Victim Couldn’t Remember Color Of A Nearby Car, So Jury Doesn’t Convict Ex-Cop Of Rape

03/30/2012 3:54 PM |


  • Michael Appleton/NYTimes

What does one have to do with the other? Oh right, absolutely, resolutely, “are we really having this conversation?” nothing.

But according to this morning’s Daily News, the victim not remembering the color of a parked car near the scene of her violation was just the excuse the jury (including lawyer Lloyd Constantine, a friendly acquaintance of the Manhattan DA’s) needed to avoid convicting former NYPD officer Michael Pena of rape.

“If she doesn’t remember these details, how does she know she was penetrated,” one of the jurors said, according to anonymous sources reporting to the Daily News.

It was actively nauseating to write that.

Michael Pena was convicted on six counts of assaulting the 25-year-old Bronx schoolteacher on her way to her first day of work. The woman also testified that Pena did penetrate her (“It hurt,” she said), but that wasn’t enough to convince the jury.

Prosecutors also presented eyewitness testimony from two other people: Ann Bishop, who saw “joyless sex” from her window and called 911 twice; and Gregory Matherly, who told the court he had skateboarded home when he spotted Pena and the woman — and could see from a dozen feet away the cop had penetrated her.

Another juror who spoke with The News — and asked not to be identified — said they referred to Matherly as “the skateboard witness” and didn’t find him credible.

Last month, The L published an op-ed in which our sex columnist, Audrey Ference, explained why she would side with rape accusers, even before knowing all the “facts.” It was a bold thing to write, but Audrey carefully and thoughtfully justified her position, citing pervasive examples of a society that blames the victim even in coverage of “the most cut-and-dried ‘honest rape’ cases.” In this case, the fact that this conviction reportedly came down to the victim’s memory of a parked car while she was being violated is unacceptable and viscerally disturbing. Hers is a story that should make us all question how rape accusations are tried, how rape victims are portrayed, and how that sends a message to victims to stay silent rather than risk reliving their trauma in front of a jury—a jury that could very possibly, even in the face of weighty evidence, deny validation and justice to that victim.

Michael Pena will be sentenced on May 7 and faces possible life in prison. At least that much seems fair.

[via NY Daily News]

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