Accuser: Simply The Wrong Word

When the story of former NFL star Lawrence Taylor broke a couple of months ago, I was angry but not surprised to find the victim in the case- a child used in prostitution by a Bronx pimp- referred to as “Taylor’s Accuser.”  Really?  Even when we’re talking about a child, beaten into submission and presented to a huge, rich, middle-aged man like a snack from a serving tray, we’re going to insist that she be labeled an “accuser?”It’s become an endemic part of the sleepless news cycle.  “Accuser” is how the media now commonly refers to the person who has made a complaint of sexual assault, regardless of the circumstances.  It’s replaced the antiquated legal term “prosecutrix,” the feminine term that was used in criminal justice particularly in the realm of rape.  On its face, it’s hard to argue with the designation of “accuser.”  Unlike prosecutrix, it is sex neutral and seems less paternalistic.  And it’s technically correct.  The person who makes a complaint of sexual assault against another is, by definition, accusing that person.  So what’s wrong with it?The issue is the weight, and connotations, of “accuser.”  The word has a storied history in our culture, and it’s not pretty.  Puritanical, early America was stained by episodes of religious hysteria, exacerbated by superstition and fueled by the misery and uncertainty of 17^th century colonial life.  Witch trials predated the Puritans by centuries in Europe, but the Salem witch trials in Massachusetts bored their way deep into the American psyche.  The story, of course, involved accusations of witchcraft on the part of village women, many of whom began to accuse each other in order to divert the suspicion that had been cast onto them, or to gain some other advantage as the hysteria continued.  The motives of the accusing women varied, but all had one thing in common:  Their accusations were largely or completely false.  Made famous first by author Nathaniel Hawthorne (Hawthorne was a descendant of witch trial Judge Hathorne and so ashamed that he added a letter to his last name), the story was picked up in the 1950’s by the playwright Arthur Miller in “The Crucible.”  Miller’s adaptation of the story was driven by the hysteria of the McCarthy era in which accusations of Communism, also usually false, were dispensed recklessly, destroying careers and lives.The accusing women of Salem weren’t just incorrect, either.  According to lore at least, by and large their finger-pointing, high-pitched accusations were fanciful, destructive and cruel.  They tormented the innocent and shamed themselves, playing on the fears of a hapless and vulnerable community.  They were accusers; they were not victims, certainly not in the way they claimed.  It is this legacy that lingers when the word “accuser” is used in the context of a sexual violence case.  At very least, labeling someone an “accuser” conjures doubt in the accusation.  At worst, it subtly but clearly connotes ulterior motives, mental illness, or evil intent.Supporters of the designation claim that using the term “victim” for a person who has made a report of sexual violence is presumptuous and possibly unfair in the case of a mistaken or false accusation.  American criminal justice is based on a presumption of innocence, after all.   Defense attorneys around the country have been successful in recent years in preventing DA’s and witnesses from using the term “victim” in court to describe the prosecution’s main witness prior to a conviction of the defendant.Part of what drives these arguments is the fact that most sex cases (either adult or child) are not “whodunnit” cases.  The question usually isn’t who committed the act; the great majority of the time the perpetrator is known to the victim.  The question is whether the act was committed at all, or if the “accuser” is wrong, malevolent, mentally ill, under pressure to lie, or some combination of all of these.  The problem with this analysis, though, is that it assumes some sort of roughly equal balance between “real” cases and false reports.  False accusations do occur, but the idea that most or even many charges of sexual violence are false is grossly misleading.  Thorough and methodological research puts the rate of false reports for sexual assault no higher than that of other crimes at the highest.  Nevertheless, when it comes to accusations of sexual violence, ancient myths suggest that rape allegations need to be looked at with a more suspect eye than other cases.  This is despite the fact that other crimes, like car theft or insurance fraud, offer much greater incentives to falsely report and are probably reported that way at higher rates.My suggestion for a compromise is the word “complainant.”  It’s a little legalistic, but easily understood and technically every bit as correct as “accuser.”  But without the punishing baggage of history and myth.  Unfortunately, too many of the purveyors of the term “accuser” employ it for exactly that reason.  So-called “Men’s Rights” groups, “false rape” websites and other like-minded sources want there to be a veneer of doubt over the idea that women, children and some men are sexually abused and assaulted in rates that are frankly alarming.  As for the media, I sense the term has gained traction at least in part because it suggests the kind of knockdown, high-stakes dispute that sells papers.  The idea of an “accuser” evokes courtroom theater, pointed fingers, surprise twists and hidden agendas.This is as tragic as it is unfair; the very act of standing up for oneself as a survivor of sexual violence and starting the terribly slow and uncertain wheels of justice is by itself a cathartic and deeply impressive profile in courage.  Those who perpetrate the myths fear this, and so prefer to cast “accusers” as hysterical or worse.  The media seems unimpressed with the sometimes desperate and always difficult act of coming forward, apparently seeing it as too mundane with out some provocative term to hang on the survivor.  They’re wrong.  The evil that underlies the acts is mundane; all evil is at bottom.  But the journey toward survival and the quest for justice is anything but.  It’s sad that it’s still not enough.

An Open Letter to the DA in the Ben Roethlisberger Case

Hon. Fred D. Bright, District Attorney, Ocmulgee Judicial District, State of GeorgiaDear Mr. Bright:Ben Roethlisberger raped a 20 year-old college student in your jurisdiction.He committed a violent felony which you and you alone were responsible for pursuing.  You are the elected District Attorney who was called upon to summon the vigilance, resources, legal theory, competence and simple courage to bring this man to justice.  Justice, as you correctly stated, is your proper goal rather than a conviction.  Instead of pursuing justice, however, you ran from it.  In both substance and delivery, your decision not to pursue charges against this rapist is one of the clearest examples of prosecutorial incompetence I’ve witnessed in years.Normally I would withhold judgment on a charging decision in a case I wasn’t directly involved in.  I’m aware that your rape statute is challenging.  I’m not familiar with your jury pool, your legal culture or the limits of your resources.  So while the decision looked timid and feckless to me, I was willing to extend the benefit of the doubt.And then I heard you speak.The news conference, where you laid out your reasons for not pursuing this case, to the extent that it accurately reflected your analysis, should stand as a training tool in how not to evaluate a sexual assault case.  You note “quite candidly” that it was the victim’s friends who initially sought out a police officer to make a report.  What’s your point?  That she was clearly not victimized because she didn’t have the wherewithal to seek out a cop herself, just seconds after being raped by a professional football player twice her size?You note the victim’s statements changed over the night in question.  Are you really surprised, given that she was intoxicated, confused, frightened and in shock over the period of time in which they were taken?  What about the now resigned police sergeant who berated her for being drunk, spewed expletives about her and informed her and her friends that Roethlisberger had a lot of money, and that filing a police report against him would be futile?  Did you think that would promote cooperation and stability with your victim?  You note also the victim’s statement to medical professionals that night that she was “sort of raped” by a boy.   Therefore, in your mind apparently, she really wasn’t.  Because I guess it’s one shot, one kill in your jurisdiction.  If a woman, because of shock, fear, mistreatment, intoxication, confusion, the weight of circumstances, the attacker's celebrity and the psychological punch of being raped, can’t recite facts flawlessly within hours of the attack, she’s done for.  The case can’t be proven.I can’t say for certain whether you could have proven this case beyond a reasonable doubt and you can’t either.  I can say for certain that the standard you invoked for whether charges should be brought is utterly false, in addition to being misleading and needlessly defeatist.  The National District Attorneys Association, an organization I served for two years, promulgates Prosecution Standards which state that the prosecutor should file “only those charges which he reasonably believes can be substantiated by admissible evidence at trial.”  You had plenty.  You had motive, opportunity and zero delay in reporting the incident.  You had eye- witness testimony from her sorority sisters, panicking at the thought of their friend’s condition and circumstances, and being coldly stonewalled by “bodyguards” and the bar management.  You had physical findings consistent with sexual penetration.  You had the gift of a rare evidentiary rule that would have allowed you to use Roethlisberger’s 2008 sexual attack as part of your case in chief had you developed it.  You might have had the victim’s testimony had you chosen to establish a rapport with her from the beginning without judging her from a distance.  In order to develop a rapport and promote cooperation, a competent prosecutor will reach out to the victim of a sexual assault immediately.  Did you even speak to her before she was ensconced in legal protection of her own before April 2, nearly a month after the rape?Your responsibility includes a college town, Mr. Bright.  If this is how you react to the extremely common scenario of alcohol facilitated sexual assault, then I fear greatly for the people you’re sworn to protect.   I understand the victim’s eventual desire that the case be dropped, and I respect the fact that you took her wishes into consideration.  Regardless, my guess is that treating her and this case with more respect from the very beginning might have yielded a different outcome with regard to her willingness to cooperate.  Instead you pointed to her failings as a 20 year-old college student and perversely equated her behavior with Roethlisberger’s that night in some inappropriate scolding session you had no reason or authority to engage in.I don’t believe you dropped this case in any sort of deference to a celebrity. I think you ran from it because you’re thoroughly unschooled on how to prosecute anything like it. Thus, you have failed this woman, the citizens of your jurisdiction, and the wider world beyond it.  You have allowed a repeat sex offender to escape, let loose to rape again, which he almost surely will, despite your admonitions to him to “grow up.”  Ben Roethlisberger is grown up, Mr. Bright.  He’s a grown up rapist, and he has permanently altered and forever scarred the life of more than one woman.  If he does so again and his next victim chooses to report him, I pray that her courage is this time equaled by that of the DA responsible for doing justice.Very Truly Yours,Roger A. Canaff, JD

Failed Adoptive Parent: Watch Your Language

The invective that’s being hurled at Torry Hansen for returning her adopted son to Russia is sad, but mostly richly deserved.  Cooler heads and kinder people than I am will reasonably resist a rush to judgment, of course.  Caring for a child who has been raised in an institution, in a remarkably different culture, can’t be easy for anyone.  And it could be that the boy, obviously through no fault of his own, has serious behavioral issues that simply overwhelmed this family, particularly the hapless Torry who apparently believes that “disannulled” is a word.  (And yes, I understand that I’m a lawyer and perhaps shouldn’t pick on people who aren’t when it comes to quasi-legal writing.  Regardless, she has an R.N. and access to a dictionary.  If she’s going to officially abandon a child to a bureaucratic office 6000 miles away with a letter, she should at least have someone proofread the damn thing.)Assuming the Hansen’s are being completely truthful (which the Russian government disputes) and the boy was exhibiting homicidal ideation and fire starting, the fact remains that he’s seven.  Without resorting to abusive practices, he’s relatively easy to control physically, and he needs to be monitored- pretty much constantly- anyway.  If the family was that exhausted by him, they had better have sought out every possible means of assistance before returning him like a pet who ended up damaging the carpet and exasperating the owners.Regardless, there is no excuse- none- for putting a child on a 10-hour transatlantic flight and having him scooped up by some guy on the other side, paid $200 to drop him off at a ministry headquarters. I could care less how many “safety references” the Hansen’s claimed they gathered with regard to this courier.  Canadian Press reports that he dropped the child off with his bags and the letter and promptly left.  Everyone involved, most certainly this child, is lucky he didn’t disappear outside of the airport like smoke.  Since a lawyer has now muzzled the family, we probably won’t know until an official inquest why Torry didn’t accompany the child back to Russia upon rejecting him.  My guess is her reasons will involve all sorts of feelings of helplessness and failure that mask the fact that she really just didn’t want to go.  Cost, and the uncertainty of how, exactly, the Russian government might react to her walking away from him surely gave her pause.  Especially cost.  So instead Nancy, the grandmother, accompanied him as far as Dulles.  United Airlines and the hired stranger in one of the developed world’s more dangerous cities had to suffice from there.What prompted me to write, though was less Torry Hansen’s grim and nihilistic response to this boy’s purported difficulties, and more her description of them.  In the letter she wrote to explain her abandonment, she stated that he is “violent and has severe psychopathic issues/behaviors.”  I don’t expect much from this person in terms of competent description anyway, but she is far, far out of bounds in using the term “psychopathic” in any context.  From my work in New York State with civil management/commitment proceedings, I have a fair amount of lay experience with psychopathy.  I have encountered, spoken with, and cross-examined psychopaths.  The diagnostic term describes a terrifying and still only partially understood condition afflicting career criminals, serial killers, and the most repugnant and dangerous people, criminal or not, among us. At this point anyway, it is reserved almost exclusively for adults, with expanding research suggesting that it can be applied to adolescents.  I’ve yet to see it applied to children as young as seven.  I understand she’s attempting to describe behaviors in the letter, but the word “issues” is broader than “behaviors.”  Certainly she’s at least suggesting the child is, in her mind at least, some sort of “budding psychopath,” another term that is tossed about far too much to describe troubled children.   It's obvious she used the word for shock value in an effort to underscore her faultlessness in abandoning him.  The media is pushing these same unfair buttons also, with shocking headlines that focus on the boy's "terrorizing" behavior, as noted in an excellent blog post by Martha Nichols.The Hansen family’s response to this child’s troubles, whatever they truly are, has been destructive, selfish and cruel.  It has further stoked existing tension between the two countries and threatened the entire process that has placed thousands of the over 700,000 children in Russia who are growing up without parents.  Adoption of Russian children by Americans has resulted in some well-publicized horrific failures, but most, according the National Council for Adoption, are  successful.  But this family’s abandonment of one of them confirms the suspicions of many Russians that Americans view adoption from their country with a mentality best described as something between boutique shopping and the fate of an empty coffee cup.

Holy Week and the Nonsense Continues

It continues from the Church and its defenders, desperately trying to alienate further multitudes.  And it continues from anti-Catholics and the anti-religious who want the institution brought to its knees, some justified because of personal betrayal but many out of sheer, gleeful contempt.Ross Douthat, a conservative columnist for the New York Times, blames the crisis, in part, on the sexual revolution of the 60’s and 70’s.  The insinuation is that some of the abuse, particularly long term abuse against post-pubescent boys by priests, is explainable by the (literally) “revolutionary” effects of that era.  Douthat, in a blog post, attempts to shore up his argument by citing the formidable John Jay study that I’ve referred to here previously.  Bill Donohue, president of the Catholic League, makes the oft-heard but no less despicable argument that homosexuality is to blame, since most of the boys abused were post-pubescent.  Donohue doesn’t even attempt to cite the John Jay study (which belies his central claim) or anything else.  He’s got his scapegoat and an army of the uninformed applauding his analysis.  Finally, many liberal Catholics and anti-Catholics continue to see the roots of the crisis in priestly celibacy, which has clearly “warped” so many of these priests and turned them, through repression and obsession with the forbidden, into predators.Nonsense, all of it.The Church has a problem with predators because predators have found in it a haven, period.  Whether these predators prefer boys or girls, pre-pubescent or adolescent, has nothing to do with society’s temperature on sexual expression or the sexual preference of the predators.  They prey where they can, like any hunter does.  Non sex-offender priests with homosexual urges, throughout the ages, have taken adult lovers within the priesthood or without.  Were they emboldened to do so more during the post Vatican II sexual revolution?  Probably.  Nevertheless, they did not and have not feasted on the emerging, volatile sexuality of adolescents by betraying their trust, destroying their faith, and using as a weapon the very thing the child was brought up to turn to in times of crisis and discomfort.  That’s what a predator does.  And what they have done over the centuries, let alone in the decade and a half of the sexual revolution, should never be dismissed or excused as free-love experimentation between otherwise “well meaning” or “normal” priests and minor children.  Well meaning priests, gay or straight, who struggle and fail with celibacy turn to adult lovers, period.  Priests who manipulate, con, groom and then molest even older adolescents are sex offenders, period.  The Church has more than its fair share not because she is manufacturing them but because she has proven to be the best and largest hunting ground of perhaps any institution known to man.If the current Pope or anyone else involved in the shame and tragedy of this cover-up can be forgiven at all, it’s perhaps because of three things:  The fear and distrust of outside, civil authority because of past persecution, an over-reliance on the power of psychotherapy and treatment to “cure” the problem, and the doctrine of reconciliation through confession that the Church values so highly.Let’s be clear:  None of these things excuses the ocean of evil and resultant misery.  Even the lofty and still appealing idea that a person can enter a confessional and come out clean and ready to do better does not excuse the reckless judgment calls the Church hierarchy made over the years, at the expense of her most vulnerable followers.  But these points, when fairly considered, provide a slightly less cynical view than that peddled by anti-religion enthusiasts like Christopher Hitchens (although he does make some fair points in a recent Slate article).  Still, the Pope is not, as Hitchens claims, a “mediocre Bavarian bureaucrat.”  He is in fact a remarkably intellectually disciplined and erudite man as was his predecessor.  But this makes his missteps and continued ignorance on this subject harder to accept, not easier.  I don’t fault the Church for not understanding sexual predators earlier.  Our understanding of them now is still emerging, and good research is only decades old, if that.   The Church has been victimized by predators also.  But now she is gambling with her future by looking for a scapegoat in homosexuality and refusing to come to terms with the countless victims whose lives these infiltrators have stained forever.This crisis has been the spiritual heartbreak of my lifetime.  Armed with the professional knowledge I’ve been blessed with from working with the finest minds in the business, and being utterly powerless to affect any change from the pew I kneel in, makes it that much worse.  And the nonsense continues.

"Ask Amy" Falls Short

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