Anchors Aweigh & Fairness Away

By Jeffrey Page

The United States Navy in some respects still sails the oceans and seas in wooden schooners powered by beneficent winds filling their mainsails and jibs.

The Times ran a story over the weekend about a woman midshipman at the Naval Academy who has accused three members of the Navy football team of raping her after a party. In a hearing that could lead to formal courts martial of the men, the woman was asked a series of questions, the likes of which are not allowed in many state courts.

But this is the Navy, where questioning can be a judicial free-for-all and where rape victims often are victimized a second time – by the court. So, a defense lawyer’s question on how the victim shaped her mouth during oral sex was allowed, a question that could lead to many sexual assaults going unreported. But reported rapes in the military make for a shocking statistic. Quoting a Department of Defense survey, the Times noted there were approximately 26,000 rapes in the military last year, up 37 percent from 2010.

In the Naval Academy case, one of the defense lawyers was allowed to ask the woman if she had been wearing a bra when she was attacked, an outrageous question that manages to recall the grizzled old rape defense: “You saw what she was wearing; she was asking for it.” Was the attorney who asked about the woman’s underwear himself wearing boxers, briefs or nothing when he posed the question? He didn’t say.

Similarly he was permitted to ask her if she had described herself as a “ho” to a fourth man after having sex with him.

Another lawyer explained the question about oral sex by saying that her response could bear on the midshipman’s being a willing participant in the goings-on of the evening.

Questions like these – which were asked during 30 hours of cross examination – are responsible for the difference between the number of rapes that occur in a given year and the number of reported rapes in the same period.

Thanks to a politically active lawyer from Monticello who rose to become chief judge of the New York Court of Appeals, such questions are not allowed in civilian rape cases.

Lawrence H. Cooke, known as Larry to his friends or, when he was out of earshot, Cookie, had a long history as a defender of women’s rights in the courts, both as attorneys and judges, and as litigants. In an article about Cooke, The Historical Society of the New York Courts noted that he had told the magazine Good Housekeeping in 1974 that in matters of rape “women are outside the effective protection of the law and criminals know it.”

“Judge Cooke urged that the prosecution of rape cases be allowed to proceed without corroboration. That became the law and remains the law today,” the Historical Society said.

New York’s Rape Shield Law holds that, in most cases, a woman’s sexual history is not admissible in a rape trial. The exceptions include such narrowly defined situations as the victim’s prior sexual contact with the defendant.

Those Navy lawyers who asked about the rape victim’s mouth and whether she wore a bra wouldn’t have lasted a minute had they appeared before Lawrence Cooke.

He took women’s issues far more seriously than that. In 1980 he resigned from the University Club in Albany because it did not admit women, a club policy that later was changed. Later, when he was chief judge, he forbade judges and other court personnel from conducting official business with clubs whose membership rules excluded women.

At one point, Judge Cooke, who died in 2000, was admitted to the New York State Women’s Bar Association as an honorary member.

Plain old decency and fairness dictate that the Navy change its rules of evidence in rape cases. To reduce a rape trial to an off-color joke is an outrage against the people whom the Navy serves.

That would be all of us.


One Response to “Anchors Aweigh & Fairness Away”

  1. Jo Galante Cicale Says:

    Judge Cooke was a perfect gentleman and could stand as a role model for the Navy which remains an old boys club. great read, jeff and, as usual, right on the money.

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