Worth Knowing in the Dylan Farrow Case: The Actual Risk of Suggestibility With Children

Tom Lyon, A law professor at the University of Southern California, has a remarkably valuable dual background when it comes to legal child protection: He's both an attorney and a psychologist. Among the most influential contributions he's made is this article, plainly titled "Let's Not Exaggerate the Suggestibility of Children."In a child sexual abuse case, suggesting the complainant was either coached to adopt fantasy as reality, or simply did so out of confusion between the two, is a popular defense tactic. It's particularly attractive because it doesn't involve judging the victim or accusing her of lying.  She can be viewed as, in a sense, as much a victim as the state is claiming, but in an entirely different way.This has, not surprisingly, been suggested over and over again regarding the allegations made by Dylan Farrow, adopted daughter of Woody Allen. Countless observers, and indeed Allen himself, have suggested that Dylan is not a devious liar, but instead a sad pawn, indoctrinated to believe a false memory in the context of a vicious divorce and custody battle.For this reason, it's important to understand what respected research has to say on the subject of- in fact- how suggestible children are. I'd encourage you to read the article itself if you're interested; it's written for a general audience and not dense or jargon-filled. But in a nutshell, here's what the research reveals:1. Very young children (3 and 4, which is about as young as a child can be forensically interviewed except in exceptional circumstances) can be led to adopt false memories or incorrect versions of events. But this only occurs after extreme efforts such as a very long passage of time between the actual event and the interviews, and repeated interviews over time with constant introduction of false memories. And even with these efforts, a majority of these same, very young children will maintain the actual version of events and resist efforts to conflate fantasy and reality.2. The danger of children conflating fantasy and reality drops off sharply at around 5 or 6 years of age.3. By the age of 10, children meeting normal developmental milestones are no more susceptible to adopting false memories than adults.Even more interesting: The first research done on children and susceptibility (often called the "first wave") was done by respected psychologists, but also child protection advocates and researchers who believed children were not nearly as susceptible as popular culture largely accepted. The so-called "second wave" research was conducted by equally respected psychologists who thought the first-wave researchers were being too rosy in their assessments and set out to demonstrate that children can be made to adopt incorrect or even wholly false versions of events if efforts are strong enough. They succeeded, but generally with extremely young children and through efforts that are virtually unheard of in child abuse cases. The bottom line is that yes, mostly toddler-aged children can be led to adopt false memories with repeated, methodical, and highly suggestive attempts to confuse them after a considerable amount of time has passed between the event and the repeated interviews. But even with these tactics, a majority of children will still maintain a a correct version of events.Dylan Farrow was seven when she allegedly endured what she clearly describes now, at 28, as sexual abuse at the hands of Woody Allen. Describing her as a liar and a willful tool of her embittered mother even after 21 years is arguable, as it always will be. Anyone can lie, and some can lie very convincingly.But claiming that she was simply, easily and permanently led to create a false memory- at the level of detail she now relates- is a claim utterly unsupported by the very best research on the subject, about half of it conducted by skeptical researchers suspicious of children's abilities.Those who believe Allen is innocent may be right; I will never know and neither will they. But neither they nor Allen himself have a right to claim that Dylan was easily confused and now sadly tied to that confusion. To believe Allen is innocent is, in all likelihood, to reject the detailed account Dylan has given, and to reject her as a liar; the worst kind.Period.  

Proposed Changes to Military Preliminary Hearings: Reasonable, Easily Implemented, and Sorely Needed

While I believe Congress should pass the Military Justice Improvement Act, there's a far more easily implemented change being urged on the President that should meet little resistance. But even it is considered "radical" in some military circles. Recently, a Navy Times article focused on proposed changes to Article 32 hearings, which under the Uniform Code of Military Justice operate like preliminary hearings in civilian systems. The “32,” as JAGs typically refer to it, is a less formal hearing where evidence is presented to a neutral investigating officer. That officer then makes a recommendation about the case to the Convening Authority, that is, a commander (usually a general officer) who then makes the final decision as to whether the case is “referred” for court martial.The changes- implementable by the President- are being proposed specifically for the enhanced protection of complainants in sexual assault cases; the need for them became apparent to reformers particularly after the exhausting, multi-day examination of a Naval Academy midshipman involved in a rape case against three classmates late this summer. The changes are sorely needed, in least in terms of how Article 32 hearings often play out in sexual violence cases, and they are eminently reasonable. Yet the language used in the article is perhaps a measure of how concerning any change to the military justice system is to insiders. The reporter describes the proposal as a “major reform” and a “radical overhaul” of the process. It is neither.The officer who presides over the Article 32 hearing listens to evidence, prepares a summary of the testimony, and gives recommendations for disposition to the Convening Authority. At present, there is no requirement that the investigating officer in an Article 32 hearing be a military judge. Or a JAG. Or someone with any legal training at all. The I.O. can be simply another officer uninvolved with the case, meaning a company commander in an artillery brigade, a signal corps officer, or one of any other specialty.For many UCMJ offenses,  this is not a matter of concern. The idea of the Article 32 hearing is to allow for a neutral party in the officer corps to consider the matter before a commander at a much higher level considers whether to convene a court martial around it. That officer doesn’t have to be legally trained, in many cases, to competently consider facts and listen to witnesses.But sexual assault cases are unique and difficult to adjudicate fairly. This is particularly true when they involve (as they almost always do) circumstances like parties known to each other, alcohol consumption, or counter-intuitive behavior like delayed reporting or post-assault communication. Aggressive defense attorneys, bound by ethics to defend their clients zealously, can and do sometimes take advantage of both the relative informal setting and legal inexperience of the I.O. to ask questions of complainants that would not be permissible in a court martial.In the extreme, this can amount to a strategy of harassment in hopes of improperly discouraging a victim from continuing with a prosecution. Certainly not all defense attorneys plan this kind of legal attack, but without an adjudicator that is familiar with the limits of the law, aggressive and improper questioning can go unchecked even when prosecutors object. I.O.s can seek legal assistance during an investigation, but they don’t have to. Further, defense attorneys may actually outrank both the prosecutor and the I.O, adding a further complicating dynamic. Senator Boxer and co-sponsors (Senator Blumenthal and Congresswoman Speier) are asking the President to formalize the Article 32 process so it mirrors more closely preliminary hearings in Federal courts. This is not too much to ask.I’ve been told by JAG friends in other services that military judges are regularly utilized to oversee Article 32 hearings. My observation of the Army process though, was much different. I personally never saw a military judge assigned to an Article 32 hearing, and knew of only one or two cases when a JAG presided over one.Military-wide, the process should be tightened to guarantee that justice for both parties is best approached, and in exactly the way that American criminal procedure provides: By guaranteeing that legally trained professionals who know the rules will also enforce them.

MJIA: The Right Approach to Military Justice with the Right Kinds of Cases

C.S. Lewis, in the character of a demon in The Screwtape Letters instructing a protege on how lead men to Hell, notes that murder is no better than cards, if cards will do the trick. Lewis was talking about sin, of course, and which ones could successfully separate a person from God. But a limited analogy can be drawn between Screwtape’s analysis and the subtle circumstances that can thwart criminal justice. Cynicism, perfidy and incompetence are all well-known enemies; players in the system influenced by these will fail victims and their community. But there are also more subtle, even inadvertent circumstances that can hinder justice as well.In almost three years as a civilian expert with the Army JAG Corps, I encountered almost exclusively highly competent, honorable and devoted trial lawyers both prosecuting and defending criminal cases. I also largely found commanders- the decision makers within the military system- to be fair-minded, conscientious and decent.Still, at least in terms of how the concept of criminal justice is viewed in the civilian world, I saw systemic aspects of military justice that, despite best intentions, somtimes stand as impediments to the kind of justice we expect in response to serious crimes. These are best confronted by Senator Kirsten Gillibrand's Military Justice Improvement Act.  Military expedience and deference, in particular, can have unintended negative consequences, at least in the cases I consulted on, which included rape, assault and murder. Expedience is demanded in the court martial system given the common exigencies of military life. There must also be great deference, not only to individuals of higher rank, but also to the institution itself.These are not negative in and of themselves; indeed, they are important principles of an institution that must be cohesive, responsive and lethal. Service members willingly accept a lower value on individuality for the good of the institution. Being a part of the military is a very different experience from civilian life. Its justice system should and does reflect these differences.But when it comes to felonies, particularly ones not instantly related to military readiness, it does not have to. That is the thrust of the Military Justice Improvement Act.Under it, commanders, the men and women responsible for increasingly larger units within the ranks, can and will continue to have complete judicial authority where mission-specific crimes like desertion, insubordination, and espionage are concerned. What will shift, partially, will be the responsibility for deciding the merit for prosecution of more traditional felonies like sexual violence, murder and robbery. These crimes can certainly affect a unit’s readiness and cohesiveness, but they have a decreased relationship to military operations, and a profoundly different effect on victims. Traditional, often interpersonal crimes deserve an approach both 1) unhindered by the larger concerns of the command and 2) enhanced through handling by specially trained, unformed legal experts. Sexual violence in particular, given its utter uniqueness in criminality, demands this approach and thus has largely inspired it.In the meantime, commanders will still have involvement over cases, including supervision of the accused and the victim during the process, and the opportunity to seek lesser disciplinary action in the event that a case is not referred for prosecution. We ask more from military commanders than ever before; the vast majority respond honorably and competently. But asking commanders, even with legal counsel, to make decisions about interpersonal crimes- particularly when inextricably burdened with concerns about unit effectiveness- is both unnecessary and potentially detrimental.Where sexual violence is concerned, critics point to the willingness of commanders in most cases to pursue charges against offenders, and this is a fair point. But we only know about what is reported, and a major belief behind the MJIA is that the direct involvement of commanders in criminal justice decisions has a chilling effect. This is more than a hunch; it’s been gleaned from surveys, interviews and the accounts of service members over time.The MJIA is not a panacea for sexual violence or other major crime in the United States military. But it is an idea far less radical than critics charge and worth implementing to bring one aspect of military justice- and only one- in line with that of the larger world.

Dr. Jo Ann Rooney, Navy Undersecretary Nominee, Has Made Sen. Gillibrand's Point on Military Justice

I’d say that Dr. Jo Ann Rooney, the President’s nominee for undersecretary of the Navy, perhaps misspoke when she made the patently awful sounding statement “the impact [of judge advocates outside the chain of command making prosecutorial decisions in sexual assault cases] would be decisions based on evidence rather than the interest in preserving good order and discipline.”Except that Dr. Rooney didn’t speak. The statement was written, as testimony, to the Senate committee considering her nomination. One would think that answers reduced to writing are a product of more coherent thought and willful expression than what is sometimes uttered, despite best intentions. Rooney chose, or approved of, these words, and frankly they sound shocking, at least to people who don’t view justice the way she appears to view it. In fact, it seems that Rooney views military justice the way many military commanders and insiders do, that is as a tool for commanders to maintain discipline and good order rather than an ideal unto itself.I’ve written on this before and I’ve pointed out, in fairness, that the promotion of justice is the first of the three clauses that describe the purpose of the United States military justice system. But Rooney’s apparent attitude that justice is more of a tool toward the forging of a larger goal- the maintenance of a cohesive and lethal fighting force- is one I commonly saw reflected during my civilian service to the Army.She has since back-tracked in a letter to chairman Carl Levin, saying that while commanders certainly need to consider evidence in whether to bring charges such as sexual assault, they also need to consider more than that, and include factors such as the impact on morale and discipline.Small wonder this clarification served to alarm Gillibrand more, not less.Rooney believes that prosecutors are, apparently, too narrowly focused on simply whether a crime was committed against one human being by another. “Prosecutors, in my experience, evaluate evidence with an eye toward whether a conviction is likely,” she said. “Commanders consider additional factors.”I’m not sure what prosecutors Rooney is referencing. Prosecutors are not, despite this description, auto-piloted hammers who bring charges as long as a cold analysis favors a conviction. In fact, prosecutors at all levels do consider other factors like resources and the interest of the involved parties and the community.But what civilian prosecutors don’t do, ideally and certainly structurally, is concern themselves with whether the prosecution of a wrongdoer might be best avoided because of its effect on a larger group as an organism or entity.This is exactly what Gillibrand is correctly fighting to end once and for all: The understandable but potentially justice-adverse tendency that commanders have to consider factors unrelated to whether one individual committed a serious criminal offense against another.Rooney also notes favorably that commanders have “non-judicial punishment options” in dealing with offenders. But the offenders that Gillibrand’s initiative targets are service members who are committing rape and felony sexual assault. Non-judicial punishment under Article 15 of the UCMJ involves relatively minor confinements, restrictions, extra duty, counseling, and other disciplinary measures in lieu of a court martial for minor offenses.Gillibrand herself, in reference to Rooney’s original troubling statement, asked “in what world would you recommend that the decision to prosecute a serious crime....not be based on evidence?"Indeed, I’d follow up with, “in what world would you recommend non-judicial punishment for a felony sex crime?Gillibrand’s proposed Military Justice Improvement Act does not disturb a commander’s ability to use non-judicial punishment for minor offenses, which means Rooney is either dreadfully misinformed or actually believes that NJP might be the answer to some cases of sexual violence, given the “other factors” she believes commanders should consider.The supremacy of the individual observed in our culture is not one that can be similarly observed in military life. Many aspects of it involve compromising the needs of individuals for the larger health- and fighting ability- of the group.But where justice, and a competent and effective response to sexual violence is concerned especially, the current system should be amended- reasonably- to do better. Dr. Rooney seems to make this very clear.

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

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

Maryville: Less Likely A Cover-up, More Likely a Prosecutor Not Up to the Challenge

A travesty of justice likely took place in 2012 in Maryville, Missouri regarding the rape of a 14 year-old girl by a high school senior. Because the defendant comes from a political family with ties to the local DA, charges of a conspiracy to scuttle charges have captured media attention as much as any aspect of the crime. While salacious and disturbing, I’m willing to bet they aren’t true.That’s not to say I don’t think the defendant, now a college student who was apparently still tweeting misogynistic messages until fairly recently, didn’t benefit from who he was and where he came from. The victim and her family were also likely disadvantaged by being “outsiders” from another community. But at this point, my guess is the reality is more mundane. I don’t think the case was derailed by a coordinated effort involving the DA and law enforcement to protect Matthew Barnett because of his ties to a former legislator and sitting Congressman.Far more likely, Robert Rice, the DA responsible for dropping first felony and then misdemeanor charges, simply felt unprepared and discouraged from taking them to trial. If so, he’s far from alone in not knowing how to make the most of good police work and common sense in a sexual abuse case involving alcohol and adolescent behavior.I’m careful here, as I am in every case I comment on, to stress that I’ve neither considered the case the way Rice has, nor am I familiar with his jury pool and legal culture.That said, it appears he had quite a bit to go on.Victim Daisy Coleman was found by her mother, freezing on her porch and still intoxicated; Barnett and the group that drove her home abandoned her outside of her house in 22 degree weather. Her mother saw signs of physical distress to her ano-genital area, and an immediate report was made, the child taken to a hospital. Seven hours after her last drink, her blood alcohol content (BAC) was .13%. Inexperienced drinkers cannot generally reach a .13 without serious signs of intoxication, and she was likely much higher at the time she was raped. Barnett admitted to sexual intercourse on Daisy. A friend apparently video-taped the act. Other witnesses, including Daisy’s 13 year-old friend who was also raped (her 15 year-old assailant confessed as much), reported that Daisy was between crying and incoherent as they left Barnett’s home, and had to be carried from the bedroom. Evidence of drinking was collected the following day.The case looks- in any legal environment in the U.S. and I have seen most of them- eminently triable. Rice was benefitted by quick and competent police work, a confession to sexual contact, and a concerned mother rightfully terrified and appalled. He dropped charges anyway. Rice says he dropped them at least in part because the Coleman’s asserted 5th Amendment privileges before a deposition, but Melinda Coleman, Daisy’s mother, insists that this was 1) only after felony charges had already been dropped and 2) a short-lived decision that she reversed the next day, agreeing to cooperate. Rice’s other reasoning involves what he calls a lack of evidence and what appeared to him as “incorrigible teenagers” drinking and having sex. If that’s truly how he feels, he has a tragic misunderstanding of the dynamics of sexual assault.First, I’m not sure what 5th Amendment privileges could have been asserted that Rice could not have proffered immunity for in order to pursue a far more serious case. Second, if Rice thinks his case was too light on evidence to bring in good faith to a jury, I can only say that myself and others- often in very challenging legal environments- have successfully taken cases forward with less.Rice has done the right thing by asking a judge to appoint a special prosecutor and re-open the case. The Colemans appear ready to cooperate, and I hope the new prosecutor views the case differently, assuming what I know is accurate and complete.Whatever happens, I believe Rice's declaration that "there wasn't any prosecuting attorney who could take that case to trial" should be publicly proven both defeatist and inaccurate. But I'm not willing at this point to believe his motivations are worse than that.

The "Re-homing" of Children Issue: A Response

Last week, I was contacted privately by an individual who was familiar with “re-homing,” also through an Internet group that included the participation of adoptive parents, some of whom were seeking to get rid of their children, and prospective “parents” looking to procure them.The person who contacted me is also an adoptive parent, appears to be a dedicated one, and largely regrets any cooperation she might have given to the “re-homing” process. But while she acknowledges the failures and the risks, she still believes there is justification for the attempts some make at abandoning children to others with power of attorney, largely from the perspective of a desperate parent with a dangerous or unmanageable adoptive child. Since she contacted me privately I will not identify her and will do my best to avoid referring to facts that might also do so. But I believe a portion of my response to her is relevant to a further examination of the issue of “re-homing” and how dangerous and utterly thoughtless it can be. So here it is:I understand your position that not enough resources exist for adoptive parents who find themselves with children who have theretofore unknown problems (or ones hidden from them) that make them not only unmanageable, but also perhaps a danger to themselves and their families. Still, I have little sympathy for adoptive parents in this situation who resolve it by dumping their children (I will not use the phrase "re-homing" without mocking quotes) with strangers and in the most dangerous of potential circumstances. Adoption is among the most profoundly sobering decisions a prospective parent can make. I'm sure you understand this better than I as you have actually taken this step and appear to be doing so with love and decency. In my view, no prospective parent should ever consider adoption without also having the resources to address every possible type of problem, foreseeable and unforeseeable. If an adopted child becomes a danger to themselves, the parents or other siblings, and must be removed from the parents' home, then the parents need to be financially prepared to seek institutional care for them, if necessary, but not while disowning them. If the best interests of the child and the family both appear to be in dissolving the adoptive relationship, then it should be attempted only through a formal, legally recognized process.  You may not know well the tactics of predators who seek out children to exploit, harm or kill, but I can assure you that a "re-homing" platform is among the most powerful and gratifying vectors to what they would consider perfect victims. I say "perfect" because a predator could scarcely imagine a better scenario than parents desperate to pawn off an unwanted child- most likely a child who is emotionally and/or physically compromised to the point where they are virtually powerless to seek help or redress from any type of abuse.  It is a fact that child predators, like all things that hunt, seek the path of least resistance and greatest security. The legal ability to abandon a vulnerable (indeed, perhaps even objectively unlikable) child to a complete stranger with a pro-forma legal document is the clearest imaginable example of those two favored circumstances. This fact alone makes "rehoming" reckless, cruel, and thoroughly abhorrent, even without considering the less sensational risks of simply unprepared and hopeful parents accepting a "re-homed" child and being even less able to properly care for her or him. Within the "re-homing" universe, what is the incentive for the abandoning parent to be honest about the true extent of the child's problems (or potential dangers to others) to begin with? The system is about dumping human beings on others, plain and simple. No one should get near it. You shouldn't have either.  In a letter you shared with me, you rhetorically asked this question to the author of the original Reuters story: "Why are parents resorting to informal networking groups to help them with adoptions that are failing? Because there are no resources.  Because of societies preconceived notions that these kids just need love, a good family, etc. and all will be well.  Tell that to the mother who finds her daughter raping a sibling with a pencil, tell that to the father who finds out his daughter is giving blow jobs to his 4 year old.  Tell that to the family who has to sleep with their bedroom doors locked because they fear for their lives." What I would tell a family in a situation like the ones you describe above is that they are still parents, not renters of human beings. They may have to lock doors. They may have to maintain distance between individuals within the house for the safety of everyone. They may have to very carefully seek out institutional care for their wounded child. They may have to seriously curtail or refine their own goals, dreams and priorities. I don't claim to know the difficulty of parenting, either my own child or an adoptive one. But I know quite well to not make such a monumental decision without being ready to accept and deal with everything that might befall me- and the rest of my family- if I choose to do so.

On Adolescent Sexual Exploitation: Room for Nuance, Not for Compromise

I should be more nuanced on the nettlesome issue of adolescent sexuality, I'm told. It's not cut and dry, and my tone is often unyielding. Perhaps.I limit myself to 700 words in this space out of respect for my readership and in acknowledgement of the hundreds of other demands on their time and opportunities to spend it. If I had more space, I'd be more circumspect and more exploratory of opposing points of view, at least where I thought arguments had merit. No one comes close to possessing all the answers on human sexuality, what is objectively abusive, and what should be considered punishable by law. I'm no exception.In fairness, the issue of adolescent and adult sexual contact is particularly difficult to categorize uniformly. I sat on a Huffington Post Live panel last month where I discussed the issue with three well-known psychologists, all of whom agreed (as do I) that the "age of consent" to sexual intercourse in US jurisdictions has less to do with inherent rightness and more to do with an arbitrary cut-off for various cultural, historical and political reasons. I've known 15 year-old kids who could make thoughtful, informed and logical choices about sexual contact, and 25 year-old developmentally normal adults who absolutely could not. The age of consent in most of the US hovers around the age of majority, another number we've picked to differentiate the comparatively protected world of a child from the colder and more unforgiving one navigated by adults.When it comes to sexual contact between even older minors and adults, though, there are at least a few key points that, for me, make these "relationships" exploitive and toxic far more often than my detractors who see Americans in particular as "hysterical," "Victorian", etc. In no particular order:1. The issue is usually less about age and more about power, control, and authority. I would not likely advocate for sex-offender registration or a felony conviction for an adult within a few years age of his or her minor sexual partner- assuming a relationship based on more or less equal footing. Stacey Rambold, the Montana teacher whose paltry sentence recently sparked outrage, was  [slightly] less culpable in my mind for being 35 years the senior of his victim than he was for being her educator. Teachers have power over students both in terms of what they can practically affect in their lives and superior insights about navigating adult life. We properly condemn and criminalize crossing this line. It's not wrong because it's illegal. It's illegal because it's wrong.2. The still organically forming adolescent brain should at least be a factor in how we view a minor's ability to engage equally with an especially far older adult. Nothing magical happens within the brain to end adolescence at 18. But the fact is, teenagers are more impulsive, more brash and less self-controlled and than adults. Adults should know better and act thusly. 18 is still arbitrary. But it's not baseless.3. What we have traditionally viewed as basically "harmless" where adult-child sexual contact is concerned is continually being challenged and rightfully so. The elite Horace Mann school in New York City, like countless institutions the world over, was apparently rife with sexual abuse by teachers on minor students for literally decades. To the extent people knew of it, I'm sure some considered it a quirk of the place, the price paid for such a dynamic and interesting faculty, a simple right of passage, or any number of things. Far too many of the victims of this "quirk" think differently, and are now responding in droves, decades after being seriously harmed with impunity.There is room for nuance, particularly with regard to the application of the criminal law. I was never a mindless hammer in a court of law and I have welcomed the insight of the psychological community when trying to do justice in this regard. Increasingly, I believe my still-active colleagues are doing the same thing.But I won't yield so quickly to counter-arguments on the "harmlessness" of "fuzzier" sexual boundaries between adults and children. For one, I know better. For another, I know the motives of a dangerous few who are making them. See NAMBLA for a reference.   

A "Former Lawyer's" Foolishness Topped Only by the Washington Post Editorial Board's

Supreme Court justice Felix Frankfurter once said "words are blunt instruments," a quote not only good lawyers, but all professional communicators take to heart. Words are the weapons lawyers wield to wring from the system the outcomes we advocate for. But anyone who communicates for a living ideally respects the coarse limits of language and works hard to construct expression that accurately reflects the intended message. A decent vocabulary and some thought and care before expressing oneself helps to hone arguments in the most fair and effective way possible, but it's always a challenge. Sadly, there are communicators, including those with legal training, who don't even approach it.Betsy Karasik, the Washington, DC-based artist and "former lawyer" who wrote a remarkably uninformed and foolish op-ed in the Washington Post last week about the sexual abuse of minors by school teachers, uses words about as effectively as I'd expect a toddler might a stick of dynamite. Karasik, once a lawyer who specialized in things like negligence and products liability rather than anything related to sexual abuse, wrote regarding the case of Stacey Rambold, the Montana school teacher who, at 48, was raping a 14 year-old girl who then committed suicide short of her 17th birthday. Rambold was sentenced to 30 days.Karasik characterizes the outcry over Rambold's sentencing (and the legal response observed in most US jurisdictions to child sexual exploitation) as "utter hysteria." She sweepingly classifies sexual contact- perpetrated on children by adults in positions of power and authority over them- as "sexual relations." I'd suggest, at very bottom, that she studiously review the use of the words she employs before tossing them around recklessly in a publication of national repute.She seems almost wistful about the "fuzzier" sexual boundaries that existed between adult teachers and minor students in the 60's and 70's. She describes sexual contact between her peers and some teachers as what she believes to have been "consensual in every honest meaning of the word."Really?  Consensual? How, exactly does Karasik define that word?  And where does she draw the nerve to characterize these situations- ones she likely knew almost nothing about- as such?Ms. Karasik, here's a fact, if you're at all interested: Given the remarkably low percentage of victimized minors who report sexual abuse and exploitation- particularly by authority figures like teachers, mentors, coaches and others with power over them- my guess is you have no idea how many of your peers who were sexually targeted by educators actually suffered and to what degree.If Karasik knew anything about the dynamics of child and adolescent sexual abuse, and how predatory grooming, shame, fear and uncertainty silence victims and allow perpetrators to offend again and again, she'd be perhaps more circumspect about how "harmless" sexual contact can be between adult authority figures and children, and what "rehabilitation" really means.The sole time in her piece were Karasik approaches a lucid point is where she seems to wonder (it is not clear) if the pressures of the investigation and the case against Rambold added to the emotional burdens the victim was experiencing and contributed to her suicide. That may be true, and it's the very reason myself and many others in the child protection community have worked for years to make the response as efficient and non-traumatic as we can for the children involved. But if Karasik's opinion is that looking the other way at child exploitation and rape by a predator like Rambold is a better option, she should talk further to victims who were preyed upon with impunity; that would include during her own youthful era.The only thing more insulting than Karasik's opinion is the Washington Post's willingness to allow space on its pages for it. It's one thing to publish a controversial or unpopular opinion that is nevertheless logically argued by an authoritative figure and with some empirical support. Indeed, it's a crucial function of any media outlet. It's another to publish the thoroughly baseless personal opinion of an individual unsuited to comment intelligently on her chosen subject and with zero scholarly evidence to support it. The Post- one time a newspaper of tremendous authority and national import- has hit a new low.

Judge G. Todd Baugh on Child Rape: Don't Tell Us What We Understand

The rapist was 49 and the victim 14. He was a teacher at her high school. She later committed suicide, short of her 17th birthday. Her death complicated the prosecution for lack of a complaining witness, but prosecutors were able to obtain a confession to one rape count and an agreement that the case would deferred out of the system if he successfully completed sex offender treatment. He failed, and thus stood before state Judge G. Todd Baugh. Prosecutors asked for 20 years. Judge Baugh gave him 15 but suspended all but 31 days, expressing a belief that the child was "older than her chronological age," and the shocking contention that she, as a student and a child, was nevertheless "as much in control of the situation" as was the teacher, 35 years her senior.Baugh's subsequent defense of his ruling should stand as a clear call for better judicial education on the issue of sexual assault (the National Judicial Education Program conducts this kind of training). But I suspect Baugh is beyond the reach of education, and probably remains as clueless to the outrage as he apparently was to the dynamics involved in this crime and its subsequent effect on the victim."Obviously, a 14-year-old can't consent. I think that people have in mind that this was some violent, forcible, horrible rape," Baugh said. "It was horrible enough as it is just given her age, but it wasn't this forcible beat-up rape."No, judge, you're wrong. We understand exactly what kind of rape it was. We understand that rape doesn't have to be violent or forcible for it to be life-altering, and in this case possibly life-ending. We know that fists and weapons don't have to be used for a rape to be perpetrated and a young life inexcusably torn apart. We understand, apparently far better than you, how a weapon can be something other than a handheld object. And we understand fully the weapons that Stacey Rambold had at his disposal and used against this now dead child, whatever her own participation or awareness seemed to be.We're angry because we understand, not because we don't. We have every right to be. 

Child Protection in Virginia: Cuccinelli Is A Fraudulent Standard Bearer

Virginia’s Crimes Against Nature statute (it punishes as a felony anal and oral sex) was one I viewed as somewhere between sad and silly when I first encountered it as an Assistant Commonwealth’s Attorney. But as a child abuse prosecutor there were times it was a useful, if awkward tool.  Some have mistakenly stated Virginia’s “age of consent” as 15. That isn’t true if “age of consent” is defined as the age at which someone can legally consent to sexual intercourse. Virginia does punish sex between adults and teenagers 15 - 17 years old. The crime is a Class 1 misdemeanor under Virginia’s “contributing to the delinquency” statute with a maximum jail sentence of 12 months. Petit larceny is also a class 1 misdemeanor. So if I, at 46, were having sex with a 15 year-old girl, I’d be guilty of the same level of crime as if I’d stolen a candy bar.For this reason, there were times when Virginia ACA’s looked to the Crimes Against Nature statute to pursue egregious cases of “contributing,” i.e, where we knew of, for instance, a 40 year-old who was sexually exploiting a 16 year-old. If we could prove the defendant engaged in oral or anal sex with the victim, we could charge the felony because of the antiquated law.This approach was halted, though, with the MacDonald v Moose decision in March, which rendered Virginia’s Crimes Against Nature law unconstitutional. Looking to the 2003 landmark Lawrence v. Texas decision, the 4th Circuit federal appeals court ruled that Virginia can’t criminalize consensual oral or anal sex between adults. MacDonald was convicted of solicitation to a commit a felony, meaning he enticed a 17 year-old to perform oral sex. Since the underlying crime (oral sex, or "sodomy") couldn't be a felony, neither could his criminal solicitation.Cuccinelli wants that decision overturned in hopes that Virginia’s law could survive in “as applied” form, meaning it could still be invoked in cases involving minor teens, i.e, the way child abuse prosecutors have used it over time. He argues that sex offenders under supervision due to the use of the law will be freed if the ruling stands and their convictions are overturned.Fair enough, but interestingly, Cuccinelli as a state senator helped to kill a bill in 2004 that would have made Virginia’s Crimes Against Nature law “Lawrence proof,” meaning it would have made oral and anal sex between consenting adults legal, as case law now demands. Between adults and older minors, it would have criminalized oral and anal sex the same way vaginal intercourse is now criminalized- as a Class 1 misdemeanor.Giving him the benefit of the doubt for a moment, I can understand opposing a bill that would have preserved only misdemeanor criminalization of sexual acts between adults and teens. In my mind, Virginia should punish serious sexual contact- given a certain age difference- as a felony, period. But if Cuccinelli agrees, why in nearly 10 years hasn't he called for raising the age of consent across the board to protect minors? Instead he seems focused on "homosexual acts," which he believes should remain crimes because he thinks it's appropriate public policy. Cuccinelli is more than a religious conservative; In 2010, he distributed office lapel pins altered to cover the breast of Virtus, the Roman Goddess of Bravery, which adorns the Commonwealth Seal. Three centuries of Virginia legislators and 45 previous Attorneys General, most with religious backgrounds just as strong (and cultural strictures far stronger) than Cuccenelli’s, somehow accepted the bare-breasted figure as exactly what it was supposed to be; a classical and non-sexual symbol used to visualize the defeat of tyranny. Cuccinelli saw it as "not family-friendly." This is religious extremism paired with adolescent ignorance and narrow-mindedness, but gone mainstream and with power. In short, it is frightening.To be fair, Cuccinelli has been strong on issues like human trafficking and has long seemed concerned with sexual exploitation and abuse in general. Those policy instincts are laudable. But otherwise he speaks and acts like a typical religious extremist and anti-gay bigot, continuing to argue that “homosexual acts” should be criminalized as sound public policy. He has the right this view, but not the right to drag the issue of child protection into it when he has other tools to work with.

Gail Heriot in the Weekly Standard: Wrong on Military Justice, Wrong on Rape

Law professor Gail Heriot’s current piece In the Weekly Standard asserts baldly that the military has no sexual assault crisis, and instead is reeling from media and Congressional hysteria. To be fair, she makes some true statements. Unfortunately they’re all beside the point, or suggest the opposite of what Heriot aruges.She asserts that colleges and universities are dangerous sexual environments for women, as much if not more than the military. This is true. And also beside the point. College life is alarmingly dangerous in terms of sexual violence and most institutions aren’t doing nearly enough to address it. The military is also a dangerous environment. But unlike the vast and diverse universe of American higher education, the military is under direct civilian control and literally "uniform" in terms of its response, which can be addressed by Congress more readily than colleges and universities.Heriot also asserts that "off-post rapes" committed by service members (and thus pursuable by both civilian and military prosecutors), are pursued by military prosecutors at far higher rates. This is a good thing, but not surprising. Off-post sex crimes committed by service people are usually committed against other service people and involve military witnesses. The military is in a better position to pursue those cases and has more interest in doing so. Civilian prosecutors offices are also notorious for declining to prosecute challenging sexual violence cases (i.e, the vast majority), so no one should be offering them (collectively) as a standard to be emulated. But again, how does a lackluster civilian response translate into the military having no serious issues with its response?Yes, the military prosecutes rape, and increasingly does so aggressively and competently. Aside from bold initiatives like the Army’s Special Victim Prosecutor program that I helped develop, I worked with Army trial attorneys whose talent and dedication I’d pray for if a loved one were victimized and her case prosecuted.But first a report must be made. This is a major response issue the military faces, for the exact reason Heriot inadvertently mentions. Reporting a crime as a soldier or sailor is more like reporting to an employer than to police. Sex crimes are difficult for anyone to report. Imagine reporting to a superior you work with everyday (while your attacker is in or near the very same environment) and then to a command stream where cohesiveness and unflagging enthusiasm are the most demanded attributes. What if your attacker is valued and admired, depended upon where life and death are concerned, but you aren’t? What if you’re isolated on a forward operating base near an active front? The military is not blameworthy for most of these circumstances; they are simply among the hardships experienced by members of a force that must be nimble, cohesive, and lethal when called upon. The efforts of Senator Kirsten Gillibrand (D-NY) and Representative Jackie Speier (D-CA), aim at addressing these realities with military lawyers, just outside the chain of command where inherent conflicts exist.Heriot dismisses these challenging circumstances by predictably confusing drunk sex (which happens constantly in military and civilian life without being confused as rape) and rape, which is rarely reported even when clear and devastating. She misconstrues UCMJ standards on incapacity, and like many people seems to think that rape is usually the product of an alcohol-fueled misunderstanding rather than a predatory act. She’s wrong. Her reliance for insight on an aggressive defense attorney like Michael Waddington, with a career incentive to make the military appear reactionary, is dubious. As for the Navy prosecutor who sees a distinction between “rape” and “Navy rape?” Move her to contract law.Curious to me most of all was Heriot’s subtly emasculating criticism of the “supplicating” General Raymond Odierno whom she chastises for assuring Congress that combating sexual assault was our military's number one priority (rather than defending the country, apparently).I’ve never met Odierno, but I know he’s a nuclear engineer and considered a literal genius by pretty much everyone who has. Perhaps what Odierno understands is that the military’s highest priority (assumed and obvious except by the occasional law professor) can’t be achieved until the well-being of the young brave men and women ultimately responsible for its security can be. 

On Suicide, Sexual Violence, and Army Civilian Service: I'll Be Silent No Longer

Exactly four years ago, I was hired by the best equipped, most richly funded and lethal fighting force ever assembled. Their primary need for my expertise surrounded the scourge of sexual violence occurring within their ranks. I gave them everything I had for 32 months as a civilian with a background in special victims prosecution.I was supposedly hired to do far more than train JAGs on the investigation and prosecution of sexual assault. I was told- initially at least- that my mission was to make candid observations and help create meaningful changes; hence bringing me in as an HQE or “Highly Qualified Expert” at a level on par with general officers and the Senior Executive Service.I took the mission seriously, and in return I was largely bullied and marginalized, almost exclusively by a tiny handful of unfortunately placed mid-level officers who viewed myself and my two colleagues as subordinates, there to carry out their pre-planned agendas, rather than the change agents we were supposed to be. To my detriment, I fought back. The bullying continued, blossoming into what amounted to stalking humiliation as I entered my third year of service. I left honorably in February of 2012.I have never written of that experience in this space, for two reasons: First, I encountered largely honorable, dedicated and decent men and women in every facet and at every level of the US Army, and did not want anything I said to create an unfair impression of a group I admire greatly and through which I made lifelong friends. Second, I simply feared I could not do it fairly.Instead I wrote privately to the JAG leadership who hired me, several months after leaving, to express what I believe were ignored blind-spots despite the valiant efforts I had seen and in some measure been a part of. I got a polite non-response and decided I had done and said enough.And then I saw this. The Army reported a record 325 suicides in 2012, up from 283 in 2011. The issue is of course deeply complex; 12 grueling years of war provide infinite reasons. But the analyses I have read remind me darkly of things I suggested with regard to the mental health of not only JAG lawyers themselves but also investigators, commanders, support personnel and soldiers of every rank and responsibility who were witness to or otherwise affected by the crimes I was hired to help reduce. Two of these issues stand out in particular, and on both I fought for changes and development. I did so largely in vain.One issue was same-sex sexual assault. Whether or not the victim identifies as homosexual (most perpetrators do not), they are uniquely disadvantaged. Prior to the final repeal of the odious ban and the "DADT" compromise, many victims remained silent because any real or perceived consensual homosexual conduct before an attack could still lead to discharge. Prior to the lifting of the ban in 2011, I implored the JAG to bring in nationally known and respected experts to help us understand the issues, believing that reports of victimization would likely rise. Same-sex rape victims are some of the most wounded, vulnerable and isolated imaginable; we needed specialized resources as investigators and prosecutors to assist them.I was ignored, at times aggressively so.I also petitioned for better vicarious trauma services for the JAGs- both prosecutors and defense counsel- who had to consume not only the facts of the cases we regularly saw, but also things like high definition video of child rape and torture in the context of child pornography cases. Again, I was ignored; Army officers, I was told, received vicarious trauma training already. When I pointed out that this was largely combat related (a very different stressor) it was suggested that I alert the leadership when I encountered someone who “seemed to need help.”These two examples address a tiny percentage of the issue of mental health and the danger of suicide within the military context. But they were two that I felt I had a responsibility to address, even if tangentially, as part of my mission. I quickly became used to my ideas being ignored while working for the Army. Such is life, and I do not begrudge substantive differences in opinion, particularly with regard to an institution and culture that I only served temporarily and without wearing a uniform.But when those differences are more about posturing and personality conflicts than rational argument, and when present and former warriors are taking their own lives in desperation and despair as war and its accompanying hardships continue, I cannot in good conscience remain silent on any aspect for which I have insight.I know the concern is there. I know that general officers understand the pain of suicide; they attend the funerals without exception. They engage the families. They bear the misery themselves in large measure. I simply wished then and wish now that the ones I worked for would have given me more of an ear than their subordinates did. 

Rape Denial In Action: Bullying Jody Raphael for Telling the Truth

A couple of weeks ago I endorsed an important and well-written, well researched book on sexual violence by law professor Jody Raphael, a nationally prominent researcher, anti-violence advocate, lecturer and attorney. The very point of Raphael's book, Rape Is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis, is how powerful interest groups nationwide are making a large problem worse by intimidating victims and challenging their credibility, downplaying rates of sexual assault, and protecting their own institutional environments. The book has been met with well-deserved praise by those of us in the anti-sexual violence movement who know how meticulously well researched and accurate it is.Raphael has been challenged, though, not through honest discourse or documented findings, but through rank intimidation and an organized smear campaign. She discusses, among many other topics, the tragic inaction (and worse) of officials involved in the Sandusky/Penn State crisis. This caught the attention of a group of Paterno supporters in the Penn State community who decided they didn't like Raphael's illumination of the subject to the extent it threatened their hero-worship. What followed was a organized campaign to rate her book negatively on the Amazon book selling site in an attempt to make it less visible to to potential book buyers. On a message board (no longer visible) on the site "BlueWhiteIllustrated," a poster wrote: "I and others have been posting negative comments on the Amazon site where the book is being sold. As a result, the rating for the book has dropped from 5 stars to 2. Please go to the site and add your comments. Let's drop the rating to 1 star. BTW, Ms. Raphael is a law professor - hard to believe."As a result, and since that campaign began, there are 41 negative reviews of her book, just about everyone of them related to the Penn State issue. As friend and colleague Katie Feifer of Counterquo put it so eloquently, "Seldom do real life events so quickly prove the key point that an author makes in her book."Raphael has experienced other forms of harassment and intimidation in the wake of her book's release as well; thankfully she has the strength, dedication and courage to face them all down. But what she's experienced in an effort to expose the truth about a preventable national shame and tragedy should sound a louder alarm. The problem is, in fact, even worse than we thought. 

The Real Horror of Kermit Gosnell: Evil Finds A Way

Kermit Gosnell, if the charges against him are true, is the ultimate child abuser.I cannot run from this.It's not an easy task to write about his case from the standpoint of an advocate for children who is also legally pro-choice. But to be in my position and not write about this case is, to me, an act of cowardice. I’m a former child abuse prosecutor and an advocate for the most defenseless among us. Abortion opponents would- and have- challenged me on how I cannot see a child in the womb as the most defenseless human being imaginable. My response, at least for now, is that I draw the line at the generally accepted notion of “viability” and accept it as sound public policy. Personally, I view every abortion as a tragedy. But I would never support (absent what I consider reasonable restrictions) a legal ban on the practice; among other things I lack the moral authority to block a woman from making basic reproductive decisions I’ll never have to face.But if Gosnell delivered live human beings and then murdered them with scissors, all of this in a fetid, filthy and sometimes lethal atmosphere, he is evil incarnate. Of course, most on both sides of the abortion debate would readily agree with that statement. But they also see very different implications for what it means.To many abortion opponents, Gosnell’s hellish work is simply the inevitable consequence of an abhorrent practice that devalues life and richly rewards the dealing out of death. To supporters of legal abortion, Gosnell was allowed to flourish exactly because of the increasingly truculent and organized attack on reproductive rights. Women have found ways to end pregnancy for millennia; legal restrictions against that effort only push it into the shadows where compassion and basic competence give way to recklessness, greed, and torture.I can’t embrace fully the more extreme pro-choice view that the best way to avoid evil within the practice of abortion is to simply allow it to occur with few if any restrictions well into a second trimester. The combination of desperation and the shadows of illegality attracts horrors, yes. But as well, there's the stubborn fact that, the later an abortion is contemplated, the more morality gets muddled as much as legality. There may be decent medical providers willing to perform such tasks for what they at least sincerely believe are the right reasons. But there will be others drawn to the practice for far worse ones.Still, what I know of criminality and the nature of predatory people is what ultimately leads me to side, generally, with pro-choice elements on what allowed Gosnell to operate. The primarily religious based anti-abortion movement believes that the practice itself is inherently evil and that therefore associated horrors are inevitable. I do not; right or wrong, I part ways with the religious to the extent that they believe the basic practice of abortion, no matter how well-intentioned, well-orchestrated, or reasonably regulated, eventually produces the kind of callousness within many of its practitioners that leads to the charges Gosnell now faces.What I believe is that the desperation of women denied other options is what attracts- not produces- men like Gosnell. This is how predators work. Despite the insistence that abortion invites the perversion of the soul, that's not what I believe happens. Rather, in most cases and far more terrifyingly, I believe evil souls are usually perverted from the beginning, and then search for opportunities.Gosnell is on trial for being, among other things, a perversion of a doctor who mislead, mistreated, maimed and killed mostly young women and babies. If the charges are true, he is probably every bit the monster he is feared to be. Not a reluctant practitioner of a dark art for the sake of women who had no where else to go, but simply a deeply evil creature who feasted on misery and murder, collecting its products in jars because it amused him.If so, in my mind, he was not coarsened and “made” evil by what he practiced. He is more likely an opportunist with original intentions. He simply found the perfect environment in which to indulge them.

Needed Wisdom on Rape from a Former Judge

"We were insulted by the word "date" rape. "Date" rape does not exist. It's a misnomer; It's like saying "car-jack." Car-jack is robbery. Rape is rape. That's it."-former judge Robert Holdman on his time as Chief Trial Counsel, Child Abuse and Sex Unit, Bronx District Attorneys Office, Bronx, New YorkA colleague and mentor, former New York State Supreme Court Justice Robert Holdman, was invited to participate in a Huffpost Live broadcast on the Steubenville rape case as the trial was being heard. He was joined by Alexander Abad Santos of the Atlantic Wire, and also Zerlina Maxwell and Jaclyn Friedman. Friedman and Maxwell in particular are well-known warriors in the fight against rape culture, and I've had the honor of working with and learning from Jaclyn personally. The broadcast is an excellent discussion of the Steubenville dynamics and the larger problem beyond it. It's still well worth watching even as the case fades slowly away from the news cycle.What made Holdman's comments so important is that they came from the perspective of a former trial judge. While most U.S. judges are honorable professionals worthy of the power of the robe, the judiciary is still a place where we don't see enough understanding of the dynamics and reality of sexual violence. This is particularly true with non-stranger sexual violence, the kind women and men experience far more than any other.Every criminal defendant deserves a full and robust defense, and also a judge who is sensitive to the circumstances of an individual facing the power of the government, regardless of the charges. Holdman would surely agree, and his comments rightfully included the responsibility of judges to be neutral and fair to defendants facing criminal prosecution. Being a good trial judge doesn't mean- from my perspective or any other- assuming guilt in any criminal case or anything close to it. But an ignorance of the reality of sexual violence, particularly between individuals who know each other, and an over-reliance on the myth and innuendo so pervasive in our culture regarding rape and sexual assault, lead far too many judges to render irrational and unjust decisions in these types of cases.Important professional opportunities have taken Holdman- for now- from his duties as a trial judge. Still, I hope the messages he has conveyed reach the men and women who make the crucial decisions that shape sexual violence cases nationwide and beyond. I also hope he finds his way back to the bench as his career progresses; his kind of clarity on this subject needs to be as common on the judicial bench as it needs to be everywhere else.  

U.S. Senators, Don't Blink: Own the Reality of Newtown if Not Your Own Cowardice

TRIGGER WARNING: GRAPHICI was troubled by one understandable and typically American response to the Newtown massacre, namely the mostly Christian-themed memorial depictions that flew around social media. Some showed 20 children running cheerfully into a brilliantly lit classroom that was really heaven, or suddenly and happily finding themselves with wings on fluffy clouds.Doubtlessly, the images and cartoons were well-intended. But ultimately they also served to sanitize the event, and almost to perversely undermine, however unintentionally, the gravity of it. The children are fine, the images suggested. We can move on.But we can't. Because when we do, however innocently, it makes it even easier for a sufficient number of feckless cowards who call themselves United States Senators to deny their responsibilities to any entity other than the corporate gun lobby or a fading and paranoid subculture of conspiracy blinded crackpots.So please, invite your senator, if he or she voted against the series of reasonable amendments that died today amid an atmosphere shame and idiocy, to imagine the reality of Sandy Hook from the scope of a military grade assault weapon wielded by the miserable insect behind it. Demand that they picture what Lanza saw. Because it wasn’t 20 children and 6 women softly fading into the light of eternity, however warm that light might have felt once they got there.They were ripped apart by a round of ammunition weighing about a third of an ounce with a muzzle energy (basically impact potential) of around 2400 foot pounds. That much metal at 2200 feet per second tearing into a child with an average weight of 48 pounds doesn’t cause him or her to fade with a sleepy smile into bliss. I thankfully have not seen the Newtown crime scene photos, but I am no stranger to images of children killed by gunfire.So I know that the little angels of Newtown more than likely lost limbs and entire sections of their bodies in smoky red glazes. I know their faces probably exploded, their skulls bursting like pomegranates thrown from high windows. And, as Lanza squeezed again and again- as he would have had to do- an untold number saw their classmates eviscerated in unblinking terror and disbelief before his one open eye found their tiny, frail body and tore it open like fallen fruit under a truck tire.Please, don’t blink. And don’t let your senator blink either.  Because that is the reality of the long moments of hell experienced by the supposedly now winged seraphim who were once Connecticut school children. The reality is smoking fragments of a Batman sweatshirt soaked in blood. The reality is a Disney princess headband spattered with brain matter on a tiny, shattered classroom chair.But it’s not the only reality. The other is that Adam Lanza was a miserable creature limited utterly by his options. Thanks to the senseless expiration of the Federal Assault Weapons ban in 2004 (around the time Lanza turned 12), his mother was allowed to purchase a military style weapon, kept in her comfortable, remarkably low-crime Connecticut home within reach of the thing that was her child. The idea that this pathetic creature could have committed 26 brutal murders with a knife or a baseball bat is the height of sophomoric stupidity; right up there with the idea that a black president is going to disarm the populace and impose socialism on a dwindling white majority.And yet that suspicion, to a greater or lesser degree depending on the droner making the argument, is what appears to hold sway still in the upper legislative house of the most powerful nation on earth. That and the threat of gun lobby money ending precious political careers. But balanced against two score little angels now nestled in Jesus’ bosom, is that so intolerable?A shooting survivor shouted “shame on you” from the gallery today as Vice President Biden announced the final tally on a background check compromise. I took gallery shouters to task for their “Second Amendment” outbursts in Hartford, and I should be consistent and criticize her.But in Hartford the object of the shouts was a grieving father. In Washington, D.C. today, it was among the most powerful and privileged group of 100 in the world.Let freedom ring.

A Terrible Crime Averted. A Terrible Discovery That Cannot Be

Two boys, aged 10 and 11, will stand trial for conspiracy to commit rape and murder in Washington State. Although state law apparently presumes a lack of criminal responsibility (even juvenile responsibility) for children 8 to 12, the presumption can be overcome with evidence. Such evidence was introduced in a competency hearing, including evidence that the boys knew the nature and character of what they wanted to do.What they wanted to do, complete with a stolen knife and handgun in their possession along with a written plan, was to rape and then stab a fellow female student. One apparently even understood that rape was not a sexual act, but more a display of power and control. One of the boys was asked if he understood that murder was wrong. His response was "yes, I wanted her dead." At this point, like anyone decent, I am thankful the plan was foiled. As for what lies ahead, or how these two arrived in a courthouse on trial for their youth, I have no answers.    

The False Accusation Against Brian Banks: One That Looks Worth Pursuing

In this space and others, I maintain that false accusations of sexual violence are rare, because they are. Their frequency is grossly over-stated by some "Men's Rights Advocates" (MRA's) and others to the detriment of untold numbers of women (and men) who are raped and far too often disbelieved because of the myths MRA's cling to and proliferate.What I have never written and will never write is that false accusations never occur, or that they should not be punished when they do occur, absent a serious mental health issue on the part of the falsely accusing person. This is often if not usually true, and is exactly what occurred in the infamous "Duke Lacrosse" case that so many unfairly hold out as a "typical" or common occurrence. The complainant in that case, according to North Carolina Attorney General Roy Cooper in 2006, was so mentally ill that authorities felt she probably believed the accusations she made.That kind of situation, i.e., a serious mental health issue, doesn't seem to be at issue with regard to Wanetta Gibson, the woman who falsely accused Banks as a teenager, an accusation that landed him in California's brutal correctional system for five years. Banks was, thankfully, exonerated in a Los Angeles county courtroom and on the motion of the LA District Attorneys Office, which did the right thing in light of the evidence Banks was able to provide. That evidence, featured in a 60 Minutes segment aired earlier this week, included a videotape made of the complainant, Ms. Gibson, calmly admitting to an investigator that Banks neither raped nor kidnapped her, and (to Banks himself) that she would be willing to help him with his plight, but apparently not if it meant giving back the $1.5 million dollar settlement Gibson received when her family sued the school district over what they claimed was inadequate security.Banks was apparently a good student and an ultra promising football star verbally committed to play in college when his life was permanently altered and torn apart by the accusation. On the advice of counsel he pled "no contest" to avoid the uncertainty of a trial and was made to register for life as a sex offender upon his release. His dreams of playing in the NFL are almost certainly destroyed, but admirably he remains positive and not bitter about the person who cost him so much. Banks has stated he doesn't want Gibson aggressively pursued by the law for what she did.I don't know that I do either. But I do believe there should be a legal response to both Gibson and her family in terms of the civil settlement and her false claim- one she maintained throughout a long and arduous process. Gibson was a juvenile when she made the accusations, and that should certainly be weighed along with as many other factors as are relevant. According to some reports, her mother was the person driving both the false allegation and the law suit forward. Both civilly and criminally, Los Angeles county and the involved school district have a responsibility, in my view, to seek justice here. It matters, regardless of Banks' exoneration or how well he seems to be pulling his life back together. He seems like a decent, thoughtful young man and I salute his resilience and applaud his triumph.But even if Banks isn't insistent on pursuing Gibson and her family for tearing his life apart, his community should be. That's what prosecution is, after all. It is not the use of the government to settle personal scores. It is the expression of the community coupled with the power of the courts, aimed at righting wrongs in the name of everyone. And for the sake of everyone.Banks is not the only person wronged by this miscarriage of justice. Gibson's misdeeds provide fuel to an already roaring fire against victims of sexual violence, the great majority of whom are valid, but suffer skepticism because of cases like this. A combination of that truth and a desire to be credible as an anti-violence advocate and former prosecutor prompt me to wonder why justice isn't being sought against her, or the adults who pushed her forward. 

Military Justice and Sexual Violence: An Ideal, or a Tool for Commanders?

“The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." -Manual for Courts-Martial, Preamble, Section 3, Nature and Purpose of Military LawIn an honest discussion about what the US military values and pursues in terms of addressing wrongdoing within its ranks, it would be unfair not to point out that the promotion of justice is the first of three clauses defining its very purpose in the MCM, or Manual for Courts-Martial. That being said, in 32 months of civilian employment with the United States Army as an experienced sex crimes prosecutor, hired to assist the JAG in addressing sexual violence within the ranks, I heard far less about the first clause and much more about the second. As a singular concept, “good order and discipline” is at bottom the condition most crucial to enabling our military to do what must do. I was told again and again that military justice had to be understood in a different context than that of the civilian world. Justice in the military is an ideal, but more practically a “commander’s tool” to maintain good order and discipline.A commander is an officer responsible for the development, maintenance, and actions of a particular military unit. Junior commanders include Army captains in charge of 150 or so soldiers in a company. A senior commander might be a general commanding tens of thousands of soldiers in a Corps. Regardless of their level of responsibility, all commanders must maintain good order and discipline. Without it, everything else they seek to preserve- including the very lives of their warriors- is at risk. So a cohesive, obedient and ordered fighting force is the ultimate goal. Most everything else, at least in terms of the mission to be carried out, is secondary.Two things should clarified here: First, the JAG officers I encountered, in addition to commanders, were almost always deeply decent, honorable men and women who abhorred, among other things, sexual violence perpetrated by one of their own. Second, the concept of “justice” as we normally view it in the Judeo-Christian context, is appropriately intertwined with good order and discipline. Of the things that inspire servicemen and women to follow the rules and act as a unified fighting force, a belief that they’re treated equally and justly is probably first among them. So it’s not that justice isn’t a concern of military commanders. Rather, it's a concern tempered by other imperatives, most not typically experienced or appreciated by civilian observers.Enter sexual assault and military priorities.More of the civilian world now knows, from the sexual assault case out of Aviano, Italy, that high-level commanders (with the authority to convene general courts-martial, or simply Convening Authorities) can overturn the findings of a military tribunal. No reason for doing so is required, and the action of the convening authority is not reversible.Senator Kirsten Gillibrand (D-NY) last week questioned a panel of Judge Advocates General about how justifiable it was to allow one commander to negate the findings of a military tribunal after months of litigation (the convening authority who overturned the panel verdict in the air force case never spoke to the victim). Gilibrand argued forcefully that the sole authority to negate the findings of a general court martial was anything but emblematic of or conducive to “good order and discipline.” Instead, she argued, the power of one commander to undermine the efforts of a full and concerted legal process only chills reports and emboldens perpetrators. This, in turn, eats away at good order and discipline by compromising the backstop of enforcement that aims to keep all servicemen and women safe from harm by- first and foremost- each other.I suspect Gilibrand is right. But the issue of justice as an ideal versus justice as a means to an end must be fully understand by civilian decision makers before changes are made, if they are to be. Understanding the military view (as I understood it) did not change my perspective. But it helped to know why a different perspective existed.