Obsession (25 page)

“One problem,” says Fairstein, “is that some ER doctors don’t feel that treating a rape victim is a medical problem, that collecting evidence in the emergency room is not something that a doctor should do, that if her life doesn’t need to be saved, it’s not an ER problem. We confront this regularly, and I lecture about it in every hospital in the city that’ll have me.

“The medical piece of it is, she has not only had the trauma of the rape, but she’s possibly been exposed to sexually transmitted diseases, possible pregnancy, and certainly now, exposure to HIV infection, which is a very serious problem that many victims don’t think about in surviving the attack but which becomes critical right afterward.”

The medical professionals who treat a victim with dignity, according her privacy and respect, can help her take an important step forward. I’ve heard of cases to the contrary, however, that do a tremendous disservice to the sexual assault survivors and to the medical profession. I used to tell my people that all of us professionals need to “watch our mouths.”

A woman lying on a gurney or examination table, who’s already been victimized by one stranger that day, certainly doesn’t need to hear an orderly or nurse walking
by her door (or the curtain temporarily separating her from the rest of the ER) announce to a physician coming on duty, “That’s the rape victim.” There can be a tendency to see the victim first as a walking crime scene and then as a human being who’s been wronged, and we need to remember to address both of those truths.

After the initial encounter with the victim, the investigator has to begin putting together the pieces of the puzzle and figuring out how to hunt down the offender and bring him to justice. From the outset, acquaintance-rape cases are handled differently than stranger assaults. The immediate advantage in investigating an acquaintance rape is that you already know the identity of the alleged assailant. In trial preparation, in addition to confronting any issues that will arise in the credibility war between defendant and accuser in court, it’s critical that the prosecution team understand what the story is from the alleged rapist’s perspective. By this, I don’t mean just keeping up with the latest version of events as told by a Robert Chambers type. Instead, I mean that if his claim will be that sex was consensual, what happened between the two of them that either led him to believe that or could provide support to his story in the eyes of a jury? If, say, the woman returned his kisses and eagerly took part in the interplay, he may not have interpreted that how she meant it. A more extreme instance would be if the victim went along with oral sex but didn’t want vaginal penetration out of fear of pregnancy. Members of a jury, however, may need to be educated, and the prosecution needs to be prepared to handle consensual (or seemingly consensual) acts leading up to the sexual assault. Linda Fairstein notes, too, that anything unusual about the situation will need to be dealt with up-front—even at jury selection—because jurors often will not be able to respond beyond their own frames of reference.

Fairstein says, “You will get, for example, the victim who will describe what most of us in the business would call a dysfunctional offender, who will maintain an erection and penetrate and remove himself for a period of three, four, five hours while she’s bound during a burglary in her apartment. And you will find people who will say, Not possible. She’s lying. You can’t do it for that long,’ based on their own personal experience and not understanding the pathology of some of these offenders.

“People who come to the jury box with stereotypes, with biases, with prejudices, will incorporate those. And you don’t get those out, necessarily, in jury selection. I mean, it isn’t until somebody’s waved the tiger-striped bikini panties in front of her that a juror says, ‘I buy white, cotton Carter’s underwear, and a woman who wears underwear like that must be …’ It’s that kind of thing.”

Fairstein had another case in which she found one of the jurors having to be convinced that a man and a woman could have sex standing up, otherwise the victim’s story would not be believed.

In the case of stranger rapes, an important consideration is to determine whether or not this rape is part of a pattern—that is: Are we dealing with a repeat or serial offender? It deeply frustrates those of us in law enforcement and the criminal justice system when we see cases where a paroled offender—often convicted of a previous sex crime—returns to the system again after committing an assault even more violent than the last. In fact, recently released prisoners are often an ideal pool of suspects in a stranger rape, as we saw in the Timothy Spencer case in Virginia, recounted in
Journey into Darkness
.

Assessing whether a stranger rape is actually part of a series is a subject about which I often offered
court testimony when I was with the Investigative Support Unit.

The impediment to an investigator’s seeing cases as related is referred to as linkage blindness, and it can happen for a number of reasons. One is associating crimes only by location, when a particular UNSUB may, in fact, have a number of comfort zones. Maybe he lives in one part of the metropolitan area and works in another. Maybe his girlfriend or another family member lives somewhere else. And, of course, when you shift law enforcement jurisdictions, such as when an UNSUB leaves one city and moves to another, linkage is particularly difficult.

Another cause of linkage blindness is depending too heavily on MO to the exclusion of other factors. If an UNSUB uses a knife in one crime and then a gun in another, or if he jimmies a window open at one location but comes right through the front door at another, we can clearly see that the modus operandi in each case was different. That doesn’t necessarily mean it’s two different guys. Remember, MO is learned behavior and it evolves based on experience. Maybe he didn’t feel comfortable using the knife and so he decided to try a gun, knowing he wouldn’t have to get as close or exercise as tight control to subdue a potential victim. Maybe he realized that breaking through windows was too risky and left too much evidence, so he began surveilling locations where the door was unlocked or unsuspecting women would answer a knock without looking to see who it was first.

It’s also important to remember that while MO isn’t the most reliable indicator, it can also evolve into signature, at which point it will become a more standard part of the presentation and give us more behavioral evidence to work with. A good example of this would be an offender who brings cords or ropes with him, which he uses to control his victim. He sees this is
an effective method, so he continues to employ it in subsequent rapes. But then during one of them, he realizes he’s getting a charge out of seeing the woman choking under the ligature or gasping for breath, and erotic asphyxiation becomes part of his signature. If that happens, we could expect to see some variation of that in subsequent crimes.

Of course, there can also be a tendency to look for patterns where none exist, particularly if an area is experiencing an upswing in the number of reported assaults. But because of what we know about all varieties of rapists, most rapes by strangers should be considered as potentially part of a series unless there is strong indication to the contrary. And, as I think we’ve seen from earlier chapters, a pattern of behavior may not mean that a rapist has committed earlier rapes per se. Look at the Peeping Toms and burglars arrested in the area and see if descriptions match.

What used to be particularly frustrating about rape cases was the uneven treatment of the victim’s personal life and past versus what the jury (and often the press) got to hear about the defendant’s history. The numbers would probably be appalling if we were able to assess how many rapes are unreported because a victim (or her husband or parents or other influences in her life) did not want to deal with being dragged through the mud. Think of the “rough sex” claim that haunted the memory of Jennifer Levin in the Robert Chambers trial, even though there was no shred of evidence to support it, together with the fact that the jury was never allowed to hear about Chambers’s genuine criminal past.

Fortunately, we have seen some substantial improvement in the way rape is prosecuted, thanks in large measure to people like Linda Fairstein and so many other dedicated individuals who decided to specialize in what for so long was an unpopular backwater of criminal law.

“The big surprise for most people is that the criminal justice system works at all and that it can work,” Fairstein states. “I’m a real optimist about it because I started doing this at a time when it didn’t work at all and there were corroboration requirements someone else had to testify as a witness or be able to verify that the rape had taken place], and most women had to be turned away by me at the door. It’s amazing, but that’s the way it was.”

Rape shield laws offer the victim protection from some of the ugliest forms of attack by preventing the introduction of information about her past or what she was wearing that has nothing to do with the crime committed against her. And we may finally be getting to the point where most juries just won’t accept the tired defense strategies that attempt to sully the reputation of the victim to make the defendant look like an altar boy.

“The stranger-rape defense nowadays is generally very gentle on the victim,” Fairstein observes. “It doesn’t have to impugn her reliability, her personality, or her lifestyle at all. It can just say, ‘You’re right, I believe you, this is a terrible thing that happened to you, Ms. Smith. But this is the wrong guy. My guy didn’t do it.’ And I can respect that as a defense strategy. I can get angry or not at the level of the attack, but I can respect that kind of defense.”

The rape shield laws are just one area where education of the public about an unfair, discriminatory, unwarranted, and damaging practice led to change. We should see this as an encouragement that other problem areas in the prosecution, conviction, and sentencing of sexual offenders will be addressed in the not-too-distant future. Sometimes evolution in thinking and awareness results from publicity surrounding circumstances that simple common sense tells us are wrong.

Some inappropriate reactions are so blatant as to be all but unbelievable. I am reminded of a 1989 case
in which a woman claimed to be abducted at knife-point from the parking lot of a restaurant in Fort Lauderdale, Florida, and raped repeatedly. The alleged victim, a twenty-two-year-old woman, was reportedly dressed in a tank top and lace miniskirt with no underwear. The jury ruled the defendant not guilty because they felt she had solicited the sexual act.

“We all feel she asked for it the way she was dressed,” the jury foreman told
Time
magazine.

Whether this victim’s mode of dress was wise or not under the circumstances, what is it going to take to get some people to realize that women do not
ask
to be raped? Never, ever. By definition, it is impossible. Yes means yes, no means no, and there is little ambiguity possible between these two responses.

Equally outrageous is a case of Fairstein’s. “There’s one judge I had a terrible experience with,” she recalls. “He’d been on the bench a long time and had a relatively good reputation and was supposed to be a nice guy. We were trying the case of a forcible rape of a twenty-five-year-old woman. She had the mental development of a six-or seven-year-old, and when the time came for sentencing, the judge announced that he was going to give the minimum sentence because the rape could not have impacted her the same way it would a ‘normal’ person, because she was retarded. And secondly, she had previously been the victim of physical child abuse and neglect, so he said this was just one more incident.

“I took on the judge and I made statements out of court to the press that these were medieval views he had expressed. He took me to the disciplinary committee of the bar for my remarks about him, but he was not successful.”

First of all, the notion that an offender’s punishment should be less severe because he took advantage of a mentally handicapped person is preposterous on its
face. Would the judge have given a lighter sentence to a man who raped a wheelchair bound woman on the grounds that since she couldn’t get around as well as an able-bodied person, the assault wouldn’t have the same impact on her life? If a blind woman was raped, would His Honor have concluded that since she couldn’t see the knife or gun, she wouldn’t have had the same fear as a sighted victim? Last time I checked, the phrase “Equal Justice Under Law” was still carved above the front door of the Supreme Court.

As demoralizing as these specific incidents are, there is reason for optimism. There are signs that the tide is turning. From the establishment of more local, community rape crisis centers to “Take Back the Night” rallies, to rock concerts held, in part, to benefit organizations that support sexual-assault victims, to the rape shield laws that make it much more difficult for the defense to try to make the victim’s personal history a part of the case, the emphasis is slowly moving to represent the rights of the victim at least as well as the rights of the victimizer, which is only fair.

It will never be easy, though. As should be clear by now, any discussion of the prosecution of rape and sexual assault is going to be full of good-news/bad-news situations. Beyond emphasizing that no one “asks for it,” it’s time for us to recognize that no one ever
deserves
to be raped and no sexual assault should go unpunished.

Finally, I’d like to close this chapter by addressing sexual-assault survivors directly. Whether you’ve already been through the system or you’re a “silent victim” like the many I’ve come to know, you may not feel particularly courageous or heroic. But I believe you are those things and more to have gotten through your ordeal as it happened and to be getting through each day since. I am not surprised that you have been able to overcome the experience (even if you are still working through it), but I do marvel at it and we should all respect your
strength. One thing I have learned from violent-crime victims in general, and sexual-assault victims in particular, is that survivors all heal in their own way and at their own pace. It is never easy, but you should know that the burden does not have to overwhelm you.