Kelly Endorses Tougher Rape Laws After Pena Case

By Jill Colvin on May 8, 2012 5:50pm 

Police Commissioner Ray Kelly said that a change in the rape laws appears "appropriate" following the Michael Pena case.
Police Commissioner Ray Kelly said that a change in the rape laws appears "appropriate" following the Michael Pena case.
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DNAinfo/Jill Colvin

ONE POLICE PLAZA — Police Commissioner Raymond Kelly endorsed calls for an overhaul of New York state's rape law Tuesday, one day after ex-cop Michael Pena was sentenced to 75 years in prison for sexually assaulting a teacher in Inwood on her first day of school.

Pena was found guilty on three counts of predatory sexual assault for attacking the 24-year-old at gunpoint last summer, but the jury deadlocked on rape charges because there were questions about whether he penetrated the victim, leading to a mistrial on those counts.

The deadlock has led many activists to call for an overhaul of the state’s rape laws, which currently require that prosecutors prove vaginal penetration in order for an attack to be deemed a "rape."

"I think those changes that are proposed seem appropriate," said Kelly, when asked whether he supported the calls from advocates to change the law. 

But the top cop, who called Pena's sentence "appropriate" for a "horrendous crime" did not provide additional details about what changes he felt were appropriate, deferring to prosecutors charged with trying the cases.

"I think the district attorneys are really the ones that are in a better position to comment on these changes," he said. "I don’t know if it would make it easier or more difficult to prosecute some changes."

Queens Assemblywoman Aravella Simotas introduced what she calls the "Rape is Rape" bill in early April that would expand the definition of rape to include forcible oral and anal sexual contact, which are currently covered under the Criminal Sexual Act law.

While the top penalties for both crimes are the same, Simotas said the word "rape" adds a sense of gravity that other crimes do not.

"The importance of calling rape by its name cannot be understated," she said. "By denying this fact, by calling rape something different — predatory sexual act or criminal sexual act — society fails to validate the victim’s experience and trauma," she said.

Attorney Joshua Horowitz, a former prosecutor in the Brooklyn District Attorney’s Office, said that while the difference between the two crimes is purely semantic, he understands the psychological impact.

"There’s a connotation of rape being the worst of what you can do," he said, adding that D.A.’s offices and police departments typically want to be able to slap their worst offenders with charges that carry the most public condemnation.

However, he said the gravity of the word might also impact the decisions of jurors who might feel that "rape" charges require higher standards for conviction.

Prosecutors have until May 23 to decide on whether they will retry Pena on the rape charge.

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