Category Archives: Sexual Assault

Buzzfeed on Dr. Kim Fromme: Blackout, Rape, & Common Sense

Katie Baker’s Buzzfeed article from August 7th showcased Dr. Kim Fromme, a clinical psychologist at UT Austin. Fromme has become a sought-after defense expert on alcohol consumption and its relationship to consent in sexual assault cases. This also makes her a flashpoint in an ongoing culture war. Sometimes, this is inevitable, and even desirable. Things like DNA analysis and cross-racial identification studies have made crucial differences in criminal cases, and usually they were initiated by outsiders unafraid to challenge norms for the sake of justice.

But Fromme’s views- at least on the physical phenomenon of “blackout”- aren’t controversial to begin with. More importantly, though, the relevance of her expertise to the reality of sexual assault and how it should be responded to is grossly over-stated.

Fromme’s willingness to testify about blackouts is not an emerging, maverick stance. Blackouts are commonly understood, particularly by toxicologists, the hard-science experts who actually study the physiological effects of toxins on the body. They’re also understood by well-informed prosecutors who handle alcohol-facilitated sexual assault cases. Yes, blackouts can interrupt memory formation, and they occur most often with rapid consumption of alcohol over a short period of time. Yes, women seem more susceptible than men, in general. Yes, a person in a blackout state might appear lucid and make decisions that appear to be informed, but not remember those decisions later. This is established science, period.

Without a doubt, this science does sometimes create a problem for a prosecutor seeking to prove that a predatory person sexually touched or penetrated a victim too intoxicated to give meaningful consent. There are situations where a person consents to sex and then doesn’t remember doing so. So it follows that, albeit very rarely, the person may believe she or he was sexually assaulted, and report the contact as rape. There isn’t a “silver bullet” answer to a claim that the alleged victim consented during a blackout and honestly doesn’t remember it. And frankly, there shouldn’t be. If the defense can establish that a blackout caused unremembered consent, then so be it. Whether the defense should or will succeed is a complicated trial question; there are aspects of the actual, physical phenomenon of blackout that can be understood and argued. The claim of “she [or he] just doesn’t remember consenting” can often be refuted depending on the circumstances and evidence.

But what’s far more important is the hard reality that the vast majority of women and men who regain consciousness after any sexual encounter do not assume, let alone assert, they were raped to begin with.

This is the most troubling aspect of Fromme’s mini-celebrity in the context of sexual assault. Fromme herself is problematic in that she appears to be yet another “expert” who (at least in part) blames alcohol consumption and “risky behavior” for rape instead of rapists themselves. She shouldn’t be demonized (at all), and certainly not for believing that binge drinking can increase the risk of sexual assault. Without a doubt, predators use alcohol to destabilize and disempower victims. Alcohol as a weapon needs to be reckoned with. Still, controlling alcohol use is not the answer to addressing predatory behavior, which is behind sexual assault.

But even worse is assuming that any use of alcohol by anyone in a sexual situation either 1) negates consent altogether or 2) gives rise to claims of rape in any more than a tiny percentage of cases. Drunk people have and will continue to have sex, largely because alcohol lowers inhibitions and allows them to act on impulse and desire. This might be unhealthy or immoral depending one’s point of view, but it’s not criminal.

But again- almost no one is claiming it is.

In fact, the opposite continues to be true: The great majority of women and men who are clearly sexually assaulted- in any context- blame themselves and tell no one, least of all law enforcement. This is especially true where drinking is concerned, since voluntary alcohol consumption fuels guilt and self-blame on the part of the victim (as an aside, this is exactly what Fromme’s “risky behavior” focus drives home). So the idea that blackouts are creating a flood of mistaken victims, willing to cry rape at the slightest fuzzy memory, thereby regularly threatening the freedom of the wrongly accused, is utter nonsense.

Blackouts are a fact, and a rare but occasional issue in sexual assault cases. Mistaken cries of rape- however imagined by men’s rights groups or media sources- are rarer still.

To Al Lord: Listen to the PennState Community. Sit down. Shut Up.

Be it blessing or curse, our hyper-connected world allows formerly obscure persons to make sudden and universally recognized asses of themselves. Enter Albert Lord, a member of the Board of Trustees for Penn State University. His comments about Jerry Sandusky’s victims, rightly called out by the website Onward State, were despicable, as was Lord’s pathetic attempt to clarify them when given a chance to recant. Driving Lord’s apparent determination to make himself a repugnant and deranged sounding public fool is his fulminating defense of Graham Spanier, the former president of PSU, recently convicted for child endangerment.

Spanier is a remarkable immigrant success story, a survivor of physical child abuse himself,  and a brilliant man. But he was successfully prosecuted for child endangerment because that’s exactly what he did. The Pennsylvania Attorney General’s case was carefully crafted to track a simple statute and it did so with precision.

Spanier was shown to have colluded- there is no other word for it- with two truly odious individuals, former Assistant Vice-President Gary Schultz and former Athletic Director Tim Curley. All were personally knowledgeable of suspected child victimization by Sandusky in 1998. Curley and Schultz were then faced with an eyewitness account of child rape by then grad- student Mike McQueary in 2001. Their response- the one they personally involved Spanier in- was to abandon an earlier plan to report Sandusky to authorities. Instead, they “reported” him to the charity he created, Second Mile, and told him not to bring children into PSU facilities. You can let that sink in, but it got worse, eight years and several victims later, when Curley and Schultz perjured themselves by telling risible lies to a Grand Jury about what McQueary told them.

The same investigative Grand Jury lied to by Curley and Schultz recommended perjury charges against Spanier as well. These charges might have gone forward on all three had the testimony of Cynthia Baldwin, a former attorney for PSU, not been ruled inadmissible due to a legal technicality. In that testimony, Baldwin excoriated Spanier, calling him a dishonest man who lied to her about what he knew and when he knew it. Along with Schultz and Curley, Spanier may have stonewalled a subpoena request from that Grand Jury for 16 months.

Spanier has repeatedly painted himself as attenuated from the obvious perfidy of Curley and Schultz, a stressed-out administrator facing multiple crises and perhaps making a regrettable call with little information.

This is common claptrap.

But to pretend that it has any merit whatsoever is not only insulting but downright dangerous. I say dangerous because, if men like Spanier, or Curley and Schultz- who in my mind continued to perjure themselves in Spanier’s trial- are allowed to create a shred of doubt in the minds of any of us about the indefensibility of their actions, then the occurrence of another gross institutional failure and the destruction of innocent lives is that much more likely.

The callow parsing of what words were used by whom, batted between these three men (and also Joe Paterno himself) must find no purchase. Did they know the full scope of Jerry Sandusky’s sophistication as a predator and the depth of what he was doing? No, and it doesn’t matter. What they knew, first about the 1998 case and then from McQueary, clearly demanded a report to authorities trained and tasked with investigating child abuse. The deliberate choice all three men made to abandon a simple plan to refer a possibly dangerous man to civil authorities was preposterous, wanton and immoral. It was also illegal.

Among the more ridiculous excuses they’ve made through lawyers is how careful they felt they had to be because of how loved and respected Sandusky was. Actually, Graham, Gary and Tim, Sandusky’s stature is exactly why you needed to act with more vigilance. A report to the Department of Public Welfare for an appropriate investigation would not have meant abandoning or betraying Sandusky. It would have been the right thing to do, and also the only lawful thing. Spanier is perhaps less morally guilty than the lying scum he colluded with for the sake of a football program. But he is equally criminally guilty, and his guilt has been proven beyond a reasonable doubt.

The best thing Al Lord can do in the wake of that is to keep his vile mouth shut. I tend to think the vast majority of the Penn State community, valiantly facing this failure head-on so it’s not repeated elsewhere, would appreciate that.

For support, information, and to help with regard to the fight against the sexual abuse of boys, please visit www.malesurvivor.org (full disclosure: I serve on its Board of Directors), or www.1in6.org. 

 

Justice and Beauty. A Last, Full Measure

TeresaShe was sharp. She was tough. She was deeply kind.

She was resplendent in red.

She was a loud, happy harmony of Italian-American toughness, soft skin and sweetness, belly laugher and beautiful, dark eyes. She was flirty. She was flinty. She was piercingly honest.

She was uncompromising when it came to the truth. She understood what we generally call evil, but far more than that, she understood that we don’t yet know exactly what evil is. With that blessed and rare knowledge, she knew we had to step lightly.

But still, she knew, we had to step forward.

Teresa Scalzo was the most accomplished and respected legal expert when it came to the prosecution of sexual violence in the U.S. She changed everything; the expertise she developed as a sex crimes prosecutor in her corner of northeastern Pennsylvania became first a national challenge and then a national standard. She came of age in a time when- understandably- some leaders of the anti-sexual violence movement were turning away from prosecution as an answer to sexual violence.

Their objections to what we do were valid, of course. America, as I say increasingly in lectures, and as Teresa knew before me, doesn’t have a criminal justice system. It has a criminal adjudication system. Justice is an ideal, a state of blessed balance in human interaction, a satisfying sense of rightness embedded somehow in our common ancestry. It’s funny, actually; for all of the education and drilling we lawyers put ourselves through, what we end up striving for our entire professional lives is something toddlers grasp as they would a toy key ring. And yet this deeply human, deeply shared sense of simple rightness is also as elusive as a rainbow.

The elusiveness of justice is no more pronounced then where crimes of sexual violence are concerned. The subject itself- sex- is hopelessly tangled in thousands of years of mystery and shame, pleasure and violence, life and death. There has never been a phenomenon so central to human existence and yet so shrouded, so guarded, so punished. The punishers have been- cross culturally- mostly men. For millennia they’ve been simultaneously intoxicated by and terrified of the power of women. It’s been less even about sex than about the female embodiment of it, the women who bled but did not die, who brought forth life from swollen bellies and then fed it from their breasts, these goddesses who could erase the mind of a conqueror with a smile, or a frown. These creatures, the thinking has gone, must be controlled. Demonized. Marginalized. Our desire for them, the thinking has gone, must be projected. Sanitized. Excused.

Teresa understood these dynamics. The ancient ones. The current ones. The fact that they’re all really the same. What she fought for most ardently, though, was the redemption of the only system we have- in the most advanced society in the world- to deal with sexual violence. Teresa fought for the relevance of prosecution to the fight against rape. She did this not because she thought the system was perfect or ever could be; rather, she fought for it because she knew it was all we have. The law, at bottom, is our only living embodiment of the public will. For rape victims, the civilized response is about the system we have: The police, the advocates, the nurses, the prosecutors. Teresa looked at this system, and she knew she could make it better.

She was right.

Our system is far better now then when Teresa Scalzo started to make it better. It has a long way to go, but every step it takes moving forward, it takes with her legacy as its power.

I was in awe of this woman, this goddess, this marvelous mixture of seriousness and red wine hangovers, of wisdom and joy, of scholarship and instinct, of hope and frustration. She taught me everything. She vouched for me as a man in a woman’s world, which was so ironic because we both initially inhabited a man’s world- prosecution- that Teresa nevertheless took over where sexual assault was concerned through will, sincerity and raw skill.

I strove every day to keep in step with her, always behind but always inspired.

And then she died. But not before giving the last, full measure of everything she was- and dear God that was so much- to what we do in the service of the women and men whose lives are torn apart by sexual violence. What we do now, we do largely in her honor, and through her legacy.

I know now in middle age what an elusive ideal justice is, and I am sadder for it. But I also know what beauty is. I know how the shadows of existence are shot through with it, and how it expresses itself to us, as I believe God does.

T, you were beautiful. Thank you.

 

 

 

 

 

 

 

 

 

 

Dan and Brock Turner, and the Lie of Alcohol, Promiscuity and Victim Blaming

A portion of Dan Turner’s letter to his son Brock’s sentencing judge was released last week after Turner, 20, was sentenced for three felony counts of sexual assault. He received three years probation and only six months in jail, a risibly light punishment. Turner was actually caught in the act of sexually penetrating the victim; two graduate students came upon him while he was top of her, clearly unresponsive. Police officers arriving on the scene found her similarly helpless. Unlike most non-stranger sexual assaults, particularly ones involving young people and alcohol, Turner’s guilt was demonstrated with relative ease. He committed a horrific crime, period. He truncated and permanently altered the life of another human being, period.

A father can be forgiven for begging leniency from a court of law when his son has committed a terrible crime. Dan Turner should not be excoriated simply for the effort of attempting to put his son’s entire life in context, or for bemoaning what he thinks the effects of incarceration might have on him. His message, though, now public, must be exposed for what it is: A dangerous diversion of blame for what his son did.

Turner’s obvious gaffe. describing his son’s crimes as “20 minutes of action,” was probably no more than a terrible choice of words. I doubt Turner meant “action” in the now antiquated sense of “getting some action” or anything similar. I’ve seen social media posts that highlight this phrase as evidence of the man’s callousness or worse, but I don’t think that bears out.

What is of greater concern, and what must be debunked to the wider world, is his attempt to shift the blame for this crime from his son to what he describes as “the dangers of alcohol consumption and sexual promiscuity.” And beyond this, his belief that Brock should pay society back by educating other college students in an effort to “break the cycle of binge drinking and its unfortunate consequences.”

This is as patently absurd as it is insulting and dangerous. Brock Turner, whatever else he’s capable of or has achieved, committed a predatory act of sexual violence on January 18, 2015. Not knowing the details of the case, I can’t say for sure if he identified his victim earlier in the evening and took manipulative steps to isolate her, or if he formed his intent upon realizing he had control of her in an unresponsive state. Either way, his actions were predatory. His actions were volitional. He made a choice. That choice has devastated the life of a young woman who- with effort and support- will recover fully, but who will never, ever look at her life the same way again.

So let’s be crystal clear: It is both incorrect and dangerously misleading to claim that the very separate issues of “alcohol consumption and sexual promiscuity” somehow combine to draw otherwise non-sexually violent men into a vortex of rape they cannot be held completely responsible for. Both excessive alcohol consumption and sexual promiscuity can be objectively unhealthy.

But neither of these things have anything to do with sexual violence, other than to provide the attacker with three weapons:

  1. A pathway to rape through the weakening of the reflexes, protective judgment and instincts of the victim and others who might protect her (or him).
  1. A brilliant cover for the tracks of the attacker’s actions, due to the compromised memory, credibility and even moral stature of the victim and the relevant witnesses.
  1. A perfect excuse in allowing alcohol, a substance that unleashes desire rather than creating it, to nevertheless take the blame for the attacker’s choices, and to provide a convenient way to blame the victim as well, complicit for having “gotten herself raped” because of drinking.

I don’t know what Brock Turner plans on doing when he’s completed his tiny stint behind bars. I certainly hope it does not entail speaking to a single college student anywhere about “breaking the cycle of binge drinking and its unfortunate consequences.”

Brock Turner has no right to lecture anyone on anything, let alone something as specious as some sort of cautionary tale to young men about becoming “victims” of alcohol, as if it somehow conspired from a bottle to compel him to disrobe and penetrate a young woman on the cold ground outside of a frat house.

Turner is guilty. Turner and no one and nothing else- certainly not the woman he attacked. Until that fully sinks in, the best anyone can hope for it that Turner keeps quiet.

 

Child Molesting Female Impersonators Are a Myth. Child Molesting Religious Males Are Not

“Perverts” are not coming for your children, disguised as transgendered persons, in your local department store bathroom.

Far more likely- by orders of magnitude in fact- they’re coming for them in your church.

That’s an arguably coarse statement, provocative and doubtlessly offensive to many. It’s also utterly correct. I know because I have prosecuted and/or consulted on cases involving the sexual abuse of children for almost 20 years.

Opponents of Target’s new policy often insist that the issue isn’t hatred or intolerance against transgender persons. They’ll acknowledge, as they must, that no virtually no complaints of transgender persons- or even predatory persons in disguise as one- attacking a child or anyone else in a bathroom have been reported anywhere. No matter. The issue, they insist, is preventative. Allowing people who identify as transgendered into bathrooms other than their assigned gender, the argument goes, will create a floodgate of eager male pedophiles disguising themselves as women in order to gain access to little girls.

Folks, that’s nonsense. It simply isn’t done that way. Child molesters almost always groom, not only children but the families and institutions to which they belong. They enter their victim’s lives as invited guests almost all of the time. They rarely prey on strangers, despite myths to the contrary, and when they do, it’s not through the use of feminine disguise. In fact, most child molesters identify as straight males. Most will not admit to abusing male victims (carrying a stigma of homosexuality or femininity) until threatened with a polygraph. Most identify as masculine, and would not deign to “put on a dress” in order to invade a restroom in search of a little girl. That’s just not what they do. And there’s no reason to do it; they get dozens of victims far more easily and with far less risk in their communities, usually as trusted figures.

Obviously, no one can state with certainty that a child molester (only a subset of whom are pedophiles, by the way), would never seek access to children by exploiting these new policies. Without a doubt, some anecdotal example- however stretched in terms of its actual relevance- will be claimed somewhere in a nation of 300 million.

But the idea that the nation’s male child predators have been waiting with coiled excitement, wigs and lipstick in hand, to invade female restrooms in search of little girls, and that policies like Target’s are going to create a public health crisis of newly endured child abuse, is baseless, plain and simple. It’s frankly silly.

But stoking the fears of parents with this baselessness is not silly. It’s dangerously misleading. The cold fact is that fear- in order to push back against policies like Target’s- is being sold by quite a few people who, to put it bluntly, do have a real problem with the idea of not only transgender people using bathrooms of their identified gender, but also with transgenders themselves. They see them as mentally-ill fetishists and largely immoral creatures. They assume that a rejection of gender norms goes hand-in-hand with sexual crime and abuse. Never mind that transgendered people are largely passive, reliably victimized and abused themselves, and far less likely to hurt anyone than, say, a straight, cisgendered, and religious male, which is how most child molesters describe themselves.

And yes, I said “religious.” That’s because most child molesters- 93% in one study- claim they are religious. My former boss and lifetime mentor, Victor Vieth, probably the most prominent legal child protection professional in the U.S. and beyond, speaks often on this topic as a devout man of faith himself. What he points out, while doing crucial work with other decent people of faith in order to make religious communities safer, is that most child molesters identify or claim to be religious, and then purposely exploit religious environments and the usually decent, trusting and forgiving people within them.

I remain a practicing Roman Catholic and am in no way anti-religion in a general sense. I also understand that a parent can be wary of their own church, mosque or synagogue and still fear for their children in other circumstances. But an uproar about disguised child molesters seeking out little girls in public bathrooms is utterly misplaced, and in many cases disingenuous and cynical. It’s also dangerously misleading, especially by religious people when their own environments are far more dangerous than any department store bathroom.