The Rigged System

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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76 Responses

  1. Avatar Saul Degraw
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    says:

    In related news, the GOP picked hack released a memo as to why she would not prosecute. This is a hatchet job designed to ram Kavanaugh to the Court. A mockery of democracy

    https://www.washingtonpost.com/politics/in-memo-outside-prosecutor-argues-why-she-would-not-bring-criminal-charges-against-kavanaugh/2018/09/30/4e096654-c520-11e8-9158-09630a6d8725_story.html?noredirect=on&utm_term=.913c96776b41Report

    • Avatar Mark Boggs in reply to Saul Degraw
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      says:

      Which her piece answers a question not even being asked in the present moment: Should we bring charges?

      The question to be answered is: Should this man be on the Supreme Court for the rest of his life?

      That seems a far easier answer.Report

      • fillyjonk fillyjonk in reply to Mark Boggs
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        says:

        I keep coming back in my mind to “this is not a criminal trial, it is a job interview” and job candidates have been dismissed for far less stuff in their past. (And for lesser jobs: this is essentially a lifetime appointment, so, maybe 40 years’ influence)Report

      • Avatar Koz in reply to Mark Boggs
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        says:

        That seems a far easier answer.

        Actually, no. I’ve read most of Mitchell’s document, though probably not as carefully as others.

        There’s one particular point in there I thought was very smart, not directly related to the credibility of her allegations (or lack of it), which has gone largely unremarked but relevant to your comment above.

        That’s to say, the Ford allegations fail by a reasonable-doubt criminal standard. But in addition, they also fail by preponderance-of-the-evidence more-likely-than-not standard as well, and this is very important in the context of arguments like yours and other lib arguments of a similar nature.

        That’s to say, without a preponderance of the evidence, you really got nuthin’, and there’s no number of times that you can ritually incant “job interview” to change the situation.

        And even in preponderance-of-the-evidence-land, propositions still have to be argued for and established. “I believe her” is an emotional spasm, and defensible in isolation. But as something that’s intended to be conclusive to another party, it’s a disgrace. And there’s people here who should know better.Report

    • Avatar Tod Kelly in reply to Saul Degraw
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      says:

      Mitchell is 100% correct.Report

      • Avatar Em Carpenter in reply to Tod Kelly
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        says:

        I believe the correct analysis would have been that she was unable to draw any meaningful conclusions due to her questioning of Kavanaugh being cut off before she could get anywhere. I also agree that whether or not he’s prosecutable was never the question.Report

      • Avatar Saul Degraw in reply to Tod Kelly
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        says:

        Maybe on a legalistic standpoint but this also seems blatantly partisan to provide cover for a Kavanaugh confirmation. Also “checkmate libs” bashing.Report

      • Avatar Morat20 in reply to Tod Kelly
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        says:

        I would argue she’s not, for two reasons.

        1. “Whether to bring charges” was not, in fact, what she was there to do. It’s not her state, it wasn’t what she was tasked with, and it wasn’t what her questions were aimed at.
        2. She did not conduct a full investigation. She didn’t even conduct a cursory one — after all, she was prevented from questioning one of the two people she was even allowed to talk to!

        How can you make a claim about whether to prosecute when you have questioned only one of the four people present (and started to, but were prevented, from questioning a second), much less bothered to seek out any information? Oh, and when you weren’t actually questioning them as a prosecutor, but instead were playing mouthpiece for a bunch of guys too scared to talk on their own?Report

        • Avatar Saul Degraw in reply to Morat20
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          says:

          A lot of analysis on the Kavanaugh hearings indicates that it hurts the Republicans in the House but likely helps them retain control of the Senate. This is probably a net gain for the Republicans because it just means two years of gridlock for everything but judicial appointments.Report

      • Avatar Stillwater in reply to Tod Kelly
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        says:

        Mitchell is 100% correct.

        Yes, in the same way that saying the gloves didn’t fit OJ’s hands is 100% correct.Report

  2. Avatar Em Carpenter
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    says:

    Really well done piece, Tod. Thanks so much for sharing it. I so hope that girl has found peace and a good life.

    Forgive yourself- you were young then too.

    I have a story from my time as a prosecutor that I’m sort of itching to tell, but I think we are all worn out on this topic, maybe.Report

  3. Avatar Kristin Devine
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    says:

    I’m going to go out on a limb with a hacksaw and slightly argue with part this beautiful piece that I really enjoyed reading.

    There is a practical reason why sexual assault victims – particularly when the accuser knows her assaulter – are treated differently than victims of many other crimes. If someone’s murdered, there’s a body, if someone is seriously assaulted, say, in a bar fight or whatever, they’ve got broken bones and oftentimes witnesses to back up their story about who started it. The police can see that a crime was committed. When someone steals from you, you had property and now they have the property. There’s a much more concrete footing to demonstrate a crime was committed. You absolutely do have to prove that you owned something to the police when someone steals from you. That’s why it’s so risky to leave your title in your car, because if someone steals your car, they can claim ownership. That’s why we keep cash in banks instead of in our mattresses.

    With a sex assault scenario there is none of that concrete evidence. It comes down he said, she said. There are rarely witnesses and evidence may or may not prove anything. Building a case has to come down to whose story is more believable and who is the overall more reliable witness. To investigate and prosecute such a case, by necessity entails recalling traumatic events in great detail and investigating the characters of both accused and accuser.

    It is not inherently sinister for the police to require a burden of proof to be met before investigating a crime. It’s actually reasonable that they do. One time my son was at a football game and our rather sketchy neighbor showed up at my door and claimed that my son had punched his son and broke his tooth and that he would need $500 for the dental bills right then and there or else he was going to call the cops. This didn’t sound like my son, so I put him off and drove to the football game. My son knew nothing about it and no one had witnessed any assault. I took pictures of my son’s uninjured hands and got the names of the people he was with and one of them knew the kid had broken his tooth a couple days before. It was a shakedown. The next day when he came back “for his money” I presented that evidence and he left. But if I didn’t have that evidence? If it was a he said, she said kind of thing and if he had gone to the police, it would have come down to who the police believed.

    Now, obviously, the police, authority figures in every arena, and the culture as a whole have too long erred grossly on the side of believing men and doubting women. Given men’s track record in this arena it really is a hideous level of wrong that women’s words are immediately doubted and that they have to basically prove their charges before they can even get their case investigated.

    But we can’t deny the reality that investigating and proving these type of cases is inherently different and much more challenging than other kinds of crimes. People’s reputations and credibility are called into question because there oftentimes is no other evidence to rely upon. That is, of course, a grueling process for the victims. They will have to relive the events again and again because that’s the only way the police will be able to investigate. Even under ideal circumstances the investigation is going to be invasive and traumatic. While we need to do far better to mitigate the effects (understatement of the century) I just don’t think we can always ascribe negative motives to police in every case because it may just be an unfortunate side effect of the nature of the crime itself.

    Great piece, Tod.Report

    • Avatar Em Carpenter in reply to Kristin Devine
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      says:

      Let’s say the neighbor did file that report and the cops did investigate. Do you think they would ask the alleged victim what he was wearing that might have provoked the punch? Why he would be at the game in the first place? Whether he had allowed the accused to punch him in the past? How many others he had allowed to punch him previously?
      That’s the difference. Rape victims are not simply asked to corroborate; they are asked to prove they didn’t want or deserve what happened to them.Report

      • Avatar Reformed Republican in reply to Em Carpenter
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        says:

        There is a large difference between getting punched in the face and having sex. People frequently have sex on a voluntary basis. It is much less common (except for people engaged in combat sports) for people to voluntarily get punched in the face. That takes it back to having evidence limited to witness testimony and having to establish the credibility of that testimony.Report

      • Avatar j r in reply to Em Carpenter
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        says:

        Let’s say the neighbor did file that report and the cops did investigate. Do you think they would ask the alleged victim what he was wearing that might have provoked the punch?

        I don’t think that this point is inaccurate or irrelevant, but I think that it needs to be considered in context to be fully appreciated. As Tod points out, there are tribal factors at work.

        If a person gets mugged in a certain part of town and the police think that person doesn’t belong in that part of town, they may very well ask that person what they were doing and why they were doing it there. If two people get into an altercation and one of them is the right kind of person and the other is the wrong kind of person, we know who has the presumption of innocence and who has the burden of defense.

        Likewise, if the victim of a sexual assault is from the right tribe and the alleged perpetrators are from the wrong tribe, then the investigation looks nothing like the ones talked about in this post.Report

        • Avatar Em Carpenter in reply to j r
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          says:

          In ten years of criminal law practice, I never had the victim blamed for a robbery. I’ve never seen a defense attorney defend his client by blaming the victim for being well dressed or wearing a nice watch in a bad neighborhood.Report

        • Avatar Chip Daniels in reply to j r
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          says:

          And oldie but still relevant:

          “Help I’ve been robbed!”

          OK, isn’t it possible you gave him your wallet voluntarily, and maybe now you have regrets? I mean, you have a reputation of being easy, that you freely give money to charity.”

          “What? no, he mugged me!”

          “Look, you were walking in a seedy part of town in a nice suit- what did you expect?
          And why would you want to ruin someone’s life over something like this?”Report

        • Avatar j r in reply to j r
          Ignored
          says:

          @EmCarpenter and @ChipDaniels

          Of all the things on which I would expect pushback, the observation that the criminal justice system treats crime victins in wildly disparate ways isn’t one of them.

          Here’s a story about a indigenous teenage girl in Canda who was kidnapped, but the police treated the case like a runaway: https://www.google.com.hk/amp/s/www.cbc.ca/amp/1.4425689

          Here’s a case of a black man that was killed by a package bomb, which the police initially investigated as either a targeted attack or an accidental detonation: https://www.thedailybeast.com/police-treated-first-austin-bombing-victim-as-a-suspect-before-two-new-explosions-proved-them-wrong

          I don’t know how many links I get before this goes into the spam folder, but two should make the point. Yes, the system is rigged. It’s rigged in a number of different ways along a number of different dimensions.Report

          • Avatar Maribou in reply to j r
            Ignored
            says:

            @jr @em-carpenter @Chipdaniels

            I don’t usually complain about this because it’s so minor and I have no proof of bias, just a hunch, but I feel the need to point out that j-r is NOT WRONG and this is my personal experience (less relevant than his links but it’s what I have), so:

            A few years ago all the windows in our car were smashed in. The middle-aged white cop who originally took my report was incredibly accusatory and basically tried to tell me I was lying about not having any enemies who would do something like this. I felt interrogated and accused, myself. He 100 percent did not believe me that as far as I knew it was totally random and was pushing hard at my story. It may be pertinent that I look pretty butch and I have a big tattoo on my chest, and we live in a very socially conservative town.

            I sicced Jaybird on them (middle-aged balding white guy) with a “I think MY HUSBAND is the best person to talk to about this,” and everything changed, they got way more polite and more serious.

            Later conversations all took place with my spouse and were all along the lines of “how awful that this happened, there’s been a rash of this in your neighborhood, it must have felt like a violation,” etc etc etc.

            ************

            In another situation, where I wasn’t a victim but I was reporting to the cops… back when we were poor, we lived in a gang-ridden part of town and I called in a domestic violence call on my neighbor because I could literally hear through the wall that he was throwing furniture at his kids. Dispatch wouldn’t send someone until they put me through the wringer of “does he have a gun?” “I don’t know, but he’s threatening to kill them” for about 10 minutes, and it took them 45 minutes to arrive. At one point I was told that if I was that worried, I should just go over there myself. (!?!??)

            About a year later, we moved across town to a good, college neighborhood and I thought *maybe*, I *might* have seen someone possibly cutting through the backyard in a sneaky fashion. The cops were there so fast they could literally have hung up the phone and no one even tried to suggest I was anything other than credible.
            ****
            That’s just anecdata, not proven anything, but I can tell you how different those experiences felt. And if me, a middle aged white lady who wasn’t reporting sexual crimes, felt that much disparate treatment, I can only imagine how much it can sometimes suck for folks who are far less insulated to report a crime.Report

          • Avatar Em Carpenter in reply to j r
            Ignored
            says:

            I’m not suggesting victims aren’t treated in disparate ways.
            I made a general point about the framework of how sex crime victims are treated. Not that no other crime victims aren’t treated badly- but disbelief or downplaying happens much more frequently than the victim blaming we see in rapes.Report

    • Avatar Tod Kelly in reply to Kristin Devine
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      says:

      Hey Kristen! Great to see you!

      I agree with what you’re saying here, but only up to a point.

      Frankly, it would be easier for me to accept that this was the issue at hand were there not so many cases where there is physical evidence, both of sex and violence, where police, prosecutors, and juries (and communities!) still decided that victim was lying or crazy and deserved no remedy. Most of the cases I link to, in fact, are ones where there was evidence, but really no one cared. And that’s to say nothing of the cases where the police, prosecutors, and juries decide a woman really was a victim of a crime, but a judge undoes it all and decides no punishment is deserved because… whatever.

      Still, I get your point.Report

  4. Avatar Pinky
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    says:

    This article uses a burglary investigation as an example. But what would happen if your neighbor stole your rake for a few hours, returned it in the same condition, and then claimed you’d loaned it to him? Or if you told the police that your neighbor tried to steal your rake, but when you confronted him about it, he left? I don’t think the investigations would go too far.

    ETA: Thanks, Kristin, for making this point better than I did.Report

    • Avatar jason in reply to Pinky
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      says:

      I doubt an investigation about a stolen rake would go very far regardless of the circumstances. It’s what, twenty dollars worth of merchandise?
      If a person slaps another person, the investigation probably wouldn’t go far (workplace HR maybe) even though the action was an assault. If a person beats another person to a bloody pulp, one would hope the police would investigate that assault.
      Sure, investigation and prosecution are difficult, but the first step is understanding that the crime is severe, and that seems to be a significant part of the problem. We can ascribe negative motives to people who don’t understand that rape and sexual assault are severe crimes that warrant investigations.
      Given that the perpetrators cover a wide spectrum of society, I don’t think it’s too much of a stretch to say we can see that we don’t really take rape and sexual assault seriously. But sure, it’s hard, so let’s just forget about it.Report

    • Avatar bookdragon in reply to Pinky
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      says:

      Kristin certainly did.

      She acknowledges that the process is emotionally wrenching and tilted against the victim.

      That you could possibly compare sexual assault to something as trivial as ‘borrowing a rake’, let alone add in a bit implying that the victim is somehow ‘in the same condition’ afterward speaks volumes about your attitude and complete lack of sympathy or understanding.Report

      • Avatar Pinky in reply to bookdragon
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        says:

        It was Tod’s analogy, and I used it in the least offensive way I could.Report

        • Avatar Sam Wilkinson in reply to Pinky
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          says:

          As evidenced by the replies, you didn’t.Report

          • Avatar Pinky in reply to Sam Wilkinson
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            says:

            I didn’t want to do this, but here goes. If you compare a rape investigation to a burglary investigation, you can do it in two ways: comparing cases in which there is no physical evidence, or comparing cases in which there is. I didn’t want to discuss the kind of rape that would have physical evidence, so I chose the former. The point is that Tod should have compared two cases that were as comparable as possible, and if he did he would have found less difference in investigation.Report

        • Avatar bookdragon in reply to Pinky
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          says:

          Tod’s comparison was to a home burglary investigation. There is no physical violence involved in coming home to find that your house has been broken into, but there is a sense of violation, trespass, fear of future attack. Faint in comparison to what the woman in his story almost certainly felt after being gang raped while unconscious, but at least an experience that has an impact.

          You went from that to the sort of case where the normal person would shrug and say ‘eh, rake is back, so no harm done’. How you imagined that would be the ‘least offensive way’ of framing it is beyond me.

          If you wanted to go for he said/she said, then make it a neighbor who broke in and then claimed to police that you had told them that if you weren’t there, they could just come in and help themselves to whatever they wanted to ‘borrow’.Report

          • Avatar Oscar Gordon in reply to bookdragon
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            says:

            This does make for a more apt comparison, especially if the burglar took care to not leave obvious external evidence of entry (like a broken door or window).

            Excellent post, Tod.Report

            • Avatar bookdragon in reply to Oscar Gordon
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              says:

              Even with a broken door or window, if it was treated the way our criminal justice system routinely treat rape victims, there would be pointed questions about whether the door had always been broken, whether you could *prove* the window had been broken by the burglar rather than some kids a tossing ball, and whether, if the neighbor did break the door/window, it was still okay since you’d neglected to give him a key when, as he claims, you invited him to help himself to your stuff.Report

              • Avatar Oscar Gordon in reply to bookdragon
                Ignored
                says:

                Although, if you then claimed the neighbor did it, the police would be right to ask how you knew the neighbor was responsible.

                Honestly though, if you want a better parallel, it would be to look at physical domestic abuse, especially if the husband is well regarded (as opposed to the caricature of a wife beater).Report

              • Avatar Rebecca in reply to Oscar Gordon
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                says:

                Bingo.

                Recommended reading on the research on rapists:
                https://fivethirtyeight.com/features/science-says-toxic-masculinity-more-than-alcohol-leads-to-sexual-assault/

                An important point here, too, is that much of the research relies on the prison population. But since most people who commit sexual assault don’t commit other crimes (and most rapists in prison seem to have committed other crimes) much of the existing research is likely skewed. Instead, researchers tend to rely on behavioral questions and surveys, without actually mentioning rape.

                From what they do know, assailants have three things in common:

                1. Are these men supported by peers who also voice negative attitudes about women?
                2. Is it considered socially acceptable to look for the drunkest girl at a party and try to take her home?
                3. Are there social consequences for young men who ignore consent?

                To my mind, the Kavanaugh hearings totally failed as a teaching moment when it comes to teaching young men who ignore consent about the social consequences. We learned a lot about women who’ve experienced trauma, but failed to teach the lesson about consequences.Report

              • Avatar bookdragon in reply to Oscar Gordon
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                says:

                Yes. In that you are absolutely correct.Report

    • Avatar Sam Wilkinson in reply to Pinky
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      says:

      Bodies are definitely the same as lawn tools.Report

  5. Avatar Sam Wilkinson
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    says:

    Here is a nightmare a story about a doctor accused of abuse by nineteen separate patients, eventually found guilty, but given no jail time. Women had to fight hard to get the doctor prosecuted, and in the end, the justice system declared that those victims were worth less than his free time.Report

  6. Avatar Chip Daniels
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    says:

    We have these discussions, as if men don’t understand rape, or are so hopelessly confused and need to be educated on what it is like, how victims react.
    Which is bollocks.

    One of the deepest male fears is being raped by another man, like in prison. And like female victims, male victims of rape tend to never speak about it, never come forward to name their accuser, and always feel ashamed and fearful.

    Men know. They just pretend not to.Report

  7. Avatar Slade the Leveller
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    says:

    You know, this article got me to thinking. For all the self-congratulatory patting on the back the Western world does regarding its treatment of women vs. that of supposedly backward countries (i.e. take your pick of any Middle Eastern theocracy), when the rubber meets the road the same attitude that forces women to wear a burka outside the home is very much present here in the West.

    If you are a man who finds any of it hard to swallow, I ask one thing. Sit down with a woman you know and trust, and ask them how true these things sound to them, and the degree to which these scenarios reflect incidents in their own lives or the lives of people to whom they are close. Then, just listen.

    As it happens, I did just this with a woman in my church yesterday. She’s an older (70s) lady who related to me a conversation she had with some friends of hers. Every single woman in this group of 10 or so had a story of sexual harassment or assault to tell. I was shocked. I have no idea how pervasive this is now or has been in the past, but her story really rocked me.Report

  8. Avatar Nevermoor
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    says:

    In cases of sexual assault, however, our society very much wants to believe that the victim is mistaken, overreacting, or lying.

    This is the truest part of your (GREAT!) article. And it is what has driven me so crazy about this story as it has developed. The lengths to which people–here and elsewhere–will go to convince themselves of these three things is simply staggering (particularly the middle one, as the facts presented and accusations made simply do not permit (and have never permitted) a conclusion that Dr. Blasey is overreacting.Report

  9. Avatar Mike Dwyer
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    says:

    I agree with nearly everything in this piece. With that said, how do we make things better? I’m not a lawyer so I am just speculating, but would it help if there were private court systems where the accuser and the accused could go through the justice process and ensure their privacy until the point of (possible) conviction? The thing that so many people fear is someone being falsely accused and even if found not guilty, their reputation is ruined. And the accuser fears they will be slurred, labeled, etc for bringing the charges in the first place. Seems like if everything was done in secret, this might alleviate some of those fears.

    And legal question, if someone is found guilty, does the legal system demand that the victim’s name be released?Report

    • Avatar Em Carpenter in reply to Mike Dwyer
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      says:

      It might perhaps help- but it’s unconstitutional.

      The victim’s name can be learned by anyone who wants to come and sit in the courtroom and watch the trial.Report

      • Avatar Mike Dwyer in reply to Em Carpenter
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        says:

        But that’s my point, if the trial was private, woild that change things? Couldn’t we treat sex crimes like a juvenile crime and seal records/omit names, etc?Report

        • Avatar Em Carpenter in reply to Mike Dwyer
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          says:

          Juvenile criminal cases are treated differently; regardless of the kind of crime it is, they are confidential and closed (unless tried as an adult).

          An adult’s criminal trial must be “public” by dictate of the 6th amendment:

          “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation;”

          I’m saying that I think your idea is a good one, but that it can’t be done without a change to the constitution.Report

          • Avatar Mike Dwyer in reply to Em Carpenter
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            says:

            It’s hard for me to see a way to dramatically improve things without protections for both the accuser and the accused. I mentioned this in the other post yesterday but a person commented on one of the news shows yesterday that we are starting to do better on taking care of victims (admittedly a long way to go) but we also need to figure out how to take care of the accused.Report

            • Avatar Tod Kelly in reply to Mike Dwyer
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              says:

              In what way are we not taking care of the accused? I hear this notion all the time and I’m seriously baffled by it.

              If you do the math on number of actual sexual assaults and people convicted (which presumably is both guilty people and people falsely accused, whatever that ratio is), it comes down to 7 per 1,000, or 0.7%. And not all of those are punished by the courts after they are convicted. I’m certainly not arguing that if if you fall into that category of people who are falsely accused and convicted that it doesn’t suck and isn’t a travesty of justice, but this idea that it’s this huge problem we need to be focusing on, I just do not get.Report

              • Avatar Nevermoor in reply to Tod Kelly
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                says:

                In fairness, that leaves space for it to be orders of magnitude more significant than the “voter fraud” concerns we use to excuse massive disenfranchisement.Report

              • Avatar Mike Dwyer in reply to Tod Kelly
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                says:

                @tod

                I think what I am referring to is what Sam talked about in his post. He basically said that since the justice system is terrible we should use the court of public opinion to carry out their own justice and the standards there are justifiably lower i.e. guilty until proven innocent. And of course we know that the supporters of the accused often go after the accuser in effort to tarnish their credibility.

                If there was privacy for both sides, it would prevent that kind of mob justice from happening to either party.Report

              • Avatar Tod Kelly in reply to Mike Dwyer
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                says:

                I…. have a million questions, so I’ll try to limit myself.

                I’m not sure I understand why it has to be different from the way we handle any other crime. What is it exactly about this particular crime that it should be the justice system’s priority to hide the fact that someone has been accused of, arrested for, or is being prosecuted for sexual assault, so that no one in the community might think badly of them? Or do you want to have all criminal cases tried in public without releasing any information of what happens in them?

                Do you think that, for example, when someone in MS13 is accused of or arrested for having raped someone, we should hide that fact from the public? Or is this more a thing we would grant to certainly predetermined privileged class(es)?

                But maybe my biggest question which is this: Exactly what problem is it that exists right now that you are you trying to solve by wanting to create extra shields, protections, and public relations assistance for people accused of sexual assault?

                As to what Sam said about public opinion: whether or not that’s what you and I want, it’s inevitable. If the justice system refuses to protect a particular community, that community is going to be hostile towards the justice system and the people who are perceived to be preying on them. That’s not an opinion of what should or should happen, it’s just a fact. Sam’s tongue is a flamethrower, but he’s not wrong. If the system isn’t being reformed (and it’s clearly not), why should we force women — especially women who have been victimized — to have their first priority be the most positive PR for the people they believe (or know) have sexually assaulted them?Report

              • Avatar Rebecca in reply to Tod Kelly
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                says:

                It’s also a matter of other voices.

                How often has one woman come forward, only to have others also come forward?

                Privacy for the accused may, in fact, help him or her get off the hook in this way.Report

              • Avatar Jaybird in reply to Rebecca
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                says:

                I agree absolutely with this. #MeToo worked so well because so very many women came forward and said… hey. Me too.

                (Like, we can disagree about whether Franken’s sins were “that bad” or whatever but if it had just been that one woman in the picture who complained, Franken would still be in the Senate. It was the eight women who brought him down… and the main reason we knew about the eight was that #MeToo gave them the signal that they’d have social cover for telling their story.)Report

              • Avatar Tod Kelly in reply to Tod Kelly
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                says:

                I should probably note, Mike, with my second question I’m not doing a “white male privilege” thing with you. I think I’m trying to point out that if we create a special system for people wanted for/ being quested about/ being prosecuted for sexual assault, we want to be careful about all the types of circumstances that would wrap up into it — unless as I said, we had different systems for different classifications of people accused. Which seems like a brand new can of worms to throw into an already fraught mix.Report

              • Avatar Mike Dwyer in reply to Tod Kelly
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                says:

                Tod

                You ask…

                “Exactly what problem is it that exists right now that you are you trying to solve by wanting to create extra shields, protections, and public relations assistance for people accused of sexual assault?”

                …and you answer your own question in the OP:

                “…with other crimes, our society wants to believe the victim. In cases of sexual assault, however, our society very much wants to believe that the victim is mistaken, overreacting, or lying.”

                Remember I noted privacy protections for both the accused and the accuser. If the accused has privacy then perhaps they will be less inclined to slander the accuser and if the accuser has privacy, perhaps they will feel more emboldened to speak.

                As I noted to Em, these are just ideas for how to fix the very problems you describe in the OP, not something I am passionately advocating for.Report

              • Avatar Em Carpenter in reply to Tod Kelly
                Ignored
                says:

                I understood it to be a suggested mechanism for keeping the victim’s identity private too, which isn’t really done for a variety of reasons, including open courts. And since that right to a public trial inures to the accused, I think Mike was suggesting this as incentive get defendants to agree to keeping it confidential, if their name is kept private as well.
                I think it’s unworkable for a variety of reasons, but I didn’t read it as intended to meet a pressing need to protect the accused.Report

          • Avatar Nevermoor in reply to Em Carpenter
            Ignored
            says:

            I actually disagree with you here. As I understand the idea, it would be to keep things private to protect the possibly-innocent accused’s reputation. So all that would be needed from the accused would be a public trial waiver (akin to the speedy trial waivers that already exist).

            That said, my understanding is that the law is a mess. In California, for example, you cannot condition a sexual assault settlement (during litigation) on confidentiality. But, if you are suing for sexual assault under the law that permits childhood assaults to be sued on many years later, the complaint stays anonymous until a judge has a chance to look it over. Of course, this is civil–rather than criminal–but I think it shows the complexity of public feeling (at least in my state)Report

            • Avatar Em Carpenter in reply to Nevermoor
              Ignored
              says:

              I don’t think that’s accurate. Public trials are more than just the right of the accused- there’s also a right of the public to have access- the 1st amendment right of the press is an example.
              A defendant can’t insist upon a closed trial. It would be a very rare circumstance that a trial would be closed to the public.

              Civil cases are of course a whole other animal.Report

              • Avatar Nevermoor in reply to Em Carpenter
                Ignored
                says:

                So you’re right that public access judicial proceedings is a default, but that isn’t a Sixth Amendment issue, and it’s (to some extent) discretionary for the Judge (both when the parties ask to seal and when a third-party (e.g. journalist) asks to unseal. There is also certainly precedent for secret proceedings (including Qui Tam cases, where there is no national security issue in play).

                If the idea is for the government in a criminal sexual assault trial to always offer confidentiality (pursuant, perhaps to a statutory obligation), and to proceed that way if the accused waives their sixth amendment rights, I can see plenty of moral or ethical obligations. I can see the press hating it, and trying to wedge the First Amendment in there. But I cannot see the scheme being impossible.

                Maybe there is something about criminal law I’m missing, but I don’t see it yet.Report

              • Avatar Em Carpenter in reply to Nevermoor
                Ignored
                says:

                It’s unworkable because neither side may demand it and either side may object. And you can’t make it a rule because the constitution forbids it.

                As a practical matter, as a defense attorney I have a hard time imagining a situation in which I would recommend my client waive a public trial. The defendant’s name has long been public at that point- it serves no purpose, but public trials certainly do.Report

              • Avatar Mike Dwyer in reply to Em Carpenter
                Ignored
                says:

                Em – two questions:

                1) What if the entire process was private from the moment an accusation was made, until the trial was completed?

                2) What if all proceedings were recorded and archived so if the accused wanted an appeal or re-trial, there would be a record of all court proceedings for reference? And if the accused is found guilt, obviously some of the privacy goes away, at least on their side.

                And I get that none of this may be constitutional today, but it seems reasonable to speculate about solutions.Report

              • Avatar Em Carpenter in reply to Mike Dwyer
                Ignored
                says:

                1. I think that could potentially have merit (if not for the obvious legal pitfalls). It would be difficult but it can be done, as it is when juveniles are charged. But then you’d have defendants of other crimes arguing that they should be likewise spared embarrassment and entitled to confidentiality. And you’d have an uproar from the press.
                2. Pretty much all felony courts are courts of record, so that’s already the case.Report

              • Avatar Ed O in reply to Em Carpenter
                Ignored
                says:

                It’s always deeply bothered me that the press feels entitled to report on trials before a verdict. Everyone and their grandmother had an opinion on OJ’s guilt before there was a verdict, and when the acquittal became public, that changed approximately zero people’s minds. So OJ’s reputation was permanently destroyed despite his acquittal our supposed ideal of presumption of innocence. Why wouldn’t it be a pure improvement to bar the press from mentioning trials except after a guilty verdict?Report

    • Avatar Tod Kelly in reply to Mike Dwyer
      Ignored
      says:

      With that said, how do we make things better?

      As I said in the piece, vote for more women. Here’s the backward engineering:
      Basically what needs to happen is that victims of sexual assault need to be treated as victims by the justice system, not suspects, and those arms of the justice system that act directly or indirectly as advocates for victims of other crimes need to do so these victims was well. How do you do that? Make sure every line person buys into that simply idea. How do you that? Make sure all of their supervisors buy into that simple idea, How do you do that? Rinse an repeat, all the way up the layers until you get to the people with the most sway, who coincidentally are the people we have the most direct impact on their even having a job.

      So: vote for more women.Report

  10. Avatar Rebecca
    Ignored
    says:

    Here’s some pretty rigging for you.

    I was at a party with a friend. I had been drinking.
    8 She left with another boy, leaving me to find my own way
    9 home. Kavanaugh and a friend offered me a ride home. I
    10 don’t know the other boy’s name. I was in his car to go
    11 home. His friend was behind me in the backseat. Kavanaugh
    12 kissed me forcefully. I told him I only wanted a ride
    13 home. Kavanaugh continued to grope me over my clothes,
    14 forcing his kisses on me and putting his hand under my
    15 sweater. ‘No,’ I yelled at him.
    16 The boy in the backseat reached around, putting his
    17 hand over my mouth and holding my arm to keep me in the
    18 car. I screamed into his hand. Kavanaugh continued his
    19 forcing himself on me. He pulled up my sweater and bra
    20 exposing my breasts, and reached into my panties, inserting
    21 his fingers into my vagina. My screams were silenced by
    22 the boy in the backseat covering my mouth and groping me as
    23 well.
    24 Kavanaugh slapped me and told me to be quiet and
    25 forced me to perform oral sex on him. He climaxed in my
    14
    Alderson Court Reporting
    1-800-FOR-DEPO http://www.AldersonReporting.com
    1 mouth. They forced me to go into the backseat and took
    2 turns raping me several times each. They dropped me off
    3 two blocks from my home. ‘No one will believe if you tell.
    4 Be a good girl,’ he told me.

    That’s in the Senate Judiciary filings on Kavanaugh’s nomination. Filed the 26th; before his testimony, before his Fox interview, way before the ‘limited investigation’ was started. Obviously, this wasn’t considered ‘credible’ because she wouldn’t go on record for fear of having her life destroyed, again.

    I urge you to go watch his interview with Fox again. The bit about the “I didn’t have a car” seems suddenly comprehensible. Of course he didn’t.

    The woman wouldn’t provide her name. So we, the public, go without knowledge of this claim for days. I doubt the ‘female assistant’ knew of this, either.

    Read that report carefully. It’s horrific. Source: https://www.judiciary.senate.gov/imo/media/doc/09.26.18%20BMK%20Interview%20Transcript%20(Redacted).pdf

    I am enraged.Report

  11. Avatar North
    Ignored
    says:

    Powerful post Todd.Report

  12. Avatar guilty one
    Ignored
    says:

    Great post Tod.

    I want (well, not really, but I feel compelled nonetheless) to share a perspective from the other side — that of the guilty perp.

    My first sexual encounter was what is now known as a date-rape. I was a drunken teen at a party, egged on by drunken friends to finally have sex with my girlfriend (who was also drunk at the time). I was all over her and she kept telling me no but didn’t really do anything to physically stop me, so I kept going. It was a weird dynamic in the ’70’s, with the female sexuality double-standard in full force, where the girl was expected to put up a good show of resistance while giving in for the first time, so as not to give the impression she was too easy — and everybody knew it.

    I had no idea at the time that what I had done was a rape — according to the narrative, this was how it was done. I was completely blind-sided when she showed up at my place of employment the next day with her older brother to confront me. They were both quite angry with me, but I guess the narrative of the day won out, because her brother backed off when I told him that her mouth said no but her body said yes, and then she calmed down too. My girlfriend and I continued to date for several months and had multiple fully-consensual sexual encounters afterwords, but that does not absolve the guilt of that first time. Not after I realized what I had done. That’s “not me”. It just couldn’t be.

    I haven’t seen that girl since the ’70’s. I have no idea how the encounter effected her long-term. I’ve tried unsuccessfully to track her down. I desperately want to apologize, certainly for her, but also for myself. All these years I’ve been unable to forgive myself. It’s effected every sexual relationship I’ve had ever since. I’ve damn near needed a written and notarized consent form to get over erectile dysfunction I don’t otherwise suffer from when having sex for the first time with a new partner. It’s been horribly embarrassing, but I definitely deserve that at the very least. And it’s completely eliminated recidivism, so that’s a positive I suppose. I honestly don’t think I’m even capable of repeating the crime, and I’m absolutely unwilling to. I can’t describe the shame I feel when I think of how she might have suffered over all these years from my actions on that one night so long ago.

    From my perspective, I can definitely envision Kavanaugh doing everything he’s been accused of and getting away with it, even feeling at the time like it was no big deal — the kind of thing that happens all the time. Same with everyone else at the party(s) — completely forgettable and now long forgotten. I got away with worse, and so did a whole lot of other guys in that era.

    I am so glad that we’re finally having these public conversations about consent and sexual misconduct, finally making small steps from “boys will be boys” and “no means yes if she doesn’t fight you off” to concepts of “enthusiastic consent or no deal”. I wish that had been the narrative when I was 17. Good riddance to the old ways of dealing with this, they can’t die out fast enough. A culture that encourages young men to be rapists and young ladies to be victims does not serve any of us well, and the repercussions of that era reverberate to this day.Report

    • Avatar Tod Kelly in reply to guilty one
      Ignored
      says:

      Sorry, I’m just seeing this now.

      I have to say that, although you clearly crossed a line, I’m impressed with your honesty with yourself looking back. I don’t know that many people are able to do that, and I wanted you to know I appreciate both your honesty and you willingness to share your story hear.

      I think you’re right about the importance of talking about consent, and how it’s part of what needs to happen to make a change.

      Thank you again for posting this.Report

  13. Avatar Warren Dexter
    Ignored
    says:

    It is a very insightful piece, thank you.
    We know the same High School stories, and I thought that it was Junior year, but the football team “train” story was really weird to hear. I was not at the party, and I just remember the same casual way that it was gossiped. The girls seemed capable of some laughter and fun-poking because the story included the word “shit-faced” about the girl. The she-had-it-coming crew was out in full force. It was a mess, and I would have supported any “whistleblowing”, but never felt that I had anything but hearsay, personally. I always assumed that the story of the “line of boys” was a cruel joke they played on her, saying that they had done it as a way of teasing her while drunk, but that actual “rape” was not part of the picture. Reputation meant a lot to all of us then and I assume that there was some sense of judgement that came through, as it did for you in reporting the case.

    The additional role of alcohol in these stories is not to be diminished, we have a great many problems that stem from liquid idiocy.

    As my parting shot, I am all full up on my quota of self righteous pricks of both sexes using their ink to tell other people they are “part of the problem”.

    Congratulations on a good following for your work, and blessings that it may be a good contribution to the understanding and bettering of our community.Report

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