I will never understand how sexual assault continues to be a confusing topic. I don’t understand what makes it different than other crimes. I don’t understand the stigma associated with reporting an assault. I don’t understand the need for or the value of having a sexual offender registry. I don’t understand why this is a topic that repeatedly pops up in the news and the media, before subsiding for a few months only to appear again when there’s a particularly salacious case.
There’s a lot I don’t understand, and that’s said from the point of view of somebody who has experienced almost every iteration of it. I have a good friend who was sexually abused by an older brother. I have a roommate who was sexually assaulted after a night at the bar, when she thought she was safely sleeping on a couch. I had a classmate who was held at gunpoint and digitally penetrated. I’ve encountered sexual harassment at school, at work, and once I was physically held down while a man slobbered all over my face — at a public park, where it took several minutes before anyone thought to intervene. I’ve assisted in the investigations of assailants and have prosecuted men who sexually assaulted grown women and child. I defend men who are alleged to have sexually assaulted others. I put this out there because, unlike armed robbery or wire fraud, unlike homicide or negligent manslaughter, unlike even the common DUI, there seems to be a constant need when discussing sexual assault to assert your right to the discussion. To assert some knowledge or personal experience that makes your position and your point of view valuable.
I don’t understand that, either.
What Jon Krakauer does so well in his book is fail to provide any answers. He simply recounts the investigations and prosecutions (or lack thereof) for five women. He discusses the way police in one small, cross-section of America, treated victims of sexual assault and investigated their cases. He interviews prosecutors who declined to prosecute cases, and the deans that held hearings to civilly arbitrate claims of sex assault. He recounts the trauma that the victims experience, not just during the assault itself, but also in the aftermath. He deals respectfully with the defense attorney who defend the cases.
His account is not the Brock Turner debacle again. He does not vilify the assailants, or their friends and family. He acknowledges that defense attorneys are doing their job when they attack the credibility and character of a victim. His focus is not on the assailants, but on the community that supports them and ignores the outcries of a victim.
I enjoyed the book. I appreciated the insight that it gave me. But I can’t help but look back at my own history and experiences. When I was a prosecuting, I declined to prosecute more sex assault cases than I brought charges for. It was never because I didn’t believe the victim. It was usually because there was insufficient evidence to sustain a conviction. In each and every case I spoke with the victim personally. I discussed with her every tactic that a defense attorney would use, and the likelihood of an acquittal. In every case but one she requested that we not prosecute the case, if we didn’t believe that we could secure a conviction.
Maybe that is what makes a sexual assault case so much different than any other crime — the lack of evidence. The eternal existence of reasonable doubt. We denigrate the responsibility of the prosecutor — an individual who represents the government, and not the victim of a crime. A person who has an independent ethical obligation not to bring charges that aren’t supported by the evidence. The American Bar Association requires that a prosecutor not proceed in a case without probable cause. The Air Force ethical standards require not proceeding if there is not evidence sufficient to sustain a conviction.
In Virginia, as in many other states, victims of crimes used to prosecute their own cases. They brought the charges. They determined the outcome. That seems to be the trend in sex assault cases (though not in armed robbery, or wire fraud, or homicide, where the government is always willing and eager to proceed, even if the crime victim is uncertain). If the victim wants a court, we’ll consider it. If she doesn’t want to put herself through that, we can wash our hands.
Krakauer’s book addresses that, as well: the fact that the victims who fought to go to trial had some success, whereas the ones who passively relied on the government found their cases ignored, set aside, forgotten. He doesn’t have an answer for the question, he doesn’t have a solution for the government on the best way to proceed (he does seem to set an imperative for the universities, however; do not wait for criminal prosecution; conduct adjudicative hearings and use a lower standard). I don’t have an answer, either. But I think there’s value in discussion. I think there’s value in acknowledging that this is a difficult crime with which to grapple. That much, at least, I do understand.