In Bizarre Case, Judge Rules Alleged Victim Cannot be Compelled to Preserve Evidence

The Associated Press recently reported on a bizarre rape prosecution in Virginia. An unidentified man is currently jailed and charged with two counts of rape and one account of aggravated sexual assault against his 12-year-old daughter. The accused maintains he is innocent, but a judge recently denied his efforts to preserve DNA material that would conclusively prove whether or not he committed the crime of which he is accused.

That DNA evidence is contained in the fetus that his now-pregnant daughter is carrying. The man’s defense lawyer, Alene Grabauskas, learned that the girl was considering having an abortion. Grabauskas asked the court to order that DNA material from the fetus be preserved if the girl goes through with the abortion.

Fairfax County Juvenile Court Chief Judge David S. Schell denied that request saying, “I do not think I have the authority to order the Commonwealth to obtain evidence which does not exist at this time.”

The attorney for the Commonwealth, Raymond Morrogh, said he would like to obtain DNA evidence from the fetus as well, but that may not be possible if the alleged — who lives with the accused’s ex-wife — is intent on not preserving such evidence,

We’re going to do everything within our power to get any evidence we can. Are we supposed to follow them 24 hours a day? We are prepared to take a (DNA) sample, but I think these people have an absolute right to their privacy. We’re not going to urge them to take any action.

The judge who ruled that he could not compel the girl to preserve DNA evidence from the fetus also noted, however, that if such evidence is destroyed the defense could argue that it was denied a fair trial.

Source:

Girl, 12, can abort without saving DNA for father’s rape trial. ssociated Press, January 17, 2002.

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