Roger Canaff » Media Missteps

Myth and Innuendo In the Greg Kelly Investigation

Roger Canaff — Wed, 01 Feb 2012 05:32:23 +0000

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.

Vulnerabilty, Danger, and Blame

Roger Canaff — Tue, 31 Jan 2012 01:51:55 +0000

“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.

The Seebergs Gain Ground- Thank God

Roger Canaff — Mon, 03 Oct 2011 02:52:00 +0000

Elizabeth “Lizzy” Seeberg passed to the next life on September 10, 2010, a little more than a year ago. I did not know her. Readers of this space, however, know that I was profoundly touched by her life, her death, her courage, and finally the courage of her parents as 9/10/10, for them, bled brutally into the following fall and winter.

For the Seebergs, last fall was not a typical one for a Roman Catholic, Chicagoland family with multi-generational ties to Notre Dame du Lac and St. Mary’s. There was no warm delight in the football schedule, the changing of the seasons, or the approach of the holidays. Instead it was a dark struggle in the wake of a nightmare with a suddenly impenetrable bureaucracy that was the Notre Dame administration. Since I and others have described them before, I won’t recount here the missteps I believe Notre Dame took, both with the investigation of Lizzy’s attack and with its interpretation of federal privacy laws. Suffice to say the Seebergs, already dealing with the worst nightmare any parent could face, were met largely with incompetence and then obstruction where her attack and death were concerned.

However, their resolve yielded some progress earlier this year when Notre Dame agreed to significant reforms in its response to sexual violence after an investigation by the Department of Education (DoE) in the wake of Lizzy’s death.

And beyond Notre Dame, hope also sprung forth in the form of DoE policy with the publication of an April, 2011 “Dear Colleague” letter from Russlyn Ali, Assistant Secretary for Civil Rights at the Department of Education. The bottom line is that just about every U.S. public or private institute of higher learning relies on federal funding for various parts of its mission. The DoE Office of Civil Rights is empowered to condition receipt of federal dollars on meeting certain standards of protection for students at risk for discrimination. The office considers sexual harassment and assault to fall under that category. The letter outlines several things colleges need to do in order to be in compliance with best practices where the response to sexual violence is concerned. Examples are things like preventing offenders from personally cross-examining victims in non-legal disciplinary hearings, and requiring a preponderance standard in determining the outcome. These things are hardly revolutionary or anti-due process.

Nevertheless, a backlash has arisen from various pundits who see these measures as some sort of perverse manifestation of political correctness that threatens to derail some precious and flowering aspect of adolescent college life.

One commentator, Sandy Hingston, unsurprisingly a romance novelist, tragically conflates the sexual exploration of adolescence with rape. She harkens back to what were apparently her and her counterparts’ own experiences of awkwardly waking up with boys in compromising situations and just not making a big deal of it. To the extent that such consensual liaisons happen, she’s correct- a big deal shouldn’t be made of it.

But here’s the rub: It isn’t.

Those awkward, fuzzy situations continue to occur every night in college life- more so now than then. But they almost never produce complaints of rape, and nothing in the DoE’s guidance will change that. The fact is, most women and men who are clearly sexually violated in liquor-fueled, late-night encounters do not wake up and cry rape, let alone what victims of murkier situations do. The over-riding response to being violated sexually is to blame oneself and say nothing, and that will not quickly change. The DoE guidelines are simply helping to level the playing field in cases where the violation is clear enough, as in the case of Lizzy Seeberg, where an outcry is not only just, but necessary to the security of the campus and all of the students on it.

But this is lost on commentators who type with panicked fingers about how these changes will surely quell romance, stunt the college experience, and lead to the rounding up of men and permanent victim-hood of women.

Nonsense. This is argument in a bubble, utterly unschooled or unaware of how sexual violence actually occurs between people in the real world. Another commentator, Peter Berkowtiz, wonders aloud in the Wall Street Journal which campus leaders will come forward to challenge this new, frightening world order. Among others, he entreats literature professors to instruct that “particularly where erotic desire is involved, intentions can be obscure, passions conflicting, the heart murky and the soul divided.”

Really? So when a woman (or a man) is trembling in a strange bed, or stumbling, half-dressed from a backseat or a back room with the dawning horror of having been sexually assaulted, what she must first do is consider the divided and murky nature of her passionate soul?

Both commentators can be forgiven for naiveté, but neither have a clue what sexual violence really looks like. The reality is, when complaints are made- or even contemplated- it’s almost never a close call. It’s almost never a gray area. Despite the musings of Mr. Berkowitz and others, sexual violence isn’t simply an unfair moniker for the complicated, erotic interplay of Rhett, Scarlett and a swollen, harvest moon in a sultry, starlit sky. It’s really much more banal, blunt, and evil than that. When it happens, and it does, it needs to be dealt with competently and fairly.

Competence and fairness. That’s what Lizzy Seeberg needed, and in large part what she was denied. That’s why her parents fight on, not for Lizzy now, but lovingly in her memory and valiantly for the millions of women they know will face what she faced. They could have been easily forgiven for shutting down and tuning out after the loss of the light in their lives, yet they are doing neither. Their angel is gone from this life, but they are not content with waiting to see her in the next. They are fighting to protect the angels of others who will wander onto campuses and into situations unmistakable in their criminality and deserving of a realistic, healing, and just response. The DoE’s efforts and its hard look at Notre Dame are a product of that fight. Both are welcome steps toward a better world.

“Modest Reforms” for Rape Cases, and Why They’re A Bad Idea

Roger Canaff — Wed, 03 Aug 2011 05:15:56 +0000

Last week, a high-powered Florida trial attorney named Roy Black penned a piece in Salon.com in which he argued for “modest reforms” in how sexual assault cases are charged and tried. Black successfully defended William Kennedy Smith in 1991, when he was a little younger than I am now. He has defended Rush Limbaugh, trans-national corporations and thousands of other entities in an over 40 year career.

He has my admiration for being a zealous advocate. He’s dead wrong on the reforms he calls for.

He’s of course correct that we should protect those accused of rape. Safeguards of due process and a presumption of innocence are crucial to American justice, in sex assault cases as much as any other. Similarly, there is reasonableness and even some sympathy in his arguments regarding the media attention and rush to judgment some sexual assault accusations generate, particularly involving celebrities. But the rush to judgment is a two-way street. As my friend and colleague Anne Munch notes, the “rush” is usually around the victim being a presumed a liar or slut. Kobe Bryant is classic example of this. Analysis of media coverage in the first 5 months following the charge against him is an astonishing example of a rush to judgment by people completely unfamiliar with the case or the victim. Hundreds of people issued death threats against her for reporting in the first place.

Black’s other arguments are a tired recitation of rape mythology, particularly where he asserts, both with innuendo and flawed research, that accusations of sexual violence are commonly false (they are in fact no more common at most than false reports of any other crime) and easy to level at innocent men. These two baseless claims are what underpin the “modest reforms” he suggests.

At the outset, it’s important to note that Black and many defense attorneys probably want these myths to remain firmly embedded in the American psyche; hence his reliance on false allegation studies so deeply flawed they are critiqued even on Wikipedia, to which his essay links. Also misleading are his use of statistics from the FBI; classification differences and unreliable input are behind the disparity noted between rape and other crimes tracked by that agency.

The more these myths continue to find purchase in what is essentially a national jury pool, the more easily acquittals are achieved. Defense attorneys must be focused on protecting their clients from criminal liability by all legal and ethical means. It’s not legally unethical to appeal to long-standing but patently untrue myths surrounding sexual violence. But perpetrating myths doesn’t make them any less false or damaging. Thus, every one of Black’s “reforms” would create not an acknowledgement of reality, but rather a return to a time where reality was cloaked in myth– myth that protected perpetrators, silenced victims, and helped to further truncate and fracture lives already altered by sexual violence.

The idea that rape is an accusation “easily made but not easily defended,” for instance, never existed in reality, but only in the minds of men who could enforce this paranoid fantasy in courts of law. In fact, most victims don’t report being sexually assaulted; it remains a chronically under-reported crime and a tiny percentage of victims ever see their rapists legally punished. Those who dare to report, like the women who accused Kobe Bryant and Dominique Strauss-Kahn, have found their lives ripped apart and turned upside down.

Similarly, “Rape Shield” laws do not prevent cross-examination of a victim on conduct that is legitimately relevant. Several exceptions exist in every jurisdiction, including a catch-all, “in the interests of justice” one in some states allowing almost any type of questioning under certain circumstances. What appropriate Rape Shield laws do is prevent perversely placing the victim on trial for behavior, dress or reputation that don’t speak to whether she consented to a sex act, but that serve to demonize her in a way that makes legally vindicating her less compelling. It’s a nullification tactic: If the victim can be made to look like “she was asking for it,” or that she isn’t of sufficient moral character, then a jury is less likely to convict even if they believe a crime was perpetrated.

Hand in hand with this tactic is Black’s suggestion that intoxication on the part of the accused be viewed the same way as on the part of the victim. Nonsense. Alcohol is a diversion, however unhealthy, for victims. It is a weapon for perpetrators, commonly wielded to reduce resistance, cloud perception, impugn character, and negate suspicion by disguising the crime as a misunderstanding. Perpetrators are not otherwise upstanding citizens possessed by “demon rum.” Alcohol facilitates rape. It does not cause rape.

Even more bizarre is the suggestion that corroboration and some showing of force or a threat be present before a case is filed. These two antiquated rules rested on the utterly inaccurate belief that “real” rape necessarily involves physical injury, the use of weapons, and intuitive reactions on the part of the victim. In fact, most men who rape use only the force necessary to accomplish the act, and do not use weapons or violence. Physical injury is rare. Victims display a wide range of emotional reactions, some of which don’t fit the expectations of people unfamiliar with sexual violence dynamics.

Allowing myths to prevent justice in sexual violence cases can affect more than the interests of the immediate victim. It also allows perpetrators to continue to offend. Recent and replicated research documents that most rapists are serial rapists, whether their MO is to attack strangers or victims they know. When myth-based legal tactics allow a perpetrator to escape justice, there is significant reason to believe he’ll strike again.

Inaccurate perceptions and myths also serve to re-victimize rape survivors in hideous ways. Valid victims have been jailed for filing false reports because authority figures wrongly believed they were lying. These mistakes have done more than unfairly punish victims; in some cases they have allowed rapists to strike again, even to the point of murder. My organization’s Start By Believing campaign in part addresses these miscarriages of justice in an effort to prevent them.

It is fair to ask what is gained for a truth-seeking system of justice by things like the “perp-walk” before cameras. Reforms in how we respond to the unblinking eye of the media cycle where high profile crime is concerned are worth considering. But these reforms should not be conflated with suggestions that seek not to level the playing field, but rather to tilt it further in favor of perpetrators who, in so many ways, elude justice enough already.

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

Developments in the DSK Case: What They Mean And What They Don’t

Roger Canaff — Sat, 02 Jul 2011 06:29:54 +0000

Review the closing arguments of the sex assault cases I prosecuted over the years and here’s the most oft-used quote you’ll find: “We don’t get our victims from Central Casting. We get them from life. Gritty, unrehearsed, unvarnished life.”

I stole this theme from the senior ACA’s in Alexandria, Virginia who trained me. Smart prosecutors have been using it for decades to remind jurors that, indeed, law reflects life and not the other way around. Victims of crime are not perfect, angelic beings whose mistake-free lives are marred by the offense like a wedding gown hit with a tumbling glass of Merlot.

Except that in sexual violence cases, it appears they have to be.

Two things noteworthy have occurred in the DSK case this week: One is the apparent fact that the victim has lied to investigators about her past, the circumstances of her life, and some details of what she did immediately after the incident. The other is that the Manhattan District Attorney’s Office did not oppose DSK’s release from house arrest. Both things signal trouble for the case, meaning whether the elements of a crime can be proven beyond a reasonable doubt in a court of law. But neither has a thing to do with whether an offense actually occurred.

Regardless, many in the media (the Washington Post’s Kathleen Parker among them) are now conflating the undeniable weaknesses in the legal case and the DA’s reaction to them with the sure-fire notion that, in fact, it’s just another false allegation and we all rushed to judgment way too quickly. We must, after all, remember Duke Lacrosse.

Remember Duke Lacrosse: A rallying cry that will do more to shelter rapists for the next generation than any force on earth could hope to accomplish.

I’m not saying there isn’t a chance that the allegations are untrue. I’ve never held that opinion and wouldn’t unless I was an eye-witness to the crime itself. I have said, and still maintain, that there is no compelling reason to disbelieve what the victim has asserted (at its core) and still asserts. This is not simply because of who I am and what I do. It’s because of what I know about the dynamics involved, DSK’s past and well established reputation, and what the victim stood to lose (and now has lost) by reporting in the first place. She’s now fully exposed and will likely endure intense legal scrutiny for the measures she took to get to this country, and then to get by while she’s been here. Such is the continuing tragedy of being poor, displaced and desperate. It doesn’t excuse wrongdoing, but it’s a cold-hearted person indeed who rejects that it at least explains it.

She memorized a cassette tape someone else gave her depicting a gang rape in order to make an application for asylum more attractive. Yes, I imagine she did. People the world over have done far worse for political sanctuary, sometimes for highly sympathetic reasons. She lied on a tax return in order to secure a larger refund. Wrong? Yes. Common? Remarkably. Inexcusable? For a widowed single mother working as a hotel maid in one of the world’s most expensive cities? You decide. The association she might have with drug dealers and money launderers is certainly worse, but again- what does any of it have to do with whether she was actually assaulted?

Of greater concern, of course, are the lies she apparently told about what she did immediately after the incident and before reporting it. Since those actions relate to the investigation, for some they are clear red flags signaling a false report. Except that, in and of themselves, they’re not. Did she clean another room before reporting the assault? Probably- it’s remarkably common for victims of trauma to act in confusing, counter-intuitive ways following the event. Resuming normal, mundane activities is in fact a very common one. But since most people aren’t schooled in the neurobiology of trauma, might a person lie about her reaction, fearing it will be seen as nonsensical and thus indicative of a false complaint? Might a person panic and lie for a better impression?

Hell, yes.

Victims reporting truthful attacks lie all the time about peripheral details. They lie about what they drank, whether they invited an offender into a room, what they wore, who they left with, etc, etc, etc. They do it because they are terrified of being judged, having their complaint disregarded, appearing foolish, or just because they’d prefer to have done something different. And some valid victims are- perish the thought- people who simply often lie, for a million reasons from their circumstances to plain-old low character. It makes their cases harder to prosecute. It does not make them any less valid.

DA Vance has reacted appropriately given his ethical duties and the legal realities facing him. For now at least, his office continues to prosecute its case. Unless and until something else surfaces that I don’t know about, it has good reason to do so. DSK lied also; until the wonder of DNA forced his hand, he denied sexual contact with the victim. As my friend and colleague Jaclyn Friedman points out, this is deeply disturbing since DSK’s wife apparently has no issue with her husband’s penchant for “seduction.” Given this fact and many others, I am not ready to dismiss this allegation or flagellate myself for “rushing to judgment.”

What I will do is lament the ugly confusion so many people are mired in regarding legal difficulties versus actual guilt or innocence. And I’ll lament the increasingly binary distinction we’re making with women and men who report sexual violence. They come forward and dare- and I mean “dare” in every sense of the word- to report what happened to them. They then face, at very best, two fates: They are either perfect and thus (perhaps) supported, or they are revealed to be imperfect, sometimes even deeply flawed, and thus discarded as liars. Never mind that predators sometimes target people with real or perceived imperfections exactly because it renders them even more powerless.

So the message ought to be damn clear for the next hotel maid, accountant, bus driver, surgeon, prostitute, college student, barber, cop, etc, etc, who is sexually attacked: Unless you’re perfect, don’t tell anyone.

Don’t dare.

Hurt and Grace: An Open Letter to An Attorney

Roger Canaff — Tue, 14 Jun 2011 21:37:17 +0000

Mr. Michael Grace, Esq, Attorney at Law

Grace, Tisdale and Clifton, PA

Winston-Salem, North Carolina

Dear Mr. Grace:

‘Hurt,’ the word itself, is ancient, and typical of the blunt, mono-syllabic terms we get from the rough German parentage of English. ‘Grace,’ as you may know, from the Latin “gratia,” is a beautiful word (hence it’s choice as a name for girls) and an even more beautiful concept. These two words are also surnames, one belonging to you and one to the young woman you have viciously smeared of late, Ms. Margaret “Maggie” Hurt.

Maggie, as you know, was a student at Wake Forest University in Winston-Salem and a member of the school’s pep band. She traveled with WFU’s men’s basketball team in 2009 to the NCAA Final Four tournament in Miami, Florida. While on the trip, she reported being sexually assaulted by two men in concert, one who forced her to perform fellatio in a hotel bathroom while the other watched the door. Both were star players on the team. Friends and family eventually convinced her to report the incident to campus police once she was back at school. According to her, they informed her that the best course of action (and her only option) was to pursue an internal, student judicial disciplinary process against the two students. She did so.

In a letter attributed to Maggie Hurt’s mother, she claims the two accused students brought an attorney to the internal disciplinary hearing. If you were the one they brought, I assume you came as an advisor, although student judicial hearing procedures I found don’t seem to allow for accused students to bring non-student advisors to hearings. Ms. Hurt, to my knowledge, had no such legal firepower with her.

When she appeared on the Today show late last month, she recounted an ordeal whereby she, and not your clients, were put on trial, and where the entire process left her not only unvindicated but humiliated. The hearing, predictably, focused on her behavior and not on the behavior of the accused students. Your clients were found not responsible and the matter was dropped. Ms. Hurt then reported the crime officially to the police department in Miami, but the DA’s office there declined to prosecute citing a lack of corroborating evidence.

Nothing I’ve recounted so far is atypical. A woman was, by all appearances, sexually assaulted by star athletes and fellow students. For several time-honored and understandable reasons, she did not immediately report the assault where she was, on a school trip. When she finally did report back at her home campus, the matter was considered and discarded by an internal school disciplinary process most likely unequipped to handle claims of profound sexual abuse and possibly biased in favor of the athletes. The frustrated victim then finally reached out to criminal justice authorities where the crime actually happened, only to find that the matter could not be pursued because so much time had passed and no corroborating evidence was obtainable.

Such is the typical fate of the small fraction of women who actually report sexual violence (particularly in the college context involving athletes) to authorities of any kind.

What’s stunning to me, though, are your comments, Mr. Grace, in response Ms. Hurt’s appearance on the Today show. You are a highly respected defense attorney and have been a member of the North Carolina bar for almost 35 years. Yet you claimed to a major local newspaper last month that Ms. Hurt made “bad judgments” on the night of the incident. Specifically, you informed the media of your belief that she engaged in sex hours before the incident in question with another student band member and talked about it with others. You then clarified that this, of course, “didn’t make her promiscuous.”

Thank you, counselor, for that clarification. But I must ask why you have exhibited, in a professional capacity, such breathtaking and needless cruelty toward the complainant in this case? You know very well that the sexual liaisons you accuse Ms. Hurt of engaging in (assuming they are even true) would likely never have become admissible in any criminal court of law. So why did you choose to smear her with this hearsay two years after you successfully deflected any sanctions against your clients? No one faults you for zealously representing your clients, but why seek to portray her publicly this way on information that is surely hearsay at best?

Further, where exactly do you see the legal relevance of anything you claim about Ms. Hurt? Do you really believe that, even if she did engage in sex with another student hours before the incident in question, that she therefore logically must have consented to your clients’ advances, hours later, that she denies were consensual? Do you really draw a logical link between sexual activity in one place and time (where no complaint of assault was made) and sexual activity in another place and time simply because of what you perceive to be the character of the woman involved? That is remarkably myopic, but believable. Or, are you simply vitiating Maggie Hurt because it somehow continues to be expedient in some effort to paint her publicly as a whore who views a sexual encounter as casually as a trip to a soda machine?

I will no doubt be criticized for taking offense to your comments, assuming you truly believe your clients were wrongly accused. Fair enough; understanding that I know much less about the case than you do (from your clients’ perspective anyway) I believe Maggie Hurt’s allegations, and I believe them for reasons borne of common sense rather than blind zealousness or ardor. I fail to see what Maggie Hart gained by reporting this incident falsely to WFU authorities and then the criminal justice system months later. I detect nothing in her demeanor, her account or her history that would cause me to doubt what she claims to be true.

But what I know or don’t know is somewhat beside the point, sir. I write critically because I saw absolutely nothing in your comments about Maggie Hurt that would ever, in any way, advance a legal theory supporting your clients’ innocence. Instead, I see rank vindictiveness on a scale frankly unbecoming of your status as a litigator and member of the bar, Mr. Grace.

Such is the cosmic irony at play here. Ms. Hurt, in my view, has been quite graceful. You, counselor, have been unduly hurtful. Given your stature, success and outstanding reputation, I’m at a loss as to why.

Respectfully,

Roger Canaff

The Dominique Strauss-Kahn Case: ‘Start By Believing’ Still Makes Sense

Roger Canaff — Tue, 24 May 2011 03:37:42 +0000

A few months ago, I posted on the Start By Believing Campaign being led by an organization I serve (EVAW, Int’l). In response, a less-than-impressed commenter asked me rhetorically “When do you stop believing, Roger?” While I actually answered that in the post itself, a further comment of his illuminated the disconnect between us:

“Does the sympathy I feel for a victim decrease in correlation to the increase of their voluntary consumption of alcohol, flirtation, placing themselves into precarious positions, and style of dress? Yes.”

This statement encapsulates the all too common but remarkably misguided belief that victims, usually but not always women, invite victimization when behaving less than monastically. I guess my question back to this commenter should be “How much, exactly, does your sympathy decrease, and through what factors?” But this of course begs other questions: If she wore a skirt above the knee during a “girl’s night” outing in a big city, does she still merit assistance, treatment and legal vindication, or just medical treatment, but no criminal justice response? How much does each drink she consumes ratchet down her rightful access to our system of justice? At what exact point of flirtation she does she forfeit the right to be supported by the people she reveals the attack to later? In terms of quantification, there must be a calculus for how we measure out sympathy versus scorn when it comes to sexual violence for people who “ask for it.”

Or maybe that attitude is nonsensical and unsupported by anything that relates to the reality of how and why people are sexually assaulted.

I believe that each of us bears some responsibility for our personal safety. I readily shake my head in frustration when I see someone blithely short-cutting alone through a dark alley while wearing earphones, for instance. Yes, there are things we can and should do to reduce our own vulnerability to crime. But first, even when we have acted in a way that (perhaps) made us more of an easy target than we would like, it’s never our fault when someone else chooses to attack and victimize us. Second, the nature of sexual assault, particularly non-stranger sexual assault, is unique. No other crime bears with it the level of scrutiny toward the victim’s actions than does non-stranger sexual assault. No other crime, through myth and mistake, shields the perpetrator as completely as does sexual violence. And when a power differential is introduced into the mix, the odds against the victim go through the roof.

The track record of IMF Director Dominique Strauss-Kahn, punctuated by his latest apparent sexual attack in New York City, is yet another reminder of how myths surrounding sexual violence can protect a powerful man from prosecution for decades (see an excellent and balanced op-ed on this story from my colleagues at Counterquo here). The fact that a relatively powerless (to put it mildly) hotel worker reported him for it is stunning. My guess is Strauss-Kahn was stunned also. I have a strong feeling he’s relied on the relative powerlessness of his victims for years. By many reports, there has never been a shortage of them. Strauss-Kahn hasn’t always chosen hotel maids, but also journalists and other professionals. In particular, his “affair” with Hungarian former IMF economist Piroska Nagy appears to have been consummated by the relentless pressure he put on her while she reported to him.

Ben Stein, a very bright guy who nevertheless seems to be getting more and more bizarre lately, wrote perhaps the most stunningly ignorant piece defending Strauss-Kahn. In it, he wonders aloud how DSK could possibly have gotten away with sexual violence and/or sexual harassment for so long with no one coming forward. Mr. Stein must know precious little about the dynamics between the powerful and the relatively powerless if he has any doubt regarding the feasibility of a track record like DSK’s. Sadly, I think Stein keenly understands how power works and what it can suppress. But like so many others, he has a huge blind spot where sexual violence is concerned, and is willing to entertain any number of alternate theories in order to avoid seeing what is as clear as his own face in a mirror. In the very next paragraph, he suggests that “in life, events tend to follow patterns.” Indeed, Mr. Stein, they do. And the pattern of sexual misconduct, sexual harassment and sexual violence that DSK has been perpetrating is beyond obvious.

The answer is this: Dominique Strauss-Kahn, like most men who commit acts of sexual violence, is a serial predator. It is not at all unusual that his pattern involves violent acts as well as manipulative ones. There are certainly “womanizers” the world over who pursue arguably immoral sexual acts, even by the less uptight standards of the French. But this can be and often is done without creating legal victims (either criminally or civilly) with threats, work-place pressure, intimidation or physical violence. Strauss-Kahn is, by all appearances, someone who has crossed the line between what is despicable and what is actionable or criminal.

Nevertheless, there will never be a shortage of people like Ben Stein who are blind to the reality of sexual violence, or my erstwhile commenter who are more than ready to blame the victims of such violence for being insufficiently vigilant, insufficiently well-behaved, or insufficiently cloistered. It’s not necessarily evil to think this way, but it’s grossly misguided and it’s protecting perpetrators and damming victims. In short, it’s furthering a cycle we desperately need to break.

Classlessness on Campus: No End in Sight

Roger Canaff — Tue, 29 Mar 2011 03:03:57 +0000

Earlier this month, an e-mail surfaced, purportedly from a Kappa Sigma fraternity member to his brothers at the University of Southern California. Before I discuss it, I want to be clear: Anyone, male or female, who is angered and disgusted by this garbage has every right to be. As Margaret Hartmann noted in Jezebel, it demonically covers all the bases: Sexism, racism, objectification of women, and rape. In a word (and here’s a time where English falls short), it’s despicable. Some have suggested that its very over-the-top nature indicates that it’s a hoax, some rival fraternity’s effort at besmirching the chapter’s reputation.

I actually don’t think the chapter was “punked.” I could certainly be wrong, but to me this thing reads authentically and would be more transparently outrageous if it was written as a weapon. As offensive as the message was, in the world in which it was circulated it’s not so shocking as to be obviously planted by one group against another.

I guess the only reason I don’t have a stronger reaction to it is because it’s also so laughably pathetic. The guy who wrote this is many things, but some darkly skilled operator in the world of seduction is not one of them. His salutation to “the distinguished gentlemen” of his fraternity is reminiscent of something a fantasizing, pimply teenager would concoct in an effort to channel Sean Connery as if he headed up some secret society of black-tie wearing spies instead of tending an ant farm in a bedroom festooned with action figures.

He’s also oddly obsessed with the penis itself, and not just in the cultural, archetypical way that many men seem wired to be. Read carefully if you can stand it; he writes like a clever seventh grader and can’t drop an appropriate comma to save his life, but he can lithely romance words to evoke the feel of a male sex organ doing this or that. Of course, if he has a preference for men, I have absolutely no problem with that. But my guess is that he would, and thus might have been betraying a secret that nevertheless scratched its way toward the surface as he typed.

He also evokes Tucker Max, the accurately self-titled “a__hole” who has built a fair amount of name recognition appealing to the lowest common denominator by claiming to live and memorialize the life of a misogynistic scumbag and bathroom humor expert. Max’s star is probably fading, but not because the market for what he peddles is drying up. Rather, poor Tucker is knocking on the door of his late 30’s. The exploits he claims to continue to have are getting less and less believable and more and more objectively pathetic, true or not. He deserves credit for skillful branding. The problem, though, is that the shelf-life for him as the focus of it appears nearly exhausted.

As I’ve noted before, research doesn’t support the idea that an otherwise non-sexually violent man will suddenly become so because of exposure to things like Max’s latest story or this frat boy’s infantile rating system. But language matters, and the danger of this kind of dreck is that it might lead some guys to just shrug when an actual rapist in their midst is springing a trap at a party or similar social situation. If women are truly targets and not people, what’s the harm? Every culture on earth looking to eradicate an enemy begins by dehumanizing that enemy. That’s Tucker Max and this alleged Kappa Sigma author in a nutshell.

I will note, for the sake of my newly found antagonists in the so-called Men’s Rights Movement, that both genders can play the destructive objectification game. This is evidenced by the cleverly titled “F__k List” Powerpoint presentation created by a young woman at Duke last spring. She apparently bedded a baker’s dozen male student athletes, rated them all in excruciating detail, and then prepared a gag thesis with the results. Some of what she notes about these guys, while probably quite true, is also gratuitously cruel. It’s bad, but I find it less offensive than what Max and the Distinguished Gentleman produce, and not just because she targeted men instead of women. Rather, it appears to me that she engaged socio-economically advantaged participants who were likely looking to use her just as crassly as she eventually used them. I don’t think she’s evil, but in combination with the smarmy, pseudo-scientific tone she takes throughout her masterpiece, the picture I get it is of a tiresome adolescent who sees herself as remarkably wittier and more clever than she actually is.

Still, if the idea is not to treat each other like disposable toys, then her prank, Tucker Max’s whole career and the alleged brother’s miserable message should spark outrage and be challenged. To the extent they have been, it’s an appropriate thing. But when one considers that Max has achieved a level of fame and wealth as a result of his trash, or that the Duke student is apparently being offered book and movie deals for hers, the only conclusion one can come to is that there’s still a society out there rewarding this stuff. That won’t change anytime soon.

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.