NEW YORK'S RAPE STATUTE CHALLENGED AS 'ARCHAIC'

IN THE STATES

By Elizabeth Dwoskin - WeNews correspondent

(WOMENSENEWS)--After years of failed attempts, a bill that would dramatically provide criminal prosecutors additional years to charge rapists and offer additional rights to their victims was passed by the New York Assembly on May 15, following a similar bill passed in the Senate earlier this year.

One key provision in the Assembly version may help deplete the political momentum that has pushed the changes forward and prevent legislators in the two chambers from coming to terms and ushering the bill into law, although lawmakers said they expect those differences--relating to how long civil cases can be filed against alleged rapists--to ultimately be ironed out.

The bill would eliminate New York's five-year statute of limitations for prosecuting rape cases; only Utah, Florida and North Dakota have statutes of limitations that are shorter than New York's.

The case for repealing the statute was bolstered by a dramatic trial involving a 1973 crime that captured headlines throughout the state and nation; the length of the case drew attention to the difficulties prosecutors face in pursuing rape cases when investigations extend beyond the five-year time frame.

One summer night 33 years ago, Fletcher Worrell climbed into the window of the New York City apartment of then 26-year-old Kathleen Ham, put a bag over her head and raped her at knifepoint.

Thirty-two years later, in 2005, New York City Judge Bonnie G. Wittner sent Worrell to prison for the crime, handing down a sentence to run between 15 and one-third years and 46 years.

Technicality Kept Case Open

In some ways, Kathleen Ham was lucky. When Worrell tried to purchase a gun in Georgia in 2004, a background check revealed that there was still a warrant out for his arrest from Ham's case; because he skipped bail after his first trial resulted in a hung jury, the warrant was a technicality that kept her case open all those years despite the statute. His DNA was matched to DNA found on Ham's underpants, which were unexpectedly discovered wedged inside an old police file cabinet 31 years later.

That made it a highly exceptional case.

But Ham's case is exceptional for another, less obvious, reason. If similar circumstances of criminal apprehension and DNA matching were applied to hundreds of other rape cases in New York, the vast majority would never lead to a trial. They would be tossed out for exceeding the state's five-year statute of limitations on rape.

"After I won my case," Ham told Women's eNews, "I made it my life's mission to repeal the statute of limitations so that other women can have some kind of justice, as I had."

New York law categorizes rape in the first degree--which includes the most violent rapes and assaults--as a Class B felony, along with kidnapping and arson cases that do not result in physical injury. If prosecutors cannot indict someone within five years of a Class B felony, they must drop the case--even if the perpetrator is conclusively identified by DNA or other evidence.

The same statute does not apply to Class A felonies, which are considered more serious, and for this reason, face no limits on the time frame for which they can be prosecuted.

"When you look at some of the other Class A felonies--arson and kidnapping in the first degree, and some drug crimes--can you really say that they are more serious than sexual assault?" said Lisa Friel, senior prosecutor in the Manhattan district attorney's office. "Even today, there is still a distrust of the woman who gets on the witness stand and says, 'That man sexually assaulted me.' Sexual assault is still seen as different from other crimes."

Statute Considered Archaic

Nationwide, a trend to eliminate statutory limits on rape has been spurred by the introduction of DNA evidence. Sixteen states have either extended or repealed their limitations on rape prosecution in cases where there is DNA evidence; nine have eliminated them entirely. Critics of the New York statute consider it an archaic remnant from an earlier era.

The Manhattan district attorney's office has estimated that at least 700 Manhattan rape cases--all of them allegedly committed by strangers whose identities were later discovered because of their involvement in separate crimes--would be able to be prosecuted using DNA evidence if they were not time-barred by the 40-year-old statute.

"I think a double standard is a fair way of describing it," Robert M. Morgenthau, the Manhattan district attorney, told Women's eNews. "After murder, the crime that causes the most permanent damage to the victim is a rape. The statute tells the perpetrator after five years you can forget about it, even though the victim never can forget about it."

Until recently, however, legislators' interest in repealing the statute has been sluggish. New York State Senator Jeffrey Klein was one of the first to try to repeal the statute. He introduced a state assembly bill in 2001 that sat still for four years. "I do not want to name names," Klein said. "But in this state there is a school of thought that any criminal justice legislation which increases penalties is going to hurt minorities."

Advocates Energized Campaign

This past year, the New York City chapter of the National Organization for Women and the New York City Alliance Against Sexual Assault have both energized the campaign against the statute of limitations by holding events and lobbying lawmakers.

In February, a bill to repeal the statute in criminal cases passed unanimously in the New York Senate for the first time.

The recently approved Assembly version, sponsored by Democrat Amy Paulin, herself a victim of sexual assault, passed in a near unanimous vote.

In a key discrepancy with the Senate version, the Assembly bill eliminates the statute in both civil and criminal cases, introducing an added controversy over the length of time rape victims would be entitled to sue their assailants for damages.

Some opponents of the bill, such as the New York City-based New York State Association of Criminal Defense Lawyers, say repealing the statute of limitations will take away the state's incentive to prosecute cases in a timely fashion.

Klein's office and the National Organization for Women have called the Assembly's provision a "poison pill."

Knowing that the Assembly's version of the bill would be unpalatable to the Republican-dominated Senate--the Senate majority leader has made it clear that he will not support a repeal of the statute for civil cases--Klein and others felt it will ultimately amount to more delays in changing the statute and set the reform effort back.

Nonetheless, they see both bills as landmark first steps in a process that has taken far too long.

"In my 11 years in the legislature, this is the most momentum I've ever seen," said Klein.

Elizabeth Dwoskin is an editorial intern with Women's eNews and a freelance writer and radio producer based in New York City.

For more information:

"New York Permits Gender Violence Victims to Sue" http://www.womensenews.org/article.cfm/dyn/aid/388/

NOW-NYC Campaign to Eliminate the Statute of Limitations of Rape http://www.nownyc.org/urgeLegRape.htm

National District Attorney's Association: State by State Chart Statutes of Limitations for Rape - [Adobe PDF format]: - http://www.ndaa.org/pdf/sexual_assault_statutes.pdf

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