WOMEN'S BAR ASSOCIATION'S POSITION ON THE DAVID BECKER CASE

"The Becker case highlights the need for Massachusetts to carefully examine sentencing in rape and assault and battery cases.  We want a system that treats people of all races equally, ensures that the wishes of rape survivors are considered, and holds criminals accountable for their crimes.  However, our focus on a specific judge’s sentencing in one particular case is causing the legal community to miss the bigger picture.  

According to the Boston Globe, the majority of defendants in Massachusetts without criminal records have been given sentences without incarceration for convictions for indecent assault and battery in the District Court.  Rather than focusing on whether Judge Estes should be recalled, which is not a remedy, we should be calling for a review of sentences in rape and assault and battery cases throughout the Commonwealth on a regular basis.  Judges weigh many factors in sentencing including, but not limited to, the defendant’s record, the nature of the crime, and the wishes of the victim.  It may be that Massachusetts is handling these cases with the delicate discretion and impartiality needed—but we will never know until we look.   

Massachusetts should also be concerned that defenses such as the “victim should have stopped her rapist” and “the defendant has a bright future ahead of him if only we could look past this one ‘indiscretion’” can be successful.    According to The Republican, Mr. Becker’s lawyer, Thomas Rooke, said, “The goal of this sentence was not to impede this individual from graduating high school and to go onto the next step of his life, which is a college experience.”  However, there was no comment about how the two victims will be able to move forward in their lives after this sexual assault or how we get rid of this plague of entitlement that allows rapists to see their conduct as justified because the victim had not tried to physically stop them. 

This case received attention because the rape was of an unconscious woman. However, what about other victims who were raped but were not unconscious?  If we follow Mr. Becker’s line of thinking--- How loud should she have said no?  Should she have needed to scream?  Push him off her?  Yell for help?  All of this attention on what the victim did or didn’t do is misplaced – the focus must be on the rapist’s actions and he must be held accountable for those actions.  Victim blaming cannot be a defense against committing the crime of rape.  Simply put----rape occurs when a perpetrator does not obtain consent from the victim.  There is no requirement that an unconscious victim (or any victim) needs to try to stop their perpetrator from attacking them. 

The public discourse around this case should be focused on more than whether the judge sentenced Becker appropriately---we should be discussing the societal circumstances which make Becker’s excuse something that he is not ashamed to say out loud.  It is clear that even in Massachusetts, we need more education and funding for rape prevention programs both inside and outside the judicial system.  We must ensure that survivors of rape have the support they need to move forward with their lives."

- Kristin Shirahama

President, Women's Bar Association

As printed in Massachusetts Lawyers Weekly on September 12, 2016.