Simpler Times versus Child Safety? Err Toward Safety

In Queens this weekend on the E train, I sped past the stops my father used from childhood until his wedding day; Elmhurst Avenue, Newtown, Roosevelt/Jackson Heights. I don’t know why but there was something furtive about it, as if I was reading his diary. I can vaguely remember those subway platforms myself as a kid, in tow with my grandmother in the steaming summers of the 1970’s when New York seemed hopeless and dying.Childhood memories cascade through me when I’m in the country’s most diverse county, the glorious menagerie that is Queens. There was disco, and trash, and graffiti. There was a sense from everyone above me that the city and frankly the world beyond it was spinning headlong into oblivion.Alas, the obituaries for New York and the rest of us were premature. In fact, what I see more and more on places like Facebook are glorifications of that time, not so much in terms of expecting a 10 year-old to navigate the subway system alone (as my father did in the 40’s), but in terms of being a kid as we were in the 70’s and more so in times preceding it. I see endless shout-outs to drinking from garden hoses, not wearing helmets or knee-pads, rolling around as toddlers without car seats, playing until it was dark and wandering home, etc, etc.  Indeed, it was grand.It was also sometimes debilitating or deadly. Most of the writers of the “that’s just how we rolled” posts are just fondly remembering what they perceived were simpler times. But some decry the involvement regulation and law have taken with regard to how kids play or navigate their lives, insisting that without all that government intrusion, they turned out just fine.Presumably, they did turn out just fine. But not everyone did. Millions of children were crippled, scarred beyond recognition and killed before safety became more of an issue and governmental regulation underpinned it. In the 1970’s Sterling Park, Virginia I grew up in, wearing a bicycle helmet was an invitation to be bullied, and so, helmetless, I sought top speeds of 40 miles per hour, no hands, flying down streets on a ten speed. And I turned out “just fine” except for one terrifying spill that broke an arm when I was 13. Hardly the basis for “nanny-state” regulation of a kid on a bike, some would say. True, but with that wreck in particular, it was only the grace of God that put me in cast and not a wheelchair or a casket. And in fact, I knew kids who suffered fates exactly like that.I was reminded of this after two stark tragedies marred July 4^th celebrations, one in Tennessee and one in Long Island. In Tennessee two boys, swimming next to a houseboat, were electrocuted. In New York, three children perished when an overloaded boat capsized in the sound, trapping them below decks. Both are still being investigated, but shoddy electrical wiring on a nearby boat might have been responsible for electrocuting the boys, and having 27 people on a 34 foot boat might have led to the deaths in Long Island. I own a 34 foot sailboat with a 5000 pound keel (much harder to capsize than the one that sank) and I get sick just imagining packing 27 adults and children onto it, no matter the conditions.No one enjoys stodgy rules, fretful finger-wagging or government intrusion where our or our children’s play is concerned. Trial lawyers (full disclosure: I was one) are blamed for the litigious culture we live in where no one will allow sledding on their hill, or tubing on their pond, for fear of being sued. Those sentiments are understandable.  But there are hills too close to highways and ponds with deceiving depths with owners unconcerned and children too young to assume risk themselves. Litigation and regulation aren’t a cure-all, but they have made a difference.Not every kid is killed when caution is thrown to the wind. In fact, most aren’t. But when they are, the echo of that death rings forever in the lives of that child's family. It’s an echo that should not be drowned out by quaint but oversimplified sentimentality.

Central Mountain High School, Heal Thyself

The most frightening moment in my life as a prosecutor was not the moment I met a mother who couldn’t accept that her husband or boyfriend had grievously harmed her child. The most frightening moment was when I realized I’d met a mother who knew her boyfriend had viciously harmed her infant, shaking him within minutes of death, but really didn’t care.I think of that dark revelation often. I think about a NYPD Special Victims detective and I confronting her with the medical evidence and his confession, and her basically flipping us both off and walking away, even as her child lay in a neurological ICU at the edge of oblivion. The perp was a drug dealer. She was living large. The baby had pissed him off. C’est la vie.So I think of Central Mountain High School, where the young man known graciously only as “Victim 1” in the Sandusky case was forced to relocate because of bullying.Read that again. He was pushed out of CMHS by peers and their parents, furious at him for being unlucky enough to be part of an investigation that exposed a monster in the very community the bullies and their bullying parents came from.I try to stay even in this space and avoid looking for shock value. But some things are shocking enough on their own. Victim 1 was tortured, picked on and driven from the school he called home because he’d been victimized by a man far too many people thought was godlike and in any event untouchable.Some- maybe even most- of the people who bullied, isolated and rejected him because of his misfortune simply believed Sandusky to be the paragon of virtue that he seemed. Those people can be forgiven, as even the PSU leadership can be forgiven- to an extent- because they weren’t armed with the knowledge I have of predatory behavior and the ability of sex offenders to get over on entire communities for decades.But some, I fear very deep in an already troubled heart, really just didn’t give a damn. Sara Ganim, the Pulitzer Prize winning reporter who broke the case, reports plainly and accurately how Sandusky was viewed at CMHS and other places in Centre County. He was a superstar. He graced the schools he visited or worked at with his presence. So to some, it didn’t matter what he did.For some, the first reaction might have been to believe what most believe, which is that celebrity, talent and acclaim always coexist with character and benevolence. Perhaps that eventually gave way to reality. But for others, even when clear signs emerged, when damning things became apparent, some miserable instinct kicked in which blocked the truth like drapes do sunlight and then hunkered down, wanting the spoils of attention and patronage, willing to reject anything threatening it.Victim 1 reluctantly came forward- and was ostracized- three years before Sandusky was formally charged. He endured rumors, stares, threats and whispers, but he remained quiet as investigators requested. Then, when charges were actually filed late last year, he was freshly and mercilessly bullied until he finally succumbed and left.Some who bullied him were ignorant, their ignorance fueled by the long shadow of Penn State football and its sad, institutionally blinding effect on their environment. That’s bad. But some internalized the accusations, felt the reality of their validity sinking like a blade, but then rejected them altogether. That’s worse.I’ve been told, in preparation for this post, that it’s unfair to focus on Central Mountain High School for an accusation of ignorance or worse, when it’s really Penn State University itself that should be called out where willful blindness is concerned.True, but in my mind, CMHS is where the future lies, and thus where hope lies. In the wake of Sandusky, the school has a chance to move forward molding its students differently than the ones who came before, too many of them worshiping the blue and white at all costs. That kind of worship simply can’t be. There’s too much at stake. If we don’t know that now, God help us, because we never will.

Matt Sandusky's "Delayed Report" and What it Really Means

After many years in this business, it was a brilliant young Army JAG who showed me an entirely different way of viewing the "delayed report" we almost always see in sexual violence cases."When you consider that most victims never report at all," she said, reasoning this out beautifully at a training we were conducting together, "then delaying is actually natural. What's unusual is when a victim is actually compelled to report, almost always after some time passes. That's usually because something triggers it, right?""Correct," I said, knowing that disclosure is a process, and one usually triggered, exactly as she put it, by any number of stressors or circumstances."So we should be calling them triggered reports, not delayed reports."Bingo, Captain. I could not have said it better. And I didn't. She did.The national lexicon on this subject, to the extent it's been expanded sadly but usefully by Sandusky, should lead the courts into the 21st century as well. Delay in reporting any sexual violence case is more than common- it's all but assured in most cases. Exceptions are the horrific but much rarer cases of stranger rape, the traditionally viewed crime that systems take to take much more seriously and that we hold victims the least responsible for. For those reasons among others, victims of stranger rape- an attack in parking garage by a masked assailant, for instance- are usually reported immediately. Many people equate an immediate cry for help with proof that a crime occurred rather than some sexual encounter now regretted.  But in stranger cases, the prosecution usually has that anyway- the circumstances almost always suggest that no consent occurred.Vastly more common are sexual violence cases where perpetrator and victim know one another, whether for a matter of hours in a bar or for years in a trusted, familial or mentoring relationship. It's these cases that produce the urge not to cry for help (in both children and adults) but instead to turn inward in order to process so much more. Why did this happen? How much of it was my fault? Is it really abuse/was it really rape anyway? Who would believe me? What will happen to my family, my life if I tell anyone?The questions go on. And on. The perpetrators, like Sandusky, know exactly how this process will play out. They know that in most cases, whether the victim is a child or an adult, the calculus will work in their favor. The victim will tell no one, let alone the police.  There's too much shame associated with what happened. Too much self-blame. Too much continued fear.  Too deep a feeling of helplessness. This is changing as awareness of the dynamics of victimization increases. But slowly.In Pennsylvania, a jury instruction must still be read to jurors (and was in Sandusky) that allows them to potentially discount the validity of "certain sexual offenses" because an ordinary person would be expected make a prompt complaint. Where this antiquated logic came from is no mystery. What's mysterious is that Pennsylvania continues to tolerate an instruction for its jurors that lacks even a passing acquaintance with reality.I don't know what exactly triggered in Matt Sandusky the decision to reveal the fact of his abuse to investigators during the trial itself. But I am confident that a triggered and valid report is what it was. He was, for a time, included in a circle of witnesses expected to testify on Sandusky's behalf. Maybe that constituted a final burden that the man could simply not bear, after silently bearing so much for so long.Few places are lonelier than the heart of a survivor living with sexual abuse, or having been the victim of a sexual attack, who feels he or she can't reveal it. The struggle is titanic, and usually the decision is made to simply bear the abuse and move on. Again, this is changing, but slowly. And survivors who decide to remain silent are blameless for it and should never be judged. But when a trigger finally does compel a survivor to speak out, the mere fact of a delay in the interim should not cast doubt on it.

Three Prayers for Happy Valley

It’s well past midnight and the verdict on Jerry Sandusky is in. Following it closely for weeks has affected me in old ways that seem remarkably new again. So with fatigue and vodka-loosened fingers, I write.St. Mary’s is a beautiful, 200 year-old stone church on a quaint block in Old Town Alexandria, Virginia, the tobacco and slave port city I came of age in as a trial lawyer. It stands on Royal Street, about a five minute walk from the red brick courthouse where I first prosecuted child abuse cases.I prayed to her, at that church, after every child abuse case I litigated successfully. After, not before. And for the cases I won, not those I lost.There is no feeling like winning a trial; any lawyer will tell you that. But in criminal trials, especially special victims cases, the misery that’s been endured by literally everyone in earshot of the proceedings does and should mute whatever joy there is in “winning.”I was good at what I did, and I won some. I also lost some. But when I lost, as long as I felt I’d been true, protective and faithful to the victims, and forthright and honest with the defense and the court, I was okay. It was painful sometimes; deeply so. But when I knew I had done my job right, for my office, my community and the lives I touched in the process, I felt fine.The victories, believe it or not, were harder. In them, I had gotten what I wanted, and I spoke for the government. I can honestly and happily say I never prosecuted a person I was not satisfied was guilty.Regardless, it was after the victories that I felt most in need of whatever prayer might yield.  So after I won, there were three that I offered.The first was for the fact that, indeed, I was correct about the guilt of the person I had just hammered home to a jury with every skill I could bring forth. No prosecutor with a conscience fears anything the way he or she fears convicting an innocent person.The second was for the survivors I had worked with, their families, and their futures. Lives are broken by crime and they are not put back together by criminal litigation. Another great sadness for me was the moment I realized there was nothing more I could do for them. I graciously accepted their thanks. I thanked them for their courage. I was assisted by wonderful victim-witness staff in both offices I worked. They picked up the ball where I had to leave it, and began the much harder work of repairing the lives I had merely brushed.The third was for the guy I’d just worked to convict. And I prosecuted some truly frightening and utterly evil people. But if there is a God who makes a difference, and if I was going to call myself Christian in any way, then denying prayers to those souls made little sense to me. I wanted them in jail and I was happy I’d helped put them there. But in Virginia especially- and shamefully- I fed defendants convicted of sex crimes into a correctional system that virtually guaranteed they’d be brutalized and mistreated. It’s considered poetic justice. It’s considered just desserts. It’s also not legal and therefore, to someone in my line of work, it’s anathema.  Incarceration should be monastic and unpleasant. It shouldn’t involve the horrors it’s known for because of our unwillingness or inability to put our money where our mouths are with regard to the most important thing we do as a society- put people in cages.I don’t know where the prayers went. I suppose the exercise is intended as much for the effort as it is for the request anyway. In any event, I sent them up, returned to my feet, and walked back to what was next. But a piece of me stayed behind, every time. So it is with everyone involved- everyone- in Happy Valley.In the name of the father. And the son. And the holy spirit.Amen.

The Histrionic Personality Disorder Defense: Here's How it Succeeds

It just might work.After a week of devastating testimony- graphic, compelling accounts from eight victims, plus eye-witness observations regarding two others, it seems the prosecution team has proven its case. McGattigan and team prepared their witnesses extremely well, and above all the victims themselves performed brilliantly and bravely, holding up well under cross-examination.But a courtroom is a closed universe, and Joseph Amendola has not earned his reputation as a trial lawyer without being dogged, creative, and resourceful. In my view, he’s conceived of a defense that might find purchase: Histrionic Personality Disorder (HPD).The personality disorders (known as Axis II disorders in the Diagnostic and Statistical Manual of Mental Disorders, or the DSM) are probably best described as ways of navigating the world- over the lifespan- that create objectively and recognizably negative consequences for the sufferer. I lack a psychology background, but I dealt with Axis II disorders when prosecuting civil management cases in New York and seeking to steer convicted offenders into mental health treatment.The disorder Sandusky’s team claims he has is one that involves symptoms that dovetail well with what he cannot deny. He has to explain the letters he wrote, described by victims as creepy, clingy and desperate. He can’t deny close quarters showering with boys or excessive hands-on touching of them either; these things are well documented and Sandusky admits to some of them. The right defense expert could reasonably describe these acts as attributable to HPD.  It is usually but not exclusively diagnosed in women. It involves things like acting seductively in inappropriate situations, believing relationships to be more intimate then they actually are, having a desperate need for affection, and a failure to accept emotional separation.Psychologists consulted on the defense last week understandably fail to see its relevance to child sex abuse. But they’re thinking psychologically. Amendola and co-counsel Karl Rominger are thinking legally and strategically.So here it is: Build a defense around what could be a kernel of truth (that Sandusky is mentally ill in some way), useful to explain everything short of the criminal acts the victims recounted. The defense must still explain McQueary’s and the custodian’s observations, but let’s say for a moment they can can convince the jury that both observers were sincere but possibly mistaken.Then we’re left with the testimony of the victims, which Amendola told them is untrue. It seems difficult to believe that 8 men, one after the other in grueling succession, would fabricate such horrifying details. But what if the defense doesn’t ask the jury to disregard everything the victims said- just most of it? What if they offer evidence that Sandusky was deeply troubled, just not a sex offender? Then, doubt gets easier to plant. With evidence of HPD, the defense gives the jurors wiggle room with how to view victim testimony. They can go as far to as to say “look, in a way, these boys were mistreated by Jerry. He was ill, and he probably did unintentionally cause them some harm.”But then the kicker: “But ladies and gentlemen, tragically, this is what empowers them to now to collude with each other and grossly embellish the things Jerry did, with lies about how it become sexual.”This defense doesn’t require a complete repudiation of the victims as sympathetic figures- something very important after such heart-breaking testimony. First, Amendola has already hinted at their “troubled” nature as Second Mile kids to suggest why they are willing to lie about such a serious subject. Second, the defense can still frame the boys as “victims,” just not ones of sexual abuse.“Indeed, they are victims. They were first victims of life. Then of Jerry, because of a mental illness that led him to treat them too lovingly, too emotionally, too paternally. Now, they are victims of a system that has tempted them to lie, whether it be for financial gain, or simply to strike back at a man who perhaps did unwittingly hurt them. But make no mistake- he didn’t hurt them in the way you’ve heard. Jerry Sundusky is a victim as well. He was then, of an illness. He is now, of this prosecution.”It’s going to be interesting.

Clinging to My Religion: Why, For Now, I Remain a Catholic

I was confirmed a Roman Catholic in 1980, at the high school I would graduate from 5 years later (my parish’s church was still under construction). But spiritually, I re-confirmed at 28 because of how I experienced Catholicism in the Frontera, the border area southeast of Nogales, Arizona, in the months following law school graduation in 1995.For a variety of reasons, I wasn’t ready to sit for a bar exam. A boyhood friend knew I wanted to learn Spanish as part of my dream of being a prosecutor.  His wife had family in the tiny village of San Lazaro, about 35 miles (a three hour drive on execrable dirt roads) from the chaotic, dusty crossing at Nogales. Through Juanita, his angel of a wife, the family invited me to live with them. It was that simple. No time limit, no money required, not even a promise to help with chores or work, which of course I eagerly did anyway. But they took me in, sight unseen, gave me my own room in a four room house, and made me a part of their family. I immersed myself there for five months, stretching the limits of my ability to communicate on beautiful, high-desert evenings after dinner, sitting on the hoods of cars, passing around homemade tequila and Mexican cigarettes. When the sun sank and the stars came out, they explained the constellations to me, named there for the saints and not the gods. One forms, in their eyes, La Virgin, or the Virgin Mary; a gentle, sloping arc of stars forming a veiled, feminine head. As the earth turns, she arcs slowly sideways until “she goes to bed.” Se acosta.Not all of them practiced religion; men tended to go to misa far less than women and children, although I went most weekends when our priest could make it into town in a Dodge 4x4. I enjoyed the mass in the language better suited for it, but it was the way they lived, both cheerfully and charitably although they had precious little to give, that re-confirmed me. On el dia de los muertos,  the Mexican Day of the Dead, I loaded old women and children into my truck for a day at the local cemetery, lovingly decorating the graves of family and friends. They didn’t fear death; there was no reason to fear it.I was warned against picking up hitchhikers, but I did it constantly in the Suzuki Samurai I’d driven from Chapel Hill to this dry new place. Frontera Mexicans get around that way. I picked up mostly families, making their way to visit relatives or do business at a fiesta. I never had a negative experience.I also began to notice the dozens of tiny, beautiful structures set along the dirt tracks between the villages: Santitos. Usually encasing a small statue of La Virgin, the santito is a miniature house-like structure. People place them along roads for reasons I never fully understood. Raphael, the village patriarch who viewed me as his son, told me simply “they are there for the travelers on the road,” as if this was obvious.So I re-confirmed, because I found in Mexico a simple, joyous, childlike faith. A faith that kept these remarkable, generous people in awe of the immensity of God, but close enough to stain His garments with their tears. A faith unpolluted by geopolitics and financial gigantism. A faith yet unhardened by the abuse crisis that has, in the fair words of Maureen Dowd, made the Church cruel.That is the Church I re-confirmed in; the one I cling to. I cling because it has not been easy to hold on, no matter how strong a bond I still have to that simpler time and that happier, purer Love. A career in child abuse and the travel limitations of narcoterrorism now separate me from San Lazaro. I don’t know when I’ll see it again.What I see instead are Church leaders fighting to block efforts to extend the statute of limitations in child abuse cases in several states because of rank, financial interest. Justice, wholeness, peace of mind and vindication be damned for untold thousands who lost their innocence and so much more at the hands of an institution unwittingly but chronically in evil service to a small but remarkably damaging and prolific group of offenders. It’s just the latest kick to my spiritual gut, the latest miserable exhortation from the mouths of men who sound far more like the lawyer I am than the spiritual guides they are supposed to be.And yet, for now, I hold on. And I remember the quiet holiness of an old woman blessing me with a prayer and an enchilada. Of a child offering me the painted crucifix he would place on his Tata’s grave. Of crossing myself in unison with a group of browned, smiling men in sweat-stained clothes bouncing in a pickup, in tribute to the Lady praying for us as we passed.

Spanier's Humanity Adds to the Black Parade of Failure in Happy Valley

Were it not so tragic, it would be a riveting study in almost complete systemic failure. The Penn State tragedy- and yes, it should be called the Penn State tragedy- continues to reveal example after miserable example of professionals charged with maintaining safe environments and/or responding to danger within them, utterly failing to do the right thing. Almost every single time, and over 15 years.While many label Mike McQueary a particularly key failure for not physically intervening when he saw Sandusky raping a child, I don’t even count him. What McQueary saw constituted a traumatic event. While every decent person wishes he had done more for the boy being victimized, McQueary reacted the way far more of us would than we might admit or even suspect. Ultimately, he did what he needed to do and went directly to the top of the empire that is Penn State. That godlike figure did the bare minimum required of him and washed his hands of it. I never bought Paterno’s explanation that amounted to ‘I’m an old fashioned guy who couldn’t imagine the rape of a boy by a man.’ Paterno was anything but naive and navigated the very adult world of a multi-billion dollar industry for decades. He made the choice to punt what he was told to “superiors” who were anything but superior to him. Those two, AD Curley and VP Schultz, apparently sanitized what was actually said to them by McQueary, and further stocked a minefield for Happy Valley boys by imposing an unenforceable ban on Sandusky with regard to PSU facilities.Former Penn State President Graham Spanier signed off on this deal with the devil, and now, it appears, also agreed with Curley and Schultz that the “humane” thing to do with regard to Sandusky was to not alert authorities to what they knew. Whether this was blind and misplaced loyalty, a deeply cynical bargain to protect the Brand, or something in between, the decision of these sophisticated and highly educated men doomed far more than we’ll ever know.But even that cold and feckless response was bookended by stunning sets of failures, beginning (as far as we know) when Victim 6 returned home in 1998 and informed his mother that he’d been made to shower with Sandusky. When PSU police were alerted, a sting was set up and a detective actually listened to Sandusky acknowledging showering with the boy, not denying touching his genitals, and admitting it was wrong. Then, two psychologists interviewed the victim, one concluding that Sandusky’s behavior was classic grooming and the other (with some of the most dubious reasoning I’ve ever encountered) concluding the opposite. But somehow within the response and follow-up, the report crediting the child’s account never reached the case worker, and perhaps the DA as well.Around 2007 Victim 1 was stalked by Sandusky, this time at Central Mountain High School where Sandusky was a volunteer coach, apparently with the run of the place. Vice Principal Steve Turchetta, it appears, had his suspicions about Sandusky but they were never enough to keep Turchetta from dutifully, and without the knowledge of the boy’s mother, calling him out of class for private meetings with the coach. The  boy finally broke down and disclosed to Karen Probst, the school principal, who alerted his mother. According to her, Probst advised that she “think about" the gravity of the allegations before deciding whether to report them further.  This after listening to a broken, desperate boy disclose a nightmare. But I suppose there was brutal logic behind Probst’s subtle warning: Sandusky was untouchable. Victim 1 was merely the latest in a long line destined to discover how much.We know of 10 victims. With a career of study and professional experience, I’d bet a fortune there are far more. No system is perfect, and different systems with varying responsibilities made decisions with regard to Sandusky.  Regardless, within them it was the choices of professionals- not children or untrained bystanders- but educators, law enforcement and child protection professionals, that dropped the ball and thereby shielded Sandusky for years. Whether or not he is convicted now, it is those systems he thrived in that need to be put in his seat next.

For the Sandusky Prosecutors: Five Quick Tips

The lead prosecutor in the Sandusky case, Senior Deputy AG Joseph E. McGettigan, probably doesn't need my help. He began his career at the Philadelphia DA's office around the time I turned 15, and he's done and seen it all. But if he's as good as his reputation, then he's probably the type who never treats the opinion of a fellow professional as beneath him.  The good ones, like the legendary Dan McCarthy I wrote about a few months ago, are never too egotistical to listen.My hope is that McGattigan's team stays focused on five basic tasks that often make the difference in child sex cases:1. Have a theme, and weave it through the entire case. This, they are doing well so far. A theme in a criminal case is a psychological anchor that you want the jury to be repeating- literally- in deliberations. It's a phrase, a quote (often from a victim) that captures in essence the wrongness of what was done. It needs to be woven into every aspect of the trial where it can be uttered; voir dire, opening, direct examinations, and closing argument.2. Craft direct examinations of the victims to recreate the reality of the crime. Crafting a direct means much more than writing out the questions and prepping based on them. It's taking victims through sensory detail- smells, sounds, physical sensations- that drives home the reality so that jurors won't gloss over it or accept defense arguments that it was concocted.  This works only when victims are treated with dignity, support and compassion. Thankfully, it's also the right thing to do.3. Appeal to common sense and fight myths.  The defense's strategy is to appeal to oft-cited but baseless myths. They'll suggest Mike McQueary didn't see a child being raped because he didn't intervene. But the idea that even most of us would intervene in a situation like that is preposterous. It's tempting to say "I would have beaten Sandusky and saved the boy," but the fact is none of us know how we'll react until we face a traumatic event. Ask any combat veteran.They'll suggest the kids McQueary and the custodian before him saw being raped don't exist because they haven't come forward. Nonsense- very few child victims ever report, and if the children in question are aware of the case and haven't come forward, it's for common sense reasons. They'll suggest the victims are lying for a civil payoff or because they are "troubled." Garbage. "Troubled" is why Sandusky targeted them through Second Mile- they were less likely to report or be believed.  The idea that its typical for individuals to falsify allegations and endure the the process of criminal litigation for money or spite is baseless.  It almost never happens, least of all in male on male cases. Finally, to suggest that three high ranking officials at PSU would never have acted as they did when facing allegations that threaten the football program is laughable.4. Corroboration.  This is not a "he said-she said" case; indeed, any good sex crimes prosecutor knows there is no such thing. As a mentor Victor Vieth taught me years ago, there is always corroboration if investigators and prosecutors are willing to think creatively and then dig for it. Witness' memories- when the witnesses are handled correctly- are goldmines of information that can be independently verified. In any event, victims are carrying enough of a burden during the litigation process. No case should rest solely on the testimony of a victim; this is unnecessary and the sign of a sloppy, lazy prosecution.5. Point. While I wish I could say I learned this on the job, I read it in Scott Turow's Presumed Innocent long before I had a law degree. In it, Turow's protagonist describes a whiskey-breathing, grizzled vet of an ADA who suggested it to him. I never failed to implement it. Point at the defendant when you make your opening statement and your closing argument. Point at him, look him in the eye, and approach as far as the judge will allow. "If you don't have the courage to point, you can't expect them to have the courage to convict."Godspeed, Mr. McGattigan and team.

"That's My Boy?" Sandler, Covert: What Were You Thinking?

Allen Covert is an old friend of Adam Sandler’s, appears in many of his movies (I loved him in “The Wedding Singer”) and co-produces “That’s My Boy,” Sandler’s latest. Covert is also an outspoken conservative and “family values” promoter. So how he or Sandler thought this was a great idea makes zero sense to me.Sandler plays a rape victim whose rapist became pregnant with a son he now reconnects with, first for cynical and later sentimental reasons. It’s that twist, of course, Sandler’s tender shtick, that supposedly excuses this abominable idea.  And I’m sure most will see a harmless plot driven by a snarky, devil-may-care 13 year-old who impregnates his sexy teacher.It isn’t. It’s child rape.But the victim is a boy and the abuser an attractive, white woman, so who cares? Bring up the crimes of Mary Kay Letourneau or Debra LaFave, and you’ll likely get eye-rolling, then air quotes around the word “crimes.”  Their victims, many believe, are really the luckiest boys on earth, fast-tracked James Bond’s with the world on a string. The 80’s saw a few awful movies with similar themes. But to my memory, the boys were around 16. Sandler’s character is 13. Older boys can and do suffer just as much from rape by women. But younger ones almost always fare far worse.Vili Fualaau, a victim I wouldn’t name except that he’s living his life story publicly, was 13 when he was first raped by Letourneau, a relentless predator who never stopped hunting him. He is now a 26 year-old high school dropout, convicted of DUI, and a survivor of a suicide attempt. The only success he seems to have found is in capitalizing on his victimization (with Letourneau) at promoted events in bars for a few bucks.The victim of LaFave, according to the testimony of his sister, remains in psychiatric care still devastated from the rape he endured. LaFave was released years early from probation by a judge who joked with her while compromising both the punishment and treatment she earned when she destroyed the boy she victimized.What we call “compliant” victims of child sexual abuse are remarkably common, especially in adolescence. The older the child, the more society blames the child for at least knowing the score, if not outright luring or asking for the abuse. Predators know and rely on this. Female “tweens” and teens are certainly judged, shunned and blamed for their own victimization by adult males, as almost all adult victims are. But a boy, unless the perpetrator is a male, must celebrate his abuse, and at the expense of far more than just looking like some mysteriously disgruntled lottery winner.Sandler’s character as a boy is shown smirking and proudly high-fiving classmates when his rapist appears in court pregnant. The message sent to boys are who are similarly victimized is clear: You’d better react the same way, or you’re not a man.  You’re a loser, and the affections of a “real woman” were wasted on you. But alas, in reality when guilt, shame, fear and confusion surface due to a clearly pathological relationship, the boy is utterly alone. No one- absolutely no one- will understand if he dares voice any disturbance. Instead they’ll smirk. They’ll joke about how it should have been them. They’ll wonder aloud what else isn’t quite right with him. And so on.I am highly unpopular, generally, with men’s rights groups familiar with me. But this is one area where I find some common ground with them. Adolescent female victims of men are commonly mistreated and unfairly blamed when they report. But boys victimized by women had better not report at all. Or else. But if the abuse is discovered and the woman prosecuted, she is usually under-punished if at all.The fact that Sandler’s adult character is a failure could presumably be called instructive, and act in defense of trivializing something tragic and evil. But that’s a sorry argument. Clear enough from the trailer is that the character, while a loveable loser, is still happy-go-lucky and serendipitous, not alone, desperate and suffering. Child rape as humor promotes nothing redeeming, despite the Sandler soft-touch. It’s garishly misplaced as such.

Tracy Thorne-Begland and the Politics of Bigotry and Shame

“So act that your principle of action might safely be made a law for the whole world.”  Immanuel KantCenturies ago, Virginians too numerous to name were vanguards of freedom, people of immense courage and deep principle who in large part forged and then led the United States of America. Their principles, born in Virginia, became the nation of laws that is still a beacon to the entire world.In 1967, Richard and Mildred Loving, two more courageous Virginians, led with their own names as plaintiffs the defeat of a despicable anti-miscegenation law. They birthed freedom for couples everywhere who could then build lives together despite the accident of skin color.In 1992, after three years as a top Navy fighter pilot, Tracy Thorne-Begland decided that, while his life was worth giving up for his country, his integrity was not. He challenged the military’s odious ban on homosexual conduct and suffered life-changing consequences because of it. His acts, while remarkably courageous and principled, were simply a part of his heritage. And while it took almost a generation for that ban to fall, it finally did. Again, the principle and the courage of a Virginian was integral to the effort of achieving freedom.Last week, that Virginian, after strong bi-partisan support, the approval of the judicial vetting committee, 12 honorable years as an assistant commonwealth’s attorney and demonstrable qualifications for a judgeship, was denied it by the legislature because of the unchangeable and innate fact of his sexual orientation. In so doing, the House of Delegates-- the oldest continuous legislative body on the American continent and the very model for all that came after-- rejected not only this honorable Virginian, but everything the Commonwealth of Virginia has stood for in five centuries. Once again, as in the civil rights era, the very ideals Virginia is supposed to embody are mocked and will be tarnished. Once again, the promise of freedom that defines a great Commonwealth is thwarted by the ignorant and hateful impulses of a fading order.The exertions of the Virginia-based Family Foundation are credited for derailing the candidacy of Thorne-Begland, a man dedicated to a partner he can’t call a spouse, yet resides in a lifetime commitment with, raising children, paying taxes and making his community richer, healthier and more vibrant. I don’t know Thorne-Begland personally, but I was also an Assistant Commonwealth’s Attorney in Virginia and practiced before the same type of judges he would have joined. As a General District Court Judge in particular, he would almost certainly never have confronted an issue that would have presented any sort of conflict with the circumstances under which he seeks to build a life. Regardless, Thorne-Begland knew how to avoid them, pledged do so, and would have been no more subject to the challenge of impartiality at any level than, say, an outspoken religious figure that the Family Foundation would have trumpeted as a judicial candidate.Thankfully, the Family Foundation and all groups like it will eventually inherit the wind. The freedom Thorne-Begland fought for as a Navy pilot will eventually become reality in Virginia is it has for the military and other environments willing to reject bigotry and embrace tolerance of the essence of what people are. But his repudiation by the leadership of the state, for reasons that will soon be seen as universally and transparently wrong, are hobbling the Commonwealth just as North Carolina will be hobbled by its tragic step backward.So it’s worth noting that Jesus himself, whom the Family Foundation so hypocritically and inaccurately caricatures in order to promote its venom, said nothing about homosexuality. But in Matthew 10:14, he provides a warning, and one that should echo ominously in the ears of anyone who cares about a Virginia not marked and then shunned because of bigotry it could not defeat with its own elected leadership: “If anyone will not receive you or listen to your words, shake the dust off of your feet when you leave that home or town.”Begland-Thorne and his family don’t appear to be going anywhere, a blessed circumstance for their community and their Commonwealth. But they could be forgiven for doing just that.

The Fantasy of the Dragon Tattoo

The suffering, revenge and eventual triumph of Rooney Mara’s character in The Girl With the Dragon Tattoo over institutionalized rape is something that stands out even as a minor subplot in a fairly complicated film. And what she is able to accomplish against her abuser is nothing short of fantastic in the traditional sense of the word: It is the product of fantasy. Tragically, for untold numbers of victims placed in the situation that Rooney’s character, Lisbeth Salander is, fantasy must suffice.I use the term “institutionalized rape” because that’s how I view what happened to the character of Salander, a legally incompetent ward of the state deemed mentally unstable. She is subjected to sexual torture by a predatory bureaucrat who controls her finances after her legal guardian suffers a stroke. He withholds money for essentials like food and electricity, releasing funds only when she endures sexual acts. Eventually he demands that she come to his home where he anally rapes her while she is strapped to a bed.As the predator discovers, however, Salander is not what she appears to be, which is the “typical” helpless victim. Instead she is a computer genius armed with a photographic memory, intense athletic prowess, and an iron will. She has the wherewithal to secretly film herself being raped, and eventually uses that evidence to not only control the predator’s actions toward her, but also to effectively paralyze him from harming other similarly situated women and girls in his sphere of control. But not until brutalizing him justly and branding him a rapist with crude tattoos across his ample mid-section.In short, she is a rightful, rageful hero to women and children everywhere who have experienced that kind of abuse. And believe me, abuse at the hands of a protected cog in a monolithic institutional wheel is abuse that is grossly under reported and almost never vindicated.I suspect that what Salander endures at the hands of the all-powerful authority who holds the keys to her very survival is even more impactful in the context of a social democracy like Sweden where the state intrudes further into everyday life than it does in the U.S. Regardless, what she suffers is time-honored and sickeningly resilient despite reforms and efforts to eliminate it. Across the globe and in every possible arrangement of human organization, predators seek, find and feed.The reason is simple. Predators infiltrate the institutions that provide them power to predate and victimize. It’s true that power corrupts, but more importantly, it attracts. Power attracts predators who will seek it as a catalyst to get the things they want. If what they want is sexual control over others, they’ll infiltrate the institutions society creates that will allow for such abuses. There is no shortage of them.What’s wonderful and dreamlike about Lisbeth Salander is that she embodies the intoxicating if mostly fanciful notion that resourcefulness, brilliance and brutal determination can turn the tables on a powerful predator and render him limp and lame.  Sadly, for most, it is only a dream.

Trayvon and Five Pounds of Pressure

For decades and maybe longer, gun rights enthusiasts have sought to end the gun control argument with the following statement:   “Guns don’t kill people. People kill people.”This is technically true.  It is also meaningless.Of course, guns don’t kill.  And pencils don’t make spelling errors. So what?Not a single assassin of a United States president has accomplished altering history by being a terrific knife wielder. James Earl Ray did not end the blessed life of Martin Luther King with a slingshot. John Lennon was not felled by a punch. James Brady would not have gone from a dynamic, affable new press secretary to a man still struggling with a disability had his attacker approached the side entrance of the Washington Hilton in 1981 with a baseball bat.It’s also true that guns don’t have mystical powers over the human mind, seducing to reality their own use. Again, so what?  It is undeniably true- and frankly common sense- that killing is more likely to happen when a loaded gun is within easy reach of a person familiar with its use. Police officers take their lives in greater numbers, it is believed by experts, at least in part because of the ready presence of guns. We in the anti-violence world know well that access to firearms increases the risk of intimate partner murder around five fold.No, this isn’t because guns in these homes suddenly come alive like brooms in a Disney movie, begging to be used.It’s because the handgun is an object as perfectly designed for killing other humans as a chess board is for chess. The opposable thumb and its meaty base folds securely around the grip. The index finger- the one we control with far greater dexterity than any other- slides against the trigger like a key in a lock. Propelling death at hundreds of feet per second is now a squeeze away. For millennia, killing was by necessity a contact sport. Beating, strangling, stabbing and other forms of inter-personal violence required a victim, in most cases, no further than arm’s length away. Guns changed all of that. Now death could be dealt from a distance, both physically and- inexorably- emotionally.But handguns reduced it to little more than the dexterity and strength required to snap one’s fingers.George Zimmerman, the apparent shooter of Trayvon Martin, carried a snub-nose 9mm pistol, very simple in operation and something my Virginia friends growing up would have called a “belly gun.” Five pounds of pressure are required to fire the thing and rip apart human tissue like hamburger. To maim. To paralyze. To kill.  To alter not one life, but dozens and who knows how many more in the web that contains us all. If Trayvon Martin was to cure a disease, build an empire, or simply live happily and productively in the glow of his family’s love, we’ll never know. A compact, death-black device with a five pound trigger wiped that out like sunset does the day.In Zimmerman’s shooting hand, I have no doubt it rested like a calming infant’s rattle.Whether Zimmerman was remotely justified in using it is, apparently, still unknown.  Was the child he killed truly an aggressor, or was it just the combination of the hoodie and the young man’s skin that prompted Zimmerman in some hateful, idiotic flash to provoke a confrontation and then create the “need” to kill?  Zimmerman’s own ethnic background seems to be relevant to some, complicated apparently by his being not black but not quite white either. Personally I find the juxtaposition of skin color in this case to be gasoline on an already raging fire. But the reality of how Trayvon’s skin color likely did lead to his death is impossible to ignore. I cannot blame the millions out there who refuse to do so.But for me, and for now, the misery of this situation comes down mostly to the demonic presence of a handgun in the hands of a pathetic rogue or worse. Zimmerman is by all appearances a character police officers know too well- the community-watch vigilante with the itchy trigger finger. Maybe that’s why, for all the gun enthusiasts still defending it, Florida law enforcement officials find the “stand your ground” law pointless bravado waiting to become far, far worse.Money in the hand of a fool simply disappears. A gun in the same hand changes everything.

Reflections On International Women's Day

Her name is Molly. She taught me how to prosecute sex crimes and child abuse.Her name is Sue. She taught me how her brand of nursing heals, and nurtures justice.Her name is Judy. She gave me the understanding I needed to view the victims in my cases with the compassion and respect they deserved.This was in Alexandria, Virginia, where I cut my teeth on the fight that has shaped my life.  In the Bronx, New York, where I went next and where I was reduced to shreds as a prosecutor in a very different and more brutal environment, there was Elisa, Beth Ann, Danielle, Rachel, and many more. They picked me up, gave me the courage to go on, and reminded me who I was fighting for in the first place.I have worked with and for women most of my career.  They have forged in most cases the path I’ve chosen in every area of my professional life. They have challenged the status quo, afflicted the comfortable, made waves in order to make lives better, and advanced the cause of those who suffer- women, men, boys and girls- in more ways than I could ever properly express.The current fight on multiple fronts regarding contraception and reproductive rights has many of them (particularly those who fought the previous battles) scratching their heads as to why a war still rages. I have few answers, but I suspect that dying ideals tend to trumpet loudly in desperation rather than strength. The struggle for what is right in terms of public policy is complex; I make no move to settle it here. I’ll only say that, in terms of several of the ideals held by some in the culture wars, death is imminent.Our country will be one where gay people will legally marry. Our country will be one where Spanish either exceeds English or more likely merges with it in a mezclado mish-mash with a few other languages thrown in. Our country will be one where human life is highly valued, as it should be, but in balance with the value of the one gender blessed to bring it forth.Her name is Florence, and she is my mother. Her spirituality takes shape within Roman Catholicism, but for 73 years she has bravely forged her own path to God. She gave to me a faith of love, charity, and a wise but equally childlike sense of kindness and decency. The first gay people I knew, I knew at her table. The first who believed differently than we did, I learned from in her kitchen. Food is love to her, and it has blessed the happy and content, but just as often the dispossessed, the outsider, the sick or dying, the simply lonely.She is not angel. She is a woman. But she is why my heart beats, both literally and figuratively. The coming generations will view her- and her sisters in gender- as equals. They will do so or they will perish. It’s really that simple.

Chris Brown, Rihanna, and What Could Happen Next

If an adult, even a young one, can be labeled by his actions, Chris Brown is a violent, narcissistic thug. The savage, lengthy beating he inflicted on his then-girlfriend Rihanna in 2009 earned him a felony conviction, something not particularly common in the world of intimate partner violence. I saw quite a few of those cases as a prosecutor, many of them violent and damaging, but few other than homicides that merited the possibility of a prison sentence. It’s a possibility Brown avoided, but happily so for many adoring fans who still refer to that drawn-out, bludgeoning attack as a “mistake.”Since that mistake, Brown has shown again and again an explosive, boundary-bereft side and a frightening inability to even fully control himself.Now, for whatever reasons, Rihanna has chosen to request a relaxation of the protective order she was granted against him, and to collaborate with him musically. Collaboration may be all it is. Or, she may be entertaining a friendship or something more with her attacker, a circumstance often encountered if rarely justified.  She was a blameless victim in the pummeling she endured, and since I know nothing of her personally I won’t seek to judge whatever reunification she’s navigating with Chris Brown now.But I will judge the “Birthday Cake” remix she is releasing and on which Brown joins her, because it’s classless and crass, even by the standards of Rihanna who often objectifies herself sexually in her music. But what makes this first collaboration since Brown’s arrest and conviction far worse is the past that underscores it.  What Chris Brown adds to the magic of “Birthday Cake” includes the lines “Girl, I wanna f--- you right now. Been a long time, I’ve been missin’ your body.”Bravo, Chris! This is far more than an expression of what I suspect are your creative limits or your grasp of subtlety and real sexuality (which I rather enjoy, although I find it resonates more when it isn’t reduced to the sputtering of a worked-up child). It’s also a window into how you likely viewed this woman before you viewed her as a punching bag. She’s a toy as far as you’re concerned, and that’s how you want to treat her. First sexually.  Then violently. Then sexually again.Take a wild guess, dear reader, as to whether a pattern is forming here.Lewdness in pop music is a fact of modern life. Many would criticize Rihanna for the overt sexuality she injects into her music and speculate darkly from it on how she views herself. I won’t. Frankly, she has the right to engage her sexuality in any way she sees fit and I won’t impose my model or that of anyone else in an effort to judge her. What she does artistically and how it might affect the millions of girls who look up to her is best discussed elsewhere.For now, what’s clear is that Rihanna, a beautiful and talented young woman, was beaten- breathtakingly- by a man who now joins her in a song in which he celebrates the idea using her like a plastic doll.  That’s wrong on more than one level. Unfortunately, I doubt either of them have a clue.

Crossing the Line, As Usual

There's really no question that the photograph above is sexually violent. There's also no question that the subject is underage, the child supermodel Hailey Clauson, who is 17. Max Pearmain, a British fashion editor and stylist (I'm pretty girly for a straight guy but not so girly that I know exactly what a "stylist" does professionally) is apparently the brains behind the full layout which can be seen on his blog.

Kudos to Jezebel, probably my favorite online magazine, for bringing this to light.  As they already point out, it's unbelievably creepy. And it joins a child with a porn star for a photo shoot (they're holding hands in one shot).  While this isn't the crime of the century, it's really the kind of thing that should be avoided.

Yes, I know. We Americans are dull, overly uptight puritans.  We should be more relaxed, like our free-wheeling European betters. Whatever.

First, a child is a child.

Second, no woman should be portrayed this way; with a large hand, attached to a hairy arm, grasping her throat. To the extent that excites someone, it's wrong and so are they. But lo and behold, at the time of this writing, the first two comments to the Jezebel story "point out" that what was being depicted was 1) consensual and 2) common, apparently, for women during sex.

If erotic asphyxiation is an agreed upon activity between consenting, legally competent adults, then I'll be the last person to stand in it's way. But that's a far cry from depicting the strangulation of a child in a way that is most definitely meant to be sexually stimulating.

I hope and pray that Hailey Clauson grows to be a healthy, happy and strong woman, able to enjoy her beauty and success and make the most of every opportunity. If, God forbid, she instead stumbles onto a tragic path because of what she's being joined with and exposed to now, I'll have little patience for the hand-wringers who will then wonder how it happened.

Pobrecita

“Beeper duty” is what’s it’s called.   For ADA’s in the Bronx District Attorneys Office, it means a 24 hour shift in which the Assistant District Attorney responds to serious assaults and homicides that occur in the borough when someone in authority deems it necessary.It’s not nearly as garish as it was back in the day. My mentors at BXDA, there since the 80’s, remember a time when beeper duty involved a separate pager reserved just for homicides, when ADA’s were literally “beeped” from location to location for the entire period, encountering shot-through, rotting, broken, body after body in the gruesome series of killings that plagued the Bronx before the relative calm that finally settled in by the mid 90’s.I was on beeper duty on a random Tuesday night in April of 2007, shortly before leaving BXDA.  It was one of the roughly 15 days of perfect weather the New York area experiences every year.  A beautiful spring day darkened into a warm, breezy, evening.  I got the beeper at 9:00 a.m. and worked my typical day. The beeper was blessedly silent.  Knowing I had the thing for 16 hours after that, I planned an evening with two of my favorite NYPD detectives, Brian Carey and Lourdes Gonzeles, both of the Bronx Special Victims Unit.  They were working that night, and I had a couple of tasks out in the community I needed their help with.  Brian and Lulu were partners, and two of the best people I’ve worked with in any environment.  Lulu had taken a bullet to her arm as a young cop; Brian ruined his knee and required a brutal series of surgeries after chasing a perp not long after the night I write about now.   The two of them are open-hearted, deeply decent, dear friends- big reasons why I love cops the way I do.We chased down my witnesses and then went to dinner in one of the myriad, little known, and phenomenal restaurants that dot the Bronx and that only locals and NYPD really know.  It was a great night. The weather was angelic.  The company was sublime.  We ate, we bitched about city employment, we reminisced.  From there I stayed with the two of them as they worked through their evening until it was past midnight.  They offered a couple of times to run me back to the west side of Manhattan where I lived; Brian spent years on the mayor’s security detail and could bridge distances throughout New York City with breathtaking brevity.  But I was happy being out. I was on duty anyway, and it was a beautiful night.And then Lulu got the call.There was a dead baby at Lincoln, meaning Lincoln Hospital Center, in the South Bronx.  The baby had been brought in by her parents, a young couple, and the circumstances of death were unknown.  The parents were talking to Administration for Children’s Services, or ACS.  There was nothing to prompt a murder investigation yet, but Special Victims needed to respond with an ADA.  Lulu and Brian had that covered.  At about 1:15, we headed over to Lincoln.I never met the parents of the baby.  I left the office shortly after that duty shift, and I don’t believe either of them or anyone else was charged in relation to her death. I never knew what killed her.  I only knew that she was about 13 weeks old.We usually see the dead in one of several general circumstances: the actual place where they died, the morgue, or the funeral home.  I had seen dead children in those places.  I had never, for whatever reason, seen a dead baby in the sterile, ordered confines of a hospital room, as of yet unprocessed for transport to the morgue.  She had been classified dead on arrival, or DOA. So there were no tubes, no wires, none of the apparatus often associated with the extremities of modern medicine. She was not in a bathtub, a gutter, or the bench seat of a car.  She was not tucked into the white silk pocket of a hideously undersized casket.  She was just still, lying neatly and peacefully on an exam table.There was a nurse’s assistant attending to the baby in a way I can only describe as lovingly desperate, as if even in death this girl-child needed tenderness and attention.  The assistant adjusted the blankets over the baby as if she still might feel a chill in the exam room.  Brian and Lulu left me and went to talk to the ER docs who had seen the baby.The nurse’s assistant was an older Latina woman.  She saw me, in the hallway in a rumpled suit and tie with an advanced 5:00 shadow and reddened eyes. She smiled and I greeted her in Spanish, a language I am conversational but not fluent in. Despite probably speaking English, she answered me in her language which I’m always grateful for.  It’s good practice.“Senora, soy fiscal,” I said quietly. I’m a prosecutor.  “Estoy con los detectivos.  Por favor, puedo verla?,” I asked.  Can I see her? She nodded and beckoned me into the room.The baby girl was perfect.  Doll-like with long, curving eyelashes, unblemished, coffee-colored skin and plump, smooth, healthy-looking arms and legs. Her eyelids were closed and she lay almost poised, her stillness seeming attributable to something other than what it was, which was death. But it didn’t look like death.  It seemed as if she knew someone was watching her sleep.  I crossed myself and the assistant joined me.“Pobrecita, no?” she said, out loud and as much to the universe as to me.  She asked this the way Spanish speakers do, in a rhetorical fashion.  No one other than God is expected to have an answer.  Poor little thing, no? “Si.  Claro,” I said.Yes.  Of course.

Where Do We Go From Here?

This week I had the honor of speaking at the DePaul University College of Law in Chicago, sponsored by their remarkably vibrant and inventive Family Law Center. I was joined by Lester Munson, a senior sportswriter and legal analyst at ESPN. Munson is funny, blunt, opinionated, and apparently a big part of the conscience of pro and college sports. He’s doing exactly what a journalist and a sports fan should, in my view.I listened to him discuss the Penn State case, with some detail and context that I lack simply for want of his understanding of the game and the dynamics of the Paterno dynasty. As I listened, it struck me even deeper how inexcusable the decisions were that slithered out from the circle of men in control of it.It also begged the question of what we can do going forward. What can we do to prevent another predator at another venerated institution from leaving a long and concealed trail of wreckage? What can we do in general about this miserable part of our own nature?I am often invited to make observations based on what I know from research and my own professional experience. That’s the easy part. I can speak for hours on what’s wrong, why it’s wrong, and even a little bit about where it stems from. The hard part is when a sincere, decent person in the audience asks me “what, then? What do we do?"For now at least, this is what I had to offer:-Do more to understand the urge that leads to sexual violence, because it is anything but obvious or easy to comprehend.-Consider prevention efforts, but be fair and realistic about them. Most of the traditional ones do not work.-Abandon foolish ideas that many or most complaints are false or incorrect, or that violent situations are just the product of mistake, intoxication or just ‘roughness’ on the part of a violator.-Reduce the power and mystique of institutions by valuing human beings individually more than we value the institutions themselves.-Finally, accept that sexual violence, for now, is a part of the human condition.The last one is the hardest, for most, to really own and internalize. But we must.We have done much, in rich cultures at least, to add abundance to our lives and sanitize our physical experience so that we can be dignified, clean, clothed and presentable. More importantly, we have made great strides in nurturing our minds and souls. We can free ourselves much more effectively from depression and dysfunction. We can sow hope where it’s been banished. We can bind emotional wounds that formerly truncated our own lives and infected countless others.But where our sexuality is concerned, we’re still surprisingly in the dark. We know what appeals to us and what makes us more appealing. We certainly know what sells. But we don’t fully understand the line between sexuality and sexual violence- a line that, once it’s crossed, marks the end of defensible eroticism and the beginning of misery and injustice.We do not yet know how to fully acknowledge our sexuality without the intrusion of myth, mores, and standards. I do not, for the record, believe that all mores and standards are wrong it comes to our sexuality. Part of what lends us our dignity is the ideal that our sexuality can be robust and varied, but closely controlled and never a weapon. Nevertheless, it’s undeniable that some of the standards we’ve imposed on each other sexually do more harm than good, and perpetuate damaging ignorance and misunderstanding.Most importantly, we still don’t know how to keep from judging each other when one of us is sexually abused. We can’t effectively protect each other from the abuse that springs from our most cherished creations- our institutions. We can’t yet do these things because we have neither fully grasped nor fully faced what we are, and are capable of, as sexual beings. That won’t happen until we open our minds first and our mouths second.Take a page from the gay and lesbian movement during the plague of AIDS.Candor and understanding move us forward.Ignorance and denial hold us back.Silence equals death. Still.

Myth and Innuendo In the Greg Kelly Investigation

She waited three months to report.She has a boyfriend who was angered by the situation.Sex-themed text messages may have been exchanged before the night in question, and ones suggesting another meeting may have been sent after.She has a Facebook page upon which she posted “nothing out of the ordinary” during the month where the alleged crime occurred.She joined the man she’s accusing at a bar that hangs women’s underwear from the ceiling.Dear God, why is anyone even investigating this? Why is Martha Bashford, the highly capable sex-crimes chief at the Manhattan District Attorney’s Office, wasting time to determine what happened between this complainant and Greg Kelly?Hopefully because Bashford isn’t being swayed by “law enforcement sources,” quoted widely in the media this week and assigning authoritative finality to factors like the ones above. DA Vance has firmly stated he doesn’t know the source of the leaks and does not condone them. He has good reason beyond their basic irresponsibility.  They reflect a stunning ignorance regarding the reality of sexual violence.I have no idea if Greg Kelly is guilty of anything; it’s been a week since a complaint was made and there are far more questions than answers. Hence the investigatory process and venerable presumption of innocence. Kelly has been charged with no crime. He deserves to be treated respectfully and without smearing or assumption.  But to assert that the case against him is false because of the factors being touted is dangerous nonsense.-Delayed reporting is hardly abnormal or indicative of a false report, despite the fantasies of apparent "veteran investigators." Delaying is extremely common, if anything the norm rather than the exception in acquaintance cases. Survivors delay reporting for dozens of valid reasons, most exacerbated by the circumstances seen here (a celebrity accused, a media frenzy, microscopic scrutiny of the victim, etc).-The idea that women regularly, falsely report being raped in order to cover regretful behavior or the betrayal of another relationship is vacuous. Has it happened?  Surely. Is it remotely common?  Hardly.  Reporting rape falsely and enduring what follows is anything but a typical impulse, let alone a popular choice when confronted by an angry boyfriend who wants to know why you’re pregnant.- Sexually charged texts from a woman to a man prior to an encounter says absolutely zero about whether that man is capable of raping her either by force or as a result of physical helplessness. It also says zero about her inclination or ability to tell the truth about an event she recalls as a crime. Rather, they demonize her as someone less deserving of legal vindication no matter what happened.  Texting afterward might be more problematic, but it depends on the context, what was said, and when. If the texts sought clarification of what happened (which would make sense in a case alleging severe intoxication and incapacity to consent), they are hardly smoking guns. What of texts suggesting another meeting? Again, it depends- when were they made in context to when she realized fully what had happened? An evolving sense of what occurred is also not uncommon in cases where incapacity through intoxicants is suspected.Comparisons are already being made between this situation and the cases of meteorologist Heidi Jones (who fabricated a rape complaint originating in Central Park), Kobe Bryant, and Duke Lacrosse.  Never mind that Jones accused no one by name (very common in false complaints), Bryant’s legal team savagely wore down the complainant until she gave up (yet he later apologized), and the complainant in Duke Lacrosse was so severely mentally ill that authorities suspected she probably believed her own lies.The issues so far in this nascent case present challenges for the prosecution; that is undisputed. Kelly may be innocent of anything criminal, a fact which may genuinely co-exist with the complainant’s belief that she was violated.But to conflate these challenges with the recklessness and moral bankruptcy that must accompany falsely accusing a man of rape- at this point and on these factors- is dangerously unfair and ignorant.  The "sources” publicly voicing skepticism should be kept far away from the investigation. Commentators, particularly former sex crimes prosecutors who should know better, are doing little good by furthering myths they either 1) never understood as such, or 2) allowed to intimidate them into inaction. If these things occurred when they were on the job, it was the victims who paid the price.If the complainant has falsely accused Kelly, then she is already getting what she deserves. If her complaint is valid or at least sincere, she is getting far, far worse. My prayer is that NYDA gets it right, and for the right reasons.

Vulnerabilty, Danger, and Blame

“There is no vulnerability without danger.”  Veronique Nicole Valliere, Psy.D.It’s a simple and brilliant truth, introduced to me at a sex assault prosecution training in 2009. The doc was discussing how we blame women (and men) who are sexually assaulted, particularly when their choices leading up to the attack make them, in most minds, “more vulnerable.” Like when they drink too much, or when they go home with a man they don’t know well. And so on.When I heard it, I nodded sagely. Sure, I believed in what I called “rape prevention,” and felt that everyone needed to take some responsibility for their own personal safety. But that’s all. I wasn’t anywhere near victim blaming. Because I was too smart for that. Too enlightened. Too smugly ensconced as one of the more influential sex assault prosecution experts nationwide. So naturally, I understood her perfectly.Except that I didn’t. Because I was victim blaming, even though I told myself I wasn’t. And in buying into the kind of “rape prevention” I believed in, I was a part of the problem. Many of us, most with the best of intentions, still are.The ad above from the Pennsylvania Liquor Control Board (now pulled) sparked a debate in feminist circles. The ad itself wasn’t the issue; most agreed it was offensive. Visually it sexualized violence, right down to the blue underwear around the seductively placed ankles matching the tile on the floor. That’s not a representation of the aftermath of a felony. It’s wanna-be pornography. And of course, it callously blamed both the curled up, naughty-girl and her irresponsible friends for not preventing the rape she apparently endured. No mention of the rapist.But while the attempt was botched, the underlying message begged a question: Shouldn't we warn girls and women about the dangers of losing control, and thus “becoming vulnerable?” Isn’t it simply a dangerous world, like it or not? Of course it is and of course we should, went the argument. It was a bold one apparently, expectant of a backlash from uber-feminist PC police who would label it victim blaming even though the goal was simply to “reduce vulnerability.”  When the backlash came, I initially sided against it. I had seen a career's worth of victimization- how could I not encourage safe behavior myself, in the name of reducing vulnerability? Because vulnerability invites danger.  Right?Wrong.Go back to the statement at the top of the page. Vulnerability does not exist unless danger is present. Choices, however reckless they appear, do not create danger anymore than liquor creates rape in a man who is not a rapist. Danger exists because of the choices dangerous people- rapists, in this case- make. From this reality, two others flow: First, encouraging young people (the most at-risk population, male or female) to avoid victimization through more responsible behavior will not prevent a single rape, as author Jaclyn Friedman points out in her piece on the subject. Rape is never an accident, and it’s almost always a planned attack. The rapist who cannot target the "better-behaved" woman will find one who isn’t. So there won't be less rape, just rape of perhaps different people. Of course, the predictable rejoinder is “well my daughter won’t be the targeted person, then.” Game, set, match. Admonish away.Except that she might be regardless, which is the second reality that results from Dr. Valliere’s observation. The woman who believes she is safer because she’s avoiding something like heavy drinking might well be safer to a particular kind of attack. But there are many others, and being lulled into a false sense of security because of the avoidance of one behavior will likely blind her to the danger that can exist under the most responsible appearing of circumstances.  Women are raped by trusted friends. They’re raped during the daytime while studying or just listening to music with known, clean-cut, well-regarded men in their communities, on their campuses, from their churches. Alcohol is extremely helpful to acquaintance rapists. But it is hardly their only tool.Youth involves blind spots, but regardless of age, risk-taking is at bottom the essence of life.  There is no elimination of it short of solitary confinement. What we must do is grasp that vulnerability exists only when danger is present, and turn the focus rightly on the dangerous and away from the endangered.Because when we create rules, particularly ones laced with moral superiority in order to somehow deliver us from evil, we then distance ourselves from those who break them. When those people are victimized, we rest easy, believing that our wisdom and temperance saved us. But there are always more rules, both to make and to break.  In the end, all that rule making accomplishes is the encouragement of an insidious urge to will to life something other than luck separating us from the unlucky.  So we'll draw attention to the choices the rule breakers made that we wouldn’t make. And we'll blame them for theirs.

In Paterno We Trusted. Now We're Left Cold.

Death comes for us all.  And while it seems to have come with relative and merciful swiftness for Joseph Paterno, there are many who believe that the man truly died in November of last year when his Valley was flooded with sick, pale light and a stinking truth stirred in its glare.  Death was not swift, but rather a protracted, miserably public, three-month torture session.  Some see this as the gross mistreatment of a scapegoat who had nothing to be ashamed of.  Others view it as the bitterly just end of a pompous villain, brought low in time to suffer his downfall. Neither view is accurate or at all helpful.What must be avoided, in fact, is a binary approach to viewing the man as his body cools and his soul proceeds to whatever is next.  Demanding that Paterno be either lionized or demonized allows for a pernicious diversion from what desperately needs to be understood, which is how the demons of secrecy, misery and darkness thrived in “Happy Valley” in the first place.Far too many would prefer a two-dimensional explanation to the real one.  They’d prefer, consciously or not, to reduce the shattering, life-altering experience of God-only-knows how many victims, fueled and protected by a monstrosity of an institution, to a stage play and a handful of players.  Western culture and the tender, succor of myth shield us nicely; it’s not a frightening, complex issue at all, but rather a simple “Greek tragedy” with an almost poignant, tsk-tsk lesson for those with ears to hear.  Paterno was its flawed hero, its fallen angel. A neatly wrapped archetype for the ages to follow.This is dangerous oversimplification.Acknowledging that the allegations are yet unproven, I believe they are true and that they involve far more than nine victims. I also believe that whatever blame there is for what occurred at Penn State is shared more broadly and in more nuanced ways than much of what’s been suggested so far.To be clear, I do not in the least blame the innocent spirit that underpins the excitement of cheering for the team.  I fully acknowledge the greatness of the football tradition that has played such a positive role in the development of the university, the lives of the players, and the fans and supporters. But if there is one thing I believe our universe is truly ordered with, it is the unbending concept of the yin-yang, the Chinese philosophical intellection that tells us light cannot exist without darkness, joy without sorrow, pleasure without pain.Prize without price.For decades, the prize of Penn State football greatness was won by many, but guided by, channeled through and embodied in Joe Paterno.  To assume that that prize came without some price exacted for it is the height of foolishness. The question is not whether it was paid, but how and by whom.  Paterno apparently had high personal and professional standards and valued character, service, and education as much as he did wins. He should be remembered warmly for it and emulated appropriately. But as well, he was both product and protector of an entity far too large for any ‘saint’ to control, and more importantly one that was depended on to produce: Money. Glory. Status. The entity became a beast. The beast needed to be fed. It’s worth noting that the Sandusky matter is not the first time institutional concerns and image have been accused of taking precedence over the welfare of youth in Happy Valley.While many questions remain unanswered, it appears at this point that Paterno acted without malice, but also with at least dangerous naïveté and at worst a perception noxiously colored by the responsibilities he felt toward his institution. His “superiors” appear much more directly responsible for decisions that apparently allowed a predator to spread additional misery in amounts we are years if ever from fully grasping. But wherever these men fall on the scale of guilt and accountability, it is the institution- the beast- they served that likely guided their decisions whether they fully understood it or not.And beyond these caretakers are the rest of us. We who demand the glory of gridiron victory to fill our lives, diminishing those who cannot deliver it. We who increasingly depend on the filling of stadiums rather than  public commitment to fund research and open classrooms. We who allow the stakes to rise higher and higher until nothing else can possibly trump the needs of the hungry institutions we've created, regardless of what unholy things thrive within their bowels.  We who eventually agree, whether in high-level meetings or in our own hungry hearts, that nothing else matters.Certainly not the silent anguish of boys on cold, locker room floors.