Category Archives: Sexual Assault

For Rebirth in April: Sexual Assault Awareness Month

Many thanks to the Huffington Post Impact section for including me in an important series of testimonials and blog posts on sexual violence as we observe Sexual Assault Awareness Month.

One of the best ways you can discover how to make a difference (this month and beyond) is to visit www.startbybelieving.org. There are far more survivors of sexual violence than you’re aware of- the same is true for all of us. You are potential responder, as we all are. Please- respond gently.

Worth Knowing in the Dylan Farrow Case: The Actual Risk of Suggestibility With Children

Tom Lyon, A law professor at the University of Southern California, has a remarkably valuable dual background when it comes to legal child protection: He’s both an attorney and a psychologist. Among the most influential contributions he’s made is this article, plainly titled “Let’s Not Exaggerate the Suggestibility of Children.”

In a child sexual abuse case, suggesting the complainant was either coached to adopt fantasy as reality, or simply did so out of confusion between the two, is a popular defense tactic. It’s particularly attractive because it doesn’t involve judging the victim or accusing her of lying.  She can be viewed as, in a sense, as much a victim as the state is claiming, but in an entirely different way.

This has, not surprisingly, been suggested over and over again regarding the allegations made by Dylan Farrow, adopted daughter of Woody Allen. Countless observers, and indeed Allen himself, have suggested that Dylan is not a devious liar, but instead a sad pawn, indoctrinated to believe a false memory in the context of a vicious divorce and custody battle.

For this reason, it’s important to understand what respected research has to say on the subject of- in fact- how suggestible children are. I’d encourage you to read the article itself if you’re interested; it’s written for a general audience and not dense or jargon-filled. But in a nutshell, here’s what the research reveals:

1. Very young children (3 and 4, which is about as young as a child can be forensically interviewed except in exceptional circumstances) can be led to adopt false memories or incorrect versions of events. But this only occurs after extreme efforts such as a very long passage of time between the actual event and the interviews, and repeated interviews over time with constant introduction of false memories. And even with these efforts, a majority of these same, very young children will maintain the actual version of events and resist efforts to conflate fantasy and reality.

2. The danger of children conflating fantasy and reality drops off sharply at around 5 or 6 years of age.

3. By the age of 10, children meeting normal developmental milestones are no more susceptible to adopting false memories than adults.

Even more interesting: The first research done on children and susceptibility (often called the “first wave”) was done by respected psychologists, but also child protection advocates and researchers who believed children were not nearly as susceptible as popular culture largely accepted. The so-called “second wave” research was conducted by equally respected psychologists who thought the first-wave researchers were being too rosy in their assessments and set out to demonstrate that children can be made to adopt incorrect or even wholly false versions of events if efforts are strong enough. They succeeded, but generally with extremely young children and through efforts that are virtually unheard of in child abuse cases. 

The bottom line is that yes, mostly toddler-aged children can be led to adopt false memories with repeated, methodical, and highly suggestive attempts to confuse them after a considerable amount of time has passed between the event and the repeated interviews. But even with these tactics, a majority of children will still maintain a a correct version of events.

Dylan Farrow was seven when she allegedly endured what she clearly describes now, at 28, as sexual abuse at the hands of Woody Allen. Describing her as a liar and a willful tool of her embittered mother even after 21 years is arguable, as it always will be. Anyone can lie, and some can lie very convincingly.

But claiming that she was simply, easily and permanently led to create a false memory- at the level of detail she now relates- is a claim utterly unsupported by the very best research on the subject, about half of it conducted by skeptical researchers suspicious of children’s abilities.

Those who believe Allen is innocent may be right; I will never know and neither will they. But neither they nor Allen himself have a right to claim that Dylan was easily confused and now sadly tied to that confusion. To believe Allen is innocent is, in all likelihood, to reject the detailed account Dylan has given, and to reject her as a liar; the worst kind.

Period.

 

 

The Next Challenge for Religion: Accept Mental Illness and Embrace the Sick; Don’t Shun Them

Soldier w folded flagOn Veteran’s Day last month, Televangelist Kenneth Copeland insisted that American veterans returning from combat need not suffer from Post Traumatic Stress Disorder (PTSD), mostly because they were killing in the name of God and would therefore remain somehow Biblically “blameless” and thus emotionally unharmed.

The comments were moronic, and in fairness intensely criticized by heavily conservative religious groups including the Southern Baptist Convention. But Copeland’s words shouldn’t just be written off as an isolated and ignorant rant. There is reason to believe that many religious individuals- particularly ones with a “just world” view and a belief in an omnipotent if often inscrutable God- tend to want to explain away mental illness in terms of a spiritual failure or a demonic force.

Historically, this should come as no surprise. The physically disabled, disfigured and diseased were for millennia made to feel somehow responsible for their predicaments and admonished to either beg forgiveness or somehow pray harder. There has long been an irksome internal conflict presented to those who believe in an all powerful God Who would yet allow disease and disability to stalk His creatures. Certainly not all religious thinkers over the centuries wrote off these maladies as the fault of the stricken, but even as religious thought has evolved, the idea that people are somehow responsible for their fate has remained a tempting conclusion for those who have a difficult time with how God appears to work in the world.  It is also, sadly, a common, defensive strategy imposed by the lucky to distance themselves from the unlucky. Ask the legions of sexual violence survivors who have borne blame in exactly that way.

Where somatic disease is concerned, though, to a large extent, medical science, common sense and better standards of human decency have led most religious away from blaming and isolating the physically ill.

But we need to ask ourselves very frankly if the same thing is true when it comes to mental diseases and disorders. Prayer may no be longer be the sole remedy suggested by a deeply religious person for an inflamed appendix or a broken bone. Yet how often is it still being suggested confidently as the only necessary answer to chemical depression, organic mental illness, and yes- Post Traumatic Stress Disorder?

Proposed Changes to Military Preliminary Hearings: Reasonable, Easily Implemented, and Sorely Needed

While I believe Congress should pass the Military Justice Improvement Act, there’s a far more easily implemented change being urged on the President that should meet little resistance. But even it is considered “radical” in some military circles. Recently, a Navy Times article focused on proposed changes to Article 32 hearings, which under the Uniform Code of Military Justice operate like preliminary hearings in civilian systems. The “32,” as JAGs typically refer to it, is a less formal hearing where evidence is presented to a neutral investigating officer. That officer then makes a recommendation about the case to the Convening Authority, that is, a commander (usually a general officer) who then makes the final decision as to whether the case is “referred” for court martial.

The changes- implementable by the President- are being proposed specifically for the enhanced protection of complainants in sexual assault cases; the need for them became apparent to reformers particularly after the exhausting, multi-day examination of a Naval Academy midshipman involved in a rape case against three classmates late this summer. The changes are sorely needed, in least in terms of how Article 32 hearings often play out in sexual violence cases, and they are eminently reasonable. 

Yet the language used in the article is perhaps a measure of how concerning any change to the military justice system is to insiders. The reporter describes the proposal as a “major reform” and a “radical overhaul” of the process. It is neither.

The officer who presides over the Article 32 hearing listens to evidence, prepares a summary of the testimony, and gives recommendations for disposition to the Convening Authority. At present, there is no requirement that the investigating officer in an Article 32 hearing be a military judge. Or a JAG. Or someone with any legal training at all. The I.O. can be simply another officer uninvolved with the case, meaning a company commander in an artillery brigade, a signal corps officer, or one of any other specialty.

For many UCMJ offenses,  this is not a matter of concern. The idea of the Article 32 hearing is to allow for a neutral party in the officer corps to consider the matter before a commander at a much higher level considers whether to convene a court martial around it. That officer doesn’t have to be legally trained, in many cases, to competently consider facts and listen to witnesses.

But sexual assault cases are unique and difficult to adjudicate fairly. This is particularly true when they involve (as they almost always do) circumstances like parties known to each other, alcohol consumption, or counter-intuitive behavior like delayed reporting or post-assault communication. Aggressive defense attorneys, bound by ethics to defend their clients zealously, can and do sometimes take advantage of both the relative informal setting and legal inexperience of the I.O. to ask questions of complainants that would not be permissible in a court martial.

In the extreme, this can amount to a strategy of harassment in hopes of improperly discouraging a victim from continuing with a prosecution. Certainly not all defense attorneys plan this kind of legal attack, but without an adjudicator that is familiar with the limits of the law, aggressive and improper questioning can go unchecked even when prosecutors object. I.O.s can seek legal assistance during an investigation, but they don’t have to. Further, defense attorneys may actually outrank both the prosecutor and the I.O, adding a further complicating dynamic. Senator Boxer and co-sponsors (Senator Blumenthal and Congresswoman Speier) are asking the President to formalize the Article 32 process so it mirrors more closely preliminary hearings in Federal courts. This is not too much to ask.

I’ve been told by JAG friends in other services that military judges are regularly utilized to oversee Article 32 hearings. My observation of the Army process though, was much different. I personally never saw a military judge assigned to an Article 32 hearing, and knew of only one or two cases when a JAG presided over one.

Military-wide, the process should be tightened to guarantee that justice for both parties is best approached, and in exactly the way that American criminal procedure provides: By guaranteeing that legally trained professionals who know the rules will also enforce them.