Yes, an FBI Investigation into a Very Old Sexual Abuse Allegation is Still Worthwhile. This is Why.
Senate Judiciary Committee Chairman Chuck Grassley released a statement last week claiming “no reason for any further delay” regarding a hearing about a sexual assault allegation against Supreme Court nominee Brett Kavanaugh. Says Grassley, “Dr. Ford’s testimony would reflect her personal knowledge and memory of events. Nothing the FBI or any other investigator does would have any bearing on what Dr. Ford tells the committee.” Nothing yet has been said about the second person to make allegations, but it seems apparent that the attitude toward those allegations is the same.
Grassley is dead wrong. I know this because as a career special victims prosecutor I was able to corroborate accounts decades old, frame indictments narrowed to a relevant time period, and develop far more detailed testimony in support of allegations of child and adolescent sexual abuse. But I didn’t do it alone. I was assisted by competent and compassionate detectives and victim-witness specialists, men and women who assisted me in helping victims of sexual abuse become their own most powerful advocates for justice.
Particularly in my early days as a prosecutor in late 1990’s Alexandria, Virginia, we were ahead of our time. But the measures we employed were being developed and practiced elsewhere, and thanks to our collective efforts are becoming standards. The FBI is familiar with them.
What’s known so far about Christine Blasey Ford’s account is that she believes it occurred in the summer of 1982, when she was 15, around the end of her sophomore year at the all-girls Holton-Arms School in Bethesda, Maryland. She recalls that it took place at the home of a friend not far from a familiar country club. The idea that the FBI could not assist Dr. Ford in developing more details about her allegation, including potential other witnesses and a more precise timeframe, is nonsense. I’ve done this myself with the assistance of other professionals many times.
The most pertinent example was a case I handled in the early 2000’s, involving a victim in his 30’s who came forward to report sexual abuse at the hands of a family member in the mid-1970’s. Virginia had no statute of limitations on these crimes, and eventually a partial confession obtained from the defendant allowed the case to be charged. The defendant was convicted of decades old sexual offenses against a minor, but not solely because of the partial confession. In fact, the most powerful evidence came from the victim himself, who testified eloquently and compellingly about what he experienced.
How? Because he worked painstakingly with a marvelous detective who helped him to narrow the indictment period and then to recall crucial elements and facts. They looked through family photos and yearbooks, news clippings and even old weather reports to determine the timeframe in which events of abuse occurred. I was able to bring the case across the finish line. But it was really the detective and the victim who produced, through patience, courage and mutual respect, the details that gave it merit.
It was not a fast process. In order for an investigator to help a victim of a past traumatic event unearth details and provide tools for corroboration, the investigator must employ what’s now commonly known as a “trauma-informed” approach. Among other things, this technique allows victims to feel relaxed, protected and not judged as they recollect and relate. Ford has stated she was literally afraid for her life, and that the attack haunted her well into later life. There is no doubt in my mind that a trauma-informed investigation, using other materials from her life at that time, would yield information that would either further support or perhaps even cast doubt on her allegation.
As Linda Fairstein, the legendary sex crimes prosecutor and former chief of the Manhattan District Attorney’s Office’s Sex Crimes Bureau stated to the Washington Post earlier this week, “I stand to believe there’s no such thing as a ‘he-said-she-said’ case.” Fairstein and I differ on some methods of investigation, but we agree on this point. My mentor in child abuse prosecution, Victor Vieth of the National Child Protection Training Center, puts it similarly: There is always corroboration if responders are willing to think creatively and search for it. In this crucial case, the FBI should be tasked to do exactly that.
Going Where the Children Are: Predators and the Failure of the Federal Government to Protect Immigrant Children from Them
Senator Jeff Sessions On Sexual Violence
I have prosecuted sexual violence in two states. I've trained and consulted for the United States military and in 49 US jurisdictions. I'm not aware of a single one where grabbing a person's genitals or genital area would not constitute a crime of sexual assault.But then again, I'm not in the United States Senate.
Lt. Gov. Ron Ramsey and the Savior Gun: The Adolescent Nonsense That Passes For Leadership In Tennessee
Finally, someone has an answer!It's the Lieutenant Governor of Tennessee, and it's the Savior Gun."I have always believed that it is better to have a gun and not need it than to need a gun and not have it."That's as far as the "thinking" goes for this man who currently holds high office in an American state. Having a firearm, at all times, in all circumstances, at the ready and fully loaded, is how Americans need to start living. All the time. Everywhere. Church. School. McDonalds. The supermarket. Back to School Night. That's the only answer: A perpetual state of itchy readiness for gun violence.Music this is, surely, to the NRA and it's sugar-daddy the gun manufacturing industry. But back to Ron and his admonition. It appears to go something like this: All of you (you who are Christians anyway, and not anyone whose religion I might not trust):Your new savior is a firearm. Let's call it the Savior Gun. Having a Savior Gun and being a "good guy" is all that's needed in Ron's brave new world. Because after all:1. The aim of the shooter behind the Savior Gun will always be perfect and true, despite shock, stress, ricochet, the natural non-preparedness of simply living one's life outside of a perpetual combat zone, the shooter not being a professional or a marksman, the chance of slipping on a pickle chip, and an infinite number of other factors. In Ron's world, the "good guy" will always hit the "bad guy" and save the day, period. There's no reason to fear that a roomful of panicked shooters will hit each other, fleeing bystanders, or actual, professional first responders. There's also no need to worry about whether actual good guys, the professional responders themselves, will know not to shoot the now pistol wielding "good guy," as his intentions will always, somehow, be crystal clear and apparent during the melee.2. The Savior Gun will never accidentally discharge and kill or maim the "good guy," a classmate, bus rider, dinner companion, toddler, or anyone else.3. The Savior Gun will never be stolen and misused, or fall into the hands of a child.4. The Savior Gun will never be used in a suicide, a heated argument, or a misunderstanding, given the ease of which firearms make death something that can be dealt from a sanitized distance as an extension of one's fist.No, sir. Where the Savior Gun is concerned, all of these inevitable and oft-seen outcomes are either impossible or unworthy of consideration for Ron. Why? I guess he believes that, as a Savior Gun purchased by a Christian, it will itself surely anthropomorphize and adopt Ron's benevolent Christian principles.Adults, many of them police officers, understand better than Ron that guns are swords, not shields. Adults understand that the presence of firearms almost always means more death, not less.Adults understand that the inconvenient realities around the actual nature of firearms, particularly when coupled with human frailty, tend to complicate attractive but dangerous teenage boy fantasies.Adults understand that the reality of how firearms will likely be used in high-stress situations by non-professionals must temper the understandable but grossly unrealistic urge to view them as infallible protecters of innocence and virtue.Adults see the necessity of firearms for qualified individuals and understand the importance of allowing individuals to defend themselves and their families appropriately- sometimes even with firearms. But adults also appreciate the grave necessity to control the accessibility to guns, and also the public carrying of them.Adults know these things because they're, well, adults.I don't what Ron Ramsey is.
Male Child Sexual Abuse, and What Your US Army is Capable Of in Tolerating It: A Call for Outrage
As an Army civilian, I learned first hand that institution’s ability to distort and betray. After pushing back against two mid-level officers, one a pathologically bad manager and the other a manipulative egomaniac, I found myself marginalized, humiliated, and eventually professionally hunted. My record, integrity and work-product spoke for themselves then and now; if they saw me as a bad fit (particularly for things like insisting on more attention to same-sex sexual assault, a suggestion they ignored), they could have told me so. Instead, I was pushed out mostly on lies and laughable complaints. Eventually I learned to keep my head down and to let go of my vision for the job. I was able to leave on my own with official thanks a few months later. I also made lifelong friends and encountered largely honorable and decent people in the service of the Army. Still, it was demoralizing and sobering to see how far an institution can go in the wrong direction, even when most individual players want to do the right thing.So I cannot imagine, knowing how much more he has invested as an actual warrior rather than a civilian lawyer, the sense of betrayal Sergeant First Class Charles Martland must be feeling. Martland is a decorated Special Forces member who the Army is trying to discharge. In his corner, among most of the people who supervised or served with Martland, is California Congressmen Duncan Hunter.Martland's career ending offense? In 2011, Martland and an officer, Dan Quinn, confronted and eventually assaulted an American-trained, installed, and funded local Afghan commander named Abdul Rahman. Quinn and Martland had received an in-person plea from the mother of boy who Rahman chained to a bed as a sex slave. The mother, beaten by Rahman for trying to rescue her son, brought him, limping, to the Americans who put Rahman in place after pushing out the Taliban. When Quinn and Martland confronted Rahman, he casually admitted to the allegations and laughed when it was suggested that he carry himself to higher standards. Then he got hit, although his injuries were reported as very minor.It’s true that, in war, unholy alliances and difficult decisions must be made. Service members cannot generally react against orders even in ways their consciences dictate. Hence, Martland was punished at the time and has acknowledged the inappropriateness of his actions. Nevertheless, the Army wants him out. Never mind that, like the vast majority of our servicemen and women, Martland and Quinn were justifiably infuriated at both the acts of Rahman and his insouciant response. The Army, the one you pay a substantial amount of a $500 billion annual defense budget toward, is not above ending the career of a decorated, warrior who reacted the way every single instinct his cultural and American military values would have directed him to.The issue goes far deeper, though, then just a moral balancing test. Forcing soldiers to powerlessly observe (and thus vicariously experience) the sexual abuse of children- within earshot in some cases- is a unique form of psychological torture in and of itself.The sexual abuse of boys by men in Afghanistan, particularly powerful men, is time-honored and brutally well documented. Our military tolerates this so as not to stress relations with militants it places in positions of power, armed to the teeth, in lieu of Taliban extremists. Not only is this practice ordered to go unanswered in our service people’s midst, but by eyewitness accounts it has actually been tolerated inside of military facilities.Think about that.American service people, some of whom have heard the screams of children being sexually tortured in the next room, have had to make gut wrenching choices, understanding the realities on the ground, about responding to the cries of these children. A few of them, driven by the kind of morality, decency and sense of justice we pride ourselves in cultivating in them, have bravely made choices to stop it.Your Army is ready to marginalize them and kick them out for it.This is happening even as your Army not only tolerates child sexual abuse in Afghanistan, but also orders its soldiers, against everything they believe in, to literally and personally fortify and arm abusers in a way that allows them access to more victims. And, your Army is doing this in the face of an already alarming rate of suicide among service members.Your Army, its commanders and its Commanders-in-Chief, present and past, need to account for it to you.
As the Flag Comes Down: God Bless South Carolina, and Dylann, Behold Your Work
You know, Dylann, it's funny.No, not you.There nothing funny about the lives you shattered in a timeless, magnificent city and in an historical and magnificent church. There’s nothing to smile at with regard to the good and decent people you slaughtered, people who even you hesitated before murdering because they were so friendly to you. You’ll never know that level of friendliness or open-heartedness again, and that is just.But that fact, like you, isn't funny.But here’s the thing: I think God is funny, in all of His/Her frustrating inscrutability. Or maybe it’s just the Universe. Or karma.Whatever it is, It’s laughing at you, and so am I.In 1998, a national prosecutor training center opened in Columbia, South Carolina, the capital of the state you tried (and failed) to soil. Over the years it became almost a second home for me as a consultant and trainer of prosecutors nationwide. The University of South Carolina campus (where the building stands) and the city beyond it provided a wonderful training and networking venue for thousands of DA’s from every state and territory. I was proud of the National Advocacy Center. I was proud of South Carolina and Columbia for hosting us. In the typical spirit of Southern hospitality, black folks, white folks and pretty much everyone else we encountered in the restaurants, shops and bars (we’re DA’s, Dylann, we love and need bars), were wonderful to us.The only thing I thought was unfortunate was the reality of a confederate battle flag that whipped over the state capital building itself until 2000, while hundreds of federal and state prosecutors, many of them non-white and some from as far away as Guam, were shuttled past it from the airport every week. That got less uncomfortable when that flag was moved to the grounds of the statehouse rather than the dome. But still it remained, a hyper-prominent fixture on public ground.I know it symbolizes "heritage" for many, but really we all knew, both us visiting and, in my experience, most of our hosts in Columbia itself, what it really meant.Especially to people like you.You hid behind words like “heritage” to use that flag as a signal. Unfortunately, the government of South Carolina, moving in slow motion and uncertain patterns as most representative governments do, allowed that hiding to continue even as it unfairly stained both your state and the good people who live there.But now, you, young Dylann, have succeeded in creating a tipping point that would have been unimaginable even five years ago. You've inherited the wind; your act of murder has led to the removal of that flag, leaving it now to the only thing it's good for, which is to commemorate bravery and document history.But far beyond that even, your viciousness has exhumed truths that will now be discussed and eventually accepted even as they were whitewashed and buried before.Truths like, just as an example, the real reason behind the Second Amendment, which we’re now discovering was more about enabling slave patrols to murderously put down efforts at freedom than it was the security of free states. That amendment, after all, in its heretofore traditional interpretations, allowed you to legally possess the gun you used to slaughter people in prayer and fellowship. Maybe that interpretation will continue to hold sway.But now that you’ve foolishly snapped open a valve of righteous anger, long-buried pain and gloriously, tamped-down common sense, who knows?Were it up to me, Dylann (assuming you’re legally sane, factually guilty and found so in a court of law) you would die at the hands of the state in a lethal injection chamber. I still support such an outcome, although with increasing reluctance as I grow older for reasons I won’t describe here.But I also know that my view on the death penalty, as well as on the far, broader notions of Judeo-Christian right and wrong that have underpinned my professional life, are all being challenged. And I have to admit as I fade from relevance that those challenges are not unmerited. In fact I believe they stem from the better angels of our nature.You would know nothing about that. But if you’re lucky, the better angels of our nature will spare you, just as the families of your victims largely forgave you in that remarkable court hearing after your arrest. If you're less lucky, God help you.But either way, I hope you can hear the laughter.
When the Columnist (Kristof) Doesn't Recognize The Wrong Lede
To Nicholas Kristof, columnist, The New York Times:Your May 23, 2015 column was entitled “When the Rapist Doesn’t See It As Rape.”When I saw that you were taking this issue on, my heart soared. I’ve adored you for years. I love your compassion, your courage, your wit, and your willingness to embody my favorite of all journalistic pledges, “to comfort the afflicted and afflict the comfortable.” So criticizing you does not come easily.You wrote a timely, needed column on the phenomenon of non-stranger sexual violence that takes place in every area of society, but has gained attention most prominently within the college environment (mirrored by the military environment and many high school ones as well). But why did you lead (journalistically “lede”) with the story of Brian Banks and Wanetta Gibson, one of the very rare but most bluntly clear examples of rank false reporting seen in recent years?As you note, Gibson not only recanted, but was demonstrated to be lying thanks to a sting video captured by lawyers who were rightfully assisting Banks in uncovering the crime of a baseless lie that appears to have been inspired by Gibson’s mother. Wanetta Gibson, from what is believed, was inspired by her mother to falsify an accusation against Brian Banks so that a payout could be obtained through a civil action against the school district she attended. The Gibsons pocketed 1.5 million dollars in a settlement, and that false accusation cost Banks not only five years in the California state correctional system, but apparently a professional football career as well. Banks has been gracious since his exoneration was, thankfully, made official by the Los Angeles County District Attorneys Office in May of 2012. Were it up to me as a prosecutor, I’d likely have gone after at least Wanetta’s mother (Wanetta was a juvenile at the time of the false allegation) assuming the facts are as they've been presented in the media.But moving on from that, I am at a loss as to why you, in a column that otherwise correctly describes the daunting challenge of responding to sexual violence that is and has always been a sadly regular part of collage life, chose to spend roughly a third of your powerful piece on something that almost never happens.You yourself point out the rarity of false allegations in rape cases. You then correctly spend the rest of the piece on the far more common and present danger to young women (and some men) posed by predatory people on college campuses who get away with rape again and again because of familiarity, culture, and institutional self-protection.Still, you return to the convenient myth of allegations of rape that are the result of sexual encounters that are, “complex, ambiguous, fueled by alcohol, and prone to he-said-she-said uncertainties.”Hogwash, Mr. Kristof.In fact, most rape is predatory in nature; you yourself allude to Dr. David Lisak’s ground breaking research. Worse, most predators, whether articulate enough or not to describe it, are gleefully aware of the alcohol fueled, “he said, she said” patina of doubt that saves them from consequences and that you problematically promote even as you claim to do the opposite.But more importantly, most victims of rape, meaning women and men who have been clearly perpetrated against by any commonly accepted legal description, do exactly what perpetrators hope for and expect: They blame themselves, they fold the experience into their lives, and they move on. The idea that false or "mistaken" claims of sexual assault are anywhere near as a big a problem as sexual assault itself is simply baseless and misleading.I don’t doubt that you believe these things, sir. I only wonder why you structured a column that seems to devalue those far more profound truths in the interest of giving column inches to what is largely a dangerous distraction.
Young White Privilege, a Camera, and an Apparently Good Cop
I teach a sociology class called "Policing and Society" at a state college in Northern New Jersey, not far from where I live in New York City. My class is almost evenly split between white, African-American and Latino students. Some come from the ghettos of Paterson and Camden, some from wealthy Bergen County suburbs. Most want jobs in law enforcement.Not surprisingly, my students have been sharing with me videos of police interactions captured by bystanders or police-issued body and dash cameras all semester long. Most depict suspected misconduct and abuse, but a few portray police men and women doing the right thing under remarkably stressful circumstances.There's one that's apparently gone viral over Facebook (shown here from Youtube) that was brought to my attention earlier this week. We watched it together, all of us, and it sparked a discussion I was grateful to have; it was was probably the most honest and open one we've had all semester around this difficult topic.Very simply, it captures the eviction of a group of young people (and the eventual, lawful arrest of one of them) from an IHOP by a Fort Wayne, Indiana, policeman. By the opinion of most who have viewed it, attempts by the amateur videographer to capture "police brutality" and improper use of force have backfired. The officer involved instead appears remarkably restrained and professional despite behavior that can only be called reprehensible and most certainly criminal.The larger point the video made to me, though, and that my class seemed to agree with (across racial and cultural lines) is this: If you don't believe that young, white kids- from what appear to be at least middle class backgrounds- expect to be treated differently by police and are more emboldened to challenge their authority, you're not living in the real world.Of course, what's depicted is only what was captured in one place on one night. Still, there is the undeniable hint of a microcosm here in terms of what these youth regularly believe is not only survivable, but not even reckless. In some way, in their minds, it's actually appropriate. Don't like what a cop is telling you to do? Scream in his face and dare him to arrest you. Have a friend follow along with a phone camera, demanding explanations from him from a couple of feet away as he tries to do his job in the face of despicable, taunting vulgarity and a repeated refusal to cooperate. Why not? What's the worse that'll happen?Then contrast that with the young, African-American men in the same video, at just before the 1:00 mark, who look on silently and are utterly non-confrontational. There's no evidence they were involved with the offending crowd in any way to begin with, and also none that the responding officer would have treated them any differently. Regardless, whatever their intentions were or their attitudes toward police are, they kept those things to themselves.Why? Because they're not stupid.Neither are my students.
Injecting Reality Into Nonsense: PCAR & the Letourneau/Faulaau Interview
The Pennsylvania Coalition Against Rape has done a great service to sanity in releasing an edited, non-sanitized version of what ABC's press release on Barbara Walters' interview with Mary Letourneau and Villi Faulaau should have looked like from the start.PCAR's unblinking release speaks for itself, but among the idiocies that it should help to contradict is the notion that Letourneau at this point really should be forgiven, since she's been married to Faulaau for 10 years now- a longer period than many marriages in non-criminal circumstances.Here's a thought: Faulaau is likely still in a marriage with Letourneau because he was raped and broken at a remarkably tender age. His bouts with depression and substance are only a part of the testimony to this. His entire life was truncated and derailed to a degree none of us will ever fully know. This was done by Letourneau, willingly and repeatedly, until he was trapped, largely stripped of his identity, and lost.Letourneau destroyed him. The fact that she's "kept" him so far makes her no less evil, destructive, and selfish.
"Couch-Surfing" Teenager Sexually Victimized: Sadly, Not Surprising
I wish I could say I was surprised. In 2013 I wrote a piece on what I believe are the inherent dangers associated with the "couch surfing" phenomenon, and sadly why I do not believe that the organization (Couchsurfing is described as a Certified B Corporation) has sufficient procedures or even warnings in place to prevent the kind of abuse that can occur under its rubric.Next month, an Italian policeman, Dino Maglio, will go on trial for the rape of an Australian woman 16 years-old at the time of the crime when she was staying at his home on a visit to Italy. Her outcry and the resulting case has led other victims of the same man to come forward as well. It seems apparent that Maglio had an effective cover within the couch surfing world as a policeman, among other things.Unfortunately, he also had an effective platform in Couchsurfing itself, and in its (in my estimation) "kind of feel your way" approach to judging the safety of a situation from afar, and then in the moment.I'm still confident that couch surfing is a harmless and indeed quite positive experience for the great majority of those who utilize it. Regardless, one life-changing crime is too many, and it appears that Couchsurfing is still far too vulnerable to infiltration by offenders who probably find it remarkably convenient and victim-rich.In my view, Couchsurfing enthusiasts and the leaders of the organization need to take a hard look at how the safety of a particular situation can be and/or is evaluated by typical users, and how users can better ensure against inevitable abuse.I don't claim to have many answers, but I'll offer this hint: Communication, no matter how robust, with the host, and even face-to-face conversation before unrolling a sleeping bag, will not be enough.
The Rice Videotape: When An Unblinking Eye is Ugly But Necessary
Unmanned, stationary video is a cold observer. It will not blink in disbelief. It will not turn away in horror. It will not cloud over with tears of pure, human empathy. But sometimes it’s the only accurate source for the truth about what individuals are capable of. Not monsters. Not demons. Just people.In 2011, a Texas family court judge was forced to acknowledge the sadistic and brutal beating of his 16 year-old daughter who suffers from cerebral palsy because of a hidden webcam she set up in desperation. In 2013, a 14 year-old French girl compelled an admission of sexual abuse by her father through the same technology. These two children would likely never have been believed were it not for the passive, electronic observer that forced action, justice and- importantly- an acceptance of responsibility from the attackers.Enter Ray and Janay Rice.Ms. Rice considers her husband’s breathtakingly vicious attack of her, and then his dragging her body, skirt hiked up on a cold, hotel floor moments after, to be a part of their private lives. She seems yet to acknowledge a single act of wrongdoing on his part, instead characterizing what he did as “a moment in our lives.” She appears to be willing to support and stand by him regardless of what he did to her, what he might have done before, and what he might do again- even while she is pregnant with his child.What are the chances, then, that Janay would ever have been forthcoming about what was done to her in that now infamous elevator- assuming she could even remember it accurately? Forget about the courtroom. What about the kind of honest detail that might have led to forcing Ray Rice to take real responsibility for a possibly permanent brain injury? What about the kind of detail that might have compelled him to examine his character and his choices, especially now that he will be a father?Given her public statements, it is not likely that Janay would have spoken at all to anyone who might have made a difference, whether an NFL official, a judge, a counselor or anyone else. She’s in love. She’s made her choice.But where criminal acts are concerned, not all of the choices are hers to make. There are at least two entities that have an interest when a crime of violence occurs and criminal charges are brought: The victim herself (or himself) and the community as a whole. The community in this case- at least Atlantic County, New Jersey, the prosecutorial jurisdiction where this crime took place- has a right to the truth, as much as it can be ascertained, in order to decide what Ray Rice did to violate their laws and what he deserves because of it (no comment, for now, on how the case was legally resolved).Without the video, it is highly unlikely that Rice’s brutality would ever be fully known- both in terms of the lightning blow he was willing to unleash into a woman's face and the callous way in which he then dragged her around. Even assuming an out of character, mental snap due to rage, Rice could have knelt beside her and comforted her. He could have called for help and admitted a terrible, momentary wrong. Instead he dragged her like an inconvenient bag of garbage. We know that now, because we’ve seen it.What Janay Rice is 100% correct about is that the repeated, for-entertainment viewing of the video tape of her abuse is exploitive and abusive itself; her pain should not be minimized nor her feelings invalidated. She is unfortunate with regard to being married to a public figure and now being at the center of a tragically public case. But given her unwavering support of a man who attacked her, given the child who will soon become a part of their dynamic, and given a desperate need for society as a whole to wake up to the undiluted reality of intimate partner violence, there is value in the videotape’s existence if not gross proliferation.It's awful. But it's the truth. And the truth matters, even when love would conceal it.
Contempt of Cop, And That Might Be It
I've worked closely with police officers my entire professional life, and I find most to be decent, honorable men and women who do a difficult job with a surprising amount of professionalism. I'm far from anti-cop. But sometimes it appears obvious that breaking the law isn't what will get you arrested. Simply disobeying a police officer, even with the right to do so, might do it.That's anathema to the rule of law.A disturbing video posted by the African-American political and cultural opinion magazine "The Root" shows a black man arguing with police officers, one male and one female and both white, in St. Paul, Minnesota in January and eventually being tasered and then arrested. It's news again in light of recent events, and race is an assumed factor. At one point in his filming of the incident, the man interrupts the female officer and says "the problem is I'm black." The two are then joined by a male officer who immediately demands that he put his hands behind his back. A struggle ensues, he's tasered and then arrested.I honestly don't know if race was a factor for the officers involved. I'd like to think it wasn't, but I completely understand those who most certainly do. Regardless, what bothered me most about the exchange I saw was simply the illegality of what seems to be happening. Apparently charges against the man for trespass, disorderly conduct and disrupting the legal process were dropped.Understanding that cell phone video is hardly an infallible source of context in a tense situation, watching this one will not yield a single explanation by the officers as to why the man is being arrested that cites Minnesota law or local ordinance. I watched it repeatedly; I don't hear it. Reports suggest a store clerk called with some concern about his presence as a possible loiterer although he was in a public place. The responding officer demands he identify himself. He refuses, as is apparently his right under Minnesota law. She appears to follow him as he walks away, at one point explaining her demand saying "this is what police officers do when they're called."That may be, but that doesn't make the demand legal. And if it's not legal, and no other crime is occurring, she needs to shrug and walk away. Period. But police officers increasingly seem not to want to do that.In February, a California Highway Patrolman arrested a firefighter who refused to move a fire truck at the patrolman's insistence while working a car wreck. The firefighter was ordered released and later filed a complaint. Details are in dispute, but it seems as if he was handcuffed and placed in a cruiser simply because he disobeyed the command of the CHP, regardless of the letter of the law.Like any institution that provides for trappings of authority, deadly weapons and combat training, police agencies sometimes attract bullies and others with big egos and little patience. I believe this is not the norm in American policing but generally an exception. I've not only worked closely with cops all of my life, I've befriended many. I've heard countless head-shaking stories (that never reach the media) of cops who have not used deadly force despite the actions of belligerent and aggressive people who threaten their lives and refuse to obey reasonable commands.Still, there is justifiable criticism being leveled against the militarization of American police forces and the rise of the "warrior cop." Engaging the community from behind barricades with automatic weapons is largely counterproductive and stupid. But what's worse is ignoring the law and putting people in chains and cages- regardless for how long or to what eventual end- simply because they've made a cop angry. It doesn't work that way. It can't work that way.As a young prosecutor I practiced before an old and quirky but wonderful judge named Dan O'Flaherty. He showed me once how he kept a copy of Virginia's contempt of court statute (the one that allows judges to jail people on the spot for in-court behavior) actually taped to the bench where he sat. His reason? When he was insulted or otherwise disrespected by someone before him, he took time to read the statute and think very carefully before even threatening the person with contempt. Because sometimes what they were doing was infuriating, but not illegal.Anyone with the honor of wielding a badge and a gun needs to understand that as well.
To A.J. Delgado: You Might Be Dumb Like a Fox. Or Just Dumb. But Wow, Are You Wrong.
A..J., I get it.You're attractive by Western standards (white, thin, pleasing bone structure, etc). You speak well on camera. But of course, so do plenty of us.So maybe you've been clever enough to realize that your best bet as an aspiring media star is as an iconoclast. That's great- we need them. The problem, though- assuming you see it as one- is that iconoclasts aren't always the voices of reason, or the till-now ignored prophets from the wilderness, screaming the truth in hopes of overcoming a cacophony of nonsense.Sometimes, with their slick, favorable, TV features, they're just cynical charlatans. Or perhaps worse, they're sincere but mis-informed, useful idiots.You're one or the other, AJ; either deeply cynical or grossly, happily misinformed. It really is that simple. I read your National Review piece on what you seem to believe is an imaginary "rape epidemic" on American college campuses. Typically, and within 60 words of your opening, you echo this oft-quoted and infantile meme: "...the term “rape” or “sexual assault” is thrown around almost effortlessly, accusations easily made [emphasis added] and lives easily ruined."Utter. Nonsense.Your characterization of the terms "effortlessly" and "easily," as applied to the disclosure of sexual violence, might be sardonically funny were it not so dangerously stupid. I'm a former prosecutor who spent a career working with the rare woman (or man) who took the almost unimaginable step of actually reporting a sexual assault or a pattern of abuse. I'd be happy to give you a long, sad list- with their permission- of the tiny minority of people who did report to some authority that they were sexually violated, and who were ripped apart like meat left for wolves as a result. Nevertheless, people like you are always ready to claim- on baseless grounds- that women will regularly "cry rape" to avoid whatever consequences sexual congress might bring. Since you're admittedly "not a scientist," I can point you to the research of some actual scientists who can demonstrate with a strong foundation that very few complaints of sexual violence are false, and that the usual person the victim of sexual violence points the finger at is herself or himself.Still, to flesh out this silly piece, you spewed examples that should shame you as a lawyer with any training in logical argumentation. The example you give of a defendant who was mis-identified in a rape case (i.e., a rape did happen- the wrong guy just got convicted)? That's a tragedy of course, but what does it have to do with your completely unrelated claim that the straw-man "Left" is creating a rape myth?Oh yeah. Nothing.And then there's your attempt to draw some connection between the decline of traditionally defined violent crime in the U.S. over the last 20 years and the (finally) growing intolerance of rape on college campuses. This isn't even clever. It merely exposes remarkable ignorance with regard to the reality of sexual violence as it usually plays out, both on and off college campuses. Sexual violence has always been a sickeningly, ever-present aspect of college life- and indeed life everywhere. Yes, we're more aware of it now, and some of us are fighting back. But why should you? Armed with your one dubious anecdote and your ambition, why look behind the curtain at all?Instead, A.J., continue your rise to stardom within the morally scolding circles promoted by the National Review that will, among other things, insist that rape in the college environment is the inevitable result of promiscuity and intoxicants.Goodness me, if only women would behave.Never mind those who are raped after a study group meeting in the light of day, or by a church-going friend on a religious retreat.And certainly, A.J., never mind the effect of the insidious and arbitrary rules you're imposing on the young women and men who will be victimized with even more impunity because of your finger-wagging nonsense. I'm talking about the ones who may or may not break your rules, but who will be damned to either silence or shame because of ignorant hawkers like you who give them 1) unfair standards to uphold, and 2) false senses of security to boot.We're lawyers, A.J. We never had to professionally take the "first, do no harm" oath that physicians do. But seriously? You should consider it.
Iowa, and 47
The Cedar River at sunset, Waterloo, Iowa, after a child abuse prosecution training last week.The one (and perhaps only) important thing I didn't have to learn the hard way is this: Never fail to appreciate small moments and simple beauty.A railroad crossing, a grain elevator, a farm stand, an AME Baptist Church.At 47, ain't that America?If you're listening, Lord, forgive me my petty complaints. It's all a blessing.
Bigotry Is Bad. And Bad for Business
Anti-black bigotry in the American South, persisting with political cover well into the latter half of the 20th century, was an utter disaster for an economy already struggling to overcome unindustrialized, agrarian roots.Anti-gay bigotry, led in part (again) by misplaced religiosity, will now further damage the same region, and perhaps with it parts of the Southwest as well."The arc of the moral universe is long, but it bends toward justice." Martin Luther King, Jr.I'd tentatively add that it also bends toward intellectual growth and common sense. Environments where bigotry thrives will inherit the wind. And little else.
James Taranto and the Wall Street Journal: The Issue is the Platform, Not Censorship
Phrenology, the attempt to explain brain function and activity through analyzing the size and shape of a subject’s skull, was seriously discussed within neuroscience circles as late as the mid-19th century. Its adherents can be forgiven for their ignorance based on what was observable and evident at the time. But it’s now known definitively as baseless, and thus would not be discussed seriously in a news article by a reputable media source in some attempt at giving equal time to an opposing view point.But might an opinion piece- on why phrenology should be not only seriously considered but in fact applied in order to meet societal challenges- still merit consideration by, say, the nation’s financial newspaper of record? Of course not; it’s a theory that is not only thoroughly discredited but dangerously misleading and potentially harmful if adhered to. Similarly, we no longer give serious voice to the opinions of those who would persecute azimuthal map-makers, who view their race as genetically superior to others, or- and strictly relevant to the matter at hand- who argue that communistic, central planning is a terrific tool for economic growth.And yet the Wall Street Journal has given a tremendous voice to a collection of ideas just as thoroughly discredited and potentially harmful with the publication of James Taranto’s remarkably ignorant opinion piece on non-stranger sexual assault. The backlash against Taranto has been harsh, but it is richly deserved. In short, there is no excuse, after years of replicated, respected research on the topic, not to mention the observations of hundreds of thousands of victims (and many offenders), to give a voice Taranto’s opinions under the banner of that publication. This is not about “feminist” or “liberal” censorship; it’s not about censorship at all. Taranto is more than entitled to his opinion and he may offer it to the marketplace of ideas like anyone else. The issue is the responsibility of the WSJ editorial staff to make better decisions on what merits publication within its pages.A belief that alcohol creates the urge to commit rape, that offenders and victims are “colliders” in alcohol-fueled sexual situations and thus generally of equal blame, and the claim that false accusations are anything more than rare and usually easily detected events, are all ideas that have been thoroughly discredited.Dr. David Lisak is often rightfully credited with the ground-breaking research that first shed light on the motivations and methodology of the relatively small group of sexually deviant offenders (mostly male) who commit most of the non-stranger sexual violence we endure (his work was replicated with startlingly similar results in 2009). But decades before Lisak, other pioneers (Mary Koss and Joan Zorza come to mind) were making keen observations about the true nature of predatory behavior and the reality of the experience of sexual violence. Their work has proved out convincingly and continues to do so. The further we lessen the stigma against victimization, the more we hear from courageous women and men willing to give accounts that confirm, overwhelmingly, the observations of these experts.In my experience, the only remaining groups that cling to the ideas Taranto was able to espouse to millions are some (not all) so-called “men’s rights advocates,” interested criminal defense firms, and men who have been charged with rape. True, there is still ignorance about the topic in not only the general population, but within the law enforcement and prosecution communities as evidenced by the dubious quotes Taranto printed by members of both. But that’s not a reason to proliferate ignorance further.Taranto may or may not choose to educate himself on the dynamics of alcohol-facilitated, non-stranger sexual assault as it actually and typically plays out: In a premeditated, methodical fashion by pattern offenders who identify, manipulate, attack and then discredit their victims, aided before and after by a larger society still ignorant of predatory behavior and punishing of female sexuality. Either way, I would never seek to prevent him from continuing to hold and espouse his views. My issue is with the major media outlet that chose to showcase them as serious editorial discourse. It’s anything but.
Dylan Farrow’s Allegations Against Woody Allen: A Short List of Truly Unfair Considerations
Sexual abuse allegations against Woody Allen were made first in 1992 by his daughter Dylan. They’ve resurfaced since Allen was honored at the Golden Globes, culminating with an open letter last week from Dylan herself.Allen stands legally innocent of any crime. The question in raising the issue is whether he's acted so dishonorably as to be morally disqualified for an honor like the Cecil B. DeMille. I don’t know what if any character component is relevant to the award; personally, I long ago abandoned the idea that talent or even hard work at a particular pursuit necessarily have much to do with character and honorability in any other sense.What I would suggest, after prosecuting, evaluating and consulting on child sexual abuse cases for over 15 years, is to largely disregard a few of the more popular considerations currently being touted as reasons Allen should be exonerated and Dylan (or Mia Farrow) either blamed or pitied. While nothing can be debated now that will ever settle things factually, there are a few "points" being touted that simply merit far less consideration than they're being given:1. No physical evidence “proving” the case. Anyone with a cursory understanding of both the typical nature of child sex abuse and pediatric anatomy knows that child cases almost never yield compelling physical evidence, even when reports are immediate. Very few abusers seek to inflict injury and know that doing so will likely interrupt the grooming process and trigger a report. Further, the genital area is blood-rich and heals very quickly even if tissue is damaged. Dylan reported nothing to my knowledge likely to yield physical evidence.2. The allegations arising in the context of a custody dispute. Many have bought into the pernicious myth that children are easily and often coached to fabricate allegations of sexual abuse, usually by their mother against a targeted male figure. This is a particularly attractive idea against Mia Farrow, whose perceived bitterness at Allen's actions with Soon-Yi Previn fuel the myth. In fact, sex abuse allegations made during custody disputes have about the same very low rate of false reporting as in any other case. Further, the risk of suggestibility drops off sharply after around the age of 5, two years before Dylan reported.3. The Yale-New Haven Hospital report. A team of investigators, in the still early days of modern child sexual abuse investigation, appear to have questionably investigated and then questionably concluded that Dylan had not been abused. Aside from other very troubling aspects of this investigation that observers have raised, that particular conclusion was neither theirs to reach nor accepted practice with the information they appear to have had.4. Most of what Robert Weide says in his 1/27 Daily Beast piece on the subject. Weide apparently knows Allen personally (and his pro-Woody bias is clear) but he knows almost nothing about sexual abuse dynamics or what is reliable in terms of indicators. What we believe we know about friends or colleagues is simply not relevant, most of the time, to what they might be capable of, period.5. Evidence that Dylan suffered with mental health issues, either as a child or since. Nothing indicates that mental illness- certainly the kind she appears to have faced- is likely to cause delusions of abuse or an inclination to lie about being abused. Further, individuals who suffer sexual abuse often develop mental illness subsequently. And, if the condition was pre-existing, it tends to make sufferers tragically logical choices for abusers who know they won’t be believed.As for what's worth considering?Dylan’s account. It's not dispositive either, although it could be sufficient in a criminal court. The kind of sensory detail she gives even now, and the surrounding details of other acts she remembers very clearly, are exactly the kind of indicators that have helped win rightful convictions in child abuse cases as we’ve improved in investigating it over the last 25 years. Those memories, in a competent investigation and prosecution, can also yield powerful corroborative evidence.I love Allen’s work and have no desire to demonize him. But I cannot in good conscience deny the plausibility- at least from where I stand- of Dylan’s accusations. It's sad. But as Allen himself often showed us, so is life.
The Top 5 Reasons Charles Dunlap's "Top Ten Reasons" Article on Gillibrand's Military Justice Reform is the Worst Thing I Read In 2013.
Note to readers: I usually limit myself to 700 words in this space. Since I'm going after the author so forcefully on this topic, though, I've blown that limit and gone over. I very much respect Prof Dunlap's experience and his service to his country. Regardless, I take issue with what he wrote, and this is why.Last month, Duke law professor and retired two-star general Charles Dunlap released an article with his “top ten” reasons why Senator Kirstin Gillibrand’s unfortunately un-acted upon initiatives regarding sexual assault in the U.S. military were a bad idea.I don’t lightly take on a former general officer and law professor on military justice. That said, I’ve never been given more ammunition to do so. Dunlap’s article offers very little substance to the needed discussion on how to curb sexual violence within the military. Instead he writes with a repetitive and largely hyperbolic tone that exposes more a fear of change than anything else.My top five objections:1. The piece begins with a meaningless distraction. Dunlap questions why colleges and universities aren’t being “targeted” with regard to sexual assault instead of the military. He’s right to suggest that colleges aren’t doing nearly enough to curb what is a shameful problem in their environments. But aside from the fact that the military is far more centrally controlled by Congress and far easier to change institutionally than thousands of separately managed, public and private schools in 50 states, it’s also utterly beside the point. Higher education’s problem with sexual assault is another matter, period, and it’s being addressed through powers like Title IX.2. It follows with a meaningless comparison to the highly-flawed civilian criminal justice system and the lowest-common-denominator environment it must govern. Dunlap, like many who have argued against the Gillibrand reforms, points out that, in cases where both civilian prosecutors and military prosecutors have had jurisdiction over a sexual assault case, military prosecutors were more likely to prosecute. This is true and not surprising, but again largely pointless to the issue of the Gillibrand reforms. First, most sexual assault cases with the potential for dual jurisdiction are ones involving military personnel in off-base environments. Since these cases tend to involve military victims and military witnesses, I’m not surprised that the military justice system is more likely to take them than civilian offices (and good on them for doing so). Secondly, the traditional model of civilian rape prosecution has only recently begun to evolve to address these cases competently. Civilian prosecutors are also not dealing with members of a closed and selective system. Regardless, civilian prosecution needs to improve and should not yet be used, in general, as a model for anyone. What Gillibrand was hoping to create were enlightened, motivated and highly trained prosecution teams that would have been the state of the art in sexual assault prosecution. This is what I was helping to create through my civilian service to the Army, and I was joined by some of the very best minds in the business, some of whom are still in service to the military both in and out of uniform.3. It grossly distorts the purpose of the prosecution function by conflating it with the command function. Dunlap believes that, since military commanders are focused on battlefield victories and not courtroom victories, they’ll be more likely to bring cases against defendants in order to “send clear messages” to troops. This may or may not be true, but in any event it is a terrible perversion of what justice is supposed to mean in any environment. No prosecutorial authority may ever bring an inappropriate or otherwise non-prosecutable case to bear against a defendant in order to “send messages.” Cases are appropriate for prosecution if admissible evidence exists that would support a conviction for an identified crime, not in order to further some other agenda, no matter how well-intentioned. I personally met no commanders who would confuse this profound responsibility, but Dunlap seems to encourage it.4. It mischaracterizes the purpose and goals of military law. Dunlap insists that military justice is ultimately more about protecting the security of the nation than any individual or group, no matter how deserving. He believes this overarching goal actually provides more incentive for commanders to purge rapists from their midst as they understand that sexual violence in the ranks threatens good order, discipline, and ultimately fighting capability. On one level this is true, but on another it exposes a dichotomy that actually makes commanders less able to make appropriate prosecutorial decisions particularly in sexual violence cases. Protecting national security ultimately involves success in combat if combat becomes necessary. That is achieved through lethality, brutality and strength. The vast majority of our warriors are not sexually violent; rather, a prolific few cause most of the harm, as in any environment. But what is undeniable is that some of the same traits that make a person deadly when called upon are present in sexually aggressive people as well. In the military environment as in most environments, the offenders are often respected and very good at their jobs. Their sexually offending behavior is carefully compartmentalized and hidden. Conversely, the victims are often outcast and not valued. Commanders with the best intentions, particularly when unfamiliar with the dynamics of the kind of sexual violence most people experience, may still view a sexual assault case through the lens of what is best for the mission or the unit as a whole, and at the same time be misled by the otherwise sterling reputation of the offender. This is not a criticism of commanders; they simply have an enormous range of differing responsibilities, more so now than in previous generations.5. It is insultingly dismissive of Trial Counsel, the military lawyers who enforce the UCMJ. Dunlap seems generally hostile to the decision making ability of prosecutors in pretty much any case, which might make slightly more sense if Gillibrand’s goal was to strip military officers of involvement in prosecutorial decisions in favor of civilians unfamiliar with military life, culture and circumstances. But this is not the case. Neither Gillibrand nor anyone with any influence has suggested replacing uniformed personnel with civilian prosecutors. What Gillibrand proposed was a corps within a corps of specifically trained legal experts untethered to the myriad responsibilities and conflicts of the command, but still active soldiers, airmen, sailors and marines. I was not always impressed with the military as an institution, but I was deeply impressed with the level of not only legal competence but military bearing and sense of duty that I encountered in the JAG’s I worked with across the services. Unlike Dunlap’s assertion that decision making authority will be removed from commanders and given to “lawyers far from the battlefield,” I helped create a system of special victims prosecution in the Army that places specially trained JAGs around the globe and in theater. There is no reason this could not continue. Dunlap then wastes a good page or so citing a Pew research poll that suggests Americans have more confidence in military leaders than in “lawyers,” apparently lumping all of them into one ignominious group. The fact is, Trial Counsel come from and serve in all aspects of military life, including special forces groups and “tip of the spear” units. They fight and die as honorably as anyone in uniform and should not be disregarded as the bureaucrats and pencil pushers Dunlap seems to characterize them as (“staff lawyers”).Those are the top five, but there there is far more to dislike in this piece. Dunlap’s insistence on hyperbole, suggesting that commanders would be completely stripped of responsibility for serious crimes within their units (they would still have a great deal of involvement and influence and would maintain total control over directly mission-related crimes like desertion) is unhelpful and misleading. At one point he all but lends credence to a “political pundit” who suggests that the open service of homosexuals in the military could produce higher rates of offending. This is so patently baseless and offensive it has no place in the debate. Dunlap also bemoans the supposed $113 million cost of the Gillibrand initiative, claiming again with shameless hyperbole and fear-mongering that it will divert resources from the needs of service people, veterans and families. But with a defense budget of around $600 billion this does not move me. His only valid points are made when he correctly questions some of the legal definitions currently in place after 2012 amendments to the UCMJ, and whether the experience of foreign militaries is directly applicable to ours.I am quite sympathetic to the arguments of friends and colleagues, some of them experienced Trial Counsel themselves, who are wary of Congressional “fixes” and public demand for change. I’ve made the determination that Gillibrand’s initiative would have served the military well, but I absolutely acknowledge room for debate. Just not the kind professor Dunlap has chosen to engage in.
Men's Rights Advocates Hit a New Low
An "accuse-a-thon" to promote filing false claims against an Edmonton, Alberta, sexual assault advocate. This, apparently, in order to punish her, for the audacity to tell the truth: That false reporting in sexual violence cases is very rare.No reasonable person suggests that a male or female of any age or circumstances is incapable of lying about sexual assault. The issue is the remarkably unfair and demonstrably fatuous claim that a women's natural and common reaction to 1000 different stressors involving men is to falsely "cry rape."A more probable scenario, to me at least, is the idea of sexually offending men seeking a patina of denial under the cloak of defending "men's rights."
Jameis Winston Case: Another Prosecutor Invokes an Incorrect Standard for Prosecution
William N. Meggs, the State's Attorney for Florida's Second Judicial District, declared last week that no charges would be filed against Jameis Winston, the Florida State football player accused late last year of sexual assault against a 19 year-old fellow student. In so doing, he made this statement with regard to the standard he was under when considering whether to charge Winston:“We have a duty as prosecutors to determine if each case has a reasonable likelihood of conviction,” said Meggs, who added that the evidence was carefully examined. “After reviewing the facts in this case, we do not feel that we can reach those burdens.”I've been able to review the released details of the case. It appears from witness statements and other circumstances that Meggs had a difficult (although not impossible) case to prove had he chosen to charge Winston with a sex crime. My issue isn't with Meggs' decision not to prosecute; it's with the standard he articulated before the press as to why he did not do so. That standard, at least according to everything I know that guides prosecutorial decisions, is incorrect.I know of two nationally accepted sources for charging standards for prosecutors. The first is from the American Bar Association's Criminal Justice Standards, Prosecution Function. The ABA directs prosecutors to charge only cases with "admissible evidence to support a conviction." The second is from the National District Attorneys Association National Prosecution Standards, which states that prosecutors should only bring charges when the prosecutor believes the charges "can be substantiated by admissible evidence" at trial.Note the key phrases: The existence of admissible evidence that would support a conviction. The ability to substantiate charges with admissible evidence at trial. Neither "support" nor "substantiate" connote anything about a likelihood of the defendant being convicted.Meggs is not the first prosecutor I've seen invoke an incorrect standard with regard to declining to press charges. Unfortunately, too many tend to claim that cases "cannot be brought" unless the prosecutor bringing them believes they are likely to result in a conviction, or some very similar language. That simply isn't correct. A case does not have to have a likelihood of success in order to be prosecuted. It does not have to be a "slam dunk" or anything close to it. It simply needs to be a matter that can be brought in good faith, competently and ethically, with evidence to support a conviction that is likely to be admissible in a court of law. What prosecutors are specifically admonished not to do, in fact, is to consider what effect an acquittal might have on their conviction rate or any political considerations that might come to bear from bringing a case.It wasn't long ago when no sexual assault victim could hope to have her case heard unless remarkably favorable circumstances (like a videotaped full confession) existed to back up her allegation. Victims of color, victims with disabilities, sex workers or others with perceived compromised circumstances were denied justice even more, and most still are. Prosecutors who have made the decisions to deny these victims their day in court have been entitled to do so under the accepted standards, for any number of reasons. It's not malpractice or unethical for a prosecutor to decline to press charges, even if s/he believes the complainant, if the reality is that admissible evidence is lacking, or under a tougher calculus involving available resources or other non-politically driven considerations. The reality is that American prosecution is a highly imperfect system, involving subjective judgments and competing priorities. But that reality must be faced up to, analyzed transparently, and admitted freely. Things are improving, and part of what courageous prosecutors do to move a community forward is to focus on the pursuit of justice in less obvious cases. But in the meantime, if a case won't be brought because a prosecutor doesn't believe it can be won or that s/he lacks the resources to do it correctly, then that must be stated as such. Hiding behind an incorrect standard for when cases can be brought is deceptive and intolerable. The communities our prosecutors serve, and most importantly the victims they encounter, deserve more than that.