NJ judge is scolded but won't be punished for downplaying rape

Acknowledging that she chose her words poorly, a split judicial panel on Thursday declined to pursue discipline against a Family Court judge who had downplayed the reported rape of a 12-year-old girl.

In a 6-4 decision, the Supreme Court's Advisory Committee on Judicial Conduct dismissed the complaints against Judge Marcia Silva, who had said in a 37-page decision in 2018 that the girl's assault was "not an especially heinous or cruel" crime and that “other than the ramifications of losing her virginity, which the court does not find to be especially serious harm,” the girl “did not suffer any physical or emotional injuries.”

The public first became aware of Silva's words last summer when New Jersey 101.5 identified her as part of a series of reports that also exposed another Family Court judge, who urged leniency for an Eagle Scout accused of videotaping his sexual assault of a teen girl.

As a result of the reporting, which recently earned the station the prestigious Spotlight Award from the Keystone Pro Chapter of the Society of Professional Journalists, more than a dozen state lawmakers called for the judges' removal and advocates used the cases as examples of the challenges that victims of sexual abuse face in pursuing justice.

Significantly, the media attention last summer spurred the Supreme Court to acknowledge the controversy and require sex-crime sensitivity training for every judge in the state.

James Troiano, the judge whose decision downplayed the accusations against the teen who sent friends a video captioned "when your first time having sex was rape" by pointing out that he came from a good family and attended a good school, stepped down permanently weeks after New Jersey 101.5's report spurred widespread media coverage and a petition with 188,000 signatures calling for his removal.

Troiano was already retired but had been serving on recall in Monmouth County to help the courts with its backlog. Silva, appointed in 2014 by Gov. Chris Christie, is up for a tenured reappointment next year.

The panel's majority opinion on Thursday acknowledges that press reports resulted in numerous complaints against Silva. The panel also noted that the notoriety of the case forced them to break with precedent by publicly chastising Silva for her "inappropriate choice of words."

But while her words characterizing the alleged crime may have been inappropriate, the majority did not find it "gratuitously offensive" or deserving of disciplinary proceedings, which they said should be "reserved for only the most extreme cases."

A four-member faction on the panel, however, wrote a dissenting opinion calling for a public hearing with testimony and cross-examination, rather than an informal conference.

The case concerned the request by the Middlesex County Prosecutor's Office to try the teenage defendant as an adult on charges of first-degree aggravated sexual assault. The prosecutor appealed Silva's decision, making portions of the confidential Family Court proceeding public when portions of the decision were quoted in an appellate opinion that overruled Silva.

The disciplinary panel noted that the prosecutor had to show "that the sexual assault was particularly egregious beyond its inherent egregiousness."

"It is difficult to express such concepts," the majority decision says. "In attempting to do so, Judge Silva sacrificed sensitive and conciliatory language in favor of a more clinical, unemotional, perhaps even stoic legal evaluation of the statutory factors and the prosecutor's burden."

The majority's decision said that during the informal conference, Silva "thoughtfully explained her reasons and acknowledged that the language in her opinion was inappropriate."

She defended herself by arguing that she did not realize that her written decision would ever go public.

"Had I ever imagined that it would be put out to the public, I certainly would have put in there what I'm telling you today, which is that every rape, including statutory rape of a 12-year-old, is heinous," the panel quoted her as saying."

Nevertheless, the decision says that the "majority of the committee has concluded that the words in that opinion were inappropriate."

"The majority would ordinarily communicate these conclusions to Judge Silva privately," the committee added. "But in view of the extensive publicity the matter has received, the majority decided to issue this public statement."

The dissenting opinion, while not calling for the judge to be punished, argued that "a more fulsome review and airing of the circumstances here would, we believe, promote the public's confidence in the Judiciary and the system of judicial discipline (and perhaps would be in the judge's interest as well.)"