The Twisted Legal Logic Of "Mariana"

Here's how the commentary went down between myself and "Mariana." It began under a story I posted about our grandstanding D.A. making erroneous statements at a press conference where he announced he would do everything in his power to keep Msgr. William J. Lynn in jail.

Lynn is the trophy head Williams bagged in the Billy Doe prosecution. An anonymous commentator who was ripping prosecutors in general then wrote that he was "in possession of grand jury testimony [where] prosecutors invented facts."

That prompted "Mariana" to ask who gave the anonymous commentator the grand jury testimony not introduced at trial. "Sounds as if there should be another investigation,""Mariana" concluded.

I jumped in and asked, "Is this Mariana Sorensen? If it is, maybe you can explain all those errors in  the 2011  grand jury report." That prompted "Mariana" to unload. I broke up what she wrote into paragraphs so that readers could draw a few breaths while going through her legal diatribe:

Ralph -- I have nothing to explain to you. Except that I can't even begin to quantify your "errors." Especially counting, as you do, every repetition of a single purported mistake. Your original article claiming 20 errors in the grand jury report is completely bogus. So every time you've quoted or referenced your own dishonest work would constitute another error (lie??). Given how often you like to do that, I would estimate that your untruths are approaching triple digits. 

I'm not going to go through all your misrepresentations of the facts, but given that you count the use of the words rape and sodomy with respect to Fr. Brennan's crimes as 11 discreet errors (because, according to you, it is impossible to commit a rape if the victim is wearing underwear), I suggest that you consult your blog's sponsor on the law. Last time I researched the topic, there was no ruling by Pennsylvania courts, but several other states and federal courts that have considered the question have held that rape and sodomy can be proved beyond a reasonable doubt even when the victim is wearing underwear or other clothing.

The necessary “penetration no matter how slight” can be accomplished through or around the clothing. See, for example, Davis v. Commonwealth of Virginia, 643 S.E. 2d 322 (Va. 2006)(penetration found through “regular issue . . .polyester pants . . .and undergarments as well), citing United States v. Norman, 139 F.3d1099, 1103 (10th Cir. 1997)

(“Unquestionably, some penetration could occur through pliable clothing. . . . Existence of such material does not ... protect defendants from prosecution under the statute [object sexual penetration of a child].”); Nguyen v. Cate, 2012 U.S. Dist. LEXIS 33561, 33 (U.S. District Ct. N. Cal. 2012) (Where the victim described contact “in the middle …[of her] butt,” ”“the jury could find sufficient evidence of sodomy even if they believed that the contact occurred outside Sandy’s clothing.”); People v. Ribera, 34 Cal. Rptr. 3d 538 (Ct. of App. Of Cal., 5th App. Dis. 2005)(evidence was sufficient to prove sodomy where victim testified that defendant “poked” his penis into her behind, even though victim was wearing underwear). 

See also, Chrobak v. State of Arkansas, 58 S.W. 3d 387 (evidence was sufficient to prove rape where defendant penetrated by moving the victim’s underwear and pajamas to the side); Cummings v. Burge, 581 F. Supp. 2d 436 (W.D.N.Y. 2008)(rape accomplished by pushing underwear aside).

Here's what "Mariana" and I were referring to. Eleven times in the 2011 grand jury report, the district attorney stated that in 1996 Father James J. Brennan raped 14-year-old Mark Bukowski during an overnight stay at the priest's house, a visit requested by Bukowski's mother. The subject is actually of current interest as the DA has announced plans to retry the case Oct. 24th, more than four years after a jury deadlocked on the original charges against Father Brennan.

Now we can all agree a priest should never have been in bed with a 14-year-old under any circumstances, nor should he have ever touched the boy in any inappropriate way, as the allegations claim in the Father Brennan case. Again, we have to remember that the accused is innocent until proven guilty, which didn't happen in the first trial. My sole aim in discussing this again is to show the intellectual dishonesty of the district attorney's office.

This excerpt is from pages 11 and 12 of the grand jury report:

Father Brennan, who was now shirtless, insisted that Mark remove his gym shorts and climb into bed with him in only his underwear, which Mark did. Mark attempted to sleep on his side, with his back to Father Brennan, because he was afraid to look at the priest. As Mark lay in that position, Father Brennan hugged him from behind, resting his chin on Mark’s shoulder and pulling the boy closer to him.