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?
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.