Christopher McFadden: What Do We Do When a Judge is Wrong?

christopher mcfaddenThere’s an update on this story that became available to me just as I was about to post this: Christopher McFadden recused himself from the case late Friday afternoon. The story is here, and I will comment on it this week.

I still wanted to post this. After reading the update, nothing about what I believe about this story has changed, and this one really upset me.

A Facebook friend brought this to my attention on Friday. Let’s all welcome Judge Christopher McFadden of Georgia to the blog. I doubt that this will be “one time only” appearance, as I plan on following this story.

The controversy rests on the 2012 trial of Jeffrey Dumas. Dumas was tried for raping a woman with Down Syndrome multiple times in 2010. She was 24 at the time, staying with family friends while her parents were out of town. Dumas visited the friends’ residence and, according to the woman’s testimony and to physical evidence, raped her three times in the twelve hours that he spent there. He was convicted by a jury and is currently serving 25 years. Christopher McFadden presided over the trial.

And now he has reversed the jury’s verdict and called for a new trial.

Wow.

Just a note before I get into this that for the sake of simplicity, I’m only going to talk about women and rape in this post. But I’ve not forgotten (and no one should ever forget) that men get raped, too. The statistic that I found in my go-to essay on rape culture (I’ll talk about that later) said that the number is 1 in 33, and that was in 2009.

Let’s unpack this. The woman’s name is not mentioned in the media. I’ll call her Jane, instead of “the woman”.

Christopher McFadden’s Concerns

Christopher McFadden apparently has some concerns with discrepancies in some witness testimony, the specifics of which I haven’t been able to find in the media. If he’s so concerned by these discrepancies that he feels that they affected the outcome of the original trial, then it’s my understanding that overturning the jury’s decision is a step, albeit one almost never taken by trial judges, that’s within his judicial power to take.

The media is giving those concerns only a passing mention, however, if mentioning them at all. And, in my opinion, he’d better be pretty damn sure that they’re worth giving a convicted rapist a new trial over.

Because Christopher McFadden hasn’t got a leg to stand on legally about anything else that concerns him about this trial, and needs to be called out properly on it.

You see, Christopher McFadden also believes that a new trial is necessary because Jane didn’t “act like a victim” and Dumas didn’t “like someone who had recently perpetrated a series of violent crimes”.

Welcome to living in rape culture in America, folks.

A Lesson in Rape Culture for Christopher McFadden

When I’m talking with people about rape culture, I refer them to Melissa McEwan’s excellent essay on the topic. For anyone who wants to understand how truly scarily pervasive rape culture is, how it thoroughly saturates our culture and keeps both women and men at risk, McEwan’s website, shakesville.com, is an excellent resource.

Christopher McFadden wonders if what happened to Jane is truly rape, apparently, given that her testimony that the rapes happened over a twelve hour period and she waited until the next day to report them. He posits that she had plenty of plenty of time and opportunity to report what was happening her caregivers and to ask for help before she did so.

Let’s let Melissa take this one:

“Rape culture is the pervasive narrative that there is a “typical” way to behave after being raped, instead of the acknowledgment that responses to rape are as varied as its victims, that, immediately following a rape, some women go into shock; some are lucid; some are angry; some are ashamed; some are stoic; some are erratic; some want to report it; some don’t; some will act out; some will crawl inside themselves; some will have healthy sex lives; some never will again.”

The fact that every woman reacts differently to rape isn’t ground-breaking news. Anyone who works with rape victims will tell you that. But this is the power of rape culture.

Or ignorance from a highly-educated individual of one of the most very basic elements of personal aftermath after a rape.

Or both.

In any case, it’s first-order victim-blaming, and a judge should know better.

And by the way, what *does* a man who has just raped woman 3 times behave like? What is he *supposed* to behave like? Why does this matter, when the jury found that the physical evidence supported that Dumas raped Jane?

Fayette County State Attorney Scott Ballard, who prosecuted this case, reacted to Christopher McFadden’s ruling with “disgust”.  After reading Christopher McFadden’s ruling,  the District’s Attorney’s office filed a motion asking him to recuse himself from the case, but he denied the motion.  The motion is being appealed (to the same appeals court that McFadden sits on.)

Obviously Christopher McFadden’s attitudes about rape would be problematic (to say the least!) regardless of whether the woman was disabled. But the fact that this woman is makes all this an issue of ableism as well, as Jane has Down Syndrome.

The Ableism Issues

If Christopher McFadden feels that discrepancies in witness testimony actually are significant enough to call for a new trial, that’s one thing. But this “she didn’t act like a victim” nonsense is especially unfair for a woman with an intellectual disability who, depending on her level of understanding, education and experience, may have a very limited understanding of how people “act” after consensual sex, let alone rape. There’s still a perception out there that disabled people, especially when the disability is intellectual, aren’t sexual beings, and don’t need education about sexuality, sexual relationships, and sexual safety.

I have no idea about Jane’s particular situation, of course. But, unless these issues were explored in the original trial, Christopher McFadden is assuming that she would even be clear after the initial rape that what had happened to her was wrong or why. After all, even some women who aren’t facing the challenges inherent in having an intellectual disability sometimes aren’t sure after an assault that what’s happened to them was rape.

These are factors that need to be considered by the entire support team helping a woman with an intellectual disability work her way through the issues involved with a rape, including the judge if the case goes to trial.

The evidence doesn’t seem to point to Christopher McFadden having awareness of these issues. I could be wrong, but I’m willing to bet that I’m not.

I’m also asking myself if this idea of “she didn’t act like a victim” isn’t somehow tied in to assumptions about people with an intellectual disability. I don’t think it’s an unfair question, although I’m sure we’ll never know the answer.

But ultimately it doesn’t matter whether Jane is disabled or not, does it?

Meet Me at Camera Three, Judge Christopher McFadden

I’m just sick about your ruling.

Not just because it means that a woman with Down Syndrome will have to go through a trial again, when the man charged with raping her was found guilty, when she she thought that he would stay behind bars for 25 years.

Because a *woman* will have to will to go through a trial again, when the man charged with  raping her was found guilty, when she thought that he would stay behind bars for 25 years.

Some of the articles about this don’t even mention that you had concerns about testimony. All of them mention that this is happening because you didn’t think that Jane acted enough like a victim. This not only demonstrates ignorance on a basic level of how women react to being raped, it’s an affront to rape victims everywhere. You ignorance is revictimizing this woman, and further proves that in a rape trial, the victim is just as much on trial as the rapist. Her sexual history is used against her. The way she dresses is used against her. And now, the way she acts after the rape is used against her.

And God help her if her rapist doesn’t “act” like a rapist.

If you are thoroughly convinced that witness testimony had discrepancies that could have affected the outcome of the original trial (not that I’m buying that), call for the new trial on that basis.

And then recuse yourself! How does this woman have a ghost of a chance in this new trial if you preside?

And yet, when she was told that the trial was going to be reopened, after her tears, she said that she was ready to do this again.

I can’t do much for her, but I can make sure that people know what’s happening, and get as much support as I can behind her.

Be a responsible judge and a decent human being and don’t force yourself into this young woman’s life again. She’s been violated enough.

This article by Bill Rankin and Steve Visser really helped me to get needed background information and to better understand the legal aspects of what’s happening with this case.

 

About Sarah

Due to a stroke, I've walked with a cane since I was 22 (I'm 36 now)...but I'm so much more than just the girl with the cane.
  • One of them too

    Your story makes me shudder. It’s just the kind of thing I worry about for my daughter’s future – my daughter who’s 14, friendly, attractive, has Down syndrome. What the hell does this judge know about how a young woman with a developmental disability is supposed to “act like” after being raped?

    • http://girlwiththecane.com Sarah

      Yes. As someone who has loved ones with intellectual disabilities, as well as experience as a service provider, I found this story just sickening. I wanted to draw as much attention as possible to it because these sorts of stories, while rare, aren’t rare enough – and to let this young woman know, when this new trial starts with the new judge (I haven’t found anything to suggest that the new trial isn’t going to go ahead, despite the fact that McFadden has recused himself), that she has the support of lots of people behind her. Thank you for your comment. :)

  • Eric Cassol

    I have started a petition on change.org, there are methods to remove Judges from the bench, in Georgia 2/3 of the House Of Representatives can impeach a judge. I feel that the only way to let Judges know that this type of miscarriage of justice is not acceptable and that the american people won’t stand for it is to start removing judges from the bench. You can find the link to the petition here:

    http://www.change.org/petitions/georgia-house-of-representatives-impeach-georgia-judge-christopher-mcfadden

    Also I am not from Georgia,it would help this cause greatly if there was someone out there who is a resident of Georgia that knows a State Representative and would be willing to help advocate for this cause at the local level.

    • http://girlwiththecane.com Sarah

      Hi Eric

      Thank you so much for this link. I’d been wondering if there was a petition somewhere. I’m from Canada, and have no idea what the procedure is in the US to even lodge a complaint about a judge in the US, let alone try to get one removed from the bench. Getting voices heard is a good start. Please keep me informed if you find out more about directions for further action, and thank you for your support. :)

  • 865155

    Words can not describe the outrage, that any person least of all a Judge believes there is some rule book on how anyone should react or how soon !! He needs to be removed from the bench, he has no interest in Justice. I had no idea how deep ignorance runs, this violation and the emotional scar is forever.

    • http://girlwiththecane.com Sarah

      People are starting to become aware of this story now, and it’s causing widespread outrage. Let’s hope that now that McFadden has recused himself, Jane will at least see some justice from having to go through a trial again. Thank you for your comment.

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