I shared this as a letter to the membership of the Gwen S. Cherry Black Women Lawyers Association.
I share this with you, because we are in a pivotal moment in our country.
Statistically, we are all either survivors of sexual abuse or close to someone who is. Be kind to each other. But even more important, take action.
STATEMENT ON JUDGE BRETT KAVANAUGH CONFIRMATION PROCEEDINGS
Like many of you, I saw the testimony of Dr. Christine Blasey Ford and Judge Brett Kavanaugh yesterday.
It was a tough day.
I remember 27 years ago when another victim came forward— Anita Hill. She was lambasted as a political plant and trying to “hold a good black man down”. Her story was dismissed, with her name being shamed. We later discovered there was corroborating evidence of her statement that was withheld in order to assure the confirmation of Clarence Thomas.
Here we are again. Multiple women have come forward, with one testifying before the Senate Judiciary Committee. Dr. Ford reminded me of so many victims I worked with as a prosecutor— frightened, embarrassed, yet determined to tell her story.
But what is different than a criminal trial is that Dr. Ford was not facing a jury of her peers. She was facing a group of mostly older white men, who wished for her to disappear.
To be clear, GSCBWLA is nonpartisan. But we stand for justice and the rule of law. We join the American Bar Association in calling for the FBI to conduct a full investigation to ensure that the same mistakes made with Anita Hill are not repeated. This is the highest judicial office in the land, with the ability to change the country for decades to come. It can’t be rushed; it must be gotten right. I have to note that while there were intellectual disagreements about the viewpoints of Justice Neil Gorsuch, not one person came forward to question his integrity or decency. The same applies to every other sitting justice, with the exception of Justice Thomas.
Lastly, but most importantly, I must address those brave individuals — male and female — who have survived sexual assault or abuse. We stand with you. We believe you. Please practice self care, because the pain of watching the news this week can trigger the past and be emotionally damaging. Seek professional counseling if you need it. The Florida Bar has resources; if you attended the WLOC Summit, one of our presenters, Dr. Delvena Thomas, specializes in emotional trauma
These numbers are a reminder why we need to lift up victims, and end the cycle of rape culture.
If you want to take action, call Senator Marco Rubio (or the Senator in your home jurisdiction) and tell him to delay the confirmation at 202-224-3121.
Additionally, you can volunteer at a domestic violence or rape crisis shelter to provide help to women in need.
The takeaway for me is that more women need to run for office – especially the Senate – to end the chokehold of the old boys club. We have miles to go on the topic of sexual assault in America. But nothing is impossible – every journey starts with a single step.
Melba V. Pearson, Esq.
Gwen S. Cherry Black Women Lawyers Association
Judge Rosemarie Aquilina drew headlines this week with her sentencing of former USA Gymnastics team doctor Larry Nassar. All week long, we were riveted by the powerful victim impact statements made by young gymnasts as to the abuse they suffered at the hands of someone they trusted. Testimony was given by Olympians, faces we recognized (such as Simone Biles and Aly Raisman) and some we didn’t. Irregardless, the pain was the same.
Each woman had the same story. They were young (starting at early teens), and they received a sexual violation rather than treatment by this doctor.
As she sentenced the disgraced doctor to 175 years in prison, Judge Aquilina made note of several aspects — the desire of the defendant to silence the women by asking the judge to stop the stream of victim impact statements; the large number of women who had come forward with similar tales of abuse; and Nassar’s unrepentant attitude. She read portions of a letter he sent, in which he laid blame upon the victims, the investigators, the prosecutor and the media.
Judge Aquilina made the statements to the effect of “I wouldn’t send my dog to you for treatment” and “I’ve just signed your death warrant”.
There are some that claim her comments went over the line, and that she has taken this “too personally”.
One male judge stated that Nassar’s sentencing was “the most violative” sentencing proceeding he can recall.
Let’s look at the role of the judge. At sentencing, a judge may consider a wide variety of factors, such as how dangerous the defendant is, likelihood to re-offend, the facts of the underlying case, impact on the community, and remorse of the defendant.
The facts that came to light include that this doctor abused over 150 women during a time span of close to 30 years, with similar facts. It is clear that he is likely to re-offend. The impact of this case is obvious — it has rocked the Olympic world, and shocked the public. The president of the University of Michigan, where the doctor was employed, resigned in the wake of this case.
As for remorse — this defendant had none. He exhibited signs of a classic abuser and manipulator, attempting to explain his actions away. See excerpts from the letter he sent Judge Aquilina below.
The judge stating that “she signed his death warrant” is a fact. He will not live to see the end of his sentence. Stating that “she would not send her dogs to him” for treatment? This, to me, was a direct response to his assertion that his actions were not molestation, but were some form of treatment.
In reading the derogatory comments from some men regarding this case, it appears that toxic tribalism and toxic masculinity continues to thrive. These abuses happen, and continue to happen, as a result of some men believing that they are entitled to take liberties with whatever woman they choose. It is the very essence of the #MeToo movement — from Anita Hill, to the women allegedly victimized by Bill Cosby, to the female employees at the Ford Motor Company. The actual facts and abuse may change, but the pathology is the same. It is rooted in power, entitlement, and a misguided belief that women do not deserve the same respect as men.
We must continue to vote for diversity in the judiciary. In doing so, you have judges who are keenly aware of the impact of their decisions, as well as the impact of a defendant on a particular underrepresented community. This is not to say a male judge would not have reacted in the same way in this case; but this judge was able to acutely see the pain that these young women were showing in their statements.
It is time to put aside the theory of “us men have to stick together“, and shift to a “respect all equally” motto. In doing so, victims who were violated in the worst way possible will be supported.
Is Bill Cosby going to prison?
As actor Bill Cosby trial for sexual assault continues, everyone is asking the million dollar question is this it? Is the legendary actor that we all grew up with (Mr. Huxtable, Fat Albert, Jell-o pudding pops man) going to serve prison time for the alleged sexual assault of Andrea Constand?
Several factors come into play.
First, he’s got to be found guilty. The prosecution has an uphill battle convincing the 12 person jury. There was a delayed report of the assault (one year later), no physical evidence, and no eyewitnesses. The alleged victim stayed in contact with Cosby afterwards. Jurors, in the age of DNA, need more than an accuser’s word more often than not. He also has a squeaky clean image, and was someone who seemed endearing on television. It may be hard to separate the character from the person.
But, the prosecution is not walking in empty handed. There was much pretrial press, including television specials and magazine articles, of the long line of women (over 50 in total) who claim to have been victimized by Cosby. This includes supermodels, struggling actresses, and an airline stewardess among others. As much as the judge and attorneys for both sides asked probing questions during the jury selection process, this publicity will be in the jurors minds no matter what they may have said. Also, another victim will be sharing her experience with the jury — hearing from multiple victims is more powerful. Lastly, the prosecution will present expert testimony with the goal of enlightening the jury as to the different, unexpected ways victims of sexual assault may act or react.
So, it is a toss up which way the case will go. If he is found not guilty, he walks out the door. If he is found guilty, he would not be sent to jail immediately. Sentencing would be set for several weeks after the verdict is read. At the sentencing hearing, the defense attorney would bring a host of character witnesses. We saw Keisha Pullman Knight come to court with him in support; she and other Cosby show co-stars have been vocal in their support. They will probably be called to testify, along with others who will discuss the positive things he has done for the community, for the field of acting, etc. The defense will be quick to remind the court that Cosby does not have a criminal history.
Along with his lack of criminal history, the judge can consider Cosby’s age (79) and health. If he is truly going blind due to glaucoma, along with other physical ailments, the judge may determine that incarceration may not be the best punishment. The judge may feel that because of his age/physical condition, he is unlikely to reoffend, therefore not posing a risk to the public.
Cosby faces a max of ten years in prison if convicted. But as we have seen in recent cases at Stanford University and in Colorado, judges may conclude that prison is not appropriate for a variety of reasons. Granted, historically, men of color have not had the best luck when it comes to sentencing, as seen by the disproportionate numbers in prison. But wealth is often the great equalizer, as seen in the OJ Simpson case.
John R.K. Howard, photo from Tarrant County Sheriff’s Office
Chicago 4, courtesy of Associated Press
Hey RLD Family, and Happy New Year!
My newest post in the Huffington Post tackles the recent attack on a disabled man in Chicago. Before you flip out — read the article until the end.
What’s Fair is Fair: Give the Chicago 4 Probation
It has recently come to light that four young people in Chicago brutally assaulted a disabled young man. They filmed the entire incident on Facebook Live, and broadcast it for all to see. He was kidnapped, forced to drink toilet water, and was beaten repeatedly. Brittany Covington, Tesfaye Cooper, Jordan Hill, are 18. The last offender was Covington’s 24-year-old sister, Tanishia Covington. This crime was particularly heinous because of the fact that the victim was attacked not only for his disability, but for his race, as well purportedly supporting a different political viewpoint to the offenders.
This crime is horrible and must be punished.
In October 2015, three young men in Idaho assaulted a disabled young man. John R.K. Howard, 18, and Tanner Ward, 17, were charged as adults with felony counts of forcible penetration by use of a foreign object. A third teen was charged as a juvenile. The history of their interactions with the victim included racial slurs, taunting him because of his race and disability. The victim and the offenders were on the same high school football team. The young men forced the victim to sing racist songs, and beat him on prior occasions. The prior harassment ended in these young men holding the victim down and inserting a metal hanger in the disabled victim’s rectum; they then kicked it repeatedly. The victim has now been institutionalized; it is not a stretch to conclude that it is partially because of this despicable crime.
The prosecutor in this case argued that this was not a sex crime, and that the racial component was not as bad as it seemed. The defense attorney and the prosecutor reached an agreement that would include probation as a punishment with no prison time; there is also the opportunity for the charges to be reduced to a misdemeanor at a later time.
It is a tough time to be a parent of a girl in the United States. The recent headlines in the news give conflicting messages on the crime of sexual assault.
On the one hand, we have President Obama signing into law a Sexual Assault Survivors Bill of Rights, which will give more of a voice to victims and protecting rape kits nationwide from destruction.
On the other, we have a Presidential candidate discussing grabbing women by their private parts, which, if done without consent, is a crime in all 50 states.
In the middle — several high profile cases of light sentences given to convicted rapists, as well as a movie director Nate Parker who is unapologetic for his acquittal in a rape case nearly two decades ago.
With all of these issues swirling around, what do we tell our daughters about sexual assault? How do we protect them?
Sentencing decisions by some judges in recent months have sent a deafening message: the perpetrator’s future is more important than the victim’s trauma. In California, Colorado, Massachusetts, and even Canada, stories have been released regarding the incredibly low sentences in relation to depraved acts.
The narrative is the same.
She was drunk
She didn’t respond.
He’s not a bad kid
He has a future
When we discuss mass incarceration/over incarceration, we can’t lose the basic fact that violent offenses need to be punished accordingly. A theft should not be treated the same as a robbery with force.
A sexual assault is a violent act, based not in desire but in the need to dominate and hurt .
As I examine the Stanford University (California) rape case, my heart breaks for the young woman who was so horribly violated. Her life will never be the same. Her letter lays out the classics symptoms of post traumatic stress disorder from a traumatic event; I hope that she is getting the therapy and support she needs for the long road of rebuilding her life.
But there are additional victims in this case as well. The witnesses are victims as well. We often forget that witnessing a crime is traumatic. Often actors in the criminal justice system become immune. I’ve come to that painful realization by noticing the dark, cynical jokes we tell to diffuse a situation. I can look at autopsy photos while eating a sandwich (not preferable mind you, but time is often of the essence). However, the average person is not equipped to deal with such an experience. I look at the two brave young men who rescued the Stanford survivor, pinning down her rapist Brock Turner. The men were students from Sweden, who came to our country to work on their Masters degrees. They, no doubt, were enjoying California and the rich academic environment at Stanford…until that fateful night. That night, their innocence was shattered. So much so that when the police tried to talk to them about what they witnessed, one of the men was crying uncontrollably.
What is also disturbing to me is after the publicity the Stanford case garnered, a similar situation occurred in Colorado this August. Yet again, a campus rape, this time at the University of Colorado-Boulder. Yet again, a light sentence; 2 years of work release followed by 20 years of probation. The reason given by the judge? Because the defendant “has a future“. What about herfuture?
Also in August, a judge in Massachusetts sentenced a young man sexually assaulted TWO women to two years probation.His lawyer calls the defendant’s actions “a mistake”.
The defendant inserted his fingers into two women while they were sleeping.
I fail to see the mistake in that.
In Canada, it recently came to light that Judge Robin Camp asked a victim “why couldn’t you keep your knees together?” to avoid the rape. He further referred to the victim as “the accused”, and stated that “sex and pain often go together“. I guess he didn’t understand the dynamics of forced sex and violence, even though his own daughter was a victim.
Actors in the system, especially judges, must be aware of implicit bias. It differs from racism in that it is not a deliberate act against an ethnic group; but assumptions as to who belongs in prison and who does not can unfairly affect the decision making process.If two similarly situated individuals of different races would not receive the same sentence, there is a huge problem. That same concept of implicit bias applies to who can be a victim, or what is viewed as a “legitimate” rape.
Going back to the Stanford case, the judge has since transferred to the civil division. This is good, because there is clearly a disconnect in believing 6 months (with credit for time served effectively reducing it to 3 months) is appropriate for raping an unconscious woman. His lack of documented criminal history is not the beginning and end of his recidivism risk. One must look at the manner in which the crime was committed. The level of depravity — seeing someone vulnerable, becoming aroused, and attacking — shows the instincts of a sexual predator. The statements of the defendant’s father referring to“20 minutes of action” shows that he was raised in a household that condoned this type of behavior. If he lacks the moral compass to understand his behavior was wrong, his risk of recidivism increases even more. Additionally, it has come to light that the defendant repeatedly lied to officials, claiming that the crime was “consensual” in order to get a lesser sentence.
The latest debate around sexual assault involves Birth of a Nation director Nate Parker. In college, he and friend Jean Celestin were accused of raping a fellow student. They were tried; Parker was acquitted and Celestin was convicted, with the conviction later overturned. The prosecution declined to try the case again due to issues in locating witnesses 5 years later. Parker has been asked repeatedly about the incident, and refuses to apologize, stating he was falsely accused.
To be clear, false reports in sexual assault cases hover at 7%, but more importantly, 63% of assaults go unreported. What are we doing to change that number?
Not believing the victim is a hurdle, especially when alcohol is involved. Nate Parker was acquitted, making him legally innocent. He is not guilty, which means the prosecution couldn’t prove the case beyond a reasonable doubt.Does that mean he is factually innocent? Maybe. Maybe not. The victim maintained until her death by her own hand that this crime occurred. He says he was falsely accused.
Was he part of the 7%? Someone has to be.
All we know is the tragedy that ensued on the victim’s side. She went through the worst case scenario — she told her story but was not believed. This is the deepest fear of all victims.
So what do we tell our girls? I have previously written on this topic: travel in groups when attending college parties, and take care of each other, especially if one of the group is heavily intoxicated. Try to always keep your wits about you. And if the worst case scenario happens — speak up immediately! Despite some judges who don’t sentence appropriately, the majority do. The only way to change perceptions and attitudes towards sexual assault is for victims to come forward. Yes, it is a risk — but silence will not bring justice. We have to support victims/survivors, letting them know that they are safe in telling their story. By victim blaming, we are sending a message to other women not to speak out.
No matter what, rape is not the victim’s fault. It is due to the actions of a defendant — the same way getting murdered is not the victim’s fault. We must make sure our girls understand this.
And for our men and boys — here is a simple British video that summarizes everything you need to know about sex. Just remember — unconscious people do not want tea. Or sex.