Morally, of course,
Devil Ledbetter is absolutely correct. But I would hold attorneys to different standards from people. In particular, a defense attorney's job is to defend. Attorneys in this case representing anyone other than the victim are not obligated, in that capacity, to take her side.
So how does an entity like the State of Pennsylvania convict beyond a reasonable doubt, and then allege later that the victim of said conviction contributed to the crime?
This defense isn't about her culpability relative to the rapist's (which is none); it's about her degree of responsibility relative to the DOC's.
Two other things:
- The Commonwealth is not yet asserting that she contributed, it is merely not yet conceding that she did not.
- This is a trial. It is not about the Absolute Truth, but about the legal truth, and "contributory negligence" is at most the Commonwealth's assertion, and has not even been deemed legally true.
In fact under your standards, I'd argue it is prima facie harmful to their case, as it lends a kind of avenue of appeal to the criminal defendant. If the state *now* posits that the woman played a contributory role to her rape, can the criminal defendant now argue that the state may have withheld exculpatory evidence?
The question being settled at the criminal trial was whether Best engaged in sexual intercourse with the victim by forcible compulsion, by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, while the victim was unconscious or unaware that the sexual intercourse is occurring, or where Best substantially impaired the victim's power to appraise or control her conduct by administering or employing drugs, intoxicants or other means for the purpose of preventing resistance. The question being settled in the current trial is whether and to what degree the Department of Corrections could have prevented it but failed to (rather, could have prevented it; it's pretty clear they failed to). The answer to the second question has little bearing on the answer to the first.
That does accord with our intuitions about rape, or at least with mine: if Robin locks Pat in a room with Sam, a known rapist, and Sam rapes Pat, Sam is criminally liable, but Robin created the circumstances that allowed it to happen and is liable for that. And if Pat asked to be locked in the room with Sam, Sam is still criminally liable, but Robin is relieved of some of their responsibility. At no point does criminal responsibility for the rape fall on anyone but Sam, who 100 percent ought to have chosen not to rape Pat, but Robin's failure to prevent it is cast in a very different light in the second scenario.