From the Left



Swimming in Underwear

Susan Estrich on

The most unusual thing about the decision of a Quincy, Illinois, judge to throw out the conviction of an 18-year-old man who raped an unconscious 16-year-old girl is that it made its way to The New York Times. Otherwise, it would be easy to conclude that nothing has changed.

The case involved a graduation party where teenagers were drinking and swimming in their underwear. It was the latter that seemed to particularly trouble the judge and at least partially excuse the conduct of the man involved. The girl, as it turns out, had decided earlier in the evening to swim. She did not decide to have sex. According to the testimony, she told the defendant specifically that she did not want to have sex.

Then she had too much to drink and passed out.

Then the boy had sex with her anyway. She woke with a pillow over her face and him on top of her.

The judge, after a bench trial, convicted him of sexual assault.

The minimum punishment was four years in prison.


The man served five months. The judge decided that was "plenty of punishment" and threw out his own conviction.

The girl, who was in the courtroom when the judge announced his decision, was devastated. She must now recover, as so many of us used to have to do, from two victimizations: one at the hands of the man, the other at the hands of the system.

The boy gets to get on with his life, the slate wiped clean.

I'm not a fan of mandatory minimum sentences, not because I'm soft on crime, but because they effectively move all the discretion from the judge, whose decisions are the most transparent, to the prosecutor and police, who decide what to charge. Clearly, this judge wasn't either, and the mandatory minimum scheme may well have left him no other way to reduce the sentence.


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