At a University of Vermont Fraternity, A Brother With A Problem

It’s really not a secret: I have a pretty strong 'anima' or feminine side.I don’t resent it. I think it’s made me a much more effective special victims prosecutor over the years. And in any event it’s who I am. My closest circle of male friends will readily confirm that I navigate those friendships more as if I were a spouse or partner than any sort of a “guy’s guy.” That can be frustrating for everyone involved. And of course, I have my professionally inspired inferences, which should and do make me more sensitive to things like rape culture, male privilege, and other issues faced by women and girls in ways that most men really can’t imagine. So yeah- I’m something of a woman trapped in man's body if you’re going to buy into a lot of generalizations about how women think and react, and what it means to be emotionally “feminine.”So be it. Nevertheless, I’m a straight guy and generally typical where sexual fantasizing is concerned. So shameful or not, tasteless or not, over the years and at every social stage of my life, I'll readily admit that I’ve taken some part in the game of “Hey man, who would you sleep with in [insert environment here]?”And believe me, it can be any environment. And it is every environment, at least where members of the opposite sex are even remotely observable. A high school Spanish class. A summer camp. A basic training unit, an introductory psychology course, the 5^th floor of a dorm, an office mail room, the accounting department, the DNA lab, etc, etc, etc.Yes, it’s tawdry. And utterly pointless. Regardless, it’s what men do. Gay men do it as well, and sometimes in mixed groups we’ll all play the game, with the gay guys making their own considered judgments about men, and often commenting with high degrees of validity on women as well.For most of us, this stupid tradition begins innocently, scattered across that late elementary to middle or junior high school period where girls become suddenly and then perpetually interesting (and of course, for homosexual boys it really can’t begin until they find themselves in much more progressive environments then the kind I came up in). So it might start in 5^th grade or thereabouts with “who would you want to see without her clothes on?” But it quickly progresses to more imaginative and specific scenarios, and it never really stops. It’s far from angelic, often inaccurate, and always objectifying. It’s wrong and I won’t make excuses for it.I’ll also note that, regardless of what I do and who I am or profess to be, I’ve played the game in places that are hardly feminist enclaves. I’ve played it in warehouses, on airport tarmacs and construction sites where I worked for years before entering professional life. I’ve played it in countless police cars, detective squad rooms, bars, diners and alleyways, passing the time for various reasons and waiting for something to happen. I’ve played it with men educated and not, supposedly enlightened and not, gentle and not.What I’ve never, ever heard in roughly 35 years is any man, anywhere, ask “so if you could rape someone, who would it be?”It’s true: That cyber-blessed term “WTF” was honestly coined for such an abomination.There are variations of this game I will remove myself from or avoid if I detect cruelty or a line I just don’t feel comfortable crossing. But no guy in my experience has ever even approached the idea of rape. Ever. If I could rape someone, who would it be? Even writing that out makes me cringe.So “WTF” the fraternity brother at the University of Vermont was thinking when he added that to the lets-get-know-each-other ‘new brother questionnaire’ is worth exploring. And I mean between him and a good mental health provider. Because it’s more than just tasteless; it’s downright scary. Perhaps the guy who wrote this and anyone else at this chapter of Sigma Phi Epsilon who deemed it acceptable is just remarkably awkward and clumsy with word choice. But I’ll vote for disordered. The word “rape” is one of the ugliest in our language. It’s mono-syllabic, blunt, and shocking. It’s supposed to be. While it usually doesn’t involve these things, it conjures in most minds gratuitous violence, torn clothing, screaming, and injury. It at least evokes- as it should- terror and a life-altering, shattering experience of trauma on the part of the victim. So how it could be in any way confused with the desire to engage with someone sexually is beyond me. There are psychological and legal terms for men who only or primarily respond to non-consensual sexual situations. If that’s the case with the questionnaire author or authors, then those who share their environment should know about it.I'm glad that (at least) there's been a tremendous backlash at UVM and an appropriate student response to the leaked document. I hope this gratifying response lingers after the dust settles, and that male and female students in this well-loved college environment continue to reject the idea of anything like this in their midst. Because it’s more than just disgusting. It’s dangerous.

Brownian Movement and Penn State

“Presumed Innocent” was perhaps the one book that led me more than any other into law school and prosecution.In it, Scott Turow describes “Brownian Movement,” the apparently random collision of particles in the air, resulting in a hum that children can sometimes hear before the bones of the inner-ear harden in puberty. Turow’s character, a married man, describes the allure of other women as something akin to Brownian Movement before meeting the woman in his office who becomes his love interest and is already murdered as the story begins. When he meets her, that movement rises to a fever pitch.The fact of evil in the world is something I’ve often related to Turow’s view of Brownian Movement. The circumstances of my professional life assure me that it is there. I accept it. On streets and in train cars, passing houses, farms and city blocks, I am aware of its presence. It hums, usually just above or below the surface of my thoughts. I can, thankfully, usually tune it out when I’m with my toddler nephew or in the festive company of my parents and other loved ones.But then sometimes, as it did to the tortured character of Rusty Sabich, it hums louder. It sings.That is the Penn State sex abuse scandal. Many fans and members of the university community would prefer that it be called the Jerry Sandusky sex scandal, but I won’t (even the word “scandal,” frankly, trivializes this horror as if it was a torrid affair between celebrities). That’s because Sandusky is, as happens when institutions inadvertently protect predators, almost a minor character in the volcanic ugliness that is this situation. Of course, Sandusky allegedly represents the center of the pathos that stalked the Penn State community and now threatens to scar it forever. But Sandusky is not the embodiment of it. Rather, he is ultimately a trigger in the larger, full horror of the situation. The cover-ups, the rug sweeping, the second-guessing and rationalization, all in service to a 70 million dollar a year enterprise, represent the true scope of the evil that is Penn State.And the cancer grows.A young man mercifully cloaked- for now- as “Victim 1” has left his high school, about 30 miles from Penn State, because of bullying. He has apparently been blamed by fellow students for the unearthing of the truth surrounding the revered and local behemoth. This is an excruciating multiplication- in numbers at least- of the type of incomprehensible betrayal child sex abuse victims often feel within their own families when the abuse is uncovered. Victims are usually never more alone than after the abuse is discovered, whether they purposely revealed it or not. Siblings, non-offending parents, even grandparents are suddenly distant or much worse. The victim, after all, has “torn the family apart,” interrupted possible financial support, brought shame upon the family because of a ‘splash effect’ that will surely color the whole clan, etc, etc. The fact of the perpetrator’s utter and sole guilt for all of these depredations simply gets lost as younger siblings grapple innocently but cruelly with the separation, the shame, and the doubt. Older members who should know better still often fail with wildly differing degrees of willfulness to shield the child from blame. And of course, in many cases, this is exactly what the perpetrator warned the child would happen if s/he dared reveal anything.This is perhaps the farthest reach of the anguish that is child sexual abuse. When perpetrators warn children not to tell, they are not always bluffing. In fact, when they warn of betrayal, anger, collapsing support and utter isolation, they are more often than not right on target. The system can only react one way, which generally confirms fears related to a separation of the family, time in foster care, police presence and judicial appearances. This is terrifying beyond words for most adults, let alone children. But when the second shoe falls, when family members disbelieve, equivocate, or flat out resent despite believing, the suffering blooms like blood in water. The child is forever changed. Recantation is typical, and valid cases more often than not go nowhere.Sandusky, according to statements, demanded secrecy and seems to have leaned on his alleged victims actively, calling them repeatedly and appearing even needy and clingy at times. I have no idea if or how he warned them of other consequences for revealing what he was doing, but frankly it would have been superfluous. He was Jerry Sandusky, and they were in or near State College. He allegedly hunted through his own charity and perpetrated in athletic facilities. He was figuratively at God’s right hand.And there’s the rub. If that phrase- God’s right hand- offends religious readers, I apologize. But the point needs to be made. Penn State football became, through a confluence of circumstances surrounding an iconic and otherwise honorable coach, a deity to be worshiped rather than a college team to be rooted for. The resulting millions in revenue silenced anything that might have tainted or challenged this entity. If reports are true, then Sandusky allowed a beast inside of him to run free in the permissive environment that the god-thing allowed. That’s what happens when institutions become godlike: Predators either seek to infiltrate them, or blossom within them once it becomes obvious they can.Allegations at Syracuse’s equally revered and powerful basketball program and the Boston Redsox organization now follow. There will be more, as sure as Catholic dioceses the world over exploded in fire-cracker sequence, breaking my heart around the time I entered this field. Skeptics and die-hard fans will cry foul and insist there is money and fame to be gained in jumping on the bandwagon Penn State has started with false allegations. In almost all cases, they’ll be wrong. And God help the victims who will come forward despite the scorn, the bullying, and the dull, mean hate that coming forward will win them against these institutions.By all appearances, the wide world of sports must now endure a bloodletting. For the sake of the many good things athletics brings to players and fans alike, I hope its leaders stand tall and its fans prove gentle and open-hearted. But regardless, the world of sports is cracking, opening, splitting. That high, insistent hum is rising yet again.

Of Angels, A Stranger, and an Absent Father

“Though we share so many secrets, there are some we never tell.” William Martin (Billy) JoelHe called it “The Stranger” and titled a 1977 masterpiece after it.   In my business we sometimes refer to it as the “third persona” with a nod to Jungian psychology.  A persona is simply a mask, the figurative one we put on to interact with others as we go about our lives.  Most of us wear several of them. Our first persona, generally, is what we show to the viewing world. A second may be what we show a lover or a trusted friend, sometimes intermittently and whether we want to or not.  But the third is a dark animal indeed. It’s the face we show to no one. It’s the side of ourselves we seek to conceal at all costs.  We all have these shadows of ourselves, these Strangers, inside of us.  As the song says, they are not always evil, and they are not always wrong.  But whether our third persona is harmless or not, a wicked trick of the mind is that we almost always to fail to recognize that it exists in others. We assume, tragically at times, that we can fully know people around us because of the personas they reveal to us. We tell ourselves that we can sense, we can see, we can discern.We can’t. The Stranger remains, hidden and invisible.Jerry Sandusky is no exception. He was charitable. He was hard working. He was skilled, admired, and accomplished. He was also, according to eye-witness testimony, a child rapist.  His third persona was apparently demonic, and regardless of how ugly and evil, his closest relatives, his wife, his co-workers and his legendary boss would not have detected it based on what he chose to show them. Thus reveals the one merciful thing that can perhaps be said about the group of men who, from all appearances at this point, conspired to protect Jerry Sandusky at the expense of so much. They didn’t understand the third persona, and believed they knew a man because of accomplishments and attributes that say nothing about what he is capable of otherwise.But mercy for men like Paterno, Curley, Schultz and others in the Institution that is Penn State evaporates with the reality that Sandusky’s persona was exposed at crucial times.  There were revelations- a smaller word will not suffice- that vomited a glimpse of it to the great Institution and to its “sainted” mastodon at different points on a long timeline.  These revelations are sometimes the only indications an otherwise decent community will receive that a predator stalks its children. The child victims themselves, God bless them, are often the last who will reveal the Stranger in the man; it’s just a bridge too far most of the time.Those without faith will call these revelations nothing more than dumb luck, inattention on Sandusky’s part, or the blind weight of circumstances.  But my own framework of faith suggests to me that these brief flashes of light in the darkness- the anal rape Mike McQueary saw in 2002, for instance, or the oral rape the janitor before him saw in 2000- represent the extremities of desperate and semi-potent angels, using whatever cosmic power they can summon to poke momentary holes in the darkness, thereby alerting the powerful to what the powerless cannot utter.When these extremities reached Joseph Paterno in March of 2002, the angels must have shouted with joy.  A more powerful man, one with more credibility, perceived decency and moral authority, could not possibly have been reached in the community in which Sandusky apparently hunted.  Ironically enough, a recognized origin of the name Paterno is a shortening of the Latin Pater Noster, or Our Father, the first two words of the only prayer Jesus allegedly taught his disciples.  The great man, the father figure, “St. Joe” himself now knew, and the Stranger in Sandusky would be exposed.But alas, there was an Institution to protect as well, and in the end it won out.  An all-too human Paterno responded as feebly as he legally could.  The two officials he went to responded by restricting Sandusky’s  access to facilities and his ability to bring boys onto campus.  The Institution was protected. The community that surrounded it, and its wide-eyed, star struck boys, could be damned.Perhaps these men can be forgiven for not knowing what I know; that the eight victims Sandusky is alleged to have abused is probably more like 80 or even much, much more than that.  That the after-effects of child sexual abuse result in a panoply of emotional, psychological and physical disorders that literally truncate lives, poison future relationships, stunt potential and shred hope itself like shrapnel.  That the “loss of innocence” suffered by boys abused in the way Sandusky is believed to have done so is almost trivial compared to the bleak, mental torture that follows. That the only way out is through, and that many simply never make it through.  That the morally bankrupt and cynical decisions made in 1998, 2000, and 2002, as well as before and after, allowed a man to further manufacture misery, betrayal and violence that will haunt lifetimes in its wake.Perhaps.  But at the end of the day, in 2002 and God only knows how many times before and after, these men bet an Institution and its football program over their community and the tender lives of its children.  While the victims themselves have paid most dearly for this terrible wager, their fate is tied inextricably to that of the community.  Now the suffering of both will echo louder than the joyful sound of the throngs in the stadium, and longer than the legacy of victories under fall skies.And the angels wept bitterly.

Judge William Adams, A Camera, and the Power of Light

Roughly 2000 years ago an itinerant rabbi gave a sermon about light.  The right thing to do with a lamp, said the rabbi, was to let it shine, not put it under a basket.  That made sense in a time where light after sunset was a luxury; hence the parable.  And of course, in the spirit of parables, there are other forms of light, and other functions for what we know as light.  Light illuminates, and in so doing exposes.In 2004, a remarkable young woman with a disability shined a light in the form of a video camera on the pathology, hatefulness and pure evil of a man who, until last week, had been a sitting judge in Texas. The video shows him, her father, beating her with a belt in a breathtakingly brutal way, over seven interminable minutes.I am using words like “pathology” and “evil” distinctly, although as the study of psychology evolves, the difference between what we might call mental illness and what we have historically called evil are blurring in ways that make people like me- prosecutors, and arbiters of legal blame- uncomfortable.  But for now, I’m comfortable, perhaps recklessly so, with discussing the two separately.  I believe the man is probably sick.  I also believe he’s evil.Millions have seen the video.  Millions more, thanks in part to the appropriate “trigger” warnings that have been associated with it, have demurred.  I watched every second of it, and more than once.  The video’s subject is my job, after all; I have seen things far worse, but in many ways I haven’t seen anything quite as naked and telling as this.  Because sometimes it takes a camera in the right place at the right time to truly expose what lies beneath far more facades of normalcy than most of us understand.  A camera won’t flinch. It won’t turn away. It will simply record with passive silence, and in situations like this one perhaps its growing ubiquity in our lives is a positive thing.  After all, it allowed a 16 year-old Hillary Adams to preserve something that is simply unbelievable to many- that a respected member of the judicial bench, a smiling, reasonable looking man, would nevertheless be capable of a vicious beating laced with profanity against a young girl with cerebral palsy.You see, I have prosecuted and assisted with hundreds of cases where I knew the truth, but also feared I’d never be able to infuse a jury with the courage to convict. I never had proof like the kind Hillary possessed; the kind she had the wherewithal and technology to create.  And so doubt would creep in at the edges, doubt fueled by myths that protect men like William Adams and his now estranged wife.  Myths that whisper that couples like the Adams’ aren’t the types who could hurt a disabled child that way. Myths that education, privilege, community stature, the genetic accident of white skin, and other niceties can’t co-exist with methodological torture and wanton cruelty.  Myths like the one William Adams is selling right now, that the issue was really “discipline” and that what the video shows “looks worse than it is.”Ah, but then sometimes, in blessed fashion, a camera shatters the myths; a camera placed by an intelligent and desperate child who has learned, as many family violence survivors do, to predict the escalation of hostilities that leads to violence.So the video depicts exactly what occurred; it was Judge William Adams, community leader, outwardly decent parent, arbiter of justice, ripping into his child’s body with a lustful but eerily calm exuberance, armed with a leather strap. It was this man, uttering the word “f—king,” 14 times as he did so.It was also Hillary’s mother, Hallie, whose participation was less violent but no less sickening.  I’m glad that she has repaired her relationship with her daughter, and that Hillary has forgiven her.  She’ll get nothing from me.  I understand that I am running afoul of many domestic violence experts who maintain that a battered woman can be rendered powerless over years of brainwashing and abuse to where her own violence or failure to protect her children cannot be attributed to her in terms of blame.  I am sympathetic to the dynamics that exist, and attribute the lion’s share of the blame to William Adams, where it belongs.  But I draw the line on anyone who fails to protect their own children, regardless of what they are facing in another relationship. Hallie Adams’ explanation on Today was, to me, less than impressive.  She calmly deflected blame by claiming victimhood herself and assigning an addiction to William.  I’m sure this is accurate, but it doesn’t give her a pass where I’m concerned. She’s clearly not the primary abuser in the nightmare world Hillary navigated for so long.  But she made choices that I cannot abide, and one of them was graphically showcased on this video with its own dose of profanity.A five-year statute of limitations will likely protect both from criminal prosecution.  Adams’ judicial career might be over, which would perhaps be the most just event he’s been witness to since that career began.  There are many other ways to look at this case, Hillary’s courage and healing, and also the response to the video as Hillary is launched into a temporary but bright public spotlight.  I wish nothing more than for her to live a full and happy life unencumbered by the evil visited upon her.For me, though, the deepest value of what Hillary did by placing a running camera on her dresser and a scarf over the tell-tale blinking red light, was to allow a robotic, impassive eye to simply witness what far too many believe to be impossible.  My friend and colleague Anne Munch once told me the story of a police chief in a small, idyllic Colorado town who was asked a typical ‘softball’ question by a reporter:  “So, is this town a safe place to live?”Rather than giving the pat and expected answer, the wise chief apparently looked at the reporter evenly and said what I believe might be the most plainly accurate thing that can be said about literally any locality on the globe.“It depends on who you live with.”

The Seebergs Gain Ground- Thank God

Elizabeth “Lizzy” Seeberg passed to the next life on September 10, 2010, a little more than a year ago. I did not know her. Readers of this space, however, know that I was profoundly touched by her life, her death, her courage, and finally the courage of her parents as 9/10/10, for them, bled brutally into the following fall and winter.For the Seebergs, last fall was not a typical one for a Roman Catholic, Chicagoland family with multi-generational ties to Notre Dame du Lac and St. Mary’s. There was no warm delight in the football schedule, the changing of the seasons, or the approach of the holidays.  Instead it was a dark struggle in the wake of a nightmare with a suddenly impenetrable bureaucracy that was the Notre Dame administration. Since I and others have described them before, I won’t recount here the missteps I believe Notre Dame took, both with the investigation of Lizzy’s attack and with its interpretation of federal privacy laws. Suffice to say the Seebergs, already dealing with the worst nightmare any parent could face, were met largely with incompetence and then obstruction where her attack and death were concerned.However, their resolve yielded some progress earlier this year when Notre Dame agreed to significant reforms in its response to sexual violence after an investigation by the Department of Education (DoE) in the wake of Lizzy’s death.And beyond Notre Dame, hope also sprung forth in the form of DoE policy with the publication of an April, 2011 “Dear Colleague” letter from Russlyn Ali, Assistant Secretary for Civil Rights at the Department of Education.  The bottom line is that just about every U.S. public or private institute of higher learning relies on federal funding for various parts of its mission. The DoE Office of Civil Rights is empowered to condition receipt of federal dollars on meeting certain standards of protection for students at risk for discrimination. The office considers sexual harassment and assault to fall under that category.  The letter outlines several things colleges need to do in order to be in compliance with best practices where the response to sexual violence is concerned. Examples are things like preventing offenders from personally cross-examining victims in non-legal disciplinary hearings, and requiring a preponderance standard in determining the outcome. These things are hardly revolutionary or anti-due process.Nevertheless, a backlash has arisen from various pundits who see these measures as some sort of perverse manifestation of political correctness that threatens to derail some precious and flowering aspect of adolescent college life.One commentator, Sandy Hingston, unsurprisingly a romance novelist, tragically conflates the sexual exploration of adolescence with rape. She harkens back to what were apparently her and her counterparts’ own experiences of awkwardly waking up with boys in compromising situations and just not making a big deal of it. To the extent that such consensual liaisons happen, she’s correct- a big deal shouldn’t be made of it.But here’s the rub: It isn’t.Those awkward, fuzzy situations continue to occur every night in college life- more so now than then.  But they almost never produce complaints of rape, and nothing in the DoE’s guidance will change that. The fact is, most women and men who are clearly sexually violated in liquor-fueled, late-night encounters do not wake up and cry rape, let alone what victims of murkier situations do. The over-riding response to being violated sexually is to blame oneself and say nothing, and that will not quickly change. The DoE guidelines are simply helping to level the playing field in cases where the violation is clear enough, as in the case of Lizzy Seeberg, where an outcry is not only just, but necessary to the security of the campus and all of the students on it.But this is lost on commentators who type with panicked fingers about how these changes will surely quell romance, stunt the college experience, and lead to the rounding up of men and permanent victim-hood of women.Nonsense. This is argument in a bubble, utterly unschooled or unaware of how sexual violence actually occurs between people in the real world. Another commentator, Peter Berkowtiz, wonders aloud in the Wall Street Journal which campus leaders will come forward to challenge this new, frightening world order. Among others, he entreats literature professors to instruct that “particularly where erotic desire is involved, intentions can be obscure, passions conflicting, the heart murky and the soul divided.”Really? So when a woman (or a man) is trembling in a strange bed, or stumbling, half-dressed from a backseat or a back room with the dawning horror of having been sexually assaulted, what she must first do is consider the divided and murky nature of her passionate soul?Both commentators can be forgiven for naiveté, but neither have a clue what sexual violence really looks like.  The reality is, when complaints are made- or even contemplated- it’s almost never a close call.  It’s almost never a gray area.  Despite the musings of Mr. Berkowitz and others, sexual violence isn’t simply an unfair moniker for the complicated, erotic interplay of Rhett, Scarlett and a swollen, harvest moon in a sultry, starlit sky. It’s really much more banal, blunt, and evil than that. When it happens, and it does, it needs to be dealt with competently and fairly.Competence and fairness. That’s what Lizzy Seeberg needed, and in large part what she was denied. That’s why her parents fight on, not for Lizzy now, but lovingly in her memory and valiantly for the millions of women they know will face what she faced. They could have been easily forgiven for shutting down and tuning out after the loss of the light in their lives, yet they are doing neither. Their angel is gone from this life, but they are not content with waiting to see her in the next. They are fighting to protect the angels of others who will wander onto campuses and into situations unmistakable in their criminality and deserving of a realistic, healing, and just response. The DoE’s efforts and its hard look at Notre Dame are a product of that fight. Both are welcome steps toward a better world.

Diallo, Justice, and Light

In an angst-filled conversation regarding his own duties to it, Russell Crowe’s character in the movie "Gladiator" says to his Emperor, “I have seen much of the rest of the world. It is brutal, and cruel, and dark. Rome is the light.”Despite falling far short of its ideals, and even in the face of an arguable decline, it is still possible to substitute “America” for “Rome” in that sentence and have it be painfully, desperately true for much of the rest of the world.America is still the light, and New York is still its embodiment. The gift from France in her harbor was stunning not only in its descriptive brilliance but also in its uncanny timing. The woman holds a torch— the symbolism is so perfect it could never have existed in fiction. And her placement coincided perfectly with the greatest influx of immigrants the world has ever known.Many more stand in lines at JFK now than behold the torch, but still they come.  Nafissatou Diallo was one of them.  In her, the Manhattan DA’s office encountered an individual much like millions of others who claw their way to that thin, little island and then navigate it any way they can. As we now know, getting there was messy. She lied on a visa application. She was taught, apparently, to lie convincingly about sexual violence. Whether she was actually brutalized and raped in her native country has been challenged in light of some admitted fabrication, but I have little doubt she suffered greatly in a manner similar to what she was taught to concoct, and was willing to do anything she had to do in order to escape where she was.This should shock no one. The journey to America— to New York— has always been characterized as often as not with deception. With bribery. With fraud, abuse, and soul-selling, desperate behavior. I have no idea what my great-grandparents did for the chance to float past that torch, but I’d be slow to judge them for it.The reach for America also attracts desperate people who have been broken by events and reshaped in ways that make them difficult at times to understand, defend, and support.  Cultural barriers, distrust of authority, and a constant fear of the truth itself are not uncommon in people for whom candor and innocence have been met with brutality and perfidy.Surviving in New York has been apparently messy for Ms. Diallo as well. I prosecuted sex crimes in the Bronx, where she lives, for two years.  I saw the realities of living there on blue collar income, and got a glimpse of what people did to make ends meet. Diallo defrauded the housing authority, we know. She had shady friends who used her for her bank accounts.  Yes, that happens in New York. Diallo got by— hustling, surviving, call it whatever you want— the way so many do in a city capable of bringing the strongest, most resourceful people to begging knees. But she was making ends meet, in all of her imperfect, rule-bending glory, working long and difficult hours as a maid and raising a child.And then she encountered Dominique Strauss-Kahn, and chose to report what he did to her. And suddenly the rules she was bending or breaking mattered much more than perhaps she ever imagined.Those familiar with me will be unsurprised to hear that I believe Diallo was attacked by DSK. As we know from the blunt, blind force of DNA, a sexual encounter between them took place.  The only issue is whether she consented to it and then lied.  Is it strictly possible that Diallo had— or quickly formed— a vile and remarkably elaborate plan to frame a renowned economist, seeking a future payoff as some adjunct of the criminal justice response?  A woman who reportedly cannot read or write in any language?  And further, does this evil turn of events merely dovetail by coincidence with the several other allegations of sexual aggressiveness and/or violence leveled against Mr. Strass-Kahn in several places around the globe?For better or worse, I know far too much about sexual violence and those who commit it to credit that scenario as anything other than fantastic.Regardless, the decision to dismiss the case, while arguable, is not one I'm criticizing.  I am familiar with the challenges the DA faced under New York law, particularly the necessarily rushed presentation of the case to a grand jury. I applaud the office for what appears to be exemplary ethical behavior. My only criticism of NYDA concerns the meticulously detailed and humiliating public motion to dismiss the indictment. Unintentional the humiliation may have been, but hurtful it was nonetheless.  Perhaps, as the motion painstakingly details, the case was not deserving of prosecution. But neither was Diallo deserving of such a detailed public lambasting.  I am aware of no legal necessity for that level of detail in seeking the dismissal of an indicted case.Of course, the DA cited more than just Ms. Diallo’s recent past. Also detailed was apparently odd behavior and reversals that undermined the faith prosecutors had in her.  But again, this is what we sometimes see in people when unimaginable circumstances have driven them here, and we would surely fare no better were we driven elsewhere.  Couple that with cultural and language barriers, with how our minds build and recall memories in traumatic situations, and I believe explaining the inconsistencies might have been worth fighting for in a court of law.  But in fairness, it was not my case.The point is that Diallo was rendered incredible by her choices, but many of those choices were driven by circumstances most of us live happily ignorant of.  I'm not excusing whatever illegal behavior she may have engaged in over time, or the lack of candor with the DA.  She is rightfully responsible for her actions, but not beyond what is remotely foreseeable.  I doubt she ever thought those actions would also make her tragically powerless when it came to standing up to an attack in the very country she sought out for asylum and a better life.Upon Diallo, as upon all, New York has bestowed gifts.  From Diallo, as from all, it has exacted a price in return. What’s perverse is not necessarily this harsh but typical and time-honored agreement. What’s perverse is the bizarre extent to which the cost of getting there and getting by has also denied her simple justice.

The Ignoble Lie: Weekly Standard Style

In college a naive but well-intentioned fellow student asked a history professor why alternative theories on the Holocaust weren’t at least presented in classes on the subject. She made it clear she didn’t believe the deniers’ arguments, but didn’t understand how a university could willfully ignore alternative theories (even offensive ones) on a subject if they were based on some methodological gathering of evidence. The professor shrugged and answered her directly.  “That’s easy,” he said. “Theories put forth by Holocaust deniers aren’t based on anything remotely reliable. Forgot how offensive they are. They simply don’t deserve academic attention.”The good prof could have added a few other things, such as how cruel bias and rank antisemitism also lurk behind the "debate” regarding the Shoah, thus making denial arguments less legitimate still. But what he said was enough on its face. Theories about how Nazi Germany had no established policy on extermination, or that estimates of the murdered are grossly exaggerated- even when adopted by people with no antisemitic bent whatsoever- are based on incredibly faulty “research.”  They fly in the face of mountains of demographic, eye-witness and documentary evidence. They’re just foolish to believe, period.To be abundantly clear: I am not about to draw an exact parallel between Holocaust deniers and perpetuators of flawed research “demonstrating” that women lie about sexual assault frequently, particularly in relation to other crimes. I’m also absolutely not inferring that the perpetuators have anything in common with Nazi sympathizers or antisemitic thinkers.That being said, perpetuating baseless claims predicated on demonstrably flawed research and badly interpreted statistics in ways that perpetuate injustice deserves redress.  The continued victimization of millions of women and men who are sexually assaulted every day, cloaked and devalued by this nonsensical line of opinion also deserves redress.  So it’s time to call out the writers, journalists, attorneys, “activists” and others— whether they have an axe to grind or not— who still cite risibly flawed “research” and inappropriately extrapolated anecdotes to support claims that women lie about being sexually assaulted more than anyone else lies about any other crime. Cathy Young is one such writer.In “The Noble Lie, Feminist Style,” Ms Young, earlier this month in the Weekly Standard, offers a piece that is provocative, but absurdly ill-researched and offensively inaccurate. Her use of readily identifiable bad “evidence” might be quaint if she were arguing an alternative theory on, say, the mating habits of lemurs. But she’s not. She’s making assertions that directly and negatively impact the lives of millions of women hoping against hope for a rational, competent and decent response to being made to suffer one of the ugliest crimes imaginable.As for why she’s doing so, it seems that she is challenging some aspects of feminism she finds irritating or unsatisfying- apparently that’s what Ms.Young does. That’s fine, but it doesn’t give her license to push on her readers myths and innuendo that amount to nothing—and ultimately cause harm to those affected by her proliferation of nonsense.As usual, she evokes straw-man “orthodox feminists” who “grudgingly admit” that women sometimes lie about being raped. Really? I am personally acquainted with dozens of feminists, consider myself to be one as well, and am familiar with most of the leaders of the feminist movement in this country where the issue of sexual violence is concerned. I’ve yet to meet a single person in this movement who will resist acknowledging that women and men sometimes lie about being sexually assaulted. It happens— no one disputes that. What educated and informed people do dispute, whether feminists or not, is the idea that women lie about sexual assault any more than anyone else lies about any other crime.That’s because they don’t.Young’s statement, “the fact remains that women do lie about rape much more often than the feminist party line allows” is based first on an assumption that there is a “feminist party line” at all (she cites nothing here in support of such a thing). From there she cites three things in support of her position: A misunderstood classification by the FBI, incredibly faulty research by a retired sociologist, and a brief series of anecdotes. The first two are easily debunked (the sociologist’s “research,” in particular, here). But serious analysis is not what Ms. Young wants, as it would belie her preconceived notions and agenda.  Her last attempt at making her point (the brief series of examples) perhaps serves to titillate, but says nothing about the reality of sexual violence.False reports are both horrific and criminal. People who make them should be dealt with harshly unless serious mental illness was at play in making the report. This, despite anything Young’s article will tell you, is exactly what happened in the infamous Duke Lacrosse case. The accused players were actually declared— in an extremely rare move— “innocent” rather than just “not guilty” by the Attorney General of North Carolina. But that same authority never sought to prosecute the woman who made the false claim.  Why? Because, in the opinion of AG Roy Cooper, she was extremely mentally ill, and might actually have believed her own account of events. So lo and behold, the supposedly evil woman that the rape-denial crowd would love to elevate to poster-child for all that “average Joes” have to fear in the complex world of dating and mating is frankly crazy. Her actions in March of 2006, like her life in general, constitute a tragedy, but not a crime. She is a dangerous and deranged person, but not the cold, calculating psychopath that rape-deniers would have the world believe.I am not suggesting that psychopathic or otherwise unscrupulous women and men do not exist and do not falsify accusations of sexual assault. It does happen. So does the falsification of burglaries and car theft for insurance payouts (at much higher rates, I suspect). Other than murder (where the victim can’t falsify personally) every crime imaginable has its fraudulent victims. But to suggest that women— in particular— lie about rape—  in particular— is simply baseless. Being thus, it should not be trumpeted as fact, or an educated suspicion, or a grounded theory, or anything else suggestive of serious consideration. It’s time to speak plainly. Enough is enough.

Making Sense of Evil

As I write this, only a few hours have passed since Isaiah Kalebu was sentenced by a judge in a Seattle courtroom to life without parole for the 2009 burglary, rape and murder involving Teresa Butz and her partner Jen Hopper.  Ms Hopper wrote one of the most moving pieces I’ve ever seen on what she’s been through and what she has faced as today’s date— August 12— has approached. Her grace, courage and profound humanity shine through every line, and I found myself close to tears for conflicting reasons as I read her words.I’m good at being conflicted.  The last time I wrote about Teresa Butz, the woman who died saving the life of her partner and would-be wife in a horrific rape-murder that took place in their home in 2009, I was struggling with faith. It had been going on for some time, drawn out by the unfortunate attribute God has of not arguing back at me. I am left to shake my fist at Him and get only blank silence in return. I’m hardly the first or last to experience it, but it’s frustrating to be so pathetically mortal and to want to understand this Being Whose will seems so capricious and inscrutable.And then the blessed gesture that is the Angel Band Project, the musical tribute to Teresa by her remarkably talented family and loved ones, emerged and prodded me back toward believing in an ordered universe, albeit one with a seriously incomprehensible order. I’m grateful for that prodding, because I needed it then and need it still now. And I stand in awe of Jen Hopper, the Butz family, the defendant’s mother, the involved professionals from the cops to the jurors, and everyone who endured the immense suffering that was the entire case of The State of Washington v. Isaiah Kalebu.But still, I must confess that I am profoundly troubled by what I suspect at times might be some perverse and insane cosmic attraction between the most pathological things in the spinning universe and the most angelic.  I don’t know how else to put it, but there is something beyond sick and sad about the collision of Isaiah Kalebu and two people like Teresa Butz and Jen Hopper.  There is something dreadful and almost eerily fated about it— as if the God we desperately depend on to temper the chaos of things is really an impish child with a wild mean streak who is actually ordering things in reverse.Maybe it’s just my selective perception, but I have worked with victims of the most egregious violence who were the most decent, kind and undeserving souls (not that anyone is deserving) of what happened to them.  Or, maybe the ordeal of survival, in some darkly logical way, draws forth extraordinary humanity and grace from the process itself. I don’t know what it is, but it seems to me on so many levels that, in a truly elegant universe, the love and life force, the deep humanity, the laughing, loving essence of a couple like Jen and Teresa would simply never co-exist with the monstrous pathology of Isaiah Kalebu.And yet he found their bathroom window on a quiet summer night in an otherwise safe, comfortable neighborhood.He then ripped a gaping hole in anything that would resemble a God-protected world.  He blasted a crater of despair, shock and utter agony that rippled through entire families, forever wounding them and the wider world beyond it. It can’t be possible for a single person- a pathetic failure at that- to wield that kind of power out of pure malevolence. But human history has literally been shaped as often as not with exactly that scenario.So the unspeakable question then creeps in on the raw edges of my thoughts as I try to sleep. Is this the way it happens?  Is there some miserable ying-yang that exists to flat-out impede the forward progress in the world that a couple like Teresa and Jen frankly embodied?  I don’t know. I’ll never know- not in this life. And maybe I need to reflect more on what I’ve already celebrated— the beauty of Angel Band, the resilience of Jen Hopper, the Butz family and everyone involved. That, God willing, is where the balance lies for an evil act like that which happened on 7/19/09.But Christ, I wish none of this had happened.For some odd reason, I was most affected- positively and negatively- when I read in Ms. Hopper’s piece that she has a new girlfriend.  I don't know why— it's so beautiful and yet so sad at the same time.  It's exactly what should happen and what does happen as life moves us all through its brutal corridors, of course.  And yet it signals to me an even more final end to Jen and Teresa than what took place on 7/19/09. I guess it’s really a mourning of the third victim of that miserable night: It’s the victim that was the relationship and love affair the two of them had; a thing that was, as all great things are, much more than the sum of its parts.Springsteen once wrote that “everything dies baby, that’s a fact. But maybe everything that dies, someday comes back.”So maybe that’s it. What Jen is forging now, personally and professionally, what Angel Band is creating, what fight-the-fear campaign is inspiring, what Voices and Faces is doing, maybe these are the life-forces that Teresa gave her life for.  Maybe these efforts and advances are the beautiful, defiant thrust toward sanity that restores the balance and ultimately rights the wrongs.I hope that’s the case.  And I guess if I still hope, then all is not lost.

"Modest Reforms" for Rape Cases, and Why They're A Bad Idea

Last week, a high-powered Florida trial attorney named Roy Black penned a piece in Salon.com in which he argued for "modest reforms" in how sexual assault cases are charged and tried. Black successfully defended William Kennedy Smith in 1991, when he was a little younger than I am now.  He has defended Rush Limbaugh, trans-national corporations and thousands of other entities in an over 40 year career.He has my admiration for being a zealous advocate.  He's dead wrong on the reforms he calls for.He's of course correct that we should protect those accused of rape. Safeguards of due process and a presumption of innocence are crucial to American justice, in sex assault cases as much as any other. Similarly, there is reasonableness and even some sympathy in his arguments regarding the media attention and rush to judgment some sexual assault accusations generate, particularly involving celebrities. But the rush to judgment is a two-way street.  As my friend and colleague Anne Munch notes, the "rush" is usually around the victim being a presumed a liar or slut.  Kobe Bryant is classic example of this.  Analysis of media coverage in the first 5 months following the charge against him is an astonishing example of a rush to judgment by people completely unfamiliar with the case or the victim.   Hundreds of people issued death threats against her for reporting in the first place.Black's other arguments are a tired recitation of rape mythology, particularly where he asserts, both with innuendo and flawed research, that accusations of sexual violence are commonly false (they are in fact no more common at most than false reports of any other crime) and easy to level at innocent men. These two baseless claims are what underpin the “modest reforms” he suggests.At the outset, it’s important to note that Black and many defense attorneys probably want these myths to remain firmly embedded in the American psyche; hence his reliance on false allegation studies so deeply flawed they are critiqued even on Wikipedia, to which his essay links.  Also misleading are his use of statistics from the FBI; classification differences and unreliable input are behind the disparity noted between rape and other crimes tracked by that agency.The more these myths continue to find purchase in what is essentially a national jury pool, the more easily acquittals are achieved. Defense attorneys must be focused on protecting their clients from criminal liability by all legal and ethical means. It's not legally unethical to appeal to long-standing but patently untrue myths surrounding sexual violence. But perpetrating myths doesn’t make them any less false or damaging. Thus, every one of Black’s “reforms” would create not an acknowledgement of reality, but rather a return to a time where reality was cloaked in myth--  myth that protected perpetrators, silenced victims, and helped to further truncate and fracture lives already altered by sexual violence.The idea that rape is an accusation “easily made but not easily defended,” for instance, never existed in reality, but only in the minds of men who could enforce this paranoid fantasy in courts of law.  In fact, most victims don’t report being sexually assaulted; it remains a chronically under-reported crime and a tiny percentage of victims ever see their rapists legally punished.  Those who dare to report, like the women who accused Kobe Bryant and Dominique Strauss-Kahn, have found their lives ripped apart and turned upside down.Similarly, “Rape Shield” laws do not prevent cross-examination of a victim on conduct that is legitimately relevant. Several exceptions exist in every jurisdiction, including a catch-all, “in the interests of justice” one in some states allowing almost any type of questioning under certain circumstances. What appropriate Rape Shield laws do is prevent perversely placing the victim on trial for behavior, dress or reputation that don’t speak to whether she consented to a sex act, but that serve to demonize her in a way that makes legally vindicating her less compelling. It's a nullification tactic: If the victim can be made to look like “she was asking for it,” or that she isn't of sufficient moral character, then a jury is less likely to convict even if they believe a crime was perpetrated.Hand in hand with this tactic is Black’s suggestion that intoxication on the part of the accused be viewed the same way as on the part of the victim.  Nonsense. Alcohol is a diversion, however unhealthy, for victims.  It is a weapon for perpetrators, commonly wielded to reduce resistance, cloud perception, impugn character, and negate suspicion by disguising the crime as a misunderstanding.  Perpetrators are not otherwise upstanding citizens possessed by “demon rum.” Alcohol facilitates rape. It does not cause rape.Even more bizarre is the suggestion that corroboration and some showing of force or a threat be present before a case is filed. These two antiquated rules rested on the utterly inaccurate belief that “real” rape necessarily involves physical injury, the use of weapons, and intuitive reactions on the part of the victim. In fact, most men who rape use only the force necessary to accomplish the act, and do not use weapons or violence. Physical injury is rare. Victims display a wide range of emotional reactions, some of which don’t fit the expectations of people unfamiliar with sexual violence dynamics.Allowing myths to prevent justice in sexual violence cases can affect more than the interests of the immediate victim. It also allows perpetrators to continue to offend. Recent and replicated research documents that most rapists are serial rapists, whether their MO is to attack strangers or victims they know. When myth-based legal tactics allow a perpetrator to escape justice, there is significant reason to believe he’ll strike again.Inaccurate perceptions and myths also serve to re-victimize rape survivors in hideous ways. Valid victims have been jailed for filing false reports because authority figures wrongly believed they were lying. These mistakes have done more than unfairly punish victims; in some cases they have allowed rapists to strike again, even to the point of murder. My organization's Start By Believing campaign in part addresses these miscarriages of justice in an effort to prevent them.It is fair to ask what is gained for a truth-seeking system of justice by things like the “perp-walk” before cameras. Reforms in how we respond to the unblinking eye of the media cycle where high profile crime is concerned are worth considering. But these reforms should not be conflated with suggestions that seek not to level the playing field, but rather to tilt it further in favor of perpetrators who, in so many ways, elude justice enough already.

Homeschooling, Risk, and Grand Canyon

“Grand Canyon,” from 1991, is one of my favorite movies of all time. In it, Mary McDonnell’s character says in exasperation to Kevin Kline’s, “there are people ready to shoot you if you look at them. And we are getting used to it.”That time was, by most markers, the terrifying crest of the crime wave that began sometime around the year I was born. Although it looked hopeless, it did recede, and continues to do so at a gratifying rate. This is thanks to many factors including some heroic policing, public investment, and the efforts of social workers, prosecutors, civic groups and faith-based organizations nationwide.Also dropping are child abuse rates, and to the extent I’ve been able to assist in this effort I’m deeply gratified. But recently a spate of sickening stories have me again scratching my head. The new, terrifying zeitgeist in child abuse seems to be torture, caging, and starvation, accomplished behind closed doors.  In a particularly horrific, four victim case of out Washington DC in 2008, and at least one case I consulted on recently, the slow murder was carried out under the guise of homeschooling.  I’m at the point, especially after the latest rapid fire examples of kids kept caged and hidden, where I’m ready to declare that there are children being starved to death by our neighbors and under our noses, and we are getting used to it.The case I consulted on involved an otherwise healthy 10 year-old boy, literally starved to death by his mother and step-father. The post-mortem photographs of the child were nothing short of shocking to the group reviewing the case, and we don’t shock easily. The child was visibly emaciated and obviously near collapse if not death. For the final months of his life, though, as his condition steadily worsened, he wasn’t noticed by anyone outside of his household. That’s because he rarely left the house. Since school was ostensibly at home, there was no need for him to do so.At the outset, please understand I am not against homeschooling. Two college friends of mine, a couple, have homeschooled four children with great success. This is primarily because Kathleen, the primary educator, is brilliant, nurturing and highly educated herself. The issue with homeschooling, as with many practices, is less essential and more procedural. If done right, homeschooling seems to work quite well according to some studies.But when the wrong parent or parents homeschool, the results can be far worse than “just” a badly educated child. An abusive parent who homeschools has more than a captive audience; he or she also has essentially a caged one. Homeschooled children don’t report to an institution- public or private- on a daily basis where signs of abuse or neglect might be noticed. Mandatory reporting laws now exist in every state and require teachers and others in the community who professionally interact with children to report suspected abuse or neglect to authorities.  Those laws won’t reach into a homeschool setting, however. Every state has different ways of regulating the homeschool response to compulsory education laws. But none, to my knowledge, require parents of homeschooled children to provide, to any civil authority, any sort of recurring evidence that a child is simply healthy and growing normally in terms of physical well-being (as opposed to academic, moral or civic).Of course, homeschooling advocates with libertarian tendencies would most certainly bristle at such a requirement. The idea of having to essentially present one’s child to the government (in some shape or form) at regular intervals is something a large segment of the population would view with alarm and suspicion. Additionally, homeschooling advocates will point (fairly) to the disturbing statistics on how much harm visits children in traditional school settings each year.  Where homeschooling requirements are concerned, they’ll point to studies suggesting that more stringent regulations on homeschoolers aren’t scientifically proven to produce better results. The argument then goes that the trend toward parental freedom to educate children as parents see fit is a positive one.This debate is worth having, as is the one sparked by libertarians and the like-minded who believe that most things run or mandated by government are grossly inefficient at least and harmful at worst. And beyond this, a growing number of Americans seem to simply favor freedom over regimentation even in the face of the accompanying risks.Fair enough, but children are not abstract statistics, ideals, or the products of breezy discussion. They are breathing human beings who need at rock bottom a certain calorie count every day and who bleed, bruise, suffer and perish when injured profoundly enough.Government can’t and shouldn’t be expected to have the primary responsibility for child rearing, and I’m not about to suggest any model to replace what we generally know as the family unit. It’s simply an undeniable fact that when we extend to parents more and more freedom over the fates of their children with no backstop in the form of a communal place for them to assemble at least periodically, we risk losing them to an unobserved and sometimes shockingly cruel fate. Traditional schools and the laws that empower them are no panacea to child abuse, but they at least allow for an opportunity for abuse to be detected.In the case of the child I consulted on recently, his parents gave written statements that demonstrated vividly their utter inability to educate anyone, themselves included. The image of their child, unspeakably gaunt, graying and lifeless on a morgue slab, bespoke their view of him as a living being.  What liberty may seem to philosophically demand, or what trends may be suggesting in academia are immaterial to him now, and they won’t bring him back. A teacher or fellow student at a traditional school certainly might have harmed him as well, but more likely they might have alerted others to his circumstances before it was too late.  Instead, he died behind doors closed to the community around him.  At home.

Casey Anthony, and Where to Put Your Anger

A terrific character actor named Daniel Benzali once scored a role on NYPD Blue (it led to an OJ-inspired 90’s TV series) where he played a marquis defense attorney with a shady reputation. When dispatched to help a cop charged with murder, the client initially rejects him, stating that she wants no part of an attorney with his reputation defending her. Benzali’s character smiles and delivers one of the most brilliant lines I’ve heard describing bare-knuckle trial law: “That’s entry level perception, detective. Reputations swiftly give way to the skill of the practitioner once the doors of the courtroom are closed.”  Amen.I wasn’t there to witness Jose Baez’s advocacy on the Casey Anthony case. But I know from the coverage that he and his team brilliantly exploited an alternative explanation for her child’s death, and in so doing painstakingly and methodically generated the necessary amount of precious doubt necessary for 12 Florida citizens to utter “not guilty” on charges of murder. Perhaps, as some have claimed, the jury was cowardly or malfeasant in ignoring the legal weight of circumstantial evidence. Perhaps they were collectively cynical or stupid, as some have speculated. The declaration by one of them to the gossip site TMZ that he’d talk about the case but only if he was paid to do so certainly lends some credibility to that theory. But all of this is beside the point.  Baez did his job.As offensive as it is to many, Baez is technically correct when he claims he could tell his daughter after the trial that he “saved a life today.” He did.  The state of Florida, under its death penalty statute, sought to end the life of Casey Anthony for the murder of her daughter. Baez and his team stopped that from happening. In pretty much every sense of the word, he is correct.I happen to wish Baez had failed. I believe Casey Anthony is a psychopathic killer, and I know how to use the term “psychopath” professionally, not just colloquially. It’s not easy to find a doctor who will do a permanent tubal ligation on a 25 year-old woman, but despite what my religion commands I hope she gets one. I’d very much prefer that she bring no further children into the world, as I am convinced that she will snuff out their lives as quickly as she snuffed out Caylee’s once they become inconvenient. That’s what psychopaths do with things, living or dead, that inconvenience them. They remove them. The creativity, skill and labor they must engage in to eliminate the obstacle differs depending on its nature. But the underlying drive is the same.But none of this was Jose Baez’s concern, nor should it have ever been. He was rightfully focused on his client alone, protecting her as best he could from the efforts of the state to imprison and execute her. That’s how the system works. Baez stated publicly after the trial that his client did not murder her child, and perhaps he believes that. But frankly, he doesn’t have to. Far more offensive were the crass remarks of co-counsel Cheney Mason who insinuated that the media had engaged in “character assassination,” presumably with regard to Casey. Note to Mr. Mason: Your client was not found “innocent.”  She was found “not guilty,” meaning that the government failed, in the jury’s determination, to meet an extremely heavy burden regarding her legal guilt. They adjudicated that question in the negative, and thus it is legally correct that Casey go free for those charges. Whether it is morally correct, logically correct or factually correct is beside the point. The verdict addresses none of these questions.In terms of what disgusts me, (other than what I believe were the actions of Casey herself), I can’t help but mention the fixation this country had for this particular case when children suffer fates like Caylee’s every day across 3.8 million square miles of America and generate no media frenzy. It’s perhaps awkward but no less accurate to note that Caylee herself was a white, physically beautiful child, and her mother a telegenic, thin, and yes -sexy- woman. The media hyped photographs of Casey (other than the ones with evidentiary value) showing her taunting the camera with pursed lips in Halloween costumes or football jerseys were no accident. There are certainly aspects of this case- the search efforts, the slowly leaked details regarding evidence and litigation- that made it particularly compelling.  But ultimately, when it comes to what sells copy and gets people to tune in, the murderer is more interesting, and so is her act, when both she and her victim are photogenic and culturally appealing.Baez acknowledged correctly that there were no winners in the the State of Florida v. Casey Anthony. His mini-rant regarding the death penalty was misplaced as the issue wasn’t reached in this case, but his other remarks, including the tender message in Spanish to his mother and family, were appropriate. His statement about the American Constitution was particularly spot-on, regardless of his point of view. Casey Anthony was tried, competently and at great cost, in a public trial by the representatives of an elected attorney empowered to bring the force of the law and its iron accouterments against one citizen. Efforts to prove her guilt to an appropriately lofty standard failed. Out she goes, then, into the stream of life with the rest of us.Casey Anthony, it can be compellingly argued, will not face justice in this life. But as a prosecutor I learned a long time ago that earthly justice is a “long ball” concept that must be viewed separately from any particular case.If you are among the many, many people convinced that justice was not done in this case, I beg you: take that long view. Let Caylee’s fate not be in vain by raising your own awareness and that of others to children everywhere who suffer neglect, abuse and death in cases less titillating but no less horrific. Support groups that fight for the lives of children. I’ve listed a few below, but it is by no means exhaustive.The greatest gift of faith, to me anyway, is the impish games it plays with the blunt force of words in our language; the ones I’ve been battered with as an attorney for 15 years.“Caylee is dead.”“Casey is free.”Examine those two statements through the prism of a God-gifted, God-ordained and God-ordered world, and they are not so horrific, offensive, or final.Again.  Amen.National Child Protection Training CenterNational Center for Missing And Exploited ChildrenLove Our Children USANational Center for Prosecution of Child Abuse

Developments in the DSK Case: What They Mean And What They Don't

Review the closing arguments of the sex assault cases I prosecuted over the years and here’s the most oft-used quote you’ll find: “We don’t get our victims from Central Casting. We get them from life. Gritty, unrehearsed, unvarnished life.”I stole this theme from the senior ACA’s in Alexandria, Virginia who trained me. Smart prosecutors have been using it for decades to remind jurors that, indeed, law reflects life and not the other way around. Victims of crime are not perfect, angelic beings whose mistake-free lives are marred by the offense like a wedding gown hit with a tumbling glass of Merlot.Except that in sexual violence cases, it appears they have to be.Two things noteworthy have occurred in the DSK case this week: One is the apparent fact that the victim has lied to investigators about her past, the circumstances of her life, and some details of what she did immediately after the incident.  The other is that the Manhattan District Attorney’s Office did not oppose DSK’s release from house arrest. Both things signal trouble for the case, meaning whether the elements of a crime can be proven beyond a reasonable doubt in a court of law. But neither has a thing to do with whether an offense actually occurred.Regardless, many in the media (the Washington Post’s Kathleen Parker among them) are now conflating the undeniable weaknesses in the legal case and the DA’s reaction to them with the sure-fire notion that, in fact, it’s just another false allegation and we all rushed to judgment way too quickly. We must, after all, remember Duke Lacrosse.Remember Duke Lacrosse: A rallying cry that will do more to shelter rapists for the next generation than any force on earth could hope to accomplish.I’m not saying there isn’t a chance that the allegations are untrue. I’ve never held that opinion and wouldn’t unless I was an eye-witness to the crime itself.  I have said, and still maintain, that there is no compelling reason to disbelieve what the victim has asserted (at its core) and still asserts. This is not simply because of who I am and what I do. It’s because of what I know about the dynamics involved, DSK’s past and well established reputation, and what the victim stood to lose (and now has lost) by reporting in the first place. She’s now fully exposed and will likely endure intense legal scrutiny for the measures she took to get to this country, and then to get by while she’s been here. Such is the continuing tragedy of being poor, displaced and desperate. It doesn’t excuse wrongdoing, but it’s a cold-hearted person indeed who rejects that it at least explains it.She memorized a cassette tape someone else gave her depicting a gang rape in order to make an application for asylum more attractive. Yes, I imagine she did. People the world over have done far worse for political sanctuary, sometimes for highly sympathetic reasons.  She lied on a tax return in order to secure a larger refund. Wrong? Yes. Common? Remarkably. Inexcusable? For a widowed single mother working as a hotel maid in one of the world’s most expensive cities?  You decide. The association she might have with drug dealers and money launderers is certainly worse, but again- what does any of it have to do with whether she was actually assaulted?Of greater concern, of course, are the lies she apparently told about what she did immediately after the incident and before reporting it. Since those actions relate to the investigation, for some they are clear red flags signaling a false report.  Except that, in and of themselves, they’re not. Did she clean another room before reporting the assault? Probably- it’s remarkably common for victims of trauma to act in confusing, counter-intuitive ways following the event. Resuming normal, mundane activities is in fact a very common one. But since most people aren’t schooled in the neurobiology of trauma, might a person lie about her reaction, fearing it will be seen as nonsensical and thus indicative of a false complaint? Might a person panic and lie for a better impression?Hell, yes.Victims reporting truthful attacks lie all the time about peripheral details. They lie about what they drank, whether they invited an offender into a room, what they wore, who they left with, etc, etc, etc. They do it because they are terrified of being judged, having their complaint disregarded, appearing foolish, or just because they’d prefer to have done something different. And some valid victims are- perish the thought- people who simply often lie, for a million reasons from their circumstances to plain-old low character. It makes their cases harder to prosecute. It does not make them any less valid.DA Vance has reacted appropriately given his ethical duties and the legal realities facing him. For now at least, his office continues to prosecute its case. Unless and until something else surfaces that I don’t know about, it has good reason to do so. DSK lied also; until the wonder of DNA forced his hand, he denied sexual contact with the victim. As my friend and colleague Jaclyn Friedman points out, this is deeply disturbing since DSK’s wife apparently has no issue with her husband’s penchant for “seduction.” Given this fact and many others, I am not ready to dismiss this allegation or flagellate myself for “rushing to judgment.”What I will do is lament the ugly confusion so many people are mired in regarding legal difficulties versus actual guilt or innocence. And I’ll lament the increasingly binary distinction we’re making with women and men who report sexual violence. They come forward and dare- and I mean “dare” in every sense of the word- to report what happened to them. They then face, at very best, two fates: They are either perfect and thus (perhaps) supported, or they are revealed to be imperfect, sometimes even deeply flawed, and thus discarded as liars. Never mind that predators sometimes target people with real or perceived imperfections exactly because it renders them even more powerless.So the message ought to be damn clear for the next hotel maid, accountant, bus driver, surgeon, prostitute, college student, barber, cop, etc, etc, who is sexually attacked: Unless you’re perfect, don’t tell anyone.Don't dare.

Hurt and Grace: An Open Letter to An Attorney

Mr. Michael Grace, Esq, Attorney at Law

Grace, Tisdale and Clifton, PA

Winston-Salem, North Carolina

Dear Mr. Grace:‘Hurt,’ the word itself, is ancient, and typical of the blunt, mono-syllabic terms we get from the rough German parentage of English. ‘Grace,’ as you may know, from the Latin “gratia,” is a beautiful word (hence it’s choice as a name for girls) and an even more beautiful concept. These two words are also surnames, one belonging to you and one to the young woman you have viciously smeared of late, Ms. Margaret “Maggie” Hurt.Maggie, as you know, was a student at Wake Forest University in Winston-Salem and a member of the school’s pep band.  She traveled with WFU’s men’s basketball team in 2009 to the NCAA Final Four tournament in Miami, Florida.  While on the trip, she reported being sexually assaulted by two men in concert, one who forced her to perform fellatio in a hotel bathroom while the other watched the door. Both were star players on the team. Friends and family eventually convinced her to report the incident to campus police once she was back at school. According to her, they informed her that the best course of action (and her only option) was to pursue an internal, student judicial disciplinary process against the two students.  She did so.In a letter attributed to Maggie Hurt's mother, she claims the two accused students brought an attorney to the internal disciplinary hearing.  If you were the one they brought, I assume you came as an advisor, although student judicial hearing procedures I found don't seem to allow for accused students to bring non-student advisors to hearings.  Ms. Hurt, to my knowledge, had no such legal firepower with her.When she appeared on the Today show late last month, she recounted an ordeal whereby she, and not your clients, were put on trial, and where the entire process left her not only unvindicated but humiliated. The hearing, predictably, focused on her behavior and not on the behavior of the accused students.  Your clients were found not responsible and the matter was dropped. Ms. Hurt then reported the crime officially to the police department in Miami, but the DA’s office there declined to prosecute citing a lack of corroborating evidence.Nothing I’ve recounted so far is atypical. A woman was, by all appearances, sexually assaulted by star athletes and fellow students. For several time-honored and understandable reasons, she did not immediately report the assault where she was, on a school trip.  When she finally did report back at her home campus, the matter was considered and discarded by an internal school disciplinary process most likely unequipped to handle claims of profound sexual abuse and possibly biased in favor of the athletes. The frustrated victim then finally reached out to criminal justice authorities where the crime actually happened, only to find that the matter could not be pursued because so much time had passed and no corroborating evidence was obtainable.Such is the typical fate of the small fraction of women who actually report sexual violence (particularly in the college context involving athletes) to authorities of any kind.What’s stunning to me, though, are your comments, Mr. Grace, in response Ms. Hurt’s appearance on the Today show.  You are a highly respected defense attorney and have been a member of the North Carolina bar for almost 35 years. Yet you claimed to a major local newspaper last month that Ms. Hurt made “bad judgments” on the night of the incident. Specifically, you informed the media of your belief that she engaged in sex hours before the incident in question with another student band member and talked about it with others. You then clarified that this, of course, “didn’t make her promiscuous.”Thank you, counselor, for that clarification.  But I must ask why you have exhibited, in a professional capacity, such breathtaking and needless cruelty toward the complainant in this case?  You know very well that the sexual liaisons you accuse Ms. Hurt of engaging in (assuming they are even true) would likely never have become admissible in any criminal court of law. So why did you choose to smear her with this hearsay two years after you successfully deflected any sanctions against your clients? No one faults you for zealously representing your clients, but why seek to portray her publicly this way on information that is surely hearsay at best?Further, where exactly do you see the legal relevance of anything you claim about Ms. Hurt?  Do you really believe that, even if she did engage in sex with another student hours before the incident in question, that she therefore logically must have consented to your clients’ advances, hours later, that she denies were consensual?  Do you really draw a logical link between sexual activity in one place and time (where no complaint of assault was made) and sexual activity in another place and time simply because of what you perceive to be the character of the woman involved?  That is remarkably myopic, but believable. Or, are you simply vitiating Maggie Hurt because it somehow continues to be expedient in some effort to paint her publicly as a whore who views a sexual encounter as casually as a trip to a soda machine?I will no doubt be criticized for taking offense to your comments, assuming you truly believe your clients were wrongly accused.  Fair enough; understanding that I know much less about the case than you do (from your clients' perspective anyway) I believe Maggie Hurt’s allegations, and I believe them for reasons borne of common sense rather than blind zealousness or ardor. I fail to see what Maggie Hart gained by reporting this incident falsely to WFU authorities and then the criminal justice system months later. I detect nothing in her demeanor, her account or her history that would cause me to doubt what she claims to be true.But what I know or don’t know is somewhat beside the point, sir. I write critically because I saw absolutely nothing in your comments about Maggie Hurt that would ever, in any way, advance a legal theory supporting your clients’ innocence. Instead, I see rank vindictiveness on a scale frankly unbecoming of your status as a litigator and member of the bar, Mr. Grace.Such is the cosmic irony at play here.  Ms. Hurt, in my view, has been quite graceful.  You, counselor, have been unduly hurtful.  Given your stature, success and outstanding reputation, I'm at a loss as to why.Respectfully,Roger Canaff

NYPD and Sexual Assault: What Now?

Surprisingly to some, not all prosecutors like police officers. Many see them as dubious moral arbiters with too much power. Necessary, perhaps, but not to be trusted. I don’t have this view; cops are a big part of why I was drawn to law enforcement. I’ve been blessed, in Virginia and New York, to have worked with and befriended some of the best, most decent, heroic and dedicated professionals I’ve ever known in uniform. But over the years I have developed a more or less binary view of policemen and women: A good cop is a treasure, and one of the things that holds a decent society together in a very real sense.  A bad cop is a menace. He rips at the same societal fabric more directly than elected officials, judges, or anyone else in the system. For better or worse, cops work where the rubber meets the road. They interact with the public intimately, and when they betray that public, it’s unforgivable.I’m occasionally challenged by people (most of them not cops, by the way) who accuse me of setting an unrealistic standard for a profession particularly when I’ve never had to do the job. I simply shrug. I’ve known too many cops who deal with the pressure and the misery and still maintain their integrity. And I’m sorry, but the stakes are too high. Police officers are imperfect and expected to be. I don’t write them off for the kinds of moral failures we all struggle with. But I can’t stomach cops who lie, bully, sell their badges or worse, and on the rare occasions when I saw behavior like that as a DA, I called it out.For Kenneth Moreno and Franklin Mata, the two NYPD officers acquitted of rape in Manhattan last week, the term “disgrace” isn’t strong enough, and neither is “menace.” I don’t personally know Coleen Balbert, the principal ADA on the case, but I have worked with DANY’s (District Attorney, New York County) sex crimes unit over the years and I know it to be professional and highly skilled. From media reports, I gather that Balbert and her team did an excellent job.In particular, I have worked closely with Karen Carroll, the Sex Assault Nurse Examiner who was called to explain the significance of the cervical injuries the victim suffered. Carroll is one of the most respected and astute SANEs in New York State and testifies with a skill and presence that is remarkable to see. On that issue at least, I can say personally that the team brought in the very best. Additionally, the victim’s testimony was apparently consistent and compelling. Moreno admitted to using a condom in a recorded conversation with her. Both defendants made asinine and offensive statements in testimony, and Balbert appears to have made the most of them on cross. There was virtually no question they committed relatively minor offenses as a part of their plan to victimize her (and were actually convicted of them). Their excuses for how they acted, Moreno’s explanation in particular, was laughably insulting.But for the rape charges, it wasn’t enough.The jurors who have spoken appear to have wanted more, particularly DNA evidence, which has led many to speculate that the prosecution was undone by the so-called “CSI effect” where juries expect and demand physical evidence to prove the case to a scientific certainty. The use of a condom explains a lack of DNA as I’m sure was made clear. Likewise, I imagine the jury was instructed that testimony by itself and without more is evidence enough to convict if it’s considered sufficiently convincing. Still, jurors appear to have reduced the facts to a “he said-she said” stalemate despite explanations and excuses that seemed ludicrous.One thing that might have cost the prosecution is the timing of the victim’s multimillion dollar civil suit against the city.  It’s not inappropriate if she has a strong case, but most DA’s prefer it when a victim waits until the criminal case ends before suing civilly. Otherwise, a “gold digger” defense can be peddled exactly as it was here. That scenario- a woman who seduces an authority figure of some kind and then seeks a payout by crying rape- is remarkably rare, but it’s a common and persistent rape myth that wins cases. Couple it with a woman who was out drinking, allegedly dimming her perception and probably costing her credibility, and it’s less difficult to settle on a ‘not guilty’ verdict.There’s time now for the ADA’s involved to reflect on what could have been done differently, and if they’re anything like me they’ll do so for quite a while. What’s more important, though, is that they had the courage and respect for the victim to go forward, not only for her but for the entire community. That’s what courageous DA’s do, and that courage is harder to summon in sex cases than most other types of crime.As for the NYPD, it is probably the most wounded entity in the aftermath of this crime after the victim herself. Commissioner Kelley did the right thing here, but his institution must remain on its highest guard against menaces like these two, one of whom was on the job 17 years. Criminals like Moreno and Mata don’t always provide warning signs to their superiors in the form of various kinds of lesser bad behavior, but they often do. I have no idea if they did in this case, but the NYPD would be well advised to comb through the records and pasts of both of these men in search of missed clues. Going forward, that information might prevent another damaging black eye for an otherwise good and respected department.There are nearly 40,000 sworn NYPD officers, the vast majority of whom shouldn’t be stained with the actions of these two. More importantly, there are literally millions of women in New York who shouldn’t be afraid to place themselves in the care of the NYPD when they are in need, regardless of how the need arose. But for the time being, fear is exactly what many women will experience when police approach offering help. It’s up to the NYPD to do its level best to reverse that fear and continue to do what it does best.

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

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

To Parents of Gay Youth: When Support Disappears, Risk Skyrockets

My nephew Davis Matthew, now three, was in my sister’s arms shortly after he was born when she made an oddly loving declaration regarding him. Standing next to my brother-in-law, who is a Marine reservist, an Iraq war veteran and a fairly conservative guy, she stressed “we’re okay if Davis is gay!” I can’t remember the context of the conversation and I know it was kind of a tongue-in-cheek moment, but she was serious, and to his credit my brother-in-law just shrugged and smiled.Coming to terms with the idea that one’s child is other than heterosexual can be monumentally difficult, and it’s not the mark of a homophobe or a bad parent to feel an actual sense of loss at the realization.  My friend Al Killen-Harvey, a clinical social worker and expert in this area, puts it brilliantly (hear the interview here) when he says that some parents, when they discover their child is gay, actually have to grieve.  He’s careful to point out that what’s being grieved for isn’t an actual loss (a gay kid is as much a blessing as a straight one) but a loss due to the heterosexually focused mindset that most of us grow up with. It might be religiously based, or it might be cultural. And it doesn’t always smack of bigotry either. There are many people who are friendly or neutral toward homosexuality, but still hope their kids are straight simply because it seems like the simpler and happier way to be. And perhaps they also know (or suspect) how difficult the life of a gay person can be.The bottom line is that it’s okay for a parent to be afraid, disappointed, even angry when a child presents as gay, questioning, or anywhere else on the spectrum other than straight. There are resources like PFLAG for parents going through that process.  When the truth reaches the parent, though, one thing is certain: If that parent loves his son or daughter, he (or she) will have to learn to respond somehow in a supportive way.  To succumb to anything else-regardless of the reason- is to risk that child’s health, happiness and life, in very real terms.It’s self-evident that bullying, even in a much more enlightened age than my own youth, is a serious issue for for gay, questioning or transgendered kids.  Thankfully, resources like Love Our Children's anti-bullying campaign exist to combat it better than ever.  Crime victimization is another real threat. Some assume “gay bashing” is the issue, and certainly cases like Matthew Shepard’s highlight this (as does the more recent case of a transgendered woman who was viciously beaten in Maryland). But oftentimes the victimization doesn’t come from violent homophobes, but rather much more subtle and skilled predators of varying sexual orientations.  A few gay people I know say that a homosexual, bi, or questioning teen’s worst threat is often an older gay counterpart, in terms of anything from contracting a STD to just being left broke and brokenhearted by an unscrupulous lover.But the risk to young gay people hardly ends with these two scenarios. What’s often overlooked but no less true is that criminals of all kinds will readily prey on gay kids, particularly when closeted.  This is simply because they are logical targets, and for any type of crime from fraud to assault to rape.  An adolescent with 1) less wherewithal, street smarts and survival skills and 2) a secret to keep, makes a great victim. Particularly if a predator can involve himself physically with the youth (and he doesn’t have to be homosexual to do so) then he has leverage over that victim and therefore a much lower risk of him or her reporting the crime to anyone. Successful predators aren’t all geniuses; they’re just remarkably observant and methodical.What’s worse is that all of these risks- from heartbreak to murder and suicide- increase dramatically when the emerging gay boy or girl is rejected or unsupported by the people he or she needs most. Throw away kids, runaways, even kids still living at home who feel as if their most natural protectors don’t care about them or worse?  These are potential victims that predators sense the way a shark smells blood in water.I understand completely that issues surrounding sexuality are difficult for some, particularly when cultural or religious influences play a part. I’m not about to judge how a good-hearted person views homosexuality given these strong and deep inferences. But those convictions, whatever they are, are very much beside the point when a kid’s well being is at stake. I don’t believe a parent has to fully embrace an orientation they feel strongly is disordered or negative in order to continue to love and support their child.  Whatever the proper balance is, it’s beyond my expertise to discuss.But I do have a career’s worth of expertise in victimization, and I know well how it works.  If you’re a parent, whatever your feelings are about homosexuality, whatever your religion commands of you, your reason dictates, your heart feels is true, know this: If you reject your child upon his coming out (in whatever form it takes) if you fail to shelter him, to love him, to protect him, you’ll put him (or her) at tremendous risk from a world that is remarkably cruel- surprisingly so to some who don’t see it as those in law enforcement do. Predators are everywhere.  When we give them a marginalized, isolated group of relatively defenseless people to victimize, we’re foolish or blind to believe they won’t.Trust me, a predator won’t give a damn about why you couldn’t bring yourself to love and support your child when you discovered he was gay. He’ll just take what he can from him and move merrily on. Don't make it easy for him to do so.

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

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

Sexting, Children, and the Law

I was 24 when I first heard the term “Internet,” still years from its daily use. I bought my first iphone this year at 43. In short, I missed out on the wonder, ease and power of electronic communication and information sharing as a kid.  But as well I was spared the dark side of these advancements. I was hardly a ladies’ man as a teenager; quite the opposite. In spite of this, or maybe because of it, I shudder to think what damage I could have done to myself armed with the power to communicate as it exists today.“Sexting,” basically the phenomenon of exchanging texts and photos of a sexual nature, is probably the most dangerous practice a kid can engage in with a phone under normal circumstances.  The cocktail that encourages it is nearly irresistible: The impulsiveness and short-sightedness of adolescence combined with a ridiculous ease of execution. Smartphones, now nearly universal, allow for the transfer of self-taken photographs within seconds.The practice struck a very mean blow to a group of children near Olympia, Washington late last year when an 8th grade girl took a frontal nude photo of herself and texted it to her then boyfriend.  The boyfriend, a few weeks later and after the two had “broken up,” shared it with another girl, this one a former friend of the one who snapped the picture. The girl who got the photo then did something else remarkably cruel, but also remarkably easy in the modern world of electronic communication: She attached a message (in part reading “Ho Alert”) and instantly forwarded the photo to her entire contacts list.The fallout was, not surprisingly, instantaneous and horrific. The photographed girl was ostracized and humiliated.  The school where all three attended erupted.  Parents panicked and demanded action, and action followed.  The two children who distributed the picture (plus a third who assisted) were eventually arrested and charged with felonies in Washington State.  The felony was for distribution of child pornography, given that the girl in the photo was 14.Ultimately, Rick Peters, the deputy DA who handled the case, did something I did several times as a juvenile prosecutor (although I never handled a case like this one- in the final years of the 20th century most cell phones lacked cameras). Peters reduced the charges to misdemeanor telephone harassment and allowed the kids into a program that will eventually see the cases dismissed.Two questions have arisen from the prosecutorial decisions in this case.  The first is whether the law should have been brought to bear at all.  The second is whether, if charges were to be brought, why they weren’t brought against the girl who photographed herself.Answering the second question first, regardless of who else was charged, I believe sparing the girl with the camera was the right move.  She was, as Peters pointed out, severely punished as it was.  In addition to the scarcely imaginable humiliation she’s experienced, she’ll continue to live with the reality of the photograph traveling cyberspace as it does to this day- and not just in theory but in schools near hers. Regardless of the fact that she made a decision, in effect, to manufacture child pornography, I see no imbalance in sparing her charges while bringing them against the distributors. Yes, she’s technically guilty of a crime.  But she’s much more a victim, and therefore the value in charging her is senseless and cruel. Conversely, the kids who made the decision to send the picture, and in particular the one who attached the offensive message and distributed to multiple kids at once, deserve to have been scared straight by the system.Addressing the first question is for some more difficult. It’s undeniably unfair that sexting, when it’s done between adults (however foolish and stupid) is nevertheless legal.  In fact it’s touted as the new and cool way for adults to rediscover their inner “naughty teen.” But when actual, underage teens do it, seeking naturally to prepare for entry into the world of their sex-obsessed adult counterparts, they’re risking arrest and prosecution.Still, in my view, there is a justification for bringing the law to bear on kids for this behavior. Simply put, the consequences of their actions are too great for the law to ignore. Without the technology at her disposal, the “Ho Alert” girl would have had a pea-shooter to aim at her former friend (relatively) rather than an automatic rifle. The same girl 25 years ago could have done little more than physically post an actual photograph in some strategic location for a time. Is her modern iteration more culpable simply because she had more dangerous tools? Possibly, if she fully appreciated those tools and knowingly sought the full advantage of them. This begs the very large question (suitable for another post) of what adolescents should be held responsible for in the first place. Emerging research about the adolescent brain suggests that their level of culpability in seemingly obvious situations needs to be re-calibrated.Is all of this arguable, including every decision ADA Peters and his office made?  Of course. But such is the balancing act a conscientious prosecutor does when confronting facts like these. Life makes law, not the other way around. I think Peters got it right.

Classlessness on Campus: No End in Sight

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

Necessary Conversations, But Stubborn Questions

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