Category Archives: Legal Analysis

Far More than “He-said, She-said” in Latest NFL Rape Case

The rape charges filed earlier this month in Indianapolis against Colts special teams player Joshua McNary are, sadly, only the latest accusations of violence against women- sexual violence, in this case- against members of the National Football League.

McNary appeared in court for an initial hearing last week and pleaded not guilty, his attorney emphatically denying the charges. This is, of course, appropriate and generally a good defense attorney’s job when the case appears to be one that will likely 1) attract media and public speculation and 2) go to the mats in a jury trial.

Like most, I know only what’s been reported and would take no firm stance about McNary’s guilt or how the case will likely play out. I do know, as I’ve stated repeatedly in this space and many others, that very few rape allegations are false at their core, and that rape is grossly underreported, not something tossed around for vengeance, vanity or money, despite the endless droning of the paranoid and/or finger-wagging set. Regardless, that’s as far as I’d go with any factual speculation.

At least one quoted expert though, former prosecutor and current defense attorney Jack Crawford, grossly oversimplified, by all accounts so far at least, what’s likely to be seen in evidence.

In short, he referred to it as a “he-said, she- said” case, a term I’ve come to despise at the same time I’ve simply gotten used to it. It implies, of course, that the criminal charges rest only on the word of the complainant, the word of whom will be challenged by the defendant, leaving the jury in a position of deciding which one to believe. Although a popular characterization of many sexual assault cases, “he-said, she-said” is literally never accurate. I was taught many things by my mentor and former boss Victor Vieth, and among the most important was that corroboration, in some form, is always possible to find and then translate into evidence if the investigators and prosecution team are diligent and creative enough.

Rarely does corroborating evidence constitute a smoking gun, of course; far more often it’s just a simple fact that can be independently proven, and then offered as evidence when it’s shown to support the prosecution’s theory of the case. In tandem with many others, though, it can help a justice-minded but aggressive prosecutor build and then prove a case that a lesser attorney would probably just avoid. Indeed, prosecutors in my experience are often more likely to falsely tag cases as “he-said, she-said” (and thus un-triable) than many on the defense side.

What’s particularly silly about Crawford’s characterization, though, is how inapposite it appears to be in this particular case. The victim here reported within hours of being assaulted. This allowed physical evidence to be taken and an acute examination to be done, both of which will likely favor the prosecution. The quick report also allowed detectives to find McNary and preserve evidence from both the crime scene and his body before either could be disturbed; this evidence also looks promising for the prosecution. Interestingly, McNary appears to have preserved bedding himself for the responders, telling them when they arrived that he expected them. It’s hard to say how that will be used by either side, but it arguably shows consciousness of guilt on McNary’s part.

Crawford certainly isn’t all wrong. He’s correct that the case will not be an easy one for the prosecution to prove. He’s right that intoxication on the part of both parties will complicate matters and likely cut against the credibility of the complainant. He’s probably also right that consent, ultimately, is what the jury will have to decide, since sexual intercourse between the two will be easily established if not outright admitted by the defense.

But he’s wrong to suggest that this case comes down to nothing but the testimony and credibility of the two people at the center of it. A creative, diligent prosecution team, backed with a good investigation, has a better shot at proving this case than Crawford suggests. I’m willing to bet that’s the case, in Marion County, Indiana.

 

 

 

 

 

 

 

The Inevitable Doubting of “Jackie” and Rolling Stone’s Sabrina Erdely

Our capacity for doubt when it comes to the accounts of victims of sexual violence- and apparently that of the world of journalism- never ceases to amaze me. Two weeks ago, a heartbreaking and deeply disturbing story emerged in Rolling Stone by reporter Sabrina Erdely. It was electrifying and remarkably popular. As of now, both the victim’s account and Erdely’s journalistic practice and ethics are being questioned.

I suppose I should not be surprised.

The primary objections to Erdely’s journalistic integrity rest on three primary foundations: 1) It’s only based on “the word of the alleged victim.” 2) Erdely made no attempt to contact the alleged perpetrators. 3) It’s just too horrible to be true.

First, as for Erdely basing her story solely on the apparently compelling, consistent and credible account of the victim, I’d remind the objectors of a legal maxim, often translated into a jury instruction in criminal cases and applicable in every U.S. jurisdiction I’m aware of: Testimony is evidence in a court of law, and if it is sufficiently compelling to the finders of fact (the jurors), then it may stand alone as the basis for a conviction. So jurors across the United States can base convictions beyond a reasonable doubt on the testimony of a single witness, but a reporter is reckless for accepting the account as the basis of a story?

Second, in terms of Erdely making no attempt to contact perpetrators, this is justified because they were not named. A fraternity was identified, but no individual perpetrators. According to Erdely, she contacted the fraternity and didn’t get very far, but what was she to do anyway? Erdely tells us that the victim, Jackie, for reasons explained, didn’t want the perpetrators she knew of to be confronted. She wanted to tell her story, not generate a mob. This is hardly indefensible; most victims of sexual violence do not report or tell anyone, let alone seek to create a public confrontation. Phi Kappa Psi is suffering scrutiny for sure. But not a single man is, whether affiliated or not. Thus, charges of “you didn’t get the other side of the story” make no sense, unless one or a group of men from the organization was willing to come forth and somehow prove a negative by either 1) accounting for the whereabouts of every member of the fraternity in the fall of 2012 or 2) describing the same encounter as consensual.

Third, in terms of the story being too ghastly, shocking, or indicative of coordinated evil on an otherwise august and civil campus to be true? I can only hope the doubters have never experienced something similar, within or without an environment like Rugby Road. An elucidating piece by Liz Seccuro, herself gang-raped at the same fraternity house 30 years ago, might allow some ugly but necessary light to penetrate the dark ignorance of some suspicious objectors. The LA Times’ Jonah Goldberg, for instance, can’t imagine how a bruised and bloodied woman could leave a darkened, loud college party without being noticed. I’d suggest he has either a limited imagination or limited experience with college parties. Politico’s Rich Lowry speculates that “the shock of [the story] led many people to recoil in horror upon the article’s release and ask, “How could this have happened at such a respectable school?” Actually, Mr. Lowry, there are legions of women (and some men) who know exactly how it could happen.

Both wonder how Jackie’s friends could have been so equivocal about reporting, and how the university could be so tepid about taking the matter to the police. Again, I can only say they have severely limited experience with the reality of sexual violence as it usually plays out in college life, and even less insight into how such violence is normally responded to. A fair debate continues about the role colleges should play in adjudicating sexual assault. But what must be understood is that the desires of victims, particularly given the gross limitations of the criminal justice system, drive the seemingly laissez-faire reactions of college administrators when rape comes to their attention. The idea is to empower, not dictate.

Doubting Jackie’s account is anyone’s prerogative. Doubts about Erdley’s reporting of it should stand on firmer ground.

 

 

 

Yes, Bill Cosby is Probably Guilty, and No, There Are No Heroes

I don’t like it either.

There’s nothing to like. There was nothing to like in realizing that Woody Allen, a filmmaker I credit for much of my worldview let alone my sense of humor, is guilty- in my opinion- of molesting his daughter. There was nothing to like in realizing that Michael Jackson, who even as a rock-n-roll obsessed teenager I believed was pure magic to watch, was guilty- in my opinion- of molesting children at his ranch near Santa Barbara.

Perhaps Bill Cosby is the most unpleasant realization yet. Cosby, after all, is more than a brilliant entertainer. He has been a symbol of hope and progress for a generation and some of its most marginalized and disenfranchised members. I was never a devotee of the Cosby Show, but I enjoyed what I saw, and even as a kid I loved the fact that star and cast developed a lasting and convincing image of a loving, educated and successful American black family.

Later, as a paternal figure and blunt critic of what he considered were negative aspects of black culture, Cosby was still heavily admired. Why? Because at bottom, he was looking out for black boys and young men, wanting what was best for them as an increasingly endangered species in a cultural and socioeconomic meat grinder.

But Cosby is almost certainly guilty of a pattern of sexual violence involving the use of his influence, his victims’ relative powerlessness and lack of life experience, the brutal competitiveness of his industry, and drugs and alcohol. By my count now, no less than 15 women have accused Cosby of similar acts under similar circumstances. There is consistency. There is a pattern. Few if any of the women who have come forward- particularly recently- stand to gain anything from their allegations. They are taking on no less than an American icon; a man of grace, class, considerable power and influence. He’s a national treasure; they know well they are contributing to a national heartbreak. They know they’ll be viciously targeted in terms of their motives, their credibility, and indeed their very sanity.

There’s a very, very large chunk of an already sad and disillusioned country that doesn’t want to believe Cosby is guilty of anything. Like many people who consider sexual violence in the very system that’s supposed to address it- the one I’ve spent a career in- they’ll find a reason to believe it’s just all a big lie. That Cosby never, over three decades against more than two dozen different, unrelated women in several states, committed any crimes.

Maybe it was a misunderstanding that just happened over and over again, altering lives along the way. Maybe it’s true that women are just really vicious as a gender and don’t have a problem falsely accusing men of among the most heinous crimes imaginable. Maybe it’s really satisfying, fun and quickly profitable to turn yourself into an instant media curiosity as a victim accusing a beloved figure of rape.

Yes, and maybe the tooth fairy will leave my IRS bill under my pillow if my latest root canal fails and I need an implant.

In fact, gravity brings rain to the ground and water is wet. In fact, if the man at the center of these allegations was an ordinary plumber, or systems analyst, or cab driver or cardiologist, the belief in his guilt would be widespread and probably correct. Legally, Cosby has been convicted of nothing and found civilly liable for nothing, and it’s correct that he remain legally unburdened. But Cosby has cultivated an image both as a public figure and at times a moral scold. He’s earned this scrutiny if nothing else. It’s awful. But so is the truth, much of the time.

The reality of heroic acts is the saving grace of our existence; well-lived lives often contain blessed aspects of it. There was, as just one example, great worth to the Cosby Show far beyond the laughs and the tender moments, and it should live on regardless of Cosby’s reputation.

But heroism itself is dangerous and inconsistent with the human condition. We’re too complex for halos; they’re best left to the saints. And the songs. And the myths.

American Horror Story: Though the Heavens May Fall, Let Justice Be Done

Tom Hogan is the District Attorney of Chester County, Pennsylvania. He is seeking the death penalty under Pennsylvania law for the murder of three year-old Scott McMillan, who appears to have succumbed to multiple, repeated, and ultimately murderous acts of physical abuse from the defendants in the case, Jillian Tait, the child’s mother, and Gary Fellenbaum, her boyfriend.

These acts included beating the toddler with a homemade whip, smashing his head through a wall, and hanging him by his feet while beating him.

“Though the heavens may fall, justice will be done to these defendants” was Hogan’s final statement at press conference yesterday.

Capital punishment will likely end in this country as society continues to evolve, as the unalterable risks the death penalty imposes are further exposed, and as notions of ‘good’ and ‘evil’ continue to be shot through with the complex realities of mental illness and extenuating circumstances. That isn’t necessarily a terrible prospect.

Regardless, while a penalty of death is still an option, and assuming that Tait and Fellenbaum are 1) factually guilty of the pre-mediated, torturous murder of this child and 2) legally sane, I wish my brother prosecutor Tom Hogan one thing as this miserable case plays out in a court of law:

Success, all the way to the needle.

 

 

 

An Inconvenient Truth About Pedophilia: It’s a Curse, Not a Choice

6028playground_swingA friend sent me this link to a New York Times op-ed on pedophilia, the technical term for the DSM-Vparaphilic mental health diagnosis that describes a person (usually a male), sexually interested only in pre-pubescent children.

Apparently, the DSM itself (the “bible” of mental health professionals) will not describe pedophilia as a sexual orientation, but rather a paraphilic disorder. This is basically a sexual predilection detrimental to the object of the interest, and which causes the sufferer significant distress or difficulty dealing with it. Since pedophiles are solely, sexually focused on prepubescent children, any manifestation of the disorder will be- in essence- harmful and unacceptable. Rightfully, we punish such manifestations, including consumption of child pornography as well as “hands-on” offending.

Regardless, I know of no reputable mental health expert who would call pedophilia a “choice.” When it comes to the persistent, chronic sexual attraction to prepubescent children, what we’re dealing with is more of a burden.

Or more bluntly, a curse.

What’s chosen is behavior.  Sexual behavior involving prepubescent children should remain 1) anathema to what is societally acceptable, and 2) severely punished. I’ve spent a career seeking to do these things.

But the author of the op-ed makes valid points when she discusses the need to understand pedophilia instead of just aiming vitriol and anger toward those saddled with this miserable circumstance. There are, as she notes, people with pedophilia who do not act out in response to deep-seated urges. They understand the concrete wrongness of sexually acting out against children, so they painfully but dutifully deny themselves a sexual life.

In my opinion, with a career of seeking to protect children from child molesters behind me, I believe these successfully restrained people should be commended for this, particularly when their concern is more for the children they might harm as it is for the legal or societal consequences they might face. Certainly, they should not be further marginalized, ostracized, or hated. But regardless of how balanced any appeal to common sense or baseline compassion might be, hatred and viciousness are usually what pedophiles encounter.

And so they remain in the shadows, untreated and more deeply misunderstood.

We still have almost no idea what causes pedophilia; correlations between childhood experiences (abusive or non-abusive) have been at best inconclusive. If it’s genetic, we’ve yet to discover a traceable etiology. We know that the vast majority of victims of childhood sexual abuse do not turn around themselves and abuse later in life or “become” pedophiles. Rather, it seems more ingrained, but we don’t know why or how.  We also know that, while most confirmed abusers will claim past sexual abuse, even the threat of a polygraph exam during treatment will bring those claims far down.

So we’re dealing with a very dangerous mystery. But largely as a society, we’re interested in nothing but punishing pedophiles, regardless of their actual status as offenders. If they have this desire, too many of us seem to believe that they’re worthy of the worst we can legally (or otherwise) dish out to them.

The comments to Dr. Margo Kaplan’s piece in the NYT are enlightening in this regard. While some applaud her for her courage in being a voice of reason, many more seem to fall into a couple of categories that, while understandable to some degree, are irrelevant. First, there are commenters who simply make legally and psychologically incorrect assertions, and lump pedophiles into the far larger subset of child molesters, most of whom are not pedophiles. Second, there are woefully unfocused comments that address the harm done to the victims of pedophiles (or people they assume are pedophiles) with no further thought.

Focusing on victims and prevention of harm is more than understandable; it’s completely appropriate and it needs to continue to be our highest priority. But we must also understand what drives offending- particularly when the drive is so despised that passion chokes that understanding.

Again- most predatory, sexual offenders are not pedophiles. The word is grossly overused and misused. Regardless, there are harmful pedophiles in our midst. We need to stop them, but in order to do so, we need to understand them.

Blind hatred won’t help. Blind hatred never helps anything.