On Being a Female Criminal Defense Lawyer in the #Metoo Age

I am female. I am a criminal defense lawyer.

I am a female criminal defense lawyer who defends clients accused of sexual assaults – many of whom may be innocent, and some who are absolutely innocent. I understand how false allegations are made and how police and prosecutors can pick them up and run with them – sometimes destroying an innocent person’s life because the authorities are unable or unwilling to competently and critically investigate.

I also have seen women who refuse to report assaults because they know that defense attorneys and the male-dominated police, prosecutors, and court system will make them suffer, attack their character, and cause more damage than they would have experienced if they just kept quiet.

There is a clearly identifiable pattern when women speak out about sexual assault or sexual harassment by powerful men. We see it playing out over and over again in the news today – when the government is filled with men who abuse women without remorse, they will band together and defend one another.

The Kavanaugh Hearings are a Joke

President Trump nominated a man named Brett Kavanaugh to sit as a justice on the highest court of our country, to participate in deciding the most important issues that will shape our laws and our society.

The man he chose is known not as a careful and conscientious jurist, but as a political operative who was selected and presented to the President by conservative groups. He was chosen to serve on our highest court because of his undeniable worldview where immigrants are less than White Americans and powerful men control women’s reproductive choices.

Once women began to come forward with allegations of sexual misconduct, the men who control the United State Senate lost no time before defending him, attacking the women, and pressing hard to confirm his nomination without a real investigation.

No Investigation, No Witnesses

Senate Republicans are moving forward with hearings where they will allow Kavanaugh to testify and deny that he was a drunken frat boy who assaulted teenaged girls at parties. They will allow only one of his accusers, Ford, to testify as to what Kavanaugh did to her.

They have hired a female litigator to cross-examine Ford, to avoid the obvious yet accurate picture of old white men roughing up a sexual assault victim, annoyed that she has become an obstacle.

Despite multiple corroborating witnesses, there will be no real investigation and the witnesses will not be called to testify. The Senate refuses to hear from Mark Judge, who Ford says was present and participated in the assault.

A second accusation is being ignored by the Senate. A third, and possibly more, will almost certainly come to light in the coming days or weeks.

Why is there no investigation and no corroborating witnesses?

I suspect it’s not because they don’t believe Ford or the other women. It’s because they do not care. It’s because they want someone on the Supreme Court who is like them.

Maybe it’s because the men controlling the process have their own sexual misconduct skeletons in the closet – could it be that this is how they would want to be treated if their own victims appear?

Whatever the motivations behind it, the U.S. Senate is proving itself to be blind to the #metoo revolution and what it means for women. Or, if they are not blind to it, they are actively fighting it – they do not want to see a world where women are in charge and men are held accountable for abusing them. And, God help the woman who gets in the way of what they want.

When the President of the United States is a Sexual Predator Who Defends Other Sexual Predators…

It’s no surprise that Kavanaugh’s biggest defender, even as the allegations of sexual misconduct multiply, is the President of the United States.

The President of the United States has been accused of more misconduct against women than any other politician I have seen. Not just wild allegations, but video evidence from his own mouth. His defense: they are lying. All of them.

The recordings of the President of the United States explaining how he just grabs women by the pu*** were just “locker room talk.” FYI there is no such thing as “locker room talk.” My husband, who played football and other sports, tells me that these things that people claim as “locker room” talk was not what happened in locker rooms. At least not the ones he was in.

What example are we setting for our children? Girls should not come forward when boys assault them, because they will be called liars and slut-shamed? Boys will be boys? Part of growing up for a boy is sexually assaulting young girls?

Why does the President insist he does not believe any sexual assault accuser who has come forward? Of course, he believes them. He lies, and he has no empathy for women or sexual assault survivors because he, the President of the United States, is a sexual predator.

I don’t know how many women have come forward with their stories of sexual abuse at the hands of the man who is now the President of the United States. There are a lot. How many have not come forward, after they saw the abuse, attacks, and even death threats received by the women who spoke up? How many have not come forward, because they were paid off by the President of the United States and his attorneys?

The President’s Defenses of Sexual Predators

According to Bob Woodward in his book, Fear, the President of the United State’s advice for dealing with sexual assault allegations is to “deny, deny, deny.” Add to that, “attack, attack, attack,” and that is what we have seen over and over from our President.

Not only to the women that he allegedly abused, but for any powerful man whose victims have the audacity to speak out. His responses follow a clear pattern – the accused is a good person, the accusers are lying, the Democrats manufactured this scandal:

  • Fox News CEO Roger Ailes, who was accused of sexually harassing two dozen women;
  • Fox News host Bill O’Reilly, accused of multiple sexual harassment claims;
  • White House staff secretary Rob Porter, accused of domestic abuse by two former wives;
  • Roy Moore, accused of sexual misconduct with teenage girls; and
  • Corey Lewandowski, accused of assaulting a reporter at a campaign event (not sexually).

The President of the United States’ Response to Ford’s Allegations

Deny, deny, deny, attack, attack, attack. The President of the United States says:

I have no doubt that, if the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents. I ask that she bring those filings forward so that we can learn date, time, and place!

The president, an alleged serial sexual abuser, knows that it is common for women not to immediately come forward. He knows from first-hand experience why women often do not come forward. And then he graciously asks “that she bring those filings forward,” knowing that there was no police report.

Former Democratic President Bill Clinton was No Different

This isn’t about right v. left. Unless “right” means sexual assault is okay, which I refuse to believe.

Powerful men who prey on women may call themselves Democrat or Republican – there are sexual predators on all sides of the political spectrum who lie about the things they have done. This isn’t about Bill Clinton, because he isn’t in the White House anymore – this is about what is happening right now, and it is about having proper investigations regardless of party affiliation, wealth, or power.

Sexual assault, and lying to the American people is not okay, and public officials must be held accountable, regardless of their political party.

Why We Shouldn’t Believe Every Alleged Victim

Back to me.

A female criminal defense lawyer, working in male-dominated courtrooms, still trying to make sense of the #metoo movement.

I know, from personal experience, that not every accusation is true. Women who have been raped or abused often do not come forward. And, many of the women who do make allegations are not telling the truth. I have seen cases where demonstrably false accusations were made where:

  • A stepdaughter researched how to make sexual assault allegations after her parents cracked down on her drinking and partying;
  • A parent made allegations of sexual abuse after the accused stopped giving her money;
  • The alleged victim accused a boyfriend of assaulting and raping her after she begged him to come to her house;
  • The alleged victim was mentally ill and had made similar allegations in the past;
  • A sick, angry ex-girlfriend wanted revenge;
  • The false allegations gave one parent an advantage in their divorce and child custody battle;
  • The alleged victim had “buyer’s remorse” after having consensual sex;
  • The alleged victim made false allegations after her boyfriend discovered she had slept with the accused; and
  • The alleged victim made false allegations after her racist father discovered she had slept with a black man.

How do I know they were false allegations? After a thorough investigation (by the defense lawyer, not law enforcement), the exculpatory evidence was found: multiple inconsistent statements, prior allegations that showed a definite pattern, writings where the alleged victim admitted to the lie, witnesses that law enforcement had never spoken with, financial records that showed the alleged victim’s motivation to lie, or other evidence that was overlooked or ignored by police and prosecutors…

How Do the Courts Protect Both Victims and the Wrongfully Accused?

In SC’s criminal courts, we have rules that are in place to protect victims. We also have constitutional protections that are designed to ensure every defendant receives a fair trial.

Injustices happen every day in our courts. Innocent people are sent to prison and forced to register as sex offenders. And, righteous victims are ignored or shamed by defense lawyers, police, prosecutors, judges, and juries.

At the same time, though, the criminal system is balanced to find the truth while protecting both victims and the wrongfully accused.

Probable Cause

No person should be arrested and charged with a sexual assault until law enforcement has investigated and determined that there is, at a minimum, probable cause that it happened.

Is a bare allegation enough evidence for probable cause? It might be, but, in most cases, it will take more than that to get a conviction. Law enforcement must investigate – talk to witnesses, corroborate the victim’s statement, look at the victim’s possible motivations to lie, look at whether mental illness is a factor, and discover whether there have been similar allegations in the past.

All too often, law enforcement gets an arrest warrant based solely on the accusation, doesn’t bother to investigate, and leaves it to the defense attorneys to find the truth and get the case dismissed…

Proof Beyond a Reasonable Doubt

Probable cause is enough to arrest and charge a person, but a jury must be convinced beyond a reasonable doubt before they can convict a person. This is a powerful protection for the wrongfully accused, although the system fails some people.

And, once the allegation has been made, the state has charged a person, they have spent time in jail, and endured a public trial, a not guilty verdict is small consolation – the defendant will never shake the suspicion and stigma that comes with being an accused sex offender.

Rules of Evidence

“He said, she said” is how the Senate is trying to paint the Kavanaugh hearings. It’s his word against hers.

Except it’s not.

In the criminal courts, the rules of evidence ensure that only reliable evidence is heard – hearsay is not admissible, for example, unless there is a hearsay exception that tends to make the out of court statement reliable.

It would, in general, be inadmissible for a witness to say, “she told me this was true.” It would be hearsay and it would also be impermissible bolstering. But, when there is an “allegation of a recent fabrication” (calling Ford a liar), it is not hearsay under the rule, and those witnesses can testify as to statements made by the victim, to corroborate the victim’s testimony.

Under Rule 801(d)(1), a statement is not hearsay if:

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is… (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose…

If the Kavanaugh accusations were in the setting of a criminal trial, with all the protections that are given to the accused, the corroborating witnesses would be permitted to testify… but this is not a criminal trial seeking the truth. It is a political show where the controlling Senators are determined to push through a nominee regardless of what the evidence would show.

Rape Shield Statute

Rape victims are also protected from “character assassinations” by SC’s rape shield statute, which prohibits evidence of a victim’s prior sexual conduct unless it is relevant to prove an issue in the case other than the victim’s character.

Like what is happening now on social media, defense attorneys used to routinely defend rape cases by proving that the victim is a slut, therefore it could not have been rape.

None of the protections afforded to rape victims in criminal proceedings are present in the US Senate. The protections afforded to the accused are unnecessary because the US Senate will do everything in their power to protect Kavanaugh from his accusers.

Whether Kavanaugh is confirmed to the US Supreme Court or not, this episode has demonstrated yet again that our country is controlled by old white men who will do whatever it takes to preserve their supremacy – against women and against people of color.

One Response to “On Being a Female Criminal Defense Lawyer in the #Metoo Age

  • It’s not just in gov’t. Here in SC, we have lawyers trading sexual favors for representation, paralegals and secretaries subjected to sexual harassment and assault that won’t come forward for fear of losing their careers.
    Is there no end to it?

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