A RAPE SURVIVOR IN NAPERVILLE, ILLINOIS, has been ordered by the trial judge to watch a videotape that the men who raped her made while the assault was taking place. The woman refused to do so, and now the judge is threatening her with contempt of court if she continues to refuse. He also said he is considering dropping the charges against the defendant if the woman does not agree to view the video.

"I am ordering you to answer these questions," Judge Kerry Kennedy told the woman after an hourlong recess to discuss her refusal. "The consequences are that you would be held in contempt of court, with incarceration possible. Are you still refusing?"

"Yes," she responded.

"I will give you overnight to think about this," Kennedy said. "Tomorrow, I will ask you again."

The woman was 16 years old when she allegedly was assaulted and videotaped four years ago at a party in the Burr Ridge home of Adrian Missbrenner, 20. He was one of four men charged in connection with the incident, and his trial on charges of aggravated criminal sexual assault and child pornography began Tuesday in Cook County Circuit Court in Bridgeview. He faces 6 to 30 years in prison if convicted.

The woman answered questions from prosecution and defense attorneys for about an hour. But when Missbrenner's attorney, Patrick Campanelli, placed a video monitor in front of her and said he was going to play segments of the 20-minute videotape as he questioned her, she stated emphatically "I don't want to see it."

After the judge warned the woman that she was expected to testify Wednesday, Campanelli quickly asked that the criminal case against Missbrenner be dismissed.

My second thought after reading this (my first thought was that, with judges like this, no wonder rape is such an underreported crime) was to wonder why the defense attorney wants the woman to watch the video. He says he thinks that if the woman answers questions while viewing the video, defense can prove that what happened was consensual sex, not rape. But that strikes me as odd, given what the tape apparently shows, and given the defendants' behavior afterward:

Prosecutors allege that the videotape first shows another defendant, Burim Berezi of Brookfield, having sex with the woman, then it shows Missbrenner. They say the tape shows her unconscious as people spit on her and write derogatory words on her naked legs and abdomen.

Berezi fled the country after being charged and remains at large. Missbrenner also fled but returned from Europe in May 2005. A jury convicted him of violating his bail bond, and he was sentenced to six months in jail, which has been served while he was being held without bail on the sex charges.

The fourth defendant, Sonny Smith, 20, of Brookfield, who operated the camera, pleaded guilty to child pornography and was sentenced to the Illinois Department of Corrections boot camp.

How could the woman have consented to sex if (a) she was unconscious; and (b) if the men involved were spitting on her and writing horrible epithets on her legs and stomach? These guys sound like slime to me; and the fact that they both fled the country after the incident does not exactly add to their credibility.

So getting back to my puzzlement: Why does the defense attorney want the woman to answer his questions while watching the tape?

I think it's a strategy to get the rape charges dismissed. We already know that the judge has taken the defense's side on this. If the rape survivor continues to refuse to view the tape, and the judge does charge her with contempt of court and throw out the charges, then defense has won without even having to show the tape. And even if the woman does agree to view the tape, I'm betting defense is counting on her not being able to go through with it, and letting the charges be dropped rather than go through the trauma of having to relive her own rape.

Obviously, this is just a guess on my part; I can't read the defense attorney's mind. But it's at least as plausible as believing that defense actually wants the video to be shown in court. After all, it's a huge risk: the tape could just as easily convince the court that what happened was rape.

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Now, I wrote all of the above before reading any of the other blogger commentary on this case. I just took a look at what Scott Lemieux has to say, and we are on exactly the same page:

I'm sorry, but I just don't see any real value here. Let's consider what the videotape shows. ...

Uh, if she is shown this horrific tape, she will suddenly remember and announce in open court that (despite being a highly inebriated 16-year-old) she consented to have strangers spit on her while she was naked in public? Please. That would have to accrue several levels of probability to rise to the level of being "implausible." We all know what's going on here: the defense wants to show the videotape to intimidate (and punish) the victim, and given the less-than-trivial probative value the balance of interests shouldn't even be close. Unless the transparent goal of intimidation is given essentially no weight at all, I don't see how the balance can favor permitting this defense strategy.

I don't, either; we will have to wait and see whether the judge gets an infusion of common sense.