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

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

Child Protection in Virginia: Cuccinelli Is A Fraudulent Standard Bearer

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

Pope Francis On Tolerance. Cardinal Dolan On Cemeteries

“If a person is gay, seeks God and has good will, who am I to judge?” Francis said. “They should not be marginalized.”So spoke this oddly humble and dynamic new pope, and with an apparent acknowledgement of the inherent nature of homosexuality (use of the verb “is” rather than “chooses to live as” or “believes he is,” or any number of dismissive things) that to my knowledge has never been approached by a person in his position.Timothy Dolan, Archbishop of New York and the president of the U.S. Conference of Catholic Bishops, insists regardless that his boss’ remarks don’t change Catholic teaching on the issue: Acting on the desire for romantic love with a person of the same sex, even if the desire is ingrained (as Francis came about as close as I’ve ever heard anyone at his level in my faith to saying), is still a sin.If the pope essentially agrees with Dolan, I’d hardly be surprised. Many conservative Christians of different faiths believe that, for reasons we don’t understand, God saddles some of us with desires for love and intimacy that cannot be acted upon even between consenting adults with the best of intentions and beliefs.But I suspect that Francis might be, if not confronting the issue in a way that I’d personally find satisfactory, at least putting it in perspective. In Spanish he might say “que se preocupan?”Or in English, “who cares?”He remains, to my knowledge, regrettably resolute on a lesser role for women in the Church, and probably other issues I’d likely dispute. But where intimacy and desire are concerned, maybe he sees a world so shattered by poverty, disease, needless inequality and hate that he’s shifting the Church’s heretofore laser-like and dubious focus on homosexuality. Maybe he sees the need for a break from obsessing over which decent, charitable and productive adult is loving which similar adult and why. Maybe this is what brought him, plunging through crowds and and ditching his security detail, to Varginha shantytown, a Rio ghetto so violent it’s known as the Gaza Strip.My parents helped build the church I grew up in. Our priests were Franciscan "atonement" Friars, imperfect but decent and holy men who never harmed me or anyone I knew, and I am deeply grateful. It was these men and my own mother who taught me that it was Francis of Assisi who was called upon as a young rich man by God to “go and rebuild my Church, which you see is in ruins.” I don’t know how Pope Francis views the Church. But I can guess how he views the world. Perhaps he’s setting priorities accordingly.Sex matters. Love matters. These are crucial gifts from God that merit theological discussion, even if I don’t agree with some conclusions. But maybe, right now, things like child malnutrition matter more. The Dolans of world don’t seem to grasp this, still arguing with smug insistency that the secular recognition of gay marriage threatens somehow the fabric of society. This is the same man who, as Archbishop of Milwaukee, moved tens of millions of dollars into a cemetery trust fund, apparently in a cynical attempt to shield it from victim lawsuits.Lest I be accused of being overly cynical myself, I have no doubt what Dolan experienced as the leader of that broken archdiocese was nothing less than the gut-wrenching, sickening realization that not a handful but probably thousands of the most vulnerable and innocent of his flock had been subjected to life-altering and soul-crushing evil at the hands of brother priests and other religious. It must have been terrifying for him to contemplate, and then devastating to accept. I have far less invested in Catholicism than Dolan, and it has been the spiritual heartbreak of my lifetime. And yet his response was to protect the coffers first, regardless of what justice might have demanded, let alone things like financial support for victims needing therapy and counseling from torments as diverse as alcoholism and panic attacks, but all relating back to their abuse.It was abuse that took place in the context of their faith. Dolan protected graves.  

Unintended Consequences in Charity: One Small Example

From Peter Buffet, in a New York Times op-ed, on how the best intentions from philanthropists and others can either make a problem worse, or just different:"Often the results of our decisions had unintended consequences; distributing condoms to stop the spread of AIDS in a brothel area ended up creating a higher price for unprotected sex."Indeed. And sadly, it's a price that will be paid, for women and children alike.

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

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

Great Reporting on Disturbing & Predatory Behavior: Lackland AFB

Sig Christenson, a reporter at the San Antonio News Express, has been relentless in covering what amounts to highly disturbing- but not surprising- predatory behavior by recruiters and instructors at Lackland Air Force Base outside of San Antonio, Texas. The latest sentence handed down by a court martial was directed at a 7 year Air Force veteran and instructor who had sex and inappropriate contact with trainees under his guidance, but it pales in comparison to the 27 years received by former recruiter Jaime Rodriguez earlier last month. Rodriguez's sentence seems deeply harsh, but the trust he betrayed and power he abused in order to victimize mostly adolescents with dreams of entering the Air Force are considerable. Recruiters have immense power, usually over the lives of young and impressionable teenagers hoping for the opportunities that a military career can offer. It's sad, but not uncommon to see young people enlisting from challenged backgrounds and difficult circumstances. Sadder still is that recruitment posts are also attractive to predators who seek to offer the promise of the military, to those most in need of its attributes and opportunities, only for a price. As usual, most recruiters and instructors are not predatory. But the few who are, and Rodriguez is a particularly vicious example, create untold damage to young people subjected to the exact opposite of the example they hope and in some cases pray to receive when they seek to enlist and serve.

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

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

Overvaluing "Purity:" The Consequences When Rape Happens

A few weeks ago, Elizabeth Smart made a brave statement about the unintended consequences of the religiously-based preoccupation with "sexual purity" for females prior to marriage. Smart's point was simple: Because virginity and "purity" were so valued within her conservative, religious culture growing up, she felt "worthless, dirty and filthy" after her virginity had been taken from her- even as a victim of abduction and rape. She felt so damaged, in fact, that the idea of escape from her captors or even being rescued seemed meaningless. Her culture had taught her that to be "defiled" sexually made her used and undesirable. She had nothing to return to.In fairness, might family members or religious leaders in that situation encourage a girl to believe differently about herself because of the circumstances of her "loss?" Probably. But not necessarily. In extremely strict cultures- usually but not always religiously based- a loss of virginity renders a girl unable to marry within expected circumstances and therefore cursed and worthless regardless of whether she consented to the act. This is thankfully fading in most places, but not completely. I dealt with parents of victims as recently as the mid 2000's who were more concerned about the "technical status" of their girl's virginity than any other aspect of her recovery or our criminal case.But particularly where religiously-based obsessions with female premarital sexual activity are present, even efforts to relieve a rape victim of the purity burden will fall short. As long as the focus is on the the genitalia itself rather than on the girl possessing it, shame will fall like a stone when some arbitrary, bodily status is altered regardless of intent. Or consent.Adherents to the importance of premarital "purity" (usually for girls) claim practical as well as religious reasons for stressing it. Some, like the issue of STD's, are at least fair and considerable. Others, like the believed psychological consequences of promiscuity, are far more questionable. Still others, like the "cultural realities" put forth as a warning to girls (i.e., how society judges and devalues them when they are perceived to be promiscuous) might seem valid. But ultimately it's only because of the myths and judgment that those giving the warnings are reinforcing to begin with. Whatever the motivations of those obsessed with sexual purity, an undeniable consequence to the indoctrinated will be a profound sense of loss, failure and even hopelessness when whatever the standard set fails to be met. The issue has implications beyond sexual violence. Risk is a natural part of youth. Whether one believes that sexual activity before marriage or between teenagers is good, bad or simply dependent on circumstances, the fact is that it happens. Young people act recklessly and impulsively; some of this is explainable neuro-biologically. They make mistakes, they find themselves in situations that spin out of control, etc, etc. A conscious choice or something far less volitional may result in an irreversible, "status change" regarding a girl's "purity" before God or whatever other institution. Are the consequences to her psychological wellbeing and sense of self truly worth reinforcing this arbitrary ideal?Not being religiously observant in this manner, I cannot claim an unbiased view or an objective answer. I find any religious preoccupation with "purity" to be more harmful than helpful, not to mention sadly distracting from concepts like charity, humility and service to others. In particular I find things like purity balls- staged events where girls as young as 7 pledge their purity to their fathers until they are given in marriage to another man- to be rank and offensive if not worse. I don't believe more than a tiny percentage of families engaged in the practice intend harm to their daughters. Regardless, as a longtime student of predatory behavior and environments that nurture and protect offenders, I find the practice disturbing, other objections aside.Feminist writers like Jessica Valenti have written much more comprehensively on the subject and I recommend her work in particular. But I can say with confidence that an obsession with sexual purity can and usually will bear a dark consequence at the worse possible time: An added psychological wound when one or several others have just been borne.

Elizabeth, Rehtaeh, and Audrie: With the Tools Against Them, the World Was Not Enough

    I've been avoiding writing about Rehaeh Parsons and Audrie Pott, the two teenage girls who committed suicide recently following sexual attacks, bullying and non-responses (or worse) from their communities. Not because I don't think their cases are important, but because the first time I delved into the world of a kind, loving and otherwise typical adolescent who was driven to suicide because of sexual violence and a negative response from her community, it nearly broke my heart. Her name was Elizabeth Seeberg, and she was 19. Rehtaeh was 17. Audrie, God keep her, was only 15.  Elizabeth was from Illinois, Rehtaeh from Nova Scotia, and Audrie from California. While they lived different lives, they had some observable characteristics in common, and these things are not unimportant. They underscore the horror these women experienced- less, possibly, from the attacks- then from the response that eventually drove them into the cold embrace of death. All three were objectively beautiful in terms of Western ideals. All three appear to have had (and I know personally that Elizabeth had), loving families and supportive caregivers. They were physically healthy and active. They had the resources of middle class incomes and the relative freedom to pursue their dreams in dynamic and democratic societies. Outside of the context of their victimization, in terms of their stations in life and potential, it could be argued that they had the world itself before them. And yet they're dead, all three of them, by their own hands.The world was not enough.That shouldn't be surprising, because nothing is enough when you're violated in the most fundamental way imaginable and then face the often greater nightmare of public humiliation, shame and rejection in its wake. Those things have always been reality for sexual violence survivors of course, particularly in non-stranger cases (the vast majority that occur). But it was modern technology- the kind that all three grew up with and that could have been listed among their assets as emerging citizens of the new age- that made their ordeals seem so horribly infinite."Infinite" is the carefully chosen and correct term for what Audrie and Rehtaeh in particular faced. The evermore nimble, powerful, and globally connected computers we still refer to as "cell phones" make the projection of our every memorialized moment as effortless as the practiced dance of slender, trained fingers over a tiny glass screen. In Elizabeth's case, text messaging warned her that the colossus, Notre Dame football, was not to be trifled with. In Audrie's case, her violators allegedly wrote on her body in permanent marker and then photographed their work with such a device. In Rehtaeh's case she was allegedly photographed unawares while being raped; as it was happening, an accomplice shouted "take a picture!"A picture. Once a delicate amalgam of chemicals on special paper, it's now merely another manifestation of electronic communication, ready instantly for a worldwide web of limitless vectors and endless, light-speed traveled avenues. For Audrie and Rehtaeh, trapped without locks in the incubators of dread that their own bedrooms became, the predicable questions were surely asked: My God, who will see this? How many times will it be traded, forwarded, posted, mocked? We might as well ask how many angels can dance on the head of a pin. Combine that with the judgment both girls know the viewers would surely deliver to them as the photograph's subjects.And then there stood the abyss, before them both.Technology will not go backward and sexual violence will not be eradicated anytime soon. The sole option is moving forward in technology's relentless grasp so that sexual violence, when it occurs, won't be mocked foolishly in cyberspace to the detriment of its victims. Lizzy, Audrie and Rehtaeh were wounded by users, not the tools at their disposal. But because the tools are so much more powerful, because they allow the cruel, the vindictive, or simply the ignorant to cause so much more damage than ever before, we have an absolute duty to address cruelty, vindictiveness and especially ignorance more than ever before.If we don't, we can expect the roll of the dead to grow even faster than the sickening rate in which we're seeing it now. 

Needed Wisdom on Rape from a Former Judge

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

"Rape is Rape" by Jody Raphael: Must Read

Jody Raphael, a friend and colleague in the anti-sexual violence movement, has released a book that is essential reading for anyone interested in the issues surrounding rape, particularly non-stranger sexual assault. She cuts through myth and innuendo with strong and clear language and sets the record straight. Highly recommended. 

Swarthmore and Occidental: Two More Institutions Mishandling Sexual Violence

Occidental University in Los Angeles and Swarthmore outside of Philadelphia are both highly selective liberal arts institutions of higher learning. Both are also being challenged by students who suffered sexual violence under their umbrellas and then negative responses and ill treatment when they reported it. One by one, colleges and universities are being called out. It's an idea whose time has come; thus (with a nod to Victor Hugo) nothing will stop it.

A Terrible Crime Averted. A Terrible Discovery That Cannot Be

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

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

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

Enduring, For Nothing, Sandusky's Latest Public Words

Jerry Sandusky has again been given a forum in which to claim he is innocent of the charges he was convicted of 9 months ago, this time through a NBC "Today" show interview with filmmaker John Ziegler, whose apparent ambition is to clear Joe Paterno of any responsibility for inaction or worse during the terrible years Sandusky hunted children within the Penn State community.Several groups, most prominently the dynamic support group Male Survivor, have rightfully called out NBC and Today for airing the interview in what looks like an effort to boost ratings with a draw backward to a sensational case rather than any real effort to shed further light on the story.The fact is, Sandusky's reign of terror, heartbreak and destruction is widely documented, legally and factually established, and thankfully over. What matters now is not this miserable predator and whatever delusions he wishes to entertain in the twilight of his life. What matters is only the well-being of the men and boys who survived what Sandusky subjected them to, and what lessons can be learned in order to make such horrors less and less common.The only positive thing, perhaps, that emerged from Today's bad choice and Ziegler's tone deaf crusade is the Paterno family's distancing themselves from the effort. As Wick Sollers, a family attorney said, Sandusky's comments were “transparently self-serving and yet another insult to the victims.”Amen.So now, please, give this criminal no further exposure. 

Preventing Another Steubenville: Middle Ground on Education and Rape

"Preventing another Steubenville" is on the minds of many as the case slowly passes from the news cycle. What most observers want, understandably, is to prevent not "just" the victimization experienced by the 16 year-old girl at the center of the case, but also the pain that was dealt to everyone- perpetrators included- by the system. Most well-intentioned people feel for the victim first. But she, thankfully, was not showcased in the investigation and trial. The lives, stories and choices of Trent Mays and Mal'ik Richmond were. Mostly for that reason, many national news outlets made them the story and received criticism (mine included) for an over-focus on their good grades, their "promising careers," etc, rather than on her. Their choices, at least, are what condemned them. Their victim could make no choices, and lives with what happened to her anyway. Regardless, seeing young men physically crumble in court and utter things like "My life is over. No one will want me now," is heartrending. And it should be. I prosecuted child abuse and sexual violence cases for years. I prosecuted juveniles like Mays and Richmond for crimes like this. I prosecuted males who were technically adults but children in every meaningful way; I saw them convicted, sentenced and bound for a correctional system in Virginia that I knew however uncomfortably would likely tear them to shreds. That was the system. I was ethical, but I was dispassionate. I was a prosecutor, not a healer.But like any decent person, I'd love to see a path toward preventing rape, not just responding to it. What doubts I have regarding the ability to proactively raise boys to be non-sexually violent (at least in the short run), I expressed last week here and here. What they boil down to is that I believe most men are not sexually violent, but that the minority who are, are malformed in early life for reasons we can't yet grasp- and they are basically unreachable.That said, since most men and almost all women are not sexually violent, I believe bystander intervention can be effective in preventing the kind of non-stranger rape that we see the vast majority of the time. Programs like Project Green Dot, already being implemented on college campuses (a good friend was instrumental in a Green Dot program at the University of Mississippi) have amazing potential to create an innovative environment of protection between students from every perspective. It's simple and it's genius. Everyone- male or female, gay or straight, greek or independent, protects each other from situations that probably won't, but certainly could, end with a crime occurring. But in my mind, this doesn't generally enlighten and ennoble offenders; it instead foils them by clearing the fog of alcohol, isolation, and toxic masculinity within which they hunt.But is there educational purchase in grass-roots programs like Green Dot (or innovative productions like Sex Signals) that seek to challenge hyper-masculinity and rape culture? Are there "on the fence" guys who could learn to grow differently? Who would digest the broadcasted signals of decency and respect and be better for them?How could I hope not? Irin Carmon, a writer for Salon, last week published what might be the most balanced and informed opinion that embraces the same research I have, but allows for the hope that probably needs to be a part of the conversation as well. I stand beside the admonitions I've made in the past: "Forgiving" rape as a lapse in judgment by an otherwise "decent" guy is a pernicious mistake in most cases. But I'll acknowledge that there is hope in social engineering and pushing forward a cultural change in how boys and men view sexuality. I only ask (as I imagine Carmon would) that we continue to observe two core considerations: First, be realistic about prevention and don't create rules for women to follow "or else," i.e., or else it was her fault. Second, don't assume rape is a mistake, particularly based on the appearance, reputation, and social status of the rapist. Victim blaming isn't the answer, and neither is forgiving as "foolish" something usually far more sinister. With those things in mind, let's move forward.

Media Rundown on Steubenville from ThinkProgress.org: It's Her Fault

Left-leaning Think Progress posted an excellent and highly instructive series of paragraphs today (with clear documentation) on how various national media outlets chose to report on the verdict handed down yesterday in the Steubenville sexual assault case.CNN, ABC and NBC all focused primarily on the promising careers and positive aspects of the convicted teenagers. USA Today and the Associated Press focused on the fact that the victim was drunk, as if she were frankly complicit in bringing on what happened to her.Yahoo, though, went the furthest in blaming her, suggesting that her choice to report being repeatedly sexually violated, filmed and humiliated, was to blame for tearing the town apart.So it's her fault for "ruining the lives" of such promising young athletes. Her fault for being drunk. Her fault for coming forward and "tearing a town apart."And we wonder why so few victims report.  

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

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

Rape Prevention Through Education: If It Doesn't Work, It's More Dangerous Than Just Wasting Resources

Vancouver's "Don't Be That Guy" ad campaign was credited for a 10% drop in reported sexual assaults for 2011 after its inception that summer. This begs the question, though, of how exactly the campaign's effectiveness could be measured, whether there is both causation as well as correlation, and, if so, what worked?I have doubts about the ability of education to reduce sexual violence on the part of offenders, simply because I believe that most men don't need it and the relatively few who do won't respond to it. This isn't just some intuition I claim through experience. As I've written before, recent and replicated research on the most common type of rapist by far does not dovetail with the idea that we can teach the instinct to sexually offend out of a rapist- or even a boy who hasn't yet offended, but likely will for a yet unknown reason. That's part of the problem. We don't know what causes boys, usually in adolescence, to begin viewing sexuality so pathologically. Our assumptions, like victimization in their childhood, have been revealed as dubious at best by psychologists like Anna Salter and others. It's frightening and frustrating, but believing myths simply because they are comforting only makes predators more powerful and elusive.Of course I can't state with certainty that early intervention on the nature of consent or appropriate sexual interaction won't lead to the better development of a potential offender. I also can't say that a detected offender couldn't be shown the error of his ways or benefit from whatever form of education his own detection might produce (investigation, prosecution, public repudiation). But I wouldn't bet on either scenario. Reasonable people can argue limitlessly what works, what doesn't, and what we're dealing with. But we might as well begin with what we know. There has been some excellent study on acquaintance rape in the last 15 years, and, at bottom, here's what it's mined:1. Most men who rape do so over and over again until they are detected, and very few are.2. Rape is usually a planned, pre-mediated attack, not an honest mistake by a socially inept person.Remember: There's more at stake here than just wasting resources if education doesn't work, or work well enough. If we believe that an act of rape is caused by a lack of some crucial, social education, we will be more likely to forgive it as such and demand less accountability.  Acquaintance rape in particular is already committed far too often with impunity. The rapists are often socially accepted in their environments or at least non-threatening in appearance. So when we believe the rapist, already nicely ensconced within the environment, is really just misguided (a bumbling oaf, perhaps who just "didn't understand consent" and "ended up" committing a rape), we go down a very dangerous path.Imagine what follows: We believe a rape occurred. We even understand what a life-altering, traumatic event it was for the victim, male or female. But we also believe it was committed not by a serial predator but an "unenlightened" guy in need of intervention. We think he's been "scared straight" by the system or otherwise, perhaps, at least now better educated. So how much will we want to punish him? And how likely, now that he's been "taught," is he to reoffend? Take this view, and the answers will boil down to 1) not much, if at all; and 2) not likely.  Zerlina Maxwell's appeal to education to reduce sexual violence seems to be more targeted toward boys who have not yet offended. I'd love to believe there is purchase there, and maybe there is more than I understand. I absolutely agree, in any event, with teaching boys non-patriarchal respect and decency toward women. This is desperately needed, but it's also constantly undermined by the "sex sells," deeply objectifying culture we live in. Still, I believe naturally, non-offending males can embolden each other as peers to stop rape by acting as bystanders and intervening before attacks can be planned or executed (women can do so as well). My point? If there was a real effect with the Vancouver campaign, I'm willing to bet that was a bigger part of it.   

Zerlina Maxwell and Sexual Violence: We Agree On One Aspect, Not on Another

I have great respect for Zerlina Maxwell and no desire to contradict her on what are thoughtful and well stated positions on the prevention of sexual violence. I support fully the central argument she makes:Stopping rape is an issue men must take up rather than women.She’s right, and that cannot be underscored enough (I've addressed the issue previously here). Women cannot “stop rape” by being better behaved, smarter, more intuitive, or even by being better self-protected (i.e., with a firearm). Colorado state senator Evie Hudak has absorbed  much criticism for challenging a witness at a legislative hearing on the efficacy of firearms in the protection of women.  But while Hudak’s remarks might have been perceived as inartful, they are not baseless. The vast majority of sexual assaults on women are perpetrated by men they know, and whom they’ve invited into their physical environments with their guards down; thus, in situations where a gun- no matter how proficient the owner- would make no difference. The gun lobby and its gun-worshipping echo chamber have of course demonized Hudak, Maxwell, and everyone else who dares to contradict the intoxicating, Hollywood scenario of street justice meted out by a gun-toting woman against some horrific offender. But the sad fact is that guns don’t prevent the kind of rape most often perpetrated on women, men or anyone else. It just doesn’t work that way (as an aside, it’s funny to me how conservatives blame Hollywood for everything but will stand beside the “Death Wish” narrative as a real prescription for addressing interpersonal violence).To be clear: I would never discourage any woman- a stranger or my little sister- from owning and training with a handgun for personal defense. Nor would I refrain from applauding heartily if her possession of the gun, willingness to use it, and skill and good fortune in its use resulted in the neutralization of someone who meant her harm. But I deal in reality and not macho fantasy. I know that a gun is a sword and not a shield; that simply owning one is several steps away from its utility as a protective measure. And I know that that reality almost never involves a Tarantino-esque bloodbath against the unjust and in favor of the righteous.My only disagreement with Ms. Maxwell’s prescription for a safer world is with her apparent belief that men (and more to the point boys) can be taught to be less sexually aggressive, i.e., “taught not to rape.” Research does not bear this out. In fact, most men are not sexually violent. Many if not most have learned objectifying and unhealthy attitudes toward women and sexuality, but most will recognize discomfort or terror, or a state of unconsciousness (or semi-consciousness) on the part of a potential victim and back off. Most men don’t need to be taught to refrain from sexual violence.Again, to be clear: This does not mean for a second that I don’t favor teaching boys as they grow into manhood more about decency, equality, and non-patriarchal gentleness toward women. It only means that, when it comes to the urge, desire or proclivity to commit felonies, the violators are generally not teachable, and the non-violators are not in need of that kind of instruction. A healthier societal attitude toward women will probably encourage more bystander intervention (which I do think is a good area to invest time and effort) and may generally make men think twice before objectifying in the first place. But that’s a distant dream in a media environment saturated with sex and objectification, and currently selling everything from toothpaste to tires.The most perplexing and frightening aspect of sexual violence is the mystery of its origins. Most who believe in an ordered universe assume that evil is not innate but inculcated, and thus preventable or at least reversible. Would that I could agree, but it’s not what recent and replicated research on the subject suggests. Similarly, supposed “equalizers” like handguns are floated as panaceas, but they are not the answer either- and they carry terrifying potential downsides.The answer, as Ms. Maxwell suggests, lies within the perpetrator. Unearthing it, sadly, is still an elusive proposition.