No, Pennsylvania Is Not Blaming A Woman For Her Own Rape

Facts are stubborn things.

Law Books Gavel

Pennsylvania Attorney General Kathleen Kane is coming under fire for a legal position she is asserting on behalf of the state in response to a civil lawsuit filed by a former state prison employee who was raped on the job:

The Pennsylvania attorney general’s office is blaming a former state prison clerk for her own rape, in response to a federal lawsuit the woman filed.

The 24-year-old typist was working at the state prison at Rockview in Bellefonte, Pennsylvania, when she was attacked in 2013. She was choked unconscious and raped for 27 minutes by inmate Omar Best, who had been convicted three times previously of sex-related crimes, and then been transferred from a different state prison for assaulting a female assistant there.

“Despite this knowledge, defendants … still allowed Omar Best to have unsupervised access to the offices of female employees,” according to the lawsuit, which also blames the state for the rape.

In fact, the lawsuit says that the prison superintendent actually moved the clerk offices from a secure floor where there was no inmate contact to a location that was on a cell block.

“There were no locked doors between the offices and cell blocks, including Block C where (the victim) worked, except for the copy room,” the lawsuit states.

Even though Best was convicted of the rape in May and a review of the prison found multiple failings and led to the superintendent’s removal, a senior deputy attorney general wrote that the woman “acted in a manner which in whole or in part contributed to the events” in his response to her lawsuit.

It’s victim shaming at its worst, the woman’s lawyer told CNN.

“Worse than that, it’s an attempt to embarrass the victim,” said Clifford Rieders, a Williamsport, Pennsylvania, attorney.

The state attorney general’s office at first declined to comment when the matter was reported by the Centre Daily Times, in State College, Pennsylvania.

Wednesday, the office released a statement saying that it is required to present all possible defenses and “contributory negligence is one such defense.”

In the statement provided to CNN, the attorney general’s office said, “This initial filing should not necessarily be interpreted as meaning this defense will be pursued throughout the entire case,” adding that elected Attorney General Kathleen Kane was not aware her senior deputy included that defense in his filing.

“Attorney General Kane is disappointed that she was not made aware of this matter prior to the filing, and was saddened to learn that the filing implied that the victim somehow contributed to this crime.”

Think Progress has more:

Kane has maintained that contributory negligence arguments are common, and her office is required to outline all possible defense for the case. Nonetheless, sexual assault prevention advocates are upset that the state would even consider this line of argument.

“That is unbelievable,” Anne Ard, the executive director of a local women’s resource center,told the Centre Daily Times. “This kind of victim-blaming is unconscionable and, frankly, makes people distrust the justice system. I am appalled.”

“I think it’s absolutely deplorable to blame the victim in this case,” Jennifer Storm, a sexual assault survivor who serves as a victim advocate for Pennsylvania, told CNN. “It’s not common legalese in rape cases. And it shows a significant lack of sensitivity to not understand the harm this has done to the young woman and the re-victimization she’s going through today.”

Similarly, the victim’s lawyer has called the contributory negligence defense “total bunk” and “victim shaming.” He told the Associated Press that although this may be the way that some lawyers litigate, it’s “insulting to women generally who face rape cases only to be told that it’s their fault.”

Most of the other media coverage of this story has taken the same tone, and of course conservative bloggers have jumped all over the case because Kane is a Democrat and this somehow rebuts the “war on women” meme that we’ve seen from Democrats and the left for some time now. As is usually the case when dealing with legal issues in a political context, though, these issues are getting confused, conflated, and exaggerated for partisan reasons and the way that this case has been covered in the media has largely been responsible for that. Right off the bat, for example, CNN’s article above says that Pennsylvania is blaming this woman for her own rape. This is quite simply not true. There is only one person who is responsible for the rape, and that is an inmate named Omar Best. He was charged with the crime and, just last May, convicted of rape and sentenced to spend the rest of his life in prison. At some point after the rape took place, the victim filed a claim against her employer, the State of Pennsylvania, alleging that they had failed to take proper steps to protect her and others in the prison from Best, and that they were in fact aware that Best had assaulted another female prison worker at another facility. It is, in other words, a case alleging negligence and other failings by agents of the State of Pennsylvania that contributed to the rape, if indeed they didn’t make it inevitable.

In response to this lawsuit, the Pennsylvania Attorney General, or more properly put a deputy in the Attorney General’s office since this is not the kind of lawsuit that an AG is going to get involved in, filed a response to the lawsuit. This pleading isn’t available online anywhere that I’ve seen, but it’s fairly easy to figure out what it contains generally. For one thing, the pleading would respond to the factual and other allegations in the lawsuit, typically with a general denial although there would likely be some facts alleged, such that this woman was a state employee, that they would admit since it does little harm to the defense to do so. In addition to those denials, these responsive pleadings are typically required to set forth any “affirmative defenses” that the Defendant would be relying upon. Affirmative defenses are generally legal defenses to all or some of the claims asserted in the lawsuit that would preclude the claims from going forward even if they were taken as true. The affirmative defense best known to lay people is likely the statute of limitations, which is generally based in statutes that set forth time limits within civil lawsuits can be filed, with the time varying depending on the nature of the claim.

The affirmative defense at issue in this case is contributory negligence, which is a defense that says that attempts to rebut allegations on the part of the Defendant with the argument that the Plaintiff was also negligent in some way. In most states, including Pennsylvania apparently, contributory negligence is only a partial defense in that the Defendant could still be hold responsible if they are found to have been “more negligent” than the Plaintiff. However, it used to be the case that contributory negligence was a complete bar to recovery by the Plaintiff and that rule still applies in four states and the District of Columbia. So, in essence, what the state is asserting here is that the rape victims own negligence in failing to secure her private office could be a partial bar to recovery. It is a standard affirmative defense in negligence cases and, indeed, I would say that an attorney who failed to raise the defense when the facts may warrant it would be committing malpractice in failing to properly represent their client. This is even more apparent given the fact that, in most states that I am aware of, failing to raise a defense in pleadings usually means that you would be prevented from presenting any evidence related to that defense at trial.

What happened to this young woman was horrible, and it is good that her rapist will never see freedom again. It also seems apparent from some of the facts alleged in the lawsuit that the state prison authority did indeed create an unreasonable risk for this woman and for other employees at the prison. In response to the lawsuit, the state is asserting that this woman might be partly responsible for what happened to her, or at least that her alleged negligence should offset the state’s negligence to some extent. Whether that will ultimately be borne out by the evidence is something we cannot know right now, but it is perfectly legitimate and standard defense in a case such as this. The assertion that the state is blaming this woman for her rape is simply untrue and it’s irresponsible and lazy for the media to claim that they are.

FILED UNDER: Crime, Law and the Courts
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MBunge says:

    “In response to the lawsuit, the state is asserting that this woman might be partly responsible for what happened to her.”

    “The assertion that the state is blaming this woman for her rape is simply untrue and it’s irresponsible and lazy for the media to claim that they are.”

    Is English your third language? If you want to defend what Pennsylvania is doing by invoking legal ethics or practice, go ahead. But A is still A, even when it might be inconvenient.

    Mike

  2. I have amended the first sentence to more clearly communicate what I meant, which is the same thing I said earlier in the post.

    My conclusion stands on its own, because it is quite simply a fact that the state is not blaming her for her rape.

  3. Gavrilo says:

    Actually Doug, the assertion of contributory negligence is the very definition of blaming the victim. There really isn’t any difference in claiming the victim is responsible for her rape because she didn’t lock her door and claiming she was dressed provacatively or that she was promiscuous.

    Second, if this is such a legitimate and standard defense, why is Kane claiming that (a) she didn’t know contributory negligence was presented as a potential defense in the filing and (b) she was “saddened” when she learned about it? Why would she be surprised and sad about a legitimate and standard legal defense?

  4. michael reynolds says:

    Yeah, that may be the least convincing defense of a bad idea I’ve ever read. I read it twice because I couldn’t find the point anywhere.

  5. @Gavrilo:

    To answer your second question, politics. But, of course, political considerations should be irrelevant when an attorney is representing their client in court in a case such as this.

  6. @michael reynolds:

    It’s not a bad idea, it’s an attorney doing their job. Anything less would be malpractice.

  7. michael reynolds says:

    @Doug Mataconis:

    It may be proper legal practice, I defer to you on that. But it is clearly the state attempting to blame the victim. It may be legal to blame the victim, but it’s still blaming the victim. Legal ≠ Moral.

  8. Moosebreath says:

    While I don’t follow criminal cases much, I am surprised as a PA resident and regular news consumer that this is the first I am hearing of it. Instead, the press has been much more interested in other scandalous conduct from the Attorney General’s office:

    “Last week, the first-term attorney general dropped the political and governmental bombshell: She released dozens of p0rn0graphic and sexu@ally explicit e-mails that she said were exchanged by top state officials over state computers and during work hours between 2008 and 2012.

    The recipients include scores of current or former state employees, though Kane’s office released just eight names. Two are in Gov. Corbett’s cabinet.”

    One can imagine why this draws more interest, but…

  9. michael reynolds says:

    @Moosebreath:

    Is that still considered a scandal? Feels so 2010. Yes: people use the internets for sexual content. Surprise!

  10. @michael reynolds:

    There may be some violation of regulations regarding use of government computers but, yea, I don’t see that as a major scandal.

  11. Grewgills says:

    If this defense had been raised at the trial of the rapist then it would clearly be victim blaming. I think this context is different. She is not blaming the state for the rape. She is suing the state for negligence in protecting her from the rapist. The state is in turn blaming her not for her rape, but for failing to follow part of the protocol the state set up to protect her. It seems a rather weak defense given that she couldn’t very well remain barricaded in her office the entire day and effectively do her job. She will have to leave on occasion to go to the restroom, copy room, lunch etc.

  12. Gustopher says:

    @michael reynolds: It’s not the state blaming the victim for the rape, it is the state blaming the victim for not taking all available precautions to separate herself from the prisoners.

    Just as she is not blaming the state for the rape, she is blaming the state for not properly separating the inmates from the staff, and giving the inmate the opportunity to rape her.

    Not sure why Mr. Mataconis took so many words to not quite say that, so I might be misreading his post somewhat.

    And, it is a distinction that seems to be splitting hairs until you realize that assault by an inmate is an on the job hazard in a prison. So, it really comes down to whether the victim was wearing the “safety goggles”, and whether safety goggles are the appropriate level of protection.

  13. Moosebreath says:

    @michael reynolds: @Doug Mataconis:

    Me neither, but the papers have made this front page news for days on end. Yes, the state computers angle is part of it, as well as the prurient descriptions of the e-mails (as best they can do in a paper of general circulation). Also, the current AG has been feuding for months with the staff of the prior AG (now Governor) Corbett, with the staff grumbling to the press about cases she chose not to prosecute, and her investigating why they took so long to charge Jerry Sandusky.

  14. Mu says:

    That’s where Douglas Adams was wrong, lawyers will be the first against the wall when the revolution comes.

  15. MBunge says:

    or at least that her alleged negligence should offset the state’s negligence to some extent.

    Now that seems to be a legitimate defense of what Pennsylvania is doing.

    That doesn’t change the fact that they ARE blaming the woman, or at least suggesting she’s partly to blame, for her rape. If she’s not to blame, she’s not responsible. If she’s not responsible, what is the legal point of the argument?

    It is neither irresponsible nor lazy to say the state is blaming the woman for her rape. It’s certainly inflammatory, but that’s something different.

    Mike

  16. Am I the only wondering why her office was located at the prison facility to begin with, much less In a cell block?

    I find it hard to believe the prison requires a dedicate typist, and even if they do, it seems to me that typist could be located pretty much anywhere in this day an age.

  17. walt moffett says:

    @Stormy Dragon:

    Probably the vagaries of the state civil service, union rules, budget, etc are responsible for her job title, duties and job location.

    However, can under stand contributory negligence as an reflexive, pro forma defense but would like to actually read the filings to understand what’s going on.

    FWIW, Pennsylvania needs to come up with a quick, large settlement offer and make sure this never happens again.

  18. JWH says:

    Quick note: In American courts, the standard Doug mentions is called “comparative negligence,” (comparing negligence when assessing damage) to distinguish it from contributory negligence.

  19. Barry says:

    @walt moffett: “Probably the vagaries of the state civil service, union rules, budget, etc are responsible for her job title, duties and job location.”

    It’s a prison; they have had decades to think about things like locations, and to have set up the rules.

  20. JWH says:

    As I read the CNN story, I think that it originated with a phone call from the plaintiff’s attorney to the media. This story is potentially an effective way to push the state toward settlement.

  21. arthropod says:

    Can we all please stop saying “facts are stubborn things”? It’s a cliche – this is like the third time I’ve heard it used in the last week

  22. R.Dave says:

    I think the breakdown in communication here between the lawyers and the laypeople is over whether “negligence” and “blame” are precisely congruent terms. “Blaming” the victim, to me, implies assigning culpability for the rape itself, whereas saying the victim was contributorily negligent just means that her actions were (a) less careful than they should have been and (b) contributed to the circumstances leading to the rape. The former involves moral condemnation, whereas the latter does not.

    In other words, it doesn’t seem inconsistent to me to say, “The only person with any moral culpability here is the rapist, but both the state and the victim did things that contributed to the circumstances enabling that rapist to commit the attack.”

    I mean, think about it like this: Imagine the employee who left the door unlocked wasn’t the one who got raped. Imagine she left the door unlocked, and some other employee was raped. Does anyone think the victim in that case should not be able to sue both her and the state for their respective negligent actions?