TN Supreme Court to rule on'accomplice' question in rape case

10:32 PM, Jan 17, 2013   |    comments
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By Bobby Allyn / The Tennessean 

Under Tennessee law, a victim of statutory rape can be considered an accomplice in the crime against her, though that might not be the case for long.

The state Supreme Court has agreed to take on a case involving a 14-year-old girl from Arkansas and a Memphis man, which could lead it to dust off and possibly overturn the arcane interpretation of the law.

The rule, which has gone unchallenged for more than a century, emerged from an 1895 incest case in which a Tennessee court found no "evidence of force" in a case involving an uncle having sex with his niece. The court ruled, however, that both could be convicted of incest.

To have such an interpretation on the books in the 21st century is an outrage, some observers say.

"We cannot expect victims to feel safe enough to break free and seek relief when they face the prospect of being victimized again by our legal system," said Cathy Gurley, executive director of You Have the Power, a victims' rights organization.

The rule, she said, "undermines society's obligation to protect children."

The high court recently agreed to hear the case of Dewayne Collier, whom a Shelby County jury convicted in 2010 of aggravated statutory rape. Collier, through his attorneys, has maintained his innocence from the outset.

In its final appeal stage, the high court expressed keen interest in the thorny questions raised by Collier's case: Can the victim of a sexual offense be a criminal accomplice? If so, do prosecutors need supporting evidence beyond an accomplice's testimony to convict a defendant?

Both questions, according to legal experts, have far-reaching implications for how sex crimes are prosecuted in Tennessee.

If the court rules that additional evidence is not needed for a conviction, prosecutors will have an easier time winning in court, said David Raybin, a longtime Nashville defense attorney. And classifying a statutory rape victim as an accomplice, he says, "disparages the victim."

On that point, some attorneys on the opposite side of the courtroom seemed to agree.

"The accomplice law is somewhat unique to Tennessee," Brian Holmgren, a Davidson County assistant district attorney, said. "Classifying a victim as an accomplice is not usually helpful to a prosecution."

The 'accomplice' appeal

On Sept. 8 2008, a 14-year-old girl had planned to perform with her high school band at a football game in Earle, Ark., a town of 3,000 on the Tennessee-Arkansas border in which nearly half the population lives in poverty.

But instead, the teenager went to a friend's house and called Collier, who lived in Memphis, and asked him to pick her up, according to prosecutors, who allege that the two had sex multiple times.

Authorities say Collier was an old friend of the teenager's father. Before picking her up, she lied and told her friend that Collier was her uncle.

The girl's mother called police when her daughter never returned home. Police issued an Amber Alert.

Police arrived to the girl's house and questioned her after Collier brought her home the next evening, according to authorities. She then confessed to police about what had happened, including the multiple sex acts, which she said were consensual.

After a jury convicted Collier with aggravated statutory rape in 2010, his attorneys appealed. Part of his attorney's defense was that since the girl was technically an accomplice in the sex acts, her testimony needed additional proof.

The Court of Criminal Appeals in Jackson concluded in 2011 that there was enough corroborating evidence to convict Collier.

Defense attorney Raybin theorizes that the high court agreed to take the case to recast the state law's definition of an accomplice, narrowing it enough so that the victim of a sex crime cannot be charged.

"The court will likely change the test for what an accomplice is from participating in a crime to whether you can be charged with it," Raybin said. "When you apply the traditional test to a statutory rape case, it doesn't make sense."

a more enlightened view

Although defense attorneys say the accomplice law rarely arises in rape cases, it has yielded some notorious precedents.

In 1960, for instance, the high court in Tennessee, in Scott v. State, reversed the conviction of a father who was accused of having sex with his daughter multiple times over two years.

Despite the accusation that the daughter gave birth to an illegitimate child, and without the benefit of DNA evidence, the father was exonerated. The court ruled that there was not enough evidence beyond the daughter's testimony. Under state law, however, she was considered an accomplice.

Both parties in the Collier case said the high court will likely consider the accomplice question in November, when the court reviews its Jackson, Tenn. docket.

Prosecutor Holmgren said changing the measure should be uncontroversial.

"Our perspective of sexual abuse has become more enlightened in the past 120 years," Holmgren said. "I dare say that if you ask the state legislators whether a child victim is an accomplice, surely they would say no."

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