Hacker News Reader

Comment by siganakis | Hacker News Reader

Why would the DoJ require that MIT "sign off" on the plea deal? As this was a criminal matter, I thought it would have just been between the government and Aaron.

Or does the DoJ have to get approval from victims before offering a plea deal? I can't imagine the victim of an assault or rape being terribly happy "signing off" on a plea for their attacker.

From a bit of reading it appears that victims have to be informed of any plea bargain and that their needs must be "taken into consideration", but I cannot find anything that states that the plea must be "signed off" by the victim.

If this is the case, then this story seems rather flawed.

View on HN

Had JSTOR and MIT both agreed that a non-custodial plea deal was acceptable, the government could (obviously) have moved forward with that deal.

Without the agreement of one of the injured parties, it was ostensibly materially harder for the prosecution to come to terms with Swartz; the "victim" was, in effect, demanding that the prosecution not be too soft on Swartz.

My understanding is that victims are generaly allowed to confer with prosecutors on plea bargains, but have no veto power of any kind (much as they might like to, cf. http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?art...). I'm not even aware that the victims get a hearing with a judge; at most a judge might ask a prosecutor about the outcome of a victim conference. I might be wrong about this, I haven't looked into the rules of criminal procedure in depth.

On the other hand, if a bully prosecutor wants to cover his ass, saying "The victim wouldn't sign off!" makes it sound more like their hands were tied and there was nothing they could do.

Your understanding goes with mine (which may also be confused). Victims' opinions should matter to the prosecutor, but not be the end of the story. The prosecutor is representing the state, not the (alleged) victim.

Roman Polanski is the most obvious example.

It's the same way I understood it as well.

In fact, it's the only reason I can see that the prosecution could proceed at all without JSTOR's support, is under the idea that the prosecution is responsible for the state's interests and not only the victim's.

It proceded with MIT's expressed consent: MIT wanted Aaron punished with jail time and a felony, and explicitly refused lesser sentences.

What does fucking a 13 year old girl in California have to do with Aaron Swartz's JSTOR case? I don't see the connection.

She and her family didn't want to pursue rape charges against Polanski, but the prosecutor brought them anyway.

But in Aaron's case, MIT explicitly did want to pursue the charges against him.

I do see that if you were confused about that, they would seem similar in that respect. Thanks.

As for the Polanski case, that's a tough call: should the state prosecute crimes against children when the child (or parent, or both) doesn't want the perpetrator punished? I can see arguments for and against both options. I lean towards going with the wishes of the victims when they are adults, but the fact that the victim is a child brings other considerations into play. Anyway...

> As for the Polanski case, that's a tough call

If he might re-offend it's really not a tough call at all. If everyone is reasonably convinced he won't re-offend is where it gets tough.

And in doing so, continued to harm her and her family, decades after the event. Polanski was another example of a prosecutor seeking a scalp for career furtherance.

Is it ok to have underage sex if you get the consent of the parents, then?

I think that Polanski and this case are so opposed in their has-a-crime-been-committed angle that they are worth comparing.

Is it ok to have underage sex if you get the consent of the parents, then?

How do you get that interpretation from me saying "keeping the memory alive for the victim against her wishes decades later"?

I meant generally. In an underage sex case, the state should always prosecute if they have evidence, even if the victim and guardians do not wish it.

If the victim and guardians in an underage sex case can choose to drop charges, then that effectively means underage sex is legal with consent.

With the Polanski case nobody is there any dispute that a true crime occurred?

So you believe in doing significantly more harm to the victim just so the Mounties can get their Man? My mother was a victim of sexual abuse as a child, and she was horrified when she heard of this case - the idea of some independent "white knight" (very sarcastic quote marks there) forcing her to endure reliving those memories almost made her physically sick.

We're talking about a case that was decades old and whose victim didn't want to go forward. It's not a case that is in any sense 'live'. Child abuse and child sexual abuse is present in every country, in every city. Chasing a 30-year-old crime is pointless feathering of one's own cap - instead those same prosecutors could be out there stopping today's child abusers, and preventing today's children from ongoing abuse. There is so much child abuse out there that planting your flag on any one case and saying "This is the one!" is clearly self-aggrandising.

If you are so horrified by the idea of sexual abuse of children, then why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

>>>why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

Vacri: your comment seems reasonable and educated so I assume that you know the answer to your own question. I'm answering here so that the other folks reading this will also know the answer. I'm not educated about the specifics of the Roman Polanski case, so this is a general comment about the state prosecuting crimes when the victim would like the crime not to be prosecuted.

>>>why be so cavalier with the idea of making victims relive that horror against their mature, expressed consent?

One possibility is the prosecutor "feathering one's own cap" as you said. Another possibility was hinted at in an earlier comment: "prosecutor is representing the state". Convicting an offender of an old crime has the potential to do good things for society. Two of them are:

Bring forth other victims

Create credibility for the claims of future victims("convicted child rapist raped my child" is more believable than "normal upstanding citizen raped my child")

From my understanding, the reason lies in the theories of "crimes of passion/poor judgement" vs "patterns of behavior". If someone commits a crime by accident or in the heat of the moment then certain actions should be taken to explain to them their mistake(e.g. rehabilitation, imprisonment, therapy, probation). If they make a "pattern of behavior" then society can conclude that society doesn't have the tools to convince the offender to end their pattern of offending, and the offender should be physically disallowed from committing future offenses in their pattern:

bad lawyers are restricted from practicing law - "dis-bar-ment"

offending computer users are restricted from using computers

IANAL, but plea bargaining is complicated, and it's much more likely for a judge to accept a plea bargain if the victims are also behind it.

Reply on news.ycombinator.com