When I wrote the post on the Stanford rape case last week I finished the posting with a feeling of incompleteness. For some reason I feel compelled to write more about this topic, to finish the thought, story, or whatever it is that I’m actually writing.
I first came to live in Tallahassee in January 1988. Shortly after I arrived, the local newspapers exploded with the case of young woman, who while intoxicated, was sexually assaulted by 3 members of the Pi Kappa Alpha fraternity. There are many parallels to the Stanford case. The participants were all students, all intoxicated, and the defendants all claimed that the victim consented. I see the FSU case as more egregious because it involved multiple assailants and the fact that when the sexual activity was finished the defendants dumped the unconscious young woman in the hall of another fraternity house and then called the police in an attempt to frame the other rival fraternity. Also, it appears that the other fraternity brothers helped cover up the evidence and came to court in mass to support the accused. The case was in the headlines for the next several years and the Pi Kappa Alpha fraternity was kicked-off the campus for many years.
In the FSU case, known as the Pike case, the defendants all entered into negotiated plea agreements that spared them criminal convictions and prison time. One defendant was ultimately convicted and sent to prison following his violation of probation by failing to check-in with his probation officer. In the decades that have followed, it does not appear that any of the young men involved ever committed another sexual assault or were involved other criminal activity despite what we would now consider a very lenient sentence.
In researching the FSU case I came across an article about the victim in that case, and I was really touched by the young woman’s words because they echoed what the victim in the Stanford case said in her letter to the court. The young woman from the FSU case has really struggled in the years since the night of her attack. According to the article there have been PTSD issues and trips to alcohol rehab. How much of this is from her rape experience isn’t clear, but what is clear is that her experience with our legal system did little to help her with healing. Indeed, what she describes in the article about the judicial process came across to me as a second victimization. The most private areas of her life were invaded and exposed to the public, her integrity and honesty were questioned, and she was forced to relive an experience that she had great difficulty recalling and was traumatic for her. Sadly, she never got the one thing that she feels would have helped her the most – an apology from the young men. My reading of the article left me with the impression that the apology and the attendant reaffirmation of her dignity is much more important to her than the degree of retribution imposed by the courts.
When I read the letter by the Stanford victim I saw this sentiment echoed. She felt victimized by the process, angry at the defense attorney, and disappointed at the lack of apology from the young man.
I have been the attorney representing the accused in sexual battery cases and I have been that lawyer who has had to cross examine the alleged victim of a sexual assault. I get how they feel. It’s one of the reasons I didn’t pursue a career in criminal defense law. I know that my cross examinations can be brutal, especially in a case where the only evidence is a dispute of consent. Many of the alleged victims whom I have had to cross examine were children whose testimony is easily influenced and whose memories are often very unreliable. I also know that my cross examinations have revealed false claims and saved innocent young men from the stigma of a conviction.
Most sexual assault cases do not involve strangers, but people who are relatives or friends. Many involve egregious violations of trust that destroy relationships and families. It often seemed to me that what our legal system treats as criminal activity is really something beyond that for the parties involved. Whether I won or lost my clients’ cases, I never felt that our system did much other than leave the people involved even more hurt and angry. I know that those cases, more than any others I’ve worked on in my career, took a toll on me and left me feeling very conflicted about my participation.
In a criminal prosecution the accused and the accuser have almost no opportunity for reconciliation. One of the first orders issued by a judge when considering bail for a defendant is to order no contact with the victim. If a conviction occurs, a court will almost always order that a defendant have no contact with the victim. There is no opportunity, even if desired by the accuser, for the parties to ever have a conversation about what a happened and to find reconciliation. Courts impose these restrictions in an effort to protect the accuser. Granted, these days a victim can address the court during sentencing, but as evidenced by the Stanford victim’s statement, that doesn’t provide the conversation that she needs to happen.
I want to suggest that, perhaps, we need to consider whether or not victims will be better served in these cases if we were to offer some sort of a non-judicial option for resolving these cases. What if we offer the accuser a choice in how their cases would be handled and a greater voice in the goals of the case? What if we offer resources to the victims that will help them over the long-term to rebuild and improve their lives? In both the Stanford and FSU cases, both women spoke of their desire that their cases create change in their assailants. What if, instead of retribution, the goal of these cases wasn’t simply to determine guilt and punishment, but to make a meaningful positive change in the lives of both the accused and the accuser?
In closing, I want to say that I have tried my best to write with sensitivity and compassion about this subject while also offering a different perspective. I have also tried to stay true to the legal scholar’s obligation to question and examine how our system works and how it can be improved. Our current approach has failed for too long and isn’t creating the sense of peace and resolution needed by those involved.
