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Oregon Rape Victim's Rights Clash with Rights of Accused Rapist
The Oregon Supreme Court, sitting en banc, has dismissed a rape victim's interlocutory appeal of a trial court's order allowing her accused rapist to review her Internet search history on her personal computer as part of his defense.
In 1999, voters amended the Oregon Constitution to grant certain rights to crime victims. Among the state's constitutionally-recognized victims' rights is "the right to refuse any interview, deposition or other discovery request by the criminal defendant," so long as the defendant's constitutional right "to discovery against the state" is not restricted. See: Article I, section 42, Oregon Constitution.
If a trial court enters an order denying a victim's constitutionally-protected rights, the victim may file an interlocutory appeal with the Oregon Supreme Court within seven days of the challenged order. That deadline may not be extended or waived.
In February 2011, board-licensed anesthesiologist and community college anatomy instructor Thomas Harry Bray, 38, met a 23-year-old woman on Match.com, a dating website. After drinks they went to Bray's home, where he allegedly choked, beat and raped her for several hours.
Bray was arrested two days later and charged with rape, strangulation and assault. He claimed the sex was consensual and that the woman had to Google the definition of "rape" before going to the police. Her uncertainty as to whether she had in fact been raped supported Bray's consent defense, according to his attorney, Stephen Houze.
The trial court denied Houze's request for the victim's computer hard drive. So he attempted to subpoena information from Google, including all of the victim's Google searches, the websites she visited and her emails between February 22, 2011 and March 31, 2011.
Citing the Electronic Communications Privacy Act, 18 U.S.C. § 2702(a)(2006), Google refused to produce the requested information without the victim's consent or a court order.
When the victim refused to consent, the trial court ordered the prosecutor to obtain her Internet searches from Google and provide copies of that information to Bray's attorney. The order did not require disclosure of the victim's emails.
The prosecutor resisted the court's order for several months. Then, on March 28, 2012, the state filed a claim on behalf of the victim, arguing that the court's discovery order violated her right to refuse discovery as set forth in Oregon's Constitution.
At an April 6, 2012 hearing, the trial court denied the victim's claim in a verbal ruling, finding the discovery order did not violate her constitutional rights.
An attorney representing the victim then filed an April 27, 2012 interlocutory appeal. On May 14, 2012 the trial court issued a written order enumerating the reasons for its April 6 ruling. Three days later the victim filed an amended notice of interlocutory appeal. The prosecutor and Attorney General both appeared in support of the victim's appeal to the Oregon Supreme Court.
Bray argued that the Supreme Court lacked jurisdiction to hear the case because the victim had failed to appeal within seven days of the trial court's April 6, 2012 verbal order, as required by ORS 147.537(8). The victim claimed that her appeal was timely because the court did not issue a written order until May 14.
On June 7, 2012 the Supreme Court agreed with Bray, finding that "the statute simply does not state what the victim contends, viz., that only a written order containing reasons triggers the deadline for filing a notice of interlocutory appeal."
The Court also rejected the Attorney General's argument that the "[trial] court's stated reasons were too abbreviated," and the prosecutor's argument that the April 6, 2012 verbal ruling did not trigger the filing deadline because the court did not serve the victim with a written order on that date.
"In short, the victim had seven days from the trial court's issuance of its order denying her requested relief on April 6, 2012," the Oregon Supreme Court wrote. "The victim did not file her notice of interlocutory appeal until April 27, 2012. The appeal was untimely. The timely filing of the notice of interlocutory appeal is 'jurisdictional and may not be waived.' ORS 147.537(11)(a). Accordingly, this appeal must be dismissed."
Chief Justice Paul DeMuniz filed a concurring opinion, calling on the Oregon legislature to amend the law. DeMuniz noted that the Supreme Court had considered four interlocutory victims' rights appeals since 1999, but "of those four, three suffered from fatal jurisdictional defects and had to be dismissed." He concluded, "When constitutional rights are too constrained by procedural limitations, they effectively may become valueless." See: State v. Bray, 352 Or 34, 279 P.3d 216 (Or. 2012) (en banc).
Crime victims were not happy that the dismissal of the interlocutory appeal in Bray's case allowed the trial court's intrusive discovery order to stand. The ruling was "hugely disturbing," said Meg Garvin, director of the National Crime Victim Law Institute.
Garvin feared the order may dissuade rape victims from reporting crimes if their attackers are subsequently allowed to invade their privacy by obtaining information from their personal computers. "It's subjecting them to revictimization by the system," she said. "It's the exact opposite of what we should be doing."
The prosecutor in Bray's case continued to resist the discovery order, claiming he could not legally comply. "We're talking about private electronic records – records that are protected by both the Oregon Constitution and the federal act, the Electronic Communications Privacy Act," said Deschutes County District Attorney Patrick Flaherty. He said the order was "an extreme problem."
Meanwhile, Bray faced another rape prosecution. His 21-year-old ex-girlfriend, one of his former students, claimed that he had raped her two weeks before he raped the 23-year-old victim.
Bray went to a bench trial in July 2012 and was convicted of six charges related to the 23-year-old victim he met on Match.com – including rape, strangulation, assault and sodomy. He was sentenced on September 28, 2012 to 25 years in prison and ordered to pay a $112,000 fine, including $50,000 that will go to the victim.
Ironically, the judge noted that Bray had Googled the term "rape kit" after his encounter with the victim but before he was notified that the police wanted to speak with him. He was acquitted of five charges involving the rape of his ex-girlfriend.
"Justice is done," said District Attorney Flaherty, after Bray was sentenced.
Sources: The Oregonian, www.ktvz.com
In 1999, voters amended the Oregon Constitution to grant certain rights to crime victims. Among the state's constitutionally-recognized victims' rights is "the right to refuse any interview, deposition or other discovery request by the criminal defendant," so long as the defendant's constitutional right "to discovery against the state" is not restricted. See: Article I, section 42, Oregon Constitution.
If a trial court enters an order denying a victim's constitutionally-protected rights, the victim may file an interlocutory appeal with the Oregon Supreme Court within seven days of the challenged order. That deadline may not be extended or waived.
In February 2011, board-licensed anesthesiologist and community college anatomy instructor Thomas Harry Bray, 38, met a 23-year-old woman on Match.com, a dating website. After drinks they went to Bray's home, where he allegedly choked, beat and raped her for several hours.
Bray was arrested two days later and charged with rape, strangulation and assault. He claimed the sex was consensual and that the woman had to Google the definition of "rape" before going to the police. Her uncertainty as to whether she had in fact been raped supported Bray's consent defense, according to his attorney, Stephen Houze.
The trial court denied Houze's request for the victim's computer hard drive. So he attempted to subpoena information from Google, including all of the victim's Google searches, the websites she visited and her emails between February 22, 2011 and March 31, 2011.
Citing the Electronic Communications Privacy Act, 18 U.S.C. § 2702(a)(2006), Google refused to produce the requested information without the victim's consent or a court order.
When the victim refused to consent, the trial court ordered the prosecutor to obtain her Internet searches from Google and provide copies of that information to Bray's attorney. The order did not require disclosure of the victim's emails.
The prosecutor resisted the court's order for several months. Then, on March 28, 2012, the state filed a claim on behalf of the victim, arguing that the court's discovery order violated her right to refuse discovery as set forth in Oregon's Constitution.
At an April 6, 2012 hearing, the trial court denied the victim's claim in a verbal ruling, finding the discovery order did not violate her constitutional rights.
An attorney representing the victim then filed an April 27, 2012 interlocutory appeal. On May 14, 2012 the trial court issued a written order enumerating the reasons for its April 6 ruling. Three days later the victim filed an amended notice of interlocutory appeal. The prosecutor and Attorney General both appeared in support of the victim's appeal to the Oregon Supreme Court.
Bray argued that the Supreme Court lacked jurisdiction to hear the case because the victim had failed to appeal within seven days of the trial court's April 6, 2012 verbal order, as required by ORS 147.537(8). The victim claimed that her appeal was timely because the court did not issue a written order until May 14.
On June 7, 2012 the Supreme Court agreed with Bray, finding that "the statute simply does not state what the victim contends, viz., that only a written order containing reasons triggers the deadline for filing a notice of interlocutory appeal."
The Court also rejected the Attorney General's argument that the "[trial] court's stated reasons were too abbreviated," and the prosecutor's argument that the April 6, 2012 verbal ruling did not trigger the filing deadline because the court did not serve the victim with a written order on that date.
"In short, the victim had seven days from the trial court's issuance of its order denying her requested relief on April 6, 2012," the Oregon Supreme Court wrote. "The victim did not file her notice of interlocutory appeal until April 27, 2012. The appeal was untimely. The timely filing of the notice of interlocutory appeal is 'jurisdictional and may not be waived.' ORS 147.537(11)(a). Accordingly, this appeal must be dismissed."
Chief Justice Paul DeMuniz filed a concurring opinion, calling on the Oregon legislature to amend the law. DeMuniz noted that the Supreme Court had considered four interlocutory victims' rights appeals since 1999, but "of those four, three suffered from fatal jurisdictional defects and had to be dismissed." He concluded, "When constitutional rights are too constrained by procedural limitations, they effectively may become valueless." See: State v. Bray, 352 Or 34, 279 P.3d 216 (Or. 2012) (en banc).
Crime victims were not happy that the dismissal of the interlocutory appeal in Bray's case allowed the trial court's intrusive discovery order to stand. The ruling was "hugely disturbing," said Meg Garvin, director of the National Crime Victim Law Institute.
Garvin feared the order may dissuade rape victims from reporting crimes if their attackers are subsequently allowed to invade their privacy by obtaining information from their personal computers. "It's subjecting them to revictimization by the system," she said. "It's the exact opposite of what we should be doing."
The prosecutor in Bray's case continued to resist the discovery order, claiming he could not legally comply. "We're talking about private electronic records – records that are protected by both the Oregon Constitution and the federal act, the Electronic Communications Privacy Act," said Deschutes County District Attorney Patrick Flaherty. He said the order was "an extreme problem."
Meanwhile, Bray faced another rape prosecution. His 21-year-old ex-girlfriend, one of his former students, claimed that he had raped her two weeks before he raped the 23-year-old victim.
Bray went to a bench trial in July 2012 and was convicted of six charges related to the 23-year-old victim he met on Match.com – including rape, strangulation, assault and sodomy. He was sentenced on September 28, 2012 to 25 years in prison and ordered to pay a $112,000 fine, including $50,000 that will go to the victim.
Ironically, the judge noted that Bray had Googled the term "rape kit" after his encounter with the victim but before he was notified that the police wanted to speak with him. He was acquitted of five charges involving the rape of his ex-girlfriend.
"Justice is done," said District Attorney Flaherty, after Bray was sentenced.
Sources: The Oregonian, www.ktvz.com
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Related legal case
State v. Bray
| Year | 2012 |
|---|---|
| Cite | 352 Or 34, 279 P.3d 216 (Or. 2012) (en banc) |
| Level | State Supreme Court |