Far More than "He-said, She-said" in Latest NFL Rape Case

The rape charges filed earlier this month in Indianapolis against Colts special teams player Joshua McNary are, sadly, only the latest accusations of violence against women- sexual violence, in this case- against members of the National Football League.McNary appeared in court for an initial hearing last week and pleaded not guilty, his attorney emphatically denying the charges. This is, of course, appropriate and generally a good defense attorney's job when the case appears to be one that will likely 1) attract media and public speculation and 2) go to the mats in a jury trial.Like most, I know only what's been reported and would take no firm stance about McNary's guilt or how the case will likely play out. I do know, as I've stated repeatedly in this space and many others, that very few rape allegations are false at their core, and that rape is grossly underreported, not something tossed around for vengeance, vanity or money, despite the endless droning of the paranoid and/or finger-wagging set. Regardless, that's as far as I'd go with any factual speculation.At least one quoted expert though, former prosecutor and current defense attorney Jack Crawford, grossly oversimplified, by all accounts so far at least, what's likely to be seen in evidence.In short, he referred to it as a "he-said, she- said" case, a term I've come to despise at the same time I've simply gotten used to it. It implies, of course, that the criminal charges rest only on the word of the complainant, the word of whom will be challenged by the defendant, leaving the jury in a position of deciding which one to believe. Although a popular characterization of many sexual assault cases, "he-said, she-said" is literally never accurate. I was taught many things by my mentor and former boss Victor Vieth, and among the most important was that corroboration, in some form, is always possible to find and then translate into evidence if the investigators and prosecution team are diligent and creative enough.Rarely does corroborating evidence constitute a smoking gun, of course; far more often it's just a simple fact that can be independently proven, and then offered as evidence when it's shown to support the prosecution's theory of the case. In tandem with many others, though, it can help a justice-minded but aggressive prosecutor build and then prove a case that a lesser attorney would probably just avoid. Indeed, prosecutors in my experience are often more likely to falsely tag cases as "he-said, she-said" (and thus un-triable) than many on the defense side.What's particularly silly about Crawford's characterization, though, is how inapposite it appears to be in this particular case. The victim here reported within hours of being assaulted. This allowed physical evidence to be taken and an acute examination to be done, both of which will likely favor the prosecution. The quick report also allowed detectives to find McNary and preserve evidence from both the crime scene and his body before either could be disturbed; this evidence also looks promising for the prosecution. Interestingly, McNary appears to have preserved bedding himself for the responders, telling them when they arrived that he expected them. It's hard to say how that will be used by either side, but it arguably shows consciousness of guilt on McNary's part.Crawford certainly isn't all wrong. He's correct that the case will not be an easy one for the prosecution to prove. He's right that intoxication on the part of both parties will complicate matters and likely cut against the credibility of the complainant. He's probably also right that consent, ultimately, is what the jury will have to decide, since sexual intercourse between the two will be easily established if not outright admitted by the defense.But he's wrong to suggest that this case comes down to nothing but the testimony and credibility of the two people at the center of it. A creative, diligent prosecution team, backed with a good investigation, has a better shot at proving this case than Crawford suggests. I'm willing to bet that's the case, in Marion County, Indiana.       

An Intolerable Glimmer and an Intolerable Focus on Controlling Women: Why I Still Fight Victim-Centered Rape Prevention

The “glimmer” is one of doubt. It’s the doubt that’s created when we analyze a rape perpetrated on a victim who was drunk, dressed seductively, or engaged in whatever behavior we have adjudged unwise and foolish. It’s a glimmer that allows for the blaming- ever so slightly, but still substantively- of the victim. It’s a glimmer that allows for the exoneration- ever so slightly, but still substantively- of the offender.That’s what victim-centered rape prevention does. Regardless of how well-intentioned. Regardless of how coldly logical. Regardless of the reservoir of love and benevolence that lies behind it. Regardless. It still serves to create the glimmer. And the glimmer is too much.See, we can claim we’re not blaming victims all we want when we advise seemingly obvious and demonstrably effective means of prevention. It does not matter; the effect still serves to blame victims and protect offenders. Why? Because sexual violence is a crime different from any other.Read that again. Rape is categorically, undeniably in a class by itself. When one person attacks another sexually, the crime is analyzed differently than any other. Since criticizing Emily Yoffe’s State pieces earlier this week (her pieces are here and here) , I have received dozens of messages from people who construct analogies to other crimes to describe why her key advice (control your drinking) is simply sound advice and not victim blaming, regardless of how unfair it might seem. Others shake their heads and tell me I can wish for a kinder, fairer world all I want, but they’ll be damned if they won’t tell their daughters and sons exactly “what not to do” in order to protect them.That’s understandable. But here is an undeniable truth: Leave aside my belief that all that advice, even if it works in many situations, also potentially opens up the hearers to other vectors of attack. For those who would still prefer to create rules and encourage loved ones to follow them in order to best play the odds, I will challenge them on at least one aspect of their thinking: They cannot avoid a charge of victim-blaming by claiming they would give similar advice to anyone in order to avoid, say, robbery (by walking on well-lit streets), or car theft (by locking doors).Rape isn't like robbery, car theft, or even murder. Sex, and how we view it, doesn't allow for that.The nature of sexuality in our culture (and most others) does not allow for it to be analogized to any other crime. The nuances and complexities of sexual interaction, seduction, flirtation, gender roles, the intensely private and culturally shame-based nature of the whole subject, the relation of the sexual organs to the excretory ones, the continued prizing of “purity,” etc, etc, etc, all combine to make sexual crime one that is always analyzed differently from any other.So the danger of tipping the scales even a tiny bit and judging victim choices, thus marginally exonerating offenders, is magnified with sexual crime.Another hard truth: The further we dig into the nature of sexual crime, the further we must dig into the nature of sex itself. And that means taking an honest look at gender roles, expectations, and deep-seated fears and obsessions that have shaped how society judges, treats, confines, punishes and subjugates women.Read that again also, if you would. Far too much of the debate concerning how women can and should protect themselves from men is polluted with the continuing and still deeply unresolved obsession that men (and some women as well) still have with women as sexual beings. Our major religions, our societal structures, our laws, customs and mores. How many are hyper-focused on controlling female sexuality? When we can answer that question honestly and accurately, we'll have uncovered much of what is wrong with how we seek to prevent rape.That, in a nutshell, is why I find even the best intentioned, victim-centered prevention strategists to be ultimately wrong-headed. Try as they might, they are still tipping the scales. They are still creating doubt. As a prosecutor, that’s a thing I was trained very carefully to avoid when justice is on the line.

Emily Yoffe, Like Most Misinformed People, Won’t Get It. Maybe Ever.

Emily Yoffe is frustrated by the backlash against her well-intentioned but ill-considered original Slate piece from last week, but apparently emboldened by the support she’s received from other well intentioned and ill-informed supporters.Yoffe, like many others, sees a reduction in drinking (on college campuses especially) as the key to reducing sexual assaults against women. Indeed, the answer seems startlingly clear to Ms. Yoffe, as if she’s sounding an alarm that those around her infuriatingly cannot hear:Women! Stop drinking! You’re making yourselves vulnerable!It seems so obvious. A woman (or a man for that matter) who decides, for whatever reckless, juvenile, or ill-advised reasons, to drink to excess, is making herself/himself vulnerable in a cruel and unpredictable world. That's the seemingly clear-as-glass conclusion at which Yoffe and many like her have arrived.My perspective is that of a former special victims prosecutor, so I suppose I must ask myself: Haven’t I seen countless cases in which objectively “bad” victim behavior (like heavy drinking) “led to victims being raped?”Here's the naked truth: I have worked with victims- male and female- who were raped during or after behavior that might have been judged unwise. But I have never seen a victim who was raped because of that behavior. I’ve only seen victims who were raped for the one, single, incontrovertible reason that all victims are raped:Because someone chose to rape them. This is where Yoffe gets lost. Granted, it’s a subtle distinction and one I also had to absorb over time. It was a brilliant and irreverent PhD psychologist (Nikki Vallerie) who finally clued me in to a simple and profound truth: There is no vulnerability without danger.A woman can skip through a big city park at midnight in a G-string made of sewn-together $100 bills. She will not be vulnerable- in other words, she won’t be at risk for the slightest victimization of any kind- even a criticism of her clothing choice- unless someone in her environment means to victimize her.Let that sink in. No one is at risk, regardless of what they do or don’t do, if no one around them means them harm.But the Yoffe’s of the world believe they've figured it all out and claim victory when it comes to policing bad or reckless behavior, believing the key to preventing most- if not all- sexual violence means the prevention of such behavior because of the “dangerous world” we all inhabit.Indeed, the world is a dangerous place. But here are two critical areas where Yoffe and her ilk fail in their analysis and admonitions.1. Women (and men) can be (and are) sexually victimized in the most “innocent” of circumstances, i.e., a day-time study group, a church function, an alcohol-free event or movie date. So warnings against “late night, drunken date rape” only protect victims from one type of rape- and could actually expose them to further harm as they’ll be unprepared for any other scenario other than what they’ve been warned against.2. Rapists thrive on and celebrate- whether or not they do so consciously- the very rules of “wise and protective behavior” that Yoffe and her compatriots have so fervently and self-righteously promulgated.The reasons are simple, and devastating.First, as I alluded to before, a laundry list of things not to do will simply clear the path for the rapist who will rape after church, on a simple, alcohol-free DVD movie date, after a study session, or pretty much whenever he can isolate a victim who believes she (or he) has protected her/himself in every imaginable way from harm.Second, the man who chooses to a rape a person who has “broken” a finger-wagging protective rule that society soberly approves of, knows full well that he’ll most likely never be accused of that crime.Why? Because, thanks to the self-satisfying proclamations of the Yoffes of the world, his victim broke a rule and “got herself raped.” Therefore, and as he well knows, she might not even be believed if she does report. But she’ll definitely be blamed even if she is. That will most likely keep her quiet. And so it goes.Want to stop rape? Focus on rapists. 

"Ask Amy" Falls Short

Quite a few people in my business have seen the response by syndicated advice columnist Amy Dickinson to a young woman in Virginia (my home state) who unfortunately wrote Ms. Dickinson late last month for guidance after she was raped at a fraternity party, but under circumstances that made her feel as if she was to blame (wholly or at least in part) for what happened.Basically, "Victim? In Virginia" attended a fraternity party, drank some alcohol, and was then talked into going into a bedroom by the guy who eventually raped her. She made it clear to him that she didn't want to have sex, and made him promise that he wouldn't attempt sex with her.An unwise move? Probably, but not necessarily inappropriate for the age and life experience this woman apparently had to work with, particularly under the fog of alcohol. Not surprisingly, once this rapist had her behind closed doors, all bets were off as far as he was concerned, and he raped her in a state of intoxication where she could scarcely figure out what was happening, let alone successfully resist.Following this nightmare, "Victim?" reached out to Amy Dickinson. Ms. Dickinson might have meant well, but the cold fact is she displayed a dangerous lack of understanding as to the dynamics of non-stranger sexual assault in her answer, not to mention how to counsel and advise a survivor of such an experience. Her biggest missteps, in my view, were these:1. She began her her response to this victim by chastising her for "awful judgment," reminding her that, after all, going to a fraternity party and getting drunk is really inviting what Dickinson describes as the possibility of "engaging in unwise or unwanted sexual contact."It ought to be axiomatic that "unwise" and "unwanted" aren't the same thing. Last I checked, after all, one does not "engage" in unwanted sexual contact any more than one "engages" in being robbed at knife point. Conflating these two things- unwise and unwanted sexual contact, exposes Dickinson's bias against young women who make choices she finds repugnant.2. She noted that the victim didn't say whether or not her rapist was "also drunk." Because, she says, "if so, his judgment was also impaired."Sigh.I'm sorry, but I'm choking on this. It's because frankly I know what I'm talking about, and a syndicated advice columnist clearly doesn't. Rape doesn't come out of a bottle, folks. Claiming that this guy's alcohol impaired judgment somehow brought forth this act is akin to saying that a gun found on the sidewalk turned a normally law-abiding citizen into a rampaging murderer. Alcohol doesn't create the desire to commit acts like rape. It only loosens the chains that might hold a sober rapist back for fear of taking the risk of something like getting caught. The guy who did this is a rapist. He was a rapist at .00 BAC, and he was a rapist at whatever level he obtained before he committed the act. (And incidentally, if he was truly so intoxicated as to be somehow delusional, he wouldn't be able to obtain or maintain an erection and complete the act.)3. Ms. Dickinson counsels the victim to seek out the truth of her victimization by involving "the guy in question to determine what happened." This is terrific. Involving the rapist- the guy who has already lied to this girl repeatedly and violated her- in determining "what happened" is not only futile but toxic. Dickinson appears to buy into the myth that accidents happen, boys will be boys, and drunken sex will sometimes look and feel a lot like rape even though it's really no one's fault.Nonsense. Rape isn't an accident, and there isn't an accidental rapist lurking in every boy or man. Rather, good and recent research suggests that there are relatively few men who are capable of rape, but they do it over and over again. This truism is one that -finally- Ms. Dickinson recognizes when she notes "he might have done this before." But she appears to believe that what he's done or what he'll do again is at least half the other party's fault. And worse, that a good heart to heart with one of his victims might help avoid this kind of behavior in the future.No, ma'am. A guy might be a dog. He might be a player. He might be a cad. But unless he's a rapist, he'll recognize terror, struggling, semi-consciousness and the simple word "no" (which this victim reports telling him many times) for what they are: Signs that, to quote Susan Serandon from Thelma and Louise, "she ain't having fun." This guy ignored those signs, because unlike most guys, (and like all rapists) he doesn't give a damn what his prey is feeling. What she wants, after all, really isn't the point.A great group of anti-sexual assault professionals I'm a member of called CounterQuo suggested that I write a response to the papers where she's syndicated, and thankfully some very good editors at CQ toned it down and added some great points. If it makes some difference and serves to educate Ms. Dickinson, we'll have done a day's work. BTW, check out CounterQuo- we're changing the conversation.