Saturday, August 28, 2004

How Prosecutors Have Used CAVNET

Join the San Diego City Attorney's Office, the Los Angeles District Attorney's Office, the Brooklyn District Attorney's Office, the Oakland California District Attorney's Office, and many others across the country in enhancing your services to victims and in enhancing your work by connecting to others and obtaining information and resources quickly.

Apply online at www.cavnet.org.

Nancy E. O'Malley, Chief Assistant District Attorney, Alameda County District Attorney's Office Oakland, California:

“Through the incredible level of networking, including the support and participation of people from around the country, CAVNET has become the premier listserv on violence against women issues. Through CAVNET, expeditious legal research is extensive and broad based. Important social and political dialogue is fostered, which allows us to continue to examine what we as a country, we in the different states and local communities are doing to respond to violence against women. These social and political conversations have empowered those of us working in this field, as well as those experiencing violence as part of their lives, to implement effective change with the hope and belief that some day, we will bring an end violence against women. Without CAVNET, these national conversations simply would not occur. CAVNET has brought together such a powerful, broad and eclectic group who, by a touch of the keyboard, can be current with the issues and have a national voice. It is those individuals participating in CAVNET who can and will create a world free of violence against women.”

Concerned about Women's human rights?

Comment About CAVNET From Amnesty International's Women's Human Rights Program

"Amnesty International USA's Women's Human Rights Program has found CAVNET to be an invaluable resource as we learn about the longstanding and current work of US organizations and lawyers working to stop violence against women and also as a way to communicate with this network about what AI and AIUSA are doing on violence against women as a human rights violation. We look forward to many more years of excellence from CAVNET."

Sheila Dauer, Director Women's Human Rights Program Amnesty International USA



How Survivors Have Used CAVNET

Dear Marc:

"I just wanted to thank you for CAVNET. Over the past few months it has become an unbelievable resource for me in several areas of my life....One of the most important results of CAVNET is the empowerment I have found... I live in a very rural area of New Mexico – cut off from many of the resources that are found in the more metropolitan areas. CAVNET has given me the resources and the contacts that I would not otherwise have access to.

Let me give you an example of how CAVNET has personally helped me. I was being stalked by an individual who later was caught, incarcerated, and ended up taking his own life. I live alone and felt that I was cut off from help. I posted to the CAVNET listserv, and the information, resources, recommendations of books to read, personal experience, and legal advice was overwhelming. I had replies from counselors, police, authors, doctors, and many others. Most invaluable, I had advice from other survivors. I had the very tools I needed to accomplish what had to be done. I was able to follow the correct path in getting a restraining order, taking steps to keep myself safe, and doing things to prevent it from happening again. My fears were shared with others, and validated. I was also able to see that even though I had been left deaf and had a traumatic brain injury from past victimization, I am still able to become empowered to do what many others can.

I am so grateful that I can have these invaluable tools through the Internet. This is about the only way that they will be available to me. The disability community in New Mexico applauds you for CAVNET. I am extremely grateful for the help in my own situation. Another life saved and ready to help another do the same."

– Survivor

Dear Marc:

“CAVNET has been the most valuable resource of information for me throughout the last few years. As a victim of domestic violence including emotional and financial abuse and other abuses including child kidnapping, CAVNET has provided moral support and legal education, and has guided me to otherwise hard to find legal resources. In addition, CAVNET has put me in contact with specialists in domestic violence, and supportive and knowledgeable advocates. CAVNET has put together Advisory Committees providing excellent information which guided me while representing myself in court in a custody battle (www.custodyexpertise.org). I am most grateful for the help and empowerment that CAVNET has given me.”

– Survivor



Tuesday, August 24, 2004

What is CAVNET?

Communities Against Violence Network is working to end violence against women, facilitating collaboration with others around the world. Guided by some of the top experts and advocates in the world, CAVNET has created an international virtual community on the Internet, bringing together law enforcement, judges, social workers, educators, health care professionals, clergy, lawyers, experts, advocates, advocacy organizations, survivors, and marginalized groups, providing a gender-based perspective in addressing domestic violence, sexual assault, rape, stalking, youth violence, female genital mutilation, incest, youth violence, and violence against people with disabilities, among other issues.

Monday, August 23, 2004

CAVNET and Crime Victims With Disabilities

Put The Expertise of CAVNET To Work For You

In addition to addressing violence against women, CAVNET has also sought to bring together expertise and information on crime victims with disabilities. Our online library has a comprehensive collection of materials on victimization of people with disabilities, as well as material on the Americans with Disabilities Act (ADA).

Experts and advocates participating in CAVNET include practitioners specializing in crime victims with disabilities, as well as disability rights advocates, and they are available for consultation with other members.

Please visit www.cavnet.org and apply for membership today.

Sunday, August 22, 2004

NEW SERVICE FOR REPORTERS - FREE OF CHARGE

ACCESS OUR EXPERTS, ADVOCATES, AND ONLINE LIBRARY

Are you a reporter researching or writing a story about violence against women, crime victims with disabilities, youth violence, or child abuse? If so, CAVNET can help. We have access to over a thousand of the country’s best experts and advocates addressing these issues. Need to know more about the dynamics of domestic violence? Need to know about youth violence or youth suicide? Need more background on bullying? Need a human rights perspective for your story? Need a response from an advocate or expert? Turn to CAVNET.

If you agree to acknowledge the assistance of CAVNET, we will provide you with access to our membership, and allow you to access nonpublic areas of our online database.

CAVNET is one of the foremost authorities on these subjects. Founded and operated by the former Special Counsel to the Violence Against Women Office at the United States Department of Justice (since renamed the Office on Violence Against Women), CAVNET has brought together a cross-disciplinary group of experts and advocates, including national organizations, local organizations, advocates, lawyers, social workers, judges, members of law enforcement, researchers, scholars, authors, and others, who share their expertise and experience with one another on a daily basis, and add content to our online database.

Our membership is diverse, with experts in domestic violence, sexual assault, rape, incest, stalking, crime victims with disabilities, child welfare, international human rights, and many other areas affecting women and children.

Comments about our services include:

"CAVNET...allows experts and advocates to debate issues related to violence...., providing subscribers with a way to collaboratively address violence against women and children. Through its work, CAVNET positions groups nationally and globally to receive information and respond instantaneously."
– Ms. Foundation

"CAVNET has shown itself to be the premier online database concerning violence against women.... Not only does CAVNET provide timely and substantive research online, it does so in a way that saves time and resources. The busier you are, the more valuable it is. It's like having a research team of experts, available night and day... As former Director of the Violence Against Women Office at the Justice Department, I'm proud to be on CAVNET's Board of Directors, and grateful for the resource."
– Bonnie Campbell, Former Director of the Violence Against Women Office ,U.S. Department of Justice

"Amnesty International USA's Women's Human Rights Program has found CAVNET to be an invaluable resource as we learn about the longstanding and current work of US organizations and lawyers working to stop violence against women and also as a way to communicate with this network about what AI and AIUSA are doing on violence against women as a human rights violation.”
– Sheila Dauer, Director Women's Human Rights Program Amnesty International USA

"In addition to the volumes of material available and the networking, CAVNET also provides access to many of the world's leading experts who offer their advice and counsel..... There are many consultants, advisors, psychologists, psychiatrists, etc., on this list who charge hundreds of dollars an hour for the same advice you can get via CAVNET."
– Robert J. Martin, Vice President & Managing Principal, MOSAIC Threat Assessment Systems, Gavin de Becker & Associates

“Through the incredible level of networking, including the support and participation of people from around the country, CAVNET has become the premier listserv on violence against women issues. Through CAVNET, expeditious legal research is extensive and broad based. Important social and political dialogue is fostered, which allows us to continue to examine what we as a country, we in the different states and local communities are doing to respond to violence against women. These social and political conversations have empowered those of us working in this field, as well as those experiencing violence as part of their lives, to implement effective change with the hope and belief that some day, we will bring an end violence against women. Without CAVNET, these national conversations simply would not occur. CAVNET has brought together such a powerful, broad and eclectic group who, by a touch of the keyboard, can be current with the issues and have a national voice. It is those individuals participating in CAVNET who can and will create a world free of violence against women.”
– Nancy E. O'Malley, Chief Assistant District Attorney, Alameda County District Attorney's Office Oakland, California

"CAVNET is a valuable asset to this and to many organizations and individuals across the country. We are not able to travel the country and to stay in touch with what is going on in the field as often as we would like and run the day to day operations of this $1.5 million agency. CAVNET has enabled us to stay up-to-date on this dynamic field with its ever-growing body of research and information. It has also allowed us to gain information about other programs and issues within hours, sometimes even minutes. This is information that previously would have taken weeks to obtain. It lets us share information about our programs and other programs in Alabama with people and organizations we probably would not otherwise have had contact with. We cannot thank you enough for making CAVNET available to those of us on the front lines in this "war" against domestic violence."
– Kathy Wells, Executive Director, Crisis Services of North Alabama

"CAVNET gives me a wide variety of viewpoints from activist to academic to government as well as a rich treasure trove of ideas for enhancing or creating projects to reduce violence against women....The single most useful reference point for domestic violence and sexual assault.... I deeply appreciate the vision and commitment that underlie its creation."
– Nancy M. Ryan, Executive Director,Cambridge Women's Commission, Cambridge, MA

"CAVNET has been a resource of unmeasurable knowledge. When you become a " CAVNETer ", you join a family of people committed and focused on knowledge sharing and where job description or status has no barrier. Its is quite simply the "think-tank" to refer to at all times. When you put out a question to CAVNETers, you can be confident that the response is quick, informative and accurate. It's people helping people..."
– Colm Dempsey, Police Officer, Dundalk, County Louth, Ireland

"CAVNET has saved me an enormous amount of time in researching a variety of information I would normally have spent hours doing on the web. ... It keeps me informed of the newest "trends" in resources, research, news coverage, and the thoughts of those working in the field....(T)his site gives me insight and prompts me to think. It also keeps me on the right track.”
– Heather Hall, Domestic Violence Coordinator, Massachusetts Department of Corrections

"Timely and accurate information is crucial to violence prevention, and in our effort to educate about the relatively invisible topic of LGBT (lesbian, gay, bisexual, transgender) domestic violence, there is no better online database than that found on CAVNET. We rely on CAVNET to bring us valuable information and to disseminate our work to experts, advocates, and the public in a way no one else can. We are proud to be part of CAVNET's international network of content providers and participants, and recommend it without hesitation."
– Susan Holt, Program Manager, STOP Partner Abuse/Domestic Violence Program, L.A. Gay & Lesbian Center, Los Angeles, CA

"CAVNET is a true asset to the community.... I handled about 5,000 DV cases as a metropolitan judge in Albuquerque.... By sharing information and approaches to the problem of violence, and problems resulting from violence in our society, you provide a valuable clearing house for information and ideas."
– The Honorable Roderick Kennedy, Judge, NM Court of Appeals

“I recently retired after 25 years in law enforcement. I am now a victim advocate at Camp Pendleton MCB in California. Typically in law enforcement, training is offered only when legal mandates exist. Resources are few. Investigator's resources are determined by the size of their Rolodexes, which are carefully guarded. When CAVNET opened, a tremendous network opened and instantly began to vibrate with exchanges, resources, discussions, and (those nasty, dangerous thoughts known as) IDEAS. I've used the resources from CAVNET many, many times. And for every resource I have used, lives have been changed, and presumably some have been saved. Multiply my experience by the number of CAVNET members, and imagine how the world has been changed.”
– Diana Riehm, Victim Advocate, Counseling Services MCB, Camp Pendleton

"When I got a request from a person trying to help a young woman in Ecuador who is being stalked, I knew just where to turn: CAVNET. Within a day, several members sent me the names of nearly two dozen Ecuadorian organizations that may be able to help her! Without CAVNET, I would have had nothing to offer her in her language near her home. The CAVNET members are professional, knowledgeable, and very willing to share their expertise."
– Lyn Bates Vice President, AWARE

“CAVNET has been the most valuable resource of information for me throughout the last few years. As a victim of domestic violence including emotional and financial abuse and other abuses including child kidnapping, CAVNET has provided moral support and legal education, and has guided me to otherwise hard to find legal resources. In addition, CAVNET has put me in contact with specialists in domestic violence, and supportive and knowledgeable advocates. CAVNET has put together Advisory Committees providing excellent information which guided me while representing myself in court in a custody battle (www.custodyexpertise.org). I am most grateful for the help and empowerment that CAVNET has given me.”
– Survivor

“I turned to CAVNET recently for help for a young woman whose boyfriend was stalking and making inappropriate visits to her workplace. As a result I have received some great materials to share with her, including a check list of behaviors that would give one cause for concern”.
– Reporter, CNN Radio

"I have never had an electronic resource as useful as CAVNET. In addition to providing people with many opportunities to exchange ideas and information, CAVNET helps facilitate new friendships and promotes a high level of collegiality."
– Dr. Walter DeKeseredy, Ph.D, Ohio University

Please contact us for further information. Contact us at mdubin@pobox.com.

Why no support for the Kobe Bryant victim?

By Wendy Murphy, Esq.


The silence in the Kobe Bryant case from victim and women advocates has been deafening since the get go -

It makes absolutley no sense that all the wonderful advocates who toil everday in the fight for change and for justice have said nothing (or very little) in support of the victim.

Part of the problem may be the ridiculously misleading media accounts of the case. For example, story after story contains some tidbit about the victim having sex after the crime and before she went to the hospital -- she didn't -- and the fact that some hired gun for the defense has so little integrity she would lie under oath is hardly reason to stand silent -

Don't we all know by now that defense attorneys -- especially those with endless resources -- can always find an expert to testify that black is white - up is down -- etc.

Anyone who took the time to read the testimony of the defense "expert" in this case would have seen that she completely backed off her testimony on cross-examination -- as she should have -- such that she effectively conceded there is no "proof" the victim had sex after the crime and before she went to the hospital -

Indeed, the semen from the other man had sperm cells with no tails (indicating degradation and age -- inconsistent with recent ejaculation) and the spots from this man showed no reaction to the acid phosphatase test -- (again -- proof that the semen was not deposited after the rape)

More interesting is the claim that the victim must have had sex after the crime because there was more semen from the "other man" than from Kobe Bryant --

But if one acknowledges how he "finished" the crime (he ejaculated on her face), there would be no reason to suspect the amount of semen has anything to do with post-rape sex.

This case may well be a great learning tool on he dangers of overreliance on DNA testing - especially in consent-defense cases --

All the ruckus about getting more funding for DNA tests so the so-called "backlog" of kits waiting to be tested can be addressed is nonsense. The backlog exists because over 90% of the time, the evidence taken is irrelevant because there is no dispute that penetration took place - which means there's no need to test the evidence --

The real issue is -- how much money is being wasted subjecting every rape victim to a needless vaginal exam and what is happening to the results in terms of causing gratuitous harm to the privacy rights of victims in consent defense cases and what's happening to the integrity of the criminal jsutice system?

The hype about DNA is partly responsible for why the victim in the Kobe Bryant case has been subjected to needless harm in terms of her sexual privacy --

And it gave the defense "expert" fodder to concoct her silly claim about the victim having sex after the crime --

I hope this case leads to major reform in SANE protocol, DNA testing and overall privacy rights and related policy for rape victims. At a minimum, hospital personnel and police should never ask a victim about whether and with whom she had sex prior to the crime because asking the victim the question renders it fair game, to some extent, in the criminal case even if the evidence is completely irrelevant (as it is in the Kobe Bryant case.)

(I have pasted below a recent op-ed I published about the judge's ruling on the rape-shield issue in Bryant for those who wish to read more on the topic)

The lack of public support for the Bryant victim may well be related to the public's misunderstanding of the evidence and false information about the post-rape sex issue -- which is a serious problem that has angered me for a long time -- but my anger turned to rage last week after the ED of a shelter in Colorado actually took a position in favor of kobe bryant and against the victim in a "press release" she issued last week -

The woman who wrote the piece, Lisa Calderon, is entitled to her opinion but it is unacceptable, embarrassing and unconscionable for Calerdon to issue such a statement on the virtual eve of the criminal trial in an obvious attempt to influence the potential jury pool in favor of Bryant --

To be sure, when someone the public expects would be "on the victim's side" speaks out in support of Bryant, the impact is substantial --

Simply put -- it's one thing to be "on Kobe's side", it's another thing to exploit your position to give him an extra thumb-on-the-scale at trial --

In my opinion, the lack of strong public support for the victim is evidence that we've made very little progress in the past thirty years --

In addition to the op-ed I wrote about the judge's ruling on the rape-shield statute -- I am including a response to points made in an article written by Calderon --

Finally, let me share with you my prediction for the case -

Bryant will plead guilty to sexual assault without force (he's currently charged with sexual assault with the added factor of "force") for which he'll get no prison time and he'll issue an apology letter saying he made a "mistake" and thought the victim was consenting -

"mistake" regarding a victim's consent is not a legal defense in Colorado or in most states - but will sell well in the court of public opinion -

what Bryant gets out of this result is protection from public disclosure of the scandalous information the public hasn't heard yet including other victims of similar misconduct or attempted misconduct -- AND the specifics about how he "finished" the rape in this case -

Bryant knows he will never recover if the public hears what he did AFTER he grabbed her in a stranglehold, bent her over a chair and raped her from behind -

this threat of disclosure is why the lawyers for the victim filed their civil suit - - to literally have the threat of disclosure hanging over his head -

remember, the judge in the criminal case has sealed the "scandalous" info from public view b/c it's "too prejudicial" for the potential jury to hear -- but the victim's lawyer in the civil case could file a document at any time in civil court - which document could contain information about these scandalous tidbits because there's no similar "protective" order in the civil case - t

thus -- while everyone has attacked the vicitm for having a "money motive" because she filed the civil suit, the truth is -- the civil suit has served her well because ever since it was filed a couple of weeks ago - the irrelevant false stories about the victim's past, and "old friends" coming out of the woodwork to talk about her behavior years ago, have stopped making headlines -- ? hmm - what a coincidence -

and remember --

lawyers who represent victims in civil and criminal cases (including me -- i've been representing victims in civil and criminal cases for fifteen years) know very well how harmful it can be to the victim's credibility to file a civil suit BEFORE the criminal trial -- so we should assume the very bright lawyers who are helping the victim knew this and had a plan when they decided to file --

they were clearly willing to take the hit on the money motive (which would have been a question ANYWAY during trial -- "have you considered filing a civil suit"? - to which the victim would have replied "yes") in exchange for silencing the anti-victim forces on the eve of trial -- and they were right --

my concern is that too many victim advocates have remained silent for fear of appearing racist or "pro-government". I am hopeful people, like me, who feel strongly that advocates have been silenced too long by these fears will find a new space to voice their support for victims in all cases - including high profile ones where the defendant is black/the victim white.

The victim in this case deserved much more public support than she's received -- and I am horrified at the lack of outrage - not only in terms of what she's been through but with regard to the deafening silence, itself, from those who should be speaking out --

MY OP-ED -

KOBE JUDGE HAS AN ITO MOMENT

As many predicted, Judge Ruckriegle ruled that the Kobe Bryant victim's sex life will be fair game at trial. It wasn't a huge victory for the defense because the judge only allowed a 72 hour window -- just a small period of time prior to her rape kit examination at the hospital.

From what we know, this means the victim will probably have to talk about the consensual sex she had 2 days before the rape; something that should be off limits but that the victim may not care much about because she revealed the information to police and prosecutors a long time ago, when she first reported the rape. Moreover, the victim might want the jury to hear that her consensual activity did not hurt and caused no tearing or bleeding, which would be bad for Bryant because the jury will conclude that he, alone, caused the multiple tears to the victim's vagina that left her blood on his T-shirt.

For these reasons, the ruling is not a big deal. The prosecutor won't even try to appeal (and if he does appeal on principle, he won't care if he loses) because he knows the evidence won't hurt his case and he knows the victim is eager to get to trial. Remember, the victim (not Kobe) filed a speedy trial motion which means the victim (not Kobe) is pushing to get a full public airing of the truth.

Given that Bryant recently lost his motion to suppress from evidence the T-shirt he was wearing stained with the victim's blood and the statements he gave to police (described by his lawyers as too "prejudicial" to be revealed to the public prior to trial), Bryant has an even stronger reason to delay the trial at this point, if not avoid it altogether by pleading guilty.

These points notwithstanding, the judge got it wrong on rape-shield. Ruckriegle's ruling not only violates the Colorado Supreme Court's recent decision in a very similar case from 2002 (State v. Harris) it's bad public policy for women (and men -- more on this point later).

With the whole world watching, there's little doubt public opinion influenced the judge's decision and was a thumb on the scale in favor of Bryant. Given the lies that have been disseminated about the victim, the public would have been outraged if the judge ruled the victim's sex life off limits completely. Think about it -- the myth that the victim had "sex with three men in three days" is widely accepted as true (it isn't) and most people think if she DID have so much sex, maybe Bryant didn't cause her vaginal injuries. With this idea floating around, the public would have been incredulous if the judge ruled the victim's past sexual behavior was irrelevant.

I know, I know, the judge could have explained it all in a carefully written decision -- but to a public largely blinded by celebrity and gullible enough to believe everything they read, the judge knew the pro-Kobe crowd wouldn't accept anything less than at least a peek into the victim's sex life.

This is not unlike what Judge Ito did in the OJ Simpson case when he allowed F.Lee Bailey to ask Mark Fuhrman if he'd ever used the "N-word". At the time the question was asked, crowds of people were outside the courthouse; people filled with race-based rage. If Ito had ruled that such a question was both irrelevant AND unduly prejudicial (not to mention incendiary), the crowd would not have understood. How could a judge, in a case where the defense had successfully whipped the public into a frenzy about race, expect the mobs at the gates to accept his decision that a lead detective's use of the "N-word" was simply not relevant in a case where a black man was accused of murdering two white people? "Acquittal by frenzy" (or "pretrial motion victory by frenzy") has nothing to do with law -- but it is certainly effective. And all judges are affected by it.

The judge in the Louise Woodward case (the "Nanny trial") in Boston also ruled-by-frenzy when pro-British/anti-victim forces gathered outside the courthouse. Woodward was lawfully convicted of murder after her lawyers stupidly refused to let the jury consider manslaughter as an option during deliberations. The judge warned the defense that if they gambled with an all or nothing verdict strategy, he would not "clean up" the mess if they lost. But they did lose, and the judge did clean up the mess by reducing the verdict to manslaughter and sentencing Woodward to time-served. Once again, the mobs at the gates prevailed over justice.

It wouldn't be so bad in the Bryant case if the judge had narrowly crafted his ruling such that it would apply only to a unique set of facts not likely to occur elsewhere. No such luck. Judge Ruckriegle's decision - if it were the law in every state - would undermine important fundamental rights for all women. Here's why: By allowing in prior sexual activity --even for the limited period of 72 hours, the judge has essentially ruled that any rape victim who suffers the additional harm of vaginal bruising or tearing will have to subject herself to questioning by the defense about her sexual activity in the days before the rape, whether or not that activity caused any harm. Not only does such a rule render certain women more vulnerable to sexual violence for engaging in constitutionally protected lawful behavior, it violates fundamental privacy and sexual autonomy rights (Lawrence v. Texas, U.S. S.Ct. 2003) and runs afoul of the most basic rule in any criminal trial -- that evidence, to be admitted, must be relevant. Simply put, if there is no evidence of prior vaginal injury due to sexual activity, prior sexual activity is irrelevant. The victim suffered 2 relatively large vaginal tears and many smaller ones; injuries typically caused by force and friction (they have nothing to do with size). The defense wants to argue the injuries could have resulted from prior consensual sex. Fair enough. But the defense can't just SAY the injuries were preexisting. They have to have proof -- which doesn't exist in this case. There is simply no evidence the victim previously suffered injuries to her vagina, from consensual sex or anything else.

While the rights of the accused are important, there is no constitutional right to speculate or lie about the condition of a victim's vagina. Ruckriegle's ruling literally encourages sex offenders to be especially violent in their assaults. Why wouldn't all rapists want to injure, bruise or tear a victim's genital area now that they know this is the gateway around the rape-shield rule? Let's be clear about this. If Kobe didn't tear the victim's vagina, there would be no basis for the judge's ruling. It is not only cruelly ironic but bad public policy to develop a rule of law that rewards rapists with a better defense (and a right to violate victims' sexual privacy) if they choose to be super-brutal during their attack.

Oh -- I almost forgot -- here's the part that's bad for men: Lots of guys - especially pro-Kobe types and guys who like lots of sex -- will celebrate the decision because they will assume this ruling protects male entitlement. But the celebration will be short-lived because when women get the message that consensual sex is fair game in any rape trial where there are vaginal injuries, they are going to want less sex, and certainly less "creative" sex. Few women want their fantasies and erotic experiments aired for public inspection.

But if Ruckriegle is right -- women should refuse to have frequent sex with their husbands, boyfriends, etc. -- to prevent the defense from arguing that the victim's vagina was vulnerable to tearing because the victim was TOO sexual. And when they DO have sex, they should refuse to do anything funky that might give rise to a defense argument that they "like it rough" or wild, etc. So go ahead and celebrate guys -- oh and when your girlfriends and wives start saying "no" and stop trying new tricks -- be sure to give Kobe a call and tell him "thanks".

Wendy J. Murphy New England School of Law 154 Stuart Street, Boston, MA617-422-7410

MY REPLY TO CALDERON'S POINTS

Lisa Calderon writes about the value of "intersectionality" in the context of race/gender tension in the Kobe Bryant case ---

but in this context, intersectionality is a theory that offers a systematic way of keeping gender subjugated to race --

in turn, it causes a hierarchy that forces marginalized groups to jockey for position and it co-opts women and makes them obedient and silent to their position as a "suspect class" at the lowest possible rung on the ladder of civil rights -

Calderon has many things simply wrong when it comes to the criminal justice system -

For example, she writes that the judge in the kobe bryant case issued a "precedent setting" decision about use of the word "victim" -- it wasn't -- it was a single judge's decision with no precedential value whatsoever because he's not an appellate court. It wasn't even the first decision of its kind from a trial level judge.

and there are other points of contention addressed in turn below -
-- (Calderon's statement is preceded by an asterisk -- my observation follows)-

* A victim should be identified as such in court proceedings/Adefendant is innocent until proven guilty.

one can and should be called a victim after formal charges are brought b/c it respects the real world experience of the injured person -- it does NOT undermine the presumption of innocence anymore than the fact that the suspect is being "prosecuted" and has been "indicted" and was "interrogated" or even that the jury knows a prosecutor cannot ethically bring charges unless they believe in good faith they can prove the case "beyond a reasonable doubt" -- all these things arguably affect the presumption of innocence because the nature of language is such that it has an effect on people -- but to suggest that the word "victim" will make jurors think a man is guilty is simply silly. What should we call the prosecutor? -- "the guy over there" -- when you think about it - the word "witness" assumes the person actually saw what they say they saw -- so this word arguably insults the presumption of innocence, too, as do so many other words - but nobody complains - i could go on about other words -- why the attack ONLY on the word "victim"--?the bottom line is -- the criminal justice system is not a picnic and while language has its limits -- the word "victim" is no more powerful than a hundred other words that describe the roles of the people in the system -

* A victim is never responsible for the violence committed againsther/A woman can contribute to the perpetuation of a sexist climate.

this is outrageous!! -- a victim is NEVER responsible for the violence committed against her and a victim can NOT contribute to the commission of the crime by "causing" a sexual climate -

the right to autonomy never bends to the climate -- this issue is not unlike abortion in the sense that the right to decide what happens to ones body is absolute and rests exclusively in the control of the woman (or male) victim --

if the issue were solely one of morality -- Calderon might be correct -- or even if it were an analysis of civil liability/comparative negligence where "blame" gets assessed in portions -- her point would be well taken -- but she is completely wrong when it comes to criminal law because crime is different.

no person can be held responsible for their own criminal victimization - if the law were otherwise, certain "types" of people would be more vulnerable to violence than others and this is not the goal of criminal law - criminal law sees all people as equal - thus, whether one is a nun or a prostitute -- the law protects both equally ---

the simplest way to think about the idea is this -- the old saying "my right to swing my arm ends before it hits you in the face" applies to ALL body parts including penises!

if we endorse a system of law that lets the woman's behavior play a role in our assessment of whether a crime occurs, we effectively endorse the idea that woman's right to personal autonomy and bodily integrity is offset by the "understanding" that the aggressor has over her decision re: what to do with her body - this is obviously ridiculous---

the one whose autonomy is at stake has absolute power to decide because power over self is THAT important ---- this is what criminal rape law is all about -- i use the analogy of inviting a person into ones home -- if i invite a man in and ask him to stay for one hour -- then a half-hour later i change my mind and ask him to leave he's GOT TO GO!! -cuz it's MY HOUSE --and if he's in or near my body -- he's got to go even faster b/c bodies are more important than houses!

this idea -- rooted in freedom and individual rights - is far more important than the rights of accused criminals -- yet Calderon nowhere honors or even mentions these important constitutionally protected autonomy rights for women --

* A woman works to achieve social and economic independence/A woman may pursue and date a man for his social status.

i suppose we should celebrate prostitution, too - as a form of "freedom" ?

* Women’s rights advocates stand up for the rights of all women/Women’s organizations lack meaningful inclusion of women of color.

she's right here -- women are not monolithic lemmings -- but therein lies the problem from a political perspective -- one can be female and misogynist while claiming to be anti-sexual violence in part because there is NO leadership that gives women any sense of power vested in the idea of bodily autonomy -

* Gender inequities exist among all women/White middle class women have race and class privileges.

agreed -- but recognizing class distinctions as harmful argues in favor of NOT seeing the Kobe Bryant case as involving race but rather -- class -- with Bryant sitting way above the victim -

not to do so prevents political bonding around gender --

* Advocates promote the creation of more laws & increased police presence/Racial and economic inequities exist in the criminal justice system.

these are not inversely related and Calderon clearly doesn't understand what advocates are asking for -- i have no interest in more laws -- just equal protection from the ones that exist and a system that does ANYTHING at all to eradicate sexism in criminal law and process -

Calderon nowhere acknowledges that gender inequities far exceed racial inequities in terms of discrimination problems that are not addressed AT ALL in criminal law or in the criminal justice system.

anti-racism rules exist all over the place but we NEVER screen jurors for gender bias in rape cases (our screening for race bias is mandatory) -

why doesn't Calderon care about eradicating or at least talking about gender bias in criminal cases when she claims to be concerned about "economic and racial inequities" and claims to be concerned about ways that anti-sexism activists don't pay enough attention to anti-racism issues? that argument cuts both ways -

* The media covers high profile victimization cases/Cases of everyday violence involving women of color are often overlooked.

she's right here!! - but fails to mention that the media also covers high profile cases where rich/famous people are involved irrespective of the color of the victim -- this, more than anything else, defines the kobe bryant case --

for purposes of the kobe bryant prosecution bryant is rich -- not black -- because wealth trumps race -- and both trump gender -- which is the essence of the problem here --

Calderon wants women and anti-violence activists to honor the race issue in the Bryant case -- but at what cost? -- if women remain silent because of race -especially if there really isn't a race issue - they get raped, beaten and killed because they remain silent about the problem of gender-based violence out of a sense of loyalty to anti-racism efforts - or whatever other "issue" might be present - -

ironically -- this promotes gender inequities and gendered violence

indeed, i'd argue this approach promotes racism because any indulgence of social prejudice in the name of protecting the rights of the accused reifies not only that prejudice but the "value" of all prejudice as a strategic trial tool ---

* A White victim alleges rape/Black men become vilified and positioned against women’s rights advocates.

race is not ALWAYS relevant just because the defendant is black and the victim is white -- remember -- it wasn't white women who falsely accused black men of rape -- it was white men -- a woman's word wasn't even necessary let alone respected enough to cause criminal charges -- indeed, in most cases, there were no criminal charges brought -- just lynching or other horrifying punishment without a trial or any due process after the false accusation of a white male -- not a female

* The identity of a victim of sexual assault is protected/A suspect ispublicly identified; victims’ of domestic violence identities are revealed.

this is hardly a dichotomy -- and this comparison shows Calderon's lack of understanding of the issue and the nature of the system -

the victim and defendant do not stand on equal moral footing such that if we identify one we should identify the other -- one is suspected of wrongdoing -- the other is suspected of suffering

-- and the vetting process that takes place before formal charges are brought is not meaningless -- there's a reason we need to know whether the guy across the street has been indicted for murder or rape of a child -- remember -- the presumption of innocence is a courtroom doctrine -- the public in general -- unless they sit as jurors -- can make their own judgments about people who have been charged with crime (or not) --

if all people were obligated to presume innocence of all people formally charged with crime, we'd be compelled to send our kids over to the neighbor's house for milk and cookies even if he's just been indicted for child rape --

raise your hand if you'd send your kids over -

we have a right to know who has been indicted because the criminal justice system is not the sole arbiter of truth and the public has a right and a need to know. the same cannot be said about our "need" to know the identity of the victim -

true we usually ONLY protect from public disclosure the identities of sexual violence vicitms (male and female) but this is not because of some type of super-stigma --it is because the nature of the crime is such that deeply personal things about the victim will necessarily be revealed in a public forum. That a victim gets pregnant, has an abortion, gets an STD, etc -- are all per se relvant in a rape trial -- thus, must be revealed in a public trial. Because we can't prevent this, we make up for it by not revealing the identity of the victim which means, the public hears the personal data - but cannot connect it to a particular person'a face or name. without such a policy, women who have abortions or get a disease after being raped would be known to the public for their entire lives. The system has no need to add this gratuitous harm to innocent victims who have suffered enough. I realize I'm assuming the woman is telling the truth -- of course i am -- we dont' make legal policy based on rare exceptions -- we make legal policy based on the assumption that people have suffered because over 99 percent of the time, they HAVE truly suffered --

this does not leave the falsely accused without a remedy --

if someone DOES falsely accuse a person of rape - or any other crime -- they should not only be prosecuted but publicly identified as someone who is being prosecuted for making a false accusation -

it is truly off the mark to argue that witnesses to violence should be treated the same way as indicted persons -- the system, as imperfect as it is -- depends on the willingness of people to participate in the process if crime is to be punished and deterred. thus, there should be no added punishment from the process itself based on the unfortunate fact that a person was victimized or happened to witness a robbery, etc --

we punish enough people -- we shouldn't encourage the system to punish innocent rape victims by the gratuitous disclosure of their identity --

-- there are sufficient deterrents in place to discourage false allegations including that it's a crime -- and if a false allegation is uncovered -- that person should be punished, too -- harshly -

- the defendant's enemy is the government -- not the victim or the witness -- so we should not be talking about "balancing" the rights of the accused against the well-being of victims and witnesses -- it's just wrong -- there's no constitutional legal relationship between the victim/witness and the defendant -- the bill of rights only exists between the defendant and the state -- and the victim is not an agent of the state --

* Black community representatives support accused Black men/Black leaders do not publicly work on issues of gender violence.

this is largely true though jesse jackson and the rainbow coalition publicly supported martha burk's efforts at augusta when they refused to let women play golf there - even though they let black men play --

* Interracial relationships are no longer against the law/White women are still elevated over women of color as symbols of success.

true -- and this hierarchy is partly the result of women's failure to redress gender bias within the criminal justice system -- and elsewhere -- where race and gender overlap -- so women's silence in rape cases -- especially in the kobe bryant case -- is partly to blame for this divide --

* Black athletes are elevated to star status/At CU, Black students comprise less than 2% of the student body – less than 500 out of 24,000.

* Sexual assault victims’ advocates work to achieve gender equity/Sexual assault victims’ advocates do little to promote racial equity.

not true -- sexual assault victim advocates have been anti-racism activists for a long time -- which is WHY they are unacceptably silent whenever the defendant is black (NOW said "no comment" for months after Bryant was charged and they've issued only one lukewarm statement about attacks on the victim - yet NOW hangs posters claiming women and advocates need to "speak out" if sexual violence is to be prevented -- hmmm)

-- there IS a way to be anti-racism AND and a sexual assault victim advocate -- and it starts with not assuming racism is always an issue -- it isn't -- moreover, anti-sexual violence advocates barely have enough money for pencils - let alone counseling and all the other work they do on a shoe string -- this makes it hard to take on other fights -- and because racism is rarely an issue in sexual violence (the vast majority of rapes are committed by white men and within the same race) it's hardly wrong for them not to bear the anti-racism burden -

moreoever -- a fight agaisnt sexism and sexual violence IS a fight against racism b/c it takes on the culture and the system's acceptance of prejudice in a larger sense --

* Athletic scholarships are one way for a few Black men to achieve higher status/ Sports culture promotes racial and gender inequities.

right on here!!

* Women’s rights advocates challenge institutions that perpetuate patriarchy/ Women’s rights advocates resist challenges by women of color regarding racism in the movement.

I can't speak to this except to say that i don't see it this way --

* Athletic programs promote diversity/Athletic programs do little to improve the social climate for students of color in the general student population.

i don't' doubt this -


The bottom line for me is -- some stories are very simple -- and some are complex -

the kobe bryant case is simple --

he strangled then bent the victim over a chair, raped her from behind then ejaculated on her face --he told her to get cleaned up and not to tell anyone what happened because no one would believe her over him -- she was his fourth (at least) victim of at least attempted similar assaults

- why is this complex?why is race an issue?this case is simple -- and nobody is doing the right thing for the victim --

the silencing of advocates who fear being called pro-government or racist has got to stop -- it helps no one -- undermines freedom and promotes male entitlement --

the victim in this case is a real human being -- and she suffered a gender-specific serious violation of self -- and there's NO tribe out there for her -- how shameful for all of us.

wendy murphy

---
Wendy Murphy is a member of CAVNET and a member of our Advisory Board.

A former assistant district attorney in Middlesex County, where she worked in the Child Abuse Prosecution Unit, Wendy Murphy now serves of counsel to the Boston law firm of Brody, Hardoon, Perkins & Kesten. Focusing her private practice on advocacy for women victims of violence, she has generated several test cases on the confidentiality of victim counseling records and has argued cases that have helped shape state law.

The founder and director of the Victim Advocacy and Research Group, she is associate editor of the Sexual Assault Report and the author of numerous articles and opinion pieces on the criminal justice system, sexual violence, child abuse, and related legal topics. She was a principal performer on the nationally syndicated television show, "Power of Attorney," and has served as a legal analyst on NBC, MSNBC, CNN, CNBC, Fox News, Court TV, "Dateline," "Good Morning America," "The Today Show," and NPR's "The Connection." She is also a regular columnist for Massachusetts Lawyers Weekly.

She received a B.A. from Boston College and a J.D. from New England School of Law.


The views expressed are those of the author, and are not necessarily those of CAVNET or its members.


Thursday, August 19, 2004

Serving Women with Developmental Disabilities: Strategies for the Justice System

The Need To Enhance Collaboration Among Victim Service Programs, Law Enforcement, Prosecutors, and Judges.

(CAVNET Document Number 2412, at www.cavnet.org )

by Marc Dubin, Esq.



As a former prosecutor who now enforces the Americans with Disabilities Act (ADA) for the federal government, I have seen a tremendous change over the past 10 years in the awareness of the criminal justice system regarding the needs of crime victims with disabilities. Far more resources are now available for police, prosecutors, judges, and others in the criminal justice system to learn how best to serve crime victims with disabilities.

Crime victim advocates who provide services on behalf of women with disabilities are better funded today than ever before, largely due to the passage of the federal Violence Against Women Act and the tireless efforts of Bonnie Campbell (the Director of the Violence Against Women Office at the Justice Department) and her staff. Through grants provided by the Violence Against Women Office, the Community Oriented Policing Services (COPS) in the U.S. Department of Justice, and others, police officers, prosecutors, judges, advocates, and other components of the criminal justice system have received training and support to better address the needs of crime victims, including those with disabilities. Despite this progress, women with mental retardation and other developmental disabilities who have been victims of crimes remain largely unserved, and crimes against them largely unreported.

In this article, I will attempt to explore some of the issues facing police, prosecutors, judges, advocates, and other members of the criminal justice system, and provide some suggestions for how they can better serve women with developmental disabilities.

The Scope of The Problem

Women with mental retardation and other developmental disabilities are among the most vulnerable members of our society, experiencing a far higher rate of sexual assault and rape than other women, and experiencing this victimization repeatedly. While there are very few studies that have examined the victimization of women with mental retardation and other developmental disabilities, and far more work needs to be done to better assess this problem. The few studies that have been done provide a frightening picture of the world in which these women live. The existing studies reflect a rate of victimization for this population that may be as much as 10 times higher than that of the general population. One study found that more than 70% of women with developmental disabilities had been sexually assaulted, and that nearly 50% of women with mental retardation had been sexually assaulted 10 or more times in their lifetime (Sobsey and Doe, 1991). This represents a 50% higher rate than the rest of the population. Children with disabilities are also at greater risk. One study of children with disabilities found that they were 2.1 times as likely to be victims of physical abuse and 1.8 times as likely to experience sexual abuse as children without disabilities (Crosse, et al. 1993). Despite such high rates of victimization, few of these cases come to the attention of law enforcement.

Police

Police officers need to be better trained to identify crime victims with mental retardation and other developmental disabilities, and must develop closer relationships with service providers and advocates. Collaborative efforts designed to improve the identification of victims and enhance the likelihood of reporting must be undertaken. Dispatch should identify the locations of group homes so that officers can recognize a victim who is a resident based on the victim’s home address, and victim services providers need to develop an ongoing relationship with these group homes and other residential facilities for people with mental retardation so that cross-training can be developed and relationships can be built.

What should a police officer do when he or she suspects that the crime victim has mental retardation or another developmental disability? First, the officer should be careful to use language that is easy to understand, and should not ask compound questions. Compound questions, such as “Who were you with and what happened?” may tend to confuse an individual with mild or moderate mental retardation. Break questions down into simple terms, and change the language of the question until you are understood. Do not ask questions which suggest the answer. Leading questions, which are easily answered in the affirmative, may result in misinformation, as many people with mild or moderate mental retardation are anxious to please the questioner, and may say “yes” to a question even when the question is not understood or the truthful answer is “no.” For this reason, it is also important to note that leading questions should not be asked of suspects with mental retardation, as a false confession may result. Quite often, people with mental retardation will try to disguise or hide their disability in an effort to fit in with mainstream society. Knowledge by police of the addresses of group homes and other residential facilities is helpful in identifying victims with disabilities. Also, advocates sometimes provide identification cards to their clients, so it is helpful to ask for such information.

A number of helpful materials have been developed in recent years, and many more are in the process of being developed. For example, Arc U.S. has excellent materials available for law enforcement, including a curriculum to teach officers about mental retardation and to make them aware of unique needs and characteristics of people with mental retardation. The curriculum, entitled Understanding Mental Retardation: Training for Law Enforcement, is available from Arc’s publications department (800/433-5255). The National Sheriff’s Association is in the process of developing a handbook for law enforcement to assist them in responding to crime victims with mental retardation, as well as crime victims with other disabilities. The handbook, entitled, First Response to Crime Victims, will be available free of charge from the Office for Victims of Crime Resource Center (800/627-6872).

Prosecutors

Prosecutors have a crucial role to play in addressing this problem. Prosecutors can increase the number of cases reported and investigated simply by filing more of these cases. In light of the high rate of victimization, and the statistical likelihood that these victims will be re-victimized, prosecutors must work with the community, train law enforcement, develop close relationships with disability groups in the community, and file these cases. It is also imperative that prosecutors seek substantial sentences upon conviction.

But what about prosecutors’ concerns that these cases will take up too many resources, or can’t be won? Admittedly, some of these cases will take more resources than others, as it will be necessary to adequately investigate the victim’s ability to consent, ability to testify, or assess other cognitive abilities. The investment is well worth it. Identifying a serial rapist who drives a bus or who works in a group home is worth it. Giving a sexual assault victim the knowledge that the criminal justice system values her is worth it. And the chances for success should not be underestimated. Experience has shown that victims with autism and mental retardation often have very good memories. Recent research has shown that after viewing videotapes of live staged events, persons with developmental disabilities were as competent as people without disabilities when it came to remembering details of the crime. In fact, their testimony is sometimes more reliable because it is less subject to distortion (Henry and Gudjonsson, 1999). Increasingly, materials are being developed to assist prosecutors in presenting these cases (e.g., Admissible In Court: Interviewing Witnesses Who Live With Disabilities. Document number 778 at http://www.cavnet2.org.).

Victim Advocacy Organizations

Developing a relationship with disability rights organizations, police, and prosecutors is widely recognized as essential for successful advocacy. Too often, however, victim advocacy organizations fail to integrate people with expertise in the needs of crime victims with disabilities. It is very helpful in meeting the needs of crime victims with mental retardation and other developmental disabilities to foster good relationships with local and national resources, such as Arc chapters, Protection and Advocacy organizations, disability rights attorneys, University Affiliated Programs, and Independent Living Centers. CAVNET (Communities Against Violence Network) has developed a mailing list to assist with this effort. The Criminal Justice Network for People With Disabilities, an invitation-only/application-only mailing list, brings together experts and advocates in disability rights and experts and advocates in criminal justice issues to address the needs of people with disabilities in the criminal justice system. An application to join is located on the Web site.

Judges

Even if police arrest, prosecutors file, witnesses testify, and a conviction results, if judges do not sentence appropriately, women with mental retardation and other developmental disabilities will continue to be victimized and remain afraid to report the crimes against them. Judges need to be willing to send a strong message through the setting of bond conditions pretrial, and through sentencing post-trial and at probation revocation hearings, that they take crimes against women with mental retardation and other developmental disabilities seriously. They must get training in these cases so that they can help bring about the changes the criminal justice system so desperately needs.

Conclusion

The problem of the victimization of women with mental retardation and other developmental disabilities is one society is beginning to recognize and address. Each player in the criminal justice system is part of a seamless web, and each must endeavor to address this problem professionally. Together, the criminal justice system is capable of delivering what it promises – justice to victims of crime, including its most vulnerable victims.

References

Crosse, S.B., Kaye, E., & Ratnofsky, A.C. (1993). Report on the maltreatment of children with disabilities. Washington, D.C.: Westat Inc. National Center on Child Abuse and Neglect.

Henry, L.A. & Gudjonsson, G.H. (1999). Eyewitness memory and suggestibility in children with mental retardation. American Journal of Mental Retardation, 104(6), 491-508.

Sobsey, D. & Doe, T. (1991). Patterns of sexual abuse and assault. Sexuality and Disability, 9(3), 243-259.

Marc Dubin is a Senior Trial Attorney with the Disability Rights Section, Civil Rights Division, U.S. Department of Justice, Washington, D.C. and former Special Counsel, Violence Against Women Office, U.S. Department of Justice. He is also the founder and Executive Director of CAVNET (Communities Against Violence Network).

The views expressed in this article are those of the author, and do not necessarily reflect the position or views of the U.S. Department of Justice. CAVNET is not affiliated with the U.S. Department of Justice. Many of the materials cited in this article as well as others are available on the CAVNET Web site, at http://www.cavnet2.org. Marc Dubin may be reached at 202/307-6075 or by e-mail at mdubin@pobox.com


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Citation: Abramson, W., Emanuel, E., Gaylord, V., & Hayden, M. (2000). Impact: Feature Issue on Violence Against Women with Developmental or Other Disabilities, 13(3) [online]. Minneapolis: University of Minnesota, Institute on Community Integration. Available at http://ici.umn.edu/products/impact/133/.

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