Category Archives: Legal Analysis

McCrory, Forest and Moore: You’re Bigots for the LGBT Bill. You’re Cowards for Hiding Behind Women and Children

From a joint statement from Lt. Governor Dan Forest, President of the Senate, and House Speaker Tim Moore, on calling a special session of the North Carolina Legislature:

“We aim to repeal this ordinance before it goes into effect to provide for the privacy and protection of the women and children of our state.”

Dan Forest, you’re a bigot.

Tim Moore– we knew each other in college, actually- you’re one also.

So are you, Governor Pat McCrory. You’re a bigot.

You’re also hypocrites and cowards, all three of you. And that’s exactly how you’ll be remembered. I could withhold the personal invective and call your actions bigoted and cowardly, but instead I’ll call you what you are, based on the actions you took as full-grown men in positions of political power.

If you three believe you’re justified in preventing North Carolina municipalities from reasonably protecting the rights of some its most vulnerable and regularly discriminated against and preyed upon citizens, be honest about why. Admit you’re doing it because people who are unlike you, or who apparently offend your purported religious beliefs, personally offend you.

Admit that these religious and/or personal beliefs make you feel justified in preventing elected officials- much closer to their communities than you are- from protecting not just the rights but the basic dignity of harmless people you nevertheless disdain, even when suicide, crime and myriad other forms of victimization stalk them.

Admit further that your desire for continued political power, gleaned more and more from a sad and hateful, but thankfully dwindling base is what drives you to continue to offer it anything that will keep its money and votes coming, thus keeping you in the power you crave.

But don’t hide behind women and children.

I am a nearly 20 year veteran of the legal and societal battle against child sexual abuse. I have prosecuted hundreds of cases in two states, for both local and state agencies. I have trained thousands of prosecutors, detectives, child protection professionals, medical providers, soldiers, and others in 49 states and in foreign countries for the United States Army. I am a survivor of child sexual abuse myself. I am more familiar with the dynamics of sexual violence, particularly against children, than most people in my field. When I say I know what I’m talking about where the concerns of women, children and sexual victimization are concerned, I am making a profound understatement.

So I can say with deep confidence that your argument- allowing individuals to use restrooms aligned with their identified gender will create some intolerable risk of predatory men sexually victimizing women and children- is garbage. Your effort to hide behind women and children- worse, to exploit them with this vacuousness- is cowardly.

In my entire career I have heard of exactly zero cases involving transgendered people born male who have sought to infiltrate a space normally segregated to women and girls in order to harm them. In the thousands upon thousands of cases of child sexual abuse I have encountered, the overwhelming majority of perpetrators have been males identifying as cisgender and straight.

I’ve also seen an alarmingly high percentage of perpetrators who infiltrate religious institutions and then sexually abuse children, persons with disabilities, mentally ill and other vulnerable adults. That kind of abuse happens every day in the churches, the mosques, the temples and the parishes of North Carolina. From Appalachia to the coast. From Virginia to Georgia.

So are you ready, Tim, Dan and Pat, to regulate, limit and police the interaction of pastors, youth ministers and other religious leaders with vulnerable members of their congregations, all on the exact same logic? You have before you, after all, not just paranoia, or cynical speculation to act upon. You have cold facts; a mountain of evidence exists on which you could justify segregating religious leaders from children on the grounds of protecting children and vulnerable adults from them.

Will you? No, I didn’t think so. My point is not to be anti-religious; I remain a practicing Roman Catholic. My purpose is to lay bare what you really are and what your actions really amount to.

This vileness will eventually be reversed, cleaned up and rectified by the children of your great state. But not before the economic and social consequences have been felt, just as they were after the exact same small-minded bigotry was once directed at people of color.

McCrory. Forest. Moore. This will be your legacy, and your remembrance. And it will be richly deserved.

Let There Be Light: An Examination of Darkness in a Pennsylvania Diocese

Memorial_cross_in_Canna's_Church_of_Scotland_graveyard_-_geograph.org.uk_-_1426006“There’s nothing there in the dark that isn’t there in the light.”

Among the many well-intentioned but absurd nostrums told to children, this is perhaps the most frustrating. I was afraid of the dark as a child, albeit of things non-existent, or with no real chance of invading my bedroom. Nevertheless, the fear of inhabiting a space where your most valuable sense is compromised is hardly irrational. Fear of the dark is an evolutionary gift. We fear being in dark spaces because of what we know instinctively:  Most things that would hunt us love the advantage darkness provides.

And darkness, of course, can be figurative as well.

In the latest, miserable chapter of the Roman Catholic clergy abuse crisis, a particular diocese- Altoona-Johnstown, in southwest Pennsylvania- has been revealed as shrouded in darkness for decades, with predictably abysmal results. We don’t know this because the Church took it upon itself to publish a candid and self-reflective report. Instead, we know it because of a civil grand jury armed with a search warrant. Last week, the Pennsylvania Attorney General’s Office released the deeply disturbing report of that investigative body, detailing the sexual abuse of children at the hands of mostly diocesan priests (priests who serve within a geographical area). In many cases, either written admissions of predatory priests were uncovered, or the men made admissions before the grand jury itself.

Two bishops, serving back to back for nearly 50 years, appear most responsible for the kind of behavior now notorious within the context of the abuse crisis. According to the grand jury, both ignored and/or covered up instances of abuse, pressured victims to settle out of court for pre-determined amounts, participated in relocating priests under cover of health related issues, knowingly returned credibly accused priests to active ministry, and so on. In every way, the leadership of this deeply troubled place kept this decades-long crisis in the dark. Not surprisingly, this darkness protected abusers and allowed them to hunt undeterred. As a result, for decades hundreds of children were irreparably damaged, mentally, spiritually, and physically.

It’s unfortunate that the Church needed to be compelled by legal process to assist in the production of this report. Regardless, now that it’s out, it should be studied closely by both civil authorities and the Church as well. It’s important to note that most dioceses don’t appear to have been as successfully infiltrated by abusers as Altoona-Johnstown. One organization, Bishop Accountability (criticized as unreliable by some in the Catholic community), publishes a data base of accused priests by diocese within the U.S. The site does not provide per capita data, so it’s not easy to tell by the raw numbers how plagued a particular diocese may have been relative to its size. But there are some compelling indicators. Large dioceses (known as Archdioceses) show some remarkable disparities; Los Angeles and Boston, both notorious for abuse, show over 250 accused priests each, while New York and Chicago show far less. The diocese I grew up in (Arlington, Virginia), has over 450,000 registered Catholics. I happen to know (apart from the database) that Arlington has had an unusually low number of reported incidents of abuse over time. In Altoona-Johnstown, with around 100,000 Catholics, hundreds were identified just in this grand jury report.

Most likely, luck and coincidence do not account for these disparities. They’re far more likely driven by the atmosphere set in large part by the authority on the ground. It’s no secret that Arlington, one of the most conservative dioceses in the U.S., is not one I always agree with on issues of faith and practice. But they appear to be doing something right where child protection is concerned. That should be emulated as much as the actions of past bishops in Altoona-Johnstown (the current bishop is accused of no wrongdoing) should be avoided.

Contrary to some beliefs, held often by those antagonistic to the Church in general, the institution, while highly imperfect, neither solicits nor “manufactures” predators. Instead it almost always unwittingly attracts them, as literally every religious institution occasionally does. With its global reach, vast resources and ancient roots, the Church has always been a sadly attractive place for predators. Sadder still is the Church’s often disastrous response to this neutral fact, a response that has made the problem immensely worse. One thing it can do now, in the wake of a report pried from darkness, is use it to illuminate every space it touches. The stakes are too high for anything else. 

Let there be light. 

For Andre Johnson of Florida State University: What Nine Seconds Are Worth

JohnsonVideo evidence is rarely this clear, even now that it’s far more ubiquitous then when I was prosecuting violent crime. The relevant part between Johnson, the freshman FSU player charged with misdemeanor battery and the woman he brutalized, plays out in about nine seconds. They should be enough to end his NCAA career forever.

If you have a doubt, and you can stomach it, follow second by second what was released by the 2nd Judicial Circuit State’s Attorney today.

At 1:55, Johnson approaches the bar and the woman he eventually punches. They make contact, and she turns and confronts him. If this is as it appears, namely a guy in a crowded place pushing his way to the bar and a woman becoming annoyed and confronting him over being pushy, it’s a scene I’ve personally witnessed play out hundreds of times, usually to no more than a few choice words and dirty looks. At 1:56, she actually raises her fist, but seems to be smiling or smirking. By 1:58, Johnson has grabbed it and pushed it down, and the two struggle until around 2:01. About a second later, she actually does “throw” a punch at Johnson, but it’s a slow, harmless attempt that he appears to easily avoid.

Then comes 2:04.

At that moment, and with a speed that makes her “punch” seem like something in slow motion, Johnson rears his right arm back and then shatters the entire scene with a blow nearly impossible to follow in real time. It not only connects with her face in a way that leaves her stunned and grasping the bar to steady herself, but it also sends pitchers and cups flying. Her hair flies wildly as her head snaps sideways. Given Johnson’s size and athletic prowess, it’s more than a breathtaking display of anti-female violence. It’s potentially life threatening.

So far I haven’t seen arguments made (as were made richly and stupidly after Ray Rice brutally punched his then-fiance into unconsciousness) that Johnson was provoked somehow or “defending himself.” In any event, they’d be irrelevant also. Call me old fashioned or even sexist; I’ve been hit by women, albeit rarely, and I would never strike one back. But even under as gender-free an analysis as we can make, Johnson met a harmless swat with a vicious, cocked punch, and at a woman a fraction of his size.

To be clear: Legally, he deserves the exact same treatment as anyone else in his position. Given a black eye on the victim that prosecutors could still see days later, in my view he should spend at least a long weekend in jail, bear a criminal conviction, and maybe probation. Academically, he should be able to continue his education at FSU if he can do so appropriately on scholarly merit alone. He should certainly be able to rehabilitate himself, perhaps after serious mediation and reflection. But his NCAA playing career should be over. Not just at Florida State but everywhere. I concede readily I know almost nothing of his athletic career or his character otherwise. I also lack experience with college football itself other than as a casual observer, let alone with disciplining NCAA athletes and determining what standards are most appropriate when meting out punishments for off-the-field conduct.

Regardless, I’ll say confidently that Johnson should be banned from college sports forever, period. This view is not about retribution or disgust with Johnson himself; I find his behavior disgusting, but I have no desire to forever demonize an adolescent for what might well involve lingering impulse control issues. Further, American football, as much as it also exemplifies strict discipline and the plain decency of sportsmanship at its best, also rewards blunt force and quick, violent reaction. It has certainly rewarded Johnson in that regard, and the mixed signals have perhaps proved toxic. Similar to the challenge the military has in developing warriors who can still act morally and with grave restraint whether or not under direct command, football demands line-drawing and a delicate balance between the unleashing of violence and the crucial mettle of self-control.

Still, Andre Johnson’s stunning failure to make these distinctions is exactly why, as unfortunate as it is for him, he must be made an example of and stripped of a privilege he squandered in a pitiless, inexcusable rage. Nothing short of that sends a message sufficient in terms of moral clarity and the rightful demands of a civilized society.

For football, nine seconds is enough.

Cathy Young Wants Feminists to Describe Rape As “Ugly Sexual Encounters.” Don’t Let Her.

It might be irony, the way it’s commonly portrayed. Or it might just be rank hypocrisy. Whatever it is, Cathy Young, in her May 20, 2015, post embodies it.

The caption under the istock photo the Washington Post chose to accompany this vacuous and alarmist piece was the following: “We need to stop prosecuting bad behavior as rape.”

Really? As if a non-stranger rape prosecution tidal wave has formed, blocking all other efforts to seek justice at the courthouse?

No, that’s not happening, but thankfully we have Cathy Young showing us the way to avoid such abominations, what with her two anecdotes about regretted sexual encounters and literally nothing else. What’s funny, though, is that Cathy herself admits fully that she 1) didn’t view the negative sexual encounters she describes as a crime, and 2) she didn’t report them as such.

Welcome, Cathy, to reality. That’s what pretty much all women and men do, and by the way? It’s what the vast majority of victims do when the “encounters” actually are, objectively and by any statutory definition, rape. And this wasn’t just when you were young, Cathy. It’s still true now. And it probably will be for a very long time.

I’m sure Cathy would point out though, that what prompted her breathless piece was the idea that legions of women like her, armed now with 2015-era “feminist” notions of victimhood, are poised to suddenly push open the floodgates of litigation to incorrectly and unjustly imprison men who simply used “seductiveness” to turn a “no” into a “yes.” Ms. Young would have us believe that a few reasonable initiatives regarding consent, and a renewed movement against an age-old scourge have somehow eviscerated fair judgment in the average person and created a monster of inaccurate reports and false victims.

Garbage.

In fact, rapists now, just as rapists when Cathy Young was in her teens or twenties, rely on myths, shame, and fear in order to keep their victims silenced. In terms of what Ms. Young has brought to the issue, this means being 1) silently obedient to Cathy Young’s interpretation of their experiences, and 2) repentantly observant of the Washington Post’s clever istock choice of an obviously whoring slut searching for her pumps under a man’s bed.

The message? If you believe you’ve been raped, you’re probably wrong, and you probably did something to either bring it on or otherwise allow for it to happen.

So blame feminism. Blame the “liberal media.” Blame yourselves, certainly.

Just never blame the rapist. In Cathy Young’s world, there are far fewer of them than there are hysterical and litigious versions of you.

 

 

 

 

 

What Harvard Law Professors can Learn From Stanford Undergrads

Last July, Harvard University adapted both a new policy on sexual harassment and a new set of investigatory procedures to respond to it. Not surprisingly, both policy and procedures are designed to ensure compliance (and general harmony) with Title IX of the U.S. Code. IX prohibits discrimination and ensures access to educational programs that receive federal funding.

Sexual violence and harassment implicates Title IX in that federally-funded schools must preserve educational environments that are as free as humanly possible from these things. That’s the bottom line. Harvard is pursuing that bottom line surely in the interest of doing what’s right as well as in preserving an important funding stream. Good on them.

Regardless, a few months ago, 28 Harvard Law School professors signed a statement published in the Boston Globe expressing “strong objections” to the new policy and procedures. Indeed, the principal author has stated her belief that current federal efforts in this area will be looked back on as a “moment of madness.”

My legal betters seem to have objections in two major areas: First, they bemoan what they see as a lack of due process protections for students accused of violating school policy based on Title IX protections. They see an adjudication system “overwhelmingly stacked” against accused students. Second, they believe Harvard has gone too far in defining offending conduct under their Title IX-based disciplinary policy, apparently believing it threatens things like “individual relationship autonomy.”

I’ve carefully reviewed the new procedures, and while I can’t go point by point in this space as to why they are basically reasonable, suffice to say I don’t see anything that should raise an alarm as if Harvard has decided to do away with anything resembling American legal tradition in favor of a politically-correct mob. Regardless, reasonable minds can differ on whether an adjudication system for student misconduct provides enough procedural safeguards. Fine.

It’s their second area of objection (the new definition of impermissible sexual harassment) that I find somewhere between mystifying and dangerously naïve. They apparently object- at least in some way- to Harvard’s new prohibitions against sexual conduct with a person “so impaired or incapacitated as to be incapable of requesting or inviting the conduct…provided the Respondent knew or should have known about…” such a condition.

That’s right. To a united legal mind of 28 in arguably America’s finest law school, this clear prohibition is somehow problematic because of “complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”

With due deference to this brilliant group, they seem to know precious little about 1) sexual violence as it plays out when intoxicants are a weapon of offenders, and 2) the reality of how victims perceive their own victimization in most cases.

It’s a fact that intoxicants, particularly but not exclusively alcohol, are often used by sexually predatory people to disable victims, ensure destruction of their credibility, create confusion and doubt due to memory loss, etc., and also because a sad majority of people (like the Harvard Law 28) are blind to this kind of behavior, believing it instead to be some kind of misunderstanding. Predators depend on this naivety when it comes to what they do. They always have.

But it’s a far more crucial fact that the vast majority of women (and men) who are clearly sexually violated- particularly when voluntarily intoxicated themselves- never report sexual assault in the first place, let alone cases of what is likely college-age confusion or awkwardness.

Why? Because in the great majority of cases, the truly victimized do exactly what thinkers like the HL28 want them to do: Blame “confusion.” Blame college inexperience. Respect “relationship autonomy.” But above all, blame yourself.

So might a new (and utterly reasonable) definition of sexual harassment lead to a floodgate of aggrieved people “crying rape?” Will “madness” from the government then subject legions of inoffensive young men to academic ruin?

No. Both notions are silly. Yet I’m amazed at how many otherwise brilliant people believe them.

The HL28 could learn something from a recent and brilliant op-ed by two undergrads at Stanford, describing very similar efforts that will be undertaken at that equally august institution. Contrasted to the hand-wringing of the HL28, it’s genius.