care residence for persons with disabilities.

Among the many factors he found significant?

“She dressed in a loose fitting pyjama top with no bra and underwear, engaging with a man that she really did not know well at all, including significant French kissing.”

The Ontario Court of Appeal has overturned that 2017 acquittal and ordered a new trial, finding the trial judge’s analysis was tainted by “long-discredited myths and stereotypes about sexual assault complainants.”

According to the woman, her neighbour knocked on her door and invited her out for a cigarette on the fire escape. As they chatted, she claimed he began touching and pinching her breasts. She asked him to stop but he just laughed, she said, and put his hand down her pants and rubbed her hard.

When he French kissed her, she kissed him back because, she said, he wasn’t listening to her and she feared he would hit her.

When she went back to her room, she saw that he’d caused her to bleed. She was too terrified to tell anyone.

The following evening, the second alleged assault took place under virtually the same circumstances. She agreed to meet him for a smoke because she was afraid of his reaction if she turned him down, she explained. She became more frightened when the man allegedly got angry when she refused to masturbate him.

This time, though, she complained to her boyfriend and a girlfriend. She listened to their advice and called police.

Lacombe’s story was far different. He said she was the one who came to his room, flashed her breasts and asked him to touch her. But besides that brief consensual touching and a further “peck on the lips” the following night, he insisted nothing else happened between them.

The trial judge listed 11 factors that made him question the woman’s credibility, including the way she was dressed, her failure to leave the situation at once or to immediately report what happened.

He then invoked “common sense and life experiences” to conclude that he should reject her version of events.

The Crown appealed and a Superior Court judge upheld Lacombe’s acquittal.

The Crown appealed again and this time, Ontario’s highest court agreed a retrial was necessary because the judge was working from an outdated lens of “rape myths.”

“Dress does not signify consent, nor does it justify assaultive behaviour,” wrote Justice Sarah E. Pepall on behalf of the three-judge panel. “As such, it had no place in the trial judge’s assessment of the complainant’s credibility and reliability.”

Nor should he have placed any weight on her not immediately telling friends or police.

“The myth that a sexual assault complainant is less credible if she does not immediately complain is one of the more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law,” Pepall wrote, quoting a decision already a decade old.

The appeal court was also critical of the trial judge for questioning why the complainant would have kissed Lacombe and not left.

“There is no rule as to how victims of sexual assault are apt to behave,” Pepall wrote in a stern rebuke. “He was comparing her conduct to conduct he expected of a sexual assault complainant without giving any consideration to her evidence of fear.”

Or as another judge once wisely stated: “These cases should never be decided on how abuse victims are expected to react by people who have never suffered abuse.”

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