Roger Canaff » Children

Brownian Movement and Penn State

Roger Canaff — Sun, 11 Dec 2011 21:07:25 +0000

“Presumed Innocent” was perhaps the one book that led me more than any other into law school and prosecution.

In it, Scott Turow describes “Brownian Movement,” the apparently random collision of particles in the air, resulting in a hum that children can sometimes hear before the bones of the inner-ear harden in puberty. Turow’s character, a married man, describes the allure of other women as something akin to Brownian Movement before meeting the woman in his office who becomes his love interest and is already murdered as the story begins. When he meets her, that movement rises to a fever pitch.

The fact of evil in the world is something I’ve often related to Turow’s view of Brownian Movement. The circumstances of my professional life assure me that it is there. I accept it. On streets and in train cars, passing houses, farms and city blocks, I am aware of its presence. It hums, usually just above or below the surface of my thoughts. I can, thankfully, usually tune it out when I’m with my toddler nephew or in the festive company of my parents and other loved ones.

But then sometimes, as it did to the tortured character of Rusty Sabich, it hums louder. It sings.

That is the Penn State sex abuse scandal. Many fans and members of the university community would prefer that it be called the Jerry Sandusky sex scandal, but I won’t (even the word “scandal,” frankly, trivializes this horror as if it was a torrid affair between celebrities). That’s because Sandusky is, as happens when institutions inadvertently protect predators, almost a minor character in the volcanic ugliness that is this situation. Of course, Sandusky allegedly represents the center of the pathos that stalked the Penn State community and now threatens to scar it forever. But Sandusky is not the embodiment of it. Rather, he is ultimately a trigger in the larger, full horror of the situation. The cover-ups, the rug sweeping, the second-guessing and rationalization, all in service to a 70 million dollar a year enterprise, represent the true scope of the evil that is Penn State.

And the cancer grows.

A young man mercifully cloaked- for now- as “Victim 1” has left his high school, about 30 miles from Penn State, because of bullying. He has apparently been blamed by fellow students for the unearthing of the truth surrounding the revered and local behemoth. This is an excruciating multiplication- in numbers at least- of the type of incomprehensible betrayal child sex abuse victims often feel within their own families when the abuse is uncovered. Victims are usually never more alone than after the abuse is discovered, whether they purposely revealed it or not. Siblings, non-offending parents, even grandparents are suddenly distant or much worse. The victim, after all, has “torn the family apart,” interrupted possible financial support, brought shame upon the family because of a ‘splash effect’ that will surely color the whole clan, etc, etc. The fact of the perpetrator’s utter and sole guilt for all of these depredations simply gets lost as younger siblings grapple innocently but cruelly with the separation, the shame, and the doubt. Older members who should know better still often fail with wildly differing degrees of willfulness to shield the child from blame. And of course, in many cases, this is exactly what the perpetrator warned the child would happen if s/he dared reveal anything.

This is perhaps the farthest reach of the anguish that is child sexual abuse. When perpetrators warn children not to tell, they are not always bluffing. In fact, when they warn of betrayal, anger, collapsing support and utter isolation, they are more often than not right on target. The system can only react one way, which generally confirms fears related to a separation of the family, time in foster care, police presence and judicial appearances. This is terrifying beyond words for most adults, let alone children. But when the second shoe falls, when family members disbelieve, equivocate, or flat out resent despite believing, the suffering blooms like blood in water. The child is forever changed. Recantation is typical, and valid cases more often than not go nowhere.

Sandusky, according to statements, demanded secrecy and seems to have leaned on his alleged victims actively, calling them repeatedly and appearing even needy and clingy at times. I have no idea if or how he warned them of other consequences for revealing what he was doing, but frankly it would have been superfluous. He was Jerry Sandusky, and they were in or near State College. He allegedly hunted through his own charity and perpetrated in athletic facilities. He was figuratively at God’s right hand.

And there’s the rub. If that phrase- God’s right hand- offends religious readers, I apologize. But the point needs to be made. Penn State football became, through a confluence of circumstances surrounding an iconic and otherwise honorable coach, a deity to be worshiped rather than a college team to be rooted for. The resulting millions in revenue silenced anything that might have tainted or challenged this entity. If reports are true, then Sandusky allowed a beast inside of him to run free in the permissive environment that the god-thing allowed. That’s what happens when institutions become godlike: Predators either seek to infiltrate them, or blossom within them once it becomes obvious they can.

Allegations at Syracuse’s equally revered and powerful basketball program and the Boston Redsox organization now follow. There will be more, as sure as Catholic dioceses the world over exploded in fire-cracker sequence, breaking my heart around the time I entered this field. Skeptics and die-hard fans will cry foul and insist there is money and fame to be gained in jumping on the bandwagon Penn State has started with false allegations. In almost all cases, they’ll be wrong. And God help the victims who will come forward despite the scorn, the bullying, and the dull, mean hate that coming forward will win them against these institutions.

By all appearances, the wide world of sports must now endure a bloodletting. For the sake of the many good things athletics brings to players and fans alike, I hope its leaders stand tall and its fans prove gentle and open-hearted. But regardless, the world of sports is cracking, opening, splitting. That high, insistent hum is rising yet again.

Of Angels, A Stranger, and an Absent Father

Roger Canaff — Mon, 21 Nov 2011 05:59:18 +0000

“Though we share so many secrets, there are some we never tell.” William Martin (Billy) Joel

He called it “The Stranger” and titled a 1977 masterpiece after it. In my business we sometimes refer to it as the “third persona” with a nod to Jungian psychology. A persona is simply a mask, the figurative one we put on to interact with others as we go about our lives. Most of us wear several of them. Our first persona, generally, is what we show to the viewing world. A second may be what we show a lover or a trusted friend, sometimes intermittently and whether we want to or not. But the third is a dark animal indeed. It’s the face we show to no one. It’s the side of ourselves we seek to conceal at all costs. We all have these shadows of ourselves, these Strangers, inside of us. As the song says, they are not always evil, and they are not always wrong. But whether our third persona is harmless or not, a wicked trick of the mind is that we almost always to fail to recognize that it exists in others. We assume, tragically at times, that we can fully know people around us because of the personas they reveal to us. We tell ourselves that we can sense, we can see, we can discern.

We can’t. The Stranger remains, hidden and invisible.

Jerry Sandusky is no exception. He was charitable. He was hard working. He was skilled, admired, and accomplished. He was also, according to eye-witness testimony, a child rapist. His third persona was apparently demonic, and regardless of how ugly and evil, his closest relatives, his wife, his co-workers and his legendary boss would not have detected it based on what he chose to show them. Thus reveals the one merciful thing that can perhaps be said about the group of men who, from all appearances at this point, conspired to protect Jerry Sandusky at the expense of so much. They didn’t understand the third persona, and believed they knew a man because of accomplishments and attributes that say nothing about what he is capable of otherwise.

But mercy for men like Paterno, Curley, Schultz and others in the Institution that is Penn State evaporates with the reality that Sandusky’s persona was exposed at crucial times. There were revelations- a smaller word will not suffice- that vomited a glimpse of it to the great Institution and to its “sainted” mastodon at different points on a long timeline. These revelations are sometimes the only indications an otherwise decent community will receive that a predator stalks its children. The child victims themselves, God bless them, are often the last who will reveal the Stranger in the man; it’s just a bridge too far most of the time.

Those without faith will call these revelations nothing more than dumb luck, inattention on Sandusky’s part, or the blind weight of circumstances. But my own framework of faith suggests to me that these brief flashes of light in the darkness- the anal rape Mike McQueary saw in 2002, for instance, or the oral rape the janitor before him saw in 2000- represent the extremities of desperate and semi-potent angels, using whatever cosmic power they can summon to poke momentary holes in the darkness, thereby alerting the powerful to what the powerless cannot utter.

When these extremities reached Joseph Paterno in March of 2002, the angels must have shouted with joy. A more powerful man, one with more credibility, perceived decency and moral authority, could not possibly have been reached in the community in which Sandusky apparently hunted. Ironically enough, a recognized origin of the name Paterno is a shortening of the Latin Pater Noster, or Our Father, the first two words of the only prayer Jesus allegedly taught his disciples. The great man, the father figure, “St. Joe” himself now knew, and the Stranger in Sandusky would be exposed.

But alas, there was an Institution to protect as well, and in the end it won out. An all-too human Paterno responded as feebly as he legally could. The two officials he went to responded by restricting Sandusky’s access to facilities and his ability to bring boys onto campus. The Institution was protected. The community that surrounded it, and its wide-eyed, star struck boys, could be damned.

Perhaps these men can be forgiven for not knowing what I know; that the eight victims Sandusky is alleged to have abused is probably more like 80 or even much, much more than that. That the after-effects of child sexual abuse result in a panoply of emotional, psychological and physical disorders that literally truncate lives, poison future relationships, stunt potential and shred hope itself like shrapnel. That the “loss of innocence” suffered by boys abused in the way Sandusky is believed to have done so is almost trivial compared to the bleak, mental torture that follows. That the only way out is through, and that many simply never make it through. That the morally bankrupt and cynical decisions made in 1998, 2000, and 2002, as well as before and after, allowed a man to further manufacture misery, betrayal and violence that will haunt lifetimes in its wake.

Perhaps. But at the end of the day, in 2002 and God only knows how many times before and after, these men bet an Institution and its football program over their community and the tender lives of its children. While the victims themselves have paid most dearly for this terrible wager, their fate is tied inextricably to that of the community. Now the suffering of both will echo louder than the joyful sound of the throngs in the stadium, and longer than the legacy of victories under fall skies.

And the angels wept bitterly.

Judge William Adams, A Camera, and the Power of Light

Roger Canaff — Sun, 06 Nov 2011 23:51:28 +0000

Roughly 2000 years ago an itinerant rabbi gave a sermon about light. The right thing to do with a lamp, said the rabbi, was to let it shine, not put it under a basket. That made sense in a time where light after sunset was a luxury; hence the parable. And of course, in the spirit of parables, there are other forms of light, and other functions for what we know as light. Light illuminates, and in so doing exposes.

In 2004, a remarkable young woman with a disability shined a light in the form of a video camera on the pathology, hatefulness and pure evil of a man who, until last week, had been a sitting judge in Texas. The video shows him, her father, beating her with a belt in a breathtakingly brutal way, over seven interminable minutes.

I am using words like “pathology” and “evil” distinctly, although as the study of psychology evolves, the difference between what we might call mental illness and what we have historically called evil are blurring in ways that make people like me- prosecutors, and arbiters of legal blame- uncomfortable. But for now, I’m comfortable, perhaps recklessly so, with discussing the two separately. I believe the man is probably sick. I also believe he’s evil.

Millions have seen the video. Millions more, thanks in part to the appropriate “trigger” warnings that have been associated with it, have demurred. I watched every second of it, and more than once. The video’s subject is my job, after all; I have seen things far worse, but in many ways I haven’t seen anything quite as naked and telling as this. Because sometimes it takes a camera in the right place at the right time to truly expose what lies beneath far more facades of normalcy than most of us understand. A camera won’t flinch. It won’t turn away. It will simply record with passive silence, and in situations like this one perhaps its growing ubiquity in our lives is a positive thing. After all, it allowed a 16 year-old Hillary Adams to preserve something that is simply unbelievable to many- that a respected member of the judicial bench, a smiling, reasonable looking man, would nevertheless be capable of a vicious beating laced with profanity against a young girl with cerebral palsy.

You see, I have prosecuted and assisted with hundreds of cases where I knew the truth, but also feared I’d never be able to infuse a jury with the courage to convict. I never had proof like the kind Hillary possessed; the kind she had the wherewithal and technology to create. And so doubt would creep in at the edges, doubt fueled by myths that protect men like William Adams and his now estranged wife. Myths that whisper that couples like the Adams’ aren’t the types who could hurt a disabled child that way. Myths that education, privilege, community stature, the genetic accident of white skin, and other niceties can’t co-exist with methodological torture and wanton cruelty. Myths like the one William Adams is selling right now, that the issue was really “discipline” and that what the video shows “looks worse than it is.”

Ah, but then sometimes, in blessed fashion, a camera shatters the myths; a camera placed by an intelligent and desperate child who has learned, as many family violence survivors do, to predict the escalation of hostilities that leads to violence.

So the video depicts exactly what occurred; it was Judge William Adams, community leader, outwardly decent parent, arbiter of justice, ripping into his child’s body with a lustful but eerily calm exuberance, armed with a leather strap. It was this man, uttering the word “f—king,” 14 times as he did so.

It was also Hillary’s mother, Hallie, whose participation was less violent but no less sickening. I’m glad that she has repaired her relationship with her daughter, and that Hillary has forgiven her. She’ll get nothing from me. I understand that I am running afoul of many domestic violence experts who maintain that a battered woman can be rendered powerless over years of brainwashing and abuse to where her own violence or failure to protect her children cannot be attributed to her in terms of blame. I am sympathetic to the dynamics that exist, and attribute the lion’s share of the blame to William Adams, where it belongs. But I draw the line on anyone who fails to protect their own children, regardless of what they are facing in another relationship. Hallie Adams’ explanation on Today was, to me, less than impressive. She calmly deflected blame by claiming victimhood herself and assigning an addiction to William. I’m sure this is accurate, but it doesn’t give her a pass where I’m concerned. She’s clearly not the primary abuser in the nightmare world Hillary navigated for so long. But she made choices that I cannot abide, and one of them was graphically showcased on this video with its own dose of profanity.

A five-year statute of limitations will likely protect both from criminal prosecution. Adams’ judicial career might be over, which would perhaps be the most just event he’s been witness to since that career began. There are many other ways to look at this case, Hillary’s courage and healing, and also the response to the video as Hillary is launched into a temporary but bright public spotlight. I wish nothing more than for her to live a full and happy life unencumbered by the evil visited upon her.

For me, though, the deepest value of what Hillary did by placing a running camera on her dresser and a scarf over the tell-tale blinking red light, was to allow a robotic, impassive eye to simply witness what far too many believe to be impossible. My friend and colleague Anne Munch once told me the story of a police chief in a small, idyllic Colorado town who was asked a typical ‘softball’ question by a reporter: “So, is this town a safe place to live?”

Rather than giving the pat and expected answer, the wise chief apparently looked at the reporter evenly and said what I believe might be the most plainly accurate thing that can be said about literally any locality on the globe.

“It depends on who you live with.”

Homeschooling, Risk, and Grand Canyon

Roger Canaff — Thu, 21 Jul 2011 04:56:31 +0000

“Grand Canyon,” from 1991, is one of my favorite movies of all time. In it, Mary McDonnell’s character says in exasperation to Kevin Kline’s, “there are people ready to shoot you if you look at them. And we are getting used to it.”

That time was, by most markers, the terrifying crest of the crime wave that began sometime around the year I was born. Although it looked hopeless, it did recede, and continues to do so at a gratifying rate. This is thanks to many factors including some heroic policing, public investment, and the efforts of social workers, prosecutors, civic groups and faith-based organizations nationwide.

Also dropping are child abuse rates, and to the extent I’ve been able to assist in this effort I’m deeply gratified. But recently a spate of sickening stories have me again scratching my head. The new, terrifying zeitgeist in child abuse seems to be torture, caging, and starvation, accomplished behind closed doors. In a particularly horrific, four victim case of out Washington DC in 2008, and at least one case I consulted on recently, the slow murder was carried out under the guise of homeschooling. I’m at the point, especially after the latest rapid fire examples of kids kept caged and hidden, where I’m ready to declare that there are children being starved to death by our neighbors and under our noses, and we are getting used to it.

The case I consulted on involved an otherwise healthy 10 year-old boy, literally starved to death by his mother and step-father. The post-mortem photographs of the child were nothing short of shocking to the group reviewing the case, and we don’t shock easily. The child was visibly emaciated and obviously near collapse if not death. For the final months of his life, though, as his condition steadily worsened, he wasn’t noticed by anyone outside of his household. That’s because he rarely left the house. Since school was ostensibly at home, there was no need for him to do so.

At the outset, please understand I am not against homeschooling. Two college friends of mine, a couple, have homeschooled four children with great success. This is primarily because Kathleen, the primary educator, is brilliant, nurturing and highly educated herself. The issue with homeschooling, as with many practices, is less essential and more procedural. If done right, homeschooling seems to work quite well according to some studies.

But when the wrong parent or parents homeschool, the results can be far worse than “just” a badly educated child. An abusive parent who homeschools has more than a captive audience; he or she also has essentially a caged one. Homeschooled children don’t report to an institution- public or private- on a daily basis where signs of abuse or neglect might be noticed. Mandatory reporting laws now exist in every state and require teachers and others in the community who professionally interact with children to report suspected abuse or neglect to authorities. Those laws won’t reach into a homeschool setting, however. Every state has different ways of regulating the homeschool response to compulsory education laws. But none, to my knowledge, require parents of homeschooled children to provide, to any civil authority, any sort of recurring evidence that a child is simply healthy and growing normally in terms of physical well-being (as opposed to academic, moral or civic).

Of course, homeschooling advocates with libertarian tendencies would most certainly bristle at such a requirement. The idea of having to essentially present one’s child to the government (in some shape or form) at regular intervals is something a large segment of the population would view with alarm and suspicion. Additionally, homeschooling advocates will point (fairly) to the disturbing statistics on how much harm visits children in traditional school settings each year. Where homeschooling requirements are concerned, they’ll point to studies suggesting that more stringent regulations on homeschoolers aren’t scientifically proven to produce better results. The argument then goes that the trend toward parental freedom to educate children as parents see fit is a positive one.

This debate is worth having, as is the one sparked by libertarians and the like-minded who believe that most things run or mandated by government are grossly inefficient at least and harmful at worst. And beyond this, a growing number of Americans seem to simply favor freedom over regimentation even in the face of the accompanying risks.

Fair enough, but children are not abstract statistics, ideals, or the products of breezy discussion. They are breathing human beings who need at rock bottom a certain calorie count every day and who bleed, bruise, suffer and perish when injured profoundly enough.

Government can’t and shouldn’t be expected to have the primary responsibility for child rearing, and I’m not about to suggest any model to replace what we generally know as the family unit. It’s simply an undeniable fact that when we extend to parents more and more freedom over the fates of their children with no backstop in the form of a communal place for them to assemble at least periodically, we risk losing them to an unobserved and sometimes shockingly cruel fate. Traditional schools and the laws that empower them are no panacea to child abuse, but they at least allow for an opportunity for abuse to be detected.

In the case of the child I consulted on recently, his parents gave written statements that demonstrated vividly their utter inability to educate anyone, themselves included. The image of their child, unspeakably gaunt, graying and lifeless on a morgue slab, bespoke their view of him as a living being. What liberty may seem to philosophically demand, or what trends may be suggesting in academia are immaterial to him now, and they won’t bring him back. A teacher or fellow student at a traditional school certainly might have harmed him as well, but more likely they might have alerted others to his circumstances before it was too late. Instead, he died behind doors closed to the community around him. At home.

Casey Anthony, and Where to Put Your Anger

Roger Canaff — Sat, 09 Jul 2011 06:51:56 +0000

A terrific character actor named Daniel Benzali once scored a role on NYPD Blue (it led to an OJ-inspired 90’s TV series) where he played a marquis defense attorney with a shady reputation. When dispatched to help a cop charged with murder, the client initially rejects him, stating that she wants no part of an attorney with his reputation defending her. Benzali’s character smiles and delivers one of the most brilliant lines I’ve heard describing bare-knuckle trial law: “That’s entry level perception, detective. Reputations swiftly give way to the skill of the practitioner once the doors of the courtroom are closed.” Amen.

I wasn’t there to witness Jose Baez’s advocacy on the Casey Anthony case. But I know from the coverage that he and his team brilliantly exploited an alternative explanation for her child’s death, and in so doing painstakingly and methodically generated the necessary amount of precious doubt necessary for 12 Florida citizens to utter “not guilty” on charges of murder. Perhaps, as some have claimed, the jury was cowardly or malfeasant in ignoring the legal weight of circumstantial evidence. Perhaps they were collectively cynical or stupid, as some have speculated. The declaration by one of them to the gossip site TMZ that he’d talk about the case but only if he was paid to do so certainly lends some credibility to that theory. But all of this is beside the point. Baez did his job.

As offensive as it is to many, Baez is technically correct when he claims he could tell his daughter after the trial that he “saved a life today.” He did. The state of Florida, under its death penalty statute, sought to end the life of Casey Anthony for the murder of her daughter. Baez and his team stopped that from happening. In pretty much every sense of the word, he is correct.

I happen to wish Baez had failed. I believe Casey Anthony is a psychopathic killer, and I know how to use the term “psychopath” professionally, not just colloquially. It’s not easy to find a doctor who will do a permanent tubal ligation on a 25 year-old woman, but despite what my religion commands I hope she gets one. I’d very much prefer that she bring no further children into the world, as I am convinced that she will snuff out their lives as quickly as she snuffed out Caylee’s once they become inconvenient. That’s what psychopaths do with things, living or dead, that inconvenience them. They remove them. The creativity, skill and labor they must engage in to eliminate the obstacle differs depending on its nature. But the underlying drive is the same.

But none of this was Jose Baez’s concern, nor should it have ever been. He was rightfully focused on his client alone, protecting her as best he could from the efforts of the state to imprison and execute her. That’s how the system works. Baez stated publicly after the trial that his client did not murder her child, and perhaps he believes that. But frankly, he doesn’t have to. Far more offensive were the crass remarks of co-counsel Cheney Mason who insinuated that the media had engaged in “character assassination,” presumably with regard to Casey. Note to Mr. Mason: Your client was not found “innocent.” She was found “not guilty,” meaning that the government failed, in the jury’s determination, to meet an extremely heavy burden regarding her legal guilt. They adjudicated that question in the negative, and thus it is legally correct that Casey go free for those charges. Whether it is morally correct, logically correct or factually correct is beside the point. The verdict addresses none of these questions.

In terms of what disgusts me, (other than what I believe were the actions of Casey herself), I can’t help but mention the fixation this country had for this particular case when children suffer fates like Caylee’s every day across 3.8 million square miles of America and generate no media frenzy. It’s perhaps awkward but no less accurate to note that Caylee herself was a white, physically beautiful child, and her mother a telegenic, thin, and yes -sexy- woman. The media hyped photographs of Casey (other than the ones with evidentiary value) showing her taunting the camera with pursed lips in Halloween costumes or football jerseys were no accident. There are certainly aspects of this case- the search efforts, the slowly leaked details regarding evidence and litigation- that made it particularly compelling. But ultimately, when it comes to what sells copy and gets people to tune in, the murderer is more interesting, and so is her act, when both she and her victim are photogenic and culturally appealing.

Baez acknowledged correctly that there were no winners in the the State of Florida v. Casey Anthony. His mini-rant regarding the death penalty was misplaced as the issue wasn’t reached in this case, but his other remarks, including the tender message in Spanish to his mother and family, were appropriate. His statement about the American Constitution was particularly spot-on, regardless of his point of view. Casey Anthony was tried, competently and at great cost, in a public trial by the representatives of an elected attorney empowered to bring the force of the law and its iron accouterments against one citizen. Efforts to prove her guilt to an appropriately lofty standard failed. Out she goes, then, into the stream of life with the rest of us.

Casey Anthony, it can be compellingly argued, will not face justice in this life. But as a prosecutor I learned a long time ago that earthly justice is a “long ball” concept that must be viewed separately from any particular case.

If you are among the many, many people convinced that justice was not done in this case, I beg you: take that long view. Let Caylee’s fate not be in vain by raising your own awareness and that of others to children everywhere who suffer neglect, abuse and death in cases less titillating but no less horrific. Support groups that fight for the lives of children. I’ve listed a few below, but it is by no means exhaustive.

The greatest gift of faith, to me anyway, is the impish games it plays with the blunt force of words in our language; the ones I’ve been battered with an an attorney for 15 years.

“Caylee is dead.”

“Casey is free.”

Examine those two statements through the prism of a God-gifted, God-ordained and God-ordered world, and they are not so horrific, offensive, or final.

Again. Amen.

National Child Protection Training Center

National Center for Missing And Exploited Children

Love Our Children USA

National Center for Prosecution of Child Abuse

Four Years On: Civil Management of Sex Offenders In New York

Roger Canaff — Mon, 25 Apr 2011 03:55:07 +0000

This month in 2007, then Attorney General Andrew Cuomo was tasked with breathing working life into New York’s Civil Management statute. With it, New York joined 20 other states in taking one of the most controversial and delicate legal steps possible in a liberal democracy- that of extending incarceration or strict probation for individuals with mental conditions that drive them to commit sex crimes.

The cocktail party description of the law is fairly easy to deliver. Most candidates are men nearing release from prison for a previous sex conviction. The state Office of Mental Health has the onerous job of examining every one of them (thousands of men are released every year from NYS corrections for sex offenses), and they decide if the person qualifies as having a “mental abnormality.” Basically, that’s a mental illness or disorder that drives one to commit sex offenses. For the few who make that cut, the Attorney General has the job of proving 1) that the person indeed suffers, and 2) that he needs to be either confined in a state hospital or supervised in the community. Ideally, a person remains subject to one or the other until a judge decides that he’s no longer a danger.

New York is both massive and diverse, and characterizing it as left-leaning or “defendant friendly” is an oversimplification. Nevertheless it’s not the most conservative of states, and there was and continues to be tremendous philosophical opposition to the law. Some claim it’s no more than additional punishment dressed up like treatment. Detractors point to its high costs, but more basically to what they see as the fundamental unfairness of telling a person who has done his time that, in fact, he’s got more time to do, albeit in a hospital environment rather than a prison. They also question whether a mental abnormality could ever be treated to the satisfaction of a judge with the responsibility of turning an offender back to the community. To them, it looks like a convenient life sentence waiting to happen.

These arguments deserve consideration, and I thought them through when I had the chance to serve in the Sex Offender Management Unit from its infancy four years ago this month. Civil management of offenders, when it’s done right, isn’t about right or wrong. It’s about ill or not ill, and for a lifelong prosecutor that can be a challenging mental transition to make. Good and evil, the bookends of Judeo-Christian thought, may be unsatisfyingly simple to some philosophers, but they’re the compass of most U.S. prosecutors. And they give way to something more complex in the civil management realm. In the case of a person who is driven to rape, what drives him really isn’t his fault. But it’s not society’s either, and civil management is as much a quarantine function as it is anything else.

Of course, 1000 fair questions are begged here, from what “driven” really means to the very nature of free will. Regardless, what concerned me was less the idea of the law than the process under which it would take shape. There are states where civil commitment has failed miserably because it was political red meat in a ‘get tough on crime’ atmosphere, but never supported well enough to be true to its stated goals.

There was no telling how it would play out in New York. A few respected colleagues warned me it was a bad career move, that the law was flawed in its inception and nearly impossible to enforce fairly or effectively. In the end, though, I bet Cuomo’s office would be a good steward and that New York, despite and because of its big government nature, would be a place where the tricky business of civil management would at least be properly supported and also be done as honestly and fairly as humanly possible.

I was right.

Kevin Gagan, the former Manhattan ADA who took the reins out of the gate and brought me into the unit, remains one of the very best people I’ve ever worked with or for. He’s a hard charger but fair, deeply decent, and very smart. He also had a great nose for talent and assembled a team of litigators across 40,000 square miles that I view today as the single best collection of trial lawyers I’ve known personally or professionally. Our partners, OMH and Parole, worked honorably beside us and put heroic effort into maintaining not just the appearance but the reality of the ideals behind the law. Our legal adversaries played their part and fought doggedly to protect and ensure due process for their clients, some of the most powerless and despised people imaginable. The nightmare scenarios of massive lock-ups and unending commitments haven’t happened, and for the most part the process works as it’s supposed to.

It isn’t perfect and it remains a work in progress. But when I consider that I took a chance with how my office and the rest of the state would implement this difficult, controversial social policy, I marvel at how lucky I got. Kevin has since moved on to higher office in state government, but the bureau he formed continues to thrive under solid new management and the leadership of a new AG. My friends and colleagues there continue their mission with as much integrity and competence as anyone could ask for.

The idea remains controversial and rightly so. It involves the most daunting legal questions we face: The rightness, let alone reliability, of predicting future crimes; the correct balance- there is none more crucial- between individual liberty and public safety; the inner-workings of the human mind. New York hasn’t perfected a response to any of these. But it had faith in its own institutions and the safety of the public at heart when it took the leap to answer them. It’s done damn well so far. Happy Birthday.

Sexting, Children, and the Law

Roger Canaff — Thu, 07 Apr 2011 20:47:45 +0000

I was 24 when I first heard the term “Internet,” still years from its daily use. I bought my first iphone this year at 43. In short, I missed out on the wonder, ease and power of electronic communication and information sharing as a kid. But as well I was spared the dark side of these advancements. I was hardly a ladies’ man as a teenager; quite the opposite. In spite of this, or maybe because of it, I shudder to think what damage I could have done to myself armed with the power to communicate as it exists today.

“Sexting,” basically the phenomenon of exchanging texts and photos of a sexual nature, is probably the most dangerous practice a kid can engage in with a phone under normal circumstances. The cocktail that encourages it is nearly irresistible: The impulsiveness and short-sightedness of adolescence combined with a ridiculous ease of execution. Smartphones, now nearly universal, allow for the transfer of self-taken photographs within seconds.

The practice struck a very mean blow to a group of children near Olympia, Washington late last year when an 8th grade girl took a frontal nude photo of herself and texted it to her then boyfriend. The boyfriend, a few weeks later and after the two had “broken up,” shared it with another girl, this one a former friend of the one who snapped the picture. The girl who got the photo then did something else remarkably cruel, but also remarkably easy in the modern world of electronic communication: She attached a message (in part reading “Ho Alert”) and instantly forwarded the photo to her entire contacts list.

The fallout was, not surprisingly, instantaneous and horrific. The photographed girl was ostracized and humiliated. The school where all three attended erupted. Parents panicked and demanded action, and action followed. The two children who distributed the picture (plus a third who assisted) were eventually arrested and charged with felonies in Washington State. The felony was for distribution of child pornography, given that the girl in the photo was 14.

Ultimately, Rick Peters, the deputy DA who handled the case, did something I did several times as a juvenile prosecutor (although I never handled a case like this one- in the final years of the 20th century most cell phones lacked cameras). Peters reduced the charges to misdemeanor telephone harassment and allowed the kids into a program that will eventually see the cases dismissed.

Two questions have arisen from the prosecutorial decisions in this case. The first is whether the law should have been brought to bear at all. The second is whether, if charges were to be brought, why they weren’t brought against the girl who photographed herself.

Answering the second question first, regardless of who else was charged, I believe sparing the girl with the camera was the right move. She was, as Peters pointed out, severely punished as it was. In addition to the scarcely imaginable humiliation she’s experienced, she’ll continue to live with the reality of the photograph traveling cyberspace as it does to this day- and not just in theory but in schools near hers. Regardless of the fact that she made a decision, in effect, to manufacture child pornography, I see no imbalance in sparing her charges while bringing them against the distributors. Yes, she’s technically guilty of a crime. But she’s much more a victim, and therefore the value in charging her is senseless and cruel. Conversely, the kids who made the decision to send the picture, and in particular the one who attached the offensive message and distributed to multiple kids at once, deserve to have been scared straight by the system.

Addressing the first question is for some more difficult. It’s undeniably unfair that sexting, when it’s done between adults (however foolish and stupid) is nevertheless legal. In fact it’s touted as the new and cool way for adults to rediscover their inner “naughty teen.” But when actual, underage teens do it, seeking naturally to prepare for entry into the world of their sex-obsessed adult counterparts, they’re risking arrest and prosecution.

Still, in my view, there is a justification for bringing the law to bear on kids for this behavior. Simply put, the consequences of their actions are too great for the law to ignore. Without the technology at her disposal, the “Ho Alert” girl would have had a pea-shooter to aim at her former friend (relatively) rather than an automatic rifle. The same girl 25 years ago could have done little more than physically post an actual photograph in some strategic location for a time. Is her modern iteration more culpable simply because she had more dangerous tools? Possibly, if she fully appreciated those tools and knowingly sought the full advantage of them. This begs the very large question (suitable for another post) of what adolescents should be held responsible for in the first place. Emerging research about the adolescent brain suggests that their level of culpability in seemingly obvious situations needs to be re-calibrated.

Is all of this arguable, including every decision ADA Peters and his office made? Of course. But such is the balancing act a conscientious prosecutor does when confronting facts like these. Life makes law, not the other way around. I think Peters got it right.

The Baby Ad: Myth, Reality, and Danger in Prevention

Roger Canaff — Mon, 14 Feb 2011 15:39:48 +0000

They call themselves Men’s Rights Advocates, or MRA’s. I’ve aimed a fair amount of criticism their way over the years as paranoid-sounding myth perpetrators, which I believe many of them to be. So I was surprised when I found myself agreeing with them- marginally- on an anti-rape video produced by a Midwestern rape crisis and DV advocacy center run by a male advocate named Josh Jasper, now the poster-boy enemy for the men’s rights movement. Jasper, a former Marine, ex-cop and now CEO of what appears to be a vibrant, multi-location facility, is a guy I’d probably admire and agree with more often than not. But I think his video misses the mark, although not exactly for the reasons the MRA pitchfork crowd is seething about.

The video depicts an adorable and utterly innocent, smiling male infant as a potential future rapist, and suggests that teaching him different ideas of masculinity is the key to ending sexual violence. So presumably he can be taught to rape, or taught not to rape. Jasper himself contends that no one is born to be a rapist or a batterer, but rather that it’s learned behavior. MRA’s, though, seem to believe that Jasper wants us to think all boys are by default potential rapists who must be taught to behave more gently than the naturally crazed beasts they are. That, in their view, constitutes misandry (a hatred of men and boys) and is part of a hyper-feminist, emasculating pandemic fueled by government largess and the self-hatred of guys like Jasper (and me).

But I think Jasper believes the way many of us did in the early days of studying non-stranger sexual violence. He sees a boy’s default setting as non-sexually violent, but believes the wrong rearing and education can turn almost any boy into a rapist. It’s probably a distinction without a difference for the MRA’s, but I think it’s important. I also think, unfortunately, that Jasper is wrong.

As I’ve written in this space before, the best research we have shows that most men, regardless of what they’re taught, naturally won’t commit acts of sexual violence. A good upbringing certainly promotes respect for women and a view of them that isn’t grossly objectifying (although societal cues are anything but helpful). But what we’ve learned is that, even of the cads and womanizers out there, most naturally recognize and respect the boundaries of consent or incapacitation. And a minority of men, some of whom seem quite upstanding otherwise, view sexuality in a way that leads them to rape, and that they do so repeatedly and won’t be deterred regardless of what they’re taught as boys. They do most of the damage.

In a way, this is a kind sentiment for men to hear. We’re not, as previously suspected, all potential felons with testosterone fueled libidos in need of restraint. But the other side of the coin is a very dark one indeed. Domestic violence, it might be argued, is more of a learned behavior. But where do rapists come from? What causes a boy to emerge in adolescence as a rapist or a sex offender? The fact is, as researchers like Anna Salter have disturbingly but compellingly suggested, we just don’t know. A tempting but inaccurate answer is that men who rape or otherwise offend sexually were themselves perpetrated upon as children. I believed this for a while as an ADA. But Salter and others have revealed that claims of abuse (over 90% for convicted sex offenders) is almost completely the result of self-reporting. Even threatening offenders with polygraphs takes that number way down. Will a sex offender or convicted rapist claim earlier abuse before a sentencing judge? Of course, because he knows it’ll usually produce a more favorable sentence, and he’ll be seen as less of a monster than an offender who alleges no previous abuse.

What’s much worse is when this argument is reversed; when it’s believed that boys and girls who are offended against need to sufficiently “heal” in order not to become abusers. This “vampire theory” is both appallingly cruel and completely inaccurate. The vast majority of survivors grow to become more protective and cognizant of the risks when they have or interact with children, even if the pathology they suffered leads them to make bad choices in other areas of their lives.

Both of these ideas- one benign but mostly wrong and one malevolent and completely wrong, nevertheless stem from usually well-intentioned, Judeo-Christian efforts to understand evil acts by people allegedly created in His image. I’ve argued this for years with religious friends who can’t accept that a loving God creates people within whom malignant, torturous things simply bloom and create monstrous behavior. People just aren’t born with broken souls.

Except that they might be.

I’m only a lawyer; I have neither the ability nor the inclination to draw ontological conclusions. As my father was snarkily fond of saying when I asked him as a kid what God was thinking about this or that, “I don’t know, I haven’t talked to Him lately.”

I’m still religious, and I still don’t know. But I believe what methodological research and my own anecdotal experience suggests: There is evil in the world and we really don’t know where it comes from. That doesn’t mean that efforts like Jasper’s, though, are in vain. If you view the ad as the MRA’s do (part of a continuing effort to demonize those of us with penises, even tiny innocent babies) then yes, Jasper is a misandrist. But I don’t think that’s the case. And there is great value in teaching boys gentleness, decency and even chivalry as long it’s understood that their female counterparts are not fragile, weak things to be protected and lorded over, but equals to be viewed on par in every way. This is particularly important given how popular culture and Madison Avenue sell and objectify women and sex, and it can be done without eliminating gender roles and the life-affirming interplay of sexuality. So were I Josh Jasper, I’d adjust fire (a reference I’ll bet he gets as a former Marine) but I wouldn’t back away from seeking to change how men view women.

And I’d damn sure be careful to avoid assumptions that are tempting in their ability to explain the unfathomable, but potentially unfair to survivors of abuse or cynically exploited by abusers themselves. With that said, I wish Josh the best as he continues his mission. And I’ll gladly share the target with him where the vitriol of the men’s rights movement is concerned. Semper Fi.

Precious

Roger Canaff — Mon, 24 Jan 2011 04:26:30 +0000

I recently consulted on a case of involuntary manslaughter. The victim was a 19 month-old boy who had been inappropriately swaddled (by his stepfather) in a crib and placed face down on an adult sized pillow amid a flashlight and several other inappropriate and dangerous items. The child was dead when his mother finally went to check on him at 9:30 the morning after a particularly wild party where she and his father heard him crying in an unusual and distressed manner at some point over the din, but neglected to attend to him. The official cause of death was mechanical asphyxiation. The father had wrapped him so tightly in the blanket that he likely exhausted himself attempting to wiggle around, and then choked when he vomited later in the night (he’d been diagnosed with gastroenteritis and was vomiting regularly).

Lividity (the bruise-like purple color a body turns on the side where the blood settles) and blanching (areas of paleness amid the purple because of skin pressed against a surface) made the crime scene photos chilling. A 19 month-old isn’t supposed to look like some sickly, purple and white-striped, limp doll. For most of an afternoon, the prosecutor and my team discussed possibilities for charging either parent, particularly the stepfather who was the hands-on actor. There were arguments for mercy toward both parties, particularly given the fact that both (especially the mother) were sentenced already to a lifetime of mourning this child and the dreadful judgment that led to his death. But there was also evidence that the stepfather was both jealous and contemptuous of the child- and he had beaten him and left marks on at least one occasion previously. Prosecuting him was appropriate. The mother was a tougher call; she was guilty of horrendous judgment and some sick combination of laziness and stupidity, but didn’t seem to merit a charge. And without a doubt, she was being punished already. We also needed her cooperation.

It’s a sticky balance sometimes. Often the hardest part of being a child abuse prosecutor is working with (and withholding judgment of) the “non-offending” parent, that is, the one who didn’t actively harm the child, but who might have contributed to the environment that gave rise to his being harmed or killed. Usually, although not always, that’s the mother. She is often a victim herself, usually of the same perpetrator. Understanding what’s known as the “Cycle of Violence” and other dynamics that play out in domestic violence situations helps to make sense of a person’s seemingly irrational or unwise choices. It’s not easy, for a hundred reasons, to leave a situation with a violent and abusive man. Many ADA’s I’ve worked with though, particularly ones who are mothers themselves, draw a line at a mother’s failure to protect her own children. Whether this is good public policy or mindless vengeance, whether it is justice or cruelty, is debatable and almost always case-specific. The decision shouldn’t be an easy one either way.

I was reminded of this dilemma watching Precious, the brilliantly acted but controversial film by Lee Daniels (and based on the novel by Sapphire) released in 2009. I found the movie riveting and recognized some of the dynamics experienced within the family Gabourey Sidibe’s character endured. The pathology depicted in the film, from brutal incest and rape to the almost demonic assault on Precious’ spirit, verbal and physical, from her mother (played with genius by Mo’Nique), is not mythological. It exists, and in nearly 15 years of doing this work I have seen it more often then I can shake on certain nights. Some of the criticism of the movie was directed at its pure level of pain, anger, violence and despair. It was likened to a porn flick in terms of its sheer scope of sickness, and discarded as simply over-the-top. Perhaps, but the idea that what Precious experienced just couldn’t or wouldn’t happen in real life is naïve and frankly dangerous. What’s more understandable was the reaction from detractors who found the movie to be a well-crafted but galling racial slur, designed to titillate white audiences with predictable and myth-cementing images of an inner-city black family. “Black pathology,” to quote one reviewer, “sells.” It’s a fair assessment, whatever the intentions of the filmmakers.

It’s also grossly misleading. The very same pathology, from the incest and sexual violence to the endless welfare dependence and cycle of poverty, has eaten entire areas of the US where non-white faces are rare or non-existent. There is, I believe, an arguable connection between grinding poverty and physical abuse or neglect of children- whether in the city, the country, or anywhere in between. There is no such link that I’ve ever experienced between poverty and sexual abuse, which plays out with equal malevolence in mansions and shacks. There is absolutely no connection between any racial group and the pathology that destroys families and rips apart the children within them. I personally believe Sapphire and Daniels were simply trying to tell a painful but powerful story. But I can understand the revulsion that arises when it is only the African-American experience that is portrayed with such hopelessness. The white majority, emerging Hispanic majority and every other group does its share of damage just as effectively.

It is crucial to remember this when one is a prosecutor considering charging a neglectful or otherwise feckless mother in a case where a man did the most damage. It’s simply one of the most difficult decisions we make, and if we’re colored by images of a racial, ethnic or socio-economic group as we do so, we’ve lost our sense of justice and we are deeply failed (and dangerous) professionals. And, as offensive as the behavior of a failed mother can seem to us, we must remember the battle she has waged as well. The genius of the character Mo’Nique plays in Precious is that, in the end, she earns a shred of compassion despite how miserably she’s reacted to the real demon in the story, the man we see so little of.

The baby in the pictures I beheld was white, as were both of his parents, themselves uneducated and lower class. Having been raised in a town where lower-class whites were the primary source of crime, abuse and bullying, I felt a quick urge to judge them with a lot more rigidity than I might hold for another demographic. It wasn’t my case, but even as a consultant it was an urge that was best checked quickly. The landscape of a family destroyed by abuse and violence is as foggy, uncertain and unpredictable as any battlefield. Understanding that as one walks into the midst of it in order to assign blame, issue subpoenas, and swing the hammer of the law is something we aren’t taught in law school. But it’s a lesson we need to learn quickly.

Barbie and Rape Culture

Roger Canaff — Wed, 29 Dec 2010 18:00:44 +0000

A friend of mine has a seven year-old daughter. She is bright, beautiful, cherubic, and kind. Between the attributes she’s been blessed with and the fine guidance of her parents, she’s in a perfect position to capitalize on the hard-won victories of her female predecessors. She truly can be whatever she wants to be, and that is a blessing.

Kate loves animals- she’s interested in observing them, caring for them and discovering names for them. What’s interesting, though, is that unlike many kids her age, her attention hasn’t shifted since she was a toddler. Animals are her passion, and assuming that doesn’t change, a career in veterinary medicine might be the perfect path for her. Of the things that could encourage her to think seriously about being a vet, I hope this isn’t one of them:

This is “Pet Vet” Barbie from Mattel’s “I Can Be” series, apparently depicting the kinds of professionals little girls can be if they emulate Barbie. I encountered this gift (the image reflects the exact same doll and packaging) when another friend of mine’s four year-old daughter asked me for help in opening it this Christmas. Initially I didn’t see what the doll was supposed to be dressed as. Not just at first glance, but frankly after a few seconds, I concluded the doll was in a waitress outfit- and not a particularly conservative one. How else to explain the perilously short pink skirt and hose with some flowery fringe, a name tag, that sash thing, and the equivalent of four-inch platform shoes? Josie handed me the plastic box and I saw the “I Can Be” logo on it someplace. I remember thinking, “there’s nothing wrong with being a waitress; it’s an honest job. I waited tables for years. But it doesn’t seem like the kind of thing they’d ask girls to aspire to for a career.”

“She’s a waitress, right?” I asked out loud, mostly to myself although Josie was right there. She is both adorable and precocious. She wrinkled her nose and looked at me like I was an idiot.

“No,” she said, “she a vet doctor and makes animals better.”

Oh.

Barbie, in this box, doesn’t look like a Doctor of Veterinary Medicine. I dated one once in New York, actually a brilliant eye-surgeon for dogs who makes a fantastic living at a respected clinic. She’s very beautiful, but she doesn’t wear hot-pink platform shoes and a mini-skirt to work. She wears comfortable, rubber-soled shoes and loose-fitting scrubs to work, usually covered by a white lab coat depending on what she’s doing. In fact, I’ve never seen any medical professional dressed the way this doll was. Are there vets who wear heels at work? A guy I grew up with is a physician and farmer in rural Wisconsin- my guess is the female vets he encounters don’t, but I could be wrong. A short skirt and four inch heels could be a plus when walking from the truck to the barn to assist in the birth of a calf during a snowstorm.

I’m hardly the first person to criticize the Barbie phenomenon, a uniquely American craze that’s been in existence for 50 years. Ever since high school and a disturbing but spot-on poem entitled “Barbie Doll” by Marge Piercy, I have been aware of the unrealistic and cruel standard that Barbie dolls set for the girls who love them. That’s an issue, and a legitimate one. I suppose an argument could be made that focusing on what girls can grow to be, through a Barbie fantasy, can be healthy and encouraging despite her cartoonish dimensions and features that almost no girls can hope to “achieve.” Fine. There is a place for pretty dolls, I guess, and if those dolls are also portrayed as smart, learned professionals, it can be a good thing. But is it necessary to showcase the “I Can Be” Barbie in clothes that, while sexy and fashionable, are completely inappropriate for the practice of the career being described? To be fair, there are other Barbie outfits for this and similar professional jobs that are much more appropriate. So why is this one marketed at all? Veterinarians don’t wear this- they just don’t. If anyone pictures a veterinarian this way, he’s probably a basement-dwelling weirdo with deeper issues.

So what does Barbie have to do with rape or rape culture? Rape culture is described more eloquently by others, including my friend and colleague Jaclyn Friedman here. Basically, it’s a societal acceptance and even encouragement of sexualized violence based on norms, attitudes and practices within a culture. Our culture objectifies women sexually in so many ways it’s silly to offer a single example. That is what it is. I’m not against sex appeal and I’m not about to categorize women generally as helpless victims, unable to control or use their own sexuality to whatever aims they choose.

But in the hands of a child, something especially damaging occurs- something devaluing, objectifying and wrong- when the focus of a grown-up doll (otherwise portrayed as an educated, accomplished professional) remains her sexuality. When the doll portrayed as the vet, pediatrician, engineer, lawyer, etc, is also shoe-horned into the trappings of rank sexuality, then it’s really not the degree she holds or the skills she’s developed that count. It’s what she has to offer for the physical gratification of men that counts. That way, she’s more of an object- an object with a degree, maybe, but an object nonetheless. And objects are there to use, not interact with, negotiate with, get to know and value, the way fellow human beings are. I use a screwdriver; I don’t seek to get to know it and pursue an equitable, give-and-take relationship with it for mutual goals. Teach me from childhood that a woman is a similar tool and at least I’ll regard her as something for my amusement. At worst I’ll regard her as something I can push around and enjoy despite what she wants. Teach girls, in clear and unsubtle ways, that what really matters (no matter what professional goal they achieve) is how they present in some impractical, fetishized version of the dress of that profession, and at least they’ll value themselves less than they should. At worst, they’ll come to expect and accept being pushed around, used, and even raped.

I know there are millions of women who played with Barbies as little girls and are healthy, happy adults despite her fictional standards. That’s fine. But if Mattel is interested in maturing and professionalizing Barbie in certain circumstances, they’d do better to mark a clear line between dress-up Barbie and career Barbie. The more the lines are blurred, the less the woman matters as a person. That’s rape culture.