A Jury's Strange Reason for Refusing to Convict on Rape Charges

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After a compelling, stark cover Thursday asking the question "What Does a Woman Have to Do to Prove She Was Raped?" the Daily News puts forth what they call the shocking answer on Friday's cover, along with the word "Rage!" in giant type. 

The story inside follows up on the juries' refusal to convict now former NYPD officer Michael Pena on charges of rape for allegedly raping and sodomizing a schoolteacher on her way to work in the morning—he was convicted, instead of predatory sexual assault, a higher charge that may mean life in prison but still makes the layperson wonder: Why not rape? It certainly sounds like rape...

As we discussed yesterday, while these may be semantic discussions, they are still very important ones: Rape is a word that means quite a lot in the layperson's mind; predatory sexual assault is less understood. And when we continue to see NYPD officers and powerful men being acquitted of charges or having charges dropped, the word "rape" takes on an even greater meaning as a conviction. 

In the piece, the News' Melissa Grace, Thomas Zambito, Tracy Connor, and Corky Siemaszko write that a "Manhattan jury made up of highly educated professionals refused to convict Officer Michael Pena of rape for a startling reason—the victim could not recall the color of a car parked by the courtyard where she was forced to her knees, sources told The Daily News Thursday."

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Indeed, this is a shocking answer. And it makes no sense, knowing what we know (as we've said before, there's always more going on beyond the headlines of the tabloids). But if Pena was convicted of the highest charge possible, predatory sexual assault, and that did not involve the apparent correct identification of a car's color, why would a charge of rape require that? When posed this question by The Atlantic Wire, Deputy Communications Director for the Manhattan DA's Joan Vollero offered no comment. 

The Daily News and the New York Post both lay the blame on the jury—made up of lawyers, a therapist, a financial analyst, an electrical engineer, and a special-ed teacher, among others—with quotes like these, from unidentified sources:

“If she doesn’t remember these details, how does she know she was penetrated,” one of the holdouts reportedly said, according to sources.

What's also weird in the follow-up to this case is that Manhattan lawyer Lloyd Constantine, an apparent friend of DA Cy Vance, is pointed out as one of the "meddlers" in the trial who kept turning to "really odd points," leading to the deadlock of the jury. But why would a friend of Vance's do that? It's in the PR interest of Vance to get a conviction (and a rape conviction) in this case—you'd think a friend would, if biased, work toward that, and not "meddle" in such a way as to force a mistrial. (A New York Times' piece by Ross Buettner clarifies the Vance-Constantine relationship a bit further, stating that Constantine is "a lawyer with professional and social ties to both Mr. Vance and his opponent in the last election.")

Friday in the Post, Laura Italiano writes that the the hold-out "faction, led by Lloyd Constantine, a one-time legal adviser to ex-Gov. Eliot Spitzer — even held it against the schoolteacher victim that she couldn’t remember the color of a car parked near the Inwood back yard where now-fired cop Michael Pena violated her last August, the source said."

Later in the News' story we get details a bit more relevant to rape charges: Pena has continued to insist that there was no vaginal penetration, and, in fact, Pena's DNA was not found "inside the woman," though his semen was found in her underwear. And, "under New York law, there has to be proof of penetration to convict someone of rape." Yet as Linda Fairstein, former chief of the Manhattan DA's sex crimes unit, told the News, “The office has tried hundreds and hundreds of cases in which there is no ejaculate in the vagina and won,” she said. “It’s not a required element of the crime to find semen.”

And so, the sad facts of this case involve a witness who lacked credibility, the lack of a certain kind of DNA evidence, and the lack of an accurate car color ID, which seems to have raised reasonable doubt. Again, what does a woman have to do to prove she was raped?

The color of the car, for the record, was blue. Which just goes to show, it means absolutely nothing. 

This article is from the archive of our partner The Wire.