Friday, September 03, 2004

Additional Commentary on Kobe Bryant Case, by Wendy Murphy, & A Response

By Wendy Murphy:

Dear colleagues;

Thank you for engaging in a dialogue about my deliberately provocative piece. I have been a fan of no-drop policies for a long time (with the caveat that the state must assume full responsibility for resulting "costs" - I know - fat chance - but the point is what it is and there's NO hope the government will accept responsibility if we keep indulging their failures with a happy nod every time they bag a case) -

Life is always more important than policy -- but policy matters -- a lot. Wishy-washy tolerance for corruption in the name of "protecting the victim from the system" is rhetoric that does nobody any good.

The victim went through hell -- and ironically -- I was one of very few people willing to speak publicl y on her behalf from day one. Very few of you who now celebrate her right to take a payoff because of how much she suffered said a damn word in support of her during her suffering. Shame on you.

The decriminalization of violence against women by "special rules" that allow them to "drop the charges" is unacceptable. The system is hard -- horrible, even -- but celebrating the "right" of a victim to refuse to testify in exchange for money not only fixes nothing but indulges gratuitous corruption. We should hardly be encouraging victims to sell out for money while out of the other side of our mouths we're complaining about how economic and related power disparities underlie the very violence we claim to be fighting against.

No single woman's wealth is worth an increase in the risk of gendered violence for all women.

Law Professor Cheryl Hanna has written a powerful piece on the benefits of no-drop polices -- She demonstrates that not only are they appropr i ate, they reduce recidivism rates, deter intimidation tactics and better prevent violence.

In my past writings on this topic, I've urged folks to "blame the government, not the victim, for the justice system's failures" -- and the way to do this is NOT to allow - or burden the victim with the "choice" whether to testify. Controlling a criminal prosecution is not real "power" -- anymore than it is "empowering" to let women control how the fire department squirts hoses at burning buildings.

It is not "empowering" to let women "choose" not to testify -- - it is a convenient excuse and a means by which the state can blame victims for the failure of the system.

Empowerment comes from truly equal treatment in law and society by making the government DO IT'S JOB- which includes demanding that the justice system not decriminalize violence against women by "allowing" women to "choose" whether rape is punished or ignored by the state.

I realize that forc in g women to testify sounds like the big bad government come to bear on the poor victim, and this seems so darn paternalistic --

Of course it is -- the whole criminal justice system is paternalistic and pushy and chock full of state power -- that's what the government is SUPPOSED to do when it seeks to punish criminal behavior.

It is no more or less paternalistic just because the target of its power in this regard is a girl.

It is certainly convenient rhetoric to talk about the "power of the government" causing "harm" to rape victims by forcing them to testify -- and it is equally convenient to claim this is somehow sexist -- but the irony of this claim is that the only real sexism occurs when the system allows female victims to "permit" the government to decriminalize their harm -- while victims of other types of violence have no such "power". Ever notice how we don't even have no-drop "policies" in robbery cases? This is because nobody would tolera te a practice of dismissing a robbery case because the victim took a payoff or was intimidated into not testifying. Only women victims regularly get second-class treatment enough so that many responsible jurisdictions had to adopt no-drop policies to put a stop to it.

Advocates have been duped and coopted into believing it is somehow good to let victims "drop the charges" because it gives them back "control" -- when the ironic reality is -- this practice literally hands control, over the victim and the justice system, right to the accused.

This victim should not be seen as having done something good or appropriate by taking a payoff because she "had enough" --

Let's be grownups -- anyone who works in this field knows that the value of her payoff went way up as the trial grew near. She didn't walk away because she had enough suffering -- she walked away because she got enough dough. She deserves a high five only from her lawyers and her bank.

The saddest part of this mess is that many people who call themselves advocates think this is a perfectly lovely way to run a justice system. You know the old saying -- with advocates like that . . . . .

- Wendy Murphy

Response by Marc Dubin, Executive Director, CAVNET:

(Wendy's comments are in quotes - mine are in italics)


"Life is always more important than policy -- but policy matters -- a lot. Wishy-washy tolerance for corruption in the name of "protecting the victim from the system" is rhetoric that does nobody any good."

I am not convinced that the victim here was "corrupt". Frankly, I know practically nothing about the victim, but because charges were filed I assume that she was raped and that the state had the burden of proving it. She may have simply chosen to surrender to the reality that the state had failed to protect her from having her name and intimate details about her life disclosed to an international media (the state being both the prosecutor and the judge). Would the result be more palatable of she receives no money in a civil suit? Is there any evidence that she has already received money for choosing not to go forward, or that she was party to such an agreement? I have read of no such claim - if that were the case, it sounds like witness tampering to me.

"The victim went through hell -- and ironically -- I was one of very few people willing to speak publicly on her behalf from day one. Very few of you who now celebrate her rig ht to take a payoff because of how much she suffered said a damn word in support of her during her suffering. Shame on you."

I don't see defending her right to choose not to be arrested for contempt and being thrown in jail as "celebrating her right to take a payoff". And many of us did say a great deal - some lacked a national media willing to listen. No shame that I can see.

"The decriminalization of violence against women by "special rules" that allow them to "drop the charges" is unacceptable. The system is hard -- horrible, even -- but celebrating the "right" of a victim to refuse to testify in exchange for money not only fixes nothing but indulges gratuitous corruption. We should hardly be encouraging victims to sell out for money while out of the other side of our mouths we're complaining about how economic and related power disparities underlie the very violence we claim to be fighting against."

Not every victim who chooses not to testify does so because she sees a pot of gold. Most refuse to testify because they see a criminal justice system that has failed others of their gender time and time again. I remain unconvinced that this woman refused to testify because of money. It seems cruel to assert that she "sold out" for money. When I was prosecuting these cases ( and domestic violence cases), the women articulated legitimate concerns about going forward - the decision to prosecute over their objection always involved careful consideration of the possibility that I would have to authorize their arrest for refusing a lawful suboena or refusing to testify. Money was never the issue - trust in the system to keep them safe and make the perpetrator pay for his crime played a much more significant role. (No, I never had a victim arrested).

"No single woman's wealth is worth an increase in the risk of gendered violence for all women."

Again, I don't think that was the motivation.

"Law Professor Cheryl Hanna has written a powerful piece on the benefits of no-drop polices -- She demonstrates that not only are they appropriate, they reduce recidivism rates, deter intimidation tactics and better prevent violence."

What is the cite for the study? I would like to post it to the CAVNET online library/database.

"In my past writings on this topic, I've urged folks to "blame the government, not the victim, for the justice system's failures" -- and the way to do this is NOT to allow - or burden the victim with the "choice" whether to testify. Controlling a criminal prosecution is not real "power" -- anymore than it is "empowering" to let women control how the fire department squirts hoses at burning buildings. It is not "empowering" to let women "choose" not to testify -- - it is a convenient excuse and a means by which the state can blame victims for the failure of the system. Empowerment comes from truly equal treatment in law and society by making the government DO IT'S JOB- which includes demanding that the justice system not decriminalize violence against women by "allowing" women to "choose" whether rape is punished or ignored by the state."


In my view, it is not a "burden" to be empowered - sometimes, however, "making the government do its job" may necessitate arresting the vicctim when she is not anxious to continue to undergo the abuse of the criminal justice system. In domestic violence cases, the reason for refusing to honor the wishes of the victim to drop the charges is the belief that she has been forced into that position by the perpetrator's abuse, and that to agree with her request to not prosecute is merely permitting the abuser to control the decision. This may be controversial, however. Many domestic violence advocates have articulated the view that mandatory arrest policies and mandatory "no drop" policies disempower the victim.

When I was prosecuting domestic violence cases, I went forward with the prosecutions over the victim's objection all the time, as long as I could prove the case. I believed that to be in her best interest, in the best interest of her children, and in the best interest of future victims. Nevertheless, it felt very paternalistic to tell an adult, competent women who undoubtedly was well aware of what she believed needed to be done to keep her safe that despite her clearly articulated wishes, she was not in a position to decide. Other victims of crime who wanted to drop the charges almost always got to do so, absent some other countervailing social goal. How many burglaries or car theft cases are dropped every year as long as restitution is made? Is that a "payoff"? Why no outrage over that?

In rape cases, it can be argued, of course, that a rapist is likely to rape again, and that a familial rapist is likely raping other members of the family, and so there is a legitimate basis for the state proceeding over the objection of the victim. However, we must again examine whether revictimizing the victim by arresting her and prosecuting her for contempt for failing to cooperate is really the answer. Many advocates and prosecutors believe that doing so is going too far. Saying that, I should point out that I got a great many defendants to plead guilty when they believed that I would force the victim to go forward.


"I realize that forcing women to testify sounds like the big bad government come to bear on the poor victim, and this seems so darn paternalistic --"

It only seems that way because it is...

"Of course it is -- the whole criminal justice system is paternalistic and pushy and chock full of state power -- that's what the government is SUPPOSED to do when it seeks to punish criminal behavior. "

And that is why the prosecutor is given such leeway in deciding what to prosecute.

"It is no more or less paternalistic just because the target of its power in this regard is a girl."

Or a woman...

"It is certainly convenient rhetoric to talk about the "power of the government" causing "harm" to rape victims by forcing them to testify -- and it is equally convenient to claim this is somehow sexist -- but the irony of this claim is that the only real sexism occurs when the system allows female victims to "permit" the government to decriminalize their harm -- while victims of other types of violence have no such "power". "

The harm can be quite real, and is not mere rhetoric. It probably is sexist, or at least has a gendered result, given the statistics concerning victimization of women. Of course, gays and lesbians are victims of rape too, and they are also often forced to testify. And I am not convinced that "victims of other types of violence have no such "power". " If the prosecutor wants to go forward, the victim has only two choices - cooperate or not. If they do not cooperate, they can go to jail. Where is the power?

"Ever notice how we don't even have no-drop "policies" in robbery cases? This is because nobody would tolerate a practice of dismissing a robbery case because the victim took a payoff or was intimidated into not testifying. Only women victims regularly get second-class treatment enough so that many responsible jurisdictions had to adopt no-drop policies to put a stop to it."

Why would we need a no drop policy in a robbery case? The victim is usually anxious to go forward. Responsible jurisdictions adopted no drop policies because of the dynamics of domestic violence, not because of a rash of payoffs to the victim.


"Advocates have been duped and coopted into believing it is somehow good to let victims "drop the charges" because it gives them back "control" -- when the ironic reality is -- this practice literally hands control, over the victim and the justice system, right to the accused."

I know a lot of advocates, and I would never accuse any of them of being "dupes". Most of the advocates who have educated me over the years have been troubled by this, and with good reason. First, let us be clear - the victim in the Kobe Bryant case did not drop the charges - the state did. They were not her charges. She is pursuing her case in civil court - she had no control over whether the criminal case proceeded or not. If it is true that she told the prosecution that she was unwilling to testify, then the state had several options, including subpoening her and calling her as a witness. If she then refused to testify, the state could have sought to have her held in contempt. We will never know whether with the right support and encouragement, and depending upon what was happening at that stage in the trial, she would have chosen to testify. The state's decision to dismiss the case ended the possibility of that scenario. And while we are on the subject, why d id the state dismiss the charges "with prejudice"? The jury had not been sworn - double jeopardy had not attached. Perhaps at some future date she would have been more willing to proceed.

"This victim should not be seen as having done something good or appropriate by taking a payoff because she "had enough" -- "

Still waiting for evidence of the payoff.... She did something good and appropriate by withstanding months and months of a criminal justice system failing her every chance it got. Who wouldn't have had enough?

"Let's be grownups -- anyone who works in this field knows that the value of her payoff went way up as the trial grew near. She didn't walk away because she had enough suffering -- she walked away because she got enough dough. She deserves a high five only from her lawyers and her bank."

As a grownup, I take issue with the assertion that we are capable of assessing her motivations. What gives us reason to believe that she hadn't had enough suffering? How much, exactly, would be enough? She got enough dough? Really? How much? What evidence is there for that assertion?

"The saddest part of this mess is that many people who call themselves advocates think this is a perfectly lovely way to run a justice system. You know the old saying -- with advocates like that . . . . ."

By a large margin, that's not the saddest part at all. The saddest part is that another survivor of rape was revictimized by the system that is supposed to help her. I think advocates across the country are outraged, and so is anyone else with any sense of decency. But let's not take the easy, and familiar road - of blaming the victim and the victim's advocates. Let's examine how the system failed, what it means for other survivors, and try to fix it.

-- Marc

Wendy's Response:

I appreciate all the comments from everyone -- this dicussion is difficult -- and terribly important -- the justice system is badly broken and reform is desparately need -- not band-aids and "special rules" for girls (i use this term sarcastically marc -- of course i include women) but real reform where TRUE equal protection of the law for women and elimination of gender bias as a strategic tool is the goal -- i appreciate marc's comments -- let me respond

...

Marc:

I am not convinced that the victim here was "corrupt". . . . Is there any evidence that she has already received money for choosing to go forward, or that she was party to such an agreement? I have read of no such claim - if that were the case, it sounds like witness tampering to me.

Wendy:

A prosecutor worth his salt would investigate and prosecute for witness tampering -- and make no mistake about it -- the money won't obviously change hands until people stop watching -- but the deal is done -- and both the civil and criminal cases are over because the right price was paid -- but if you think there's no evidence until someone admits to a payoff -- you'll be waiting a long time -- it doesnt' work like that, never has, never will - the victim in the cardinal bernardin case recanted his allegations of sexual abuse - claimed they were induced by hypnosis -- claimed the recantation had nothing to do with money but then he took a seven figure settlement two months later -- hnmmmmy question is -- if this matters very much to you in determining whether the victim is "corrupt" -- will you express your outrage and demand prosecution for witness tampering when the victim's wealth becomes obvious?


Marc:

And many of us did say a great deal - some lacked a national media willing to listen. No shame that I can see.

Wendy:

NOW was absolutely silent except for one lukewarm press release almost a year after the crime. When asked about issues like rape-shield and rape law -- they repeatedly said "no comment" - Other national groups with the power to issue press releases, however poorly received - sent NOTHING -- -- which is unconscionable - only the NSVRC did anything remotely close to speaking out and they did so whether or not the media cared - I'd love to hear from anyone about anything they did in this case to speak out for the victim. Who wrote op-eds? Who sent press releases? Who staged protests? It's wonderful that people commiserated at water coolers and over dinner -- social change can grow from that -- but such "speaking" is hardly "speaking out"

Marc:

Not every victim who chooses not to testify does so because she sees a pot of gold.

Wendy:

absolutely true -- many want to walk away b/c the system is horrible and/or they've been threatened, etc -- I never said otherwise -- but I did say that letting a victim "choose" not to testify, even for these reasons, reifies and encourages such tactics by giving them value -- and worse -- it gives the perpetrator power over the victim -- > Money was never the issue - how many zillionaire celebrities have you prosecuted -- money is ALWAYS an issue when the defendant is rich> > Again, I don't think money was the motivation.that's lovely -- you have very little company -money may not motivate many victims because most perpetrators who are prosecuted don't have the cash to pay her off!

...

Marc:

In domestic violence cases, the reason for refusing to honor the wishes of the victim to drop the charges is the belief that she has been forced into that position by the perpetrator's abuse, and that to agree with her request to not prosecute is merely permitting the abuser to control the decision. and the same principles apply here

Wendy:

the reason for refusing to honor the wishes of the victim to drop the charges against bryant is the belief that she has been forced into that position by the perpetrator's intimidation and coercion $$ tactics -- which permit the abuser to control her decisionMany domestic violence advocates have > articulated the view that mandatory > arrest policies and mandatory "no drop" policies disempower the victim. the word "disempower" assumes there was "power" to lose -- and the fact is -- victims and witnesses have no "power" in criminal prosecutions -- one cannot be disempowered where one has no authority -- and shouldn't have authority (or burden/responsibility which is the flip side of the same coin)

Marc:

It felt very paternalistic to tell an adult, competent women who undoubtedly was well aware of what she believed needed to be done to keep her safe that despite her clearly articulated wishes, she was not in a position to decide.

Wendy:

Isn't it paternalistic to tell the only eyewitness to a bank robbery or murder that they, too are "not in a position to decide"? This rhetoric around the idea of empowerment is manipulating women into accepting the idea that there's some kind of "freedom" at stake in her choice to be beaten and raped -- when the truth is -- the government, by letting her "choose", is excusing itself from IT'S responsibility to prevent violence -- (a public offense, not a private wrong) -- and worse, the government gets to blame the victim for her own suffering -- lovely.To allow the victim to make a "private" choice is to revert back to a time when violence in the home was not a "public" problem at exactly a time in our evolution when we are finally starting to understand that violence in the home is just as wrong -- if not more wrong -- as violence in the middle of main street -

Marc:

How many burglaries or car theft cases are dropped every year as long as restitution is made? Is that a "payoff"? Why no outrage over that?I certainly hope burglaries are not dismissed after a "payoff" --

Wendy:

i've never heard of such a policy -- geez marc -- did you do that as a prosecutor? don't answer the question -- i'm certain you have a fifth amendment right to remain silent.Even "accord and satisfaction" statutes that expressly allow victims to "settle" criminal cases by accepting restitution in assault and battery cases are under fire as inappropriate because they allow "payoffs" -- I prosecuted a case once where a contractor took an elderly woman's money as a deposit to build her a new kitchen and when the defense attorney called the woman to offer her money in exchange for her refusal to testify, I reported the lawyer to licensing board because his conduct was clearly unethical.

Marc:

If the prosecutor wants to go forward, the victim has only two choices - cooperate or not. If they do not cooperate, they can go to jail. Where is the power?

Wendy:

i find it fascinating that you keep using the word "power" -- as if victims and witnesses are supposed to be able to assert, or not, the "power" of the state. since when are victims agents of the state and since when do people have the power to tell the court or prosecutor or judge what to do? can a victim dictate that a case be indicted? no -- can a victim tell a judge how to rule on evidence? no. can a victim command ANYTHING in a criminal case? no. why? because it is not her personal litigation and she has neither the power NOR the burden to tell anyone anything about how to prosecute criminal cases.I represented a victim a few years ago who had testified thirteen years earlier in a rape case where the perp was convicted and sentenced to prison. On the day he was sentenced he faked a heart attack and for various illegitimate reasons the defendant never served a day of his sentence. When the victim contacted me thirteen years later, I filed a motion in court to advance her "speedy disposition" rights under the victims' bill of rights -- and I asked that the court honor her rights by making the dude start serving his sentence - guess what the defendant's AND the prosecutor's response was?the victim has NO POWER in a criminal case -- she has NO POWER to tell the court what to do -- she has NO POWER to cause a man to begin serving his sentence -- that POWER belongs exclusivley to the government because it is the government's job to prosecute cases. this is the same government that told the bryant victim she had the "power" to make a case go away -- yeah right -- she didn't --

Marc:

They were not her charges. . . . the state had several options, including subpoening her and calling her as a witness. If she then refused to testify, the state could have sought to have her held in contempt.

Wendy:

the issue is -- why didn't the prosecutor do this? the victim is partly to blame but the DA and the judge are the real culprits for not forcing her to take the stand.

Marc:

Perhaps at some future date she would have been more willing to proceed.

Wendy:

good observation marc and further proof that it was a deal for money b/c if it were ONLY about how she felt about the trauma of the system, etc --, it absolutely would have been dismissed "without prejudice" for the reasons you state -

Marc:

Still waiting for evidence of the payoff....

Wendy:

common sense should be enough for anyone -- the dismissal "with prejudice" PLUS his "apology letter" which NEVER would have been written if she backed out only because of the trauma - and then there's the timing. It's a bit too convenient that she just happened to reach her limit on the eve of trial -- which just so happens to be the moment when the value of her refusal to testify reaches its peak. Plus, frankly, I've seen this happen many, many times. The eve of trial payoff is rather common.

Marc:

What gives us reason to believe that she hadn't had enough suffering? How much, exactly, would be enough?

Wendy:

this is irrelevant -- i have no doubt she suffered terribly -- but there is no point after which -- if she reaches it -- dismissal is proper --

Marc:

Let's not take the easy, and familiar road - of blaming the victim and the victim's advocates. Let's examine how the system failed, what it means for other survivors, and try to fix it.

Wendy:

this statement is head-scratchingly odd -- the "blame the victim" tactics that are familiar are the strategic ways that defense attorneys point at the victim's behavior as somehow responsible for the violence -- and there is a certain "blame the victim" feel to the way the DA "blamed" her for his decision to drop the charges - that said -- the victim is responsible but hardly the major culprit -- she deserves criticism but the DA and judge are the most blameworthy and it is neither easy nor famililar to blame the victim for taking a payoff -- in addition -- advocates who stood silent from day one should reassess whether they did the right thing -- and we can talk until the cows come home about "fixing the system", but we'll be grinding our wheels in meaningless busywork forever if we don't rise above the fray and have a real revolution -- this means feeling and acting on the rage that naturally flows from this case on a number of levels -- we may not all agree about what makes us feel rageful but at a minimum, if we agree that the system needs major repair, then let's at least agree that there will be no more silence about anything -- no silence out of fear of being called racist - and no silence out of fear of being called anti-victim -If a victim's conduct adds to systemic injustice, it must be stated. No more political correctness -- no more careful parsing of words for fear someone might be offended. No more polite lobbying for useless new laws -- It's time for real reform and all the pain that comes with major change.

-- Wendy

Marc was a prosecutor for 10 years, as well as a Special Assistant U.S. Attorney, and served as Special Counsel to the Violence Against Women Office at the U.S. Department of Justice. He currently serves as Executive Director of CAVNET.

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