Let me start with a disclaimer: I believe that “rape culture” is a real and dangerous thing. I believe that “no means no” and that when initiating sexual contact an affirmative “yes” ought to be required, despite the awkwardness such requests might present. I have “taken back the night” in multiple demonstrations over the years, and I sure as shit think that it is a very low bar, indeed, to suggest that a person be conscious when another party initiates sexual contact and/or intercourse. This is an obvious point, but an important one–simply put, I do not condone sexual assault. Before I went to law school, I worked in Victim’s Rights at a DV shelter that also had a crisis line for survivors of both sexual assault and domestic violence. One of the things that motivated me to attend law school was a desire to be able to more actively participate in victim advocacy, because being in court with my clients without the ability to speak up for them was so frustrating. If you had asked me 15 years ago, I would have scoffed at the idea that I would ever be a defense attorney instead of a prosecutor. Despite that, I have spent the past decade defending individuals accused of crimes. My case load is not comprised of the casual college-student pot smokers I envisioned representing, but rather is largely composed of sex crimes, crimes of domestic violence, child abuse, and homicide.
People sometimes confuse standing for the rights of the accused with somehow tolerating criminal behavior. This is unfair and untrue. I have reviewed evidence in child pornography cases that has led me to sit in my car, crying, calling my parents to thank them for having worked to protect me when I was still too small to protect myself. I have gone into trials convinced of a client’s guilt. I’ve disliked-even hated-a number of clients I’ve represented. (I have also come to deeply care about some of them with full knowledge of the depths of what they’ve done , but that’s another topic entirely). I have appeared at sentencing hearings where I have wished desperately that I was sitting at the other (prosecution) table that day, worried that I, the person tasked with humanizing the person in the shackles sitting next to me, will fail to articulate any mitigating information because, to be honest, none really existed. I have fantasized about changing careers and entering a profession with less darkness on countless occasions. I mean, with all of these emotional, ethical, and intellectual challenges, why do it?
I believe that we are all more than the worst things we have ever done. I believe that who we are at 20 is not and cannot be definitive of who we are at 40. I have had the opportunity to grow and change as I have aged, and I believe that everyone should have the chance to change. I also believe that cross-examination, the right of confrontation, the exclusionary rule, the presumption of innocence, and the adversarial system are all vital, necessary parts of the rule of law. To facilitate these things, defense attorneys must exist. Period. There must be balances and checks, and there must be a group of us who are willing to search for the good in a person who has committed terrible, criminal acts. Even if that means challenging police authority or an accuser’s credibility. Even when that’s uncomfortable. Especially when it is both relevant and uncomfortable. (We have tasked neutral judges as the gatekeepers of relevancy, and I would suggest that is a pretty good idea when considering the alternatives). If we abandon those principles because of the horrific nature of certain crimes, that abandonment dilutes and threatens all of our liberty. Because there are different perspectives, and different “truths”, and advocating the version of truth held by both the alleged victim and the alleged perpetrator is fundamental in any attempt to administer justice.
I also believe that while juries can-and do-get it “wrong” sometimes, that the jury verdict of guilt beyond a reasonable doubt holds significant weight and should not be easily discarded. With zealous advocacy on both sides and a belief in the structure of it criminal justice system, the jury ought to speak the truth. Knowing that an accused person had competent representation is a comfort to me. It means (again, with due deference to the number of documented exceptions) that despite all of the rights we have chosen to protect and provide to the individual accused, despite the heavy burden of proof, members of our communities have determined after careful consideration that no reasonable room for hesitation exists in labeling the actions of the defendant as “criminal”–a label that does, and should, carry meaningful implications about (at a minimum) a person’s decision-making skills, and, at times, the overall evaluation of one’s character given one’s ability (or lack thereof) to confirm one’s conduct to the often basic rules we have endorsed as a society. Consistent with these beliefs, I rely upon on the jury verdict in the Stanford Swimmer Sexual Assault Case and trust that there was a fair consideration of the facts. I am comfortable drawing the conclusion that the defendant is, in fact and by law, guilty of sexual assaulting the young woman who provided the powerful victim impact statement many of us have read in recent days. I say that without caveat. I’m unimpressed by the suggestion that alcohol was the primary factor in his decision-making on that night because, as many have observed, only a small percentage of those who consume alcohol (even to excess) commit sexual assaults. I also know of no little girl, anywhere, that dreams of being digitally penetrated by a stranger behind a dumpster when she grows up.
So, now that he’s guilty, what does society do with him, exactly? Admittedly, I am a vocal and aggressive opponent of the prison system for the very simple reason that, statistically speaking, prison is unsuccessful in preventing future criminal behavior. Any rudimentary review of statistics demonstrate that nation-wide, our recidivism rate is abysmal. I also reject arguments of general deterrence (again, statistical data just doesn’t support this as effective). As a pragmatist and a fiscal conservative, I also see little to no value in punishment for retributive purposes because again, the data suggests that this is an extraordinary expensive indulgence towards retributive instincts, and for me, the law is intended to regulate some of our natural tendencies towards vengeance. I do, however, agree that there are people who are simply so dangerous that separation from the general population is necessary to protect the public at large. If someone is one of those people, the question for me then becomes how long of a separation is necessary to ensure that the criminal behavior will not be repeated.
Our incarceration system is seriously lacking when it comes to providing people tools to modify their behaviors. This is painfully and particularly true when it comes to sexual offending. Research suggests that denial of culpability is present a majority of cases of sexual offending. In my state, the entire first phase of treatment for sex offenders is addressing the nearly ubiquitous minimization or refutation of the criminal behavior. (I would suggest that this is, upon reflection, not a startling fact. Just as I know of no little girl who dreams of being sexually assaulted, no little boy-absent serious indications of sadism and/or psychopathy-dreams of growing up to be sexually predatory). Very few offenders, even when able to admit the reality of the horror of the assaults they have perpetrated, are able to set aside the very natural inclination towards self-preservation and acknowledge that incarceration, along with education and treatment, may be necessary to prevent them from engaging in criminal behavior. No one wants to go to prison. This seems to be a pretty basic reality.
I would suggest that we cannot say with any confidence that the terrible, criminal decisions of a man at 20 years old are definitively predictive of his behavior at 40 years old. That said, I do believe that a demonstrable lack of empathy, a seizing of criminal “opportunity”, and the engagement in acts of violence (and I unequivocally believe sexual assault to be an act of violence) offers insight into character and the need to protect the public. Most people are never convicted of crimes, let alone violent ones. Knowing that a person is capable of crossing that line is absolutely relevant in evaluating who they are, but it is not, and should not, be definitive. Some people are comfortable with the assertion that “20 minutes” of criminal behavior is sufficient to determine the entirety of someone’s character. I reject that assertion as vehemently as I reject the draconian would-be curse that would damn me, a person in my 30s, to forever live as the choices I made at 19. I have grown up. Out scientifically, my frontal lobe has fully developed. Described more emotionally, I’ve experienced things both joyful and painful, and those experiences have altered my perspective and my actions. I’ve hurt people in ways that I would never repeat, even if that hurt is not criminalized. I’ve read books and learned things and won and lost arguments. I’m different now. With every passing year, I will continue to be.
I would suggest that a life sentence is rarely appropriate, and is not appropriate in the Stanford case for the reasons I have espoused here. (If the reader here holds that belief when confronted with serious criminal activity, “locking up and throwing away the key” while rooting for the person to be sexually assaulted and treated as a creature less than human, I realize this essay isn’t speaking to you, and I’m impressed you made it this far). To the people that suggest the victim will be forever altered by the perpetrator’s criminal behavior-that may be true. It may not. People have varying capacities for healing. I advocate for the idea that this victim (and every victim) is entitled to outrage, grief, and any number of other emotions. That said, a victim/survivor should be afforded the courtesy of society not presuming that something that happened TO her rather than BECAUSE OF HER will function to determine her identity. I would also advocate that anything, *any thing*, that happens BECAUSE of her should not eclipse the remaining parts of her character. Our experiences undeniably shape us. That is different than defining us.
If any of this persuades a reader that life sentences shouldn’t be handed out or that punishment for punishment’s sake isn’t the answer, then I’d urge everyone to put away the pitchforks, metaphorically and literally. Do not fall into the ineffectual but natural trap of vengeance. In the Stanford case, the defendant has a built-in safeguard to put the public on notice of the potential recidivism risk-he is now a registered sex offender. The intention of the registry, however flawed the implementation will be, is not punitive; it is intended to inform (and therefore protect) the public. Instead of calling for a more lengthy sentence, advocate for education and rehabilitation because that is what will actually prevent criminal activity in the future . That’s true in this defendant, and for many others. Treat the empathy deficit that is so obviously present. Allow for biological advancement as the frontal lobe of the offender develops. Give the offender the opportunity to ultimately reintegrate into society because there is virtually nothing in the field of social science that suggests that those marginalized with limited housing and employment opportunities perform better or less criminally than pro-social individuals. Nothing about rehabilitating an offender (and thus protecting the public from future infractions) is mutually exclusive with supporting a victim and allowing her space to define her future and to heal.
While everyone works on that, if we could stop making assumptions about my beliefs because of my job, that’d be nice, too.