Developments in the DSK Case: What They Mean And What They Don't
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?Hell, yes.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.Don't dare.
Hurt and Grace: An Open Letter to An Attorney
Dear Mr. Grace:‘Hurt,’ the word itself, is ancient, and typical of the blunt, mono-syllabic terms we get from the rough German parentage of English. ‘Grace,’ as you may know, from the Latin “gratia,” is a beautiful word (hence it’s choice as a name for girls) and an even more beautiful concept. These two words are also surnames, one belonging to you and one to the young woman you have viciously smeared of late, Ms. Margaret “Maggie” Hurt.Maggie, as you know, was a student at Wake Forest University in Winston-Salem and a member of the school’s pep band. She traveled with WFU’s men’s basketball team in 2009 to the NCAA Final Four tournament in Miami, Florida. While on the trip, she reported being sexually assaulted by two men in concert, one who forced her to perform fellatio in a hotel bathroom while the other watched the door. Both were star players on the team. Friends and family eventually convinced her to report the incident to campus police once she was back at school. According to her, they informed her that the best course of action (and her only option) was to pursue an internal, student judicial disciplinary process against the two students. She did so.In a letter attributed to Maggie Hurt's mother, she claims the two accused students brought an attorney to the internal disciplinary hearing. If you were the one they brought, I assume you came as an advisor, although student judicial hearing procedures I found don't seem to allow for accused students to bring non-student advisors to hearings. Ms. Hurt, to my knowledge, had no such legal firepower with her.When she appeared on the Today show late last month, she recounted an ordeal whereby she, and not your clients, were put on trial, and where the entire process left her not only unvindicated but humiliated. The hearing, predictably, focused on her behavior and not on the behavior of the accused students. Your clients were found not responsible and the matter was dropped. Ms. Hurt then reported the crime officially to the police department in Miami, but the DA’s office there declined to prosecute citing a lack of corroborating evidence.Nothing I’ve recounted so far is atypical. A woman was, by all appearances, sexually assaulted by star athletes and fellow students. For several time-honored and understandable reasons, she did not immediately report the assault where she was, on a school trip. When she finally did report back at her home campus, the matter was considered and discarded by an internal school disciplinary process most likely unequipped to handle claims of profound sexual abuse and possibly biased in favor of the athletes. The frustrated victim then finally reached out to criminal justice authorities where the crime actually happened, only to find that the matter could not be pursued because so much time had passed and no corroborating evidence was obtainable.Such is the typical fate of the small fraction of women who actually report sexual violence (particularly in the college context involving athletes) to authorities of any kind.What’s stunning to me, though, are your comments, Mr. Grace, in response Ms. Hurt’s appearance on the Today show. You are a highly respected defense attorney and have been a member of the North Carolina bar for almost 35 years. Yet you claimed to a major local newspaper last month that Ms. Hurt made “bad judgments” on the night of the incident. Specifically, you informed the media of your belief that she engaged in sex hours before the incident in question with another student band member and talked about it with others. You then clarified that this, of course, “didn’t make her promiscuous.”Thank you, counselor, for that clarification. But I must ask why you have exhibited, in a professional capacity, such breathtaking and needless cruelty toward the complainant in this case? You know very well that the sexual liaisons you accuse Ms. Hurt of engaging in (assuming they are even true) would likely never have become admissible in any criminal court of law. So why did you choose to smear her with this hearsay two years after you successfully deflected any sanctions against your clients? No one faults you for zealously representing your clients, but why seek to portray her publicly this way on information that is surely hearsay at best?Further, where exactly do you see the legal relevance of anything you claim about Ms. Hurt? Do you really believe that, even if she did engage in sex with another student hours before the incident in question, that she therefore logically must have consented to your clients’ advances, hours later, that she denies were consensual? Do you really draw a logical link between sexual activity in one place and time (where no complaint of assault was made) and sexual activity in another place and time simply because of what you perceive to be the character of the woman involved? That is remarkably myopic, but believable. Or, are you simply vitiating Maggie Hurt because it somehow continues to be expedient in some effort to paint her publicly as a whore who views a sexual encounter as casually as a trip to a soda machine?I will no doubt be criticized for taking offense to your comments, assuming you truly believe your clients were wrongly accused. Fair enough; understanding that I know much less about the case than you do (from your clients' perspective anyway) I believe Maggie Hurt’s allegations, and I believe them for reasons borne of common sense rather than blind zealousness or ardor. I fail to see what Maggie Hart gained by reporting this incident falsely to WFU authorities and then the criminal justice system months later. I detect nothing in her demeanor, her account or her history that would cause me to doubt what she claims to be true.But what I know or don’t know is somewhat beside the point, sir. I write critically because I saw absolutely nothing in your comments about Maggie Hurt that would ever, in any way, advance a legal theory supporting your clients’ innocence. Instead, I see rank vindictiveness on a scale frankly unbecoming of your status as a litigator and member of the bar, Mr. Grace.Such is the cosmic irony at play here. Ms. Hurt, in my view, has been quite graceful. You, counselor, have been unduly hurtful. Given your stature, success and outstanding reputation, I'm at a loss as to why.Respectfully,Roger Canaff
NYPD and Sexual Assault: What Now?
Surprisingly to some, not all prosecutors like police officers. Many see them as dubious moral arbiters with too much power. Necessary, perhaps, but not to be trusted. I don’t have this view; cops are a big part of why I was drawn to law enforcement. I’ve been blessed, in Virginia and New York, to have worked with and befriended some of the best, most decent, heroic and dedicated professionals I’ve ever known in uniform. But over the years I have developed a more or less binary view of policemen and women: A good cop is a treasure, and one of the things that holds a decent society together in a very real sense. A bad cop is a menace. He rips at the same societal fabric more directly than elected officials, judges, or anyone else in the system. For better or worse, cops work where the rubber meets the road. They interact with the public intimately, and when they betray that public, it’s unforgivable.I’m occasionally challenged by people (most of them not cops, by the way) who accuse me of setting an unrealistic standard for a profession particularly when I’ve never had to do the job. I simply shrug. I’ve known too many cops who deal with the pressure and the misery and still maintain their integrity. And I’m sorry, but the stakes are too high. Police officers are imperfect and expected to be. I don’t write them off for the kinds of moral failures we all struggle with. But I can’t stomach cops who lie, bully, sell their badges or worse, and on the rare occasions when I saw behavior like that as a DA, I called it out.For Kenneth Moreno and Franklin Mata, the two NYPD officers acquitted of rape in Manhattan last week, the term “disgrace” isn’t strong enough, and neither is “menace.” I don’t personally know Coleen Balbert, the principal ADA on the case, but I have worked with DANY’s (District Attorney, New York County) sex crimes unit over the years and I know it to be professional and highly skilled. From media reports, I gather that Balbert and her team did an excellent job.In particular, I have worked closely with Karen Carroll, the Sex Assault Nurse Examiner who was called to explain the significance of the cervical injuries the victim suffered. Carroll is one of the most respected and astute SANEs in New York State and testifies with a skill and presence that is remarkable to see. On that issue at least, I can say personally that the team brought in the very best. Additionally, the victim’s testimony was apparently consistent and compelling. Moreno admitted to using a condom in a recorded conversation with her. Both defendants made asinine and offensive statements in testimony, and Balbert appears to have made the most of them on cross. There was virtually no question they committed relatively minor offenses as a part of their plan to victimize her (and were actually convicted of them). Their excuses for how they acted, Moreno’s explanation in particular, was laughably insulting.But for the rape charges, it wasn’t enough.The jurors who have spoken appear to have wanted more, particularly DNA evidence, which has led many to speculate that the prosecution was undone by the so-called “CSI effect” where juries expect and demand physical evidence to prove the case to a scientific certainty. The use of a condom explains a lack of DNA as I’m sure was made clear. Likewise, I imagine the jury was instructed that testimony by itself and without more is evidence enough to convict if it’s considered sufficiently convincing. Still, jurors appear to have reduced the facts to a “he said-she said” stalemate despite explanations and excuses that seemed ludicrous.One thing that might have cost the prosecution is the timing of the victim’s multimillion dollar civil suit against the city. It’s not inappropriate if she has a strong case, but most DA’s prefer it when a victim waits until the criminal case ends before suing civilly. Otherwise, a “gold digger” defense can be peddled exactly as it was here. That scenario- a woman who seduces an authority figure of some kind and then seeks a payout by crying rape- is remarkably rare, but it’s a common and persistent rape myth that wins cases. Couple it with a woman who was out drinking, allegedly dimming her perception and probably costing her credibility, and it’s less difficult to settle on a ‘not guilty’ verdict.There’s time now for the ADA’s involved to reflect on what could have been done differently, and if they’re anything like me they’ll do so for quite a while. What’s more important, though, is that they had the courage and respect for the victim to go forward, not only for her but for the entire community. That’s what courageous DA’s do, and that courage is harder to summon in sex cases than most other types of crime.As for the NYPD, it is probably the most wounded entity in the aftermath of this crime after the victim herself. Commissioner Kelley did the right thing here, but his institution must remain on its highest guard against menaces like these two, one of whom was on the job 17 years. Criminals like Moreno and Mata don’t always provide warning signs to their superiors in the form of various kinds of lesser bad behavior, but they often do. I have no idea if they did in this case, but the NYPD would be well advised to comb through the records and pasts of both of these men in search of missed clues. Going forward, that information might prevent another damaging black eye for an otherwise good and respected department.There are nearly 40,000 sworn NYPD officers, the vast majority of whom shouldn’t be stained with the actions of these two. More importantly, there are literally millions of women in New York who shouldn’t be afraid to place themselves in the care of the NYPD when they are in need, regardless of how the need arose. But for the time being, fear is exactly what many women will experience when police approach offering help. It’s up to the NYPD to do its level best to reverse that fear and continue to do what it does best.
The Dominique Strauss-Kahn Case: 'Start By Believing' Still Makes Sense
A few months ago, I posted on the Start By Believing Campaign being led by an organization I serve (EVAW, Int’l). In response, a less-than-impressed commenter asked me rhetorically “When do you stop believing, Roger?” While I actually answered that in the post itself, a further comment of his illuminated the disconnect between us:“Does the sympathy I feel for a victim decrease in correlation to the increase of their voluntary consumption of alcohol, flirtation, placing themselves into precarious positions, and style of dress? Yes.”This statement encapsulates the all too common but remarkably misguided belief that victims, usually but not always women, invite victimization when behaving less than monastically. I guess my question back to this commenter should be “How much, exactly, does your sympathy decrease, and through what factors?” But this of course begs other questions: If she wore a skirt above the knee during a “girl’s night” outing in a big city, does she still merit assistance, treatment and legal vindication, or just medical treatment, but no criminal justice response? How much does each drink she consumes ratchet down her rightful access to our system of justice? At what exact point of flirtation she does she forfeit the right to be supported by the people she reveals the attack to later? In terms of quantification, there must be a calculus for how we measure out sympathy versus scorn when it comes to sexual violence for people who “ask for it.”Or maybe that attitude is nonsensical and unsupported by anything that relates to the reality of how and why people are sexually assaulted.I believe that each of us bears some responsibility for our personal safety. I readily shake my head in frustration when I see someone blithely short-cutting alone through a dark alley while wearing earphones, for instance. Yes, there are things we can and should do to reduce our own vulnerability to crime. But first, even when we have acted in a way that (perhaps) made us more of an easy target than we would like, it’s never our fault when someone else chooses to attack and victimize us. Second, the nature of sexual assault, particularly non-stranger sexual assault, is unique. No other crime bears with it the level of scrutiny toward the victim’s actions than does non-stranger sexual assault. No other crime, through myth and mistake, shields the perpetrator as completely as does sexual violence. And when a power differential is introduced into the mix, the odds against the victim go through the roof.The track record of IMF Director Dominique Strauss-Kahn, punctuated by his latest apparent sexual attack in New York City, is yet another reminder of how myths surrounding sexual violence can protect a powerful man from prosecution for decades (see an excellent and balanced op-ed on this story from my colleagues at Counterquo here). The fact that a relatively powerless (to put it mildly) hotel worker reported him for it is stunning. My guess is Strauss-Kahn was stunned also. I have a strong feeling he’s relied on the relative powerlessness of his victims for years. By many reports, there has never been a shortage of them. Strauss-Kahn hasn’t always chosen hotel maids, but also journalists and other professionals. In particular, his “affair” with Hungarian former IMF economist Piroska Nagy appears to have been consummated by the relentless pressure he put on her while she reported to him.Ben Stein, a very bright guy who nevertheless seems to be getting more and more bizarre lately, wrote perhaps the most stunningly ignorant piece defending Strauss-Kahn. In it, he wonders aloud how DSK could possibly have gotten away with sexual violence and/or sexual harassment for so long with no one coming forward. Mr. Stein must know precious little about the dynamics between the powerful and the relatively powerless if he has any doubt regarding the feasibility of a track record like DSK’s. Sadly, I think Stein keenly understands how power works and what it can suppress. But like so many others, he has a huge blind spot where sexual violence is concerned, and is willing to entertain any number of alternate theories in order to avoid seeing what is as clear as his own face in a mirror. In the very next paragraph, he suggests that “in life, events tend to follow patterns.” Indeed, Mr. Stein, they do. And the pattern of sexual misconduct, sexual harassment and sexual violence that DSK has been perpetrating is beyond obvious.The answer is this: Dominique Strauss-Kahn, like most men who commit acts of sexual violence, is a serial predator. It is not at all unusual that his pattern involves violent acts as well as manipulative ones. There are certainly “womanizers” the world over who pursue arguably immoral sexual acts, even by the less uptight standards of the French. But this can be and often is done without creating legal victims (either criminally or civilly) with threats, work-place pressure, intimidation or physical violence. Strauss-Kahn is, by all appearances, someone who has crossed the line between what is despicable and what is actionable or criminal.Nevertheless, there will never be a shortage of people like Ben Stein who are blind to the reality of sexual violence, or my erstwhile commenter who are more than ready to blame the victims of such violence for being insufficiently vigilant, insufficiently well-behaved, or insufficiently cloistered. It’s not necessarily evil to think this way, but it’s grossly misguided and it’s protecting perpetrators and damming victims. In short, it’s furthering a cycle we desperately need to break.
To Parents of Gay Youth: When Support Disappears, Risk Skyrockets
My nephew Davis Matthew, now three, was in my sister’s arms shortly after he was born when she made an oddly loving declaration regarding him. Standing next to my brother-in-law, who is a Marine reservist, an Iraq war veteran and a fairly conservative guy, she stressed “we’re okay if Davis is gay!” I can’t remember the context of the conversation and I know it was kind of a tongue-in-cheek moment, but she was serious, and to his credit my brother-in-law just shrugged and smiled.Coming to terms with the idea that one’s child is other than heterosexual can be monumentally difficult, and it’s not the mark of a homophobe or a bad parent to feel an actual sense of loss at the realization. My friend Al Killen-Harvey, a clinical social worker and expert in this area, puts it brilliantly (hear the interview here) when he says that some parents, when they discover their child is gay, actually have to grieve. He’s careful to point out that what’s being grieved for isn’t an actual loss (a gay kid is as much a blessing as a straight one) but a loss due to the heterosexually focused mindset that most of us grow up with. It might be religiously based, or it might be cultural. And it doesn’t always smack of bigotry either. There are many people who are friendly or neutral toward homosexuality, but still hope their kids are straight simply because it seems like the simpler and happier way to be. And perhaps they also know (or suspect) how difficult the life of a gay person can be.The bottom line is that it’s okay for a parent to be afraid, disappointed, even angry when a child presents as gay, questioning, or anywhere else on the spectrum other than straight. There are resources like PFLAG for parents going through that process. When the truth reaches the parent, though, one thing is certain: If that parent loves his son or daughter, he (or she) will have to learn to respond somehow in a supportive way. To succumb to anything else-regardless of the reason- is to risk that child’s health, happiness and life, in very real terms.It’s self-evident that bullying, even in a much more enlightened age than my own youth, is a serious issue for for gay, questioning or transgendered kids. Thankfully, resources like Love Our Children's anti-bullying campaign exist to combat it better than ever. Crime victimization is another real threat. Some assume “gay bashing” is the issue, and certainly cases like Matthew Shepard’s highlight this (as does the more recent case of a transgendered woman who was viciously beaten in Maryland). But oftentimes the victimization doesn’t come from violent homophobes, but rather much more subtle and skilled predators of varying sexual orientations. A few gay people I know say that a homosexual, bi, or questioning teen’s worst threat is often an older gay counterpart, in terms of anything from contracting a STD to just being left broke and brokenhearted by an unscrupulous lover.But the risk to young gay people hardly ends with these two scenarios. What’s often overlooked but no less true is that criminals of all kinds will readily prey on gay kids, particularly when closeted. This is simply because they are logical targets, and for any type of crime from fraud to assault to rape. An adolescent with 1) less wherewithal, street smarts and survival skills and 2) a secret to keep, makes a great victim. Particularly if a predator can involve himself physically with the youth (and he doesn’t have to be homosexual to do so) then he has leverage over that victim and therefore a much lower risk of him or her reporting the crime to anyone. Successful predators aren’t all geniuses; they’re just remarkably observant and methodical.What’s worse is that all of these risks- from heartbreak to murder and suicide- increase dramatically when the emerging gay boy or girl is rejected or unsupported by the people he or she needs most. Throw away kids, runaways, even kids still living at home who feel as if their most natural protectors don’t care about them or worse? These are potential victims that predators sense the way a shark smells blood in water.I understand completely that issues surrounding sexuality are difficult for some, particularly when cultural or religious influences play a part. I’m not about to judge how a good-hearted person views homosexuality given these strong and deep inferences. But those convictions, whatever they are, are very much beside the point when a kid’s well being is at stake. I don’t believe a parent has to fully embrace an orientation they feel strongly is disordered or negative in order to continue to love and support their child. Whatever the proper balance is, it’s beyond my expertise to discuss.But I do have a career’s worth of expertise in victimization, and I know well how it works. If you’re a parent, whatever your feelings are about homosexuality, whatever your religion commands of you, your reason dictates, your heart feels is true, know this: If you reject your child upon his coming out (in whatever form it takes) if you fail to shelter him, to love him, to protect him, you’ll put him (or her) at tremendous risk from a world that is remarkably cruel- surprisingly so to some who don’t see it as those in law enforcement do. Predators are everywhere. When we give them a marginalized, isolated group of relatively defenseless people to victimize, we’re foolish or blind to believe they won’t.Trust me, a predator won’t give a damn about why you couldn’t bring yourself to love and support your child when you discovered he was gay. He’ll just take what he can from him and move merrily on. Don't make it easy for him to do so.
Four Years On: Civil Management of Sex Offenders In New York
This month in 2007, then Attorney General Andrew Cuomo was tasked with breathing working life into New York’s Civil Management statute. With it, New York joined 20 other states in taking one of the most controversial and delicate legal steps possible in a liberal democracy- that of extending incarceration or strict probation for individuals with mental conditions that drive them to commit sex crimes.The cocktail party description of the law is fairly easy to deliver. Most candidates are men nearing release from prison for a previous sex conviction. The state Office of Mental Health has the onerous job of examining every one of them (thousands of men are released every year from NYS corrections for sex offenses), and they decide if the person qualifies as having a “mental abnormality.” Basically, that’s a mental illness or disorder that drives one to commit sex offenses. For the few who make that cut, the Attorney General has the job of proving 1) that the person indeed suffers, and 2) that he needs to be either confined in a state hospital or supervised in the community. Ideally, a person remains subject to one or the other until a judge decides that he’s no longer a danger.New York is both massive and diverse, and characterizing it as left-leaning or “defendant friendly” is an oversimplification. Nevertheless it’s not the most conservative of states, and there was and continues to be tremendous philosophical opposition to the law. Some claim it’s no more than additional punishment dressed up like treatment. Detractors point to its high costs, but more basically to what they see as the fundamental unfairness of telling a person who has done his time that, in fact, he’s got more time to do, albeit in a hospital environment rather than a prison. They also question whether a mental abnormality could ever be treated to the satisfaction of a judge with the responsibility of turning an offender back to the community. To them, it looks like a convenient life sentence waiting to happen.These arguments deserve consideration, and I thought them through when I had the chance to serve in the Sex Offender Management Unit from its infancy four years ago this month. Civil management of offenders, when it’s done right, isn’t about right or wrong. It’s about ill or not ill, and for a lifelong prosecutor that can be a challenging mental transition to make. Good and evil, the bookends of Judeo-Christian thought, may be unsatisfyingly simple to some philosophers, but they’re the compass of most U.S. prosecutors. And they give way to something more complex in the civil management realm. In the case of a person who is driven to rape, what drives him really isn’t his fault. But it’s not society’s either, and civil management is as much a quarantine function as it is anything else.Of course, 1000 fair questions are begged here, from what “driven” really means to the very nature of free will. Regardless, what concerned me was less the idea of the law than the process under which it would take shape. There are states where civil commitment has failed miserably because it was political red meat in a ‘get tough on crime’ atmosphere, but never supported well enough to be true to its stated goals.There was no telling how it would play out in New York. A few respected colleagues warned me it was a bad career move, that the law was flawed in its inception and nearly impossible to enforce fairly or effectively. In the end, though, I bet Cuomo’s office would be a good steward and that New York, despite and because of its big government nature, would be a place where the tricky business of civil management would at least be properly supported and also be done as honestly and fairly as humanly possible.I was right.Kevin Gagan, the former Manhattan ADA who took the reins out of the gate and brought me into the unit, remains one of the very best people I’ve ever worked with or for. He’s a hard charger but fair, deeply decent, and very smart. He also had a great nose for talent and assembled a team of litigators across 40,000 square miles that I view today as the single best collection of trial lawyers I’ve known personally or professionally. Our partners, OMH and Parole, worked honorably beside us and put heroic effort into maintaining not just the appearance but the reality of the ideals behind the law. Our legal adversaries played their part and fought doggedly to protect and ensure due process for their clients, some of the most powerless and despised people imaginable. The nightmare scenarios of massive lock-ups and unending commitments haven’t happened, and for the most part the process works as it’s supposed to.It isn't perfect and it remains a work in progress. But when I consider that I took a chance with how my office and the rest of the state would implement this difficult, controversial social policy, I marvel at how lucky I got. Kevin has since moved on to higher office in state government, but the bureau he formed continues to thrive under solid new management and the leadership of a new AG. My friends and colleagues there continue their mission with as much integrity and competence as anyone could ask for.The idea remains controversial and rightly so. It involves the most daunting legal questions we face: The rightness, let alone reliability, of predicting future crimes; the correct balance- there is none more crucial- between individual liberty and public safety; the inner-workings of the human mind. New York hasn’t perfected a response to any of these. But it had faith in its own institutions and the safety of the public at heart when it took the leap to answer them. It’s done damn well so far. Happy Birthday.
Classlessness on Campus: No End in Sight
Earlier this month, an e-mail surfaced, purportedly from a Kappa Sigma fraternity member to his brothers at the University of Southern California. Before I discuss it, I want to be clear: Anyone, male or female, who is angered and disgusted by this garbage has every right to be. As Margaret Hartmann noted in Jezebel, it demonically covers all the bases: Sexism, racism, objectification of women, and rape. In a word (and here’s a time where English falls short), it’s despicable. Some have suggested that its very over-the-top nature indicates that it’s a hoax, some rival fraternity’s effort at besmirching the chapter’s reputation.I actually don’t think the chapter was “punked.” I could certainly be wrong, but to me this thing reads authentically and would be more transparently outrageous if it was written as a weapon. As offensive as the message was, in the world in which it was circulated it’s not so shocking as to be obviously planted by one group against another.I guess the only reason I don’t have a stronger reaction to it is because it’s also so laughably pathetic. The guy who wrote this is many things, but some darkly skilled operator in the world of seduction is not one of them. His salutation to “the distinguished gentlemen” of his fraternity is reminiscent of something a fantasizing, pimply teenager would concoct in an effort to channel Sean Connery as if he headed up some secret society of black-tie wearing spies instead of tending an ant farm in a bedroom festooned with action figures.He’s also oddly obsessed with the penis itself, and not just in the cultural, archetypical way that many men seem wired to be. Read carefully if you can stand it; he writes like a clever seventh grader and can’t drop an appropriate comma to save his life, but he can lithely romance words to evoke the feel of a male sex organ doing this or that. Of course, if he has a preference for men, I have absolutely no problem with that. But my guess is that he would, and thus might have been betraying a secret that nevertheless scratched its way toward the surface as he typed.He also evokes Tucker Max, the accurately self-titled “a__hole” who has built a fair amount of name recognition appealing to the lowest common denominator by claiming to live and memorialize the life of a misogynistic scumbag and bathroom humor expert. Max’s star is probably fading, but not because the market for what he peddles is drying up. Rather, poor Tucker is knocking on the door of his late 30’s. The exploits he claims to continue to have are getting less and less believable and more and more objectively pathetic, true or not. He deserves credit for skillful branding. The problem, though, is that the shelf-life for him as the focus of it appears nearly exhausted.As I’ve noted before, research doesn’t support the idea that an otherwise non-sexually violent man will suddenly become so because of exposure to things like Max’s latest story or this frat boy’s infantile rating system. But language matters, and the danger of this kind of dreck is that it might lead some guys to just shrug when an actual rapist in their midst is springing a trap at a party or similar social situation. If women are truly targets and not people, what’s the harm? Every culture on earth looking to eradicate an enemy begins by dehumanizing that enemy. That's Tucker Max and this alleged Kappa Sigma author in a nutshell.I will note, for the sake of my newly found antagonists in the so-called Men’s Rights Movement, that both genders can play the destructive objectification game. This is evidenced by the cleverly titled “F__k List” Powerpoint presentation created by a young woman at Duke last spring. She apparently bedded a baker’s dozen male student athletes, rated them all in excruciating detail, and then prepared a gag thesis with the results. Some of what she notes about these guys, while probably quite true, is also gratuitously cruel. It’s bad, but I find it less offensive than what Max and the Distinguished Gentleman produce, and not just because she targeted men instead of women. Rather, it appears to me that she engaged socio-economically advantaged participants who were likely looking to use her just as crassly as she eventually used them. I don’t think she’s evil, but in combination with the smarmy, pseudo-scientific tone she takes throughout her masterpiece, the picture I get it is of a tiresome adolescent who sees herself as remarkably wittier and more clever than she actually is.Still, if the idea is not to treat each other like disposable toys, then her prank, Tucker Max’s whole career and the alleged brother's miserable message should spark outrage and be challenged. To the extent they have been, it’s an appropriate thing. But when one considers that Max has achieved a level of fame and wealth as a result of his trash, or that the Duke student is apparently being offered book and movie deals for hers, the only conclusion one can come to is that there’s still a society out there rewarding this stuff. That won't change anytime soon.
Necessary Conversations, But Stubborn Questions
My hat is off to Shea Streeter, the Notre Dame senior who took it upon herself last week in a letter to the Observer, an independent college newspaper serving both ND and St. Mary’s, to address campus sexual assault. And not just generally, but her own victimization, which happened twice. Ms. Streeter was reacting to an interesting production that has graced the ND community since 2005, a completely student-produced show called Loyal Daughters and Sons that showcases themes of sexual assault, gender, religion and sexuality generally in the atmosphere of a Catholic college campus.Ms. Streeter’s issue wasn’t with the show’s content, which is well-regarded and apparently quite popular. Rather, she was dismayed at the reaction of the students after it was over (actually the lack of a reaction). She wondered aloud how students exposed to stories about sexual violence in their very midst could so easily switch gears and discuss whatever was next on their calendar. She followed this with a blistering challenge: Aware of the "one in four" statistic regarding women on college campuses subjected to sexual assault (see a snapshot of campus crime generally at NCVC here), by her calculations she is among over 1000 victims at ND at the present time. If that’s the case, she argues, then there’s a conversation that needs to be had- and she doesn’t want it swept under the rug.I salute this young woman’s courage, because it is remarkable. Perhaps it’s driven in part by what I read from her tone, which is outrage, confusion, and understandable mystification at the silence that surrounds her on this devastating issue. While her own searing experiences give her more of a right to comment than I do, she nonethless doesn’t suggest that she knows what produces sexual violence or motivates those who perpetrate it. She mentions things like the degradation she apparently sees aimed by some ND men at the women who attend St. Mary’s. She mentions the college hook-up culture and binge drinking. She demands respect and an appropriate reaction to the word “no” by the men in her community. She has every right to demand those things.But there’s an awful rub that I nevertheless feel compelled to mention: Teaching men to respect women and to avoid objectifying them as “dumb and easy” or whatever else, is a laudable and necessary goal. But it shouldn’t be confused with effective rape prevention. I know it sounds counter-intuitive, but research backs me up here: Most women aren’t raped by simply disrespectful guys intoxicated by liquor and the hook-up culture. The urge to rape- taking sex by force or while their victim is incapacitated- is not something that comes out a bottle or even a culture of hyper-masculinity or sexuality. Most women are raped by men who are predatory, who choose their victims carefully, and who do it over and over again.Ms. Streeter asks aloud, if there are over 1000 women at ND who are victims, how many perpetrators are there? The answer is probably far fewer than most would believe. But they are prolific and will not stop. They won’t stop because someone points out that it’s wrong to objectify women. They won’t respond when taught to respect, cherish and honor rather than to take, use and discard. They likely wouldn’t have responded as younger adolescents, and they won’t respond as older men. They might be chiseled athletes or they might be goth artists. They might be smiling, completely harmless-looking guys seemingly cut from the very cloth of American college normality.They are everywhere, and this is true far beyond Notre Dame. I’ve had no issue sharply criticizing the leadership of this phenomenal university and cherished community, but I’d be deeply remiss if I suggested in any way that Notre Dame was worse than anywhere else. If anything I’d like to believe, as a Catholic myself, that the values and ideals of the school- whether or not they are always met in the reality of the human condition- nevertheless provide a measure of inspiration to be better. And indeed, I think the ND community does live up to those ideals in many areas.Every institution- academic, corporate, military, social- is plagued with this phenomenon. Is it related to the hook-up culture and the “dumb and easy” garbage that is spewed at women? Yes, it is. Is it related to the obscenity that is how we regard women and girls generally in Madison Avenue America? Yes, it is.But for preventing sexual assault, the value of addressing these important issues is mostly in strengthening things like the bystander response. That is, getting more boys and men (and women as well) to step in when an undetected rapist with a sweet smile and a college sweatshirt is ready to strike. It is also a crucial goal in and of itself, and may someday create a culture less coarse, degrading and tragically unfair. But as for preventing the development of, or changing the makeup of the predators themselves? Right now, I don’t think so. Still, good on you, Ms. Streeter. And thank you.
Lessons for Scott Brown
Politics is mean business. My guess is the junior Senator from Massachusetts knew this already; he didn’t get where he is as a retiring flower. Nevertheless, even he might have been surprised by some of the backlash that’s been tossed around regarding his revelation on 60 minutes last month that he was both physically and sexually abused as a child.Brown revealed some of the details of a difficult childhood, including suffering at the hands of an apparently brutal step-father, and also sexual abuse at the hands of a camp counselor at the age of 10. What he revealed is both time-honored and typical. As I’ve noted before, I don’t have a crystal ball; that being said, I see nothing in Brown’s account that would suggest it’s made up or the product of fantasy. Particularly when describing the sex abuse, he notes it wasn’t “fully consummated,” presumably meaning that no sexual penetration took place. While full penetration certainly does happen in male child sex abuse, what Brown infers (sexual contact short of penetration) is generally more common. Likewise, the threats from the counselor he reports “I’ll kill you/I’ll make sure no one believes you” are also incredibly common. They’re a primary reason that most victims never reveal childhood sexual abuse. Further, Brown’s acknowledgment of the embarrassment and hurt that kept him silent is also eminently reasonable.Nevertheless, an unholy collection of comments from readers on various reports of Brown’s revelation (for instance at the 60 minutes page and also here) suggest several reasons why Brown has clearly made all of this up. While I think all of these explanations are wrong, from least to most ridiculous, here are a few:1. He wants to sell books.2. He wants votes.3. He is a homosexual, evidenced by his 1982 Playgirl spread, his metrosexually-handsome appearance, and his RINO (Republican In Name Only) tendencies. And he’s been “caught with a man,” so he’s on damage control.4. He is a closet socialist, attempting to tear down institutions celebrated by Christian-capitalist systems like the nuclear family by claiming sexual and caretaker abuse.And then there are those who have nothing but scorn for Sen. Brown regardless of the truth of his revelations. Some of these are nakedly political, suggesting that, while perhaps he was abused as a child, he’s now getting back at his constituents and the American people by politicking as a heartless Republican. Or on the flip side, his failure to be manly and keep silent on the issue betrays his deep-seated liberal tendencies.I’m not a Republican, even a Scott Brown Republican. I disagree with him on many issues, and I’ve seen him act and speak on more than one occasion that left me less than enamored. But I have reason to question neither the substance nor the timing of the allegations he’s made against the men in his life who made it miserable, frightening and dark- and exactly when he was powerless and dependent.To the extent that his voting record or political stances truly reflect an insensitivity toward victims, I agree that he should consider his own struggles more deeply. Although he sponsored a ‘conscience clause’ exception to medical professionals charged with providing emergency contraception to rape victims in his home state, his provision would still have mandated alternatives for the patient to receive the same medication. I don’t support conscience clauses, but I don’t see this as proof-positive of his callousness toward victims.More troubling to a bigger-government guy like me is what appears to be his faux-populist, anti-government stance that has the effect of starving programs that do make a difference in the lives of victims (programs I know work from close professional experience). That he tends to take this stance even while protecting a rapacious financial industry in exchange for a ton of campaign support makes it even more disturbing, but I digress.Scott Brown is as imperfect and complex as any of us. He is also, in my estimation, someone who has worked hard to overcome myriad personal challenges, among them debilitating child abuse. He deserves credit for coming forward, which- whatever his intentions- has the effect of shedding desperately needed light on this shadowed epidemic. It also demonstrates that personal and professional success can still lie at the end of a very difficult road. For that, I salute him and wish him well as his journey toward healing unfolds.
Thank You, Dan McCarthy
“The qualities of a good prosecutor are as elusive and as impossible to define as those which make a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizens safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”Robert H. Jackson, United States Supreme Court Justice, 1940This quote adorns the plaque with my badge affixed to it, given to me by Randy Sengel, Commonweatlth's Attorney for the City of Alexandria, Virginia when I left the office in 2003. It is a sentiment I've seen embodied in a happily large number of men and women over the course of my career, but perhaps never so profoundly as in a friend who passed away unexpectedly this week, Dan McCarthy.It's been observed in the legal community that, oftentimes, there's an inverse relationship between the skill and success of a trial attorney, and his or her skill and success as a human being. Simply put, some of the most effective and remarkably talented trial attorneys out there are walking disasters in their personal lives.Daniel McCarthy, Chief Trial Counsel and Director of Trial Training at the Bronx District Attorneys Office, was the very best trial lawyer I ever knew personally, and recognized as one of the best in the country. He was also a remarkable success as a human being. Dan could do both, and with what looked like effortless aplomb.I worked in the Bronx, where Dan was an ADA for 18 years, for a little less than two. When I contemplate my service there I sometimes feel the guilt of soldiers who, for whatever reason, spent very little time in a combat zone. I am grateful for the experience, but I hold my service cheap compared to friends, colleagues and giants like Dan who spent much of their careers in service in this good and fascinating, but often brutal and challenging community. Dan had every opportunity to leave prosecution almost 20 years ago and make a remarkably good living as a litigator in the private sector. But instead he went from one tough environment (Queens) to an arguably even tougher environment (the Bronx) in order to continue to seek justice and serve victims.Thankfully I knew Dan before and after BXDA, but during my time there he taught me things I still hold dear. My favorite example might be this one: ADA's, when they appear in court, usually announce their appearance for the "District Attorney." It was Dan who taught me to personalize my appearance to the good man who hired me. "He represents this community and he deserves your loyalty and respect," he said. "When you appear in court, say you're there on behalf of the office of Robert T. Johnson." It was a gesture I maintained when I appeared on behalf of then Attorney General Andrew M. Cuomo two years later.It was Dan- more than anyone else in my career, and I have had great mentors- who emphasized in deeply compassionate terms the reality that lingered behind the case folders. Lives are broken by crime and they are not put back together by criminal litigation. The dead are silenced and their potential truncated, leaving behind grieving loved ones who never fully recover. The wounded and paralyzed- mentally or physically- are at times left to navigate lives that can draw out like a blade in numbing, endless days of struggle. Victims fight nightmares, despair, hopelessness and rage, all long after the publicity is over, the juries are dismissed and the accolades are shared. Dan never let us forget this.The Bronx, at once magnificent and godforsaken, lush with green space and choked with urban density, home to centuries of history and yesterday's arrivals from every point on the globe, possessed of both world-class schools and grinding poverty, is itself a study in contradictions.When I think about it, I suppose Dan was also. He was a nationally known attorney with sobering responsibilities who was always ready to poke fun at himself and never too busy to brainstorm with a young ADA facing a first larceny trial. He was endlessly creative, pincer-like and pulverizing when proving guilt beyond a reasonable doubt, but hyper-ethical and deeply compassionate to everyone on both sides of the tragic cases he handled. He was erudite and analytical but fun-loving and folksy. The man could, very simply, do it all. His loss leaves an empty space in the American prosecution community and the lives of his friends and family that won't be filled. But he also leaves a legacy of decency, compassion and justice that will, in the spirit of true success, endure forever.
The Baby Ad: Myth, Reality, and Danger in Prevention
They call themselves Men's Rights Advocates, or MRA’s. I’ve aimed a fair amount of criticism their way over the years as paranoid-sounding myth perpetrators, which I believe many of them to be. So I was surprised when I found myself agreeing with them- marginally- on an anti-rape video produced by a Midwestern rape crisis and DV advocacy center run by a male advocate named Josh Jasper, now the poster-boy enemy for the men's rights movement. Jasper, a former Marine, ex-cop and now CEO of what appears to be a vibrant, multi-location facility, is a guy I’d probably admire and agree with more often than not. But I think his video misses the mark, although not exactly for the reasons the MRA pitchfork crowd is seething about.The video depicts an adorable and utterly innocent, smiling male infant as a potential future rapist, and suggests that teaching him different ideas of masculinity is the key to ending sexual violence. So presumably he can be taught to rape, or taught not to rape. Jasper himself contends that no one is born to be a rapist or a batterer, but rather that it’s learned behavior. MRA’s, though, seem to believe that Jasper wants us to think all boys are by default potential rapists who must be taught to behave more gently than the naturally crazed beasts they are. That, in their view, constitutes misandry (a hatred of men and boys) and is part of a hyper-feminist, emasculating pandemic fueled by government largess and the self-hatred of guys like Jasper (and me).But I think Jasper believes the way many of us did in the early days of studying non-stranger sexual violence. He sees a boy’s default setting as non-sexually violent, but believes the wrong rearing and education can turn almost any boy into a rapist. It’s probably a distinction without a difference for the MRA’s, but I think it’s important. I also think, unfortunately, that Jasper is wrong.As I’ve written in this space before, the best research we have shows that most men, regardless of what they’re taught, naturally won’t commit acts of sexual violence. A good upbringing certainly promotes respect for women and a view of them that isn’t grossly objectifying (although societal cues are anything but helpful). But what we’ve learned is that, even of the cads and womanizers out there, most naturally recognize and respect the boundaries of consent or incapacitation. And a minority of men, some of whom seem quite upstanding otherwise, view sexuality in a way that leads them to rape, and that they do so repeatedly and won’t be deterred regardless of what they’re taught as boys. They do most of the damage.In a way, this is a kind sentiment for men to hear. We’re not, as previously suspected, all potential felons with testosterone fueled libidos in need of restraint. But the other side of the coin is a very dark one indeed. Domestic violence, it might be argued, is more of a learned behavior. But where do rapists come from? What causes a boy to emerge in adolescence as a rapist or a sex offender? The fact is, as researchers like Anna Salter have disturbingly but compellingly suggested, we just don’t know. A tempting but inaccurate answer is that men who rape or otherwise offend sexually were themselves perpetrated upon as children. I believed this for a while as an ADA. But Salter and others have revealed that claims of abuse (over 90% for convicted sex offenders) is almost completely the result of self-reporting. Even threatening offenders with polygraphs takes that number way down. Will a sex offender or convicted rapist claim earlier abuse before a sentencing judge? Of course, because he knows it’ll usually produce a more favorable sentence, and he'll be seen as less of a monster than an offender who alleges no previous abuse.What's much worse is when this argument is reversed; when it's believed that boys and girls who are offended against need to sufficiently “heal” in order not to become abusers. This "vampire theory" is both appallingly cruel and completely inaccurate. The vast majority of survivors grow to become more protective and cognizant of the risks when they have or interact with children, even if the pathology they suffered leads them to make bad choices in other areas of their lives.Both of these ideas- one benign but mostly wrong and one malevolent and completely wrong, nevertheless stem from usually well-intentioned, Judeo-Christian efforts to understand evil acts by people allegedly created in His image. I’ve argued this for years with religious friends who can’t accept that a loving God creates people within whom malignant, torturous things simply bloom and create monstrous behavior. People just aren’t born with broken souls.Except that they might be.I’m only a lawyer; I have neither the ability nor the inclination to draw ontological conclusions. As my father was snarkily fond of saying when I asked him as a kid what God was thinking about this or that, “I don’t know, I haven’t talked to Him lately.”I'm still religious, and I still don't know. But I believe what methodological research and my own anecdotal experience suggests: There is evil in the world and we really don’t know where it comes from. That doesn’t mean that efforts like Jasper's, though, are in vain. If you view the ad as the MRA’s do (part of a continuing effort to demonize those of us with penises, even tiny innocent babies) then yes, Jasper is a misandrist. But I don’t think that’s the case. And there is great value in teaching boys gentleness, decency and even chivalry as long it’s understood that their female counterparts are not fragile, weak things to be protected and lorded over, but equals to be viewed on par in every way. This is particularly important given how popular culture and Madison Avenue sell and objectify women and sex, and it can be done without eliminating gender roles and the life-affirming interplay of sexuality. So were I Josh Jasper, I’d adjust fire (a reference I’ll bet he gets as a former Marine) but I wouldn’t back away from seeking to change how men view women.And I’d damn sure be careful to avoid assumptions that are tempting in their ability to explain the unfathomable, but potentially unfair to survivors of abuse or cynically exploited by abusers themselves. With that said, I wish Josh the best as he continues his mission. And I'll gladly share the target with him where the vitriol of the men's rights movement is concerned. Semper Fi.
Start By Believing
A hard-drinking and genius Senator from New York (Daniel Patrick Moynihan) was fond of saying that everyone was entitled to their own opinion, but not their own facts. When it comes to non-stranger sexual assault (the great majority), Moynihan’s admonition is no less true. So here are the facts:1. Most incidents of sexual assault are never reported to police.2. False reports of sexual assault hover around the rate of all other violent crimes (between 2% and 10%)3. Most rape is serial rape, meaning most men who commit rape commit more than one (the average is 6).These are research-based statements, and they have been confirmed in subsequent research efforts. This is what non-stranger sexual assault looks like, and it’s a plague. Interestingly, it’s a plague spread by relatively few offenders. Most men won’t commit what we understand legally to be sexual assault. They may be immoral, they may be disrespectful, but most are not rapists. They’ll stop when they recognize signs of fear, revulsion or discomfort on the part of their potential sexual partners (signs, by the way, that really aren’t hard to discern). If they come across an unconscious or semi-conscious woman (or man), they won’t shimmy the clothes and underwear off of the person and sexually penetrate her or him.Rapists, on the other hand, do what they do because it’s how they view sex and sexuality. They usually aren’t “traditional” criminals, meaning they often aren’t tattoo-covered, grinning TV villains. They don’t wear masks or jump out of bushes; they don’t have to. Instead they rely on the myths that surround and permeate the notions we as a society have about sexual violence. They employ remarkable cunning whatever their educational level in order to identify victims, and they usually use alcohol or other intoxicants to ready their playing field. When they strike, it looks like exactly what they want it to look like- confusion, equivocation, and what some in the media have termed “gray rape.” It’s almost never a clear-cut, “real” rape. “Real” rape involves scary looking guys with darker complexions than ours who jump out of bushes and attack complete strangers. Everything else is…well…a part of the dating ritual. A rite of passage. Just desserts for dressing slutty, drinking too much, staying out too late, and for leading on red-blooded American boys. Because after all, boys will be boys.Believe that tripe if you will, but you might as well insist the earth is flat. The reality-based among us understand that things like terror or incapacitation really aren’t that difficult to recognize for most men, and that most men take those cues and back off when they see them. Nevertheless, the deniers will insist that sex is kind of a game, and testosterone is a funny thing, and ordinarily good guys might sometimes push things too far even though they’re really solid, respectable men at heart. And of course, the assumption is that ordinarily good gals will sometimes naturally regret sexual liaisons that threaten their reputations and sense of self, and thus naturally “mistake” a consensual act for a nonconsensual one, thus resulting in a call to the police. Ah, and don’t forget the legions of gold-digging, devil-women who haunt the bars and dance clubs of the world, looking to sting athletes, actors and other celebrities with false charges of sexual violence for the chance at a civil suit payoff or a reality show debut. It happens all the time. Right?No. It really doesn’t. No more than “gray” sexual situations involving force and incapacitation regularly produce reports to law enforcement and subsequent dramatic trial dramas. In fact, the opposite is true. Most women in clear-cut situations of sexual assault blame themselves and move on, let alone unclear situations where they really can't remember or fully grasp what transpired. That being said, are people capable of lying about sexual assault? Of course. Do they? Of course. But is there any reason to believe that most people who allege sexual assault are 1) mistaken, or 2) lying? No. There is zero replicable, scientifically based evidence to suggest anything like that, and quite a bit of evidence to the contrary.That’s where Start By Believing comes from (a disclaimer- I sit on the Board of Directors of End Violence Against Women, International, the group behind the SBB campaign). SBB is revolutionary, and it should be. It represents a radical, new look at how we view cases of sexual violence. The bottom line is that, in the vast majority of cases, there is no reason to doubt the victim making the allegation. Further, even if one believes the victim, blaming her for “her part” in inviting her victimization is both wrong-headed and counter-productive.Victims don’t invite rape; they are chosen by rapists who seek them out and recognize them as attractive targets.A victim is never responsible for what “she did” to bring on a sexual attack. I’m a lawyer. I understand that the concept of “contributory negligence” (the idea that the injured person did something to contribute to his injury) is deeply embedded in the Anglo-American psyche. But that’s not how sexual assault works. Instead, sexual assault is a planned attack against an identified victim, chosen exactly because the offender figured she either 1) wouldn’t report and/or 2) wouldn’t be believed if she did. Further, the initial reaction a victim of sexual violence experiences has everything to do with how easily she can relate her own experience to authorities, how effectively she can assist in the case against her attacker, and (most importantly) how quickly she can heal.SBB is about changing the attitudes of the rest of us- those who will be the person a victim turns to when the unthinkable happens. If we simply start by believing- not judging, not questioning, not rationalizing- but simply believing, then we will be contributing remarkably to the healing process of the victim and (possibly) to the prevention of further attacks. In fact, it's not that radical when we break it down. We look at purse-snatchings this way. We look at assaults and car theft this way. When it comes to just about every other crime, we generally start by believing. There is nothing- absolutely nothing- to lead us in any other direction where sexual violence is concerned.Take the next step. For your daughters, your sons, your sisters, your partners, your spouses, your neighbors, your friends. The damage being done is incalculable, but so are the rewards when the tide is turned. It's time.
Life, Sweetness, Hope
It is the motto of the University of Notre Dame Du Lac, taken from an 11th century Marian hymn and a simple, lovely description of the woman we refer to as the Queen of Heaven. And yet in the shadow of her statue there, a dutiful commitment to the safety and physical security of the women of her community seems dreadfully lacking. So, apparently, is the pastoral compassion she would clearly have shown to a family suffering in the aftermath of a disaster.The focus of what happened when Notre Dame authorities were charged with investigating Lizzy Seeberg’s sex assault allegation against a football player last fall must not be lost. District Attorney Dvorak's decision not to file charges was an inevitability without a living victim; it says nothing about the truth of her allegations. What's worth focusing on instead is what the school has done or will do under its own disciplinary process, which has lower standards of proof than the DA and no need of her testimony. What's worth questioning is the fully accredited police department and veteran detectives whose full response to what Elizabeth Seeberg alleged was pitiful, slow and feckless.But rather than doing the painful work of self-examination and sincere contrition, Rev. John Jenkins, ND’s president, continues to insist that the investigation was “thorough and careful,” signaling that “we followed the facts where they led” as if he knows something we don’t, and that this was all a misunderstanding or worse on Lizzy’s part. He’ll go as far to admit that things could have been done faster, but in the same breath asserts that “care in the investigation is more important than speed.” This is breathtaking. How can this undoubtedly erudite man not understand that, in an investigation like that one, speed and thoroughness are inextricably linked? NDSPD had a duty to react- quickly. They had a compliant, cooperative victim. They had detailed facts. They had remarkably easy to find witnesses and suspects. They had the reality of a threat communicated to Lizzy the next day. They dragged their feet and then she died. And when her parents sought answers the university stonewalled unnecessarily, incorrectly citing federal law to do so.Of course, as my detractors will quickly note, we can’t ever really know what happened. This was a “he said, she said” case, and I don’t have a crystal ball. No, I don’t. And I don’t need one. Are we to believe that Lizzy Seeberg, with no history of being remarkably vindictive or divorced from reality simply made up every detail of that night (the accused- whose attorney says was a “complete gentlemen” telling her she’d need to “pee in the sink” for instance)? Does any serious person really believe she just fabricated this measured, reasonable account to her friends that night and the police the next day? It’s been pointed out that she never accused him of rape. Correct- she didn’t. And if she were an attention seeking liar doesn’t it make sense that she would have concocted a bigger story? Does it really resonate that a bright, hopeful young woman, new to a campus community, would choose to begin her first semester by taking on the most venerable football program in history for the sake of seeking attention? Over a regretful incident of touching? In order to “get back” at a student athlete she barely knew? And all of this after finally getting the opportunity to try again at college in such a promising environment after a long and difficult struggle? Are we to believe she made all of this up just because she wanted to risk the exposure, the backlash, the alienation of challenging the entire raison d’etre of her surroundings? Even if she can be accused of merely misunderstanding his actions, are we to assume she reported them anyway just to be on the safe side?This is utter, vacuous nonsense and it would be laughed out of any other argument that didn’t involve a sex crime. Indeed, the people divorced from reality are the ones drawing nonsensical parallels between this case and Duke Lacrosse and claiming some veneer of plausible deniability in this player’s name. I’ll stake everything I’ve ever been or will be that the player she accused manhandled and scared the hell out of her exactly as she claimed. And he got away with it, allowed to continue playing football despite her complete, immediate, comprehensive and compelling account to authorities. Nothing- not even the snuffing out of a brilliant young life- was enough to convince Notre Dame’s football program to simply ask this young man to sit out a few games until it could gather facts and lend appropriate gravity to the situation. Her blood cried out for that, at very least. But it wasn’t to be, anymore than tracking down this football player- whose whereabouts in season are as easily traceable as the President’s- was to be before 15 days passed.Lizzy’s father, Tom Seeberg, says what’s at stake here better than I could: “We are parents fighting for our daughter. We're fighting for our sisters, our nieces and our granddaughters. If not at Our Lady's university, then where? Where in the world would you fight for women? Where in the world would you fight for a cause like this?"The cause is a noble and crucial one indeed, and it’s about more than this lovely young woman and the heartbreaking truncation of her life. It’s about more than Notre Dame, a school the Seebergs still love and admire. It’s about how we view girls and women, and how we respond when they are sexually degraded, exploited and attacked. What we're facing is a plague, on college campuses as much if not more than anywhere else. And yet these environments, the very places where enlightenment should flourish and protection for young lives should be most prized, seem the most tone deaf to this problem no matter how much evidence is placed before them. I hope ND’s response to Lizzy Seeberg wasn’t colored by the fact that her accused was a football player. But that’s the perception many are left with. And under it flows a bitter current of resignation: The women of the Notre Dame community, as in most communities, are worth less than the men. Less than athletics. Less than reputations.ND has a solid policy on paper to deal with sexual assault. It needs to give life to that policy with investigations that don’t make a mockery out of serious allegations. Father Jenkins and the leadership of his great university need to own, not duck, dodge and explain away what happened when his system encountered and then badly mishandled the plea of a young woman who approached it with an open heart and the desire to do the right thing. But much more than that, they need to contemplate more deeply the commitment they are willing to make not just to the Blessed Woman they venerate but the mortal ones who cross their campus as young, imperfect, and sometimes vulnerable students in need of respect, protection and at least a vigorous, competent response to violent behavior against them. Because on August 31, 2010, five months ago to the day, one of those women walked onto their campus and endured a jumbled, sick perversion of the Notre Dame motto.She lost sweetness. Then hope. Then life.
Barbie and Rape Culture
A friend of mine has a seven year-old daughter. She is bright, beautiful, cherubic, and kind. Between the attributes she’s been blessed with and the fine guidance of her parents, she’s in a perfect position to capitalize on the hard-won victories of her female predecessors. She truly can be whatever she wants to be, and that is a blessing.Kate loves animals- she’s interested in observing them, caring for them and discovering names for them. What’s interesting, though, is that unlike many kids her age, her attention hasn’t shifted since she was a toddler. Animals are her passion, and assuming that doesn’t change, a career in veterinary medicine might be the perfect path for her. Of the things that could encourage her to think seriously about being a vet, I hope this isn't one of them:
This is "Pet Vet" Barbie from Mattel's "I Can Be" series, apparently depicting the kinds of professionals little girls can be if they emulate Barbie. I encountered this gift (the image reflects the exact same doll and packaging) when another friend of mine’s four year-old daughter asked me for help in opening it this Christmas. Initially I didn't see what the doll was supposed to be dressed as. Not just at first glance, but frankly after a few seconds, I concluded the doll was in a waitress outfit- and not a particularly conservative one. How else to explain the perilously short pink skirt and hose with some flowery fringe, a name tag, that sash thing, and the equivalent of four-inch platform shoes? Josie handed me the plastic box and I saw the "I Can Be" logo on it someplace. I remember thinking, "there's nothing wrong with being a waitress; it's an honest job. I waited tables for years. But it doesn't seem like the kind of thing they'd ask girls to aspire to for a career.""She's a waitress, right?" I asked out loud, mostly to myself although Josie was right there. She is both adorable and precocious. She wrinkled her nose and looked at me like I was an idiot."No," she said, "she a vet doctor and makes animals better."Oh.Barbie, in this box, doesn't look like a Doctor of Veterinary Medicine. I dated one once in New York, actually a brilliant eye-surgeon for dogs who makes a fantastic living at a respected clinic. She's very beautiful, but she doesn't wear hot-pink platform shoes and a mini-skirt to work. She wears comfortable, rubber-soled shoes and loose-fitting scrubs to work, usually covered by a white lab coat depending on what she's doing. In fact, I've never seen any medical professional dressed the way this doll was. Are there vets who wear heels at work? A guy I grew up with is a physician and farmer in rural Wisconsin- my guess is the female vets he encounters don't, but I could be wrong. A short skirt and four inch heels could be a plus when walking from the truck to the barn to assist in the birth of a calf during a snowstorm.I'm hardly the first person to criticize the Barbie phenomenon, a uniquely American craze that's been in existence for 50 years. Ever since high school and a disturbing but spot-on poem entitled "Barbie Doll" by Marge Piercy, I have been aware of the unrealistic and cruel standard that Barbie dolls set for the girls who love them. That's an issue, and a legitimate one. I suppose an argument could be made that focusing on what girls can grow to be, through a Barbie fantasy, can be healthy and encouraging despite her cartoonish dimensions and features that almost no girls can hope to "achieve." Fine. There is a place for pretty dolls, I guess, and if those dolls are also portrayed as smart, learned professionals, it can be a good thing. But is it necessary to showcase the "I Can Be" Barbie in clothes that, while sexy and fashionable, are completely inappropriate for the practice of the career being described? To be fair, there are other Barbie outfits for this and similar professional jobs that are much more appropriate. So why is this one marketed at all? Veterinarians don't wear this- they just don't. If anyone pictures a veterinarian this way, he's probably a basement-dwelling weirdo with deeper issues.So what does Barbie have to do with rape or rape culture? Rape culture is described more eloquently by others, including my friend and colleague Jaclyn Friedman here. Basically, it's a societal acceptance and even encouragement of sexualized violence based on norms, attitudes and practices within a culture. Our culture objectifies women sexually in so many ways it's silly to offer a single example. That is what it is. I'm not against sex appeal and I'm not about to categorize women generally as helpless victims, unable to control or use their own sexuality to whatever aims they choose.But in the hands of a child, something especially damaging occurs- something devaluing, objectifying and wrong- when the focus of a grown-up doll (otherwise portrayed as an educated, accomplished professional) remains her sexuality. When the doll portrayed as the vet, pediatrician, engineer, lawyer, etc, is also shoe-horned into the trappings of rank sexuality, then it's really not the degree she holds or the skills she's developed that count. It's what she has to offer for the physical gratification of men that counts. That way, she's more of an object- an object with a degree, maybe, but an object nonetheless. And objects are there to use, not interact with, negotiate with, get to know and value, the way fellow human beings are. I use a screwdriver; I don't seek to get to know it and pursue an equitable, give-and-take relationship with it for mutual goals. Teach me from childhood that a woman is a similar tool and at least I'll regard her as something for my amusement. At worst I'll regard her as something I can push around and enjoy despite what she wants. Teach girls, in clear and unsubtle ways, that what really matters (no matter what professional goal they achieve) is how they present in some impractical, fetishized version of the dress of that profession, and at least they'll value themselves less than they should. At worst, they'll come to expect and accept being pushed around, used, and even raped.I know there are millions of women who played with Barbies as little girls and are healthy, happy adults despite her fictional standards. That's fine. But if Mattel is interested in maturing and professionalizing Barbie in certain circumstances, they'd do better to mark a clear line between dress-up Barbie and career Barbie. The more the lines are blurred, the less the woman matters as a person. That's rape culture.
Don't Mess With Maine
Honestly, it must be great to be Glenn Lang.Not because his life is particularly easy; I had the pleasure of teaching with him at a training sponsored by my former unit, the National Center for Prosecution of Child Abuse, earlier this year. He’s not a professional athlete, a recording star or an actor. He doesn’t live in a Monaco hotel or a Malibu villa. He’s actually a beefy, classic “Dad” looking, state police sergeant from the great but often punishingly frigid state of Maine. He drives a normal car and deals with the normal stressors we all endure, if not more. He and his wife share normal worries about paying the bills and getting the kids through school.But Sergeant Lang leads a team- the Maine State Police Computer Crimes Team- that in 2008 was largely responsible for saving the life of a nine year-old girl who had become the subject of an unspeakably hideous series of images and videos to child pornographers worldwide. The name given to the child was “Tara” and the videos and images of her (the so-called "Tara Series") were uploaded to a shadowy and highly secretive group of child porn consumers around the globe. She was molested, raped, and then ruthlessly exploited by a northwest Georgia man named Bart Huskey, a 38 year-old tennis instructor now thankfully serving 70 years in a US Federal penitentiary.The investigation started in Australia where local authorities busted the high-tech ring where “Tara” had become a commodity. One of the arrested men provided law enforcement with video and images of her that had been taken over the three or so years she’d been a slave of Huskey’s. Frighteningly, the recorded attacks on her were getting more dangerous. In one of the later images Huskey was seen using weapons against the girl. Investigators feared it was a matter of time before he maimed or killed her, particularly as it became clearer that an international effort to find her was underway. Australian authorities reached out to the FBI, and that agency took a bold step: They reached out to every ICAC (Internet Crimes Against Children) team in the United States for help in narrowing down the whereabouts of the girl.ICAC teams are a phenomenal idea. Sponsored by a program under the US Department of Justice, the teams have sprouted in almost all states and several large cities, and focus on computer-facilitated child sexual exploitation and abuse. Sgt Lang's Maine is one of them. His team heard the call for anything that might assist the FBI on the “Tara” case, and they went to work. Dawn Ego, one of his computer investigators and a mother herself, must have felt something stir when this case came across her desk. She latched onto the case, in Lang’s words, like a “pit bull,” relentlessly combing the images and video for anything that might lend a clue as to where “Tara” was and where the images were being generated from. Swatches of bedclothes, a ribbon hung on a wall in a motel, and the interior of a car were the things Ms. Ego and the team honed in on. It was painstaking, shoe-leather detective work, all of it done by necessity with the sickening backdrop of “Tara” being abused repeatedly. But it paid off. The Maine ICAC team asked the FBI for all of the usable videos and images. Through a meticulous examination of the backgrounds and environments of where they were being made, Ego, Lang, and the rest the unit began to narrow things down. Ego identified the ribbon and bow on the motel wall and eventually discerned its manufacturer. The manufacturer had a distribution pattern that got them down to roughly the southeastern US. The bedclothes took them to a hotel chain in the same region, and a redacted photo was sent eventually to the right hotel; the management confirmed that the room was one of theirs. At the same time, the interior of a vehicle Huskey used in a video was narrowed to a particular make and model. When investigators found the hotel, they were able to get a copy of Huskey’s driver’s license from the management after pin-pointing a date where he’d been there with “Tara.” The burnt orange Pontiac Aztek that Lang’s team identified in one of the videos was discovered to be owned by Huskey’s wife.It was go-time.When investigators knocked on Huskey’s door, they hit pay dirt. He confessed, and later pleaded guilty. The child “Tara” was rescued and taken into protective custody. Lang was able to call Dawn Ego late on the night of Huskey’s arrest and personally deliver the good news.The path to Bart Huskey was much more complicated than I can describe here, and there were a few dead ends. But even some of the dead ends yielded some valuable child pornography arrests in other cases. And in the end, because of the tenacity of Lang’s team and the entire investigatory force stretching back to Australia, the man was located among 300 million people sprawled across a continent. From that universe, a glorious thumbtack was stuck between the eyes of James Bartholmew Huskey, plucking him from the obscurity of a quiet town to the judgment of a United States Federal District Court.It’s perhaps obvious but important to note that Huskey’s arrest doesn’t make things all better. “Tara” was rescued, but she is deeply scarred and her road to recovery is just beginning. And thousands upon thousands of consumers of the material Mr. Huskey produced will still obtain it, view it, trade it and enjoy it for God knows how long to come. But “Tara” is alive, and Bart Huskey will likely never attack, use, exploit or rape another child again. It’s far from perfect, but in the crapshoot, tumbling-dice reality of the globe we navigate, it’s a blessed seven.So still, the players who made it happen, including Glenn Lang, Dawn Ego and the rest of the MCCT, will find themselves underpaid, overworked, pelted by sleet, stuck in traffic, on interminable bank lines and 1000 other minor insults of daily life. But my hope is that they’ll still smile in these moments from somewhere very deep down. They’ll smile because at least once in their already noble careers, they faced down the darkest evil imaginable. They meticulously stalked it, tracked it down and then cornered it within four walls.They triumphed. And so did we.
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.
A Letter from a Prosecutor to a Young Woman
Dear Elizabeth:I don’t see what more you could have done.As you well know, reporting sexual assault is a remarkably difficult act. It is deeply emotional, terrifying for many reasons, unpredictable and often thankless. You may not have known while you were alive that the great majority of sexual violence is simply never reported to authorities. But you did report it, quickly and comprehensively. I’m in awe of your courage.I can only imagine how difficult it was for you in particular, Lizzy. You were a 19 year-old college freshman who had struggled with depression; a lovely young woman who had just started studies again after a difficult first year. But you made it to St. Mary’s, an excellent, close-knit school and one situated along with Notre Dame in the heartland of Catholic education. Arriving in this environment from a strong Catholic background must have been an incredible and hard-won joy for you.But I’m sure it also made it infinitely more difficult to come forward and report what happened on the night of August 31. Being sexually assaulted at a place like Notre Dame and by a member of its football team- the very beating heart of the school for many- is an act that would have silenced most. Few things are more difficult to come to terms with than being attacked in a dorm room by a football player on one of the most venerated sports campuses in the world. The idea of telling anyone must have been horrific, especially as you were just settling into a new school, a new semester, a new season of hope. I've spent a career learning how hopes like that can be destroyed in the space of moments, and it never gets easier to hear.Still, you faced down your fears and took action. You told your friends and wrote down what happened that very night. You went to campus police the next day. Despite the fear of being portrayed as God-knows-what and the fury that might rain down on you for reporting against a football player, you reported anyway. Despite the discomfort of an invasive physical examination, you endured one. Despite the fear and exhaustion that comes with entering counseling in order to fully recover from such an attack, you did that, too. You did everything that could possibly have been asked of you.That’s why I’m trying to understand why Notre Dame, the world-class, excellent institution where you were attacked, has reacted the way it has. I don’t know why campus police didn’t turn over a case file to the St. Joseph’s County prosecutor’s office until just several days ago- after your case became national news and your hometown paper began demanding answers. Nor do I understand what’s behind the school’s refusal to release police records regarding what they know about what happened to you- even to your parents.Finally, and most disturbingly, I don’t know why the man you reported against has played an entire season of football. While it’s true that he is and should be considered innocent until proven otherwise, his privilege to play football isn’t in any way related to his legal rights as a citizen. The fact is, you reported swiftly and completely a serious crime to the proper authorities that control his ability to play, and you followed through with evidence collection, counseling and cooperation. Yet still they have chosen to refuse to even acknowledge your complaint, let alone bar him from playing at least until the investigation is completed. This despite your death. Coach Kelly won’t state whether he’s even spoken to the player you identified. He’s quick to remind us that he stresses respect for women in his program, is a father himself, and wants “the right kind of guys” on his team. Well, the player hasn’t been benched in three months; from this we can fairly deduce that Coach Kelly supports him as someone who is “the right kind of guy” and worthy of wearing the uniform. If that’s so, why won’t he give his reasons?The sad fact is there’s an ocean of ignorance out there regarding what happened to you, Lizzy. Many who are watching the case unfold are repeating over and over again the meaningless mantra that that we must all “Remember Duke Lacrosse.” It’s because many believe, with nothing to back it up, that women regularly accuse men falsely of sexual assault, and especially athletes. They’re happy to extrapolate one example of a false accusation to every possible situation, despite the mountain of evidence suggesting that women just like you endure what you endured day in and day out, usually in numbed silence.Even worse, some just don’t think that sexual assault is nearly as important as college athletics, and they’ll sacrifice the vindication of a budding, brilliant life like yours in a flurry of nonsense that will trivialize your suffering and ruthlessly twist reality. They’ll call it regret. They’ll call it a misunderstanding. They’ll call it anything but what it is, and they’ll ensconce and defend the man who did it so he can simply do it again. So even the prompt, thorough complaint you made and the investigation you participated in until your death wasn’t enough to bench a football player for a few games until some evidence came to light, one way or another.But as you know, there are also wonderful people both at Notre Dame and at St. Mary’s. Both are beloved, respected schools for a reason, and I know you felt and still feel that. To the heroic staff from St. Mary's Belles Against Violence who worked with you and actually found you before you died, I hope you smile on them from where you are and bless their work.I believe in a loving God, Lizzy. Although I’m a Catholic as you are I don’t believe He punishes those tortured enough to take their own lives, and I’m confident that you’ve reached a plane of existence that will give you not only blessed relief but also infinite understanding. So I guess this letter is more for me than for you; you have the answers now.Still, I’m sorry. I’m sorry I didn’t know you in this life, and for what it’s worth l would have been honored to work with you to see the case against your attacker proven. I would have had much to go on, given the dedication you showed to pursuing justice and the courage you summoned to do what most of us wouldn't have dared. Thank you.Roger
The Power of Two
In child abuse prosecution, it is all but axiomatic that a two year-old victim simply cannot describe her victimization to any legally usable degree. In most cases, toddlers that age can’t relate anything reliably. Facts that can be gleaned are disjointed, conflated with the product of imagination, or just impossible to follow. Most prosecutors, even if they’ve raised children themselves, won’t attempt to interview a two year-old. If the child is three, and fairly precocious, maybe. Two is just too young.But ADA Danielle Pascale is not most prosecutors.The Bronx District Attorneys Office, where I served for almost two years, is one of the most challenging in the country. The Bronx, despite its generally dismal image, is an interesting, diverse, and in some areas beautiful place to live and work. Its food, in neighborhood restaurants and corner delis, is fantastic. It is framed by magnificent waterways and huge, shaded parks. Its historical value and educational heritage are unmatched almost anywhere. Some Bronx neighborhoods are charming, tree-lined and friendly. But grinding poverty and social pathology deeply haunt other areas and still produce crime, while less now than in the hellscape of the 70’s and 80’s, in daunting amounts.Danielle is a product of the Bronx and serves in the Child Abuse and Sex unit where she’s been for nearly nine tough years. Her compassion for, love of, and raw skill with children are unmatched anywhere in my long experience in child protection. But sometimes, Danielle surprises even me.A few months before I left the office, a particularly horrific case arose that fell to Danielle. In a Bronx apartment, a toddler I'll call Jane stumbled out of her mother’s bedroom and into the living area she shared with her three older sisters. Jane’s lip was split, her hair disheveled, and her face bloody. Blood was later discovered in her underpants, reflecting a brutal injury to her vagina. The suspect, Jane’s mother’s boyfriend (I'll call him John), had been in the bedroom alone with the child and walked out a few seconds later. Jane’s sisters reacted quickly and called the police. Jane was taken to Jacobi Medical Center, an excellent Bronx hospital where child abuse is often investigated and treated. She was attended to by physicians and taken into protective custody. As part of a multi-disciplinary effort in the Bronx to get ADA’s involved early in child abuse cases, Danielle responded to Jacobi after Jane had been treated to see what could be done with the case.When Danielle encountered Jane, she was armed with nothing but the contents of her purse and her cell phone. She played with the girl for a couple of hours, interacting with her, building rapport, and (in the spirit of the team approach to child abuse) watching her and assessing her ability to describe what had been done to her. Given Jane’s age, this step is one most prosecutors would have skipped, believing it hopeless. Patient and tender interaction with an abused and traumatized child is its own absolute good, and the time Danielle spent with Jane wouldn’t have been wasted anyway. But what emerged from that effort was remarkable. Danielle was impressed with the cognitive level of development the child was showing, and eventually decided to use the video function on her cell phone to see how Jane would respond to seeing herself recorded. She loved it, and recited her name, her ABC’s, and eventually her knowledge of basic body parts like her nose, mouth and eyes. Then Danielle put the phone away. Careful to frame the question fairly and not suggest anything to the child one way or the other as she had been trained, Danielle asked Jane if she knew why she was at the hospital. Jane nodded.“John hurt my cookie with his hand,” she said. Danielle asked Jane if she knew where on her body her 'cookie' was. Jane pointed to her genital area. And who was John? Mommy’s boyfriend, Jane knew.New York law allows something called unsworn testimony with children who are too young to be properly sworn as witnesses before tribunals like a Grand Jury or a court of law. Their testimony can still be considered as long as it is corroborated with other admissible evidence. Danielle’s first challenge once charges were brought against John would be a presentation to one of the Bronx’s sitting grand jury panels. She knew that the physician and child abuse specialist on her team could testify compellingly to the injuries to Jane’s vagina and face. There was no question that she had been hideously attacked; the only question was who did it. The circumstantial evidence was very good to begin with- the suspect had been alone in the room with the child and had walked out almost immediately after her in view of Jane’s sisters.But Danielle got far more than that. A child less than three years of age, whom she had known for less than an afternoon, told her in no uncertain terms who had harmed her and how. Danielle would now make sure Jane told the grand jurors who would hear the case against her abuser. The testimony would be unsworn, but with the other evidence it could be considered if it could be elicited. Seeing how well Jane had reacted to being video recorded, she arranged for a camera crew the next day to come to Jacobi, and before the camera asked Jane the same simple questions. The jurors saw this evidence in context with the rest and passed the case on to the next level of prosecution, where it remains pending.My friend accomplished the nearly impossible through patience, deftness, compassion, and an almost ethereal ability to reach and draw from a child far too young to speak on her own. In so doing, she gave Jane something the child had likely never experienced and probably won’t again for some time to come: Power. Her power to express herself yielded a simple and profound truth that, communicated to players in a system of justice, went far to seal a criminal case against the man who brutalized her. A two year-old shouldn’t need that kind of power, but in her case it was utterly crucial to ensure justice and protect herself, her family and other potential victims like her. This empowerment was certainly lost on Jane in the moment. But God willing, echoes of it will cascade throughout her life and shape the woman she’ll become. For Danielle, it was all in a day’s work.
Colorado DA: Walking Away from Justice
Those of us in the ranks of American prosecution who are drawn to sexual assault cases aren’t there because the work is easy. Non-stranger sexual assault is notoriously difficult to prosecute. It’s also remarkably common, and therefore simply can’t be ignored. If you’re in the business and you give a damn, you take tough cases. Either that or you head back to Grand Theft Auto.Ken Buck, a DA in Colorado and recently defeated Senatorial candidate, refused to prosecute a case a few years ago that, by all appearances, was the type of case sex crimes prosecutors dream of in terms of evidentiary value. Buck’s walking away from that case probably didn’t cost him the United States Senate; the race was razor close, and there were myriad other issues and missteps that kept his opponent in the seat Buck vied for. But it didn’t help.What happened is simple enough to describe: In 2005, a 21 year-old student of the University of Northern Colorado was sexually assaulted by a former boyfriend in her apartment. The two had remained in contact, and late one night the victim invited him over, actually telling him how to jimmy a window in order to get in. But when he got in and crawled into bed with her, he found her highly intoxicated and half-conscious. In legal terms, she was unable to give consent to sexual contact. Moreover, what she does remember about the incident was saying “no” to him more than once as he sexually penetrated her with his fingers and penis despite her obvious condition and unwillingness to engage. After a brief delay, she reported all of this to police in Greeley, where the school is located.At that point, the right things were still happening. There are plenty of places in this country where authorities would listen to an account like the one the victim gave and do little more than roll their eyes. She invited him over. She told him how to jimmy a window to get in. So she was “too drunk” and said “no” a few times? Whatever. Greeley police, though, took the case seriously and set up and recorded what’s called a “pretext phone call” between the victim and the suspect. The idea, legal in Colorado and many states, is for the victim to make a recorded call to the suspect (unbeknownst to him) and attempt to discuss the incident, hoping for statements that can be used in court.The call was a remarkable success; on it, he clearly admitted knowing that what he did to her was rape- she actually used the word and he agreed with it- and he apologized repeatedly, admitting that he knew she was barely conscious and unwilling to engage sexually. Sometime later, he was interviewed by detectives and made further admissions: He admitted knowing she was barely conscious when he encountered her. He admitted that he heard her say “no” to his actions no less than three times. He acknowledged he had done something wrong, even going as far to as to admit that he attempted to wake her up so he could apologize.Bottom line: The completed detective’s case, when it made it’s way to the Weld County DA’s office, was a prosecutorial gold mine for a Colorado sexual assault charge of some degree. And that’s where it died.As I’ve stated before in this space, judging another DA’s case from afar is something that shouldn’t be done without a serious disclaimer: I don’t know Buck’s resources, specific laws, legal culture or jury pool. But again, through the sleepless engine of electronic media, I’ve learned quite a few intimate facts about the case, and most importantly, I’ve heard him speak. What I heard wasn’t an official statement, though- it was a surreptitiously (but legally) recorded conversation made by the victim when she met with Buck to discuss why the case wasn’t being prosecuted. Assuming the transcript is accurate, what Buck said to this young woman was legally inaccurate, needlessly defeatist, and suspiciously manipulative.Let’s start with Legally Inaccurate: Buck, like so many prosecutors before him, hid behind the canard of “ethical responsibility” by telling the victim the case needed “an expectation of proof beyond a reasonable doubt to a jury.” This is simply false, and was used in the same way by Georgia DA Fred Bright when he decided the Ben Roethlisberger case earlier this year. As I stated while discussing that case, the National District Attorneys Association Standards for Prosecutorial Ethics require that a prosecutor bring “only those charges which he reasonably believes can be substantiated by admissible evidence at trial." Mr. Buck had more than enough.Then there’s Needlessly Defeatist: Buck tells the victim twice that he had “never met a prosecutor who would” conceivably take the case to trial. If so, he must run in a very small circle of prosecutors. I have never practiced in Colorado but I’ve trained with several Colorado DA’s (including the out-going governor Bill Ritter) I'd bet would take this case without hesitation. A phenomenal and nationally renowned advocate and sexual violence expert named Anne Munch also makes her home in Colorado. If Buck wanted help proving this case, he had no shortage of resources.Finally there’s Suspiciously Manipulative: The victim had been a rape crisis advocate, which was part of the reason she pushed harder for an explanation. During their conversation, when she presses Buck on his decision, he goes from strangely obtuse to subtly threatening. He suggests that her invitation to the suspect was clearly about sex, even though sex was never mentioned, as if no other reason could have existed for it. He then crudely rebuffs her point that, regardless of what could be inferred from the invitation, she and he BOTH acknowledged that she said “no” and was in and out of consciousness. To follow the argument is to see Buck clearly avoiding the case regardless of any reasonable analysis to the alternative. Then, when the victim suggests she might bring a motion to compel prosecution (a court order that would require Buck to take the case), it gets uglier. Buck says that, if she brings such a motion, all of the facts will become public, including ones that suggest she has a motive to lie, which Buck appears to have considered himself (the two became pregnant over a year before and had a miscarriage- how Buck believes this would inspire a woman to level a false rape charge against the father she still keeps in touch with over 18 months later is bizarre, but apparent). He basically warns her that challenging his decision will result in embarrassment and exposure, somehow shedding light on things she obviously should feel ashamed of.In Buck’s defense, he apparently undertook efforts with the local rape crisis center after this case to learn how to better serve victims of sexual violence. Whether they stuck or not is beyond the scope of this post, as is how the case reflects on Buck’s views on women generally (those views were speculated upon frequently during the campaign). I’m not going there. But what is clear is that Ken Buck refused to prosecute a sexual assault case that was orders of magnitude more promising than most encountered in this business, and that his reasons for not doing so were badly expressed at very least to a concerned victim of crime. I hope he learned something from it. I doubt seriously the perpetrator he failed to hold responsible learned anything.
Yale Daily News: Use Your Voice
The student writers at the editorial page of the Yale Daily News ( YDN ) are demonstrably talented. They craft subtle, dispassionate arguments and plumb impressive vocabularies. They attempt to see different sides of contentious issues. This is not surprising. They also appear thoroughly misinformed when it comes to how sexual violence plays out most commonly in exactly the environment their readers inhabit. This ignorance, reflected clearly in an October 18th editorial addressing an offensive fraternity pledge chant shouted across campus, is also not surprising.A profound misunderstanding about sexual violence, particularly as it happens on college campuses, is neither inexcusable nor uncommon. Few understand the dynamics as well as the experts, and the underpinning research is still new. But the editorialists at the YDN have a considerable voice within one of the country’s most distinguished schools. As such, they should be challenged on their analysis, as it is both negligent and presumptuous on two key issues: One is that the misogynistic, violent chants they rightfully decried are still, at bottom, nothing more than boorish ‘boys will be boys’ behavior. Second, and more dangerous, is their belief that there is a clear distinction between the boisterous, chanting young men or those like them, and some mythical group of rapists who should never be confused with these “members of the community.”YDN, take notice: The threat to the women (and some men) of your campus does not lie with strangers, outliers and interlopers to campus life. It lies squarely with, in relatively rare but prolific cases, the very men you’re ultimately defending as harmless. In fact, the few but truly dangerous men in your midst who do rape look exactly like the ones who don’t. They share the same classrooms, inhabit the same dorm rooms, and attend the same parties and rush events. And yes- chants like the ones heard earlier this month do have the power to do more than offend. They have the power to blunt the sensibilities of the unwitting accomplices these perfectly respectful looking rapists look to for assistance, and they diminish the value of the women these rapists target, making them easier to dismiss as objects for use.There was a belief for a while in some parts of the anti-sexual violence movement that testosterone was ultimately the culprit when it came to sexual violence. Boys will, in fact, be boys, this thinking went, and unfortunately that included rape where the boys or young men were untrained to stop themselves, or to recognize terror or revulsion on the part of potential victims. A lurking rapist existed inside of every red-blooded male, went this thinking. It is not true. In fact, most men are not capable of sexual violence, and most sexual violence is not the product of some “misunderstanding” or “one-time mistake” as is so often the anodyne offered up to explain rape. Men may be womanizers, players, dogs, bastards, whatever label appropriately defines their unhealthy attitude toward women or sexuality, but most won’t use physical force against a partner while she struggles in terror, or shimmy off her clothes and sexually penetrate her while she is literally passed out. Instead, what replicated, methodological research has revealed is that a relatively small number of men, while completely functional otherwise and normal in appearance, are deeply disordered and view sexual violence as normal sexuality. Further, not only will they likely get away with sexually violent acts for a variety of reasons related to their environment and their place in it, they’ll do it over and over again. They are “undetected rapists” as Dr. David Lisak has labeled them (Lisak is a groundbreaking researcher I’ve mentioned before in this space). They commit most of the adult rape we experience, and they can be anywhere.So while the YDN might smugly dismiss as alarmist the contention of the Women's Center that these chants were a call for sexual violence, they should recognize that the undetected rapists who do exist among the chanters and listeners are emboldened by a public call to use women like appliances. They also benefit from a general atmosphere of degradation and objectification of women. While most of the men around the offenders are themselves not dangerous, they are far more likely to simply walk away from a situation where they could make a difference if they’ve been conditioned to view the woman in question like a commodity. So if a non-offending male observes a friend or fraternity brother literally carrying a comatose young woman into a bedroom, or wanting to shoot cell phone video of her gagging on his penis while she’s going in and out of consciousness, that male is more likely to shrug and walk away, believing it’s all a part of college life.That’s the danger of those chants, and that’s the reason they have generated a strong response. I’m not anti-fraternity and I readily acknowledge that the impressionable young men reciting the lines were not suddenly inspired to rape because of them. But these chants were, if unwittingly, empowering a small but dangerous number of men either within their group or within earshot that will rape. And they were dulling the protective judgment of the only men who might be able to stop them.To the Yale Daily News, I’d ultimately remind of you of this: Voices matter. The voices of the young brothers that poisoned the air over what you call Old Campus, a place I can only imagine in terms of its grandeur and veneration, matters. Yours does also. Learn better the dynamics of the sexual violence that harm the honorable and invaluable learning environment you love so much and speak for so powerfully. Acknowledge the voices- chanted, written or mumbled- that further that harm, wherever they emerge. Then, use yours.