We’ve not come Far Enough when it comes to asserting Sexual Assault Claims

I first became an advocate for stronger rape laws and prosecution when I was in high school.  It was nothing personal for me. My neighbor was a member of Junior League of Omaha.  The organization had just started one of the country’s first rape victim support lines.  She asked me to volunteer and I went through what passed as training back in the mid 70s to spend an evening a week answering the phone. I was prepared for little more than making referrals to a list of  approved sources but frequently got a little more than I bargained for.  I realized there was a need to change the way we approached sexual assaults.  When I got into university, I helped the University Women’s Action Group by teaching young women–mostly in sororities–on how to be safe on campus as well as how to do limited self defense.  We also worked hard at moving sex crimes out of the property crimes divisions of local police departments, getting more police women to respond to rape reports, and changing the Nebraska Rape laws so that a perpetrator could be charged with the crime without the women having to come up with two to three witnesses.  We also moved to block defense lawyers from putting rape victims on trial by using their personal history against them.  I had one friend that was raped on campus that was afraid to report her assault because she had been smoking pot.  She felt that the police would think she was asking for it by being stoned and alone in the library. When I look back at those times, I realize that our criminal justice system has made some progress.  When I read recent headlines, I realize that we have not yet come far enough.

Three recent high profile sexual assault cases look to end with a very old fashioned problem.  It still seems that being a less than perfect human being means that you ask for it. The first of these cases is that of Jamie Leigh Jones who had accused KBR of perpetuating a climate of sexual abuse of women and some of its employees of rape.  A Houston jury just decided her sexual assault was ‘consensual’ . The verdict appears mostly based on Jones’ credibility due to a history of depression and her past experiences while her accused rapist’s criminal history of violence against women was suppressed.

Now 26, Jones said she was drugged with the date rape drug Rohypnol and brutally raped in 2005, while working at KBR facility Camp Hope in Iraq. She also told jurors that after the incident, she was imprisoned in a shipping container and prevented from calling family for help, and later had to go through reconstructive surgery on her chest and psychiatric counseling for Post Traumatic Stress Disorder.

But jurors in the case against the Houston, Texas-based company decided in the end that Jones’s sexual encounter was consentual, rendering other charges moot.

An attorney for Jones did not comment on a possible appeal, but said that he respected the jury’s decision considering the evidence they were allowed to see.

“We do think it’s a shame that Jamie’s entire personal history was dragged before the jury,” attorney Todd Kelly told the Chronicle, “when her rapist’s criminal history, including violence against women, was suppressed from them.”

Jamie’s case was championed earlier by Minnesota Senator Al Franken ensuring her right to a jury trial when KBR was trying to force her into arbitration. The details of her assault are particularly disturbing as well as the behavior of KBR to avoid the charges. None of this appeared to impact the jury, however.

With the high-profile victim looking on in the Senate chamber in 2009, Franken won passage of a measure in her name ensuring that military contractors couldn’t force victims of sexual assault into arbitration, as opposed to suing.

Jones got her day in court, and on Friday, a federal jury deciding her civil suit in Houston decided she was not raped, vindicating a company that charged she had exaggerated or made up her story, in part for fame, publicity and a book deal.

The jury also rejected Jones’ claims of fraud against KBR, which she said had failed to enforce its policies against sexual harassment or protect her from the alleged attack by the company’s contract workers in Iraq.

Jones’ suit was aimed at KBR, its former parent company Halliburton, and KBR firefighter Charles Bortz, who she claimed led the attack while she worked for KBR in 2005.

Bortz claimed he had consensual sex with Jones. He was not criminally charged and has filed a countersuit against her, according to the Associated Press.

The other high profile case that seems on the ropes due to past history of the accuser–in this case over possibly lying to get asylum in the U.S. and knowing a few criminals–is that of the maid whose charges brought about the resignation of IMF head Dominic Strauss-Kahn and tanked his chances of being nominated as a candidate for the president of France.  Not only is the prosecution’s case said to be falling apart due to her associations and questions about her asylum case, she was held up in a NY Post story as a prostitute with no evidence provided.  She is now suing the paper for slander.  That case probably hinges on her credibility also.

The hotel maid who accused Dominique Strauss-Kahn of trying to rape her wants her day in court, her lawyer has said.

She still could get it, even if prosecutors decide to drop the criminal case amid what they say are doubts about her trustworthiness.

Regardless of what happens in the criminal case, the woman could pursue her claim in a civil lawsuit, a route taken successfully by some after high-profile criminal cases ended without a conviction. While the housekeeper’s credibility would still be a significant issue, different legal standards for civil and criminal cases could give her claims — which Strauss-Kahn denies — a greater chance of prevailing in civil court.

A civil case can offer the prospect of money and establishing that wrongdoing, if not a crime, was committed. And for some people, bringing their own cases gives them more of a sense of control, instead of putting themselves in prosecutors’ hands.

“The civil suit represents the only avenue for the alleged victim herself to achieve justice,” says L. Lin Wood, an Atlanta-based attorney who represented a woman who accused NBA star Kobe Bryant of raping her in a Colorado hotel room. Bryant said the sex was consensual. The criminal case was dropped after the woman told prosecutors she couldn’t take part in a trial, but she sued Bryant and reached a confidential settlement that bars Wood from talking about the case itself.

What is most interesting in these cases that are considered “he said, she said” is that the women’s personal history is still the overwhelmingly important criteria for witness credibility, while the man’s personal history is not considered as relevant or as important to his credibility as the perpetrator of assault.  Ms Jone’s case was particularly violent. You would think that prior history of the accused would be germane.    Charles David Bortz was arrested in October 2006  for Battery in Okaloosa County Florida.  Dominic Strauss-Kahn is well known as a womanizer and has had at least one woman claim that he sexually assaulted her in the past.  One accuser has refiled charges against him.

Does this mean that we’re now back in the day when you have to be the ‘perfect victim’ in order to get fair treatment in a rape case?

Maybe not much has changed after all, despite 30 years of evolving sex crime laws. Lawyers can no longer badger a woman on the stand with questions about what kind of panties she wore or how many times she’d had sex before — questions that were routine in rape trials I covered years ago.

But the personal life of a rape victim is still considered fair game in too many cases, particularly when the issue is whether the sex act was by consent or involved force or threats of violence.

I understand the reluctance of prosecutors in the Strauss-Kahn case to go forward. Their office was stung in May by the unexpected acquittal in a high-profile case of two New York City cops accused of raping a drunken women after helping her into her apartment.

Jurors told the New York Times they didn’t buy the cops’ story that they had done nothing more than “snuggle” with the inebriated woman. But they didn’t feel they could convict on the word of a woman with no DNA evidence and gaps in her liquor-clouded memories.

Yes, that’s the third high profile case. The oh-so-cuddle worthy officers of New York’s finest.

A jury acquitted two New York police officers on Thursday of charges that they raped a drunken woman after helping her into her apartment while on patrol.

The woman had described snippets of a harrowing night in which the officers, called to help her because she was extremely intoxicated, instead abused her. They insisted no rape occurred, with one allowing only that he snuggled with her while she wore nothing but a bra.

Does this also mean that women should be prepared to use the video camera portion of their phones at all times so they have the perfect out cry witness?   We have three high profile cases where we see nearly three identical outcomes based on the old idea of she asked for it because she …

Just when you think we’ve solved an issue with the way society treats women, we take some giant leaps backwards again.  It’s beyond depressing.  This will have what I believe is an intended result of discouraging rape victims of seeking justice against their attackers. Yup,  we all ask for it.  Beware ladies.

28 Comments on “We’ve not come Far Enough when it comes to asserting Sexual Assault Claims”

  1. bostonboomer says:

    Excellent post, Dakinikat. I thought there were laws to prevent a victim’s sexual history from coming in. I can’t see why a history of depression would mean someone would lie about rape. And as for Jamie Leigh Jones having accused someone of sexual harrassment in the past, why is that surprising in the culture we live in? She’s an attractive young woman. I know I experienced plenty of sexual harrassment when I was young. Of course in those days, there was no word for it and no recourse.

    • dakinikat says:

      I think there’s tons of sexual harassment only most women aren’t brave enough to follow up on it. That’s because you get a reputation by exposing your work place as a pit and no other company wants to take the chance you’ll do the same with them.

      and thanks! The more I thought on this last night, the more it reminded me of the problems of 30 years ago

      • Fannie says:

        Very true tdoay, the young women in the work force will quit, or be fired, and often will not file harassment charges against the owner or the abuser himself. The women who work next to them and are very aware of the hostile work environment will not come forward for fear of losing their jobs.

        It’s something that needs to be changed…….the younger women need support to make the changes.

      • Jadzia says:

        Actually, it can be even worse than that. One of the reasons that I apparently(*) lost my job at the law school last year was my failure to report a sexual harassment incident (that happened to me, and I declined to report it for all the reasons set forth above) per school procedures. The incident was discovered by HR and the senior administration about a year later, after a co-worker disclosed the situation in her exit interview. The three other women who were harassed by the same guy and DID report? All ultimately lost their jobs too. Guess who got a promotion, though?

        My point, I guess, is that even in workplaces that claim to have S/H reporting procedures, if the people enforcing the policies don’t take S/H seriously, the reporting procedure can very well become a sword that is used against people who have been harassed — not a shield. I would go so far as to say that this is not an uncommon, or unintentional, outcome, because those policies are not, IMHO, created for the benefit of women, but rather, for the benefit of covering the employer’s ass.

        Plus what Dak said about acquiring a scarlet letter among other employers if you report. Because if you report and leave, you KNOW you’re going to get the “name, rank, and serial number” reference from your old company.

        (*)I say “apparently” because the reason they CLAIM I lost my job was they say I refused a request to double my work hours (while 9 months pregnant). Unfortunately, nobody ever made that request. The only contemporaneous things that were going wrong were my impending childbirth and the sexual harassment situation.

      • JeanLouise says:

        Jadzia, I’m very sorry that happened to you.

        After years of sexual harassment, I finally got fed up and reported a particularly egregious and easily proved incident. I was subsequently ostracized even by the women with whom I had worked amicably for years. They risked sharing the shunning if they were seen chatting with me. I was subsequently passed over for promotion twice despite an excellent work record. The man who harassed me (a boss in another department) was suspended for five days but the behavior continued in a more subtle form and anonymous complaints began to be filed against me. Frankly, it was hell. The only thing that saved my job was that I had civil service protection. If I had it to do all over again, I would’ve surrepticiously taped the asshole talking to his girlfriend over the phone, sent the tape, anonymously, to his wife and taken a pass on the complaint.

      • Jadzia says:

        JeanLouise, I think your solution could potentially have been very satisfying. I will never understand why so many women will take any man’s side in these situations, regardless of the actual facts. In my situation, word spread all over the school (gosh i wonder how that happened?) and the dude’s girlfriend (who was a STUDENT! another big fail on his part) started pestering me with emails defending Her Man.

        I am beginning to think that we should just keep the “video” functions on our phones running at all times.

    • Minkoff Minx says:

      Yes, I thought sexual history was not admissible…this was a federal case, I wonder if this depression thing will now set precedent for any federal case.

    • Branjor says:

      Wow, if that’s what they’ll do just because of depression, can you imagine trying to pursue a rape case if the woman has a more serious mental illness or, god forbid, a personality disorder? That sends a clear signal to men that they have a green light to rape mentally ill women, unless maybe the victim is a 96 year old nun with a minimum of 8 stab wounds.

      • Fannie says:

        Maybe there should be a law in regards to information that is left out on the rapist history would be factored in his case records even after the case has been resolved.

        Know what I am trying to say?

      • dakinikat says:

        I was trying to find out why the assault evidence of the accuser in the Jamie Leigh Jones case was suppressed and I couldn’t find it. I imagine it won’t be withheld if he’s suing her civilly.

      • Branjor says:

        Not exactly, Fannie. What are you trying to say?

      • Fannie says:

        I am trying to figure out the rules of evidence…………….in order words Jones history gets one hell of a review, but the accuser does not get the same review, and his records are supressed?

        The investigators should have filed a report, and that report on the accused should have been made available to those deciding the case. Why was it not? I think the rules of evidence should be fair to both the victim and the accuser, why is one sided?

        The rapist himself was suffering a form of mental illness, far worst than her depression, and why doesn’t the investigation into his past violent life, surface in this case?

        I think the laws of evidence need to be changed, otherwise we will always have males calling women liars, and everybody in the courthouse thinking they are.

      • Jadzia says:

        Dak — I have not been following the Jones case but my best guess is that the defendants prior acts of violence against women were excluded as “prior bad acts.” That’s a pretty well established rule of evidence that is intended to prevent judges/juries from convicting somebody for uncharged offenses and to require the judge/jury to focus on the events that are the subject of the current charge. The only real exception (and law school was a long time ago, and I am not a criminal lawyer) is for modus operandi — if the defendant is alleged to have committed the crime in some unusual or “signature” kind of manner (for example, burgling a house and turning all the televisions to HGTV, to use a ridiculous example I just made up in my head), sometimes prior bad acts involving the same M.O. may be admitted to show a pattern. But generically-stated violence against women would not rise to the level of an M.O., because it’s way too common.

  2. JeanLouise says:

    To my knowledge, psychiatric history has never been off the table in trials. I have a friend who was sued as a result of a traffic accident. His pschological history of depression was brought out in a depostion. The case was thrown out by a judge but who knows if it would have been allowed in a case that has absolutely nothing to do with the issue at hand.

    This does expose the continuing discriminaition against those who have dealt with or are dealing with mental illness. I don’t know of any studies that say that people who’ve suffered depression are more likely to lie than anyone else. /snark

    • dakinikat says:

      Mentally ill people in institutions have always been subjected to abuse and very rarely perpetrators are brought to justice. It best, they get caught and fired then set free to abuse again.

  3. mjames says:

    Things have gotten better than they used to be back in the day, when my brother broke into the home of a Sunday School classmate of mine (she and I were 13 years old; he had just turned 16) and attempted to rape her, but was convicted only of burglary because she was fat, wore tight skirts, and “was just asking for it,” even though she was minding her own business, in her own home no less.

    Also better than when I was sexually harassed by the judge for whom I was clerking. Silly me. I thought I was hired for my brilliant legal acumen when it was really my ass that caught his eye. I had him dead to rights, but I couldn’t sue because my two kiddies would hear all about my wild and crazy sex life (those were the days), so I had to settle for broadcasting his misdeeds all over the courthouse. Everyone knew what a slime he was. I never had to appear in his courtroom again. He never sued me for slander. I had him terrified. So I did get justice, my own kind. But I could not pursue a legal remedy.

    However, I have problems with this post. It’s too all-inclusive. The hotel maid makes a terrible example of the point being made. She admitted lying about what happened right after the alleged sexual assault. She admitted lying about a prior “gang rape.” She lied in the grand jury – under oath. Come on, this was not some minor lying. NYC was my turf. No way would the D.A. backtrack unless there were very serious problems with the witness. To call her a victim is to jump the gun. Just because true victims of rape have a very difficult road in court does not mean that every woman who cries rape was actually raped. The rape must be proved.

    The alleged prior sexual incidents involving DSK would be inadmissible if a criminal trial ensued involving the hotel maid’s accusations, unless the modus operandi was precisely the same – which it is not. Otherwise, you run the risk that the jury convicts on the prior acts or on the cumulative acts and not on the specific case before the court, which must be proven on its own beyond a reasonable doubt. As for the hotel maid’s credibility, honesty is always relevant for impeachment. Once a witness has been shown to be a liar, the jury instructions are that the jurors can discard the entire testimony – or they can pick and choose what to believe. I don’t see how this woman sues civilly. It’s her word alone – and she’s an admitted liar, on the very subject of rape! (It doesn’t make any difference that she claims she lied because she needed asylum – how do we know that’s not a lie too? That’s the problem with liars.)

    Me? I don’t ever believe liars. Once someone lies to me, I never believe that person again. I haven’t believed a word Obama has said since he lied about Nafta and retroactive immunity for the telecom companies. I don’t believe the hotel maid. I have said repeatedly that DSK seems to be a real slime, but she’s a liar, a serial liar. She made false accusations of rape in the past. She has no credibility whatsoever.

    I don’t know anything about the Texas case. I do tend to trust juries, having served on two murder trials myself, but I do not trust Texas-style “justice,” as that state just loves to fry defendants, be they actually innocent or not, and loves to side with corporations in civil suits. And, after all, it’s KBR. I don’t know about the cop case either, but, if it’s true there was no DNA and she was drunk and didn’t have a complete memory of what transpired, well, hell, what was the jury supposed to do? Anyway, for me to pass judgment on either of these cases, I would have to read the entire trial transcripts.

    Just because it’s hard to prove a rape or sexual harassment case doesn’t mean we should throw out the rules. The burden of proof must be met, including the fact that the sex act was not consensual. As with any case, in order to prevail you need a solid witness. Not a perfect human being, dak, but preferably not a drunk or a liar.

    • JeanLouise says:

      Drunk women can be raped. Women who lie can be raped. They should not lose their access to the criminal justice system because they aren’t perfect human beings. In fact. people, mostly women and children, who’ve been sexually assaulted frequently lie about some of the facts of the incident(s) because of guilt, shame or trauma induced memory issues. Holding them to the standard that you’re putting forth, few, if any, victims of sexual assault would see any justice, at all, for the crimes committed against them.

      As to the NYC police officers case, the officer who was accused of the actual rape admitted in a taped conversation with the victim that he had used a condom when he had sex with her.

      As a former investigator of sexual abuse of children, I don’t trust juries to get it right even half the time. I suspect there are lots of reasons for that. Some people simply don’t want to admit that such evil people exist in their world because, then, they would have to accept that they and theirs might be victimized through no fault of their own. It’s much easier to blame the victim.

      We still have a long way to go to get victims of sexual assault justice. Eradicating the scourge seems a pipe dream to me.

      • Jadzia says:

        “Some people simply don’t want to admit that such evil people exist in their world because, then, they would have to accept that they and theirs might be victimized through no fault of their own. It’s much easier to blame the victim.”

        THIS. If a person can tell him or herself, well I’m not a liar, well I wouldn’t walk home alone at that time of night, well I wouldn’t have had that third drink, well I wouldn’t have worn a skirt that short, well I wouldn’t have forgotten to lock the window — order is restored to the world and “it” can’t happen to him/her.

      • mjames says:

        True enough. However, any case, civil or criminal, sex-based or not, rests on the strength of the evidence. If you’re relying on the testimony of an alcoholic or a liar on matters concerning the instant case, then you’ve got a problem. You do not have a strong witness. Especially in a criminal case, that’s fatal. For example, if a robbery victim is a drunk, the likelihood of conviction diminishes. He’s a drunk. He can’t see. He can’t remember. He gave the money away. And so on.

        What to do then with the true rape victim who has admittedly lied about the facts of the case or is a drunk? I would say proper witness preparation. Massive witness prep. You have to make the liar or drunk believable. Just as in any other case. If you are a civil lawyer, you have to assess whether the suit is worth it. I certainly would. Most prosecutors would probably proceed with a weak witness, even though their burden is higher than in a civil case, because of ego or stupidity. That’s why, in the DSK case, I’m convinced there is so much to impugn the hotel maid that even the D.A. was forced to acknowledge it.

      • JeanLouise says:

        In my experience, most prosecutors, unless they specialize in sexual assault cases, look for any reason to avoid prosecuting them. They’re difficult to prove, extremely time consuming and rarely garner the same prestige as other felonies such as murder or aggravated robbery. I think that they’re also influenced by their own discomfort in dealing with sexual issues. Who wants to put a ten-year-old on the stand and get her to relate the multiple incidents when Daddy made her blow him?

    • Fannie says:

      Things getting better for me will happen when I can bring my rape case to court 45 years later. I know it will never happen. However, I have heard some cases of rape from long ago going before the courts.

      So your brother is a liar, kinda proves that it’s the males who do the lying. As far as NY goes they have a very sad history when it comes to rape and convictions. I can’t help but think of Kitty Genovese, when 30 some odd people watched and did nothing.

      There once was a perfect women who took her case to the grand jury, but once they found out her boyfriend was black, she became the BAD Woman.

      • JeanLouise says:

        I’m sorry, Fannie, but I don’t think many jurisdictions will ever significantly suspend the statute of limitations for sexual assault. My state considered opening up a one year window on allowing old cases to be prosecuted in the wake of some old abuse allegations against priests in my state. The Roman Catholic Church, amongst others, went wild and the bill was voted down.

        Many women carry the emotional burden of sexual assault for years but most people just don’t get it. I remember that liberal-leaning US Supreme Court justice wrote an opinion on the issue in which he bent over backwards to protect the accused. Instead of letting a case go before a jury, he and some of his fellow justices denied victims any access to the criminal justice system.

  4. JeanLouise says:

    This is an excellent commentary on the Supreme Court decision: