The defendant’s lawyer attempted to subpoena her computer records and cite her Google search history as evidence against her.
An Oregon rape victim successfully fought her attacker’s courtroom attempts to subpoena her computer records and cite her Google search history as evidence against her—a precedent that should help protect future rape victims against further victimization by the legal system.
Dr. Thomas Bray, an anesthesiologist and community college teacher, was sentenced to 25 years in prison after being convicted of a brutal five-hour sexual assault against Jennifer Bennett, who was 23 at the time. The two met on Match.com, and on their first date Bray repeatedly raped Bennett, beat her, and choked her into unconsciousness.
Bennett had a black eye and a visibly swollen neck when she reported the assault to police. She was later astounded when Bray’s defense attorney demanded the right to access Bennett’s online search history, emails, Facebook records, and her entire laptop computer—nearly all of her computer-related activity from the month before and after the attack.
Oregon Live reported that Bray’s lawyer, Stephen Houze, “subpoenaed Bennett’s computer and journals, but Bennett refused to bring them to court,” and “Judge Stephen Titkin refused to enforce the subpoena.” However, Titkin and Judge A. Michael Adler reportedly ordered Deschutes County District Attorney’s Office “to obtain Bennett’s search history from Google.” Houze reportedly sought to prove that Bennett searched the definition of rape, and thereby call into question her claims.
Bennett later said, “You make Internet searches all the time but you never think that anyone is going to be looking in and using that as a reason as a defense over something horrific that happened to you.”
Bray’s trial lasted eight days, and Bennett testified on two of them. Bray also faced charges of assaulting one of his own students at the community college. Judge Titkin ultimately found Bray guilty of rape, sodomy, strangulation, and assault against Bennett, but not guilty of anything against his student, in part because she, unlike Bennett, continued to see him after the alleged assault.
Traditionally, women who say they have been raped find their own history (sexual and otherwise) under scrutiny. In 1974, Michigan passed the first “rape shield” law in the U.S., and by the 1990s all 50 states had similar laws on the books to restrict or ban mention of an accuser’s sexual history, unless the accused has proof the accuser consented to the sexual act or if the accuser and accused had a prior history together.
So if Bray had, for example, tried entering into evidence his Match.com correspondence with Bennett—correspondence he’d have in his own computer files, without demanding to look through hers—that might have been allowed. There have been instances where defense attorneys successfully subpoenaed rape victims’ Facebook and Twitter histories, school or counselors’ records, and other private correspondence.
“Anything that exists about [a rape victim] will be subpoenaed,” Meg Garvin, director of the National Crime Victim Law Institute in Oregon, told Oregon Live. “Their privacy is invaded. Everything about them becomes fair game.” There is always the danger these searches will turn into fishing expeditions, poking through victims’ lives in search of anything to make them look bad, so Garvin’s organization pairs rape victims with pro bono attorneys seeking to prevent that.
Bennett was also disheartened by the treatment she got outside the courtroom before and during the trial. Anonymous comments on local news sites criticized her decision to visit Bray’s condo on her first date, and a local TV news camera zoomed in on a police report that showed Bennett’s bra size, highlighted fluorescent pink.
Bray was convicted last July. Bennett’s name stayed out of early news coverage due to the industry-standard practice of keeping sexual assault victims’ names private. Not until over two months later, when she spoke to local news, did Bennett choose to go public with her name and story.
“Yes, I was raped,” she told Aimee Green of The Oregonian. “It doesn’t make me a bad person. I didn’t make poor choices. I was not the criminal.”
Photo via Chris Cornechi/Flickr
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