I have a Google alert for “rape” and an article from a local newspaper in Georgia popped up on my computer screen this morning. Benjamin Tyler Gray, 29, is on trial charged with rape in Coweta County Superior Court, Georgia. A 27-year-old woman, unnamed of course, testified she woke up to find Gray in bed with her. The victim claims that the sexual encounter was not consensual even though she admitted did not attempt to resist Gray. Gray claims the sex was consensual. Thus the only issue for the jury was whether she consented to sex.

During the cross-examination of the alleged victim, Gray’s defense attorney, Scott Cummins asked the victim if she had been wearing panties that evening. Judge Dennis Blackmon immediately called a halt to the trial and ordered the witness and jury out of the room. He then excoriated Cummings for daring to ask her about the state of her underwear.

“What kind of rape case do you bring up someone’s underwear? Ignorance and ‘no ill intent’ on behalf of the attorney is no excuse.” Blackmon then instructed the jury that no mention would be made of underwear. “You may not know, but there is a law in Georgia that in cases of sexual assault, you are not to mention underwear,” Blackmon said. “It’s salacious, inadmissible and ridiculous. You cannot consider that in your decision in this case. I apologize for allowing anything like that to bleed into this case.”

Is the judge right? Is this fair? Rape is an unusual crime in that the intent of the defendant is not the issue but rather the mental state of the accuser. So rather than dwell on the defendant’s state of mind, as is usual in criminal cases, the trial focuses on the accuser’s state of mind. This gives rise to the claim that the victim is being put on trial, but it is not her, but rather the issue of her consent, that is put on trial. The defense lawyer must focus on any fact which might bear on her state of mind before and during the sexual encounter.

In the criminal justice system, we are not supposed to be “politically correct” but do justice as the title assumes. The defendant gets his day in court, with his constitutional rights protected, such as the right to confront his accuser, and to be presumed innocent. If Coweta County ignores these principles, they might as well throw him in the Chattahoochee River and see if he floats.

In the William Kennedy Smith trial, I brought out that the accuser took her panties off before she entered the defendant’s house. Doesn’t that have some bearing on her intent? On whether she was interested in sex? It seems logical to me, but apparently not in Georgia.