State law allows for an extended prison sentences if prosecutors can prove that a crime was motivated by hatred for the victim's race, ethnicity, religion, sexual orientation, or gender. New Hampshire Public Radio's Raquel Maria Dillon has more on the prosecutor's unusual legal strategy.
Douglas Giddens is charged with repeatedly raping a 25-year-old woman at knifepoint this past New Year's Eve in Milford. Just a few days later, he allegedly tried to kidnap and sexually assault a 17-year-old girl outside Milford High School.
The prosecutors won't divulge information about the case, because it hasn't gone to court yet. But Hillsborough County Attorney Marguerite Wageling says the evidence led to the extended sentence charge.
WAGELING :16 it's the position of this office that his behavior sufficiently outlines what is needed for an enhanced penalty. it's always up to jury to decide. If we don't bring it forward we don't allow them to make the decision.
Giddens has been assigned a public defender. His attorney won't comment on the case. Manchester criminal defense attorney Mike Iacopino says the hate-crime charge is a misuse of the extended sentence law and could set a bad precedent.
IACOPINO :11 I don't think that purpose of hate crime legislation is to provide a double whammy, simply b/c victim is part of protected class.
If Giddens is guilty of rape and a hate-crime, he can be sentenced to a longer, "enhanced" prison term, 10-30 years instead of 10-20. The extended sentencing law also applies when the victim of a rape is under the age of 13. But first, Wageling and Assistant County Attorney Roger Chadwick will have to prove, beyond a reasonable doubt, that Giddens is guilty of rape and the motivation for that crime was hostility towards the victims because of their gender.
Criminal defense attorney Mike Iacopino:
IACOPINO :29 if they start using hate crime statute every time there's a rape case they've blurred that line. Obviously, you're motivated because she's a woman otherwise you wouldn't have raped her. You'd presume its done for purposes of sexual gratification. If that's the case, then the gender of the person is automatically relevant. Now you've taken every rape case in state and turned it into a hate-crime as well.
But County Attorney Wageling disagrees:
WAGELING :11 most experts would agree rape not necessarily a crime of sex against victim. It's a crime of rage, control, hostility. It might be against individual as opposed to person's sex.
Prosecutors say this is the first time that hostility towards a victim's gender has been used in New Hampshire to make a case for an extended sentence on a rape charge. But a similar case in Cheshire County Superior Court in 1992 involved domestic violence. Justice Arthur Brennan found Richard Towne, guilty of simple assault and an extended sentence because of his hostility towards women. Brennan wrote, quote "the defendant has a pattern of assaulting, terrorizing, and demeaning women dozens of time over a period of 10 years." And he cited examples of the derogatory language which Towne frequently used to refer to women. Again, Attorney Iacopino:
IACOPINO :25 what concerns me as defense lawyer and as citizen is, these laws really punish people for what they're thoughts are. If you're going to do that you have to do it in a narrow way. ... You gotta be really careful, use these statutes sparingly, judiciously, only in cases where prosecutor believes he can prove it beyond reasonable doubt.
Iacopino also questions the prosecutors' motives. He wonders if the hate-crime charge is being used to put pressure on the defendant to plead guilty. County Attorney Wageling:
WAGELING :28 I don't want there to be any mass hysteria as result of this charge. This is one case where there's a continued belief that evidence supports allegation. Should not be done haphazard, or willy-nilly. Only after a thoughtful review of the case. For every rape case that comes thru this office, 1 in a hundred might fall into this category.
Lynn Hecht Schafran, Director of the NOW Legal Defense and Education Fund says prosecutors in other states have used to hate-crimes charge to extend jail terms in a couple of domestic violence cases.
SCHAFRAN :27 for example, Mass case in 1994, I'm afraid I cannot use on-the-air, the language defendant use about women in his life that led to the decision... replete with stereotypical comments, curses, epithets, vile language demeaning to women, indicating that she was representing a group, which is essence of hate-crime. That she was being assaulted because she was a woman.
But Schafran says the Hillsborough County prosecutors' strategy is unusual.
SCHAFRAN :17 obviously the prosecutor must feel that this is very dangerous person and that anything that can be done to keep incarcerated for longest time possible is desirable for community safety.
KOLBERT :09 my general view as lawyer is you don't try something new and novel unless there's a reason to do it. In this case it's to increase sentence.
Attorney Kathryn Kolbert is with the Annenberg Public Policy Center in Philadelphia.
KOLBERT :29 this is a mushy problem b/c it's hard for criminal justice to separate out what is a crime o violence directed against women and what is motivated by . Real problem is that we as society needs to stop rape and punish appropriately. then I don't think we'll have to resort to this.
Douglas Giddens' case is scheduled to go to trial in June.
For NHPR News, I'm RMD.
