Category Archives: Legal Analysis

Rape Denial In Action: Bullying Jody Raphael for Telling the Truth

A couple of weeks ago I endorsed an important and well-written, well researched book on sexual violence by law professor Jody Raphael, a nationally prominent researcher, anti-violence advocate, lecturer and attorney. The very point of Raphael’s book, Rape Is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisisis how powerful interest groups nationwide are making a large problem worse by intimidating victims and challenging their credibility, downplaying rates of sexual assault, and protecting their own institutional environments. The book has been met with well-deserved praise by those of us in the anti-sexual violence movement who know how meticulously well researched and accurate it is.

Raphael has been challenged, though, not through honest discourse or documented findings, but through rank intimidation and an organized smear campaign. She discusses, among many other topics, the tragic inaction (and worse) of officials involved in the Sandusky/Penn State crisis. This caught the attention of a group of Paterno supporters in the Penn State community who decided they didn’t like Raphael’s illumination of the subject to the extent it threatened their hero-worship. What followed was a organized campaign to rate her book negatively on the Amazon book selling site in an attempt to make it less visible to to potential book buyers. On a message board (no longer visible) on the site “BlueWhiteIllustrated,” a poster wrote: ”I and others have been posting negative comments on the Amazon site where the book is being sold. As a result, the rating for the book has dropped from 5 stars to 2. Please go to the site and add your comments. Let’s drop the rating to 1 star. BTW, Ms. Raphael is a law professor – hard to believe.”

As a result, and since that campaign began, there are 41 negative reviews of her book, just about everyone of them related to the Penn State issue. As friend and colleague Katie Feifer of Counterquo put it so eloquently, “Seldom do real life events so quickly prove the key point that an author makes in her book.”

Raphael has experienced other forms of harassment and intimidation in the wake of her book’s release as well; thankfully she has the strength, dedication and courage to face them all down. But what she’s experienced in an effort to expose the truth about a preventable national shame and tragedy should sound a louder alarm. The problem is, in fact, even worse than we thought.

 

The Real Horror of Kermit Gosnell: Evil Finds A Way

iStock_fetusKermit Gosnell, if the charges against him are true, is the ultimate child abuser.

I cannot run from this.

It’s not an easy task to write about his case from the standpoint of an advocate for children who is also legally pro-choice. But to be in my position and not write about this case is, to me, an act of cowardice. I’m a former child abuse prosecutor and an advocate for the most defenseless among us. Abortion opponents would- and have- challenged me on how I cannot see a child in the womb as the most defenseless human being imaginable. My response, at least for now, is that I draw the line at the generally accepted notion of “viability” and accept it as sound public policy. Personally, I view every abortion as a tragedy. But I would never support (absent what I consider reasonable restrictions) a legal ban on the practice; among other things I lack the moral authority to block a woman from making basic reproductive decisions I’ll never have to face.

But if Gosnell delivered live human beings and then murdered them with scissors, all of this in a fetid, filthy and sometimes lethal atmosphere, he is evil incarnate. Of course, most on both sides of the abortion debate would readily agree with that statement. But they also see very different implications for what it means.

To many abortion opponents, Gosnell’s hellish work is simply the inevitable consequence of an abhorrent practice that devalues life and richly rewards the dealing out of death. To supporters of legal abortion, Gosnell was allowed to flourish exactly because of the increasingly truculent and organized attack on reproductive rights. Women have found ways to end pregnancy for millennia; legal restrictions against that effort only push it into the shadows where compassion and basic competence give way to recklessness, greed, and torture.

I can’t embrace fully the more extreme pro-choice view that the best way to avoid evil within the practice of abortion is to simply allow it to occur with few if any restrictions well into a second trimester. The combination of desperation and the shadows of illegality attracts horrors, yes. But as well, there’s the stubborn fact that, the later an abortion is contemplated, the more morality gets muddled as much as legality. There may be decent medical providers willing to perform such tasks for what they at least sincerely believe are the right reasons. But there will be others drawn to the practice for far worse ones.

Still, what I know of criminality and the nature of predatory people is what ultimately leads me to side, generally, with pro-choice elements on what allowed Gosnell to operate. The primarily religious based anti-abortion movement believes that the practice itself is inherently evil and that therefore associated horrors are inevitable. I do not; right or wrong, I part ways with the religious to the extent that they believe the basic practice of abortion, no matter how well-intentioned, well-orchestrated, or reasonably regulated, eventually produces the kind of callousness within many of its practitioners that leads to the charges Gosnell now faces.

What I believe is that the desperation of women denied other options is what attracts- not produces- men like Gosnell. This is how predators work. Despite the insistence that abortion invites the perversion of the soul, that’s not what I believe happens. Rather, in most cases and far more terrifyingly, I believe evil souls are usually perverted from the beginning, and then search for opportunities.

Gosnell is on trial for being, among other things, a perversion of a doctor who mislead, mistreated, maimed and killed mostly young women and babies. If the charges are true, he is probably every bit the monster he is feared to be. Not a reluctant practitioner of a dark art for the sake of women who had no where else to go, but simply a deeply evil creature who feasted on misery and murder, collecting its products in jars because it amused him.

If so, in my mind, he was not coarsened and “made” evil by what he practiced. He is more likely an opportunist with original intentions. He simply found the perfect environment in which to indulge them.

Needed Wisdom on Rape from a Former Judge

Prof_Bobby_Prof_J1_midsz“We were insulted by the word “date” rape. “Date” rape does not exist. It’s a misnomer; It’s like saying “car-jack.” Car-jack is robbery. Rape is rape. That’s it.”

-former judge Robert Holdman on his time as Chief Trial Counsel, Child Abuse and Sex Unit, Bronx District Attorneys Office, Bronx, New York

A colleague and mentor, former New York State Supreme Court Justice Robert Holdman, was invited to participate in a Huffpost Live broadcast on the Steubenville rape case as the trial was being heard. He was joined by Alexander Abad Santos of the Atlantic Wire, and also Zerlina Maxwell and Jaclyn Friedman. Friedman and Maxwell in particular are well-known warriors in the fight against rape culture, and I’ve had the honor of working with and learning from Jaclyn personally. The broadcast is an excellent discussion of the Steubenville dynamics and the larger problem beyond it. It’s still well worth watching even as the case fades slowly away from the news cycle.

What made Holdman’s comments so important is that they came from the perspective of a former trial judge. While most U.S. judges are honorable professionals worthy of the power of the robe, the judiciary is still a place where we don’t see enough understanding of the dynamics and reality of sexual violence. This is particularly true with non-stranger sexual violence, the kind women and men experience far more than any other.

Every criminal defendant deserves a full and robust defense, and also a judge who is sensitive to the circumstances of an individual facing the power of the government, regardless of the charges. Holdman would surely agree, and his comments rightfully included the responsibility of judges to be neutral and fair to defendants facing criminal prosecution. Being a good trial judge doesn’t mean- from my perspective or any other- assuming guilt in any criminal case or anything close to it. But an ignorance of the reality of sexual violence, particularly between individuals who know each other, and an over-reliance on the myth and innuendo so pervasive in our culture regarding rape and sexual assault, lead far too many judges to render irrational and unjust decisions in these types of cases.

Important professional opportunities have taken Holdman- for now- from his duties as a trial judge. Still, I hope the messages he has conveyed reach the men and women who make the crucial decisions that shape sexual violence cases nationwide and beyond. I also hope he finds his way back to the bench as his career progresses; his kind of clarity on this subject needs to be as common on the judicial bench as it needs to be everywhere else.

 

 

U.S. Senators, Don’t Blink: Own the Reality of Newtown if Not Your Own Cowardice

Blood stains (XXL)

TRIGGER WARNING: GRAPHIC

I was troubled by one understandable and typically American response to the Newtown massacre, namely the mostly Christian-themed memorial depictions that flew around social media. Some showed 20 children running cheerfully into a brilliantly lit classroom that was really heaven, or suddenly and happily finding themselves with wings on fluffy clouds.

Doubtlessly, the images and cartoons were well-intended. But ultimately they also served to sanitize the event, and almost to perversely undermine, however unintentionally, the gravity of it. The children are fine, the images suggested. We can move on.

But we can’t. Because when we do, however innocently, it makes it even easier for a sufficient number of feckless cowards who call themselves United States Senators to deny their responsibilities to any entity other than the corporate gun lobby or a fading and paranoid subculture of conspiracy blinded crackpots.

So please, invite your senator, if he or she voted against the series of reasonable amendments that died today amid an atmosphere shame and idiocy, to imagine the reality of Sandy Hook from the scope of a military grade assault weapon wielded by the miserable insect behind it. Demand that they picture what Lanza saw. Because it wasn’t 20 children and 6 women softly fading into the light of eternity, however warm that light might have felt once they got there.

They were ripped apart by a round of ammunition weighing about a third of an ounce with a muzzle energy (basically impact potential) of around 2400 foot pounds. That much metal at 2200 feet per second tearing into a child with an average weight of 48 pounds doesn’t cause him or her to fade with a sleepy smile into bliss. I thankfully have not seen the Newtown crime scene photos, but I am no stranger to images of children killed by gunfire.

So I know that the little angels of Newtown more than likely lost limbs and entire sections of their bodies in smoky red glazes. I know their faces probably exploded, their skulls bursting like pomegranates thrown from high windows. And, as Lanza squeezed again and again- as he would have had to do- an untold number saw their classmates eviscerated in unblinking terror and disbelief before his one open eye found their tiny, frail body and tore it open like fallen fruit under a truck tire.

Please, don’t blink. And don’t let your senator blink either.  Because that is the reality of the long moments of hell experienced by the supposedly now winged seraphim who were once Connecticut school children. The reality is smoking fragments of a Batman sweatshirt soaked in blood. The reality is a Disney princess headband spattered with brain matter on a tiny, shattered classroom chair.

But it’s not the only reality. The other is that Adam Lanza was a miserable creature limited utterly by his options. Thanks to the senseless expiration of the Federal Assault Weapons ban in 2004 (around the time Lanza turned 12), his mother was allowed to purchase a military style weapon, kept in her comfortable, remarkably low-crime Connecticut home within reach of the thing that was her child. The idea that this pathetic creature could have committed 26 brutal murders with a knife or a baseball bat is the height of sophomoric stupidity; right up there with the idea that a black president is going to disarm the populace and impose socialism on a dwindling white majority.

And yet that suspicion, to a greater or lesser degree depending on the droner making the argument, is what appears to hold sway still in the upper legislative house of the most powerful nation on earth. That and the threat of gun lobby money ending precious political careers. But balanced against two score little angels now nestled in Jesus’ bosom, is that so intolerable?

A shooting survivor shouted “shame on you” from the gallery today as Vice President Biden announced the final tally on a background check compromise. I took gallery shouters to task for their “Second Amendment” outbursts in Hartford, and I should be consistent and criticize her.

But in Hartford the object of the shouts was a grieving father. In Washington, D.C. today, it was among the most powerful and privileged group of 100 in the world.

Let freedom ring.

A Terrible Crime Averted. A Terrible Discovery That Cannot Be

Two boys, aged 10 and 11, will stand trial for conspiracy to commit rape and murder in Washington State. Although state law apparently presumes a lack of criminal responsibility (even juvenile responsibility) for children 8 to 12, the presumption can be overcome with evidence. Such evidence was introduced in a competency hearing, including evidence that the boys knew the nature and character of what they wanted to do.

What they wanted to do, complete with a stolen knife and handgun in their possession along with a written plan, was to rape and then stab a fellow female student. One apparently even understood that rape was not a sexual act, but more a display of power and control. One of the boys was asked if he understood that murder was wrong. His response was “yes, I wanted her dead.” 

At this point, like anyone decent, I am thankful the plan was foiled. As for what lies ahead, or how these two arrived in a courthouse on trial for their youth, I have no answers.