Valena Beety is an attorney and a board member of Students Active for Ending Rape (SAFER), an organization that works to empower students and hold colleges accountable for sexual assault in on- and off-campus communities.
Melanie Ross thought Daniel Day, her college classmate, was fun and a decent date - until they were having sex and she told him he was hurting her. She asked him to stop - and he didn’t. After that, Ross broke up with Day, and avoided him.
Unfortunately, because of events a month later, Ross is now suing Day for civil sexual battery.
Her lawsuit against Day is now on appeal to the Georgia Supreme Court, in part because of the victim-blaming actions of the trial court judge. Judge Phillip Brown, despite a Georgia rape shield law, compelled Ross to disclose every person she had ever dated, or engaged in any sexual activity with, including their names, dates of interaction, and contact information. This evidence was supposedly to show “consent;� the actual purpose was to humiliate the victim and discourage her and other victims from pursuing these cases. Under Georgia state law, and federal law, a victim’s sexual history with third parties is supposed to be irrelevant. The result of this case is that any victim who brings a civil claim for sexual battery in Georgia must be prepared to discuss all of her previous sexual partners. The judge ultimately found Ross was not raped in part because, as all that testimony showed, she was not a virgin.
The trial court judge not only dismissed Ross’ claims - he ordered her to pay $150,000 for the court costs of her attacker. The judge found there was no evidence to support her claims of rape, in large part because Ross did not remember anything from the encounter: “There’s no witnesses in there. There was no evidence. It’s a closed door. And there’s no possibility that there could be any proof that there was rape...�
This was after the judge had dismissed the evidence: Ross could have received lacerations and redness documented in a rape kit from shaving, and “[b]ruises can come with a bump into furniture or from other causes.� As far as the claim that Day gave Ross a rape drug, defense counsel responded, “neither Day, nor anyone else for that matter, would have to use any type of drug to convince Plaintiff to participate in sexual conduct.�
The judge found that since Ross and Day had previously had a sexual relationship, Ross should have known her claims were “frivolous... there was no reasonable belief that a court would accept Plaintiff’s claims...�
The nightmare of this case, for Melanie Ross and for all future rape victims in Georgia, is that she was forced to discuss in elaborate detail her sexual past, and then she had her claims dismissed in part because she wasn’t a virgin. Moreover, not only did Ross lose her case, the judge fined her $150,000 for bringing it in the first place - a fee sure to dissuade other victims from coming forward with their own claims. This case is currently being appealed to the Supreme Court of Georgia, which can choose to hear it or not - let’s hope they right this wrong before it hurts more victims.
NOTE: As noted by some of the comments in response to my posting on a Georgia state court case, I want to confirm that Daniel Day was charged with sexual battery, a civil charge, rather than criminal rape. Day was not charged with criminal rape, and has furthermore not been found guilty of civil sexual battery.
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Outrageous.
Yikes, that's disgusting. I don't know how on earth the judge could have been allowed to treat the plaintiff like this, but I really hope he's punished for it. Here's hoping the case is overturned, and Ms. Ross gets the justice she deserves.
Wow, this literally makes me sick to my stomach.
So basically since she once consented to have sex with this asshole, it's impossible for her to ever not want to have sex with him again?!?! And then the defense is saying "Why would my client need to drug her to have sex with her? Look at her past, she's clearly a slut that'll sleep with anyone!"
Horrible, horrible, horrible.
And she gets fined $150,000!!
This is horrific. As a young woman who lives in the state of Georgia, I now am confident that not reporting either of my rapes was the wise choice seeing as *I* could have been fined. Melanie Ross is so brave and I hope she makes it through this and the bastard who raped her gets brought to justice.
Ditto on the feeling physically sick. He's pretty much spelled out what most people won't admit they think though! I particularly like this:
horrifying.
wow I hope this turns out.
Wow. There's not much more that I can add to this, because the horrific nature of the situation speaks for itself. But....my god.
I just assumed that MOST people thought that rape was one of the WORST crimes you could possibly commit. I can't believe that there are still people who think that any non-married, non-virginal woman had to have been "asking for it". And that some of these people maintain the law!! I was always taught that agreeing to sex once doesn't mean you ever have to ever again and that agreeing to sex doesn't mean that you can't stop in the middle. Was my education that much better than this judge's?
I wish I could send this girl a letter to let her know how much I feel for her. I also wish I could donate to her legal fees.
Are judges subject to recall in Georgia? Here in Missouri, they are, although it basically never happens. Just once, I'd like to see someone campaign to have a judge removed based on incompetence, and this seems like a perfect example.
Appalling. Though I must say, having lived in Georgia for 5 years, I'm not all that surprised.
This is horrifying. Is there anything she can do?
"Daniel Day, the son of state Rep. Burke Day, whose family founded the Days Inn hotel chain."
Now it makes sense. He's part of the good ol' boy network, so clearly he's above the law.
Wanted to echo Danyell - is there someone who is collecting donations for this girl? I'm so appalled I don't even know what to say...
Ah-ha... the accused is the son of state Rep. Burke Day. Methinks that this is a significant mitigating factor in the legal proceedings. If you're rich and/or powerful you can get away with virtually anything, up to and including murder.
It's really hard for me to think of a scarier position to be in than being a rape victim in America....
My conscience bleeds...
“Under Georgia state law, and federal law, a victim’s sexual history with third parties is supposed to be irrelevant. The result of this case is that any victim who brings a civil claim for sexual battery in Georgia must be prepared to discuss all of her previous sexual partners.�
Just to clarify, I believe that rape shield laws do not apply to civil cases in Georgia courts. Your conclusion (how accusers are affected) is probably correct, however, either way.
As an attorney, I have quite a few questions.
First, why is this a civil case and not a criminal one??? Where is the District Attorney?
Second, Georgia law says that the rape shield law only applies in CRIMINAL prosecutions and not in civil claims. Therefore, what the judge did is (unfortunately) within the rules.
Third, on what basis is the judge awarding attorney's fees? There is absolutely no basis to do that unless authorized by a contract between the parties or unless a statute allows such (pretty sure there is no such rule in GA).
Fourth, how the F*CK did her attorneys blow off the appeal date? If this case isn't heard by the Supreme Court of Georgia because her attorneys missed a deadline, I am going to be FURIOUS.
Fifth, it's not hard to make a serious adversarial complaint against this judge. Send your letter of complaint, condemning Judge Phillip Brown's actions to:
State Bar of Georgia
800 The Hurt Building
50 Hurt Plaza
Atlanta, GA 30303-2934
This is pretty horrifying.
"First, why is this a civil case and not a criminal one??? Where is the District Attorney?"
From what I've gathered so far, the grand jury threw out the criminal case.
I am not sure about the grand jury, actually. The source was not reliable (a comment on another blog). I have not been able to confirm it officially (because it did not happen? because of rape shield laws? I don't know).
"The judge found there was no evidence to support her claims of rape, in large part because Ross did not remember anything from the encounter."
This is a major problem for the case, in an 'innocent until proven guilty' situation...
If anybody finds out a way to send her money to mitigate the fine, please, please, please post it here. This post makes me lose my faith in humanity.
"Innocent until proven guilty" and "beyond a reasonable doubt" standards to not apply in civil cases. If the rapist was on trial for his own freedom, that would need to apply.
In this case, a civil one, where the victim is suing her assailant for monetary damages....she needs only prove that "it is more probably true than not true" that he assaulted her.
In other words, the jury should get to hear her story and THEN decide if it is credible. It shouldn't be up to the judge to do all this probing and then say "meh, you're a slut so no could rape you."
Ah-ha... the accused is the son of state Rep. Burke Day. Methinks that this is a significant mitigating factor in the legal proceedings. If you're rich and/or powerful you can get away with virtually anything, up to and including murder.
rtred - Especially when the accuser can't even remember a crime.
For those looking for more information, I've put a longer version of the story up on SAFER's website. http://safercampus.org/blog/?p=440
I don't know for sure yet about how you can donate for Ross's fine, I'll update you if I hear anything definite.
From Ross's lawyer:
We can do it by putting the money into our trust account for her. Please have them making it out to Barrett & Farahany, LLP and put on the memo that it is for the Melanie Ross Legal Fund, and send it to our office address below.
Thank you all so much. Melanie will be in tears to hear this.
Amanda A. Farahany
Barrett & Farahany, LLP
1401 Peachtree Street, Suite 101
Atlanta, GA 30309
(404) 214-0120
If you have any questions or concerns, please follow up with Barrett & Farahany.
Why didn't the judge just say what he was [I]really[/I] thinking?
"The court finds that the dirty slut was asking for it."
What a fucking piece of shit.
What's worse is that for every asshole judge, cop or DA like this that actually gets reported, you can bet there are another hundred of the woman-hating slut-shaming little cockroaches working away, unbeknownst to anyone but the unfortunate rape victims who fall under their purview.
Sorry for the harsh language. Time to punch a wall.
Oh. My. God.
Check out the rape excuses on this thread.
Apparently, Daniel Day is son of the Ga. State Rep. Burke Day, whose family founded the Days Inn hotel chain. Meaning, of course, that he is saintly and good and she is a gold-digging whore.
Daniel himself says:
What a moron. Shitbags like him and his supporters make me seriously consider some vigilante justice.
I didn't see him say ANYWHERE in there that he didn't force her to have sex against her will- just that she was his girlfriend, so I guess that makes it ok? I'm nearly foaming at the mouth, here.
"So basically since she once consented to have sex with this asshole, it's impossible for her to ever not want to have sex with him again?!?!"
It's more like "since she once consented to have sex with someone, it's impossible for her to ever not want to have sex." o_O
"If you're rich and/or powerful you can get away with virtually anything, up to and including murder."
*This* reminds me of the article "Hot-blooded blueblood jailed for assault" by Laura Crimaldi, Boston Herald, May 4, 2008, http://bostonherald.com/news/regional/general/view.bg?articleid=1091578
So it's open season on non-virgins in Georgia? That's pretty much what this ruling means.
I saw that thread earlier. There is no reason to believe it is actually Daniel Day. If it is, Jen, he is probably deliberately withholding his full story from the general public until after the appeal (assuming he is listening to a competent lawyer).
The federal rape shield (applies to federal cases).
Fed R. Evid. 412
---------------------
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible.--The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual predisposition.
(b) Exceptions.--
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.--
(1) A party intending to offer evidence under subdivision (b) must--
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
------------------------
(I am not a lawyer and this is not legal advice.)
Here is some interesting reading about the civil suit Ms. Ross brought against the university she and the defendant were attending when the rape was alleged to occur.
http://www.websupp.org/data/MDGA/5:05-cv-00013-78-MDGA.pdf
I want to tell everyone I know not to stay at Days Inn...
So, rule #999 women have to follow to either not be raped or not be blamed for false reporting: Don't date men with more money than you. Got it. *rolls eyes*
This is absurd. Every single person needs to be taught the truth about rape. Apparently judges too.
OK, I officially hate society now. Private jackassery is devastating enough, but institutionalized victim blaming? Now I'm really depressed.
Oh, and my advice is to be careful about reading that thread that Jen posted, because if cases like this haven't already destroyed your faith in humanity, reading those comments certainly will.
An excerpt from the first (and only) one I read:
I just don't understand how these people even exist.
notalawyer - This case is not in federal court.
I am so enraged by this it's taking all I have to not fly to Georgia and punch this stupid, sexist, piece of crap judge in the face.
Even more so, I hate how all these privileged shitheads can go around raping people because they have tons of money/power. Remember the Hadle case in Orange County? At least they finally jailed those assholes...
I can only hope that the Superior court amends this and that people write in to the Georgia State Bar and get this ignorant scum disbarred.
I am so enraged by this it's taking all I have to not fly to Georgia and punch this stupid, sexist, piece of crap judge in the face.
Even more so, I hate how all these privileged shitheads can go around raping people because they have tons of money/power. Remember the Hadle case in Orange County? At least they finally jailed those assholes...
I can only hope that the Superior court amends this and that people write in to the Georgia State Bar and get this ignorant scum disbarred.
"I just don't understand how these people even exist."
Me either.
I have had plenty of relationships with plenty of women, many of which unfortunately ended badly... (sometimes my fault, I am not exactly a saint...) anyway, according to the right-wing talking point of "false rape accusations," I should have racked up a hat trick of false rape charges by so-called "sluts" by now.
The false-rape-charging-slut urban myth is as every bit an indispensible part of the right-wing vocabulary as the welfare-queen-slut myth and the sluts-deserve-cervical-cancer belief. (hmm... common thread, maybe?)
I notice that not only does he not say that he had sex with her without her consent, he goes out of her way to point out that he thinks she is stupid.
I am not too surprised that he was not convicted; it did come down to he said/she said. (Well it did if you really make a stretch.) But the fine! And his defense is that he doesn't remember!
No she should not pay that fine; it shouldn't be paid at all.
Also, his "poor me" attitude about being an alleged rapist is gross, but it gives me a great idea; I hope the women at the school will wear shirts, hand out flyers, whatever, with his picture on it, and the words "alleged rapist," until he leaves that school. They might also want to flood the courts with "alleged judge" material as well.
A couple notes:
1. "Innocent until proven guilty", though differently phrased, does apply in civil cases. The plaintiff is required to prove the allegations contained in the complaint "by a preponderance of the evidence" (more likely than not) in most civil cases, though some situations are subject to the higher "clear and convincing evidence" standard.
2. Just because the rape shield laws only apply to criminal cases does not mean that the general evidentiary rules concerning relevance are out the window. All rape shield laws do is create a bright-line per se
Here, the question the judge had to resolve was essentially:
Is prior sexual conduct relevant when a) it took place in a relationship that ended prior to the alleged assault, b) it involves persons not parties to the case, and c) in the presence of evidence of force and possible drugging?
In just about any other situation (say, a robbery), no one would even think of suggesting that prior, unconnected conduct on the part of the victim is relevant. Unfortunately, in rape cases, we have a tradition of starting the analysis by finding fault with the victim, which is what necessitated rape shield laws in the first place.
Since we're on the subject of intrusive enquiries into the sexual history of rape victims, am I the only one who sees the sheer level of animus displayed by the judge and wonders what he's got in his sexual history?
I forgot to close an italics tag, so part of my last comment didn't show up. Here's how it should read:
All rape shield laws do is create a bright-line per se. rule saying that certain things are by definition irrelevant. Even where a rape shield law does not apply, evidence is only admissible if it is relevant, i.e., tending to make more or less probable some fact at issue in the case.
" ... defense counsel responded, 'neither Day, nor anyone else for that matter, would have to use any type of drug to convince Plaintiff to participate in sexual conduct.'"
omg. I know someone commented on this already, but this is f'n outrageous, playing on the whore stereotype (sexual women's bodies might as well be public property!), and the idea that women are made dirty or sullied the more sex they've had, valuing the "purer" female body over the experienced one. This was the goddamn logic behind rape law as an affront to the woman's father or husband - BECAUSE SHE WAS EVERYONE'S FUCKING PROPERTY EXCEPT HER OWN.
Why are asshole judges making these dumbass 19th-century rulings. And is it just coincidental, or does it seem like it's always old man prick JUDGES pulling this shit.
Since we're on the subject of intrusive enquiries into the sexual history of rape victims, am I the only one who sees the sheer level of animus displayed by the judge and wonders what he's got in his sexual history?
Totally agree, Elise. Totally agree.
It also occurs to me that, though people have already suggested contacting the state Bar on the conduct of the judge, that the same might be worthwhile in the case of the defence counsel.
Judging from the description here, it's possible that he may also have run afoul of a few of the disciplinary rules, though I don't know what the Georgia DRs look like. Usually there is a rule prohibiting conduct for the purpose of harassment or delay in litigation.
I see no reason why the defence attorney shouldn't get a little agita out of this sordid business.
" Not long after, in January 2003, Ross said, she encountered him at a party.
Ross said she awoke the next morning with injuries a doctor associated with a sexual attack, and after local authorities took no action, she filed a sexual battery lawsuit."
So, she broke up with a man, ran into him at a party a month later and had rape-like injuries the next morning but no recollection of being raped. Since she had broken up with him a month previously, they could have checked for sperm or DNA which can linger for several days after a rape, but apparently they didn't find anything if they did.
She may indeed have been raped, but without any recollection of the rape or any physical evidence pertaining to the identity of her attacker, on what basis was she accusing her ex-boyfriend? Not liking someone isn't a good enough reason to accuse them of rape when you have no memory or physical evidence to back you up. This isn't a case of her word against his, it was her wild speculation against his word.
The procedure of forcing her to testify about her past relationships is concerning and some of the language in the decision is disgusting, but I can't fault the verdict. It was a pretty clear-cut case of wrongful prosecution. In fact, she'll probably wind up being sued herself over this for more than just her ex-boyfriend's legal fees.
Anything that makes women afraid to prosecute a valid rape case is a bad thing in my book. Getting outraged over this particular farce might actually scare women with valid cases, so we really should make at least some effort to distinguish between valid rape cases and cases like this one.
This isn't a case of her word against his, it was her wild speculation against his word.
Her word and photographically documented physical injuries following the incident.
DNA doesn't seem to have been an issue. If he wanted to make the case that it wasn't him, they wouldn't have spent so much time trying to establish "consent".
So, it seems more accurate to say that the case was based on a woman discovering documented injuries associated with a sexual attack after having a blackout that could reasonably be attributed to various date-rape drugs, after having encountered a man she broke up with after he had previously raped her (refusal to withdraw after being told to stop because he was hurting her).
What you're saying essentially amounts to an argument for giving blanket impunity to rapists who have the foresight to stock up on rohypnol and midazolam.
Another thing that annoys the hell out of me:
Since when does "her word against his" make a case frivolous? The standard for declaring an action frivolous is quite high: though the exact language varies from state to state, a suit generally can't even have arguable merit if it's to be declared frivolous.
"Her word against his" means there is a genuine issue of material fact, i.e., an issue for trial. "Her word against his" is only the end of the case if his word somehow trumps hers ab initio.
entropy, try again.
Now, first of all, that’s what a rape kit helps to establish, but the judge had already dismissed the rape kit. Second of all, there was testimony from the plaintiff’s friend that she saw the defendant give the plaintiff a drink, that the defendant then dragged the plaintiff with him into his fraternity, and that the defendant hung up the phone while the plaintiff was speaking with her friend, asking where she was. So actually, there was a witness to some suspicious behavior.
From the link you didn't read above: http://safercampus.org/blog/?p=440
And in administering the rape kit, as Elise said, they weren't looking for evidence that Day was the one who did it, his entire defense in court was that even if it happened, it was consensual sex. He all but stipulated that it had.
Her having no memory of the incident obviously makes her case harder to prove, but to treat it like, as the judge said, "a closed door," just can't work. To rephrase what Elise said, the precedent incentivizes the use of rape drugs. No, the black out isn't proof positive she was given a rape drug, but it's a damned good reason to be suspicious. While rohypnol should've showed up in the rape kit, GHB among others wouldn't have.
Her having no memory of the incident obviously makes her case harder to prove
It's worth noting that rape drug cases make it into criminal court, with the attendant (MUCH) higher burden of proof.
In civil court, all you need is "more likely than not," and there's more than enough evidence here for a reasonable person to see a greater than 50/50 probability of the allegations being true.
Also: If there were any way of claiming Day didn't do it, his lawyer almost certainly would have jumped at it.
Slut shaming can certainly be an effective defence if you've got a receptive audience (and Day hit the jackpot there), but a plausible "SODDI" (some other dude did it defence) is a much more solid defence if you can provide a decent alibi or some other plausible basis for it.
"She's mistaking me for someone else" is simply much better when it comes to maintaining the goodwill of the trier of fact. It allows for a much more sympathetic cross examination of the victim ("Are you really sure that's the guy who did it?" generally has less potential for making the asker look like an asshole than "Here's your high school yearbook. How about you point out the ones you DIDN'T fuck."), and an explanation that doesn't get into victim blaming, which, thankfully, has a real potential for backfiring.
There's no reason to go on a rampage through a woman's sexual history if you can simply impugn her visual acuity or her memory.
If there were even the slightest chance that Day didn't do it, you can bet his lawyer would have gone that route.
Allega, sadly it is not just older male judges - the case where a prostitute being raped is just "theft of services" had a woman judge.
I really don't understand this ruling.
I can actually understand that she wouldn't ultimately win--it's very hard to win rape cases in general, and even more difficult when the parties had a prior sexual relationship. (obviously it HAPPENS, but it's much harder to PROVE.*)
But this? Makes no sense.
The courts are designed to be the finders of fact. They are designed to allow people who have a good faith belief that they have a case, to come before a judge and let the judge decide.
That's why the standards for bringing a case are relatively low. That's why the standards for surviving a motion for summary judgment, or judgment on the pleadings, are so biased against the movant.
Deciding cases are what courts are for. Bringing a non-frivolous case should not expose one to liability, generally speaking.
this judge is a fool. (but speculating about the judge's sexual history is probably still not cool, just like it's not cool for anyone else.)
*Given the facts of this case, I am really not at all surprised that she didn't win. That does not mean I think he's innocent; I don't.
Unbeleivable! The moron judge should think about the implications of his judgement. Since people like him are selfish in nature, he most likely associated with the accused and gave him bonus money because that's what he'd like to happen to him if some young, pretty gal he took advantage of one night got the authorities involved. But he should think about how his ruling would affect his wife, sisters, and daughters... Would he be OK with his ruling if his daughter was the one raped?
Disgusting. I won't be able to stay at a Days Inn again.
"So basically since she once consented to have sex with this asshole, it's impossible for her to ever not want to have sex with him again?!?!"
Not even that! The fact that she consented to sex with *any* dude makes it impossible to turn down *any* guy after that!
This really made me want to cry. If the Georgia supreme court actually upholds this rapist sympathizing judge's decision, then someone should start a fund for the survivor to pay for that FUCKED UP fine.
wow. this made me sob uncontrollably. please keep us updated on this. a lot of commentators have researched this and thank you guys for doing this. i'm a bit scared to do this yet, after hearing about some of the comments there. i need to watch a disney movie and hug my cat for a couple hours. but i need to know more about this case and how to help.
It is not at all clear that this is a case worthy of everyone's outrage. The initial essay is very poor reporting and the SAFER report is only a little better. I couldn't find a link to the judge's opinion; it may not be published and may only be in transcript form. SAFER got its documents from Ross' lawyer but made no attempt to get comment from Day's lawyer.
The initial essay confuses criminal cases with civil cases, as others have pointed out. The rape shield laws only apply to criminal cases. It is not clear from these essays whether the prior sexual history disclosures were in open court or only in the pretrial discovery phase. Standards of relevancy certainly apply to evidence in a civil trial but irrelevancy does not preclude asking questions in the pretrial discovery phase, since the standard is information which may lead to the discovery of admissible evidence.
A "fine" connotes a penalty paid to the state for an offense. What occurred here was the imposition of costs and attorney fees to be paid to the defendant's lawyers for the bringing of a frivolous case. Such a finding is pretty extraordinary. Maybe it was unfounded and a result of the judge's prejudices, but I can't tell from what is written here, the links or what I could find in a half hour google search.
One of the stories said Ross' lawyer may have missed a filing date for the appeal. That suggests poor lawyering. More suggestion of poor lawyering comes from the link provided above by LogrusZed at 7:15 p.m. yesterday. In Ross' case against Mercer, her lawyer (same as in the Day case) missed a deadline for filing a motion to reconsider for newly discovered evidence by over two weeks. The first paragraph of the federal judge's order has unusual criticism for the lawyer:
In a footnote of the order the federal judge says this about the lawyer:
I'll try reading some more about the case. But based on what I've read so far I'm skeptical that this dismissal is a case of horrible injustice.
Thank you to the anonymous lawyer for the info to write to the Georgia State Bar about this judge and his prejudice. I will make it a point to do so and hope that so will all others here.
Also, thank you to Nora for posting info on the trust fund. I will be sending a check, to be sure.
thanks, sixties liberal. it really does look like there was some shit lawyering going on here that was the cause for the dismissal. of course, that doesn't mean i don't still feel terrible for the victim here--she's now stuck with paying day's attorney fees through no fault of her own, and i'm pretty outraged at the defense counsel's statement "neither Day, nor anyone else for that matter, would have to use any type of drug to convince Plaintiff to participate in sexual conduct." zealous advocacy is one thing, but that's completely out of line.
...yeesh. I find it hard to believe anyone could be so stupid.
Especially because of the tortured logic before. A person has had consensual sex with someone before, so she is therefore *more* likely to "cry rape" (and I so hate that phrase)? I would think that if she later accused that person of raping her on a later occasion, the fact that she had consented in the past would give her claims *more* weight. Using their own logic, if she found him good enough to sleep with once, why not again? And the answer is: she didn't want to this time. You fucking morons.
FYI...Daniel is the son of a Republican (go figure) state rep...
http://www.legis.state.ga.us/legis/2007_08/house/bios/dayBurke/dayBurkeBio.htm
FYI...Daniel is the son of a Republican (go figure) state rep...
http://www.legis.state.ga.us/legis/2007_08/house/bios/dayBurke/dayBurkeBio.htm
Standards of relevancy certainly apply to evidence in a civil trial but irrelevancy does not preclude asking questions in the pretrial discovery phase, since the standard is information which may lead to the discovery of admissible evidence.
True, but two things:
1. Defence counsel's comment about her not needing any drugs in order to consent with anyone, or some such, seems to have been made in open court.
2. While there is generally a LOT of leeway in discovery, there are also generally limitations where the purpose of the discovery requests is to harrass or cause delay. Second of all, regardless of what the discovery phase turns up, the judge must base his ruling only on the admissible evidence.
Thank you all of you so eager to defend Day. Don't you see that all of society, including the University and the judicial system, is already set up to defend him? Whether or not Day is innocent, whether or not Ross's attorney sucked, whether or not you like the reporting in the articles, the comments made by the judge and the defense attorneys are UNACCEPTABLE. In any case, under any circumstance, no matter what.
Also, fining a rape victim a large chunk of change for not having a sufficiently strong case will act as a deterrent for other women who may want to prosecute their rapists. Also unacceptable no matter what.
OK? So YES, outrage is the appropriate response for this appalling situation.
�Thank you all of you so eager to defend Day. Don't you see that all of society, including the University and the judicial system, is already set up to defend him?� - idyllicmollusk
So because the judicial system uses a standard of innocent until proven guilty, and much of society agrees with this practice, it is our responsibility to attack him despite our aperant lack of knowledge of the case?
“Whether or not Day is innocent, whether or not Ross's attorney sucked, whether or not you like the reporting in the articles, the comments made by the judge and the defense attorneys are UNACCEPTABLE. In any case, under any circumstance, no matter what.� - idyllicmollusk
You might have a point about the judge (although I would like to see the full decision in context before saying so), but the defense attorneys are not there to promote justice. They are there to fight for their client. It is incumbent on them to do so anyway they can, so long as they do not break any rules.
“Also, fining a rape victim a large chunk of change for not having a sufficiently strong case will act as a deterrent for other women who may want to prosecute their rapists. Also unacceptable no matter what.� - idyllicmollusk
Of course, we do not know that she is a rape victim. We do not know enough about the case to judge if it was frivolous, either.
I'm not defending Day and I didn't see anyone else defending him either. The defense lawyer comment is terrible and I do accept that as something from the transcript, but we really have scant information on what the judge actually said, much less what the evidence was. The judge is criticized for throwing out the SANE exam report, but no one says why he did. Maybe Ross' lawyer didn't properly authenticate it. I went onto the SAFER site and asked them to post or link to a transcript of the judges rulings. It would be nice to see just what he said, instead of ax grinders' characterizations of what he said.
The sanction of paying the other side's costs and attorney fees was not "for not having a sufficiently strong case" but for filing a frivolous case. It is not even clear from the reports I could find whether the sanction was against Ross alone or jointly with her lawyers (though I suspect that if the lawyers were on the line for it they would have met their deadlines).
According to the Georgia Court of Appeals website, both sides filed briefs. The reported deadline missed was for the next level, the Georgia Supreme Court, which implies at least one appellate judge looked as the substance of the case and affirmed the trial court. I don't know if applications for appeals in Georgia are seen by more than one judge (in my state it is three).
Be outraged all you want, but recognize that there is little factual basis available for that outrage.
I was still trying to find more information on this case and again came upon the site that Jen at 6:15 pm yesterday linked. Jen quoted a long post by Day himself.
Now the comment string goes to 125 comments and some are very interesting. Day has a few more comments, Faranahy has one and some Day supporters (including his current girlfriend) have some, including specific factual references to Ross' deposition testimony.
Here's the link: http://www.topix.com/county/bibb-ga/2008/04/woman-appeals-sexual-assault-case
We do not know enough about the case to judge if it was frivolous, either.
Yes, we actually do. The standard for declaring an action frivolous is extremely high. Generally there has to be proof that the allegations, even if proven true, would not state a claim on which relief could be granted AND could not have been thought to do so by a reasonably competent attorney, OR the factual allegations have to be so obviously false that a reasonably prudent attorney would not have filed the action in the first place.
In any case, a case can hardly be considered frivolous if the factual allegations state a claim (i.e., if proven true, they would state a cause of action and entitle the plaintiff to some relief), and there is a colourable fact issue for a jury to decide.
In this case, the only way you could call it frivolous is if you are just hostile to the type of claim being filed in the first place.
That comment comes across as patronizing. With the information we have at hand at this time, we see there are indeed grave problems with this trial, regardless of who is or is not guilty of what.
It is fine if you or others choose to view the case in the light most favorable to the accused, but don't pretend that is a neutral stance, and I won't pretend mine (viewing the case in the light most favorable to the victim) is.
Out of solidarity with the women who try to come forward about sexual crimes committed against them, only to be called liars, sluts and worse, I will presume a woman to be survivor of such a crime based on her word. The entire system is set up to silence women reporting these crimes, but the majority of women who report rape are not lying.
This is not the same as automatically labeling the accused guilty. I don't want to be part of the problem. When I see that men are getting falsely jailed for rape they didn't commit more often then women get silenced for real rapes that really happened, I will adjust my views.
It is clear from the information we have that this case was not frivolous, making this even more problematic.
Except for a thing called Institutionalized Oppression, which affects our great American institutions (like the judiciary) creating disparate outcomes based on your race/sex/etc. There is also no reason to rush to Day's defense at this point, unless you are inclined to assume women lie when they report rape.
I'm sorry, but "I'm a raging sexist bigot!" doesn't qualify as a brilliant defense. I take that back-- it seems to work great in Georgia.
It's also worth noting that, at the dismissal stage, the case is not looked at in the light most favourable to the defendant. On a motion to dismiss, all of the factual allegations have to be construed in the light most favourable to the plaintiff.
At trial, the burden is on the plaintiff to make her case, but on a motion to dismiss, the court has to assume that everything she alleged is true.
Elise - We don't have both sides of the story. For all we know, the factual allegations were so obviously false that a reasonably prudent attorney would not have filed the action in the first place. I am not saying they were, just that we do not have the same access to the case as the judge.
The available documents from the case can be found at www.barrettandfarahany.com/sub/sexual-assault-civil-case.jsp, on Ross’s law firm’s website.
There was no published decision for the original trial.
noname,
If that /were/ the case, then why is what we're hearing about why the case was dismissed, from the defendent/judge/whomever, mainly sexist bigotry as opposed to logic based in fact?
Thanks Nora for the links to the documents linked on Attorney Farahany's website. While they don't give a complete picture of the facts of the case, a better picture emerges than any other reports.
The briefs and decision on the summary judgment were not posted. A transcript of the the hearing on attorney fees was posted as well as the briefs of both sides to the Ga. Court of Appeals.
Summary judgment was apparently granted on motion snd after a hearing. The case became ripe for such a motion after all discovery was completed. It is true, as Elise pointed out, that all inferences from the evidence at that stage should be seen in the light most favorable to the non-moving party (Ross here). All evidence that could support Ross' suit should have been, and presumably was, presented to the court.
The allegation was anal rape, but Ross claimed she had no recollection from a point earlier in the evening at a bar. Day admitted there was vaginal intercourse, claimed it was consensual and denied anal intercourse. The SANE exam, to the extent there was one, was not thrown out or disregarded by the judge, but to the extent it was discussed seemed inconclusive (a dime-sized bruise on her back and a 1/2 centimeter laceration around her anus).
It's not a case of disbelieving the woman's claim of rape. She didn't and doesn't know, since she has no recollection of it. There was no evidence anyone gave her any "rape drug" drink, except that Day in the past had used drugs including Ecstacy (sp?).
There is nothing in the posted material that supports the claim that the judge decided Ross wasn't raped because she wasn't a virgin. Farahany cited a prior Georgia case where a victim did not remember the assault and summary judgment was denied. From the transcript posted the reason Ross' trial judge distinguished the prior case from hers was that the prior case had two witnesses who might have testimony, not yet part of the record, supporting the victim's case. Therefore summary judgment was denied and the appeal it was not error to deny it. In Ross' case there was no other witness who could make her case despite her lack of memory.
Good lawyering probably could not have saved this case from dismissal, but in addition to the federal court judge's criticisms of Farahany, there is an unchallenged statement in Defendant's brief that she did not appear at the hearing on summary judgment and the court had to call her to get her side by telephone. Farahany's oral argument at the cost hearing seemed competent as did her brief to the Court of Appeals. Her motion to reconsider the denial of the appeal, though, was polemical and unprofessional, IMO.
One of Farahany's briefs stated the award was made against Ross and her firm. If so, Farahany may have to pay it all.
The issue of Ross' prior sexual history didn't play much part. Discovery was permitted on it, but a protective order was entered precluding any disclosure beyond the case. Only her history with Day was considered. Her prior consent with him doesn't prove she consented that night but it's a factor to be considered on consent. Certainly a victim's lack of a sexual history with an attacker could be used by a victim to support non-consent.
The Court of Appeals had a three judge panel consider the appeal and the rejection was unanimous. Two of the three judges (Barnes, Smith and Miller) are women. http://www.gaappeals.us/biography/
As usual, the main thing this seems to "prove" is how bloody impossible it is to prove rape cases.
I mean, really; who the hell has witnesses to sex? Or to rape?
Elise - We don't have both sides of the story. For all we know, the factual allegations were so obviously false that a reasonably prudent attorney would not have filed the action in the first place
The fact that there is a corroborating witness and that there is no inherent contradiction in the factual allegations already takes care of that, actually.
As I said, the standard for frivolousness is extremely high.
"there was no reasonable belief that a court would accept Plaintiff’s claims"
It seems this judge thinks the standard is a reasonable belief that the court would accept the Plaintiff's claims. In other words, a suit is frivolous if you know you have no chance of winning. Here is what the judge said about the case:
"There’s no witnesses in there. There was no evidence. It’s a closed door. And there’s no possibility that there could be any proof that there was rape...�
If this is true, than I cannot see how she could have filed the suit with a reasonable belief that a court would accept her claims.
“If that /were/ the case, then why is what we're hearing about why the case was dismissed, from the defendent/judge/whomever, mainly sexist bigotry as opposed to logic based in fact?� – Ninapendamaishi
I don’t understand your point. I said that incomplete information makes it impossible to know what happened in the case. Are you implying that that same lack of information somehow tells us what happened?
I do have a question, though. What is the level of intoxication necessary to render someone incapable of giving consent? He admitted to having sex with her while she was drunk to the point of blacking out. Does Georgia law require that she pass out before she loses her ability to consent?
"Are you implying that that same lack of information somehow tells us what happened? "
No, but I am guessing that if the defense had a better defense than the one we've heard, we would have heard about it by now. It would help this guy's image in the media at least, don't you think?
Just so I know we are on the same page, what remarks are you talking about? I am not sure we are talking about the same thing.
What happened in the criminal case? I'm assuming she lost that too if he's still walking around.
I don't understand the whole sexual lawsuit thing. Why can't victims of other crimes sue?
Moving on: In any event I think that civil lawsuit judges are more prone to "doing whatever the fuck they want" as losing a civil lawsuit is not a civil rights violation (and there's no jury to mollify the affect of the judge), and there's probably a lot less precedents to go by too.
Jabes,
There was no criminal case. The local cops did not bring the case to the DA to prosecute.
Victims of other crimes can file suit. Most of the time the criminal defendants don't have any money so suing them is useless. But sometimes it is done. For instance, Nicole Simpson's and Ron Goldman's families sued O.J. Simpson after he was acquitted in the criminal case and won a judgment. They've collected very little because all his regular income (NFL pension) cannot be attached.
In most places the judges who hear civil cases also hear criminal cases. A jury would have been available to Ross had her attorney been able to gather enough evidence that the jury would not just be wildly speculating with emotional responses. Either party can ask the judge to enter judgment in his/her favor claiming the evidence can only reach one logical and legal result. A previous poster Elise pointed out that the standard a judge must use in deciding such a "summary" judgment is to view the evidence and arguments in the light most favorable to the non-moving party. In other words, there should be a preference to have any factual interpretations decided by a jury instead of the judge.
this is effing ridiculous. it's so disappointing that this incredulity happens in our legal system.
This is an interesting case to say the very least. What I can't seem to figure out is this:
Ms. Ross's attourney (Amanda A. Farahany) is NOT appealing the courts decision about wether or not her client was raped and Mr. Day is in fact innocent....BUT SHE IS APPEALING THE RULING THAT HER FIRM HAS TO PAY THE LEGAL FEES!!!!
Does no one else find this ironic?
I finally found this:
http://videonow.11alive.com/PlayerLauncher.aspx?savedSession=U3xcXGdtdGlcZGZzMDFcR1RWXFdYSUFcTmV4aWRpYUluZ2VzdGlvblx2aWRlb25vdy0wNDAyMDgtMTFwLndtdnxzdGF0ZSByZXByZXNlbnRhdGl2ZXMgc29ufHx8TmV3c3x8fDExQWxpdmUgRXZlbmluZyBOZXdzIGF0IDExfDQvMi8yMDA4
your thoughts?
FLWoman,
I have not been able to get the video link you posted to download and play. It is supposed to be Day's version of the events, I supposed sanitized for t.v.
I think you're wrong on the appeal point. If you look at her appellate brief to the Ga Court of Appeals, she says the lower court erred by not allowing several points to go to a jury. The fee award was appealed, too.
It looks like the trial judge was going to allow Farahany a second hearing on the issues of reasonableness of the fee and when the calculation should begin. The judge was predisposed to say that it was not frivolous to bring the suit but that somewhere along the way in discovery Farahany should have known she could not develop the evidence needed to go forward and that point is when the recoverable fees should be calculated. But Farahany apparently never asked for the second hearing, and rather had her client pay the court costs to make the time begin to run out for the trial judge to retain jurisdiction, in the hopes that he would forget to enter an order on fees until it was too late. Instead, the judge found out about the time running and just entered an order for the whole amount without taking any more evidence. Oops.
Oops is right.
You should be able to just click on the link above to view Mr. Day's rebuttal to the original news coverage on 11alive(ATL,GA)....
On another note:
I can't believe an attourney actually wrote this article!!! If I have read everything correctly, Day was accused of "Sexual Battery" not rape.
"There’s no witnesses in there. There was no evidence. It’s a closed door. And there’s no possibility that there could be any proof that there was rape...� If this is true, than I cannot see how she could have filed the suit with a reasonable belief that a court would accept her claims.
Looking at the evidence in the light most favourable to the plaintiff (the standard at summary judgment), we've got
1. Her testimony that she has no recollection at all of that night, and testimony that she was intoxicated, thus at least arguably unable to give consent.
2. The testimony of one witness that says that she was taken away from the party in an intoxicated state by Day, and that Day hung up her mobile phone when a friend called to ask where she was and whether she was all right.
3. Day's stipulation that intercourse did occur, in addition to medical evidence of injuries that at the very least could be the result of sexual assault.
4. Her testimony that she broke up with Day after he assaulted her on a prior occasion by refusing to withdraw after she told him to stop, which goes to the issue of consent.
Taking the above in the light most favourable to the plaintiff, there's at the very least a reasonable possibility of prevailing at trial (unless Georgia imposes more onerous evidentiary standards on charges of sexual assault, and unless Georgia law does not consider intercourse with a person incapable of consent to be sexual assault).
Based on this, it's hard to say that no reasonably competent and prudent attorney would see any likelihood of success on the merits as a matter of law alone
Once I switched to Internet Explorer the video played OK. Nothing new in it, though. Hardly worth the look unless one wants to see what Day looks like. The report did have an "OMG!" moment for me with a wildly inaccurate statement by the anchor: "Day counter-sued and the judge found in his favor." No counter-suit but I suppose the news writer thought so with the fee award.
The report did have an "OMG!" moment for me with a wildly inaccurate statement by the anchor: "Day counter-sued and the judge found in his favor." No counter-suit but I suppose the news writer thought so with the fee award.
That would be pretty much par for the course. They always seem to get things like that wrong.
I found relevance in Day's rebuttal for he poses an interesting question. What laws are in place to protect those wrongfully accused?
On another note:
I can't believe an attourney actually wrote this article!!! If I have read everything correctly, Day was accused of "Sexual Battery" not rape.
If this was not some attempt to extort money from Day or his family, let me now ask this:
Why did Ross (or her attourney) attempt to sue the school, sue the fraternity, seek a civil suit and also ask for an out of court settlemet from the defendant?
I think the article I linked is worth a peek for Day poses an interesting question. What laws are in place to protect those that have been wrongfully accused?
On another note:
I can't believe an attourney actually wrote this article!!! If I have read everything correctly, Day was accused of "Sexual Battery" not rape.
Lastly,
If this was not some attempt at extortion let me ask the following:
Why did Ross(or her attourney) attempt to sue the school,the fraternity, seek a civil suit and ask for an out of court settlement from the defendant?
Why did Ross (or her attourney) attempt to sue the school, sue the fraternity, seek a civil suit and also ask for an out of court settlemet from the defendant?
She did sue the university. That suit was dismissed because a single incident didn't amount to a Title IX violation.
I can't believe an attourney actually wrote this article!!! If I have read everything correctly, Day was accused of "Sexual Battery" not rape.
Sexual battery is merely the tort that includes the crime of rape. She was most likely referring to it as rape in an article intended for a general audience because a) the complaint alleged the elements of rape and b) a general audience wouldn't necessarily be familiar with the legal definition of sexual battery and its relation to the offence of rape.
"Sexual battery is merely the tort that includes the crime of rape. She was most likely referring to it as rape in an article intended for a general audience because a) the complaint alleged the elements of rape and b) a general audience wouldn't necessarily be familiar with the legal definition of sexual battery and its relation to the offence of rape."
This comment really discredits the intelligence of those who chose to read and take the time to blog on this site.
This comment really discredits the intelligence of those who chose to read and take the time to blog on this site.
I don't think that suggesting that someone might believe that a lay audience might not have a professional-level understanding of differences in terminology between tort and criminal law is any more insulting than assuming that an attorney doesn't know that there is a difference between sexual battery and rape.
Wow, that pisses me off. For one, they never looked at this guy's sexual history, like has he ever been charged with some sort of sexual violence before or maybe if they had asked for a list of HIS previous sexual partners they could've asked them if he's acted this way before. But no, it's always the ultimate whore/virgin concept with women. If she's a virgin, it's horendous (only because he's somehow damaged a father or boyfriend or husband's property) but if she's had ANY sex, she automatically ALWAYS wants it and is "such a whore". Heaven forbid women actually ENJOY sex and would possibly want it with more than one man. But it's totally understandable if a guy has sex with as many girls as he wants with no repucutions or demeaning titles thrown at him. And i can't believe that comment was made about him (or apparently anyone) not having to use a drug cause she would say yes anyways. Wasn't he around for the '70's? If not here's an update; we can say no!! Whenever. Wherever. No matter how many other guys (or girls) we've been with. Even if it's our boyfriend or husband, we can say no. And what's up with him dismissing the rape kit? The fact that her injuries could be caused by something else can be applied to any other crime. "Oh, there was no robbery, one of the cashiers could've missplaced the money." "No, there was no domestic abuse, she obviously ran into a door."
Bullshit.