The Happy Feminist

AND SPEAKING OF RACE . . . HOLY CRAP

A lot of feminist bloggers have picked up a woman's report of having been gang raped by a group of Duke University lacrosse players.  The woman was an African-American exotic dancer who was hired to dance at what she thought would be a small gathering of five men.  Instead she and the other exotic dancer who accompanied her found themselves surrounded by about more than forty men, many of whom began yelling racial slurs.  When the dancers left in fear, a neighbor heard some of the men saying things like, "I want my money back," and "Thank your grandpa for my cotton shirt."  The women returned to the house after some of the men apologized.  One of the women was then pulled into the bathroom and raped by three men.  She is a single mother of two children and carries a full course load at North Carolina Central University. 

The horror of what this woman described cannot be overstated.  An event like this puts to rest any notion that equal treatment is a given in our society. This is not a case of a single anti-social criminal. These were supposedly the best and the brightest -- a group of young men at an elite university -- who apparently never learned basic empathy, especially for other human beings who are female and black.  How on earth were these guys allowed to reach adulthood without learning that torturing other people and ridiculing them based on their sex and race is not acceptable?  Do  these guys not have parents?  Do they not read?  What was going through their little minds when they hurled insults at people they had paid to be there?  What were they thinking as they goaded each other on?  Did they not consider for even a moment that this woman was a human being?  How does stuff like this happen?

I know, I know, it does happen.  But, as long as I live, I don't think I will ever fail to be shocked by it. 

THE DEBRA LAFAVE PLEA AGREEMENT

There have been a handful of cases over the past few years in the U.S. involving women teachers who have slept with adolescent male students who were below the age of consent.  The most famous offender is probably Mary Kay Letourneau. Debra Lafave is another, more recent offender.   

It appears as though the criminal charges against Debra Lafave have been resolved.  For multiple acts of sexual intercourse with her fourteen year old male student, she will serve three years of house arrest, four years of probation, register as a sex offender, and undergo sex offender counseling.  Prosecutors in two different counties were originally insistent that Lafave serve prison time but backed down, apparently due to pressure from the victim and his family.  At the most recent court hearing, a psychologist testified that having to testify would be detrimental to the victim, particularly given the glare of the media spotlight in this case.

Boy, can I feel the prosecutors' and victim's pain on this one.   In some of my cases when I was a prosecutor, I had young children who simply could not bring themselves to mouth the words of what happened to them.  I had teenaged victims flat out refuse to testify.   I had parents beg me to drop charges because the prospect of trial was destroying their child.  In such circumstances, the prosecutor's choices are: (a) retraumatize a reluctant victim by forcing a trial; (b) drop the charges in the hope that the victim will be come back to pursue  charges again when he or she is older; or (c) take whatever plea bargain you can get, on the theory that it is preferable to get sex offender registration, counseling and supervision of the offender in place in order to reduce th risk that the offender will re-offend.  Faced with situations where the victim desperately wants to avoid testifying, I generally went for option c.  But it was always frustrating and painful to do so.

I don't get the sense that Lafave's gender played into the result, except in a roundabout way.  The prosecutors were originally insistent upon jail time and changed their tune only at the request of the victim's family.  The judge in the second set of charges refused to endorse a no-time deal, stating that letting Lafave off without prison time "shocked the conscience of the court."  It appears that both the prosecutors and the judge would have pushed for prison time, but for the victim's desire to avoid trial.

The way that Lafave's gender played into this, however, was in terms of the intense media attention to this case.  This was due to the fact that reported instances of female-on-male statutory rape are very rare, and the fact that Lafave was so good looking.  The media attention in turn increased the pressure on the victim, which in turn led to the plea bargain.

Imagine how this boy felt with sayings like this all over the internet: "Stop saying that teenage boys who have sex with their hot, blonde teachers are permanently damaged. I have a better description for these kids: lucky bastards." (Hat tip: Chalice Chick for the quotation.) A young boy who has been victimized is thus the object of derision; he may question his masculinity if he feels damaged when he supposedly he should be feeling "lucky."

Stereotypes about how a young boy should react to sex with an adult woman are the direct result of old-fashioned patriarchal views regarding gender relations.  At one time , all 50 states had laws against seduction but only women could be victims of seduction. The crime of seduction was the act of using artful persuasion to influence a woman of previously chaste character to depart from virtue.  The assumptions underlying these laws were that (1) women did not have sufficient decision making and moral capacity to consent to sex, (2) men, rather than women, always initiate sex, and (3) women, but not men, are damaged by premarital sex.   We encounter some of those same anti-feminist attitudes today when people assume, based on gender, that a female offender is less at fault or that any young boy worth his salt should be happy to have had the opportunity for sex with an adult woman, particularly if she is considered attractive.  Thus, we see how patriarchal attitudes can hurt men as well as women. 

The fact that Lafave is being held  responsible to any extent is due to the rise of feminist mores in our culture.  Under our criminal laws, she is considered to be just as morally responsible for her actions as a man, and the statutory rape of a boy by a woman is considered just as reprehensible as any other form of statutory rape. I should note that, although Lafave received a more lenient deal than prosecutors wanted, her sentence isn't exactly a cake walk.  Her freedom on house arrest will be very limited.  She will have a number of requirements to fulfill on probation and if she screws them up, she could be sent to prison for the maximum sentence allowed for the crime she to which she plead  guilty.  She can never teach again and she is notorious throughout the country as a sex offender. 

There is no question that female-on-male statutory rape needs to be taken seriously.  Fortunately, due to feminist attitudes, we are much farther on our way to an appropriate response to these cases than we were in the bad old days. 

FALSE RAPE CONVICTIONS

I believe that people are falsely convicted of rape in the United States.*   I have not bothered to gather any statistics about false conviction rates, because I doubt that there is any sure way to know to a certainty in every case whether a false conviction has occurred.  Even if a woman recants a rape allegation, her recantation may well be the result of the various pressures I described in my previous post.  I personally believe that false rape accusations are rare, and that false convictions are extremely rare.  But I have to acknowledge that false convictions have occurred.

Indeed, I believe that false convictions occur in every category of crime.  False convictions occur for two reasons:

     1)  The standard of proof in criminal cases is "beyond a reasonable doubt."  In my jurisdiction, juries are instructed that "a reasonable doubt" means a doubt based on reason, NOT a "whimsical or fantastical" doubt.  In other words, our criminal justice system does not require that juries find proof to a mathematical certainty.  If our system required a higher standard of proof, I doubt that our criminal justice system would be able to function.  There is usually no way to know to a 100% mathematical certainty whether a defendant is guilty.

    2)   The criminal justice system is only as good as the fallible human beings in it.  In any given case, the system is only as good and only as fair as the police officers, prosecutors, defense attorneys, judges, witnesses and jurors involved in that case.  There are certainly a lot of protections for the accused built into the system-- but I've seen and read about cases that seem to be just a cluster of errors at every level of the system (what we refer to in the biz as a -- pardon my language--  "clusterfuck"). 

I have already addressed some of the all too persistent attitudes that so often unfairly stack the deck against rape victims. I think it is important, however, for those of us who are passionate about making the system fairer to victims to acknowledge the issue of false convictions.  For one thing, a false conviction is a terrible thing.  For another thing, however, I think pro-victim advocates lose credibility if we seem to imply that false convicitons are an impossibility. 

I have never heard anyone actually say that there is no such thing as a false rape conviction.  But back in the days when I was still in the grip of my father's Lula Mae story (which I described in the previous post), it bothered me immensely when the possibility of false convictions was not acknowledged.  My criminal law professor proclaimed that "Women do not lie about rape."  This blanket statement led me to disregard a lot of the wisdom she had to impart on this topic because I couldn't get past the absolutism of this statement -- What? No woman in the history of the world has ever lied about being raped? In retrospect, I realize that's not what she meant, but that is what I heard.

I see two very different problems when it comes to rape prosecution.  One, I see prosecutors having an uphill battle against all sorts of false but popular assumptions about rape.  I haven't even necessarily addressed them all, but one of the biggies is the assumption that false rape allegations are a frequent and easy means for a woman to exercise revenge on a man.  These assumptions often interfere with the ability of jurors -- or even police officers, judges, and victims themselves -- from assessing rape cases fairly.  The other problem is the tendency to bend over backwards so much not to be unfair to a rape victim that one doesn't examine her allegations critically based on the criteria I've described previously.  There are certainly some prosecutors' offices where every rape allegation is automatically prosecuted -- to counteract the long and dreadful history of the criminal justice system's failures to take rape victims seriously.  There are also prosecutor's offices (including the one where I started my career) where every criminal allegation of any nature is prosecuted indiscriminately.

What's the solution? It comes back to the criminal justice system only being as good as the people in it.  It comes down to good prosecutors'  offices and good prosecutors.  Prosecutors (and police officers too) should be educated on the dynamics of rape and what victims undergo and also have a willingness to look at each rape allegations critically on a case-by-case basis.  Prosecutors should certainly not start their review of an alleged victim's story from a position of skepticisim (by which I mean an assumption that she's probably lying), but should look at the factors for judging witness credibility without reference to old and unfair biases.  Am I just talking in platitudes as Richard suggested in one of the comment threads?  Well, it's a platitude if prosecutors say it but don't do it. It's not a platitude if prosecutors in fact do their jobs as I've described.

Personally, I would be devastated if I ever thought that I was responsible for a false conviction-- but I have to acknowledge that it's a possibility.  I hope that I made the right decisions in my cases. 

Of course, it's also frustrating when the problem of false convictions dominates popular discourse at the expense of addressing the very real prejudices women face on the issue of rape.  But I believe that we can be vocal about the fact that the vast majority of rape allegations are true (contrary to belief in many quarters) while also acknowledging that errors do occur in our justice system. 

(*NOTE:  Ismone in a prior comments thread raised the issue of male rape victims.  I have discussed the foregoing in terms of male perpetrators and female victims because I believe that same is consistent with the vast majority of rapes of adult victims.  The male victims I have personally dealt with were all child victims.  I am also very much aware of male-on-male rape in the prison context as well.  I don't doubt, however, that adult male victims exist outside the prison system as well.)

FREQUENT FABRICATION OF RAPE ALLEGATIONS: A PARANOID FANTASY

I am the daughter of a man who believes that most rape allegations are fabricated.  I think part of his belief is good ol’ fashioned fear of being vulnerable to a woman.  But his attitude derives in large part from his experiences in the military police more than forty years ago-- experiences that he had never examined from the woman’s perspective, at least not until I got done with him.  One of his jobs was to assist in the investigation of crimes on military bases, including rapes. 

According to my dad, if a woman on a base claimed to have been raped, the lead investigator, would sit her down for an interview.  The lead investigator was my father’s Superior Officer, whom I will refer to as “S.O.”  S.O. was an elderly, “courtly” gentleman with a “just folks” sort of manner.  S.O. would start off the interview by telling the woman, “You know, we’re here Lula Mae, because we want to get to the bottom of what happened, and it’s important because you’ve alleged a serious crime that should be severely punished if it really happened.  But we’re also talking about a young man here with a bright future ahead of him, and you wouldn’t want to see a young man like that punished unjustly, would you Lula Mae?”  (When my dad retells this story, he always gives the woman some ridiculously stereotypical, “redneck” sounding name.) 

S.O. would then ask “Lula Mae” a series of questions along the lines of: “So you invited Tommy in for a cup of coffee and a piece of pie, huh?  And, I’ll bet you really missed your husband at that point, isn’t that right, Lula Mae? I understand that it’s gotta be awfully hard being all on your own when your husband’s off in training. Were you wearing a pretty dress that day, Lula Mae?  You probably wanted Tommy to think you looked pretty in that dress, didn’t you? It’s only human, right? You’ve always thought Tommy was a good lookin’ boy, haven’t you? I mean, who could blame you. It’s okay, Lula Mae, but it’s important that you tell me the truth: were you flirting with Tommy?”

Anyway, it goes on and on until whaddya know-- Lula Mae tearfully admits that she had cheated on her husband with Tommy and “cried rape” when she realized what a terrible thing she had done.  And I grew up hearing this story repeatedly when I was a little girl and a teenager, and I believed it.  I thought, gee, I guess most of these stories are fabricated.  How could I deny my father’s experience of having seen so many women recant their allegations of rape?  Even when I became a prosecutor, I was prepared to examine the rape cases that crossed my desk with plenty of skepticism because I knew (or so I thought) that most allegations were suspect.

But then I met actual rape victims, including victims who not only provided very credible testimony but whose allegations were corroborated by physical evidence or a confession by the rapist. 

Virtually every rape victim I met was tormented by self-accusation regarding what she might have done differently to avert the rape.  Thoughts like, “I was complicit because I wanted him to think I was hot . . . I was wrong to flirt so much,” are all too common. (Even though I’ve never been raped, I can relate to those guilt feelings myself -- I’ve certainly beaten myself up for “making” a guy like me.  I’ve even felt guilty for just taking pleasure in the fact that a guy I didn’t want to date was attracted to me.)  Virtually every rape victim faced censure from her own family and friends for “causing” the situation and potentially “ruining” the man’s life.  I’ve seen cases where teenaged victims are viewed by their own mothers as little Lolitas.  As one mother said to me, even though she actually didn’t know any of the details about what her daughter was alleging, “You know how these young girls are . . . and how they like to flirt with older men.”

The easiest thing in the world is to talk a rape victim into abandoning her case. Even today, rape victims are typically subject to so much skepticism, that why the hell would anyone want to go through all that.  In the story my dad likes to tell, the S.O. made it clear as a bell to “Lula Mae” that: (1) his main concern was the welfare of the “young man,” (2) that he certainly believed she was complicit in what had happened, (3) that he was not going to credit her allegations no matter what, and (4) that she could expect to basically be called a whore if she pursued her case.  Why wouldn’t she recant even a truthful allegation? 

And I haven’t even described the half of what rape victims often undergo.  Many victims with whom I worked faced public disclosures about their most intimate personal lives.  In one case, a defendant claimed that his ex-girlfriend had fabricated the rape allegation against him because she blamed him for allowing her to get an abortion.  Her abortion therefore became front page news.  In another case (also involving an ex-boyfriend-and-girlfriend), the defendant’s attorney tried to introduce into evidence sex toys and pornographic videos that the defendant and the victim had used in their prior consensual relationship.  Although there was virtually no chance that the jury would be allowed to see this evidence, which had no relevance whatsoever to the allegations, I still had to sit down with the victim and tell her that the defense attorney, judge, court reporter and I had examined all of these items, had them marked as potential evidence, and that they could potentially be shown to the jury.  Oh-- and don’t forget the rape kit exam -- the lovely procedure in which the victim, assuming she reports the crime quickly enough, lies naked on an examination table with her legs in stirrups while a nurse combs through her pubic hair and examines every orifice of her body to collect potential evidence of the rape.  And, finally, a crucial part of the process in every rape case is the requirement that every victim systematically recount the rape step-by-step in all of it’s physical details: on videotape for the police in the initial interview and, if there is no plea agreement, again for the prosecutor perhaps several times during witness preparation, and finally on the witness stand in a courtroom.  Typical questions I might ask a rape victim might include such things as: “How were your legs positioned when he inserted his penis into you?”  Unfortunately, it is often necessary to establish the physical steps of the rape in excruciating detail to show the jury how the rape could have happened. 

Now, I’m not saying that we should do away with zealous defense attorneys, rape kit exams, and the grueling process of having to answer numerous questions about one’s rape. Because it is important that we have a system in which accusations of rape (as well as other crimes) are proven beyond a reasonable doubt.   

What I am saying is that bringing a rape allegation in criminal court ain’t a bed of roses.  It’s not like a woman can simply “cry rape” and bam-- the man’s life is ruined.  So the common defense theories that a woman brings the rape allegation because she has been “scorned” (as in “Hell hath no fury like a woman scorned”) or because she felt guilty about having sex or for some similarly petty reason make no sense.  A person would have to be pathologically vindicative to put herself through all this crap just because she’s mad that he didn’t call or some such thing. 

Let me make it clear what else I'm not saying: I am not saying there are no false accusations.  I am not saying that rape allegations should not be examined carefully and critically before charging or convicting someone.  And I do want to reassure people that there are support systems in place for rape victims and a ton of education for investigators and prosecutors such that (I hope) we do not see too many guys like the S.O. in my dad’s story anymore.  Despite the bleak picture I have recounted, I pray that as many as victims as possible will pursue their criminal cases.  I can't blame anyone who chooses not to make a report to the police: but I am grateful to those brave women who do come forward and go through the process so that others may be protected from their rapist. 

My main point, however, despite this rambling is that in light of all the burdens and pressures placed on victims (some an appropriate by-product of the presumption of innocence, some mere cultural prejudice), the notion that women frequently make this stuff up and stick to a false story all the way through trial is a paranoid fantasy.  One of my favorite moments was a few years ago, when my dad had retold the story of Lula Mae and the S.O. for the millionth time, and I was able to turn to him and say, "Dad, S.O. was an A__H____ - and here's why."

(I have written previously -- and with more brevity! -- about the issue of he said/she said cases here.)

LOOOONG POST ON HOW RAPE VICTIMS THEMSELVES OFTEN FAIL TO GRASP THAT THEY HAVE THE RIGHT TO BE FREE OF FORCED SEX

When I interned at a defense attorney’s office during college, the criminal defense community was up in arms with regard to a pamphlet that one of the area colleges produced with a title something like, “Could You Have Been Raped Without Knowing It?”  I am not sure I ever saw the pamphlet or what it said, but I remember thinking how ridiculous it sounded.  I remember thinking, “I’m not a moron. I think I’ll know it if I am raped.” 

That was before I learned how muddled and confused the thinking about “consent” is among the public at large when the context is rape.  When you scratch the surface in discussions with witnesses, jurors, police officers, and even victims themselves, you learn that people really seem to think that “it’s not rape” unless the victim tried to fight it to the death.  I remember my own father saying that rape is virtually impossible because it would be too difficult to hold a woman down and complete intercourse if she is struggling.  This argument of course ignores the fact that a woman can be forced into compliance and that she shouldn’t have to choose between having nonconsensual sex or having her brains blown out when she struggles too much.  This argument also ignores the fact that women are taught from earliest childhood that they are not capable of resisting a man physically. 

People also seem to have difficulty getting their minds around the notion that it is rape if the man involved is married to his victim or has had prior consensual sex with her.  I’ve seen the lightbulbs go off on people’s heads when I have explained it in terms of the fact that the man does not own the woman from the time he first has sex with her forevermore.  But people do not seem to initially think of the issue in those terms. 

The following are three real-life examples from my former caseload as a prosecutor-- and for the sake of the discussion as to popular understandings of consent, let’s please accept the women’s allegations as true.  (Obviously, in real life, we examined these allegations critically in light of all the evidence before deciding to prosecute and then the allegations were subjected to the “proof beyond a reasonable doubt” standard in a jury trial.)

These examples all relate to women who were forced to have sex against their will.  Each one of these women told me that they had not wanted to have sex but felt they had no choice under the circumstances. Each woman felt violated and angry at the man involved.  These were not ambiguous situations.  These were not situations in which the man might have erroneously believed that there was freely given consent. Yet, the women involved did not themselves identify what had happened to them as criminal.  They themselves seemed to believe that they were somehow complicit because they “went along” with something they were forced to do, or in the second scenario, the woman seemed to believe (if you follow her reasoning to its logical conclusion) that she did not have the right to ever retract her prior consent to having sex with someone -- i.e. that she was her boyfriend’s to do with whatever he liked because she had consented to sex with him in the past.  As I told her at the time, if that were the law, I would advise any woman I cared about never to get married or have sex with anyone!

I know this is turning into a rant, but it never fails to amaze me how women’s basic right to self-determination is so easily dismissed or misunderstood when the context is rape.  Unless the woman locks herself up in a monastery for her own safety, remains unmarried and virginal all her life, and fights to the death if anyone breaks into the monastery to rape her, she is at risk of being considered somehow complicit if she is raped.  I am not saying these are well thought-out positions among the public at large, but these are the general attitudes that one encounters in rape prosecutions even among the vicitms themselves, even in the most egregious cases. 

First Scenario  Victim’s male acquaintance breaks into her apartment and grabs her.  He is in a rage because she had refused to go out with him.  He roughs her up a bit, including belting her across the face and throttling her. He then forces her at gunpoint to drive him to his house, where he keeps her overnight.  He specifically tells her that he will shoot her if she tries to escape.  He is distraught and talks repeatedly about how much he loves her.  He talks about wanting to live with her in Mexico.  Her survival strategy was to pretend to go along with his plans.  She wanted to gain his trust.  When he had sex with her that night, she “went along with it” in order to survive.

After finally escaping, she went to the police.  She expected that he would prosecuted for kidnapping, assault and threatening.  She was, however, shocked when I brought a rape charge against him.  She didn’t feel that she had been raped because she had “gone along” with the sex.  When I questioned her, however, she said that she had “gone along” with it because she thought (quite reasonably under the circumstances) that he would blow her brains out otherwise.  But, to my shock, in her mind, she herself felt that it was not a rape because she had not resisted in any way.  (Under the law in my jurisdiction, sex that occurs during the course of a kidnapping is rape, and even if that were not so, I think the physical threat against her was sufficient to make this a rape.)

Second Scenario  A woman and her boyfriend got into an argument culminating in him punching her and then forcing her to have sex. Neighbors had heard the screaming and called the police.  The woman had a black eye.  She was initially cooperative with the police and agreed that her boyfriend should be charged with assault. When asked by the police, she said that she had not wanted to have sex with her boyfriend at that time and that he had “forced her.” She was, however, puzzled by the rape charge because she had had consensual sex with her boyfriend on prior occasions .  In her mind, it wasn’t a crime because she had had a prior consensual relationship with him. 

Third Scenario  A 25-year old man is supervising a sixteen year old girl in a fast food restaurant.  After telling her that he really wished someone would give him oral sex (he didn’t put it quite so politely), he suddenly pulled her into a supply room, pushed her forcibly down on her knees, and yanked down his pants. (I don’t remember the precise sequence of events or what exactly he did physically to accomplish all this.) He told her that she “owed him” because he hadn’t fired her when she was late to work.  She told him “no” and tried to get up and leave, but he pushed down on her shoulders and pushed her face into his crotch.  He was yelling at her and calling her a “bitch.”  She felt that she had no choice but to give him oral sex and so she complied. She “wanted to get it over with.”  He was charged with rape on three theories under the law in my jurisdiction (A.  using his position of authority over a victim under the age of 18 to coerce her into having sex, B. physically forcing her to have sex, C. having sex with her despite the fact that she indicated both physically and verbally that she did not wish to do so.)

This scenario came to light because immediately afterward, she ran to her best friend’s house and tearfully told the friend what had happened.  The friend told a guidance counselor at school the next day, and the guidance counselor called the police.  The victim, however, had made statements to the friend that he “made me do it, but he didn’t force me.”  The victim beat herself up emotionally because she believed that she could have done more to try to wrench herself away from this guy or that she could have screamed.  When I asked her why she didn’t, however, she said (a) she believed that he would hurt her if she had resisted and that because he was so much bigger than she that any attempt to escape would be fruitless, and (b) that she would lose her job, which was an important source of pride and financial support to her.  (Note that my jurisdiction does not provide criminal law protection to adult women who are coerced into having sex on the job.  Adult women are expected to know enough to say “no” and to pursue the appropriate civil remedies.  My victim, at age 16, however, was considered old enough to consent to sex, but not old enough to withstand coercive on-the-job pressure to have sex. This seems like a sensible balance to me.  An adult woman in this scenario, however, could be said to have been raped under the theories of physical force or the theory that she had indicated verbally and physically that she did not consent.)

CRYING "RAPE!" DOES NOT A CONVICTION MAKE

I despise the term “she cried rape.”  It implies that all a woman has to do is yell, “Rape! Rape!” and the man has no chance, even if he is innocent.  In most cases (and I have prosecuted a number of rape cases by the way), a woman who alleges rape must recount what happened in step-by-step detail on multiple occasions, including a tape recorded police interview as well as direct and cross examination during trial in the presence of judge, jury, attorneys and the man she is accusing. 

It is true, however, that the vast majority of rape cases hinge upon the victim’s credibility.  Unfortunately, it is widely taken for granted that these “he said/she said” cases are somehow weak cases in which it is merely the luck of the draw whether the jury will reach the right conclusion . The following sentence from this article (about a different topic) is typical:

The term, "He said/she said" is often heard in the unfortunate case of rape. In this situation the term applies to the fact that when there is little factual evidence on which to base a decision the jury is left trying to determine who’s story they believe and the case becomes one of her word against his. (Emphasis added).

The thing that most people do not understand is that the victim’s testimony IS factual evidence.  The victim is an EYEWITNESS to the crime, providing DIRECT EYEWITNESS testimony as to every element of the offense.  And juries can base a decision on direct eyewitness testimony in rape cases, just as in every other type of criminal case.  Witness credibility is an issue in virtually every criminal case to one degree or another.  Assessing credibility is the whole point of the jury’s existence.  That’s what jurors are supposed to do. 

Assessing credibility is not random guesswork.  The jury has tools with which to judge witness credibility in an intelligent manner and to reach a verdict beyond a reasonable doubt based on that testimony.  In my jurisdiction, the jury is instructed to consider the following when assessing credibility: 

Did the witness have an interest in the outcome of the case? Did the witness have some motivation to lie or “spin”?

Did the witness’s testimony seem reasonable or probable?

Was the witness’s testimony unreasonable or inconsistent with other evidence in the case?

Was the witness’s testimony inconsistent with prior statements by the witness?

What was the witness’s appearance and demeanor? Did the witness appear candid?

Was the witness worthy of belief? 

Although defense attorneys love to scream “Hell hath no fury like a woman scorned,” someone would have to be a brilliant psychopath to concoct a detailed and believable rape allegation, repeat it consistently over the course of months, and stick to it throughout all the scrutiny and skepticism to which rape victims are routinely subjected.  Usually by the time all the evidence is presented in a court of law and the factors listed above are considered, it is pretty clear whether or not the State has met its burden of proving the allegations beyond a reasonable doubt. 

WITNESS PREPARATION

Interviewing witnesses and preparing them to testify is probably one of my favorite aspects of practicing law.  Cases that seemed dry when you were reading the documents in your office suddenly come alive when an actual human being is telling you his or her story.  I love the drama of learning previously unknown facts from a witness, facts that may have either a significant positive or negative impact on my case.  I also love the excitement of helping a witness articulate important truths about his or her experience. 

For example, in one of my last rape cases before I quit criminal prosecution, the teenage victim had undergone videotaped questioning by a police officer about what had happened.  The videotape was going to be a stumbling block for us because the victim came off as "tough" kid, stoically recounting what was done to her with the most vulgar language imaginable.  My conversation with her on that issue went something like this.

Me (completely non-judgmental tone):  I noticed that you used the word "p****" to refer to your private parts and the word "c***" to refer to his private parts.  Are those the words you normally use?

Victim:  Well I normally don't talk about this stuff.

Me:  Have you ever talked about this stuff before?

Victim:  Yeah, once with my mom and sometimes with my best friend, K.

Me:  What kind of words do you use when you are talking with them?

Victim:  Well, with my mom, I use the proper words and with my best friend we usually just talk about "having sex," not "f***ing."

Me:  When you say "proper words," what do you mean?

Victim:  Well, the words we learned in school, like penis and vagina.

Me:  Where did you learn the words you used in the police interview?

Victim:  Kids in school talk like that, but I know that those aren't the proper words. 

Me:  Why did you use those words during your police interview?

Victim:  I just felt like it.

Me:  Why did you feel like using the words kids use in school instead of the words you use with your mom?

Victim:  I just felt stupid.

Me:  What do you mean?

Victim:  Well, I just felt like .  . . I don't know.  Humiliated I guess.

Me:  What was it about feeling humiliated that made you want to use those particular words?

Victim:  Well, I was there because of what [rapist] did to me and the cop was this old guy with a gun and a badge, and I just felt like a dumb little kid who couldn't even take care of herself.  I just didn't want the cop to think that I was a crybaby or that I didn't know anything about sex or that I wasn't strong enough to take care of myself just because of what happened.  I didn't want him to think I was stupid.

Me (firmly):  OK, I am going to ask you about this in front of the jury, so you need to explain exactly that to the jury.  They need to understand how you felt and why you chose those particular words during your interview.

AN ISSUE THAT DESERVES MORE ATTENTION: PRISONER RAPE

I was thrilled to see that Amanda at Pandagon addressed the issue of prisoner rape in one of her posts today.  This is an issue I take very personally because a number of people are currently serving lengthy prison sentences due, in part, to my efforts as a prosecutor.  I think each and every one of the defendants I prosecuted deserves the sentence he or she is serving.  Not one of these defendents, however, was sentenced to endure sexual violation or the terror, degradation and humiliation that inevitably accompany sexual violation.

One would think that prison rape is a problem everyone would care about, regardless of political orientation or religious faith.  Unfortunately, the predominant attitude towards prisoner rape is apathy.   Indeed, I hear prisoner rape referred to most often as a joke.  Cops and prosecutors joke that a particularly arrogant defendant will change his tune once "Bubba" gets ahold of him in the cell block. (The Happy Feminist responds to such joking with her stoney face; the stoney face goes against her happy and usually jokey nature but it must be put on in such instances because prisoner rape is no joking matter.)  It is also quite common for otherwise decent citizens to say that they hope a particular criminal (often a child molester) gets a taste of his own medicine in prison.

What is forgotten is that not all prisoners are guilty of the crime of which they were convicted, not even a guilty prisoner deserves rape, rape is not part of the punishment which our legislatures and courts have approved, rape is reserved for the more vulnerable members of the prison population, and the prevalence of rape in our prisoners is a national embarrassment.   As Justince Blackmun noted in Farmer v. Brennan, "Shame, depression, and a shattering loss of self-esteem accompany the perpetual terror the victim . . . must endure [after suffering a rape in prison]."   None of these things is good for prisoner rehabilitation. 

Another problem is apparent in this quotation by John Moriarty, inspector general of the Texas Department of Criminal Justice: "Sex happens in prison. What may have been consensual at the time becomes rape."  (from the Austin American-Statesman which I found through Pandagon.)  In my view, there shouldn't be any sex in prison.  Consent shouldn't even be an issue in a prison setting where you have completely powerless people at the mercy of the strongest inmates.  My first instinct is that any sex in a prison setting should be considered sexual assault.  I am not sure, however, how such a law would be drafted to avoid punishing the victim as well as the perpetrator of a forcible assault.  Perhaps the solution would be to punish the more (ahem) active participant, but it may be difficult to define that, especially between female inmates.

Meanwhile, as I ponder this important issue, I am going to add a link to Stop Prisoner Rape to my right hand column.  This is, I believe, the only nationwide organization devoted to this issue,  They are monitoring the implementation of a new federal statute called the Prisoner Rape Elimination Act.  I look forward to learning more about the act and writing about it in the future.