WG -- Here's my quick stab at an "editorial" revision of your article. I hope you won't mind the liberties I've taken, but editing is one of my favorite things to work on. This is a "flesh out" edit, which restates some ideas and elaborates on others. You need to do the final edit which should result in not less than a 20% reduction in word count. That's my standard anyway. Since you're doing an opinion column and do not need to be as dry in your language, you can probably get away with a 10 to 15 percent cut. Good luck, and thank you for fighting the fight.
Criminalizing victims: The strange truth behind this fantasy
We’ve all heard bizarre stories before. Leave it to the Connecticut General Assembly (and other assorted officials of the elected and unelected variety) to try to top them all. What if I told you that the people who mold and shape public policy in Connecticut were banding together in a brand-new, “tough-as-nails” attempt to curb crime?
Put it that way, and you might say, “About time we got tough on criminals!”
But you wouldn’t be further from the truth.
You see, as this column goes to press, our legislators are busy in Hartford trying to put the best spin they can on a new “crime-fighting” bill that would actually make it a crime to be a victim of crime.
Yes, you read that correctly.
There’s actually a bill moving through the legislature (and it’s picking up speed) that will criminalize the act of being a victim. I know it sounds nuts, but Mark Twain was not kidding when he observed that making legislation and making sausage are two processes one might best avoid trying to watch.
The pending legislation not only makes victims of crime into criminals themselves, but it also specifies that those victims are, are you ready, guilty of a felony. That’s right. Becoming a felon in Connecticut is about to get a whole lot easier.
What could we possibly be talking about, you say? Well, before I delve into the specifics of this bizarre bit of legislation, there is one more especially troubling aspect of the bill that is worthy of comment. Are you sitting down? You are? Good, you will not believe this: If this bill is passed (as written) by the house and senate and is signed by Governor Rell (who has hinted that she will do just that), a victim of a particular crime will be presumed guilty of committing a felony. Astoundingly, the very same evidence that proves you are a victim will also prove you are guilty of a felony. That’s a neat trick, don’t you think?
By now you must be wondering what this is all about. I don’t blame you.
What if I told you that the legal framework of this new proposal could be applied to the crime of rape? That, in order to cut down on the number of rapes, our venerated officials decided to make it a felony offense for a woman to be “negligent” in the prevention of a rape, and to specify that in order to avoid such an outcome, any rape victim would have the burden of proving that she was not dressed provocatively and that she employed adequate measures to resist her attacker? Suppose the law said that the very evidence a rape took place would result in a statutory presumption that the victim was an accessory to her own to rape before she even set foot into a courtroom?
“Preposterous,” you’d say?
You’d be right.
The idea is so far beyond bizarre, it’s positively scary.
Fortunately, this isn’t about some lame-brained idea on curbing rape. However, that doesn’t make it any less troublesome. It’s about a lame-brained idea on curbing gun crime.
The legislative anachronism to which I refer is moving forward as House Bill 5818. Of course, the officials responsible for this nonsense gave it a rather benign and neutral title: “AN ACT CONCERNING LOST OR STOLEN FIREARMS.” While true, the title hides the fact that the real purpose and actual operation of the legislation is much more sinister, and you don’t have to look very far to see this. Here is the “statement of purpose” that immediately follows the title:
“To require that when a firearm is not in the actual physical possession of the owner it be stored or kept in a manner so as to reduce the risk that it will be stolen or otherwise come into the possession of another person, require the reporting of the loss or theft of a firearm to a law enforcement agency and provide that evidence that a pistol or revolver was found not in the possession of the owner thereof is prima facie evidence that the owner had transferred such pistol or revolver without proper application and authorization.”
Now, is there anything wrong with requiring firearms to be stored securely? On the surface, no. I guess it depends on who determines exactly what is defined as “secure.” If the end result is some agency (most likely it’d come down to the Department of Public Safety and the Connecticut State Police) deciding the only lawful manner of owning firearms is by keeping them in a concrete vault, that would be problematic for most Connecticut gun-owners, wouldn’t it?
Likewise, requiring a citizen who has had his or her gun solen to promptly inform law enforcement seems like common-sense, and it is. This legislation provides for a 72 hour window to do so if you are unfortunate enough to be in this predicament.
Had the new law stopped there, there might not be much to quarrel with. But the most alarming aspect of this legislation is revealed only by closer examination. This is the part that actually criminalizes the very fact of being a victim of theft. Here is the official summary again, for your convenience: The new laws specifies that “…evidence that a pistol or revolver was found not in the possession of the owner thereof is prima facie evidence that the owner had transferred such pistol or revolver without proper application and authorization.”
Anybody see the problem here? Let me break it down for you:
A. If a pistol that you legally own is stolen from you, you obviously no longer are in possession of that pistol.
B. “Prima facie” is a fancy latin phrase. It means "on its face," or at the outset. This means there is a presumption that the evidence or case in question can stand on its own merits until or unless proven otherwise. In other words, prima facie means it’s assumed to be true right from the start. In the context of criminal law, what this bill is saying is that the prosecutor does not have to actually prove that you failed to store the gun properly. You could have had it locked up in the vault at your local bank, but if its not found there, you will be presumed to have violated the law.
C. Transferring pistols or revolvers (handguns) “without proper application and authorization” is a felony. This is sometimes referred to as a “straw purchase,” when a legal gun buyer purchases a firearm for someone other than himself, or a person who is legally barred from possessing a firearm.
Therefore, according to many high-profile officials in our state, if you fall victim to thieves and a pistol of yours is stolen, as soon as the pistol is recovered, you will be presumptively guilty of illegally transferring your pistol to the thief. You will be an instant felon in the eyes of the law, and the only proof the state will need to present in court at your trial is the fact that someone other than you had your pistol, even if it was stolen from you. Now that’s what you call a “slam-dunk” case. The very evidence that you were a crime victim is the very evidence that sends you to prison! Imagine that!
To top it all off, this legislation puts the burden on the defendant to prove his innocence, through what are called “affirmative defenses.” An affirmative defense is something a criminal defendant can prove to avoid liability for what might otherwise be considered criminal conduct. Usually, an affirmative defense is something that “changes the landscape” as we view the facts of any particular situation. If you have someone before you who is accused of tackling another person in an convenience store, pummeling and physically restraining that person, you might think it important to know that the person who was tackled came into the store waiving a gun and demanding money. That is why self defense or defense of others is a defense to charges that one assaulted or battered the person who turns out to have "really" been the bad guy. But sometimes, sneaky lawmakers try to write criminal laws in such a way that affirmative defenses really serve to shift the burden of proof in the whole case from the prosecution to the defense. Under the legislation I’m writing about today, for example, the statute says you are presumed at first blush to have violated the law if your gun is recovered somewhere other than your possession. The affirmative defense is that may prove you were not negligent in storing your gun and that it wsa secure. But how do you prove it was stored securely if it was stolen?
The simple answer is you probably can't.
If your house or apartment is ever broken into and a pistol or revolver is stolen from you, you might as well get fitted for prison attire right away; because that’s the future people like Hartford Mayor Eddie Perez want for you. After all, it was Perez who said back in January, “The issue is not who fired the gun, but where it came from.”
True criminals must love that message.
If the purpose of this law is to impose criminal liability on those who negligently store their weapons, why shouldn’t the prosecutor have to prove that negligence beyond a reasonable doubt, as with other crimes? Why are gun owners singled out for an Orwellian criminal regime where the law requires virtually nothing for the Prosecutor to get you in front of the jury, but you may go free only if you bear the burden of proving a negative (i.e., that you were not negligent)?
Now, the officials who are peddling this legislation say these measures are needed to stem the flow of guns falling into the hands of criminals. They say that “straw purchasing” puts too many guns into the hands of the people who use guns to commit crime. Even if this is true (it’s interesting to note that at a splashy news conference, none of the officials standing behind the podium offered any empirical evidence that this is actually a widespread problem), straw purchasing is, get this, already illegal. Remember? It’s a felony to transfer a pistol without the proper application and authorization!
This begs the question: If straw purchasing is already illegal (a felony), and it is a widespread problem (although no hard evidence has been offered to prove this), how is this legislation going to stop criminals (straw purchasers) from doing what they know is already illegal?
Or is it something much more sinister?
Former State Representative, 51st District
CT General Assembly