No one, not even his own attorney, can deny that Tom Vukodinovich made a string of very bad judgment calls. He abused his charge that he was hired to do when he turned his position of authority and responsibility and used it to engage in at least a two-year string of sexual liaisons with a developmentally disabled woman, who the prosecution said had an IQ of 37.
But would justice have been served if Mr. Vukodinovich, who is 74 years of age anyway, were simply relieved of his duties and not allowed to serve in the capacity of bus driver anymore? That was a decision that the Yolo County District Attorney’s Office had to make.
Once the Yolo County DA’s office made the decision that this was criminal conduct, apparently worthy of a life sentence, the question for the jury was whether the alleged victim in this case could consent to having sex.
As one of our readers noted, this is a troubling case all the way around. Victims like this victim are very vulnerable to manipulation and abuse. On the other hand, the idea that the defendant would be charged with 57 crimes, that he could face dozens if not hundreds of years in prison for these crimes, is beyond absurd.
I listened to the closing arguments live. It is not unusual for the prosecutor and defense to see a case very differently – that is the nature of our adversarial system. However, listening to each side, one had to wonder if they were talking about the same case and same set of facts.
For the prosecution, this was the story about a developmentally disabled woman. She had an IQ of 37, with a mental age of three or four. She saw sex in the same terms as a child, through technical descriptions.
However, listening to the defense, suddenly the victim has feelings and thoughts, can lie and manipulate a situation, and very clearly has affections for the defendant.
There are gray areas here. Did the woman really possess an IQ of 37 and was her mentality really that of a small child? We do not know for sure because, for reasons never really explained, Judge Mock did not allow her to be re-examined, and so we are relying on a test from 1978 when she was just 14 years old.
Not only has she changed since 1978, but our understanding of developmental disabilities has changed.
Deputy Public Defender Lisa Lance probably went too far calling it court-imposed celibacy, but she made a strong point overall in arguing against this very narrow bracketing of the alleged victim. Here we, as a society, have instilled the values of gaining developmentally disabled people as much independence as possible. We encourage them to work and socialize, but apparently not to get involved whatsoever in sexual activity.
Was the alleged victim manipulated by those around her who were charged with caring for her? Did she lie? Was she coached? It is hard to know. We know that Mr. Vukodinovich acknowledged – probably under false pretenses – to have engaged in the activity, so perhaps that portion does not matter.
But even so, we remain troubled by how this victim was portrayed during the trial.
As one poster noted, one with considerable experience in this area, it is quite unfortunate that in order to establish that a 49-year-old woman with a developmental disability has been sexually abused, we need to thoroughly demean her in court, describing her as a child with a three- or four-year-old mentality.
As noted, this is a woman who is 49 years old, she holds a job, she can do small things to care for herself – she is clearly not the same as a three- or four-year-old.
People who have developmental disabilities can still learn and progress, they have preferences and they can make choices.
The charging policies here follow standard procedure in a lot of long-running sexual abuse cases. They charge the two core charges – once per month over the course of two years.
In a technical sense, it is true that each incident can represent a separate crime and could be charged as such. But at some point, shouldn’t common sense take over? Shouldn’t the DA’s office evaluate the sum total of the case and decide what it is worth in terms of time? Does anyone think that what Mr. Vukodinovich did warrants over 100 years in prison?
And yet that’s where it was headed.
The final piece of this is the jury itself. They end up convicting only on about 11 counts, but that includes the most serious charges – the rape and attempted rape.
First of all, whether you believe the alleged victim could or could not consent, it seems that she was a willing participant in this.
Second, I do not understand how you can end up in a situation where the jury thinks some of the charges have been proven, but not others.
Will the DA attempt to retry on the remaining 46 lesser counts or will they be content that Mr. Vukodinovich, again, 74 years old and really not a threat to anyone, spends the remainder of his life in prison?
The jury here was perhaps in the unenviable task of trying to figure out the law here. Perhaps some of the jurors were confused on the timeline. Perhaps some of them thought this was simply too much, too many charges compared to the nature of the crime.
I have seen a lot of cases in Yolo County that I have issues with, but this one troubles me as deeply as nearly any other. It is not that I condone the actions of Tom Vukodinovich, they are disturbing in their own right. But I question whether they rise to the level of criminal activity and, if they do, I really question bringing the full weight of the criminal justice system to bear on this case.
Apparently, in this case, no one had the ability to stop the absurd train from leaving the tracks. The jury may have limited some of the damage, but not enough. Unless something changes, Mr. Vukodinovich, a man with great character references, who had never been in trouble in the legal system in his long life, will spend the rest of his days behind bars and nothing can erase the injustice of that.
In the end, no one was served by this process. Mr. Vukodinovich ends up with an absurd punishment. The alleged victim was not protected by anyone who was supposed to be in charge of her care – not her sisters whom she apparently fears and who seem overbearing, not Mr. Vukodinovich who took advantage of his authority, and not the prosecutor who demeaned and belittled her under the guise of acting as her protector.
—David M. Greenwald reporting
[quote]Deputy Public Defender Lisa Lance probably went too far calling it court imposed celibacy, but she made a strong point overall in arguing against this very narrow bracketing of the alleged victim. Here we as a society have instilled the values of gaining developmentally disabled people as much independence as possible, we encourage them to work, socialize, but apparently not get involved whatsoever in sexual activity.[/quote]
I am not sure that Ms. Lance did go to far with the accusation of “court imposed celibacy”. It was not so very long ago that individuals with relatively minor intellectual disabilities could be sterilized without their knowledge or consent if their caregivers felt that this was warranted. Our society has been very slow to recognize the subtleties and nuances of mental and intellectual disabilities and has tended to lump all of those with disabilities into one societally manageable group thereby dismissing their areas of competency.
To me, the failure to re evaluate was an egregious demonstration of this. We would not dream of judging the competency of a 14 year old the same as we would that of a 49 year old if we were considering the ability to make sexual decisions for oneself in a person who did not carry the stigmata of “intellectual disability”, but that was the decision that was made here.
Going one step further, “court imposed celibacy” is exactly what the court has imposed on “the victim” in this case. If she is deemed as “unable to give consent” in this case, would we not presume that she would be determined to always be “unable to give consent”? And if this were the case, does this not preclude anyone from engaging in sexual activity with her without the risk of criminal prosecution. To me this pretty much precludes any sexual activity except masturbation for this 49 year old woman. And this on the basis of a decision that was made when she was 14. Based on my career, there is probably no one posting here who is more disturbed by the sexual exploitation of the emotionally or intellectually challenged. However, in my career, I have also seem even severely affected individual evolve and gain competency over time. To make the assumption that this woman could not have changed in her capacity over the past 35 years is ridiculous.
To me this case carries a very strong whiff of our society’s desire to impose very conservative sexual mores on others. This combined with our desire to impose “punishment” for acts of which we do not approve, regardless of whether or not the individual who committed them poses any threat at all to our community
is a travesty.
You make a strong point there Medwoman. I don’t disagree with it. The one point I would make is that you end up in the position whenever there is an asymmetry of power, that things are rife for abuse. That’s where I remain hung up. But I’m convinced that this did not need to be criminally prosecuted.
Ok, just one more comment in case any of you have doubts about the depth of my disturbance with this case.
[quote]In the end, no one was served by this process. Mr. Vukodonivich ends up with an absurd punishment. The alleged victim was not protected by anyone who was supposed to be in charge of her care – not her sisters who she apparently fears and who seem overbearing, not Mr. Vukodonovich who took advantage of his authority, and not the prosecutor who demeaned and belittled her under the guise of acting as her protectorate.[/quote]
I agree completely with this statement, and feel that you left out one very important group that was not served by this decision. Our society. Mr. Vukodonivich has not been shown to be a threat to anyone.
And yet, we are considering imprisoning this elderly man for his abuse of a position of authority which I believe was his only “crime” determined beyond a “reasonable doubt” at an estimated $47,000 dollars a year ( and probably considerably more) given his age and the fact that the two most costly items of incarceration are housing and medical care the latter of which will likely increase dramatically as he ages in the less than healthy environment that is prison. Do we truly see it as “justice” for anyone including our society to pay exorbitant amounts of money to imprison an elderly man who poses no threat to our community. And if one felt he did pose a threat, how about close monitoring with an ankle bracelet, or an assisted living situation in which he could be closely monitored.
Are we really so focused on retribution as a society that we cannot, even at great cost to both “the victim” in terms of self determination, and the economic cost to our society, see past our own biases and punishment based view of justice, to realize that there might be a wiser course here ?
David
[quote]The one point I would make is that you end up in the position whenever there is an asymmetry of power, that things are rife for abuse.[/quote]
I completely agree that in this case there was a huge discrepancy and asymmetry of power between the two and I, like probably everyone else, disapprove of Mr. Vukodonovich’s exploitation of that asymmetry.
However, disparity of power is the norm, not the exception in our society. There are very few situations in which there is not some “asymmetry of power” in relationships, really of any type. This get’s to the heart, I believe of consenting freely.
If you have been taught, for example, as I was, that the man is the head of the household and that the woman should be deferential, does she have an obligation to “consent” even if it is not her desire ?
At what age, or wealth, or social position, or intellectual degree of disparity do we decide that there was not the ability to give consent? When do these disparities constitute coercion ? Tough questions even when the evidence is clear cut and indisputable as was clearly not the case here. To me, having been involved earlier in my career in the collection of evidence for allegations of rape, to convict on charges of rape without any physical evidence that this occurred is …..ok, I can’t think of a new more dramatic pejorative…
a travesty.
Agree the lack of current evaluation of the victim is just plain wrong. Why didn’t the defense push for this? Why did the judge not agree?
Excellent question, SODA, and I hope we get some accurate information from those who covered this for The Vanguard.
It’s odd that we’re making judgments today on David’s contention above that “…we are relying on a test from 1978 when she was just 14 years old.” Why doesn’t the sentence go on: “and an evaluation in 1991 when she was 27 years old….”?
As medwoman pointed out that we’re pretty much limited to making judgements about this case based on the Vanguard coverage. But, just three days ago, David wrote:
“The state’s case rested on the evaluations of a psychiatrist who evaluated the alleged victim back in 1978 when she was just 14 years old. There was a 45-minute reevaluation in 1991. At that point, the prosecution argued the alleged victim had moderate mental retardation and an IQ of 37. She had the mental age of three to four years.”
It would be interesting to answer your question by telling us what the judge ruled, rather than kissing off the matter with: “…for reasons never really explained, Judge Mock did not allow her to be re-examined.”
I doubt this characterization of Judge Mock’s ruling. I can speculate on why a victim shouldn’t be subjected to evaluation of her IQ when she was a child and as an adult and when her life has been lived as a certified developmentally disabled person.
In any case, just how would it have helped with the defense? Are we supposed to believe she leaped to, say, a 90 IQ from 37 between the time she was in her 20s and her 40s (ala “CHARLEY”).
But, what can we expect from one reporter who saw this case as fodder for his “humor” about sex with the “dimwitted” and another who pretends she cannot understand the difference between capabilities of a 3-4 year-old child and a 49-year-old, moderately retarded woman whose education and occupational training permits her to live a productive life, albeit with special job limitations and caretakers.
I’ve got a number of problems with David’s commentary today, but hesitate to comment because it’s difficult to depend on reporters who start each trial so critical of the process and so accepting of the defense case before its even presented.
This woman would have little depth of understanding of sex and STD’s and pregnancy. She could not give informed consent to this secret relationship with a care provider of one sort or another.
It might be okay if she had a caring relationship with a person who was her equal, after health safeguards were in place.
This man took advantage of a mentally impaired person. It’s illegal to do so, for good reason. We should not have to worry about predators like this taking advantage of impaired persons.
Punishment: Letting the perpetrator off with too light a sentence sets a bad precedent. And he’s not that old — evidently he’s been feeling rather frisky in recent years. I had a 78 year old man on my caseload, until he tried to molest a 6 year old boy in the park restroom.
How about 5 years in prison, and a long time with an ankle bracelet?
I wonder why this ever went to trial? Did the perp think the woman wouldn’t make a good witness, or wouldn’t cooperate with the prosecutor?
He might have been way better off himself to have negotiated a plea deal, and the woman wouldn’t have had to go through this.
[quote]…for reasons never really explained, Judge Mock did not allow her to be re-examined, and so we are relying on a test from 1978 when she was just 14 years old.[/quote]
Without a clear idea of what her mental abilities are, I don’t see how this case cold be prosecuted at all. She needed to be tested to see her currant mental state.
[quote]The charging policies here follow standard procedure in a lot of long-running sexual abuse cases. They charge the two core charges – once per month over the course of two years.[/quote]
The DA seems to do charge this way for a few reasons; jurors tend to think with so many counts the defendant must be guilty of something and it’s very difficult to defend against once a month for two years. With this type of charging if the jury thinks that maybe one time something happened they come back with a guilty verdict.
Themis, there was evidence presented that the victim clearly is in the very lowest of the “moderately retarded” classification–evaluated at 14 years of age, again in 1991 and lived that way for all of her life. Sadly, moderate retardation is not a curable condition.
The defendant knew of her lack of capacity, and served as a care-giver/guardian/driver because of her limited ability to care for herself. The request for another IQ test obviously was a defense tactic to bully the victim. If it were a serious request, Davis and the Vanguard reporters would have described the court action.
Help me here, medwoman! How much could the victim’s 37 IQ have increased since 1991 during her sheltered living and working situations? Is it conceivable that she would have grown out of the mentally impairment that has her protected from sexual abuse by current California law?
[quote]David: “The charging policies here follow standard procedure in a lot of long-running sexual abuse cases. They charge the two core charges – once per month over the course of two years.”
Themis: “The DA seems to do charge this way for a few reasons; jurors tend to think with so many counts the defendant must be guilty of something and it’s very difficult to defend against once a month for two years.”[/quote]I’d be interested, Themis, on seeing your evidence for your comment about jurors.
I’m also curious how many counts you’d charge for dozens or hundreds of crimes over several years? (Obviously, the defense was very successful at defending against “once a month for two years.”)
[quote]”Deputy Public Defender Lisa Lance probably went too far calling it court-imposed celibacy, but she made a strong point overall in arguing against this very narrow bracketing of the alleged victim. Here we, as a society, have instilled the values of gaining developmentally disabled people as much independence as possible. [u]We encourage them to work and socialize, but apparently not to get involved whatsoever in sexual activity.[/u]”[/quote]You’re correct that Ms. Lance went too far, but her responsibilities give her a lot of latitude to come up with reasonable doubt. On the other hand, you have a different role, one that isn’t served well by coming up with the underlined conclusion that you must know is false.
First, what do you mean by “this very narrow bracketing of the alleged (?) victim”? What does “bracketing” even mean to you in this situation.
Second, I’m sure you know that society and California law have for decades provided for the [u]rights[/u] of the developmentally disabled to engage in sexual relationships. Why do you claim the opposite?
[quote]eagle eye: “This woman would have little depth of understanding of sex and STD’s and pregnancy. She could not give informed consent to this secret relationship with a care provider of one sort or another.”[/quote]eagle eye is correct in theory and in the law. I’m mystified about how David, the Vanguard reporters and some posters attempt to minimize the issue here and the unlawfulness of the sex acts against the victim.
I guess if you have a problem with laws that protect minors and the mentally retarded from adults who would gain sexual gratification from raping children and the mentally retarded, go talk to the state legislature and get them to change the protective legislation.
Be ready to get kicked out on your butts because these laws have been carefully developed over many years. There’s no chance that society will change its views on sexual abuse of children and the mentally retarded, particularly when imposed by folks whose jobs are to protect these people rather than take advantage of their inability to protect themselves.
Maybe you’ll be successful in getting rid of these protective laws. Then, we’ll be back to where the defense gets to say, “You’ve got nothing on me; it was consensual.” Well, son of a gun, that’s what you’re arguing in this case.
Just Saying
I don’t know what your background is but moderately retarded (which is not even a classification now days because they don’t use the word retarded) is definitely NOT at a 3 or 4 year old mental level. As I said she should have been evaluated before the trial. The judge made a huge mistake in not ordering it.
All I know is what I read in The Vanguard, Themis:
“For the prosecution, this was the story about a developmentally disabled woman. She had an IQ of 37, with a mental age of three or four (see David’s article, above).”
I’ll stand corrected if a little research supports you statements that “moderate retardation” is not a current legal classification. Not that it matters in this case, but how should those in this trial described the normal age level for an IQ of 37?
Why are you insistent that “the judge made a huge mistake” in not ordering yet another test of the victim’s IQ? Is there a law he didn’t apply correctly? Was all of the evidence about her capabilities not adequate to assure you that some recent miracle didn’t occur that could have removed her legal protections under California law?
I’m still interested in knowing the basis for your claim that “jurors tend to think with so many counts the defendant must be guilty of something.”
Some reports suggest almost all developmentally disabled people suffer some sexual victimization during their lifetimes.
Here is the reason we have laws to protect people like the victim in this case:
“Someone with mental retardation is often unable to choose to stop abuse due to his or her lack of understanding of what is happening during abuse, the extreme pressure to acquiesce out of fear, a need of acceptance from the abuser or having a dependent relationship with the abuser….People with mental retardation often do not realize that sexual abuse is abusive, nor do they know it is illegal. Consequently, they may never tell anyone about sexually abusive situations….It may be even more difficult for people with mental retardation to report sexual abuse since they typically learn not to question caregivers or others in authority. Sadly, these authority figures are often the ones committing the abuse. People with mental retardation are rarely educated about sexuality issues or given self-assertiveness training which is necessary in learning the difference between “safe” versus “unsafe” people and situations, and in knowing how to say “no” to unwanted sexual propositions. They often think they do not have a right to refuse sexually abusive treatment, especially if the abuser is an authority figure….” (“People with Mental Retardation & Sexual Abuse” by Leigh Ann Davis, M.S.S.W., M.P.A.)
Here is why the guilty perpetrator of these crimes is particularly due punishment:
“As is the case for people without disabilities who experience sexual abuse, those most likely to abuse are those who are known by the victim, such as family members, acquaintances, residential care staff, transportation providers and personal care attendants. Research suggests that 97 to 99 percent of abusers are known and trusted by the victim who has developmental disabilities (Baladerian, 1991).”
Is there any doubt even suggested by anyone that Thomas Vukodinovich engaged in unlawful sex with this victim for at least two years, that he knew it was illegal and that he confessed, that DNA, witness reports and other forensic evidence supported the confession and charges?
Why is there so little empathy, then, for the victim who is protected by state law from such acts because she’s incapable of protecting herself.
Themis, here’s what I’ve found:
From the Free Dictionary–“Moderate mental retardation: About 10% of the mentally retarded population is considered moderately retarded. Moderately retarded individuals have IQ scores ranging from 35-55. They can carry out work and self-care tasks with moderate supervision. They typically acquire communication skills in childhood and are able to live and function successfully within the community in a supervised environment such as a group home.”
From the Primary Care Companion to the Natl. Journal of Psychiatry–“This article uses the standard terms ‘mentally retarded individual’ or the ‘mentally retarded’, both of which are in accordance with the terminology used by both the American Medical Association (AMA) and the American Association on Mental Retardation (AAMR), a strong advocacy group for this population.”
From a large number sites: “The following is the currently used classification of retardation in the USA–
IQ RangeClassification
50-69Mild
35-49Moderate
20-34Severe
below 20Profound”
Themis wrote: “Just Saying. I don’t know what your background is but moderately retarded (which is not even a classification now days because they don’t use the word retarded) is definitely NOT at a 3 or 4 year old mental level.”
What’s your basis for this strong statement? If it’s “definitely NOT at a 3 or 4 year old mental level,” at what age level would a 37 IQ adult be able to operate?
One idea from an Internet search: “Most of the abilities measured by an IQ test tend to level off around age 16….To convert a mentally retarded adult’s IQ into a rough age equivalent, multiply the IQ by 16, and then divide by 100. So an adult with a 50 IQ is functioning at roughly an 8-year-old level.”
So, Themis, do you feel better with this rough calculation of “a 5 or 6 year-old” instead? Then, would that make any difference in his case?
JustSaying
[quote]Help me here, medwoman! How much could the victim’s 37 IQ have increased since 1991 during her sheltered living and working situations? Is it conceivable that she would have grown out of the mentally impairment that has her protected from sexual abuse by current California law?[/quote]
I will be happy to try.
My disclaimer is that I am not a psychologist. However, I have consulted with one regarding this issue.
It is not that the victim’s IQ itself would have changed dramatically as measured on a standard test. It is rather that an IQ test is a direct measure of one thing, and one thing only. That is the ability of a person to perform on an IQ test. It is not, and should not be used as a measure of functional capacity which is based on a number of other factors which determine how well the individual is able to function in multiple areas of their life. Would any one make the claim that a member of Mensa is necessarily going to do well in any specific area of their life simply because they score in the highest levels of IQ testing ?
Functional capacity is much more complex than this single measure and it is the overall functionality based on this woman’s total life experience that I feel warrants assessment. Certainly we know that the brains of children at age 14 work very differently in terms of their impulsivity and their ability to understand complexity of their actions and to defer gratification that do the brains of 25 year olds. Would it be so much of a stretch to believe that while the IQ of this woman might have been close to the same, her overall functionality might have been quite different ?
I say this not to defend the accused, who’s actions I have already stated that I find reprehensible. I say this because it seems to me that the victim is at risk not only from those who would take sexual advantage of her naivete, but also from those who would deny her the right to any sexuality. At age 49, I think it is important to be honest about what it is we are protecting her from. Her chance of getting pregnant at this age is approaching 0. Likewise, women in this age group virtually never acquire either of the two most common STD’s namely chlamydia and gonorrhea since changes in the reproductive tract over time make us virtually impervious to these diseases. HIV, syphilis and hepatitis are vanishingly rare in our population.
So what we are really preventing in this instance is her ability to choose to engage in any sexual activity because the thought of it, not the actual risks involved, makes us uncomfortable. Obviously, I am not arguing for sexual predation, but am arguing for adult self determination unless it is clearly demonstrated that the individual is unable to understand and consent to desire and sexual pleasure at their current level of understanding and competency. It was not clear from the quotes that were presented here that this was determined to be the case.
I appreciate your observations about the limitations of IQ testing. I understand and agree with everything you’ve passed along except your conclusion that “what we are really preventing in this instance is her ability to choose to engage in any sexual activity….”
The victim here has the right to make make her own decisions about sex, a right by law. She is not being charged with anything, and will be able to be sexually involved with people she chooses.
I have to say that a person with an IQ measured at 37 should fall into a category that is protected from sexual predators who happen to be among her caregivers. Even with the shortcomings in IQ tests, this measurement doesn’t make it a close call. And, the DA obviously presented other information that clearly demonstrated to the jury that there was no reasonable doubt that Thomas Vukodinovich was guilty of some of he charges.
The case is a lot like the issue of adults having sex with minors. One could argue that the age of consent should be one age or another. One could argue that there are wise, mature 15-year-olds and there are impulsive, unthinking 19-year-olds. Should we allow the defense to test the level of maturity of each victim before trial?
So, where is the problem located with respect to this case? With the law itself? With the jury’s decision? (Just ignore David’s canard that a jury should convict on all charges or none of them in order to make its decision legitimate.).
“How about 5 years in prison, and a long time with an ankle bracelet?”
More reasonable than what he’ll get, but why does he need an ankle bracelet at 79 years old when he won’t be a threat to anyone and can’t resume his own job?
“I wonder why this ever went to trial? Did the perp think the woman wouldn’t make a good witness, or wouldn’t cooperate with the prosecutor?”
What do you mean? They deliberated for almost three days on it – it was not a cut and dried decision and I’m sure the DA didn’t offer anything reasonable enough that he would take it.
“How much could the victim’s 37 IQ have increased since 1991 during her sheltered living and working situations? “
They didn’t test her IQ in 1991. They had a 45 minute meeting with her then. That’s why I didn’t really include it this time.
“Obviously, the defense was very successful at defending against “once a month for two years.””
As far as I could tell, they didn’t try that approach at all. They never made an issue over the number of charges.
To answer your core question, you have to start by deciding what the appropriate punishment is for this crime? Is it life? Is it de facto life give his age? Is it 10 years, 5 years, probation? Once you figure that out, then you charge accordingly.
“Second, I’m sure you know that society and California law have for decades provided for the [u]rights[/u] of the developmentally disabled to engage in sexual relationships. Why do you claim the opposite?”
Because as the defense pointed out in this case, if the jurors deem her incapable of making her own decisions regarding sex, she ends up not having the right to have a sexual relationship.
Just Saying: Did you read Eric Gelber’s comment on Thursday’s article? Then google Eric Gelber and state legislator to see who he is.
So this guy is her bus driver. As a bus driver isn’t he responsible for her supervision? This went on for two years. Your argument is she might have wanted it. So what, it doesn’t matter. i knew a swim coach who went to jail because his student wanted it. Yes she was under the age of consent but nobody disputed who initiated the conduct. He was entrusted with her safety and supervision and violated that trust. Its the same here. I haven’t followed the facts here but my guess is he didn’t ask anyone if he could date her nor did he act in the open but rather did this when he was responsible for her safety. If those assumptions comport with the facts then the bus driver is guilty of serious crimes. Your dismissal of the abuse of power by the bus driver goes to far.
“too far”
JustSaying
[quote]The victim here has the right to make make her own decisions about sex, a right by law. She is not being charged with anything, and will be able to be sexually involved with people she chooses.
[/quote]
It is not a matter of being charged with anything. It is a practical matter. If we are going to treat her based on her arbitrarily extrapolated “age” from IQ testing ( not a legitimate although frequently used aspect of this test according to my consulting psychologist ) rather than on the basis of her total functional capacity, she will never reach the “age of consent” and therefore always be precluded from her choice to be sexually active.
[quote]The case is a lot like the issue of adults having sex with minors. One could argue that the age of consent should be one age or another. One could argue that there are wise, mature 15-year-olds and there are impulsive, unthinking 19-year-olds. Should we allow the defense to test the level of maturity of each victim before trial? [/quote]
My answer is “yes”, this is exactly what we should be doing. And I would extend that to the level of maturity of the “perpetrator” also. This would provide us with a much better understanding of the dynamic that actually occurred between the two individuals especially in cases where the ages and degree of coercion or lack thereof are unclear. The problem is that we are not advanced enough yet scientifically to have a useable measure of maturity. Therefore we draw an arbitrary line in the sand knowing that this will result in some cases of gross miscarriage of “justice” but do so with the rationale that “we have to draw the line somewhere”. Hopefully, someday, we will be able to get to the point where we have, possibly through brain scanning, or some other modality, a more objective measure of maturity.
JustSaying
I think that I would like to elaborate a little on my strong belief that maturity and not age should be the criteria that we ultimately adopt for our judicial system. This is a case in my practice from long ago and far away so no privacy violation here.
In my 30’s, I ran a teen pregnancy clinic in Southern California. The age criteria was
OK. Same problem as yesterday.
I will try again.
The age criteria for my teen clinic was less than or equal to 17. Our clinic included visits with a social service worker, a function of the clinic that was much needed by most of the patients.
On the first prenatal visit of one 16 year old, she informed me that she did not need a social service worker and did not need to be in teen clinic. When asked to elaborate, she told me that she belonged to a religious group in which early marriage and child bearing was the norm. She was married to a fully employed 25 year old with her parents approval and this was a planned pregnancy. I agreed with her completely and offered to see her in my regular clinic if she preferred. She was actually amongst the most
“mature” patients I have taken care of.
Our one size fits all by age system does not allow for nuances of individual variability in rates of maturation or complexity of functionality. Within our judicial system, I believe that this cookie cutter approach to maturity sometimes works to the detriment of the victim, sometimes to the detriment of the accused, and sometimes possibly to the detriment of both.
“The problem is that we are not advanced enough yet scientifically to have a useable measure of maturity. Therefore we draw an arbitrary line in the sand knowing that this will result in some cases of gross miscarriage of “justice” but do so with the rationale that “we have to draw the line somewhere”. Hopefully, someday, we will be able to get to the point where we have, possibly through brain scanning, or some other modality, a more objective measure of maturity.”
Again, I appreciate your informed opinion on how we deal with minors and the mentally disabled. Of course, we aren’t yet as scientifically advanced as you’d wish we’d be. (maybe we also could end up with a perfect lie detector that could determine guilt in minutes, eliminating the need for trials and the adversarial approach that brings so much unpleasantness.)
But, as long as we have the need for society to have laws, we’ll end up with potential for “gross miscarriages of justice” in situations that don’t quite fit. Our system has several ways to deal with this, not the least of which is the “beyond reasonable doubt” standard designed to allow the guilty to go free in order to minimize the chance that the innocent will be convicted.
To my mind, there are situations with little room for doubt about the wisdom of sex laws. A child of 11 and a mentally disabled person with an IQ of 37, for example, deserve state protection from predators–especially those who serve as their caregivers–and recognizing a victim’s lack of ability to consent is critical.
Still, juries take in the totality of the evidence. It’s likely that this happened in the Vukodinovich trial in spite of my utter disappointment with the Vanguard’s trial coverage. (I do still wish we knew how the defense and prosecution dealt with the measured IQ issue and how Judge Mock ruled on the matter.)
The fact that jurors deliberated three days and found guilt beyond doubt on only a few of the charges helps satisfy me that they got it right. The fact that Mr. Vukodinovich had such strong counsel makes me feel that his rights were protected during the process.
David — Sorry to tell you that Eric Gelber has made a nice and easy living for himself as a disability rights “advocate” but sometimes people are all talk and little heart/action.
Age: Just because the defendant in the case is or will be in his 70’s doesn’t mean he would stop predatory activities. Old people do it too.
JustSaying
[quote]deserve state protection from predators–especially those who serve as their caregivers–and recognizing a victim’s lack of ability to consent is critical.
[/quote]
Agreed, and in the case of adults capable of holding down jobs (even those which are sheltered), I would like them to also be protected from the state’s arbitrary, and perhaps not currently valid, assessment of
“ability to consent” which then can be used to limit their choice of very personal, private, and intimate activities.
Eagle eye
[quote]Age: Just because the defendant in the case is or will be in his 70’s doesn’t mean he would stop predatory activities. Old people do it too.[/quote]
I am in complete agreement with this point. Age is not the point. However, remorse might be. This is why I would recommend close monitoring, but not prison. I can’t help but wonder if this might be another example of a place for restorative justice. Your thoughts Robb ?
Point of order: May I suggest that if someone is going to criticize another commenter by maligning their integrity and making ignorant and uninformed statements about their professional experience and accomplishments, they at least be required to use their names rather than hiding behind a pseudonym, like, for example, Eagle Eye.
Eye and Med: I raised age because with age comes access. Without Mr. V’s access, he had no ability to be any kind of threat.
I’m not shrugging off any notion that he abused his power – he clearly did, my only question is really whether he deserves to spend the rest of his life in prison and even with the relatively few counts of conviction, he clearly will.
I have tremendous respect for Eric, his thoughtful post the other day, and don’t think that was a fair criticism.
Just Saying: there is no doubt Mr. V had a strong defense, but the strongest defense in the world, doesn’t negate the power asymmetry that the gatekeeper has in the system.
A strong defense also can’t get a guilty person judged “not guilty” by a thoughtful, dedicated jury.
You obviously wanted the “gatekeeper” to ignore serious crimes to avoid the possibility that a 74-year-old might end up with a “life sentence.” It just isn’t reasonable to expect a DA to accept such an outrageous concept. What this 74-year-old did was inexcusable, but most of all it was criminal.
At 74, a caretaker for the developmentally disabled who doesn’t want to die in prison shouldn’t be trying to rape his charges. Actually, if you have an arbitrary age for which we shouldn’t be accountable for violent lawbreaking, put it out there–I’ve been holding off some serious actions for years.
You need to look to judges to consider the sentencing issues and quit blaming the DA for doing his job in difficult cases like this one. I also think you should give more credit to juries for their contributions to justice.
“A strong defense also can’t get a guilty person judged ‘not guilty’ by a thoughtful, dedicated jury.”
I disagree. This misses the important qualifier: “…every guilty person….”
JS: “Second, I’m sure you know that society and California law have for decades provided for the rights of the developmentally disabled to engage in sexual relationships. Why do you claim the opposite?”
DG: “Because as the defense pointed out in this case, if the jurors deem her incapable of making her own decisions regarding sex, she ends up not having the right to have a sexual relationship.”
This philosophical concept is not a serious legal contention. We can expect to see this woman hauled into a future court by some DA for choosing to have sexual relations with someone? Seriously?
She loses none of her legal rights by the accused being convicted of his crimes. She doesn’t “end up” in any legally disadvantaged position. This attempt to transfer Mr. Vukodinovich’s guilt to the victim is understandable as a defense tactic, but an embarrassment upon minimal reflection.
Furthermore, the idea that the DA somehow did wrong by proceeding when the victim might be embarrassed by the DA identifying here as developmentally disabled is just silliness. Again, it’s defense strategy to discredit the victim, and it obviously happened in this case.
…
DG: “Did you read Eric Gelber’s comment on Thursday’s article? Then google Eric Gelber and state legislator to see who he is.”
Of course, I did. I agree with everything he wrote with the possibility of one point. We both need to know why the judge ruled against requiring a new test to determine if she still was developmentally disabled enough to fall under state protection.
As one of the two major issues in this case, it seems The Vanguard would make some serious effort to determine the facts of this. How did the defense bring up the matter? What did the judge rule?
There may be legitimate reasons. Maybe a disabled person is immune from having to reprove the extent of her disability every time someone is charged with raping her.
Maybe the court considered the initial testing, the 1991 “reevaluation” you discount and the testimony of those who work with her from day-to-day adequate to determine she still is developmentally disabled and protected. Maybe the defense accepted the ruling. Maybe it’s only purpose was to provide some avenue for an appeal if found guilty.
Who knows? Inquiring minds want to know before announcing that the judge made a big mistake that turned an innocent person into a guilty predator.
I would add that it’s a good thing that Eric Gelber didn’t wait until the next day to comment on the Vanguard coverage. He might be equally troubled by your reporters’ sophomoric “enjoying sex with dimwits” comedy routine and contention that there’s no difference between the intellect of a child and a developmentally disabled person. I was offended be the stereotyping reflected in their reports, and think it fits into his expressed concerns.
David, I don’t see the outrageous miscarriage of justice you do in this case. It’s not easy to carry on an intelligent conversation when the Vanguard coverage has been so inadequate and biased from the very beginning.
But, it’s also troubling when you say you don’t want to minimize the acts and, as you done in other cases, provide a long list of minimizations. Why they always lead to exoneration (or, more accurately, to a lack of prosecution or, even more accurately, to criticism of the DA for bringing charges) has bothered me.
I’ve pretty much given up responding on specific cases because it looks like we’ll never agree on them (although I think we agree on most of the large issues involving justice).
I still read the coverage and, although I’m fully supportive of intern roles, I’d like to see the Vanguard program provide better guidance and editing for their work. I know it’s easy for me to say, but more professional and less biased reporting probably would lead to better response commentary as well.
JS:
Antoinnette I believe was the only one there when the judge made that ruling and doesn’t recall an explanation. So it’s difficult to answer the question.
I want to more specifically respond to these points:
“David, I don’t see the outrageous miscarriage of justice you do in this case. It’s not easy to carry on an intelligent conversation when the Vanguard coverage has been so inadequate and biased from the very beginning.”
That’s fair. I’m not sure that the coverage has been that inadequate. But I disagree on the miscarriage of justice.
First, did a crime occur? You seem convinced that it did. I’m not convinced on that point, but accept that it’s possible.
That leads us to the next question: what should the remedy be if there was?
To me the clearest thing is simply remove him from the position of authority. Now he’s a 74 year old retired person, and he has no access to possible future victims?
Is that enough? You seem to feel no.
Okay? Then what should the punishment be? To me the outrageous aspect is not that the case was tried criminally as I think that’s a relatively close call, but the number of charges. Do you see this as a life sentence crime? 100 plus years in prison? Because I don’t.
“But, it’s also troubling when you say you don’t want to minimize the acts and, as you done in other cases, provide a long list of minimizations. Why they always lead to exoneration (or, more accurately, to a lack of prosecution or, even more accurately, to criticism of the DA for bringing charges) has bothered me.”
So I don’t think I’m minimizing the acts, but rather disagree with where this kind of case takes us.
“I’ve pretty much given up responding on specific cases because it looks like we’ll never agree on them (although I think we agree on most of the large issues involving justice).”
I think it’s important that you do respond (even if I’m late getting back to you). I need the feedback. You may not see it, but you’ve influenced a lot in terms of our approach.
“I still read the coverage and, although I’m fully supportive of intern roles, I’d like to see the Vanguard program provide better guidance and editing for their work. I know it’s easy for me to say, but more professional and less biased reporting probably would lead to better response commentary as well.”
I’d love to have full time person to go into the courthouse and supervise the interns – either an attorney or a journalist. Right now I’m the one and only supervisor. I’m working this fall on putting some money together, but that requires I spend my time on the phones and meeting with people.
People do not recognize how much work this “job” of running the Vanguard entails. I’m not criticizing or even disagreeing with your point. It’s just going to take a few more iterations to get things to where I want it.
Also other than Antoinnette and Catherine, I’m basically working with all new interns now. I have several good ones, but it’s going to take them time to catch up to where the others were.
Just Saying
[quote]We can expect to see this woman hauled into a future court by some DA for choosing to have sexual relations with someone? Seriously?
[/quote]
Of course not. But that is not the only means by which someone can be limited sexually. If she cannot decide for herself whether or not to have sex, then a third party, such as a guardian could bring charges against the man if she for instance wanted to have sex with a man with a marginally higher IQ, say of 50.
This determination that she is not competent to determine her own sexuality puts her sexual expression totally at the mercy of her guardians and the state.
I do not doubt that she was taken advantage of by Mr. Vukodinovich. And now she has effectively has her freedom of sexual expression taken away by the State in the name of protecting her. Again, I would ask, protecting her from what exactly ?
wow david, so glad you were not on the jury. Sounds like the sisters would be the ones in jail! Thank goodness that didn’t happen. And you do know, as it was stated in the courtroom the reason she didn’t get retested was cause when she got the diagnoses years ago, the diagnoses doesn’t change. That never goes away just because a person ages. If you dont have a child of your own with special needs, this is a subject not everyone knows what they are talking about. Just wait until you have a daughter, who is eventually diagnosed with mental retardation, and then let some weirdo take advantage of her. And that’s when the rest if us can say “well your daughter is able to give consent and she was a willing participate” cause there’s absolutely no way the two go together. Either she’s mentally handicap and cannot give consent or she’s normal and can. By the way, it’s to be noted that Tom, the bus driver, was an actor in his life, he did a great job of acting in the courtroom. Tom got what he deserved, he tried to get out of all of it, praying the jury delivers 27 years. Eat that up hahahahhaha
wow david, so glad you were not on the jury. Sounds like the sisters would be the ones in jail! Thank goodness that didn’t happen. And you do know, as it was stated in the courtroom the reason she didn’t get retested was cause when she got the diagnoses years ago, the diagnoses doesn’t change. That never goes away just because a person ages. If you dont have a child of your own with special needs, this is a subject not everyone knows what they are talking about. Just wait until you have a daughter, who is eventually diagnosed with mental retardation, and then let some weirdo take advantage of her. And that’s when the rest if us can say “well your daughter is able to give consent and she was a willing participate” cause there’s absolutely no way the two go together. Either she’s mentally handicap and cannot give consent or she’s normal and can. By the way, it’s to be noted that Tom, the bus driver, was an actor in his life, he did a great job of acting in the courtroom. Tom got what he deserved, he tried to get out of all of it, praying the jury delivers 27 years. Eat that up hahahahhaha