Can You Picture This?

"Sweat of your body covers me.  Can you my darling, can you picture this?” –PrinceThe reference dates me, but the imagery evoked by the strange, boy genius from Minneapolis when he released “When Doves Cry” in 1984 made an impression on me in a semi-erotic, semi-frightening way long before I ever considered the idea of being a trial attorney.I am often asked how sexual violence cases- particularly involving children- can be proven when no corroborating physical evidence (DNA, injury, etc) exists.  This, after all, is the usual scenario.  For many reasons, perpetrators don’t leave tracks in a form that can be recognized, captured and documented by professionals in lab coats.  The so-called “CSI Effect” is one that prosecutors deal with constantly when seeking to prove sex cases.  In the wake of scientific advances and the dramas that showcase them, jurors expect forensic wizardry to prove cases and provide them with the satisfying, doubt-free means to convict.  Sometimes, science does help.  But most of the time it doesn’t.  Most of the time, giving a jury the wherewithal to raise their hands in unison and convict a person on a sex offense means bringing the facts- the second by second, anatomical facts of the act- home to them in a way they simply can’t deny.  It is scary, painful and exhausting, particularly for the victim in the case who must provide the details not in the privacy of a counseling session or a loved one’s arms, but from a cold witness chair in a court of law.  Infusing the victim with the strength and confidence to provide that detail is among the most difficult tasks a prosecutor can aspire to.  It is also flatly necessary almost all of the time.Can you picture this? That’s the question each and every one of the jurors must be able to answer ‘yes’ to when a SVU prosecutor is seeking the venerable standard of proof beyond a reasonable doubt.  The experience must be made penetratingly real for jurors, most of whom by design don’t have personal experience with sexual violence (those who do are often excused for potential bias).  Colleagues of mine refer to it as “recreating the reality of the crime.”  It means taking the jurors with you to experience what the victim experienced, and in as much detail as she can provide.  In short, sensory detail is everything.Dig if you will, dream if you can.Children, even more than adults, are masters of bringing forward imagery from salient events in their lives.  It might be the product of a relatively uncluttered mind and it’s probably related to a simple lack of guile, but children can tell you in plain terms, if you know how to talk to them, exactly what they felt before, during and after an act of abuse.  Most children who are victims of sexual abuse hear it coming; it is heartbreaking but very true.  A child I worked with in Alexandria was abused for years by her biological father and could discern the footfalls of everyone in her household in the hallway outside of her bedroom. When her father approached, with his particular rhythm and weight on the hardwood, her heart would race and she would ball up into a fetal position, hopeful that he’d see her deep in sleep and move on.  She could describe with artistic clarity the honey-yellow sliver of light that widened over her as the bedroom door opened, and then the shadow of the man obliterating it as he entered and shut it behind him.Smell, though, is the most compelling sensory detail of all.  I don’t know where in the long evolutionary path our sense of smell and our memories are connected, but that connection is fast and direct.  Think about it- what else brings you immediately back to a first kiss, a previous fall, an illness, a vacation, whatever- than the whiff of something you encountered then?  Smell is a hair-trigger on memory, and bringing it out in the direct examination of a victim of sexual abuse is one of the most powerful tools we can wield to make the event real for the men and women who must decide the case.  The smell of skin, sweat, beer breath, wet leaves, musty blankets; all are remarkably valuable in compelling belief from jurors.  When fantasy or malevolent fabrication are the defense, it is the concrete details of what the victim experienced that belie the claims of falsity and drive home the reality.In victim-centered prosecution, as all good prosecution is, this process is not an easy one to embark on.  That’s one of the reasons why prosecuting sex crimes is such a discrete skill within the profession.  Only when a survivor of sexual abuse is treated with dignity, close attention, respect and skill will the needed detail flow effectively.  This requires patience, listening skills, compassion, and ideally the help of victim advocates who help to bridge the gap with particularized insights we as ADA’s often miss.  To my victim/survivors, both child and adult, I would carefully explain why I was asking what I was asking, and what I knew the value of it would be.  “If I’m going to ask you to do this,” I’d say to them, referring to the process of testifying and enduring cross-examination, “then I’m going to ask you to go all the way with me, because that’s the best chance we have at making it worthwhile.  I’ll be there every step of the way.”The team approach is always best; I won no cases on my own.   Involved, compassionate detectives also established their own healing relationships with victims in most cases and helped me to reach them as we proceeded to trial.  In the best circumstances we worked as a close-knit team of professionals, usually anchored by the advocate who worked closest with the victim.   It was then that justice, though not ensured, was possible.  It was then I felt most alive as a prosecutor; then that I was most in tune with what I was put on earth to do.  This is what it sounds like.It’s a blessing, but one that is the product of a larger, darker curse.  And I struggle with that dichotomy to this day.