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Queens Chronicle

Rape bill loses Senate sponsor

Prosecutors raised concerns about effectiveness of redefining crime

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Posted: Thursday, February 21, 2013 10:30 am | Updated: 10:37 am, Thu Feb 28, 2013.

Hours after Assemblywoman Aravella Simotas (D-Astoria) and Lydia Cuomo, a young woman who was forced to perform and participate in oral and anal sex in August 2011, traveled to Albany to tout the reintroduction of the Rape is Rape bill, a separate but related bill was introduced in the Senate.

The sponsor of that bill is state Sen. Catharine Young (R-Cattaraugus County) who earlier that day had been a cosponsor of the Rape is Rape bill.

“We were taken by surprise,” said Samantha Darche, Simotas’ chief of staff, adding Young had dropped her initial support of the Assembly bill.

Cuomo was attacked vaginally, orally and anally by drunken, off-duty police officer Michael Pena.

The court could not prove that there was penetration vaginally as needed for a rape conviction and currently the other two crimes are defined as criminal sexual acts, but not rape.

Pena was convicted of predatory sexual assault, which carries the same sentencing as rape, but not called rape.

Cuomo, no relation to the governor, said when a criminal is convicted of something other than rape, as in her case, it’s harder for the victim to heal.

“It’s our obligation to respect survivors by ensuring that what any person would recognize as rape is unequivocally called rape by the law,” Simotas said.

Young’s bill would not require proof of vaginal penetration, as used in the conviction of a criminal sexual act. That change would address Cuomo’s case. However, that bill does not define forced oral and anal sex as rape, which is the main component of the Rape is Rape bill.

In the New York Daily news a “prosecutorial source” said that studies show juries don’t call forced oral sex rape.

Simotas responded to the article by asking people to imagine this act happening to “your mouth, your brother or your sister’s mouth, your daughter or your son’s mouth. Is this a criminal sexual act?”

A source also told the paper changing the law would make consecutive sentencing difficult.

“Concerns about consecutive sentencing are similarly misplaced,” Simotas responded in a statement. “As the law stands now, sex offenders are regularly tried, convicted and receive consecutive sentences on the Criminal Sexual Act statute, which includes both oral and anal sexual conduct.Michael Pena did. A simple specific pleading is enough to overcome this legal red herring.”

Councilman Peter Vallone Jr. (D-Astoria) has submitted a resolution in support of the Rape is Rape bill. As a former district attorney, he said, “I understand the concerns of the prosecutors, but I absolutely agree with Aravella.”

Queens District Attorney Richard Brown released a statement in the same vein: “We are working closely with our fellow prosecutors in seeking to strengthen our state’s laws on sexual assault with the hope that we can find common ground with those who have similar goals.”

Reportedly Gov. Cuomo will direct staff to help the two sides reach a compromise.

According to Young, prosecutors also said proving penetration is often difficult.

Moving forward Simotas is amending her legislation to say that does not need to be proof of penetration in order for the attacker to be convicted of rape.

“While changing the standard of proof for sexual intercourse to mirror the standards for anal and oral sexual conduct is important, the language we use to discuss rape must accompany it,” Simotas said. “There is no good reason for these necessary changes to occur in a vacuum. Survivors should not be forced into a choice between healing and lowered standards of conviction.They deserve both. That is why I am amending my bill to include the standardized elements of forcible sexual conduct.”

Simotas’ team is still hopeful the Rape is Rape bill will pass this year, Darche said.

So far an online petition has gathered more that 6,000 signatures in favor.

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