Victims' rights

AT the trial of aggravated rape, although the 17-year-old swore the two young men had raped her at the party, they said she had consented to everything. After deliberating almost three days, the jury could not decide. When the retrial began before a different judge, the prosecutor agreed that if the defendants would plead guilty, he would reduce the charge to ordinary rape and would recommend an easy sentence.

His reasoning was simple. If the evidence could not persuade one jury, perhaps it would leave the second equally uncertain. Indeed, one or both defendants might achieve acquittal. And regardless of the outcome, the teen-ager would have to go through the embarrassment of testifying and the ordeal of cross-examination.

The defendants reasoned similarly, but to an opposite conclusion, and with no concern for the youngster. Better to admit guilt of the lesser offense than chance conviction on the more serious charge.

When the men came up for sentencing, the teen-ager asked to address the court, a right a recently enacted statute had given all victims of crime.

Accompanied by her parents, she came before the bench and in an emotional appeal, asked for severe punishment. This was quite understandable and usual, even though the problems of the case had induced the prosecutor to suggest light punishment.

This time, however, the parents added their own imprecations. The judge, himself a parent, understood their vehemence but found it disturbing.

Because, under all circumstances, the recommended sentence was entirely appropriate, the judge imposed it. Yet he remained puzzled. He knew that the evidence in the case raised serious questions as to the degree of parental supervision involved. Were the parents, he wondered, acting out some of their own guilt feelings?

Sometime later, entirely by chance, the judge learned that one of the vociferously vengeful parents was, at the time the sentence was passing, a probationer of that same court.

The whole concept of ``victims' rights'' needs careful rethinking. It is deceptively easy to insist that a person who has been subjected to the depredations of a criminal should receive from judges no less consideration than the criminal himself gets. As one who has himself been held up at gunpoint and taken across the state, I can readily endorse that idea.

Problems arise, however, when we try to fit the equal-treatment precept into a judicial system that wisely refuses to consider anyone a criminal unless and until a jury decides that the government has -- beyond a reasonable doubt -- proved him one. The inescapable consequence of this fundamental principle is that up to verdict (or until the defendant pleads guilty), the person who seems to be a ``victim'' is only a ``complaining witness.''

But, you say, what about after verdict or plea? Surely then we can drop the quotation marks and start paying some real attention to the victim.

Even here, we face difficulties. First, many victims -- particularly victims of personal violence -- want retribution. That is only natural. But as Bacon said centuries ago, ``Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.'' When we let the victim's personal feelings affect the judge's sentence we are reverting to a government not of laws, but of men.

Beyond that, a victim rarely makes his statements to the judge under oath; and never subject to cross-examination. The victim's input comes to the judge completely untested. He is shown only one aspect of what is almost always an extremely complex matter.

That is why, when a victim (or someone close to a victim) addresses the court, a judge always listens sympathetically, but proceeds most cautiously.

Hiller B. Zobel is an associate justice of the Massachusetts Superior Court.