Connecticut’s Carceral Cries

It started with DNA. Suddenly, there was a way to identify the person who was accused of rape years, decades later. And the calls to eliminate the Statute of Limitations for these newly-identified defendants emerged. Even though DNA was by no means conclusive, and it would be essentially impossible to defend against such accusations, there was at least a sound argument.

And then there were the children. Who could blame the children for remaining silent when they or their families were threatened? Connecticut went with these.

Connecticut’s five year statute of limitations for criminal prosecution is one of the shortest in the country, but there are exceptions, including aggravated sexual assault of a minor and first-degree sexual assault when force or the threat of force is used and the victim is under 16 or the victim is under age 13 and the offender is more than two years older. Those charges are Class A felonies, the most serious of crimes, and there is no criminal statute of limitations for them.

Connecticut law also makes an exception for sexual assault cases in which an alleged offender’s identity is established through DNA. In those cases, there is no statute of limitations.

The rationale for Statutes of Limitations, to allow the accused the ability to defend against false accusations, gave way, but at least there were strong reasons. You may well disagree with them. I do. But there were good reasons. Until there weren’t.

Fueled by anger over the recent spate of sexual misconduct allegations, activists hope Connecticut will become the next state to extend or abolish the statute of limitations for sexual assault crimes.

Sen. Mae Flexer, a Democrat from Killingly, said she plans to reintroduce legislation this year that would give accusers more time to report sexual assault charges. The state’s current statute of limitations for all but the most serious charges is five years.

The allegations against Harvey Weinstein, Matt Lauer and a host of other powerful men have reinvigorated a conversation on how the law should treat victims. “I hope the people who had reservations last year will see this differently now,’’ Flexer said. “I’m hopeful what’s happened in this country will make a difference.”

This has nothing to do with children. This has nothing to do with DNA used to discover the identities of decades old rapists. The rationales of yore are no longer needed.

Rape crisis counselors say it can take years for a victim to process the trauma of an attack and report it to authorities.

“The opportunity to seek justice should not have an expiration date,’’ said Laura Cordes, executive director of the Connecticut Alliance to End Sexual Violence. “Victims face a lot of barriers that stop them from coming forward, so when they do, we need to be there for them.”

So the narrative goes. It’s not that they can’t identify their alleged assailant. It’s not that they’re children. It’s that they’re “victims,” and don’t they deserve “justice,” even if they’ve failed to act upon it for years, for decades, because reasons?

Opponents of the proposal say it could open the door to unfounded allegations and make it more difficult for those accused of sexual assault to get a fair trial if charges are brought years, or even decades, later.

The American Civil Liberties Union raised concerns about the California measure, telling the Los Angeles Times in 2016 that legal time limits protect innocent people from wrongful conviction.

This argument, which provides the foundation for why Statutes of Limitations exist in the first place, so ancient and undefendable accusations can’t put a person in the dock forever, was made by many, from defense lawyers to bar associations and even, in 2016, the ACLU. So the ACLU of Connecticut is against this proposal?

(The group’s Connecticut office has no position on the issue at this time, said spokeswoman Meghan Smith.)

Of course they take no position. A position could be costly. And why piss off their potential donors, who are deeply passionate about social justice for victims if not for defendants?

Across the nation, states have a patchwork of laws regarding the window for the prosecution of sexual assault cases, ranging from three years to none at all. Last year, California became the 17th state to eliminate the statute of limitations for such crimes. Meanwhile, lawmakers in Colorado extended that state’s statute of limitations from 10 to 20 years.

This reflects a shift in jurisprudential priorities, from due process for the accused to fairness for the victim, with the added bonus of forgiving their failure to raise the accusations within the first few years.

Notably, this isn’t just about rape, but lower level sexual assaults as well, where the only evidence will likely be the accusers’ testimony. It may fail to rise to the level of beyond a reasonable doubt, but defendants will still be charged, held in lieu of bail and arrested by the police, with the occasional errant bullet striking the accused after a furtive gesture.

Then again, there is no call for the elimination of the Statute of Limitations for other offenses, like assault or burglary. Certainly not for drug dealing, though the attorney general may yet suggest the need for such a victim-centric reform. For now, it’s only about sexual assault and rape, because in the scheme of Blackstone’s ratio, it is better that 10 innocent men go to prison than one women survivor not achieve “justice,” even if she didn’t get around to making the accusation for a few decades.

H/T Jonathan Blanks, who called this “carceral liberalism at its worst.”

10 comments on “Connecticut’s Carceral Cries

  1. DaveL

    You need to take the long view of things. If we don’t bake some new seeds of future injustice into the system now, where will the passionate get their new social justice causes in 20 years?

        1. SHG Post author

          But they can be made to say, “that’s it? You’re done already? And when are you going to get a raise?”

  2. DHMCarver

    I read a piece (by Marci Hamilton, on the Justia Verdict website) earlier today praising such developments. I wish I had had the phrase “carceral liberalism” handy in my mind at the time, for it captures precisely what I was thinking. I will be using it frequently going forward. On the same website, Joseph Margulies had a piece asking for “less piety, more complexity” in criminal justice reform thinking in 2018. The movement here regarding statutes of limitations shows that piety still trumps complexity every time. (Note – no links per the rules.)

    1. SHG Post author

      Hamilton pretty much personifies that progressive hypocrisy of hating incarceration for defendants they like while loving it for crimes they hate. Drugs? Good. Rape? Bad. It’s not that the carceral state will be eliminated by social justice, but that they will swap out their favored defendants for their hated defendants, based entirely on identity and utterly without principle. Woo hoo.

      1. DHMCarver

        Woo hoo indeed. I would love to read a good book on the vengeance ethos in the US criminal justice system. Left or right, it seems to be part of our national DNA. (The more I examine our system, the more I think we should simply go back to weregild, but maybe that’s the former medievalist in me.)

  3. JimEd

    We all watch the pendulum swing
    The blade on the bottom may sting
    Protection from time
    In proving the crime
    Makes it hard to do the condemning

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