She has a boyfriend who was angered by the situation.

Sex-themed text messages may have been exchanged before the night in question, and ones suggesting another meeting may have been sent after.

She has a Facebook page upon which she posted “nothing out of the ordinary” during the month where the alleged [...]]]> She waited three months to report.

She has a boyfriend who was angered by the situation.

Sex-themed text messages may have been exchanged before the night in question, and ones suggesting another meeting may have been sent after.

She has a Facebook page upon which she posted “nothing out of the ordinary” during the month where the alleged crime occurred.

She joined the man she’s accusing at a bar that hangs women’s underwear from the ceiling.

Dear God, why is anyone even investigating this? Why is Martha Bashford, the highly capable sex-crimes chief at the Manhattan District Attorney’s Office, wasting time to determine what happened between this complainant and Greg Kelly?

Hopefully because Bashford isn’t being swayed by “law enforcement sources,” quoted widely in the media this week and assigning authoritative finality to factors like the ones above. DA Vance has firmly stated he doesn’t know the source of the leaks and does not condone them. He has good reason beyond their basic irresponsibility.  They reflect a stunning ignorance regarding the reality of sexual violence.

I have no idea if Greg Kelly is guilty of anything; it’s been a week since a complaint was made and there are far more questions than answers. Hence the investigatory process and venerable presumption of innocence. Kelly has been charged with no crime. He deserves to be treated respectfully and without smearing or assumption.  But to assert that the case against him is false because of the factors being touted is dangerous nonsense.

-Delayed reporting is hardly abnormal or indicative of a false report, despite the fantasies of apparent “veteran investigators.” Delaying is extremely common, if anything the norm rather than the exception in acquaintance cases. Survivors delay reporting for dozens of valid reasons, most exacerbated by the circumstances seen here (a celebrity accused, a media frenzy, microscopic scrutiny of the victim, etc).

-The idea that women regularly, falsely report being raped in order to cover regretful behavior or the betrayal of another relationship is vacuous. Has it happened?  Surely. Is it remotely common?  Hardly.  Reporting rape falsely and enduring what follows is anything but a typical impulse, let alone a popular choice when confronted by an angry boyfriend who wants to know why you’re pregnant.

- Sexually charged texts from a woman to a man prior to an encounter says absolutely zero about whether that man is capable of raping her either by force or as a result of physical helplessness. It also says zero about her inclination or ability to tell the truth about an event she recalls as a crime. Rather, they demonize her as someone less deserving of legal vindication no matter what happened.  Texting afterward might be more problematic, but it depends on the context, what was said, and when. If the texts sought clarification of what happened (which would make sense in a case alleging severe intoxication and incapacity to consent), they are hardly smoking guns. What of texts suggesting another meeting? Again, it depends- when were they made in context to when she realized fully what had happened? An evolving sense of what occurred is also not uncommon in cases where incapacity through intoxicants is suspected.

Comparisons are already being made between this situation and the cases of meteorologist Heidi Jones (who fabricated a rape complaint originating in Central Park), Kobe Bryant, and Duke Lacrosse.  Never mind that Jones accused no one by name (very common in false complaints), Bryant’s legal team savagely wore down the complainant until she gave up (yet he later apologized), and the complainant in Duke Lacrosse was so severely mentally ill that authorities suspected she probably believed her own lies.

The issues so far in this nascent case present challenges for the prosecution; that is undisputed. Kelly may be innocent of anything criminal, a fact which may genuinely co-exist with the complainant’s belief that she was violated.

But to conflate these challenges with the recklessness and moral bankruptcy that must accompany falsely accusing a man of rape- at this point and on these factors- is dangerously unfair and ignorant.  The “sources” publicly voicing skepticism should be kept far away from the investigation. Commentators, particularly former sex crimes prosecutors who should know better, are doing little good by furthering myths they either 1) never understood as such, or 2) allowed to intimidate them into inaction. If these things occurred when they were on the job, it was the victims who paid the price.

If the complainant has falsely accused Kelly, then she is already getting what she deserves. If her complaint is valid or at least sincere, she is getting far, far worse. My prayer is that NYDA gets it right, and for the right reasons.

© 2012, Roger Canaff. All rights reserved.

“There is no vulnerability without danger.”  Veronique Nicole Valliere, Psy.D.

It’s a simple and brilliant truth, introduced to me at a sex assault prosecution training in 2009. The doc was discussing how we blame women (and men) who are sexually assaulted, particularly when their choices leading up to the attack make them, in most minds, “more [...]]]>

“There is no vulnerability without danger.”  Veronique Nicole Valliere, Psy.D.

It’s a simple and brilliant truth, introduced to me at a sex assault prosecution training in 2009. The doc was discussing how we blame women (and men) who are sexually assaulted, particularly when their choices leading up to the attack make them, in most minds, “more vulnerable.” Like when they drink too much, or when they go home with a man they don’t know well. And so on.

When I heard it, I nodded sagely. Sure, I believed in what I called “rape prevention,” and felt that everyone needed to take some responsibility for their own personal safety. But that’s all. I wasn’t anywhere near victim blaming. Because I was too smart for that. Too enlightened. Too smugly ensconced as one of the more influential sex assault prosecution experts nationwide. So naturally, I understood her perfectly.

Except that I didn’t. Because I was victim blaming, even though I told myself I wasn’t. And in buying into the kind of “rape prevention” I believed in, I was a part of the problem. Many of us, most with the best of intentions, still are.

The ad above from the Pennsylvania Liquor Control Board (now pulled) sparked a debate in feminist circles. The ad itself wasn’t the issue; most agreed it was offensive. Visually it sexualized violence, right down to the blue underwear around the seductively placed ankles matching the tile on the floor. That’s not a representation of the aftermath of a felony. It’s wanna-be pornography. And of course, it callously blamed both the curled up, naughty-girl and her irresponsible friends for not preventing the rape she apparently endured. No mention of the rapist.

But while the attempt was botched, the underlying message begged a question: Shouldn’t we warn girls and women about the dangers of losing control, and thus “becoming vulnerable?” Isn’t it simply a dangerous world, like it or not? Of course it is and of course we should, went the argument. It was a bold one apparently, expectant of a backlash from uber-feminist PC police who would label it victim blaming even though the goal was simply to “reduce vulnerability.”  When the backlash came, I initially sided against it. I had seen a career’s worth of victimization- how could I not encourage safe behavior myself, in the name of reducing vulnerability? Because vulnerability invites danger.  Right?

Wrong.

Go back to the statement at the top of the page. Vulnerability does not exist unless danger is present. Choices, however reckless they appear, do not create danger anymore than liquor creates rape in a man who is not a rapist. Danger exists because of the choices dangerous people- rapists, in this case- make. From this reality, two others flow: First, encouraging young people (the most at-risk population, male or female) to avoid victimization through more responsible behavior will not prevent a single rape, as author Jaclyn Friedman points out in her piece on the subject. Rape is never an accident, and it’s almost always a planned attack. The rapist who cannot target the “better-behaved” woman will find one who isn’t. So there won’t be less rape, just rape of perhaps different people. Of course, the predictable rejoinder is “well my daughter won’t be the targeted person, then.” Game, set, match. Admonish away.

Except that she might be regardless, which is the second reality that results from Dr. Valliere’s observation. The woman who believes she is safer because she’s avoiding something like heavy drinking might well be safer to a particular kind of attack. But there are many others, and being lulled into a false sense of security because of the avoidance of one behavior will likely blind her to the danger that can exist under the most responsible appearing of circumstances.  Women are raped by trusted friends. They’re raped during the daytime while studying or just listening to music with known, clean-cut, well-regarded men in their communities, on their campuses, from their churches. Alcohol is extremely helpful to acquaintance rapists. But it is hardly their only tool.

Youth involves blind spots, but regardless of age, risk-taking is at bottom the essence of life.  There is no elimination of it short of solitary confinement. What we must do is grasp that vulnerability exists only when danger is present, and turn the focus rightly on the dangerous and away from the endangered.

Because when we create rules, particularly ones laced with moral superiority in order to somehow deliver us from evil, we then distance ourselves from those who break them. When those people are victimized, we rest easy, believing that our wisdom and temperance saved us. But there are always more rules, both to make and to break.  In the end, all that rule making accomplishes is the encouragement of an insidious urge to will to life something other than luck separating us from the unlucky.  So we’ll draw attention to the choices the rule breakers made that we wouldn’t make. And we’ll blame them for theirs.

© 2012, Roger Canaff. All rights reserved.

I don’t resent it. I think it’s made me a much more effective special victims prosecutor over the years. And in any event it’s who I am. My closest circle of male friends will readily confirm that I navigate those friendships [...]]]> It’s really not a secret: I have a pretty strong ‘anima‘ or feminine side.

I don’t resent it. I think it’s made me a much more effective special victims prosecutor over the years. And in any event it’s who I am. My closest circle of male friends will readily confirm that I navigate those friendships more as if I were a spouse or partner than any sort of a “guy’s guy.” That can be frustrating for everyone involved. And of course, I have my professionally inspired inferences, which should and do make me more sensitive to things like rape culture, male privilege, and other issues faced by women and girls in ways that most men really can’t imagine. So yeah- I’m something of a woman trapped in man’s body if you’re going to buy into a lot of generalizations about how women think and react, and what it means to be emotionally “feminine.”

So be it. Nevertheless, I’m a straight guy and generally typical where sexual fantasizing is concerned. So shameful or not, tasteless or not, over the years and at every social stage of my life, I’ll readily admit that I’ve taken some part in the game of “Hey man, who would you sleep with in [insert environment here]?”

And believe me, it can be any environment. And it is every environment, at least where members of the opposite sex are even remotely observable. A high school Spanish class. A summer camp. A basic training unit, an introductory psychology course, the 5^th floor of a dorm, an office mail room, the accounting department, the DNA lab, etc, etc, etc.

Yes, it’s tawdry. And utterly pointless. Regardless, it’s what men do. Gay men do it as well, and sometimes in mixed groups we’ll all play the game, with the gay guys making their own considered judgments about men, and often commenting with high degrees of validity on women as well.

For most of us, this stupid tradition begins innocently, scattered across that late elementary to middle or junior high school period where girls become suddenly and then perpetually interesting (and of course, for homosexual boys it really can’t begin until they find themselves in much more progressive environments then the kind I came up in). So it might start in 5^th grade or thereabouts with “who would you want to see without her clothes on?” But it quickly progresses to more imaginative and specific scenarios, and it never really stops. It’s far from angelic, often inaccurate, and always objectifying. It’s wrong and I won’t make excuses for it.

I’ll also note that, regardless of what I do and who I am or profess to be, I’ve played the game in places that are hardly feminist enclaves. I’ve played it in warehouses, on airport tarmacs and construction sites where I worked for years before entering professional life. I’ve played it in countless police cars, detective squad rooms, bars, diners and alleyways, passing the time for various reasons and waiting for something to happen. I’ve played it with men educated and not, supposedly enlightened and not, gentle and not.

What I’ve never, ever heard in roughly 35 years is any man, anywhere, ask “so if you could rape someone, who would it be?”

It’s true: That cyber-blessed term “WTF” was honestly coined for such an abomination.

There are variations of this game I will remove myself from or avoid if I detect cruelty or a line I just don’t feel comfortable crossing. But no guy in my experience has ever even approached the idea of rape. Ever. If I could rape someone, who would it be? Even writing that out makes me cringe.

So “WTF” the fraternity brother at the University of Vermont was thinking when he added that to the lets-get-know-each-other ‘new brother questionnaire’ is worth exploring. And I mean between him and a good mental health provider. Because it’s more than just tasteless; it’s downright scary. Perhaps the guy who wrote this and anyone else at this chapter of Sigma Phi Epsilon who deemed it acceptable is just remarkably awkward and clumsy with word choice. But I’ll vote for disordered. The word “rape” is one of the ugliest in our language. It’s mono-syllabic, blunt, and shocking. It’s supposed to be. While it usually doesn’t involve these things, it conjures in most minds gratuitous violence, torn clothing, screaming, and injury. It at least evokes- as it should- terror and a life-altering, shattering experience of trauma on the part of the victim. So how it could be in any way confused with the desire to engage with someone sexually is beyond me. There are psychological and legal terms for men who only or primarily respond to non-consensual sexual situations. If that’s the case with the questionnaire author or authors, then those who share their environment should know about it.

I’m glad that (at least) there’s been a tremendous backlash at UVM and an appropriate student response to the leaked document. I hope this gratifying response lingers after the dust settles, and that male and female students in this well-loved college environment continue to reject the idea of anything like this in their midst. Because it’s more than just disgusting. It’s dangerous.

© 2011, Roger Canaff. All rights reserved.

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 [...]]]> “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.

© 2011, Roger Canaff. All rights reserved.

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 [...]]]> “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.

© 2011, Roger Canaff. All rights reserved.

Despite falling far short of its ideals, and even in the face of an [...]]]> In an angst-filled conversation regarding his own duties to it, Russell Crowe’s character in the movie “Gladiator” says to his Emperor, “I have seen much of the rest of the world. It is brutal, and cruel, and dark. Rome is the light.”

Despite falling far short of its ideals, and even in the face of an arguable decline, it is still possible to substitute “America” for “Rome” in that sentence and have it be painfully, desperately true for much of the rest of the world.

America is still the light, and New York is still its embodiment. The gift from France in her harbor was stunning not only in its descriptive brilliance but also in its uncanny timing. The woman holds a torch— the symbolism is so perfect it could never have existed in fiction. And her placement coincided perfectly with the greatest influx of immigrants the world has ever known.

Many more stand in lines at JFK now than behold the torch, but still they come.  Nafissatou Diallo was one of them.  In her, the Manhattan DA’s office encountered an individual much like millions of others who claw their way to that thin, little island and then navigate it any way they can. As we now know, getting there was messy. She lied on a visa application. She was taught, apparently, to lie convincingly about sexual violence. Whether she was actually brutalized and raped in her native country has been challenged in light of some admitted fabrication, but I have little doubt she suffered greatly in a manner similar to what she was taught to concoct, and was willing to do anything she had to do in order to escape where she was.

This should shock no one. The journey to America— to New York— has always been characterized as often as not with deception. With bribery. With fraud, abuse, and soul-selling, desperate behavior. I have no idea what my great-grandparents did for the chance to float past that torch, but I’d be slow to judge them for it.

The reach for America also attracts desperate people who have been broken by events and reshaped in ways that make them difficult at times to understand, defend, and support.  Cultural barriers, distrust of authority, and a constant fear of the truth itself are not uncommon in people for whom candor and innocence have been met with brutality and perfidy.

Surviving in New York has been apparently messy for Ms. Diallo as well. I prosecuted sex crimes in the Bronx, where she lives, for two years.  I saw the realities of living there on blue collar income, and got a glimpse of what people did to make ends meet. Diallo defrauded the housing authority, we know. She had shady friends who used her for her bank accounts.  Yes, that happens in New York. Diallo got by— hustling, surviving, call it whatever you want— the way so many do in a city capable of bringing the strongest, most resourceful people to begging knees. But she was making ends meet, in all of her imperfect, rule-bending glory, working long and difficult hours as a maid and raising a child.

And then she encountered Dominique Strauss-Kahn, and chose to report what he did to her. And suddenly the rules she was bending or breaking mattered much more than perhaps she ever imagined.

Those familiar with me will be unsurprised to hear that I believe Diallo was attacked by DSK. As we know from the blunt, blind force of DNA, a sexual encounter between them took place.  The only issue is whether she consented to it and then lied.  Is it strictly possible that Diallo had— or quickly formed— a vile and remarkably elaborate plan to frame a renowned economist, seeking a future payoff as some adjunct of the criminal justice response?  A woman who reportedly cannot read or write in any language?  And further, does this evil turn of events merely dovetail by coincidence with the several other allegations of sexual aggressiveness and/or violence leveled against Mr. Strass-Kahn in several places around the globe?

For better or worse, I know far too much about sexual violence and those who commit it to credit that scenario as anything other than fantastic.

Regardless, the decision to dismiss the case, while arguable, is not one I’m criticizing.  I am familiar with the challenges the DA faced under New York law, particularly the necessarily rushed presentation of the case to a grand jury. I applaud the office for what appears to be exemplary ethical behavior. My only criticism of NYDA concerns the meticulously detailed and humiliating public motion to dismiss the indictment. Unintentional the humiliation may have been, but hurtful it was nonetheless.  Perhaps, as the motion painstakingly details, the case was not deserving of prosecution. But neither was Diallo deserving of such a detailed public lambasting.  I am aware of no legal necessity for that level of detail in seeking the dismissal of an indicted case.

Of course, the DA cited more than just Ms. Diallo’s recent past. Also detailed was apparently odd behavior and reversals that undermined the faith prosecutors had in her.  But again, this is what we sometimes see in people when unimaginable circumstances have driven them here, and we would surely fare no better were we driven elsewhere.  Couple that with cultural and language barriers, with how our minds build and recall memories in traumatic situations, and I believe explaining the inconsistencies might have been worth fighting for in a court of law.  But in fairness, it was not my case.

The point is that Diallo was rendered incredible by her choices, but many of those choices were driven by circumstances most of us live happily ignorant of.  I’m not excusing whatever illegal behavior she may have engaged in over time, or the lack of candor with the DA.  She is rightfully responsible for her actions, but not beyond what is remotely foreseeable.  I doubt she ever thought those actions would also make her tragically powerless when it came to standing up to an attack in the very country she sought out for asylum and a better life.

Upon Diallo, as upon all, New York has bestowed gifts.  From Diallo, as from all, it has exacted a price in return. What’s perverse is not necessarily this harsh but typical and time-honored agreement. What’s perverse is the bizarre extent to which the cost of getting there and getting by has also denied her simple justice.

© 2011, Roger Canaff. All rights reserved.