New Jersey’s judicial system is under intense scrutiny as three state Superior Court judges are making headlines for recent “insensitive” comments regarding sexual assault cases over which they presided. Now, state lawmakers from both sides of the aisle, advocates, and sexual assault survivors are demanding systemic criminal justice reform.
“The Legislature now needs to take a look. We’re not talking about one or two scenarios; these are countless scenarios,” Sen. Vin Gopal (D-Monmouth) said. “We are appointing these people to the highest court, the Superior Court in New Jersey … these are supposed to be the best of the best, the people that are supposed to be the fairest and are supposed to empathize with everybody in every circumstance. That is why they are judges. I think the judiciary committee needs to start looking at how this happens and what we can do differently in the future,” he said.
Judges James Troiano and Marcia Silva — Family Court judges in Monmouth and Middlesex counties respectively — were subject of a New Jersey 101.5 report earlier this month after comments they made regarding two 16-year-olds accused of sexual assault in separate cases were made public.
One accused teen reportedly sent a recording of himself sexually assaulting an intoxicated 16-year-old girl to his friends along with a text that read, “When your first time is rape.” Judge Troiano in the 2017 case declared that the act was not rape and declined to prosecute the teenager as an adult, expressing concern for the boy’s future. He noted that the teenager “comes from a good family who put him in an excellent school.”
In another case, court documents show a 12-year-old girl claimed a 16-year-old boy “pushed her, grabbed her hands, removed her clothing and then penetrated her without her actual consent.” Judge Silva ruled in the case that the boy should not be tried as an adult and wrote in her decision that “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.”
Both decisions were reversed
State appellate court judges have since reversed both decisions, and the two accused in those cases have been waived up to adult court.
Also included in the conversation is Ocean County Family Division Superior Court Judge John Russo Jr. who in 2016 suggested an alleged rape victim “close her legs,” to prevent sexual assault. Russo was reassigned to the Civil Division in Burlington County in December and has been serving there since.
These instances — called “insensitive” by multiple lawmakers who this week have issued statements demanding the removal of Troiano and Silva — have unloosed a rage that has been long felt by sexual-assault survivors. Many gathered with advocates on Thursday at a rally at the Monmouth County Courthouse to share their stories and demand that Troiano and Silva step down or be removed.
“This case has brought me the worst kind of closure,” Indra Kanthan, an advocate for survivors of sexual assault at Manavi South Asian Women’s Organization and a rape survivor said. “I never have to wonder whether it was a mistake not reporting my rape or seeking any kind of legal recourse because everything I feared has now been confirmed. In the past few weeks I’ve had to face a harsh truth that if we are still protecting rapists today over survivors there’s no way our judicial system could have protected me 14 years ago or help me to get justice.”
Christine Clarke, an environmental advocate and rape survivor said that disciplinary action is overdue for these judges, though such action would not heal the wounds that they have caused for the victims in their cases.
“You can’t take back the toxicity that was inflicted in those judgments,” she said. “What these judges did to these victims by disregarding their accusers caused real harm and they weren’t sorry until they got called out.”
Senate Majority Leader Loretta Weinberg (D-Bergen), Senate President Steve Sweeney (D-Gloucester), and Assembly Speaker Craig Coughlin (D-Middlesex) have all called for the immediate removal of Troiano and Silva and have been joined by other lawmakers including Assemblyman Joseph Danielsen (D-Somerset, Middlesex), Assemblywomen Yvonne Lopez (D-Middlesex) and Nancy Pinkin (D-Middlesex), and Sen. Declan O’Scanlon (R-Monmouth).
‘Should be intolerable’
“Privilege, bias, prejudice and bigotry permeate throughout our society, including the justice system. We cannot expect to eradicate it in its entirety, but any example of it displayed by the people in charge of issuing justice in our state should be intolerable,” Weinberg said in a statement. “Judge Troiano and Judge Silva should never again be given the privilege of presiding over a New Jersey court, that is clear. But we should also use these examples of alarming behavior in a way that curtails this conduct in the future.”
Sen. Kristin Corrado (R-Passaic) announced on Tuesday she intends to introduce legislation requiring all municipal and Superior Court judges to undergo special training on the handling, investigation and response procedures for sexual assault cases.
“There’s multiple incidents of judges saying things that are just so inappropriate, and wrong, and disgusting, and shaming the victims and the survivors, so let’s put training in place,” Corrado told NJTV News. “Let’s make them aware that their words have consequences, and let’s start doing it now.”
Sen. Weinberg reportedly is drafting similar bill language and Assemblywoman Valerie Vaineri Huttle (D-Bergen) said she also has been working on legislation with the same intent in the Assembly — “to ensure that all judges who sit at the bench lead with a victim-centered approach rather than protecting perpetrators and rapists,” she told NJ Spotlight.
Gov. Phil Murphy on Monday called for the state Advisory Committee on Judicial Conduct to investigate the judges but has not called for their resignations.
Why It’s hard to oust judges
As Gopal noted at the rally on Thursday, removing judges can be difficult because they sign on for seven-year terms and can then be renewed to “essentially lifetime tenure until they reach 70.”
In New Jersey, judges can be removed in one of three ways: A majority in either house of the Legislature may initiate removal proceedings, the governor can file a complaint with the Supreme Court, or the Supreme Court can issue its own motion to remove them.
Removal proceedings usually start off with an allegation of misconduct like those made against Troiano and Silva. An allegation is reviewed by the Supreme Court’s advisory committee on judicial conduct which is made up of private citizens appointed by the court. The committee can either dismiss the charges or recommend a formal hearing. After that hearing, judges can be formally reprimanded and suspended without pay, or removed from office.
But it doesn’t necessarily end there. If the Supreme Court certifies to the governor that a judge cannot “substantially perform his/her judicial duties,” a three-person commission is then appointed to further look into the situation. That commission can recommend the judge be removed and the governor can choose to retire the judge from office.
Gopal and others at the rally said this system is burdensome and allows unfit judges to remain in office.
Need for better ‘checks and balances’
“Our approach of appointing judges where they get tenure and then they’re there forever may not be the best course to move forward. I think there needs to be a better system of checks and balances,” Gopal said.
Patricia Teffenhart, executive director of the New Jersey Coalition Against Sexual Assault, said the immediate removal of the accused judges would be a good start but that New Jersey’s entire criminal justice system needs substantial and sustainable reform to prevent these incidents from reoccurring.
“There are larger reform efforts in which we need to be investing. We need to be asking ‘what do survivors want?’ And all of the statistics bear out survivors don’t always want to move forward and engage in our criminal justice system,” Teffenhart said. She noted that the national Rape, Abuse, and Incest National Network (RAINN) found in the United States “an overwhelming majority of survivors of sexual violence will never access the entirety of the criminal justice system. Out of every 1,000 sexual assaults, 230 are reported to the police. Forty-six lead to an arrest, nine land on a prosecutor’s desk, and five land in felony convictions.”
To that end, NJCASA is calling on the state to deliver a “two-fold solution.” That would include immediate change — a Supreme Court review of both judges and passage of legislation with training requirements for judges — as well as long-term reforms. The organization has submitted a proposal to the Office of the Attorney General requesting an investment in a “large-scale, community-based, sexual-violence focused restorative justice program for the Garden State.”
“I’m inspired by the preliminary conversations we’ve had with the Office of the Attorney General; I think that we are going to make some progress in that arena,” Teffenhart said.
Survey: Most did not report incident to law enforcement
NJCASA earlier this year launched the first-ever Statewide Sexual Violence Survivor Survey to inform statewide policy with direct testimony from victims and survivors of sexual assault. Six weeks after launching the survey, Teffenhart said, they’ve heard from close to 300 respondents all calling for “large-scale justice reform.”
So far from that survey they have learned that 78.5 percent of respondents did not report their incident to law enforcement. Of those who did not report to law enforcement, 10 percent indicated that they didn’t think they would be treated fairly due to their race, sexual orientation, gender identity, or immigration status, 36 percent indicated that they didn’t think they would be believed and 42.5 percent said they were afraid.
But with the recent attention of social media campaigns like #MeToo and #Time’sUp, people like Teffenhart and Kanthan are hopeful that there may soon be meaningful change in favor of sexual assault survivors.
“I have a message for Judge Troiano, Judge Silva … and every other judge who has ever prioritized the well-being of a rapist over that of his victim,” Kanthan said. “Time is up.”
Read about the State Auditor’s report on the Sexual Assault Examination Process.