Ted Downing and the Spousal Rape Law

I received an interesting email from Merrill Eisenberg, a long-time Democratic party activist and UofA faculty member, regarding the LD 28 Senate race between Ted Downing and Paula Aboud to replace Gabby Giffords in the State Senate.

I personally like and respect both candidates, have worked with both of them on campaigns or legislation, and have praised both of them in this blog when they deserved praise. Too often in campaigns, especially in an out-come determinative primary such as this one, all nuance of the issues at hand get lost and people’s records get unfairly simplified. It’s not the job of a political opponent to clarify the record, but they should avoid muddying the water about a fellow Democrat.

I don’t know if I would have acted as Downing did regarding the spousal rape bill that is subject of this letter, but it is important to understand that there is a context and a rationale for his vote. I found Merril’s letter to be informative and substantive statement about an admittedly contentious issue, which may well affect the way people vote in the LD 28 Senate race, and decided to pass it along in toto:

Dear
Friends –

First, I apologize for doing a blast email like this, but I
believe it is important, so here goes.  As I’m sure you know, Ted
Downing, who is currently the State Rep from District 28, is running
for State Senate.  His opponent in the Democratic primary is Paula
Aboud, the person who was appointed to the Senate seat by the County
Supervisors last winter when Gabrielle Giffords stepped down to run for
US Congress.  The winner of the primary will take the Senate seat since
there is no Republican running.

Unfortunately,
the tenor of the campaign has become quite ugly.  For a long time I
have hoped that the negative campaigning would be seen for what it is,
but from talking with some of you it has become apparent to me that the
patent distortion of Ted’s legislative record must be addressed.  Ted
has been accused of not standing up for women’s rights, of being in
favor of spousal rape, and, by way of rumor and inuendo, of being an
abuser himself.

His
opponents are pointing to one vote he made during the 2005 legislative
session as proof of these accusations.  The facts of the matter are:

1.
Prior to 2005, Arizona law defined "sexual assault" (including rape) as
a 2 felony.  A defendant who is convicted of sexually assaulting a
victim over the age of 15 is subject to a prison sentence of 5.25 to 14
years. Rape of a spouse, however, was considered a class 6 felony (the
court had the discretion to enter judgment for conviction of a class 1
misdemeanor and mandatory counseling)with a sentencing range from only
6 months to 1.5 years.  Clearly, Arizona law was archaic in the way it
treated spousal rape, and a change in the law was needed.

2. In
2005, two Republican Senators (Blendu and Martin) introduced a bill (SB
1040) to address the problem.  The bill passed the Senate and was sent
to the House Human Services committee where, after much discussion it
failed because of technical issues.  Upon reconsideration and a strike
everything amendment, the final version that reached the House floor
did two things.

First,
it repealed the spousal rape law and made the marital status of the
parties no longer relevant under Arizona law in determining whether a
sexual act with another person is criminal or not.  That made spousal
rape identical to any other type of rape:  a class 2 felony carrying a
much more appropriate sentence of 5.25 5o 14 years.  Second, it made it
a Class 1 misdemeanor – a slap on the wrist – to falsely accuse a
spouse of rape.

There
was much discussion about the penalty for false accusation.  Sadly,
while it is rare, false accusations of spousal rape do occur (I am told
in about 3% of cases).  The low frequency of false reporting does not,
in my mind, mean that it is nothing to worry about or that a slap on
the wrist is an appropriate penalty.  While Ted supported the intent of
the bill, he was concerned about the 3% of men who are falsely accused
of spousal rape.

After
all, our nation is based on the principle of justice for all, not
justice for 97%.  He saw this as a technical flaw in the bill – a flaw
that he didn’t want to have stop the bill –  but one that should be on
record.

Seeing
that the bill easily had enough support to pass (it passed with 52
ayes, 5 nays and 3 not voting – it is now ARS 41-2406), Ted voted nay
to make his point and to leave a record of the concern.

Now his
vote on that one bill is being used to paint him as a sexist, a
supporter of rapists, and a wife beater.  To claim that Ted’s vote on
this bill is proof that he does not support women’s rights reflects, at
best, a naive understanding of the legislative process, and at worst, a
mean-spirited mis-representation of his record.  Those who are making
this asccusation should know better, and if they don’t, they have no
business running for elected office.  Ted’s entire career has been
devoted to human rights issues and it is personally devastating to him
to have to defend himself against these accusations.

There
are other accusations coming from the other side that are equally as
deceptive and ridiculous, but this one is, in my opinion, the epitome
of mud slinging.  Negative campaigning is no more palatable coming from
a Democratic opponent than it is coming from Karl Rove.  I am writing
to you not only to set the record straight with you, but also in the
hope that you will reach out to your friends to set the record straight.

I would
much rather be writing to you about Ted’s many accomplishments, not the
least of which include having been the architect of the voter integrity
law that passed the legislature unanamously and demonstrates the skill
and finesse he has developed is negotiating the legislative process.
If you live in District 28 you will be receiving mailed literature
touting Ted’s accomplishments in the coming days.  His website (http:\votedowning.com
) should be up in the next few days.  Ted has vowed to take the high
road in this contest and not be drawn into negative campaigning.  So,
my friends, I urge you to keep an open mind, don’t believe everything
you hear, and remember that crafting legislation is a nuanced activity
and one vote on one bill, taken out of context, does not define a
candidate.

Merrill