The Dominique Strauss-Kahn Case: 'Start By Believing' Still Makes Sense

A few months ago, I posted on the Start By Believing Campaign being led by an organization I serve (EVAW, Int’l).  In response, a less-than-impressed commenter asked me rhetorically “When do you stop believing, Roger?”  While I actually answered that in the post itself, a further comment of his illuminated the disconnect between us:“Does the sympathy I feel for a victim decrease in correlation to the increase of their voluntary consumption of alcohol, flirtation, placing themselves into precarious positions, and style of dress? Yes.”This statement encapsulates the all too common but remarkably misguided belief that victims, usually but not always women, invite victimization when behaving less than monastically. I guess my question back to this commenter should be “How much, exactly, does your sympathy decrease, and through what factors?”  But this of course begs other questions: If she wore a skirt above the knee during a “girl’s night” outing in a big city, does she still merit assistance, treatment and legal vindication, or just medical treatment, but no criminal justice response? How much does each drink she consumes ratchet down her rightful access to our system of justice?  At what exact point of flirtation she does she forfeit the right to be supported by the people she reveals the attack to later? In terms of quantification, there must be a calculus for how we measure out sympathy versus scorn when it comes to sexual violence for people who “ask for it.”Or maybe that attitude is nonsensical and unsupported by anything that relates to the reality of how and why people are sexually assaulted.I believe that each of us bears some responsibility for our personal safety. I readily shake my head in frustration when I see someone blithely short-cutting alone through a dark alley while wearing earphones, for instance.  Yes, there are things we can and should do to reduce our own vulnerability to crime. But first, even when we have acted in a way that (perhaps) made us more of an easy target than we would like, it’s never our fault when someone else chooses to attack and victimize us. Second, the nature of sexual assault, particularly non-stranger sexual assault, is unique. No other crime bears with it the level of scrutiny toward the victim’s actions than does non-stranger sexual assault. No other crime, through myth and mistake, shields the perpetrator as completely as does sexual violence.  And when a power differential is introduced into the mix, the odds against the victim go through the roof.The track record of IMF Director Dominique Strauss-Kahn, punctuated by his latest apparent sexual attack in New York City, is yet another reminder of how myths surrounding sexual violence can protect a powerful man from prosecution for decades (see an excellent and balanced op-ed on this story from my colleagues at Counterquo here). The fact that a relatively powerless (to put it mildly) hotel worker reported him for it is stunning. My guess is Strauss-Kahn was stunned also. I have a strong feeling he’s relied on the relative powerlessness of his victims for years. By many reports, there has never been a shortage of them. Strauss-Kahn hasn’t always chosen hotel maids, but also journalists and other professionals. In particular, his “affair” with Hungarian former IMF economist Piroska Nagy appears to have been consummated by the relentless pressure he put on her while she reported to him.Ben Stein, a very bright guy who nevertheless seems to be getting more and more bizarre lately, wrote perhaps the most stunningly ignorant piece defending Strauss-Kahn. In it, he wonders aloud how DSK could possibly have gotten away with sexual violence and/or sexual harassment for so long with no one coming forward. Mr. Stein must know precious little about the dynamics between the powerful and the relatively powerless if he has any doubt regarding the feasibility of a track record like DSK’s. Sadly, I think Stein keenly understands how power works and what it can suppress. But like so many others, he has a huge blind spot where sexual violence is concerned, and is willing to entertain any number of alternate theories in order to avoid seeing what is as clear as his own face in a mirror. In the very next paragraph, he suggests that “in life, events tend to follow patterns.”  Indeed, Mr. Stein, they do. And the pattern of sexual misconduct, sexual harassment and sexual violence that DSK has been perpetrating is beyond obvious.The answer is this: Dominique Strauss-Kahn, like most men who commit acts of sexual violence, is a serial predator. It is not at all unusual that his pattern involves violent acts as well as manipulative ones. There are certainly “womanizers” the world over who pursue arguably immoral sexual acts, even by the less uptight standards of the French. But this can be and often is done without creating legal victims (either criminally or civilly) with threats, work-place pressure, intimidation or physical violence. Strauss-Kahn is, by all appearances, someone who has crossed the line between what is despicable and what is actionable or criminal.Nevertheless, there will never be a shortage of people like Ben Stein who are blind to the reality of sexual violence, or my erstwhile commenter who are more than ready to blame the victims of such violence for being insufficiently vigilant, insufficiently well-behaved, or insufficiently cloistered. It’s not necessarily evil to think this way, but it’s grossly misguided and it’s protecting perpetrators and damming victims.  In short, it’s furthering a cycle we desperately need to break.

Four Years On: Civil Management of Sex Offenders In New York

This month in 2007, then Attorney General Andrew Cuomo was tasked with breathing working life into New York’s Civil Management statute. With it, New York joined 20 other states in taking one of the most controversial and delicate legal steps possible in a liberal democracy- that of extending incarceration or strict probation for individuals with mental conditions that drive them to commit sex crimes.The cocktail party description of the law is fairly easy to deliver.  Most candidates are men nearing release from prison for a previous sex conviction. The state Office of Mental Health has the onerous job of examining every one of them (thousands of men are released every year from NYS corrections for sex offenses), and they decide if the person qualifies as having a “mental abnormality.” Basically, that’s a mental illness or disorder that  drives one to commit sex offenses. For the few who make that cut, the Attorney General has the job of proving 1) that the person indeed suffers, and 2) that he needs to be either confined in a state hospital or supervised in the community. Ideally, a person remains subject to one or the other until a judge decides that he’s no longer a danger.New York is both massive and diverse, and characterizing it as left-leaning or “defendant friendly” is an oversimplification. Nevertheless it’s not the most conservative of states, and there was and continues to be tremendous philosophical opposition to the law. Some claim it’s no more than additional punishment dressed up like treatment. Detractors point to its high costs, but more basically to what they see as the fundamental unfairness of telling a person who has done his time that, in fact, he’s got more time to do, albeit in a hospital environment rather than a prison. They also question whether a mental abnormality could ever be treated to the satisfaction of a judge with the responsibility of turning an offender back to the community. To them, it looks like a convenient life sentence waiting to happen.These arguments deserve consideration, and I thought them through when I had the chance to serve in the Sex Offender Management Unit from its infancy four years ago this month. Civil management of offenders, when it’s done right, isn’t about right or wrong.  It’s about ill or not ill, and for a lifelong prosecutor that can be a challenging mental transition to make. Good and evil, the bookends of Judeo-Christian thought, may be unsatisfyingly simple to some philosophers, but they’re the compass of most U.S. prosecutors. And they give way to something more complex in the civil management realm. In the case of a person who is driven to rape, what drives him really isn’t his fault. But it’s not society’s either, and civil management is as much a quarantine function as it is anything else.Of course, 1000 fair questions are begged here, from what “driven” really means to the very nature of free will.  Regardless, what concerned me was less the idea of the law than the process under which it would take shape. There are states where civil commitment has failed miserably because it was political red meat in a ‘get tough on crime’ atmosphere, but never supported well enough to be true to its stated goals.There was no telling how it would play out in New York. A few respected colleagues warned me it was a bad career move, that the law was flawed in its inception and nearly impossible to enforce fairly or effectively.  In the end, though, I bet Cuomo’s office would be a good steward and that New York, despite and because of its big government nature, would be a place where the tricky business of civil management would at least be properly supported and also be done as honestly and fairly as humanly possible.I was right.Kevin Gagan, the former Manhattan ADA who took the reins out of the gate and brought me into the unit, remains one of the very best people I’ve ever worked with or for. He’s a hard charger but fair, deeply decent, and very smart. He also had a great nose for talent and assembled a team of litigators across 40,000 square miles that I view today as the single best collection of trial lawyers I’ve known personally or professionally. Our partners, OMH and Parole, worked honorably beside us and put heroic effort into maintaining not just the appearance but the reality of the ideals behind the law.  Our legal adversaries played their part and fought doggedly to protect and ensure due process for their clients, some of the most powerless and despised people imaginable. The nightmare scenarios of massive lock-ups and unending commitments haven’t happened, and for the most part the process works as it’s supposed to.It isn't perfect and it remains a work in progress. But when I consider that I took a chance with how my office and the rest of the state would implement this difficult, controversial social policy, I marvel at how lucky I got. Kevin has since moved on to higher office in state government, but the bureau he formed continues to thrive under solid new management and the leadership of a new AG. My friends and colleagues there continue their mission with as much integrity and competence as anyone could ask for.The idea remains controversial and rightly so. It involves the most daunting legal questions we face: The rightness, let alone reliability, of predicting future crimes; the correct balance- there is none more crucial- between individual liberty and public safety; the inner-workings of the human mind. New York hasn’t perfected a response to any of these. But it had faith in its own institutions and the safety of the public at heart when it took the leap to answer them. It’s done damn well so far. Happy Birthday.

Classlessness on Campus: No End in Sight

Earlier this month, an e-mail surfaced, purportedly from a Kappa Sigma fraternity member to his brothers at the University of Southern California.  Before I discuss it, I want to be clear: Anyone, male or female, who is angered and disgusted by this garbage has every right to be. As Margaret Hartmann noted in Jezebel, it demonically covers all the bases: Sexism, racism, objectification of women, and rape. In a word (and here’s a time where English falls short), it’s despicable. Some have suggested that its very over-the-top nature indicates that it’s a hoax, some rival fraternity’s effort at besmirching the chapter’s reputation.I actually don’t think the chapter was “punked.” I could certainly be wrong, but to me this thing reads authentically and would be more transparently outrageous if it was written as a weapon.  As offensive as the message was, in the world in which it was circulated it’s not so shocking as to be obviously planted by one group against another.I guess the only reason I don’t have a stronger reaction to it is because it’s also so laughably pathetic. The guy who wrote this is many things, but some darkly skilled operator in the world of seduction is not one of them. His salutation to “the distinguished gentlemen” of his fraternity is reminiscent of something a fantasizing, pimply teenager would concoct in an effort to channel Sean Connery as if he headed up some secret society of black-tie wearing spies instead of tending an ant farm in a bedroom festooned with action figures.He’s also oddly obsessed with the penis itself, and not just in the cultural, archetypical way that many men seem wired to be. Read carefully if you can stand it; he writes like a clever seventh grader and can’t drop an appropriate comma to save his life, but he can lithely romance words to evoke the feel of a male sex organ doing this or that. Of course, if he has a preference for men, I have absolutely no problem with that.  But my guess is that he would, and thus might have been betraying a secret that nevertheless scratched its way toward the surface as he typed.He also evokes Tucker Max, the accurately self-titled “a__hole” who has built a fair amount of name recognition appealing to the lowest common denominator by claiming to live and memorialize the life of a misogynistic scumbag and bathroom humor expert. Max’s star is probably fading, but not because the market for what he peddles is drying up.  Rather, poor Tucker is knocking on the door of his late 30’s. The exploits he claims to continue to have are getting less and less believable and more and more objectively pathetic, true or not.  He deserves credit for skillful branding.  The problem, though, is that the shelf-life for him as the focus of it appears nearly exhausted.As I’ve noted before, research doesn’t support the idea that an otherwise non-sexually violent man will suddenly become so because of exposure to things like Max’s latest story or this frat boy’s infantile rating system. But language matters, and the danger of this kind of dreck is that it might lead some guys to just shrug when an actual rapist in their midst is springing a trap at a party or similar social situation.  If women are truly targets and not people, what’s the harm?  Every culture on earth looking to eradicate an enemy begins by dehumanizing that enemy.  That's Tucker Max and this alleged Kappa Sigma author in a nutshell.I will note, for the sake of my newly found antagonists in the so-called Men’s Rights Movement, that both genders can play the destructive objectification game.  This is evidenced by the cleverly titled “F__k List” Powerpoint presentation created by a young woman at Duke last spring.  She apparently bedded a baker’s dozen male student athletes, rated them all in excruciating detail, and then prepared a gag thesis with the results.  Some of what she notes about these guys, while probably quite true, is also gratuitously cruel.  It’s bad, but I find it less offensive than what Max and the Distinguished Gentleman produce, and not just because she targeted men instead of women.  Rather, it appears to me that she engaged socio-economically advantaged participants who were likely looking to use her just as crassly as she eventually used them.  I don’t think she’s evil, but in combination with the smarmy, pseudo-scientific tone she takes throughout her masterpiece, the picture I get it is of a tiresome adolescent who sees herself as remarkably wittier and more clever than she actually is.Still, if the idea is not to treat each other like disposable toys, then her prank, Tucker Max’s whole career and the alleged brother's miserable message should spark outrage and be challenged. To the extent they have been, it’s an appropriate thing. But when one considers that Max has achieved a level of fame and wealth as a result of his trash, or that the Duke student is apparently being offered book and movie deals for hers, the only conclusion one can come to is that there’s still a society out there rewarding this stuff.  That won't change anytime soon.

Necessary Conversations, But Stubborn Questions

My hat is off to Shea Streeter, the Notre Dame senior who took it upon herself last week in a letter to the Observer, an independent college newspaper serving both ND and St. Mary’s, to address campus sexual assault.  And not just generally, but her own victimization, which happened twice.  Ms. Streeter was reacting to an interesting production that has graced the ND community since 2005, a completely student-produced show called Loyal Daughters and Sons that showcases themes of sexual assault, gender, religion and sexuality generally in the atmosphere of a Catholic college campus.Ms. Streeter’s issue wasn’t with the show’s content, which is well-regarded and apparently quite popular.  Rather, she was dismayed at the reaction of the students after it was over (actually the lack of a reaction).  She wondered aloud how students exposed to stories about sexual violence in their very midst could so easily switch gears and discuss whatever was next on their calendar.  She followed this with a blistering challenge:  Aware of the "one in four" statistic regarding women on college campuses subjected to sexual assault (see a snapshot of campus crime generally at NCVC here), by her calculations she is among over 1000 victims at ND at the present time.  If that’s the case, she argues, then there’s a conversation that needs to be had- and she doesn’t want it swept under the rug.I salute this young woman’s courage, because it is remarkable.  Perhaps it’s driven in part by what I read from her tone, which is outrage, confusion, and understandable mystification at the silence that surrounds her on this devastating issue.  While her own searing experiences give her more of a right to comment than I do, she nonethless doesn’t suggest that she knows what produces sexual violence or motivates those who perpetrate it.  She mentions things like the degradation she apparently sees aimed by some ND men at the women who attend St. Mary’s. She mentions the college hook-up culture and binge drinking.  She demands respect and an appropriate reaction to the word “no” by the men in her community.  She has every right to demand those things.But there’s an awful rub that I nevertheless feel compelled to mention: Teaching men to respect women and to avoid objectifying them as “dumb and easy” or whatever else, is a laudable and necessary goal.  But it shouldn’t be confused with effective rape prevention.  I know it sounds counter-intuitive, but research backs me up here: Most women aren’t raped by simply disrespectful guys intoxicated by liquor and the hook-up culture.  The urge to rape- taking sex by force or while their victim is incapacitated- is not something that comes out a bottle or even a culture of hyper-masculinity or sexuality. Most women are raped by men who are predatory, who choose their victims carefully, and who do it over and over again.Ms. Streeter asks aloud, if there are over 1000 women at ND who are victims, how many perpetrators are there?  The answer is probably far fewer than most would believe.  But they are prolific and will not stop.  They won’t stop because someone points out that it’s wrong to objectify women.  They won’t respond when taught to respect, cherish and honor rather than to take, use and discard. They likely wouldn’t have responded as younger adolescents, and they won’t respond as older men. They might be chiseled athletes or they might be goth artists. They might be smiling, completely harmless-looking guys seemingly cut from the very cloth of American college normality.They are everywhere, and this is true far beyond Notre Dame.  I’ve had no issue sharply criticizing the leadership of this phenomenal university and cherished community, but I’d be deeply remiss if I suggested in any way that Notre Dame was worse than anywhere else.  If anything I’d like to believe, as a Catholic myself, that the values and ideals of the school- whether or not they are always met in the reality of the human condition- nevertheless provide a measure of inspiration to be better.  And indeed, I think the ND community does live up to those ideals in many areas.Every institution- academic, corporate, military, social- is plagued with this phenomenon. Is it related to the hook-up culture and the “dumb and easy” garbage that is spewed at women?  Yes, it is.  Is it related to the obscenity that is how we regard women and girls generally in Madison Avenue America?  Yes, it is.But for preventing sexual assault, the value of addressing these important issues is mostly in strengthening things like the bystander response.  That is, getting more boys and men (and women as well) to step in when an undetected rapist with a sweet smile and a college sweatshirt is ready to strike. It is also a crucial goal in and of itself, and may someday create a culture less coarse, degrading and tragically unfair.  But as for preventing the development of, or changing the makeup of the predators themselves?  Right now, I don’t think so.  Still, good on you, Ms. Streeter.  And thank you.

The Baby Ad: Myth, Reality, and Danger in Prevention

They call themselves Men's Rights Advocates, or MRA’s.  I’ve aimed a fair amount of criticism their way over the years as paranoid-sounding myth perpetrators, which I believe many of them to be.  So I was surprised when I found myself agreeing with them- marginally- on an anti-rape video produced by a Midwestern rape crisis and DV advocacy center run by a male advocate named Josh Jasper, now the poster-boy enemy for the men's rights movement.  Jasper, a former Marine, ex-cop and now CEO of what appears to be a vibrant, multi-location facility, is a guy I’d probably admire and agree with more often than not.  But I think his video misses the mark, although not exactly for the reasons the MRA pitchfork crowd is seething about.The video depicts an adorable and utterly innocent, smiling male infant as a potential future rapist, and suggests that teaching him different ideas of masculinity is the key to ending sexual violence.  So presumably he can be taught to rape, or taught not to rape.  Jasper himself contends that no one is born to be a rapist or a batterer, but rather that it’s learned behavior.  MRA’s, though, seem to believe that Jasper wants us to think all boys are by default potential rapists who must be taught to behave more gently than the naturally crazed beasts they are.  That, in their view, constitutes misandry (a hatred of men and boys) and is part of a hyper-feminist, emasculating pandemic fueled by government largess and the self-hatred of guys like Jasper (and me).But I think Jasper believes the way many of us did in the early days of studying non-stranger sexual violence.  He sees a boy’s default setting as non-sexually violent, but believes the wrong rearing and education can turn almost any boy into a rapist.  It’s probably a distinction without a difference for the MRA’s, but I think it’s important.  I also think, unfortunately, that Jasper is wrong.As I’ve written in this space before, the best research we have shows that most men, regardless of what they’re taught, naturally won’t commit acts of sexual violence.   A good upbringing certainly promotes respect for women and a view of them that isn’t grossly objectifying (although societal cues are anything but helpful).  But what we’ve learned is that, even of the cads and womanizers out there, most naturally recognize and respect the boundaries of consent or incapacitation.  And a minority of men, some of whom seem quite upstanding otherwise, view sexuality in a way that leads them to rape, and that they do so repeatedly and won’t be deterred regardless of what they’re taught as boys.  They do most of the damage.In a way, this is a kind sentiment for men to hear. We’re not, as previously suspected, all potential felons with testosterone fueled libidos in need of restraint. But the other side of the coin is a very dark one indeed.  Domestic violence, it might be argued, is more of a learned behavior.  But where do rapists come from? What causes a boy to emerge in adolescence as a rapist or a sex offender?  The fact is, as researchers like Anna Salter have disturbingly but compellingly suggested, we just don’t know.  A tempting but inaccurate answer is that men who rape or otherwise offend sexually were themselves perpetrated upon as children.  I believed this for a while as an ADA.  But Salter and others have revealed that claims of abuse (over 90% for convicted sex offenders) is almost completely the result of self-reporting.  Even threatening offenders with polygraphs takes that number way down.  Will a sex offender or convicted rapist claim earlier abuse before a sentencing judge?  Of course, because he knows it’ll usually produce a more favorable sentence, and he'll be seen as less of a monster than an offender who alleges no previous abuse.What's much worse is when this argument is reversed; when it's believed that boys and girls who are offended against need to sufficiently “heal” in order not to become abusers.  This "vampire theory" is both appallingly cruel and completely inaccurate.  The vast majority of survivors grow to become more protective and cognizant of the risks when they have or interact with children, even if the pathology they suffered leads them to make bad choices in other areas of their lives.Both of these ideas- one benign but mostly wrong and one malevolent and completely wrong, nevertheless stem from usually well-intentioned, Judeo-Christian efforts to understand evil acts by people allegedly created in His image.  I’ve argued this for years with religious friends who can’t accept that a loving God creates people within whom malignant, torturous things simply bloom and create monstrous behavior. People just aren’t born with broken souls.Except that they might be.I’m only a lawyer; I have neither the ability nor the inclination to draw ontological conclusions.  As my father was snarkily fond of saying when I asked him as a kid what God was thinking about this or that, “I don’t know, I haven’t talked to Him lately.”I'm still religious, and I still don't know.  But I believe what methodological research and my own anecdotal experience suggests: There is evil in the world and we really don’t know where it comes from.  That doesn’t mean that efforts like Jasper's, though, are in vain.  If you view the ad as the MRA’s do (part of a continuing effort to demonize those of us with penises, even tiny innocent babies) then yes, Jasper is a misandrist.  But I don’t think that’s the case.  And there is great value in teaching boys gentleness, decency and even chivalry as long it’s understood that their female counterparts are not fragile, weak things to be protected and lorded over, but equals to be viewed on par in every way.  This is particularly important given how popular culture and Madison Avenue sell and objectify women and sex, and it can be done without eliminating gender roles and the life-affirming interplay of sexuality.  So were I Josh Jasper, I’d adjust fire (a reference I’ll bet he gets as a former Marine) but I wouldn’t back away from seeking to change how men view women.And I’d damn sure be careful to avoid assumptions that are tempting in their ability to explain the unfathomable, but potentially unfair to survivors of abuse or cynically exploited by abusers themselves.  With that said, I wish Josh the best as he continues his mission.  And I'll gladly share the target with him where the vitriol of the men's rights movement is concerned.  Semper Fi.

Start By Believing

A hard-drinking and genius Senator from New York (Daniel Patrick Moynihan) was fond of saying that everyone was entitled to their own opinion, but not their own facts. When it comes to non-stranger sexual assault (the great majority), Moynihan’s admonition is no less true.  So here are the facts:1. Most incidents of sexual assault are never reported to police.2. False reports of sexual assault hover around the rate of all other violent crimes (between 2% and 10%)3. Most rape is serial rape, meaning most men who commit rape commit more than one (the average is 6).These are research-based statements, and they have been confirmed in subsequent research efforts.  This is what non-stranger sexual assault looks like, and it’s a plague.  Interestingly, it’s a plague spread by relatively few offenders.  Most men won’t commit what we understand legally to be sexual assault.  They may be immoral, they may be disrespectful, but most are not rapists.  They’ll stop when they recognize signs of fear, revulsion or discomfort on the part of their potential sexual partners (signs, by the way, that really aren’t hard to discern).  If they come across an unconscious or semi-conscious woman (or man), they won’t shimmy the clothes and underwear off of the person and sexually penetrate her or him.Rapists, on the other hand, do what they do because it’s how they view sex and sexuality.  They usually aren’t “traditional” criminals, meaning they often aren’t tattoo-covered, grinning TV villains.  They don’t wear masks or jump out of bushes; they don’t have to.  Instead they rely on the myths that surround and permeate the notions we as a society have about sexual violence.  They employ remarkable cunning whatever their educational level in order to identify victims, and they usually use alcohol or other intoxicants to ready their playing field.  When they strike, it looks like exactly what they want it to look like- confusion, equivocation, and what some in the media have termed “gray rape.”  It’s almost never a clear-cut, “real” rape.  “Real” rape involves scary looking guys with darker complexions than ours who jump out of bushes and attack complete strangers.  Everything else is…well…a part of the dating ritual.  A rite of passage.  Just desserts for dressing slutty, drinking too much, staying out too late, and for leading on red-blooded American boys.  Because after all, boys will be boys.Believe that tripe if you will, but you might as well insist the earth is flat.  The reality-based among us understand that things like terror or incapacitation really aren’t that difficult to recognize for most men, and that most men take those cues and back off when they see them.  Nevertheless, the deniers will insist that sex is kind of a game, and testosterone is a funny thing, and ordinarily good guys might sometimes push things too far even though they’re really solid, respectable men at heart.  And of course, the assumption is that ordinarily good gals will sometimes naturally regret sexual liaisons that threaten their reputations and sense of self, and thus naturally “mistake” a consensual act for a nonconsensual one, thus resulting in a call to the police.  Ah, and don’t forget the legions of gold-digging, devil-women who haunt the bars and dance clubs of the world, looking to sting athletes, actors and other celebrities with false charges of sexual violence for the chance at a civil suit payoff or a reality show debut.  It happens all the time.  Right?No.  It really doesn’t.  No more than “gray” sexual situations involving force and incapacitation regularly produce reports to law enforcement and subsequent dramatic trial dramas.  In fact, the opposite is true.  Most women in clear-cut situations of sexual assault blame themselves and move on, let alone unclear situations where they really can't remember or fully grasp what transpired.  That being said, are people capable of lying about sexual assault?  Of course.  Do they?  Of course.  But is there any reason to believe that most people who allege sexual assault are 1) mistaken, or 2) lying?  No.  There is zero replicable, scientifically based evidence to suggest anything like that, and quite a bit of evidence to the contrary.That’s where Start By Believing comes from (a disclaimer- I sit on the Board of Directors of End Violence Against Women, International, the group behind the SBB campaign).  SBB is revolutionary, and it should be.  It represents a radical, new look at how we view cases of sexual violence.  The bottom line is that, in the vast majority of cases, there is no reason to doubt the victim making the allegation.  Further, even if one believes the victim, blaming her for “her part” in inviting her victimization is both wrong-headed and counter-productive.Victims don’t invite rape; they are chosen by rapists who seek them out and recognize them as attractive targets.A victim is never responsible for what “she did” to bring on a sexual attack.  I’m a lawyer.  I understand that the concept of “contributory negligence” (the idea that the injured person did something to contribute to his injury) is deeply embedded in the Anglo-American psyche.  But that’s not how sexual assault works.  Instead, sexual assault is a planned attack against an identified victim, chosen exactly because the offender figured she either 1) wouldn’t report and/or 2) wouldn’t be believed if she did.  Further, the initial reaction a victim of sexual violence experiences has everything to do with how easily she can relate her own experience to authorities, how effectively she can assist in the case against her attacker, and (most importantly) how quickly she can heal.SBB is about changing the attitudes of the rest of us- those who will be the person a victim turns to when the unthinkable happens.  If we simply start by believing- not judging, not questioning, not rationalizing- but simply believing, then we will be contributing remarkably to the healing process of the victim and (possibly) to the prevention of further attacks.  In fact, it's not that radical when we break it down.  We look at purse-snatchings this way.  We look at assaults and car theft this way.  When it comes to just about every other crime, we generally start by believing.  There is nothing- absolutely nothing- to lead us in any other direction where sexual violence is concerned.Take the next step.  For your daughters, your sons, your sisters, your partners, your spouses, your neighbors,  your friends.  The damage being done is incalculable, but so are the rewards when the tide is turned.  It's time.

Life, Sweetness, Hope

It is the motto of the University of Notre Dame Du Lac, taken from an 11^th century Marian hymn and a simple, lovely description of the woman we refer to as the Queen of Heaven.  And yet in the shadow of her statue there, a dutiful commitment to the safety and physical security of the women of her community seems dreadfully lacking.  So, apparently, is the pastoral compassion she would clearly have shown to a family suffering in the aftermath of a disaster.The focus of what happened when Notre Dame authorities were charged with investigating Lizzy Seeberg’s sex assault allegation against a football player last fall must not be lost.  District Attorney Dvorak's decision not to file charges was an inevitability without a living victim; it says nothing about the truth of her allegations.  What's worth focusing on instead is what the school has done or will do under its own disciplinary process, which has lower standards of proof than the DA and no need of her testimony.  What's worth questioning is the fully accredited police department and veteran detectives whose full response to what Elizabeth Seeberg alleged was pitiful, slow and feckless.But rather than doing the painful work of self-examination and sincere contrition, Rev. John Jenkins, ND’s president, continues to insist that the investigation was “thorough and careful,” signaling that “we followed the facts where they led” as if he knows something we don’t, and that this was all a misunderstanding or worse on Lizzy’s part.  He’ll go as far to admit that things could have been done faster, but in the same breath asserts that “care in the investigation is more important than speed.”  This is breathtaking.  How can this undoubtedly erudite man not understand that, in an investigation like that one, speed and thoroughness are inextricably linked?  NDSPD had a duty to react- quickly.  They had a compliant, cooperative victim.  They had detailed facts.  They had remarkably easy to find witnesses and suspects.  They had the reality of a threat communicated to Lizzy the next day.  They dragged their feet and then she died.  And when her parents sought answers the university stonewalled unnecessarily, incorrectly citing federal law to do so.Of course, as my detractors will quickly note, we can’t ever really know what happened.  This was a “he said, she said” case, and I don’t have a crystal ball.  No, I don’t.  And I don’t need one.  Are we to believe that Lizzy Seeberg, with no history of being remarkably vindictive or divorced from reality simply made up every detail of that night (the accused- whose attorney says was a “complete gentlemen” telling her she’d need to “pee in the sink” for instance)?  Does any serious person really believe she just fabricated this measured, reasonable account to her friends that night and the police the next day?  It’s been pointed out that she never accused him of rape.  Correct- she didn’t.  And if she were an attention seeking liar doesn’t it make sense that she would have concocted a bigger story?  Does it really resonate that a bright, hopeful young woman, new to a campus community, would choose to begin her first semester by taking on the most venerable football program in history for the sake of seeking attention?  Over a regretful incident of touching?  In order to “get back” at a student athlete she barely knew?   And all of this after finally getting the opportunity to try again at college in such a promising environment after a long and difficult struggle?   Are we to believe she made all of this up just because she wanted to risk the exposure, the backlash, the alienation of challenging the entire raison d’etre of her surroundings?   Even if she can be accused of merely misunderstanding his actions, are we to assume she reported them anyway just to be on the safe side?This is utter, vacuous nonsense and it would be laughed out of any other argument that didn’t involve a sex crime.  Indeed, the people divorced from reality are the ones drawing nonsensical parallels between this case and Duke Lacrosse and claiming some veneer of plausible deniability in this player’s name.  I’ll stake everything I’ve ever been or will be that the player she accused manhandled and scared the hell out of her exactly as she claimed.  And he got away with it, allowed to continue playing football despite her complete, immediate, comprehensive and compelling account to authorities.  Nothing- not even the snuffing out of a brilliant young life- was enough to convince Notre Dame’s football program to simply ask this young man to sit out a few games until it could gather facts and lend appropriate gravity to the situation. Her blood cried out for that, at very least.  But it wasn’t to be, anymore than tracking down this football player- whose whereabouts in season are as easily traceable as the President’s- was to be before 15 days passed.Lizzy’s father, Tom Seeberg, says what’s at stake here better than I could:   “We are parents fighting for our daughter. We're fighting for our sisters, our nieces and our granddaughters.  If not at Our Lady's university, then where? Where in the world would you fight for women? Where in the world would you fight for a cause like this?"The cause is a noble and crucial one indeed, and it’s about more than this lovely young woman and the heartbreaking truncation of her life.  It’s about more than Notre Dame, a school the Seebergs still love and admire.  It’s about how we view girls and women, and how we respond when they are sexually degraded, exploited and attacked.  What we're facing is a plague, on college campuses as much if not more than anywhere else.  And yet these environments, the very places where enlightenment should flourish and protection for young lives should be most prized, seem the most tone deaf to this problem no matter how much evidence is placed before them.  I hope ND’s response to Lizzy Seeberg wasn’t colored by the fact that her accused was a football player.  But that’s the perception many are left with.  And under it flows a bitter current of resignation: The women of the Notre Dame community, as in most communities, are worth less than the men.  Less than athletics.  Less than reputations.ND has a solid policy on paper to deal with sexual assault.  It needs to give life to that policy with investigations that don’t make a mockery out of serious allegations.  Father Jenkins and the leadership of his great university need to own, not duck, dodge and explain away what happened when his system encountered and then badly mishandled the plea of a young woman who approached it with an open heart and the desire to do the right thing.  But much more than that, they need to contemplate more deeply the commitment they are willing to make not just to the Blessed Woman they venerate but the mortal ones who cross their campus as young, imperfect, and sometimes vulnerable students in need of respect, protection and at least a vigorous, competent response to violent behavior against them.  Because on August 31, 2010, five months ago to the day, one of those women walked onto their campus and endured a jumbled, sick perversion of the Notre Dame motto.She lost sweetness.  Then hope.  Then life.

Precious

I recently consulted on a case of involuntary manslaughter.  The victim was a 19 month-old boy who had been inappropriately swaddled (by his stepfather) in a crib and placed face down on an adult sized pillow amid a flashlight and several other inappropriate and dangerous items. The child was dead when his mother finally went to check on him at 9:30 the morning after a particularly wild party where she and his father heard him crying in an unusual and distressed manner at some point over the din, but neglected to attend to him.  The official cause of death was mechanical asphyxiation.   The father had wrapped him so tightly in the blanket that he likely exhausted himself attempting to wiggle around, and then choked when he vomited later in the night (he’d been diagnosed with gastroenteritis and was vomiting regularly).Lividity (the bruise-like purple color a body turns on the side where the blood settles) and blanching (areas of paleness amid the purple because of skin pressed against a surface) made the crime scene photos chilling.  A 19 month-old isn’t supposed to look like some sickly, purple and white-striped, limp doll. For most of an afternoon, the prosecutor and my team discussed possibilities for charging either parent, particularly the stepfather who was the hands-on actor.  There were arguments for mercy toward both parties, particularly given the fact that both (especially the mother) were sentenced already to a lifetime of mourning this child and the dreadful judgment that led to his death.  But there was also evidence that the stepfather was both jealous and contemptuous of the child- and he had beaten him and left marks on at least one occasion previously.  Prosecuting him was appropriate.  The mother was a tougher call; she was guilty of horrendous judgment and some sick combination of laziness and stupidity, but didn’t seem to merit a charge.  And without a doubt, she was being punished already.  We also needed her cooperation.It’s a sticky balance sometimes.  Often the hardest part of being a child abuse prosecutor is working with (and withholding judgment of) the “non-offending” parent, that is, the one who didn’t actively harm the child, but who might have contributed to the environment that gave rise to his being harmed or killed.  Usually, although not always, that’s the mother.  She is often a victim herself, usually of the same perpetrator.  Understanding what’s known as the “Cycle of Violence” and other dynamics that play out in domestic violence situations helps to make sense of a person’s seemingly irrational or unwise choices. It’s not easy, for a hundred reasons, to leave a situation with a violent and abusive man.  Many ADA’s I’ve worked with though, particularly ones who are mothers themselves, draw a line at a mother’s failure to protect her own children.  Whether this is good public policy or mindless vengeance, whether it is justice or cruelty, is debatable and almost always case-specific.  The decision shouldn’t be an easy one either way.I was reminded of this dilemma watching Precious, the brilliantly acted but controversial film by Lee Daniels (and based on the novel by Sapphire)  released in 2009.  I found the movie riveting and recognized some of the dynamics experienced within the family Gabourey Sidibe’s character endured.  The pathology depicted in the film, from brutal incest and rape to the almost demonic assault on Precious’ spirit, verbal and physical, from her mother (played with genius by Mo’Nique), is not mythological.  It exists, and in nearly 15 years of doing this work I have seen it more often then I can shake on certain nights.  Some of the criticism of the movie was directed at its pure level of pain, anger, violence and despair.  It was likened to a porn flick in terms of its sheer scope of sickness, and discarded as simply over-the-top.  Perhaps, but the idea that what Precious experienced just couldn’t or wouldn’t happen in real life is naïve and frankly dangerous.   What’s more understandable was the reaction from detractors who found the movie to be a well-crafted but galling racial slur, designed to titillate white audiences with predictable and myth-cementing images of an inner-city black family.   “Black pathology,” to quote one reviewer, “sells.”   It’s a fair assessment, whatever the intentions of the filmmakers.It’s also grossly misleading.  The very same pathology, from the incest and sexual violence to the endless welfare dependence and cycle of poverty, has eaten entire areas of the US where non-white faces are rare or non-existent.   There is, I believe, an arguable connection between grinding poverty and physical abuse or neglect of children- whether in the city, the country, or anywhere in between.  There is no such link that I’ve ever experienced between poverty and sexual abuse, which plays out with equal malevolence in mansions and shacks.  There is absolutely no connection between any racial group and the pathology that destroys families and rips apart the children within them.  I personally believe Sapphire and Daniels were simply trying to tell a painful but powerful story.  But I can understand the revulsion that arises when it is only the African-American experience that is portrayed with such hopelessness.  The white majority, emerging Hispanic majority and every other group does its share of damage just as effectively.It is crucial to remember this when one is a prosecutor considering charging a neglectful or otherwise feckless mother in a case where a man did the most damage.  It’s simply one of the most difficult decisions we make, and if we’re colored by images of a racial, ethnic or socio-economic group as we do so, we’ve lost our sense of justice and we are deeply failed (and dangerous) professionals.  And, as offensive as the behavior of a failed mother can seem to us, we must remember the battle she has waged as well.  The genius of the character Mo’Nique plays in Precious is that, in the end, she earns a shred of compassion despite how miserably she’s reacted to the real demon in the story, the man we see so little of.The baby in the pictures I beheld was white, as were both of his parents, themselves uneducated and lower class.  Having been raised in a town where lower-class whites were the primary source of crime, abuse and bullying, I felt a quick urge to judge them with a lot more rigidity than I might hold for another demographic.   It wasn’t my case, but even as a consultant it was an urge that was best checked quickly. The landscape of a family destroyed by abuse and violence is as foggy, uncertain and unpredictable as any battlefield.  Understanding that as one walks into the midst of it in order to assign blame, issue subpoenas, and swing the hammer of the law is something we aren’t taught in law school.  But it’s a lesson we need to learn quickly.

Barbie and Rape Culture

A friend of mine has a seven year-old daughter.  She is bright, beautiful, cherubic, and kind.  Between the attributes she’s been blessed with and the fine guidance of her parents, she’s in a perfect position to capitalize on the hard-won victories of her female predecessors.  She truly can be whatever she wants to be, and that is a blessing.Kate loves animals- she’s interested in observing them, caring for them and discovering names for them.  What’s interesting, though, is that unlike many kids her age, her attention hasn’t shifted since she was a toddler.  Animals are her passion, and assuming that doesn’t change, a career in veterinary medicine might be the perfect path for her.  Of the things that could encourage her to think seriously about being a vet, I hope this isn't one of them:This is "Pet Vet" Barbie from Mattel's "I Can Be" series, apparently depicting the kinds of professionals little girls can be if they emulate Barbie.  I encountered this gift (the image reflects the exact same doll and packaging) when another friend of mine’s four year-old daughter asked me for help in opening it this Christmas.  Initially I didn't see what the doll was supposed to be dressed as.  Not just at first glance, but frankly after a few seconds, I concluded the doll was in a waitress outfit- and not a particularly conservative one.  How else to explain the perilously short pink skirt and hose with some flowery fringe, a name tag, that sash thing, and the equivalent of  four-inch platform shoes?   Josie handed me the plastic box and I saw the "I Can Be" logo on it someplace.  I remember thinking, "there's nothing wrong with being a waitress; it's an honest job.  I waited tables for years.  But it doesn't seem like the kind of thing they'd ask girls to aspire to for a career.""She's a waitress, right?" I asked out loud, mostly to myself although Josie was right there.  She is both adorable and precocious.  She wrinkled her nose and looked at me like I was an idiot."No," she said, "she a vet doctor and makes animals better."Oh.Barbie, in this box, doesn't look like a Doctor of Veterinary Medicine.  I dated one once in New York, actually a brilliant eye-surgeon for dogs who makes a fantastic living at a respected clinic.  She's very beautiful, but she doesn't wear hot-pink platform shoes and a mini-skirt to work.  She wears comfortable, rubber-soled shoes and loose-fitting scrubs to work, usually covered by a white lab coat depending on what she's doing.  In fact, I've never seen any medical professional dressed the way this doll was.  Are there vets who wear heels at work?  A guy I grew up with is a physician and farmer in rural Wisconsin- my guess is the female vets he encounters don't, but I could be wrong.  A short skirt and four inch heels could be a plus when walking from the truck to the barn to assist in the birth of a calf during a snowstorm.I'm hardly the first person to criticize the Barbie phenomenon, a uniquely American craze that's been in existence for 50 years.  Ever since high school and a disturbing but spot-on poem entitled "Barbie Doll" by Marge Piercy, I have been aware of the unrealistic and cruel standard that Barbie dolls set for the girls who love them.  That's an issue, and a legitimate one.  I suppose an argument could be made that focusing on what girls can grow to be, through a Barbie fantasy, can be healthy and encouraging despite her cartoonish dimensions and features that almost no girls can hope to "achieve."  Fine.  There is a place for pretty dolls, I guess, and if those dolls are also portrayed as smart, learned professionals, it can be a good thing.  But is it necessary to showcase the "I Can Be" Barbie in clothes that, while sexy and fashionable, are completely inappropriate for the practice of the career being described?  To be fair, there are other Barbie outfits for this and similar professional jobs that are much more appropriate.  So why is this one marketed at all?  Veterinarians don't wear this- they just don't.  If anyone pictures a veterinarian this way, he's probably a basement-dwelling weirdo with deeper issues.So what does Barbie have to do with rape or rape culture?  Rape culture is described more eloquently by others, including my friend and colleague Jaclyn Friedman here.  Basically, it's a societal acceptance and even encouragement of sexualized violence based on norms, attitudes and practices within a culture.  Our culture objectifies women sexually in so many ways it's silly to offer a single example.  That is what it is.  I'm not against sex appeal and I'm not about to categorize women generally as helpless victims, unable to control or use their own sexuality to whatever aims they choose.But in the hands of a child, something especially damaging occurs- something devaluing, objectifying and wrong- when the focus of a grown-up doll (otherwise portrayed as an educated, accomplished professional) remains her sexuality.  When the doll portrayed as the vet, pediatrician, engineer, lawyer, etc, is also shoe-horned into the trappings of rank sexuality, then it's really not the degree she holds or the skills she's developed that count.  It's what she has to offer for the physical gratification of men that counts.  That way, she's more of an object- an object with a degree, maybe, but an object nonetheless.  And objects are there to use, not interact with, negotiate with, get to know and value, the way fellow human beings are.  I use a screwdriver; I don't seek to get to know it and pursue an equitable, give-and-take relationship with it for mutual goals.  Teach me from childhood that a woman is a similar tool and at least I'll regard her as something for my amusement.  At worst I'll regard her as something I can push around and enjoy despite what she wants.  Teach girls, in clear and unsubtle ways, that what really matters (no matter what professional goal they achieve) is how they present in some impractical, fetishized version of the dress of that profession, and at least they'll value themselves less than they should.  At worst, they'll come to expect and accept being pushed around, used, and even raped.I know there are millions of women who played with Barbies as little girls and are healthy, happy adults despite her fictional standards.  That's fine.  But if Mattel is interested in maturing and professionalizing Barbie in certain circumstances, they'd do better to mark a clear line between dress-up Barbie and career Barbie.   The more the lines are blurred, the less the woman matters as a person.  That's rape culture.

A Letter from a Prosecutor to a Young Woman

Dear Elizabeth:I don’t see what more you could have done.As you well know, reporting sexual assault is a remarkably difficult act.  It is deeply emotional, terrifying for many reasons, unpredictable and often thankless.  You may not have known while you were alive that the great majority of sexual violence is simply never reported to authorities.  But you did report it, quickly and comprehensively.  I’m in awe of your courage.I can only imagine how difficult it was for you in particular, Lizzy.  You were a 19 year-old college freshman who had struggled with depression; a lovely young woman who had just started studies again after a difficult first year.  But you made it to St. Mary’s, an excellent, close-knit school and one situated along with Notre Dame in the heartland of Catholic education.  Arriving in this environment from a strong Catholic background must have been an incredible and hard-won joy for you.But I’m sure it also made it infinitely more difficult to come forward and report what happened on the night of August 31.  Being sexually assaulted at a place like Notre Dame and by a member of its football team- the very beating heart of the school for many- is an act that would have silenced most.  Few things are more difficult to come to terms with than being attacked in a dorm room by a football player on one of the most venerated sports campuses in the world. The idea of telling anyone must have been horrific, especially as you were just settling into a new school, a new semester, a new season of hope.  I've spent a career learning how hopes like that can be destroyed in the space of moments, and it never gets easier to hear.Still, you faced down your fears and took action.  You told your friends and wrote down what happened that very night.  You went to campus police the next day.  Despite the fear of being portrayed as God-knows-what and the fury that might rain down on you for reporting against a football player, you reported anyway.  Despite the discomfort of an invasive physical examination, you endured one.  Despite the fear and exhaustion that comes with entering counseling in order to fully recover from such an attack, you did that, too.  You did everything that could possibly have been asked of you.That’s why I’m trying to understand why Notre Dame, the world-class, excellent institution where you were attacked, has reacted the way it has.  I don’t know why campus police didn’t turn over a case file to the St. Joseph’s County prosecutor’s office until just several days ago- after your case became national news and your hometown paper began demanding answers. Nor do I understand what’s behind the school’s refusal to release police records regarding what they know about what happened to you- even to your parents.Finally, and most disturbingly, I don’t know why the man you reported against has played an entire season of football.  While it’s true that he is and should be considered innocent until proven otherwise, his privilege to play football isn’t in any way related to his legal rights as a citizen.  The fact is, you reported swiftly and completely a serious crime to the proper authorities that control his ability to play, and you followed through with evidence collection, counseling and cooperation.  Yet still they have chosen to refuse to even acknowledge your complaint, let alone bar him from playing at least until the investigation is completed.  This despite your death.  Coach Kelly won’t state whether he’s even spoken to the player you identified.  He’s quick to remind us that he stresses respect for women in his program, is a father himself, and wants “the right kind of guys” on his team.  Well, the player hasn’t been benched in three months; from this we can fairly deduce that Coach Kelly supports him as someone who is “the right kind of guy” and worthy of wearing the uniform.  If that’s so, why won’t he give his reasons?The sad fact is there’s an ocean of ignorance out there regarding what happened to you, Lizzy.  Many who are watching the case unfold are repeating over and over again the meaningless mantra that that we must all “Remember Duke Lacrosse.”  It’s because many believe, with nothing to back it up, that women regularly accuse men falsely of sexual assault, and especially athletes.  They’re happy to extrapolate one example of a false accusation to every possible situation, despite the mountain of evidence suggesting that women just like you endure what you endured day in and day out, usually in numbed silence.Even worse, some just don’t think that sexual assault is nearly as important as college athletics, and they’ll sacrifice the vindication of a budding, brilliant life like yours in a flurry of nonsense that will trivialize your suffering and ruthlessly twist reality.  They’ll call it regret.  They’ll call it a misunderstanding.  They’ll call it anything but what it is, and they’ll ensconce and defend the man who did it so he can simply do it again.  So even the prompt, thorough complaint you made and the investigation you participated in until your death wasn’t enough to bench a football player for a few games until some evidence came to light, one way or another.But as you know, there are also wonderful people both at Notre Dame and at St. Mary’s.  Both are beloved, respected schools for a reason, and I know you felt and still feel that.  To the heroic staff from St. Mary's Belles Against Violence who worked with you and actually found you before you died, I hope you smile on them from where you are and bless their work.I believe in a loving God, Lizzy.  Although I’m a Catholic as you are I don’t believe He punishes those tortured enough to take their own lives, and I’m confident that you’ve reached a plane of existence that will give you not only blessed relief but also infinite understanding.  So I guess this letter is more for me than for you; you have the answers now.Still, I’m sorry.  I’m sorry I didn’t know you in this life, and for what it’s worth l would have been honored to work with you to see the case against your attacker proven.  I would have had much to go on, given the dedication you showed to pursuing justice and the courage you summoned to do what most of us wouldn't have dared.  Thank you.Roger

The Power of Two

In child abuse prosecution, it is all but axiomatic that a two year-old victim simply cannot describe her victimization to any legally usable degree.  In most cases, toddlers that age can’t relate anything reliably.  Facts that can be gleaned are disjointed, conflated with the product of imagination, or just impossible to follow.  Most prosecutors, even if they’ve raised children themselves, won’t attempt to interview a two year-old.  If the child is three, and fairly precocious, maybe.  Two is just too young.But ADA Danielle Pascale is not most prosecutors.The Bronx District Attorneys Office, where I served for almost two years, is one of the most challenging in the country.  The Bronx, despite its generally dismal image, is an interesting, diverse, and in some areas beautiful place to live and work.  Its food, in neighborhood restaurants and corner delis, is fantastic.  It is framed by magnificent waterways and huge, shaded parks.  Its historical value and educational heritage are unmatched almost anywhere. Some Bronx neighborhoods are charming, tree-lined and friendly.  But grinding poverty and social pathology deeply haunt other areas and still produce crime, while less now than in the hellscape of the 70’s and 80’s, in daunting amounts.Danielle is a product of the Bronx and serves in the Child Abuse and Sex unit where she’s been for nearly nine tough years.  Her compassion for, love of, and raw skill with children are unmatched anywhere in my long experience in child protection.  But sometimes, Danielle surprises even me.A few months before I left the office, a particularly horrific case arose that fell to Danielle.  In a Bronx apartment, a toddler I'll call Jane stumbled out of her mother’s bedroom and into the living area she shared with her three older sisters.  Jane’s lip was split, her hair disheveled, and her face bloody.  Blood was later discovered in her underpants, reflecting a brutal injury to her vagina.  The suspect, Jane’s mother’s boyfriend (I'll call him John), had been in the bedroom alone with the child and walked out a few seconds later.  Jane’s sisters reacted quickly and called the police.  Jane was taken to Jacobi Medical Center, an excellent Bronx hospital where child abuse is often investigated and treated.  She was attended to by physicians and taken into protective custody.  As part of a multi-disciplinary effort in the Bronx to get ADA’s involved early in child abuse cases, Danielle responded to Jacobi after Jane had been treated to see what could be done with the case.When Danielle encountered Jane, she was armed with nothing but the contents of her purse and her cell phone.  She played with the girl for a couple of hours, interacting with her, building rapport, and (in the spirit of the team approach to child abuse) watching her and assessing her ability to describe what had been done to her.  Given Jane’s age, this step is one most prosecutors would have skipped, believing it hopeless.  Patient and tender interaction with an abused and traumatized child is its own absolute good, and the time Danielle spent with Jane wouldn’t have been wasted anyway.  But what emerged from that effort was remarkable.  Danielle was impressed with the cognitive level of development the child was showing, and eventually decided to use the video function on her cell phone to see how Jane would respond to seeing herself recorded.  She loved it, and recited her name, her ABC’s, and eventually her knowledge of basic body parts like her nose, mouth and eyes. Then Danielle put the phone away.  Careful to frame the question fairly and not suggest anything to the child one way or the other as she had been trained, Danielle asked Jane if she knew why she was at the hospital.  Jane nodded.“John hurt my cookie with his hand,” she said.  Danielle asked Jane if she knew where on her body her 'cookie' was.  Jane pointed to her genital area.  And who was John?  Mommy’s boyfriend, Jane knew.New York law allows something called unsworn testimony with children who are too young to be properly sworn as witnesses before tribunals like a Grand Jury or a court of law.  Their testimony can still be considered as long as it is corroborated with other admissible evidence.  Danielle’s first challenge once charges were brought against John would be a presentation to one of the Bronx’s sitting grand jury panels.  She knew that the physician and child abuse specialist on her team could testify compellingly to the injuries to Jane’s vagina and face.  There was no question that she had been hideously attacked; the only question was who did it.  The circumstantial evidence was very good to begin with- the suspect had been alone in the room with the child and had walked out almost immediately after her in view of Jane’s sisters.But Danielle got far more than that.  A child less than three years of age, whom she had known for less than an afternoon, told her in no uncertain terms who had harmed her and how.   Danielle would now make sure Jane told the grand jurors who would hear the case against her abuser.  The testimony would be unsworn, but with the other evidence it could be considered if it could be elicited.  Seeing how well Jane had reacted to being video recorded, she arranged for a camera crew the next day to come to Jacobi, and before the camera asked Jane the same simple questions.  The jurors saw this evidence in context with the rest and passed the case on to the next level of prosecution, where it remains pending.My friend accomplished the nearly impossible through patience, deftness, compassion, and an almost ethereal ability to reach and draw from a child far too young to speak on her own.  In so doing, she gave Jane something the child had likely never experienced and probably won’t again for some time to come: Power. Her power to express herself yielded a simple and profound truth that, communicated to players in a system of justice, went far to seal a criminal case against the man who brutalized her.  A two year-old shouldn’t need that kind of power, but in her case it was utterly crucial to ensure justice and protect herself, her family and other potential victims like her.  This empowerment was certainly lost on Jane in the moment.  But God willing, echoes of it will cascade throughout her life and shape the woman she’ll become.   For Danielle, it was all in a day’s work.

Colorado DA: Walking Away from Justice

Those of us in the ranks of American prosecution who are drawn to sexual assault cases aren’t there because the work is easy.  Non-stranger sexual assault is notoriously difficult to prosecute.  It’s also remarkably common, and therefore simply can’t be ignored.  If you’re in the business and you give a damn, you take tough cases.  Either that or you head back to Grand Theft Auto.Ken Buck, a DA in Colorado and recently defeated Senatorial candidate, refused to prosecute a case a few years ago that, by all appearances, was the type of case sex crimes prosecutors dream of in terms of evidentiary value.  Buck’s walking away from that case probably didn’t cost him the United States Senate; the race was razor close, and there were myriad other issues and missteps that kept his opponent in the seat Buck vied for.  But it didn’t help.What happened is simple enough to describe:  In 2005, a 21 year-old student of the University of Northern Colorado was sexually assaulted by a former boyfriend in her apartment.  The two had remained in contact, and late one night the victim invited him over, actually telling him how to jimmy a window in order to get in.  But when he got in and crawled into bed with her, he found her highly intoxicated and half-conscious.  In legal terms, she was unable to give consent to sexual contact.  Moreover, what she does remember about the incident was saying “no” to him more than once as he sexually penetrated her with his fingers and penis despite her obvious condition and unwillingness to engage.  After a brief delay, she reported all of this to police in Greeley, where the school is located.At that point, the right things were still happening.  There are plenty of places in this country where authorities would listen to an account like the one the victim gave and do little more than roll their eyes.  She invited him over.  She told him how to jimmy a window to get in.  So she was “too drunk” and said “no” a few times?  Whatever.  Greeley police, though, took the case seriously and set up and recorded what’s called a “pretext phone call” between the victim and the suspect.  The idea, legal in Colorado and many states, is for the victim to make a recorded call to the suspect (unbeknownst to him) and attempt to discuss the incident, hoping for statements that can be used in court.The call was a remarkable success; on it, he clearly admitted knowing that what he did to her was rape- she actually used the word and he agreed with it- and he apologized repeatedly, admitting that he knew she was barely conscious and unwilling to engage sexually.  Sometime later, he was interviewed by detectives and made further admissions: He admitted knowing she was barely conscious when he encountered her.  He admitted that he heard her say “no” to his actions no less than three times.  He acknowledged he had done something wrong, even going as far to as to admit that he attempted to wake her up so he could apologize.Bottom line: The completed detective’s case, when it made it’s way to the Weld County DA’s office, was a prosecutorial gold mine for a Colorado sexual assault charge of some degree.  And that’s where it died.As I’ve stated before in this space, judging another DA’s case from afar is something that shouldn’t be done without a serious disclaimer: I don’t know Buck’s resources, specific laws, legal culture or jury pool.  But again, through the sleepless engine of electronic media, I’ve learned quite a few intimate facts about the case, and most importantly, I’ve heard him speak.  What I heard wasn’t an official statement, though- it was a surreptitiously (but legally) recorded conversation made by the victim when she met with Buck to discuss why the case wasn’t being prosecuted.  Assuming the transcript is accurate, what Buck said to this young woman was legally inaccurate, needlessly defeatist, and suspiciously manipulative.Let’s start with Legally Inaccurate:  Buck, like so many prosecutors before him, hid behind the canard of “ethical responsibility” by telling the victim the case needed “an expectation of proof beyond a reasonable doubt to a jury.”  This is simply false, and was used in the same way by Georgia DA Fred Bright when he decided the Ben Roethlisberger case earlier this year.  As I stated while discussing that case, the National District Attorneys Association Standards for Prosecutorial Ethics require that a prosecutor bring “only those charges which he reasonably believes can be substantiated by admissible evidence at trial." Mr. Buck had more than enough.Then there’s Needlessly Defeatist:  Buck tells the victim twice that he had “never met a prosecutor who would” conceivably take the case to trial.  If so, he must run in a very small circle of prosecutors.  I have never practiced in Colorado but I’ve trained with several Colorado DA’s (including the out-going governor Bill Ritter) I'd bet would take this case without hesitation.  A phenomenal and nationally renowned advocate and sexual violence expert named Anne Munch also makes her home in Colorado.  If Buck wanted help proving this case, he had no shortage of resources.Finally there’s Suspiciously Manipulative:  The victim had been a rape crisis advocate, which was part of the reason she pushed harder for an explanation.  During their conversation, when she presses Buck on his decision, he goes from strangely obtuse to subtly threatening.  He suggests that her invitation to the suspect was clearly about sex, even though sex was never mentioned, as if no other reason could have existed for it.  He then crudely rebuffs her point that, regardless of what could be inferred from the invitation, she and he BOTH acknowledged that she said “no” and was in and out of consciousness.  To follow the argument is to see Buck clearly avoiding the case regardless of any reasonable analysis to the alternative.  Then, when the victim suggests she might bring a motion to compel prosecution (a court order that would require Buck to take the case), it gets uglier.  Buck says that, if she brings such a motion, all of the facts will become public, including ones that suggest she has a motive to lie, which Buck appears to have considered himself (the two became pregnant over a year before and had a miscarriage- how Buck believes this would inspire a woman to level a false rape charge against the father she still keeps in touch with over 18 months later is bizarre, but apparent).  He basically warns her that challenging his decision will result in embarrassment and exposure, somehow shedding light on things she obviously should feel ashamed of.In Buck’s defense, he apparently undertook efforts with the local rape crisis center after this case to learn how to better serve victims of sexual violence.  Whether they stuck or not is beyond the scope of this post, as is how the case reflects on Buck’s views on women generally (those views were speculated upon frequently during the campaign).   I’m not going there.  But what is clear is that Ken Buck refused to prosecute a sexual assault case that was orders of magnitude more promising than most encountered in this business, and that his reasons for not doing so were badly expressed at very least to a concerned victim of crime.  I hope he learned something from it.  I doubt seriously the perpetrator he failed to hold responsible learned anything.

Yale Daily News: Use Your Voice

The student writers at the editorial page of the Yale Daily News ( YDN ) are demonstrably talented.  They craft subtle, dispassionate arguments and plumb impressive vocabularies.  They attempt to see different sides of contentious issues.  This is not surprising.  They also appear thoroughly misinformed when it comes to how sexual violence plays out most commonly in exactly the environment their readers inhabit.  This ignorance, reflected clearly in an October 18th editorial addressing an offensive fraternity pledge chant shouted across campus, is also not surprising.A profound misunderstanding about sexual violence, particularly as it happens on college campuses, is neither inexcusable nor uncommon.  Few understand the dynamics as well as the experts, and the underpinning research is still new.  But the editorialists at the YDN have a considerable voice within one of the country’s most distinguished schools.  As such, they should be challenged on their analysis, as it is both negligent and presumptuous on two key issues:  One is that the misogynistic, violent chants they rightfully decried are still, at bottom, nothing more than boorish ‘boys will be boys’ behavior.  Second, and more dangerous, is their belief that there is a clear distinction between the boisterous, chanting young men or those like them, and some mythical group of rapists who should never be confused with these “members of the community.”YDN, take notice:  The threat to the women (and some men) of your campus does not lie with strangers, outliers and interlopers to campus life.  It lies squarely with, in relatively rare but prolific cases, the very men you’re ultimately defending as harmless.  In fact, the few but truly dangerous men in your midst who do rape look exactly like the ones who don’t.  They share the same classrooms, inhabit the same dorm rooms, and attend the same parties and rush events.  And yes- chants like the ones heard earlier this month do have the power to do more than offend.  They have the power to blunt the sensibilities of the unwitting accomplices these perfectly respectful looking rapists look to for assistance, and they diminish the value of the women these rapists target, making them easier to dismiss as objects for use.There was a belief for a while in some parts of the anti-sexual violence movement that testosterone was ultimately the culprit when it came to sexual violence.  Boys will, in fact, be boys, this thinking went, and unfortunately that included rape where the boys or young men were untrained to stop themselves, or to recognize terror or revulsion on the part of potential victims.  A lurking rapist existed inside of every red-blooded male, went this thinking.  It is not true.  In fact, most men are not capable of sexual violence, and most sexual violence is not the product of some “misunderstanding” or “one-time mistake” as is so often the anodyne offered up to explain rape.  Men may be womanizers, players, dogs, bastards, whatever label appropriately defines their unhealthy attitude toward women or sexuality, but most won’t use physical force against a partner while she struggles in terror, or shimmy off her clothes and sexually penetrate her while she is literally passed out.  Instead, what replicated, methodological research has revealed is that a relatively small number of men, while completely functional otherwise and normal in appearance, are deeply disordered and view sexual violence as normal sexuality.  Further, not only will they likely get away with sexually violent acts for a variety of reasons related to their environment and their place in it, they’ll do it over and over again.  They are “undetected rapists” as Dr. David Lisak has labeled them (Lisak is a groundbreaking researcher I’ve mentioned before in this space).  They commit most of the adult rape we experience, and they can be anywhere.So while the YDN might smugly dismiss as alarmist the contention of the Women's Center that these chants were a call for sexual violence, they should recognize that the undetected rapists who do exist among the chanters and listeners are emboldened by a public call to use women like appliances.  They also benefit from a general atmosphere of degradation and objectification of women.  While most of the men around the offenders are themselves not dangerous, they are far more likely to simply walk away from a situation where they could make a difference if they’ve been conditioned to view the woman in question like a commodity.  So if a non-offending male observes a friend or fraternity brother literally carrying a comatose young woman into a bedroom, or wanting to shoot cell phone video of her gagging on his penis while she’s going in and out of consciousness, that male is more likely to shrug and walk away, believing it’s all a part of college life.That’s the danger of those chants, and that’s the reason they have generated a strong response.  I’m not anti-fraternity and I readily acknowledge that the impressionable young men reciting the lines were not suddenly inspired to rape because of them.  But these chants were, if unwittingly, empowering a small but dangerous number of men either within their group or within earshot that will rape.  And they were dulling the protective judgment of the only men who might be able to stop them.To the Yale Daily News, I’d ultimately remind of you of this: Voices matter.  The voices of the young brothers that poisoned the air over what you call Old Campus, a place I can only imagine in terms of its grandeur and veneration, matters.  Yours does also.  Learn better the dynamics of the sexual violence that harm the honorable and invaluable learning environment you love so much and speak for so powerfully.  Acknowledge the voices- chanted, written or mumbled- that further that harm, wherever they emerge.  Then, use yours.

Vertigo

“I’m at a place called vertigo.  It’s everything I wish I didn’t know.” –U2It happens when we’ve drunk too much; in this culture we call it bed-spins.  We plant a foot on the floor and sometimes it subsides.  It happens on boats; we call it seasickness and we concentrate on the horizon, a fixed point that anchors us. It happens to pilots and it kills them; my childhood friend Pete flies jets for a living and explains in chilling detail how, in his world, it is a deadly perversion of the normally reliable signals our body’s navigation system sends to our brain.  So we believe we’re flying on a level course when in reality we are aimed at the ground like a bullet.  It is our senses, confused.  Lying.It’s vertigo. When it hits us, for whatever reason, we grab for something that is, or promises to be, steady, solid and unmoving.  Stability is the thing that delivers us from vertigo.  When the sensation is physical, we can sometimes exercise it or keep it at bay.But vertigo is more than physical.  In a broad sense it can be emotional, and it is one of the many demonic gifts that child sex victims receive as they attempt to navigate a world in which everything their natural development taught them to rely on is suddenly a lie.  A signal telling them that up is down.  That danger is comfort.  That anger is insight. That sadness, abuse and loneliness are what they deserve.  And so they grab for things that promise stability.  But in the dark ether of a damaged soul the columns and posts that present themselves are sometimes false and wavering.  Intoxicants, anger, isolation and self-blame are sweetly tempting as solid, steadying things.  But they are poison.So vertigo is masked, but not eliminated.  The course continues to veer with no warning as to what lies ahead. The key to stopping it for real is to find the true horizon to fix upon, a solid floor to stand on so that reality can be reckoned, ghosts banished and the lying whispers silenced.  It is a journey sometimes of years, and it requires insight, grueling work, and unparalleled courage.That courage is at the solid center of an hour-long documentary produced by Kathy Barbini and Simon Weinberg of Big Voice Pictures.  The film is called Boys and Men Healing, and it is a rare and nakedly honest view of the journey three men in particular have taken to address the horrors visited upon them by older offending males. Female child sex abuse, just as damaging and even more common, has been widely studied, resulting in needed insights.  Male child sex abuse, however, remains more shrouded in secrecy as boys tend to under-report more than girls.  Estimates of the prevalence of male child sexual abuse hover conservatively at about 1 in 6 boys, but even that is probably very conservative.  For this reason in particular, Boys and Men Healing is deeply valuable and eagerly welcomed.I spoke with Simon about the video and was struck instantly by his warmth and kindness (he exudes these like a balm even by phone), but also the fierce passion he shares with his wife and partner, Kathy, on this issue.  The three male survivors the documentary focuses on are diverse in their backgrounds but strikingly common in their struggles and their eventual triumph over the abuse they endured.  One of them, David Lisak, is among the foremost and prolific researchers in my business, a man I greatly admire personally and professionally.  To see him sharing his own story of struggle and recovery was profoundly touching.It’s everything I wish I didn’t know.  But I do understand the stability these decent and extraordinary men have searched for over the long years.  They have now, in some measure at least, achieved freedom from the dizzying fog of vertigo.  They have fought with the hearts of lions for the simple relief of being grounded.  They've striven heroically for something most of us happily take for granted- a sweet, unaltered sense of up and down, right and wrong, dark and light.  It shouldn’t be that difficult.  But it is.Given the numbers as they are, it is likely that within minutes of me posting this, another boy will be introduced to sexual exploitation at the hands of, most likely, a trusted older male.  At some point, maybe as the reality of what is happening sets in, or maybe months or years after, he’ll know the imbalance, the instability, the dark, deep wrongness of something spinning within him.  He’ll have 1000 different names for what it is he’s feeling; perhaps as specific as a fear of intimacy, perhaps as broad as quiet hopelessness or itching rage.  Those around him may simply shake their heads and call him a disappointment, a problem, a failure.  If it succeeds in killing him, it won’t be listed on any death certificate, although it will surely underlie the stated cause, be it suicide, alcoholic hepatitis, drug overdose, etc.Or, with mercy, he’ll come to know it for what it is, and then be able to expiate it through grace, effort and perhaps the angelic support of loved ones.For now, it’s vertigo.  Hold on.

God, Sex, Lies and Money

Jesus told him, "If you want to be perfect, go and sell all your possessions and give the money to the poor, and you will have treasure in heaven. Then come, follow me."Matthew 19:21I’ve never begun a blog post with a Bible verse.  I’m highly hesitant to do, as the man I’m about to discuss (mega-church pastor Eddie Long), and any number of Christians could slap me down effortlessly in a Bible quoting contest if they had an opposing view to the one I’m about to express.But still I begin with this plainspoken response from the itinerant rabbi named Jesus to a young rich man who wanted to know what else, other than keeping the commandments, he needed to do for salvation.  I do it for this reason: I do not know if Eddie Long has failed as a Christian because he’s a predator of young men for sex (although the signs are troubling). But I’m confident he’s failed as a Christian by embracing remarkable personal wealth.  Long’s civil liability is in dispute, but his possession and enjoyment of great monetary wealth is not.  And if money is a common tool of the devil, well, Bishop Long is being used already.Did Long lead these four young men into sexual activity by identifying them as attractive and vulnerable targets from a spiritual flock that attracted some from difficult backgrounds?  Did he use his stature and the power of faith to create a “covenant” between them to ensure intimate access to their lives?  Did he “employ” them in his vast enterprise and take them to far away places with the added attraction of gifts and celebrity access?  Did he then engage in intimate, and then sexual contact with them while the gravy train rolled on, as well as the unending reminder of the power differential that existed between him, a world-renowned spiritual leader, and them as “spiritual sons?”I don’t know.  But the statements of facts within the legal pleadings are remarkably typical of predatory, “grooming” behavior, and ring very true.  And Long’s words since the allegations first broke are far from comforting.  As Jonathan L. Walton, a professor of African-American religion at Harvard Divinity writes, Long’s non-denial this past Sunday was odd at least.  Long, on Sunday and on Tuesday, seemed almost to be preparing his congregation for further damaging revelations.  He noted that, while he’s not a “perfect man,” he’s “not the man being portrayed on TV.”  He then conflated himself with his congregation and compared himself to David against Goliath.These are textbook diversionary tactics: Make the struggle about “us versus them,” and include your followers as victims under attack.   Portray yourself as a martyr under siege and call up Biblical images that bespeak your status as an anointed struggler against great odds.  Amplify your theatrical piety, but just in case something comes out that you can’t deflect, set them up for a bit of disappointment.The attractive but meaningless admission of being less than perfect is a rhetorical device that allows the subject to fall far below a standard most are expected to meet and still be equated with them because, of course, no one is perfect.  Former Congressman Gary Condit said exactly this in 2001 when attempting to explain his extra-marital affair with a murdered young woman whose missing-persons investigation he basically obstructed through lying about their relationship.  “I’m not a perfect man,” Condit reminded us.  What of it?  My father is imperfect.  But he is a deeply decent, humble and kind man.  The issue isn’t whether Condit or Bishop Long is perfect.  The issue is whether either fell below the standard of decency rationally and appropriately set for them.  In Long’s case, that standard is high indeed, frankly higher than Condit’s even if (and maybe because) Condit was a member of Congress.So why did I bring Long’s wealth to bear on the argument?  After all, there are many Christians and other religious who believe that God not only sanctions but provides earthly gifts to the faithful, including pastors.  Men like Joel Olsteen have made millions promoting a gospel of wealth and financial freedom, and far from apologizing for their riches, they celebrate their wealth and dare us to join them, somehow. These men can quote all the verses at me they wish.  I'm no Biblical scholar but in my mind this kind of thinking is about as compatible with Jesus’ teachings as whiskey is to driving.  I believe clergy should live in solid middle-class comfort; a good car and an air-conditioned house.  A ready means of providing health care, recreation, education and security for themselves and their loved ones- the kind of middle class life that’s quickly disappearing in the U.S.  Anything beyond that is spiritual theft.In Long’s case, there is a cultural power-aspect that should be considered.  Money is power, and Long, from a deeply oppressed minority, may believe his and his church’s wealth to be a marker of hard-won and well-deserved progress.  With regard to his church and its influence over and attraction to world leaders and the like, he’s right.  But the way he personally lives is despicable for a Christian minister of any stripe, and mocks the humility and simplicity of the rabbi who allegedly inspired all of it.So based on what I know, Long is- in my view- deeply flawed as it is.  And it's simply been my experience that once the devil gets his foot in the door, it's easier to kick it wide open. Based on what I am hearing, from the four plaintiffs and Long himself, I’d be saddened but not surprised if the allegations are true.  My sadness, alas, extends to the abused men and Long’s family, as well as the tens of thousands of truly decent people who view him as a spiritual leader.  It stops short of Long himself, who has gained richly in an ancient but filthy tradition of selling the greatest gift a loving Christ- the one that is supposed to be, above all, free.

Tough Job, Tougher Women

Sue Rotolo’s eyes are the first thing you’ll notice about her; they are almost impossibly blue, and glow lightly beneath red hair.  Her smile is easy and warm, and she has an enviable air of serenity, whether in the presence of an eight year-old rape victim about to be forensically examined or an aggressive attorney attempting to lock her down on cross examination.It’s a good thing.  That Zen-like calmness serves her well.  In the clinic, her job as a Sexual Assault Nurse Examiner (with the odd acronym SANE) is to treat patients who are victims of sexual violence.  In the courtroom, she testifies as an expert to what she observed and what it might mean legally.  Ask her which job is more difficult and she’ll likely tell you the courtroom; it’s less predictable and more brutal.  It’s at times a tongue in cheek response, but it’s no less true even if a little bit funny.Rape, after all, doesn’t usually happen between 9 and 5 weekdays.  SANEs are torn from their beds, their loved ones and their lives to provide hands-on care to people suffering some of the worst trauma imaginable.  It happens in every combination of off hours, holidays, weather and traffic.  In the crush and tangle of Northern Virginia where I learned from Sue the business of forensic nursing, a trip to Inova Fairfax Hospital can take hours from two towns over in the wrong circumstances.  The patients are at times tragically young or old (Sue’s youngest was about three months). Some are combative, some intoxicated.  Some giggle.  Some beg for relief from any number of things that haunt them, real and imagined.  Sue, and the nurses who work for her, see them all.And nevertheless, it’s us, the lawyers, who create the ultimate crucible for a woman in Sue’s crew who wants to be a SANE.  It’s the contact sport of criminal litigation- often at its most bitter and belligerent in cases of sexual assault- that drives many hopeful forensic nurses out of the business.  Attorneys often treat them, because they’re “just nurses,” with far less than the respect they merit (most doctors, unless they specialize in forensics, are much less valuable on the stand in a rape case than an experienced SANE).  They’re attacked mercilessly for being everything from sorority-like “little sisters” of the police and prosecution to man-hating zealots or glorified candy-stripers.  Every cruel and gender-based stereotype that can be slung at them from the male dominated world of trial law is done so.  The successful ones realize early on that testifying is yet another skill- completely discrete from anything else one does as a nurse- that must be mastered in order to survive.  Sue has one iron rule- no crying on the witness stand.  I worked directly with her nurses for years and never saw it broken, even when I knew I’d have been reduced to sobs had I been where they were.The ones who do survive the process make healing differences in the lives of their patients few will ever match.  Rape has always been difficult to report, but prior to SANE programs (an adjunct of the woman's and victims movements of a generation ago) it was at times tantamount to a re-victimization.  Victims waited for hours, triaged behind whatever nightmares took precedence in the ER they found their way to.  Many physicians were unable or barely willing to conduct the examinations both for treatment and possible evidence collection, and they wanted no part of the legal process. Victims were judged, ignored or even threatened with arrest depending on how they presented.  It was more than wrong, more than something that worsened experiences and deepened the pain. It also killed cases and drove victims underground.  That allowed attackers to escape justice and rape again; most rapists don’t stop at one.The idea of SANE programs is to specially train nurses to treat and examine patients whose chief complaint is sexual assault, and to evaluate the body as a crime scene, collecting potential evidence for investigation and trial.  As an invaluable plus, the exams are conducted in a safe, private and dignified setting where the person at the center of the case can begin to heal, and regroup.  With the help of victim advocates who provide the emotional support and ties to other services they need, the process, when it’s done right, produces a better, stronger witness for us and a sex assault survivor with a fighting chance at looking at life at least similarly to how she did before.It’s still an evolving process, and I’ve been blessed to work with some of the finest women I’ve ever known in the building and sustaining of the programs and their interaction with the legal system.  From Jen Markowitz in Ohio, Eileen Allen in New Jersey, Tara Henry in Alaska, Pat Speck in Tennessee, Jen Pierce-Weeks in New Hampshire, Jacqui Calliari in Wisconsin, Diana Faugno in California, Elise Turner in Mississippi, Linda Ledray in Minnesota, Karen Carroll in New York and dozens of others, I’ve learned more about the relevant anatomy and reproductive health then I ever thought possible, and we’ve broken bread and self-medicated together in more places than I can remember.But it was Sue, with her bright eyes, warm smile and unflappable mien who taught me with plain speech how to drop my blushes, learn the anatomy, pronounce the terms, protect the truth through her testimony, and do my job.What Sue has done literally thousands of times is probably best exemplified by a story she sometimes relates in training regarding an eight year-old girl who had been sexually abused by a family member.  After being examined by Sue in an invasive but tender and careful manner, the child asked her how bad she looked inside now that she had been made bad by what had happened to her.“Honey,” Sue said, “you are perfect inside.  And you’re perfect outside.”That child may forget the lawyers, the judges, the police officers and the numbing, contentious process that played out above her.  She will never forget the abuse.  But God willing, she also won’t forget the blue-eyed lady with the stethoscope; the one who reminded her of the most important thing of all.

Prisoner Sex Abuse: Still Common, Still Wrong

“I said there is no justice as they led me out the door.  He said this isn’t a court of justice, son.  This is a court of law.”  -Billy Bragg, “Rotting on Remand”Alexandria, Virginia.  1998.  He was a pizza delivery guy, maybe 20 but built emotionally and physically like 16.  His victim was a six year-old Spanish girl who was excited about her pizza, and walked out of her apartment and into the building’s lobby to await it.  When he saw her, barefoot in a light cotton print dress, something disordered and dark in him stirred.  She asked if the pizza was for her family.  He nodded and smiled.  But then he set it down, took her by the hand, and led her down a short set of stairs to the laundry room.  There, against a washing machine, he penetrated her vagina with a finger until she screamed.  He let her go and fled.APD caught him very quickly.  A hulking, athletic, but kind-faced, easy-going sex crimes detective named Mark Purcell questioned him, and obtained a fair confession.  Mark used no unfair or bullying tactics- the suspect was sick and sad, and confessed without much prodding that he had stuck his finger in the little girl.  He just couldn’t help it.  Mark didn’t ask him why.  He had been around enough to know the answer wasn’t usually satisfying anyway.The case fell to me and he pleaded guilty.  His family, religiously Muslim and from overseas, was mortified at his behavior and terrified for his future.  Virginia employs sentencing guidelines, and when penetration occurs (as opposed to ‘just’ fondling or touching), they go up from months to years.  He had no criminal record, but his guidelines came out to around nine years.  Nine years in a correctional system that has attracted the attention of human rights groups over the years is no joke, and sex offenders go in at a high level of security.  That means they become part of a population of extremely violent and hardened people.  And then it’s prey or become prey.  In his case the outcome was obvious.I argued for what the guidelines called for; that was my job.  His attorney argued for less and got less, to the tune of about three years.  The defendant and his family were as quiet as stones as he was led through the rear door of the courtroom and off to a fate that neither me, the judge, nor even his own attorney really knew.  The sentence was lousy by prosecution standards.  Even for a first time offender (as far as we knew), a digital penetration offense against a helpless child barely six years-old was a heinous crime.  I closed my file and left the courtroom.  Another attorney I knew pulled me aside.“Don’t worry, Rog.  He’ll get his downstate.  Believe me, I’ve seen it.  That guy’ll be worth a pack of smokes before the month is out. I wouldn’t wanna be him.  And he deserves it.”I shrugged. I didn’t want to be rude.  The attorney was a decent guy who had young kids of his own.  Most people are a lot less charitable than he was to the fate of sex offenders in prison.But Billy Bragg's judge was right.For those who don’t know, Bragg is a British musician with a leftist bent who wasn’t singing about the fate of sex offenders when he wrote that song in the mid 80’s. But the sentiment is valid, even when twisted to my point.  We don’t practice in courts of justice.  We practice in courts of law.  The law is what separates us from the state of nature we’ve fought so hard to rise above as human beings.  The law isn’t God by a long shot, but it’s a gift He gave to a flawed, passionate, vengeful creation- man- whom He knew would need it in its noble blindness and gloriously bland and balanced predictability. The law is a temple to our better nature and a shelter from our coarser side.  It’s an ideal we’ll never reach, but to abrogate it for the sake of what some deem “poetic justice” is simply immoral, not to mention stupendously shortsighted.  Poetic justice is fine- oddly satisfying, actually- when it’s meted out by the weight of circumstances.  But legal justice is that itching sense of vengeance- not always a bad thing- tempered by due process and a set of rules all must obey, despite grief, despite rage, despite righteous indignation.I’ve surprised many with the stance I’ve taken on this issue over the years, particularly with the brutality I’ve seen defendants dish out to the very least culpable and most defenseless victims imaginable.  But I’ve fought tooth and nail for relatively helpless victims my entire professional life and I’ll do it until I keel over.  I also have no issue with relatively monastic conditions in corrections; I won’t be found fighting for cable and video game consoles for the convicted.  Get them up, get them working, get them wanting very much not to return.  But a clean, safe environment is what we owe those among us we have the audacity to cage after due process- probably the most profound thing we do as a society other than executing capital murderers.  I’ve served efforts under PREA (Prison Rape Elimination Act) for exactly this reason.  But despite the efforts of PREA since its passage in 2003, the stats regarding sexual abuse in custody, as noted in a new report released late last month, are still harrowing.A society can be judged in large part by how it treats its most despised and menacing members.  That’s what the law is for- to protect us all, not just the favored or the powerful.  It’s time we followed it beyond the courtroom and through the doors that slam locked behind those of us who violate it, but are no more subject to it than we who hold the keys.

Where Are the Good Guys?

Politically, for a variety of reasons, I’m a Democrat.  I’m to the right of them on some criminal justice issues in particular, but basically the middle-left is where I live.  What I've noticed from fellow Democrats over the years is more than just a sense that our policies better serve a greater number of Americans, particularly ones who are struggling, dispossessed, or outside the mainstream.  Rather, I've sensed a conviction that Democrats really are the “good guys,” the ones truly looking out for the weaker among us, the underdog and the excluded.  Our political excesses might be foolish or overprotective, but they aren’t cruel or callous as GOP excesses can be.  While I recognize the self-serving nature of this rhetoric and fully understand its limits, I do think there’s a point to the claim; hence my choice in American political affiliation.Interestingly, I don’t usually see the same kind of virtuous confidence- this sense of helping their fellow man in need- in Republicans, at least outside the religious context.  Politics is this town’s industry, and I trade views regularly with Republicans. They are smart, good-hearted people for the most part and very charitable personally.  I also find them not happy with but more tolerant of the suffering and inequality that freer economic dynamism brings about; they believe in equality of opportunity, not outcome.  They don’t like unfair prejudice, but they also distrust liberal fixes like “political correctness.”  They’re not the party of the dispossessed- they’re the party of prosperity, and those not afraid to chase after it with hard work and perseverance.  So be it.  My party is supposed to be the one that stands up for those who can’t stand up for themselves.  Call that patronizing or call it noble; it’s what I’ve heard for years and to an extent it’s what I believe.So why have so many Democrats and other liberals literally laughed off the accusations of sexual assault made against Al Gore by not one but three massage therapists, most notably the one in Oregon?I want to be clear: I have no idea if the allegations are true.  I’ve speculated more forcefully about the guilt of others in this space because I had more to go on.  I’m aware that the National Enquirer, a tabloid, broke the story.  I understand the lack of physical evidence and the decision not to pursue the Portland case.  I understand why her concomitant civil case has raised eyebrows.  I understand that some of what she alleged seems objectively bizarre.  I’m a prosecutor at heart, but not a zealot.  So I understand the concerns of those who doubt or seriously question Gore’s guilt.What I don’t understand are some of the remarkably cruel and foolish comments coming from people on this issue, and particularly from people normally associated with the left.  A blogger named Tom Scocca from Slate.com brought this up poignantly late in June when he listed a few choice comments about the Oregon masseuse from readers of TPM, or Talking Points Memo, the left-leaning blog on news and politics.   It goes way beyond TPM, though; hundreds of similar ones followed the first Huffington Post article on the subject.  Many insinuate that she’s a sleazebag out to shake down Gore for money.  Because, you know, that happens constantly to rich and powerful men.  Never mind that, as my friend Jaclyn Friedman noted in a great piece a couple of weeks ago, the vast majority of wealthy, playboy types never experience a sexual assault accusation; Tiger Woods and Eliot Spitzer, whatever else they’ve done and been accused of, haven’t been accused of anything non-consensual.But in furtherance of this paranoia (some have suggested the accusations are a conservative plot) and in apparent support of a liberal they greatly admire, too many on the left are furthering time honored rape myths: If the complaint were valid, she would have 1) run screaming from the room immediately upon escaping his advances, 2) swiftly summoned law enforcement and related facts clearly and chronologically, 3) never considered seeking to drop charges despite immense and complex pressure most of us couldn’t imagine, and 4) presented herself from the start as a self-possessed, well adjusted, near-perfect member of the middle class or better.  And of course (as Scocca highlights) there are those who insist, with a breathtaking combination of stupidity and viciousness, that a superstar like Al Gore would never have the need or desire to sexually assault some old hag massage therapist in the first place.These are the good guys?  These are who make up the party of tolerance, compassion and inclusivity?  Maybe that’s only true for some of them until someone in that category accuses a powerful liberal icon of a terrible act. To be fair I've seen blowback from liberals and feminists in particular against this nonsense.  But I'm seeing too much of it to begin with from people who claim to be better and more open-minded.Again, I don’t know if the allegations are true.  There isn’t a lot to go on from an evidentiary standpoint in the Oregon case, and the burden of proof is an unrelenting master for the prosecutor.  So be it.  But from a common sense standpoint, if there are three women from Tokyo to the US maintaining similar allegations, it’s at least fair to ask how often lightning strikes.  In any event, using this serious accusation as a font for jokes is deeply cruel.  Dismissing it with baseless assertions about "what real victims do" is foolish.And the sentiment of “it’s gotta be false because she’s too old and ugly and he’s too cool?”  Such verbal venom is exactly the reason a survivor friend of mine once told me that most women don’t report sexual assault because they’re too damn smart to do so.

A Sword, Not a Shield

I am often asked by women (or people who love them) if carrying a handgun is a good deterrent to rape or other violent crime in certain circumstances.  Say, an unavoidable nightly walk through a bad area as part of a commute to a class or a job.  Or, as seems to happen with increasing frequency, a potentially life-threatening situation involving a stalker or a disgruntled ex.  Women who are finally leaving abusive situations are at greatest risk.Some who ask are gun enthusiasts who know me as a partisan Democrat and generally liberal guy, and expect me to react negatively so they can challenge my view.  Some detest guns and are hoping I’ll placate them and confirm their belief that guns are worthless or worse when it comes to self-protection.  I know a few police officers that feel exactly that way.  The truth is, not surprisingly, somewhere in the middle, and so is my opinion on the matter.  Would I dissuade my sisters or any other capable female I know from owning and carrying a handgun in certain situations?  No.  But I also know that both of my sisters understand well the difference between what a gun is and what it’s not.  A gun is a sword, not a shield.  Failing to fully internalize and deeply appreciate that distinction is the difference between being able to use a gun to save yourself or a loved one, and simply adding to the menace.“The Shootist” is a magnificent film about a dying man who is part of a dying breed in the dying wild west of 1901.  John Wayne’s timing- dying himself when he made it- couldn’t have been more poignant.  I saw it with one of my oldest friends, Bob Bennett, who has taught me many things over the long years, not the least of which is the true nature of a firearm.  With the movie as a backdrop, it was Bob who taught me when we were kids that a gun was not a thing to be hated.  Or loved.  It was simply a tool.  But what he stressed was that, in order to use a gun to protect oneself, it wasn’t enough to understand how to maintain, safely store, aim and shoot the thing.  It took willingness.  Wayne’s character evaluates his success as a killer by noting that some men flinch or bat an eye before they shoot- and that he didn’t.When a woman on a dark street decides to draw a handgun from a purse to defend herself against a would-be attacker, the split second timing might not be as crucial, but the dead-eyed willingness to kill is.  And keep in mind- I’m using a woman as an example here only because women often feel more physically vulnerable for obvious reasons.  The dynamics associated with the use of guns apply equally to men, and on balance I think women are probably tougher when push comes to shove.To maintain any gun safely and properly is a heavy enough burden for anyone worthy of gun ownership.  That was Bob’s first lesson.  But to squeeze the trigger and kill- not stop, not hurt, not scare, but kill- requires a willingness not everyone has.  Some have staved off harm by drawing and pointing guns at would-be attackers for sure.  But to rely on brandishing with no intent to fire is worse than folly.   It invites an attacker to use your gun first against you and then in other crimes.  And for what it’s worth, people in real life don’t die like they sometimes do in television and movies, and even justified killers don’t just walk away after a few questions from sympathetic detectives.  We’ve been coarsened to a large degree by CGI and illicit video uploads, so many feel as if the mystery has been taken out of violent death.  But while movies and bootleg videos might seem to reduce the shock of seeing a bullet strike a human body, video does zero to prepare a killer- even a completely justified one- for the emotional, legal, financial and social life changes that soon take place and never fully subside.So my advice is different from what many who know me would assume.  Want a gun for personal protection?  Do as Bob would do:  Own- don’t just learn, damn it, but own- how difficult it is to maintain one properly in your home and on your person.  If you’re comfortable with that considerable burden given your circumstances (kids, neighbors, the security of your car, home, etc), then shop wisely with someone who knows you and knows guns.  Then attend a NRA safety course and whatever else you need to supplement it.  Then take a long, unvarnished look in the mirror and ask yourself if you mean it when you tell your instructors that yes, you won’t ever draw unless you’re ready to shoot and yes, you understand that guns are for killing and not for wounding.If you can handle all of that, and your circumstances truly merit the need for a handgun, then Godspeed and I pray you never have to use it.  If you do, aim as you’ve been taught and have practiced and be ready for what comes next.  If you’ve done everything correctly, it’s a far kinder fate than what the bastard you shot down had in mind for you.  But it won’t be a cakewalk.

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.