Rapists, justice and that 12-year sentence

Gordon Robinson, Contributor

We're currently in the throes of the usual overdose of hysteria regarding a 12-year sentence handed down by Justice David Fraser.  It seems the villain here is the judge, and the only way to satisfy the purveyors of hyperbole would be to burn him in effigy then apply tar and feathers and run him out of town on a rail.

Maybe, if he just pleaded guilty and threw himself on the mercy of the frantic, he might escape being hung, drawn and quartered as well.

Those among you who prefer hype to reason or enjoy tracing before being informed, avert your eyes, because I'm going to insist that we take a balanced and analytical look at this matter. Also, I intend to tell a story that happened in Apocrypha, a fairy-tale land over the horizon, in order to give commentators an opportunity to pretend to be jurors for a change, instead of pleading all sorts of excuses when given the opportunity in real life.

First, a disclaimer. I don't know Justice David Fraser. I've never met the man, nor have I ever appeared before him in any matter in the relatively short time he's been on the Supreme Court Bench. He's not a friend of a friend, nor is he related to me (as far as I know) or to any relation of mine. To me, he's just a young judge who has taken on the burden of a particular type of public service which no amount of encouragement in the world would ever convince me to do. It's an essential role that he has accepted, and one upon which we all rely to ensure that our society doesn't become completely anarchic.

He'll make mistakes. He's human. But he hasn't been accused of raping anybody, not even the justice system itself, so we need to be more balanced in our critique of his judicial pronouncements; we should ensure that we have ALL the facts before we go to print; and we must always be respectful of the practice that prevents him from responding publicly to criticism.

Barefaced

So, on to today's story. According to police reports, a Jamaican taxi driver named Garsha Wilson abducted a 12-year-old girl from a bus station in Kingston; took her to a house nearby; raped her; tried to strangle her; believed he had succeeded and, thereafter, in an attempt to hide the 'body', buried her alive. According to the allegations made by Crown counsel, the bare-faced taxi driver then pretended to assist the distraught mother in searching for her missing daughter, taking her to all the places he knew that her daughter wasn't. While all this was going on, the intrepid young lady regained consciousness in her shallow grave and dug herself out. She raised an alarm at the nearest house and a telephone call was made to the mother, at which point the taxi driver fled.

He was as inept an escape artist as he had proven to be a murderer and was soon captured, arrested and charged with rape, abduction and attempted murder. And so we come to the first inconvenient truth which has escaped the purveyors of hype intent upon vilifying the judge. It's trite law, a societal norm which unfortunately limits all judges (but not letter writers) in their judicial pronouncements, that charges arising from the same incident, as was the case here, will attract only concurrent sentences. So, the judge had no choice but to order that the sentences for the three apparently separate but really connected charges be served at the same time.

Several factors at play

When he was brought before the court, Mr Wilson, no doubt on the exemplary advice of his very experienced and competent counsel, pleaded guilty. Again, judges are not allowed to permit emotion to overwhelm their reason or training. Accordingly, the judge was bound by the settled sentencing guidelines that require reduced sentences to be handed down to accused citizens who plead guilty vis-à-vis those who insult the court and their victims by denying their crimes, thus putting the victims and the system through the harrowing (for all) process of proving their guilt. There's sound rationale for this sentencing 'discount', including because a guilty accused who elects to go to trial could very well locate some legal loophole (also a euphemism for all sorts of selfish behaviour, including witness intimidation) which results in an acquittal. The elimination of this possibility (almost a probability in Jamaica) must come at a price, and that price is exacted, in law, by way of a reduction in sentence.

Having said all that, it would be fair, without more, to take an askance look at this 12-year sentence for rape of a 12-year-old as being somewhat lenient. But, has anyone asked, is there 'more'? No judge hands down a sentence in a matter such as this without first ordering a thorough investigation of the accused citizen's antecedents. Is this a first offence? What kind of person has he been up to now? Most important, is there an underlying medical or psychological reason for his antisocial behaviour which can be addressed while in confinement?

Never forget it is the DPP who represents us, not only in the matter of guilt or innocence, but also in the matter of sentencing. It's the DPP's task, as solemn a duty as the judge's, to forcefully bring to the court's attention any relevant matter that would tend to ensure a tougher punishment than the defence is seeking. What did the DPP do to protect us in this regard?

Putting it into perspective

Let's try putting this matter into perspective, and to do that we must travel to the fairy-tale land of Apocrypha and tell the tale of Paul. Afterwards, we'll ask ourselves if our panic-stricken attacks on Justice Fraser are themselves vulnerable to criticism based on hypocrisy.

Paul was a self-proclaimed pastor and popular travelling snake-oil salesman. He regularly held 'Christian' crusades in Apocrypha. One day, during one of his crusades, he was seen hanging out with two young girls, aged 14 and 15, before taking them to a local hotel for an afternoon 'romp'. It's been said that he paid the girls a princely sum somewhere between 15 and 30 Apocryphan dollars (A$1 = US$2; proving this to be a fairy-tale land) for the pleasure of their company.

Paul was arrested and charged for carnal abuse and indecent assault. He pleaded not guilty. It's alleged the evidence against him at the trial included that his DNA was found on one of the young ladies' panties. The girls, whose attitude towards the prosecution seemed at times to be ambivalent and at other times, influenced, did give statements. The story told by the 14-year-old was that both girls were in the bed with Paul and she watched as Paul's bottom went up and down above the 15-year-old girl on the bed beside her.

Brilliant defence strategy by Paul's Bishop (whose church defended Paul through thick and thin) argued that DNA on a panty did not prove carnal abuse which, in plain language, is any lascivious contact by an adult with the sexual organs of a child (especially not involving sexual intercourse) or sexual intercourse (proof of penetration necessary) with a person who hasn't reached the age of consent (even if both parties participate willingly). Plus, we all know that DNA results can be compromised (wink, wink). Also, since nobody said his bottom came into contact with the young lady's genitals, its behaviour was irrelevant. All of Apocrypha was stunned when a jury of Paul's peers (that's 'peer' meaning 'equal', not 'peer' meaning 'peep') acquitted Paul on all charges and one jury member was alleged to have been seen trying to board the same vehicle that transported Paul from the scene of his prosecution.

Public outcry was muted. Neither judge nor jury, who participated in the farcical trial, has been vilified. The Church neither condemned Paul nor publicly banned any future crusades led by him.

Back home at the Jamaican ranch, Garsha Wilson will spend at least eight years in prison (more, if badly behaved) during which time our correctional services can take whatever steps they consider necessary or effective to 'correct' his antisocial tendencies. His battered but brave victim is receiving the best post-traumatic care available. So, tell me now all ye casters of stones at Justice Fraser, where would you prefer to be living? In Jamaica, where a rapist who pleaded guilty received what might be a lenient sentence, or in Apocrypha, where Paul is released into the wild with no guarantee that he won't corrupt the minds, souls and bodies of other minors?

By the way, Paul, you know who you are. This is my personal invitation to you, if you consider this piece any way defamatory of you, to sue me. It'll be my pleasure to defend by pleading truth and to try the case all over again. This time, Paul, as a civil case, it won't be tried behind closed doors. This time, Paul, by thy deeds shall ye be known.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.