Statement of Wendy J Murphy, Esq.
I was honored to represent Alexa in her civil case and in her criminal trial. She was so strong and resolute in her decision to fight for justice. I’ve worked with hundreds of victims over the past 20 years, in civil and criminal cases, and Alexa is among the strongest and most dedicated – having literally changed her life plans to use her personal experience to help others.
It isn’t easy for victims to participate in the criminal justice system, but it is essential that every person who suffers a sexual assault understand the importance of reporting and testifying in court. Without aggressive victim participation, the woefully low prosecution and punishment rates will persist. In turn, the epidemic of sexual violence in society will worsen. Rape prevention is dependent on the effectiveness of the criminal justice system. Perpetrators will commit fewer assaults if they believe there is a real risk of being caught and punished for their crime.. We haven’t yet sent such a message about rape in society — but organizations like “It Happened to Alexa” are making a difference and I’m proud to serve on the Advisory Board which enables me to help lots of victims who reach out to IHTA when the going gets tough.
As IHTA often points out “it shouldn’t cost victims money to achieve justice”. This rather simple idea applies to other systemic problems. It shouldn’t cost victims emotional health, needless invasions of privacy or gratuitous violations of their rights as human beings either – but victims are made to bear all sorts of unfair personal costs all the time in the name of justice.. Is it any wonder the reporting, prosecution and punishment rates are so low?
IHTA helps by reducing economic costs of travel associated with participation in criminal cases. Other foundations are working to reduce the unfair personal and emotional costs. Things are moving in the right direction and the public’s support is growing as the media reports one example of injustice after another.
Having a private attorney on board to help a victim in a criminal case can be very helpful, even when, as was true with Alexa’s case, an excellent prosecutor is handling the trial. Certain matters are beyond the scope of the prosecutor’s duty and a private attorney has far more freedom than the prosecutor does to speak publicly about the case. Having worked in the fight against child sex predators and as a legal analyst for MNSBC, CNN and CBS, I have seen firsthand how important it is that someone be free to speak publicly on behalf of a crime victim. The prosecutor, because of legal and ethical restrictions, is not free to reveal evidence and speak about the strength of the case. A private victim attorney, like myself, is not subject to those limitations.
For the past fifteen years, I’ve been representing victims in criminal and civil cases, for free. I make sure the victim is aware of her rights and I take affirmative steps to protect the victim from harm, enforce her rights under victims’ bill of rights laws and I help her fight back against intimidation tactics and efforts to violate privacy rights.
I was the first lawyer in the country to win a case mandating that a crime victim be allowed to have her own attorney so that she can file her own pleadings and address the court to seek enforcement of her “prompt disposition” rights.. In many jurisdictions, victims are forbidden to address the court to ask that their rights be respected. But I won a case that allow victims independently to speak to the judge about “prompt disposition” rights, in addition to and irrespective of the prosecutor’s position on the issue. This is an important concern for victims, and it was an issue in Alexa’s case, because delays can be very stressful on victims – sometimes causing so much anxiety, the victim will refuse to stay involved in the case or agree to a plea bargain just to put an end to the litigation so she can move on with her life.
As a lawyer who represents victims in criminal and civil cases, I can help ensure the integrity of each case by monitoring the development of evidence. Having one lawyer on board to manage both cases is an ideal way for victims to achieve the best possible results in both civil and criminal cases that arise out of their suffering.
ALEXA FOUNDATION SUPPORTS IMPORTANT LAW REFORM INITIATIVES
CONVICTED SEX OFFENDERS WHO IMPREGNATE THEIR VICTIMS SHOULD HAVE NO PARENTAL RIGHTS
“This is a Felony — not a Family”
A 14 year-old middle-school student attending a private Christian school in Massachusetts was impregnated by a 20 year-old rapist. The perpetrator, Jamie Melendez, was prosecuted and convicted of rape of a child. The victim gave birth to a baby girl while the criminal case was pending, and the child was two years-old at the time of sentencing. The judge in the criminal case, over the victim’s objection, sentenced Melendez to sixteen years probation, with the condition that he go to family court, declare his paternity, and comply with the family court’s orders until the child turns 18.
During family court proceedings, the judge ordered Melendez to pay child support. Melendez responded that if he were ordered to pay support, he wanted visitation rights with the child. The judge advised the victim to seek legal counsel because the issue of parental rights for convicted rapists was unprecedented in many states, including Massachusetts.
The victim had no money to hire an attorney, but received pro bono assistance from Alexa Foundation Advisory Board member, Wendy Murphy. Wendy filed numerous motions and appeals, and obtained financial support from the Alexa Foundation to cover the costs of printing and filing briefs in state appellate courts, and in Massachusetts federal court.
Wendy successfully stopped Melendez from asserting parental rights for four years, and yet another appeal is scheduled to take place this month in front of the Massachusetts Appeals Court. A family court judge already ruled that Melendez cannot see the child, in part based on his expressed willingness to give up his request for visitation if he did not have to pay child support.
The latest appeal argues NOT that Melendez should lose visitation rights, but rather, that he never acquired parental rights to begin with. Murphy’s argument asserts that biology, alone, is worth nothing in the determination of rights for a convicted rapist, and does not imbue a person with ANY parental rights. To the contrary, Murphy says, the body fluids of a sex offender should be seen as weapons, and aggravating factors or rape. Murphy notes that other courts have ruled that no rapist should be granted the privilege of fatherhood as a reward for perpetrating sexual violence.
Murphy also argues that the judge in the criminal case had no authority to “punish” Melendez by sending him and his victim to family court. If the judge wanted Melendez to pay for his crime by providing support for the child, he could have ordered Melendez to pay the equivalent of child support in the nature of restitution. This would have enabled the victim to receive necessary financial assistance without forcing her to participate in family court proceedings with her attacker for sixteen years. It would also have protected the victim from having to spend her time and her money on attorneys, etc., on matters such as filing contempt motions in family court every time Melendez refuses to pay child support (as he has, numerous times.) A restitution order in criminal court, by contrast, is enforced by the probation department and imposes no burdens on the victim as she need not hire an attorney, or even appear in court, to ensure that payments are made. All the victim has to do is call the probation department and report that the restitution payment has not been made. Probation takes over from there.
Finally, Murphy is arguing that it violates a rape victim’s due process rights for a criminal court judge to force her to participate in ANY unwanted family court proceedings with her attacker. All rape victims should be free from court orders in CRIMINAL cases that compel them to do anything, much less to submit to government-mandated “family” relationships with their rapists simply because they were ovulating at the time of the crime.
Oral arguments in the case are scheduled to take place on April 15, 2016 at the Massachusetts Appeals Court in Boston.
From Edmond J. Zabin, the Assistant District Attorney Who Prosecuted Alexa’s Attacker
The criminal justice system can seem overwhelming to a victim of a sexual assault. Yet, no matter how thoroughly investigated, a rape case cannot be prosecuted without the cooperation of the victim. The ability of a sexual assault victim to accurately recall the traumatic events of the crime is vital to the successful prosecution of a case. To that end, family involvement and support is critical to helping a victim of violent crime throughout the difficult trial process.
We were fortunate that Alexa’s family had the ability to stay involved in the process. Alexa was a tremendous witness, strong and poised on the witness stand. Her testimony was central to our successful prosecution. The support of Alexa’s family in large part enabled her to endure an extremely difficult ordeal, and thus was invaluable to our efforts to seek justice in a particularly serious case.
Unfortunately, travel and lodging expenses often can be an insurmountable burden for victims’ families who want to support loved ones and stay involved in the judicial process. To the extent that this foundation enables families of sexual assault victims to stay involved in the court process, and to provide ongoing support to their loved ones, law enforcement will be that much more successful in the prosecution of these important cases.
Edmond J. Zabin
Assistant District Attorney
Suffolk County District Attorney’s Office
Statement of Richard E. Brody, Esq.
My firm had the privilege of representing Alexa and her family in a lawsuit arising out of a rape and sexual assault that occurred during Alexa’s second week at college. The first time I met Alexa and her family, it was clear they were a close and loving family. They hoped that a civil lawsuit could be the vehicle to create meaningful change at the college that would help prevent what happened to Alexa from happening to anyone else.
The law has only two ways to respond to crime: criminally prosecute the offender and/or file a civil lawsuit. Each option serves an important goal. In a criminal prosecution, the focus is on the offender and the goal is punishment. In contrast, a civil case focuses on helping the victim whose life was severely disrupted and, often, forever changed by the crime. Unlike a criminal prosecution, which seeks to remedy the offender’s wrong against society, the goal of a civil case is to remedy the wrong done to the victim of the crime. While the goals of criminal prosecution and a civil lawsuit are different, they are generally compatible. Victims can and should pursue both.
While holding an offender accountable to society can be critical to a victim’s ability to heal, a civil lawsuit empowers victims in ways that a criminal prosecution cannot, because it allows far more creativity in crafting appropriate remedies that help a particular victim. First, a successful lawsuit generally means a financial award for the victim. While no amount of money can truly compensate for the physical, psychological and emotional trauma caused by crime, it can be an essential element in helping victims rebuild their lives. Money can pay for medical bills, mental health treatment, lost wages and allow victims to get a new start in life. Money can also be used, as Alexa has used it, to establish charitable organizations like this.
Beyond money, however, civil lawsuits afford victims the opportunity to create meaningful change to prevent crime. In civil lawsuits, as distinguished from criminal prosecutions, the offender is often only one of the parties who can be sued. Other parties that may be liable can include a hotel, a college, an apartment building, a homeowner, a condo association, a parking lot, a mall or any other entity that, by its failure to take reasonable precautions to protect persons it had a duty to protect, allowed a criminal to prey on innocent people. My firm has been involved in cases that have required institutional defendants to make such improvements as:
- Install state-of-the-art security devices
- Rewrite and improve security policies
- Increase security personnel
- Increase security patrols
- Establish a rape and domestic violence crisis counseling service staffed by trained counselors available around the clock
- Change locks on exterior and add deadbolt locks to interior apartment doors
- Add peepholes to apartment doors
- Install speed bumps in parking lots
- Train bartending and wait staff to identify underage and intoxicated drinkers
- Increase lighting intensity in outside common areas
- Trim shrubbery near dormitories to eliminate hiding places for assailants
- Install bars on basement apartment windows
Both criminal prosecutions and civil lawsuits require significant commitment from, and participation of the victim. Resolution may take a long time, with serious emotional and financial impact on a victim, and both processes may necessitate a victim’s testimony on one or more occasions. Despite this, with appropriate support from prosecutors, private lawyers, and victim-witness advocates, most victims ultimately feel empowered by both processes. In different ways, each can help a victim reclaim the control taken from her during the crime. Moreover, most cases are resolved without a trial. In civil cases, the parties sometimes settle without ever even going to court, through private negotiations or by using an alternative dispute resolution such as mediation.
In Alexa’s case, we were able to resolve the case thoughtfully through mediation. In this setting, which is much less formal than a courtroom, Alexa and her family were able to talk about the crime and its effect on them with college leaders, who genuinely listened to the family and acknowledged what had happened. The college ultimately agreed to make important policy and security changes in addition to giving Alexa a financial settlement. This process, in combination with the successful prosecution of the offender, empowered Alexa and her family, and brought a measure of closure that will ultimately allow them to rebuild their lives.
The It Happened to Alexa Foundation is part of Alexa’s and her family’s response to the crime and to their experience in the legal system. Knowing how empowering and healing their journey through the legal system was, they realize they could not have maintained their commitment without the support of family and friends. By establishing this foundation, Alexa and her family hope to pass on what they learned and to offer financial assistance for travel expenses to other families victimized by crime so that they, too, may be empowered and begin to heal.
Richard E. Brody,
Brody, Hardoon, Perkins and Kesten, LLP