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Monday, 3 March 2014

Christopher McFadden: Why The Update Doesn't Change Much for Me

Wow it's been a long time since one of my posts has gotten the attention that the one about Christopher McFadden has. I felt like it was important to write the follow-up quickly.

And I feel like it's important to explain why I posted what I did even though I knew (just barely) that Christopher McFadden had recused himself. I'm not the mother of a disabled child, but when I was working in social services, I got very attached to the people I supported. I'm still in touch with many of them. The friendship that gave me the passion that I have for this work spans over half my life. And I've always been very lucky that when I've needed to call on the legal system in my work with disabled people, almost all the people involved have been compassionate and very aware of the issues involved with working with that demographic.

But I've heard awful stories, sometimes perpetrated by people who are sure that they're doing the right thing. As far as I'm concerned, this was one of them. I wanted to show that as family members, friends, caregivers, service providers, we have to...not live in fear, because there are plenty of good people out there.  But we have to be constantly vigilant as well, because we can't always trust that people who should be protecting the vulnerable people in our lives are actually going to do it. That balance between being vigilant and living in fear is difficult to strike, but we can't afford to let that guard down.

Anyway. On to the latest update about Christopher McFadden.

My Thoughts on Christopher McFadden Recusing Himself

According to this article, Christopher McFadden recused himself from the new trial he'd ordered for William Jeffrey Dumas, convicted in 2012 of raping a 24-year-old woman with Down Syndrome three times within a twelve-hour period.

Up until now the media has mainly focused on Christopher McFadden's concerns that the woman (I've been calling her Jane) did not "act like a victim" and Dumas did not "act like a perpetrator",  a stance for which he (rightfully) received criticism. This article elaborates on some of his other concerns:

  • The State's overemphasis of the importance of the physical evidence (Dumas' semen on Jane's bedsheets, the fact that Jane's injuries suggested forcible intercourse): "'The physician who testified,' McFadden wrote, "did testify that her findings were consistent with forcible rape, but she did not testify that her findings were proof of forcible rape.'" Read more here

  • Inconsistencies in the timeline of events that Jane reported.

Christopher McFadden does appear to be acting in what he believes is a responsible manner. Judges can act as a "thirteenth juror" when they feel it's necessary, and intervene in the matter in which he has.  Read more here. I don't know enough about the law to comment on whether he's got a legal leg to stand on with his first point, and I didn't hear Jane's testimony. Perhaps there were inconsistencies in the timeline as she reported that he didn't feel he could ignore. I do think, as I discussed in my last post, I think he really needs to consider that she's a person with an intellectual disability speaking about a highly traumatic event in a very stressful environment.  How much bearing these inconsistencies could actually have on the trial's outcome needs to be considered in light of these facts.

In the end, he did what I preferred he'd do, since he seems to really believe that a new trial is necessary. He did what he felt he had to, and then got out of the way.  And if I believed that he'd done it out of concern for Jane, and not because prosecutor Scott Ballard had criticized him or because he was concerned that people were trying to "judge shop", I could grudgingly respect him for sticking to his principles. But, from what's been reported about his ruling, there's little concern the fact that his ruling is largely built on rape culture tropes and ableism.

And that I can't respect, Judge Christopher McFadden. I expect better from the American legal system.

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