A Letter from a Prosecutor to a Young Woman

Dear Elizabeth:

I don’t see what more you could have done.

As you well know, reporting sexual assault is a remarkably difficult act.  It is deeply emotional, terrifying for many reasons, unpredictable and often thankless.  You may not have known while you were alive that the great majority of sexual violence is simply never reported to authorities.  But you did report it, quickly and comprehensively.  I’m in awe of your courage.

I can only imagine how difficult it was for you in particular, Lizzy.  You were a 19 year-old college freshman who had struggled with depression; a lovely young woman who had just started studies again after a difficult first year.  But you made it to St. Mary’s, an excellent, close-knit school and one situated along with Notre Dame in the heartland of Catholic education.  Arriving in this environment from a strong Catholic background must have been an incredible and hard-won joy for you.

But I’m sure it also made it infinitely more difficult to come forward and report what happened on the night of August 31.  Being sexually assaulted at a place like Notre Dame and by a member of its football team- the very beating heart of the school for many- is an act that would have silenced most.  Few things are more difficult to come to terms with than being attacked in a dorm room by a football player on one of the most venerated sports campuses in the world. The idea of telling anyone must have been horrific, especially as you were just settling into a new school, a new semester, a new season of hope.  I’ve spent a career learning how hopes like that can be destroyed in the space of moments, and it never gets easier to hear.

Still, you faced down your fears and took action.  You told your friends and wrote down what happened that very night.  You went to campus police the next day.  Despite the fear of being portrayed as God-knows-what and the fury that might rain down on you for reporting against a football player, you reported anyway.  Despite the discomfort of an invasive physical examination, you endured one.  Despite the fear and exhaustion that comes with entering counseling in order to fully recover from such an attack, you did that, too.  You did everything that could possibly have been asked of you.

That’s why I’m trying to understand why Notre Dame, the world-class, excellent institution where you were attacked, has reacted the way it has.  I don’t know why campus police didn’t turn over a case file to the St. Joseph’s County prosecutor’s office until just several days ago- after your case became national news and your hometown paper began demanding answers. Nor do I understand what’s behind the school’s refusal to release police records regarding what they know about what happened to you- even to your parents.

Finally, and most disturbingly, I don’t know why the man you reported against has played an entire season of football.  While it’s true that he is and should be considered innocent until proven otherwise, his privilege to play football isn’t in any way related to his legal rights as a citizen.  The fact is, you reported swiftly and completely a serious crime to the proper authorities that control his ability to play, and you followed through with evidence collection, counseling and cooperation.  Yet still they have chosen to refuse to even acknowledge your complaint, let alone bar him from playing at least until the investigation is completed.  This despite your death.  Coach Kelly won’t state whether he’s even spoken to the player you identified.  He’s quick to remind us that he stresses respect for women in his program, is a father himself, and wants “the right kind of guys” on his team.  Well, the player hasn’t been benched in three months; from this we can fairly deduce that Coach Kelly supports him as someone who is “the right kind of guy” and worthy of wearing the uniform.  If that’s so, why won’t he give his reasons?

The sad fact is there’s an ocean of ignorance out there regarding what happened to you, Lizzy.  Many who are watching the case unfold are repeating over and over again the meaningless mantra that that we must all “Remember Duke Lacrosse.”  It’s because many believe, with nothing to back it up, that women regularly accuse men falsely of sexual assault, and especially athletes.  They’re happy to extrapolate one example of a false accusation to every possible situation, despite the mountain of evidence suggesting that women just like you endure what you endured day in and day out, usually in numbed silence.

Even worse, some just don’t think that sexual assault is nearly as important as college athletics, and they’ll sacrifice the vindication of a budding, brilliant life like yours in a flurry of nonsense that will trivialize your suffering and ruthlessly twist reality.  They’ll call it regret.  They’ll call it a misunderstanding.  They’ll call it anything but what it is, and they’ll ensconce and defend the man who did it so he can simply do it again.  So even the prompt, thorough complaint you made and the investigation you participated in until your death wasn’t enough to bench a football player for a few games until some evidence came to light, one way or another.

But as you know, there are also wonderful people both at Notre Dame and at St. Mary’s.  Both are beloved, respected schools for a reason, and I know you felt and still feel that.  To the heroic staff from St. Mary’s Belles Against Violence who worked with you and actually found you before you died, I hope you smile on them from where you are and bless their work.

I believe in a loving God, Lizzy.  Although I’m a Catholic as you are I don’t believe He punishes those tortured enough to take their own lives, and I’m confident that you’ve reached a plane of existence that will give you not only blessed relief but also infinite understanding.  So I guess this letter is more for me than for you; you have the answers now.

Still, I’m sorry.  I’m sorry I didn’t know you in this life, and for what it’s worth l would have been honored to work with you to see the case against your attacker proven.  I would have had much to go on, given the dedication you showed to pursuing justice and the courage you summoned to do what most of us wouldn’t have dared.  Thank you.

Roger

76 thoughts on “A Letter from a Prosecutor to a Young Woman

  1. Pingback: A Letter from a Prosecutor to a Young Woman « Life: À La Carte! – a blog by Helen Hill MFT

  2. Pingback: Notre Dame Hypocrisy « the road less traveled

  3. Roger Canaff Post author

    Thanks, Detective, for your insight on false reports- I agree, and I applaud you for pointing out what, in general, the truth is about false reporting rather than the hysteria that surrounds it.

    I’d be very surprised if NDSPD (apparently Notre Dame Security Police Department is the full name) has exculpatory evidence of the kind of that would make this case obviously flawed from the start. I wouldn’t at all be surprised if the case looked weak from the perspective of most practitioners. I doubt there was valuable physical or forensic evidence- there usually isn’t. My guess is it was judged a “he said, she said” case and then left to wither once Ms Seeberg passed away. There are plenty of otherwise decent and competent prosecutors and cops who won’t take that kind of a case. I happen to know how to try and win them, at least in some cases, and that’s why- assuming I’m correct- I wish I had been the appropriate person to make the decisions about it. And I would have wanted a first rate, hard working detective, as you seem to be, as well as a great victim advocate to complete the team and build the case.

  4. Why I didn't....

    Lizzy’s story has really been difficult for me to hear because I was in her shoes. It was Valentine’s Day 1998 and it was 3 ND football players that raped me. I had 2 witnesses that I thought were my friends that bailed because they didn’t want to get in trouble for being in the wrong place at the wrong time. I was told that if I wanted to “do something about this we won’t be your witnesses.” So it was my word against theirs and I had nothing. There wasn’t any evidence-they wore condoms. There wasn’t going to be any damage “down there” because I didn’t fight. These guys were 6 ft. plus 220 plus and I didn’t want to get hurt. Afterward, I started to fight when they pinned me down and said,”we just want to look.” I didn’t know what that meant until later when the counselor called it rape. I ended up hitting my head on a lamp and one of them said,”That’s what you get for fighting.” I didn’t label it rape because I didn’t want it to be rape. But it was.
    The first people I told said they were “jealous” because one of them was so “hot”-I didn’t say anymore to “friends” after that. A week went by and I was out of sorts. Luckily, my best friend told me to talk to a counselor because I was being a B and I wasn’t acting like myself. I didn’t mention the rape until I was walking out of the appt. I was ashamed that I had put myself in such a predicament and I tried to talk myself out of calling it rape but that is what happened. As part of my therapy, the counselor from Saint Mary’s and I went over to ND to talk to a man in resident’s life. I wrote my account on paper and told him what happened. He told me that he was very angry that this had happened to me but unfortunately, he couldn’t do anything from behind his desk. Then he pointed to 2 tall file cabinets and said that he hated to tell me but those file cabinets were filled with accounts just like mine.
    I know that these “trains” (rapes or consensual) occurred when I was going to Saint Mary’s. I heard more than once from guys “I play for Notre Dame.” I don’t really care who they play for. Notre Dame is so wrapped up in money they have forgotten about any kind of rights or values. This poor girl did what was right. I wish that I would have. I know that these guys will get what’s coming to them in due time. I wish that Lizzy could have found some justice. You did what I wished I could have. I hope someone fights for her voice that has been silenced. I think Dvorak needs to pay a visit to resident’s life. Thank you for such an outstanding kick in the pants letter. I pray for peace and comfort for Lizzy’s family. I am sorry for your loss.

  5. Roger Canaff Post author

    Thank you for the comment and I’m terribly sorry for what you went through- the miserable reaction by others included, which for some can be worse.

    I believe this very strongly, having learned it from some of the best women I know, most of them in the business I’m in and with much more credibility: Your only job during a sexual attack is to survive it. You did survive it, and that is all that matters. I commend you for giving credit to Ms. Seeberg for doing what you weren’t able to do at the time, but I hope that no one encourages you to second guess what you did or somehow suggests that you fell short. You did what you had to do, that’s all that matters. You’re still here, and that’s all that matters. Thank you for sharing what happened to you- it’s only through this kind of dialogue that we stand a chance of turning things around.

  6. Roger Canaff Post author

    Kristin- thank you for commenting. You did everything you could have done. The issue has to do with how campus sexual assault is investigated and prosecuted. For the most part, it is sub-standard. Many, even well-intentioned, investigators and DA’s shy away from the vast majority of sexual violence crimes because they seem, to the untrained, to be impossible to prosecute. They are difficult, but they are not impossible. Most cases don’t yield physical or forensic evidence- good sex crimes prosecutors know not to rely on that stuff. Even when that evidence does exist, it is rarely the key to the case.

    The major problem with the investigation of sexual assault in the US is the constant focus on the victim/survivor. Cops and ADA’s ask “why did she do that?” far too often. I’ve seen many, many cases where the DA says “I believe her, but I just wish she hadn’t (drank too much, worn such a crazy dress, danced with him in front of everyone beforehand, fell asleep in his bed, invited him in, etc, etc) Most cases involve women who are voluntarily intoxicated. Some involve women who agreed to some sexual contact but not the attack that followed. Some, but certainly not all, victims are targeted exactly because they either won’t report or won’t be believed if they do. For instance, predatory offenders (and most of them are predatory) will purposely seek out women who are young and inexperienced, or have reputations for being “crazy” or “slutty,” etc. They figure these women either won’t tell anyone or certainly won’t be believed- and often they’re right. Of course, women who are and/or seem completely grounded and “normal” are targeted also. The point is that they are targeted. Most rape is serial rape. Most men who rape are not normally nice guys who just go over the line once in their lives.

    The trick is to turn the focus, as we are now training DA’s to do, on the offender. Rather than ask “why did she do what she did?” the better question is “how did he manipulate the situation, and how did he use whatever it was she did or didn’t do to set his trap and then cover his tracks?”

    Non-stranger sex assault cases are difficult to win, but they are not impossible. It takes patience, teamwork, creativity and a lot of hard work and faith to win them. All I can tell is, we are working on it.

  7. Detective

    Roger,
    I often hear (or read) victim advocates suggest that investigators should never ask a “why” question. Some “why” questions are more obvious than others. Example: Instead of asking, “why did you wait to make a report?”, I usually ask, “did you consider calling the police?” However, this can be a very slippery slope into influencing a victim’s statement. Ultimately juries want “why” questions answered. It is always better to get out infront of issues that can damage a case. Sometimes this means we have to ask tough questions. While nothing is more important to a victim than their physical and mental recovery, I am forced to look at a much bigger picture. The bigger picture is not only justice for a specific victim but probably most importantly, protecting a community from a sexual predator. Simply put, we need to build a strong case and ask difficult questions. Defense Attorneys often attack either the victim’s credibility or the investigation itself. In many cases the victim is simply to sympathetic and the best approach is to go after the investigation. A good defense attorney will pick apart a victim interview and make a well intended Detective appear to be eliciting a specific response.
    I understand the psychology behind not asking a victim “why”. I also understand the concept of turning the “focus”. Those tactics seem appropriate for a court room but I don’t know if it can be applied during the investigation phase. I know that most of the trainning you refer to applies to Prosecutors but in many agencies (mine included) most evidence, statements and interaction with the victim occurrs before a Prosecutor even sees a file. Can you direct me to specific research that addresses how to get around these questions or how to ask them in a way the isn’t overly leading?

    Thank you for you thoughts. If this isn’t the appropriate forum to answer my questions, I can email you or send a message via facebook. Please don’t feel obligated to respond if you are too busy. With a little research I can probably find the information on my own.

  8. Pingback: Some Serious Questions Surrounding Elizabeth Seesberg « Sam I Am

  9. Pingback: Some Serious Questions Surrounding Elizabeth Seeberg « Sam I Am

  10. Pingback: Elizabeth Seeberg: Victim Blaming to Protect the Powerful « One in Four…

  11. Roger Canaff Post author

    Detective, thanks for the comment and the interest. This forum is just fine, but you can always reach me offline at roger@rogercanaff.com.

    You’re correct that “why” questions need to be answered. Different professionals in the anti-sexual violence field have different opinions, but what I usually teach (I do teach investigators also) is to ask the “why” questions, but just in a way that doesn’t come off as judgmental. You’re correct that, during the investigation stage, tough questions need to be asked. I think just being careful with one’s language and tone can go a long way toward eliminating the appearance of being judgmental while doing so. So as you say, rather than asking something like “why did you invite him” or even “why did you offer to let him use the bathroom at your apartment when he dropped you off?” etc, etc, ask something like “can you tell me what was going through your mind when you invited him in?” or words to that effect. Obviously you want to avoid a “what were you thinking” sounding question, but I think the basic trick is to phrase the question in those terms rather than just a naked “Why?” I also explain carefully to victims why I’m asking what I’m asking. In prep for trial, for instance, I’ll explain very carefully that I’m not asking the questions because I doubt their account, am trying to break them down, or because I think it’s somehow entertaining. I do so because I know (if I know the defense attorney’s style, which I usually do) how she’s going to be confronted on cross.

    If you’re looking for some grounded, passionate but balanced, well-respected and results oriented investigator training and insight, check out http://www.mysati.com/. This website will connect you with a woman I work with at End Violence Against Women (EVAW) named Joanne Archambault who is without a doubt the best investigator-trainer in the US and beyond when it comes to sexual violence. She’s a retired police sergeant from San Diego and ran their PD’s sex crimes unit for the last 10 years of her career. She’s an amazing resource.

  12. Wayne Gooder

    Thank you for your article. The more people who read about Elizabeth Seeberg’s story, the more people who can voice their outrage on how this is being handled by the university and especially the D.A..

  13. Roger Canaff Post author

    Thank you, sir. I agree completely. I have no idea how the DA of St. Joe County will report the case out, but I’ll be very curious to see how they evaluate it.

  14. Escofino

    Dear sir –
    I will limit my many many criticims of your work here to just this one:
    Why have you written a letter to Ms. Seeberg? She has died. She will never be able to read your letter.

    I selected this criticism because it highlights the primary theme of most of the rest of my criticisms: that your ‘letter’ is overwrought and pandering. Your choice to write in letter form is, frankly, disgraceful and merely an emotion-plucking tool you’ve chosen to employ. It is written as though you are angling for an invite to Oprah.

    As a prosecutor, surely you should be more aware of the importance of gathering facts before presenting a case. Here, you have read a few short articles and press releases and have leaped into the fray.

  15. Roger Canaff Post author

    Thank you for your comment and for joining the conversation. Please, do not limit your criticism if you wish to write more. I am responsible for what I post, and happy to respond to comments whether positive or negative.

    I can only tell you that I believe, in fact, that Lizzy Seeberg can read the letter I wrote; I believe in an afterlife and I believe she is a part of it. That is a matter of faith; I can’t expect you or anyone else to agree with it if it’s not your inclination to do so. But it’s a belief I hold dear and draw comfort from, and it drove in part the decision to frame this post the way I did. To the extent that the personal tone I chose to take resonates with others, I hope it’s positive. In your case it is not, and while I find that unfortunate, it doesn’t make me second-guess my choice in doing so.

    Respectfully, I was not “presenting a case” in any prosecutorial manner with this blog post. Rather, I was expressing my admiration of this young woman, and also my reasonable belief that she was not served well by the administration of Notre Dame.

    Have I made assumptions? Yes, I have, and I stand by them. I believe that Ms. Seeberg’s complaint was valid, albeit based on what little I know. However, my opinion is far from baseless. It is quite well based in both reason and experience. And, in any event, my context is not a strictly legal one and I am not responsible for bringing charges to the legal standard of the criminal law.

    Again, thanks for commenting.

  16. Captain Obvious

    To be honest, I didn’t read your entire letter because as soon as I saw that you were wondering why this player was not benched it became apparent that you are an irrational person. Yes this was a tragedy that she felt the need to take her life, and that she was not better supervised even though she was diagnosed with depression and had clearly been through a traumatic experience.

    However, let us consider the kind of life sentence that comes with a sexual assault allegation. Something like that follows you forever, regardless of whether or not the allegation has an ounce of truth. That being said, suspending this player from the team would be a dead giveaway as to who it is. This man has rights, and one of those rights is that he is innocent until proven guilty. Not only from legal ramifications but from the court of public opinion. Have you learned nothing from the Duke Lacrosse scandal? To suggest that he should be suspended, and thus handed over to the media, due to an allegation is irresponsible and irrational.

  17. Roger Canaff Post author

    I appreciate your honesty, Captain (and thanks for joining the conversation) but if you didn’t read the entire blog post I’m not sure how completely I can address your criticism.

    One one hand you appear to acknowledge that Ms Seeberg did, in fact, suffer a traumatic experience. If so, then why are you intimating that this might be a parallel to the Duke Lacrosse scandal, where apparently no traumatic experience was visited on the complainant by the suspects?

    With regard to the “life sentence” you refer to that comes from a sexual assault allegation, I can only assume that you believe (as many people do, albeit with nothing other than occasional and misleading anecdotal evidence to back it up) that false allegations are as common as rain in Seattle, and that they are regularly ruining lives day in and day out. They’re not. Without a doubt, an accusation against a person is harmful, particularly when it becomes public and/or involves something as odious as sexual assault. But if the accusation is valid (as most are, and as I believe Ms Seeberg’s was) then the fallout is perhaps premature, but not patently unjust.

    I agree completely that every accused has rights that should be protected. It appears that the accused’s rights in this case have been well protected, and that he will not face criminal charges (the DA made the announcement yesterday, I believe). However, his legal rights in the criminal context do not preclude the University, in the face of a thorough and prompt report of sexual assault from a cooperative victim, from benching the player until an investigation can be conducted. I would agree that, if the allegation had been highly suspect from the start, a judgment call could be made by the athletic department, the school, or Coach Kelly, to not bench the player. But this allegation was, to my knowledge at least, not at all highly suspect, and in fact quite compelling on its face. Particularly given that the incident appears to have contributed to the victim’s suicide, I think it merited action on the schools part to say to the player “I’m sorry- no one is assuming you’re responsible for this act until an investigation can be thoroughly completed. However, you have been accused in a thorough and compelling manner, and the complainant has committed suicide. It’s not appropriate for you to represent this school on the football team until the circumstances can be as fully fleshed out as possible.”

    Would an action like that be harmful to the player? Yes. Might it be unjust, and might the complaint be invalid, thus harming him unjustly? Yes. Do people every day face criminal charges and public opprobrium for bad things they didn’t do, and then have to rebuild reputations and goodwill as a result? Yes. It is an imperfect world. But a compelling accusation and the death of the young woman at the center of it add up to “sit out a few games, son” to me. They do not to you, because you appear to assume that false allegations are tossed around all the time- perhaps based on Duke Lacrosse. But Duke Lacrosse is a remarkably isolated incident. Compare it, if you are willing, to how many completed, valid sexual assaults occur on college campuses and beyond. Duke Lacrosse is emblematic of nothing, Captain. Is defines nothing but its own miserable facts.

    Thanks again for your comment.

  18. Pingback: A Letter from a Prosecutor to a Young Woman « Man in progress: A journey to becoming a well-rounded man

  19. kyle

    Roger,

    You wrote:

    “Would an action like that be harmful to the player? Yes. Might it be unjust, and might the complaint be invalid, thus harming him unjustly? Yes. Do people every day face criminal charges and public opprobrium for bad things they didn’t do, and then have to rebuild reputations and goodwill as a result? Yes. It is an imperfect world. But a compelling accusation and the death of the young woman at the center of it add up to “sit out a few games, son” to me.”

    The ND player wasn’t prosecuted, now, was he? So, I guess he did not face “public opprobrium” for a bad thing that he did not do. But, if it were up to you, then he would have. How would you feel if you were accused of a crime you did not commit, and you had to suffer the consequences? I guarantee you would lose your everloving mind.

    Roger, I have a real problem with the fact that you are the premiere HQE for the Army, employed by TCAP, who will influence hundreds of CID agents, SVP’s and Trial Counsel. And, your comment above indicates that if a Soldier has to face criminal charges or public opprobrium for something that he did not do, then those are the breaks because it is an imperfect world. So, does that mean you would consider a falsely accused as collateral damage in the Army’s war against sexual assault in your eyes.

    Thanks, but, I kind of like the way that the Consititution was written where someone who is accused of a crime is afforded due process until the Government proves his guilt beyond a reasonable doubt. Somehow, somewhere, the concept of crime victims’ rights has gained traction and now it appears that you have no problem with punishing those who are falsely accused because “our system is imperfect.” Perhaps, TCAP should employ someone who won’t accept that “the system is imperfect” when he is wrong, and employ someone who will strive the make the system as perfect as it can be. Hint, this will not happen by destroying the 5th and 14th amendments. It will happen by CID Investigators conducting a thorough investigation to include questioning a “victim” when the story is not supported by the evidence and does not make logical sense.

    As a military defense attorney, I find that there is a large percentage of females who make false allegations of sexual assault against our Servicemembers. I also find that CID has been rendered impotent to fairly investigate the truth of the allegations because CID has been instructed to treat every allegation as true out of fear of “victimizing” the victim, i.e. empowering a woman with an agenda to lie to escape complete accountability for her actions. I suppose the Army can rest assured that the Soldiers TDS attorney will figure out at the Article 32 what the truth is. That is, if the TDS attorney has the gumption and training to do so, against an SVP who has vast more experience and resources than TDS does. Have you noticed how the Army JAG Corps has found millions of dollars to hire HQE’s with an agenda, SVP’s who are senior in rank to most TDS counsel, and CID investigators who focus solely on sexual assault, yet, the Soldier gets one TDS attorney to represent him who represents Soldiers on a number of different issues?

    Truth is, I should be thrilled to see someone with your apparent agenda rattling the sexual assault saber because I get hired by Servicemembers to defend them against baseless charges. And, I get to destroy liars on the stand, which I love to do. Unfortunately, I have to make a living, and they have to pay my retainer. I would prefer to be forced out of a job and have to represent those injured in car accidents.

    The paradigm shift that appears to be taking place with regards to sexual assault is in danger of becoming the same type of jurisprudenced occasioned during the Salem Witchcraft trials. What a dispicable mess that was.

  20. Roger Canaff Post author

    Thanks, Kyle, for your comment. I must begin my response, however by pointing out what should be glaringly obvious to you as an attorney: Every point you’ve made here is based on one massive assumption that you know very well isn’t true: The young man accused of sexually assaulting Elizabeth Seeberg has not been found, declared, or otherwise established by anyone as “innocent.” And yet you clearly equate the decision by the St Joseph’s County District Attorney not to pursue criminal charges as “proof” that he is innocent. I know logic isn’t formally taught in most law schools, but really- you must see the remarkable flaw in yours. In fact, I’m positive that, as an experienced criminal attorney, you’re quite familiar with the legal burdens at play in criminal procedure. You know very well that only in exceptionally rare cases will an authority (a DA, an Attorney General, etc) make a legal declaration that a person is innocent. The vast majority of the time, a person is either found “not guilty” after a trial (meaning the state has not proved his guilt beyond a reasonable doubt- an appropriate but very high burden) or a decision is made not to pursue criminal charges due to a lack of admissible evidence. Neither decision, in almost all cases, attempts to say anything official about the actual innocence of the accused person. While it’s true that a decision not to prosecute may be related to a belief by the prosecutor that the accused is actually innocent, there is almost never a formal declaration of the accused’s innocence concomitant with a decision not to pursue charges. In this case, DA Dvorak’s statement reflected the usual course- nothing, absolutely nothing- was stated as to whether this young man is actually innocent. Instead, a completely reasonable decision (as far as I can tell) was made not to pursue charges because Ms Seeberg’s statements are inadmissible because of her unavailability (and subsequent inability to be cross-examined). Since I know you know this, I can only assume that your agenda (in attempting to frame most sexual assault allegations as untrue) is far more pronounced than you claim mine is.

    I am not surprised (because of Ms. Seeberg’s untimely death in early September) that a criminal case against the man she accused cannot be brought. From an evidentiary standpoint, the case appears to be unprosecutable. Because of this, it is correct and appropriate that the accused suffer no legal consequences for his actions against Ms Seeberg. But legal guilt and moral guilt are quite separate, Kyle, and you of all people should know better than to attempt to conflate them.

    However, another avenue exists to hold this man accountable for this act, and that is the university’s internal disciplinary process (Ms. Seeberg’s testimony would not be necessary in that case). But, because of what appears clearly to me to be terrible incompetence and/or inattention on the part of the officials involved in investigating this act (not to mention an apparent stance by the university not to pursue the matter on its own as a disciplinary one as they can do), the case has been rendered weaker than it had to be had it been investigated correctly, quickly, and with any vigor whatsoever.

    With regard to your opinions on my program and how I support the US Army, I don’t believe it’s my place in this space to comment on the policies that surround my employment. If you have specific questions, please contact me offline at roger@rogercanaff.com. I will offer one correction, though; while I appreciate the sentiment, I am not, in fact, the “premier” HQE within my program (TCAP, as you mention). I serve equally with two other HQEs, both highly skilled and well respected former prosecutors.

    Finally, I’d be interested to know what your belief (that many soldiers are falsely accused in sex assault cases) is based on. Clearly it’s not a research based statement as no research exists to support such a claim, and research that has been done extensively and worldwide in the civilian context contradicts your view. My own experience supporting the military has been much different from yours. As in the civilian world, it is common to discover that valid sex assault claims are dismissed as false because of counter-intuitive but logical reactions of victims, and because of the negative and unskilled reactions of responders on every level. Perhaps it helps you in terms of effectiveness and your own conscience to believe that the women you “destroy” on the witness stand are liars, Kyle, but I don’t believe you’re correct much of the time at all.

    Nevertheless, I admire your willingness to zealously defend individuals accused of serious crimes and I do not deny that, in some cases, accused persons are not actually guilty, or at very least not appropriately legally guilty. I’m sure we’d agree that every accused deserves excellent and dedicated legal counsel, and that raising the level of advocacy for everyone (prosecution and defense) does the most to ensure justice- the ultimate goal of everyone in the system. I have found TDS attorneys to be very effective and highly skilled. I enjoy working with them and have learned much from them. I wish you well in your career but would challenge many of your assumptions. Again, thank you for your comment.

  21. kyle

    Roger,

    Every person who is accused of a crime is innocent until proven guilty. The ND football player is innocent under the law. It is what protects every person from being wrongfully convicted. So, I would hope you would agree that my assumption is a valid one based on 235 years of jurisdprudence. I think that a guilty person rotting in jail due to a mistake or flat out lie is more unjust than a guilty man being acquitted. Your agenda and the number of organizations to which you belong is to flip the burden of proof onto the defendant when it comes to sex crimes.

    With regards to my opinion regarding false accusations in the military, you should probably educate yourself as your statement that there is “no research” to base my statement on is false.

    First, McDowell researched 1,218 cases from the Air Force between 1980-1984 where 212 were admitted as hoaxes by the accuser. 460 were founded, and that left 596 unfounded or unresolved. The researchers made contact with the victims to interview them and offered them polygraphs, 27% of those “victims” admitted that they fabricated the allegation, which leaves 30% of allegations that were admitted to be fake. This does not take into account the “founded” complaints that were false or the unfounded cases where there was no recantation which were false. These are only the accounts where the accuser admits that the accusation was false and made up.

    Second, Kanin published an article in 1994 based on research from a Midwestern town over a 9 year period indicating that 41% of the rapes reported were false in that the “victim” admitted they were false.

    Finally, my own personal experience. I have represented 12 Soldiers accused of sexual assault:
    3 convicted (2 guilty pleas/one contested)
    2 dismissed during the investigation
    3 dismissed after the Article 32
    1 dismissed during trial
    2 acquittals
    1 pending, but looks like a dismissal at Article 32.

    Just taking the 2 dismissals during the investigation with the 3 dismissals at the Article 32 investigation where the victims were clearly lying gives me a 41% false allegation rate.

    What is your rate based on your time in the Army? I bet it is 100% because you highly qualified experts aren’t permitted to question the accuser regarding contradicting evidence. Deep down inside you know you were hired to explain “counterintuitive victim behavior” and find why it is logical with regards to this one person. I would imagine that sometimes this involves a certain amount of telling an accuser what to say to make her a “victim.”

    But, Roger, my main question that you never answered is: Do you believe that those persons who are falsely accused and punished while awaiting trial are simply collateral damage in the war against sexual assault?

  22. Roger Canaff Post author

    I’m sorry, Kyle- I honestly did state something incorrectly. I should have said there is no valid, methodologically rigorous research to back up your claims. The Kanin study has been widely criticized as being terribly sloppy- Kanin relied upon law enforcement to tell him when a case was a false report and used no standardized method of coding himself to determine if the reports actually were false. It is, for example, quite common for cases to be reported as false when a victim fails to show up for a court appearance, even if she’s homeless, or in a threatening domestic situation. I’m not as familiar with the McDowell study but given the time frame of it and the methods used to compel admissions of falsity (i.e., threatening complainants with polygraph exams) I remain unimpressed.

    My point is not that there are no such things as false reports. I have never, ever suggested that personally or professionally and I never would. My point is that false reports in sex assault cases occur no more frequently than in other types of cases, and that there is no reason to view a complaint of sexual violence with more suspicion simply because it’s a complaint of sexual violence. However, many people do so because of deep-seated and unfair biases and ancient myths. Women and men do lie about being sexually assaulted. But they don’t do so any more often then they lie about car theft, insurance fraud, robbery, or any other major crime. What we do often see in sexual assault cases, because of the cultural taboos associated with sex and sexuality, because of societal judgments, old biases, etc, are lies from victims about collateral matters, i.e., how much they drank, who invited whom in first, etc. Victims do this for many reasons- shame, fear of making the case more difficult to prosecute (ironically being nakedly truthful about all details makes the case stronger with a prosecutor like me who knows what he or she is doing), fear of judgments from everyone around them as to what they did to “invite” the assault, etc. Without a doubt, sex and sexuality are weighty, private, hyper-burdened subjects. These things sometimes cause victims to act in ways that are counter-intuitive (as you state) and often make claims harder to believe. But doesn’t mean the claims are false. Sometimes, albeit rarely, they are. That’s a fact of life and I wouldn’t seek to state otherwise in any forum. Knowing when not to prosecute a case (and thus spare a non-guilty accused the agony of a trial where no crime occurred) is more important than knowing how to prosecute a valid case successfully; I’ll fully agree to that. My job as a prosecutor was never to win cases- it was to do justice. If justice meant dismissing a case, I did so readily.

    You’re correct that I do, in professional efforts, seek to explain “counter-intuitive” behavior from victims because it acts as an unfair bar to the correct investigation and prosecution of men who rape. And most men who rape do so again and again and again, tearing up and truncating people’s lives and destroying all manner of otherwise positive, productive human interaction. I will not- as I said before- discuss Army policy or my professional involvement with them in this space, except to say that I am honored to be part of the institution and believe that it values both the welfare of victims and the rights of accused soldiers with equal and appropriate vigilance.

    As to your main question- do I believe that the falsely accused and punished while awaiting trial are simply collateral damage? No, Kyle, I don’t. I believe that people who are falsely accused should be vigorously represented and readily, ably abetted by honest, ethical law enforcement officers and prosecutors who can help get to the bottom of a false accusation quickly. I am fine, by the way, with holding those who falsely report sex crimes accountable when appropriate. That being said, I have found that most people who do falsely accuse are often mentally ill. In any event, a false accusation is nothing short of a tragedy, a grave wrongdoing, and/or a crime. I don’t tolerate them and neither should anyone else. But to suggest that many or most sex crimes are reported falsely is to grotesquely invert the real issue- that the great majority of offenders go undetected, and the great majority of victims suffer in silence or are grossly mistreated by responders at every level. Because of this, sexual violence continues at a rabid pace, and in every environment.

  23. Jaydee

    It is time for colleges to bring these feral thugs under control! Obviously rape by ‘athletes’ is somewhat of a tradition at Notre Dame and is not taken seriously! If the victim had been a relative of mine I can assure everyone that the rapist would no longer be capable of any sexual activity of any kind! This is a disgrace! These so called ‘athletes’ contribute NOTHING for western civilization! Oh yeah one more thing-0they should be held to the same academic standards as REAL students!

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