The Right to Confront Your Accuser 

A rape victim's painful cross-examination in a recent rape trial at the Alameda County courthouse

Veronica Doe glared as she sat on the witness stand and described Lopez Bible, the man accused of kidnapping and raping her.

A 46-year-old Oakland woman whose real last name was not revealed during the case of People v. Lopez Bible, Doe struggled to answer a number of questions during cross-examination. There were questions about the exact time she went to sleep on the night of May 28, questions about the friend with whom she stayed, questions about the clothing she was wearing during her rape, and questions about the beer bottle Bible allegedly threatened to smash over her head. Doe testified that Bible raped her repeatedly, for several hours, after offering her a ride home in the early hours of May 29. She said he yelled threats about killing her and her mother, and burning down their home.The testimony was even more wrenching than it otherwise would have been because the person asking Doe the questions in court was Lopez Bible himself.During two separate cross-examinations, Doe answered Bible's questions about what he persisted in calling the "alleged incident." After Bible asked her about the sharp object he allegedly threatened her with, Doe delivered a reply that few witnesses ever provide a typical defense attorney: "You know better than I do what it was in your hand." She soon added, "It was enough to let me stop looking at your demon eyes."

This was, as Senior Deputy District Attorney Jeff Stark described it, a different sort of trial. Rape suspects don't usually question their accusers on the stand. Stark estimates that fewer than one percent of suspects in felony trials choose to represent themselves, particularly in front of a jury. "These things happen so rarely," he said. "If I've seen it before, it's only been once. Normally, just fear of ultra-long prison sentences keeps this from happening."

But Chief Assistant District Attorney Nancy O'Malley said her office has seen an unusually high number of felony suspects representing themselves lately. And in the last two months, three sexual assault suspects have opted to argue their own cases. O'Malley said she has no explanation for the trend.

Legally, Bible was within his rights to act as his own counsel. By refusing the public defender he was assigned and representing himself, Bible had the right to cross-examine all witnesses -- including Doe -- while arguing his case. "Whether or not there have been people trying to pass legislation to prevent this, it's pretty clear it would be unconstitutional," Stark said.Consequently, any of the roughly 90,000 other rape victims recorded each year by the Federal Bureau of Investigation could conceivably end up in the same situation as Doe. Observers of this phenomenon worry that it could have a chilling effect upon the willingness of rape victims to come forward and press charges. Many victims already never report being assaulted because of fear of further violation, or factors such as shock, shame, or guilt, said Marcia Blackstock, executive director of Bay Area Women Against Rape, who testified at the trial as an expert on Rape Trauma Syndrome. Roughly one out of three women, and one out of ten men, are sexually assaulted during their lifetimes in this county, Blackstock said, but only one in ten ever comes forward. Other advocates believe the percentage is even lower. According to the National Center for Victims of Crime, a 1999 survey of college women found that fewer than five percent of rapes and attempted rapes were reported to police.Although Deputy District Attorney Tara Desautels noted in her closing argument that rape is a brutal violent crime that is not about sex but control, because of the crime's sexual component rape victims have a special right not to testify in court. "They have a statutory right not to," said Stark, noting that even domestic violence victims are required by law to testify. "You don't want to force somebody that's been through that to go through more. Rape is considered the worst kind of crime that you survive."

Questioning of the type that Bible subjected Doe to is repulsive whether or not it is within the suspect's legal right, said rape-victim advocate Ellen Halbert. Editor of the national newsletter The Crime Victims Report and head of the victim witness division for the Travis County District Attorney's office in Texas, Halbert did not understand how a judge could allow a woman who has been raped to be "violated" again on the witness stand. "There ought to be some limit that prevents this from happening," said Halbert, a rape survivor herself. "This is horrible, it is just horrible. Talk about being revictimized."

Bonnie Bucqueroux, cofounder of the Michigan-based Crime Victims for a Just Society, also was disturbed to hear about Bible's cross-examination of Doe. But she didn't think it should be illegal. "When a suspected rapist is allowed to cross-examine, they often try to violate the victims again," she said. "But the last thing we want to do is convict someone wrongly."

Bucqueroux predicted -- correctly, as it turned out -- that Bible's choice might work to Doe's advantage. "What's that old saying?" Bucqueroux asked. "Something like, 'If you hire yourself as your own lawyer, then you have a fool for a client.'" The high numbers of innocent men on death row are sad proof that criminal suspects in court need the best defense they can get, said Bucqueroux, who also serves as co-coordinator of Michigan State University's Victims in the Media Program.

Even Elaine Lopes, a domestic violence survivor and 21-year veteran supervising victim witness consultant for the Alameda County District Attorney's office, found the case especially trying. "After 21 years, I don't usually cry," Lopes said outside Judge Robert Freedman's courtroom, adding that she held back tears during Doe's first day in court. "It was a very wrenching testimony."

Lopes worked with Doe and encouraged her not to let Bible get her angry. But Doe was extremely upset when she heard that Bible would be cross-examining her. "When I found out that she had to testify with him, I tried to prepare her as best I could," Lopes said. "She was just very embarrassed that she had to be questioned by him." But Lopes said Doe showed remarkable strength, becoming only more determined as the case continued.

The rarity of Doe's situation did not seem to provide her much comfort as she waited to face Bible in court. Sitting on a bench outside the courtroom before testifying, she said that "just hearing that voice all over again" was giving her nightmares. But soon after Bible began his cross-examination, Doe vowed that she was not about to let him violate her again. "You done took my soul and scarred me," she said loudly from the witness stand. "You are not going to play with my mind."

Doe, who had undergone abdominal surgery shortly before the rape, testified that at one point in her attack, she "gave up" and said, 'kill me.'" But sitting outside the courtroom while waiting to testify for the third time, she said giving up was no longer an option. "I'm not a quitter," Doe said. "That's for sure."

No doubt partly due to Doe's resilience in court, Bible's defense strategy didn't win over the jury in the end. He was found guilty last week on all counts: forcible rape, rape by a foreign object, and two counts of forced oral copulation, as well as several kidnapping clauses. He faces 25 years to life for each charge, Desautels said. Bible's two prior convictions, one for rape and "carnal knowledge," the other for burglary where a rape charge was dropped, will be considered when he is sentenced on December 18.

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