Judges' comments, handling of rape cases draw criticism

By Maryclaire Dale
Associated Press

Two New Jersey judges have come under fire for their handling of rape cases, one for asking whether a 16-year-old Eagle Scout “from a good family” should face serious consequences over a video-recorded assault on an intoxicated teenager.

Another judge asked whether a 12-year-old girl’s loss of virginity constituted serious harm. The comments, which follow other cases of perceived leniency toward sex offenders from privileged backgrounds, led victim advocates to question whether judges are sufficiently qualified and trained to handle sex assault cases in the #MeToo era.

“Survivors’ worst fears are coming to life. They’re fearful of victim blaming or having the crimes committed against them be minimized,” said Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault.

Monmouth County Judge James Troiano said in his opinion that the Eagle Scout charged with assaulting a 16-year-old girl at a pajama party had good test scores and was on track to attend a top college. According to an appeals court decision last month, the teenager sent friends a video of him having sexual intercourse with the girl, along with a text, saying: “(w)hen your first time having sex was rape.”

Troiano called the encounter different from “the traditional case of rape,” where “two or more males” attack someone at gunpoint. And he attributed the text to “a 16-year-old kid saying stupid crap to his friends.”

The judge wrote that the “young man comes from a good family who put him into an excellent school where he was doing extremely well. ... He is clearly a candidate for not just college but probably for a good college. His scores for college entry were very high.”

Lawyer Debra Katz said Troiano was redefining the legal standard for rape and should be removed from the bench.

Troiano, a retired judge who serves part time, has drawn comparisons to Aaron Persky, the California judge who presided over a notorious rape case against a Stanford University student and who lost his job in a recall election last year.

Persky had sentenced swimmer Brock Turner to six months in jail for sexually assaulting an unconscious woman near a dumpster. Turner ended up serving just three months.

“I think that what we saw clearly with Judge Persky last year is that people who come from privilege are given a pass in very serious cases of rape,” said Katz, who represented Christine Blasey Ford in her Senate testimony against Supreme Court nominee Brett Kavanaugh. “What’s so remarkable in this case is ... it was a clear admission, and of course there was a videotape.”

In the other recent New Jersey case, Middlesex County Judge Marcia Silva said the alleged sexual assault of a 12-year-old girl by a 16-year-old was “not an especially heinous or cruel offense.”

According to an appeals court ruling, the judge wrote that the victim said the 16-year-old pushed her, grabbed her hands, removed her clothing and penetrated her without consent, causing her to lose her virginity. The judge continued: “However, beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”

In both cases, the judges ordered the boys tried in juvenile court, before the appeals court sent them back for reconsideration.

Teresa Younger, the president and chief executive officer of the Ms. Foundation for Women, said cases like these show the deference often shown to defendants over victims — even when the judge, like Silva, is female.

“There’s no comment about whether she came from a good family,” Younger said of the pajama party victim. “(And) she may not get great grades because she’s carrying this trauma in her body.”

According to Teffenhart, there’s no mandatory training for New Jersey judges on sex assault cases, despite changing laws, including one this year that gave victims more time to sue.

The judges’ comments, she said, retraumatize victims and “tend to have a chilling effect on all survivors contemplating coming forward.”

Marsha Levick, co-founder of the Juvenile Law Center, called Troiano’s comments “ignorant and sexist and appalling,” but she does not necessarily think the case belongs in adult court.

She believes that rape and other serious cases can be fairly adjudicated in juvenile court if judges are properly trained. In most states, juvenile offenders can be detained or supervised until age 21, while they might face much longer terms for sexual assault in adult court.

“This case may also underscore how important it is to have judges serve in juvenile court (who are) well trained in aspects of adolescent development, and the many ways we can hold young people accountable for their crimes,” she said.