There Must Be a Better Way
From Cyberlaw
(The complete project, with supporting audio-visual exhibits, can be accessed through a wiki at www.thoughtsondaterape.pbwiki.com. In order to further the development of ideas on this topic, comments, questions, and suggestions are welcomed. The password to edit the wiki is “xoxo.”)
There Has Got To Be a Better Way:
A Collaborative Approach to Solving the Problem of Date Rape
“All men are rapists, and that’s all they are”
– Marilyn French, The Women’s Room
“The sensible course, they say, is to pay no attention to it, because it is obvious that the women must have been willing participants in their own abduction, or else it could never have happened.”
– Herodotus. The Histories
“What our policy is, um, we get every side of every story.”
– Detective Doug Winters, transcript from initial interview with Kobe Bryant.
Introduction
A rape accusation lights the wick of the criminal justice process. Parties become opponents, with contrary aims and hostility building through arrest, indictment, plea bargain or trial, and potential sentencing. This process may well express the natural anger and frustration arising from the initial encounter and charge.
Yet if we aim to move from a heated dispute to a credible, acceptable resolution, why do we assume pitting parties against one another is the surest or wisest approach?
Using lessons gleaned from Colorado v. Kobe Bean Bryant , where America’s criminal justice machine struggled, and failed, to resolve the ultimate issue of consent, this essay offers an alternative, using voluntary, confidential mediation in the context of acquaintance rape. The proposal sounds radical – one might instantly ask – Would women participate? What about defendants’ constitutional rights? Have we forsaken the State’s interest in punishment for a criminal act? My hope is that exploring the possibility may allay these fears, and perhaps replace them with a sense of optimism.
I. Stranded on Mountaintops
Bryant wreaked damage on all involved.
The defendant who confessed “[m]y biggest fear is my career and … my image,” will never be seen the same way again. Though he insisted the encounter “was totally consensual,” and prosecutors eventually dropped charges, Bryant remains, once and forever, suspect.
To Bryant’s accuser, the evidence must have seemed irrefutable: vaginal tears, excessive bleeding, her blood on his shirt. Yet seeking vindication, she found humiliation. One magazine placed her on the cover, hiking her prom dress. The Globe gleefully announced she was “In Cocaine Rehab!” An opposition lawyer suggested in court she “had sex with three different men in three days.”
The Law Lord revealed incompetence, which bred impotence:
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At a preliminary hearing, when presented with a picture of the accuser’s vagina, the prosecutor’s lead witness literally did not know which end was up.
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The prosecutor’s persistent use of leading questions on direct examination prompted the judge’s observation, “[w]e must have gone to different evidence classes.”
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The presiding judge threatened to “muzzle” Bryant’s attorney for naming the accuser, then released a sealed order revealing her name, and sent to the media a transcript detailing her sexual history.
The accuser ceased cooperating. The prosecution folded. Legal analyst Jeffrey Toobin labeled the affair a “disgrace.”
No party emerged unscathed. Observers might justifiably have lost faith in the criminal justice system. With the costs of pursuing accusations made painfully clear, a woman might be more hesitant to come forward; a man more likely to indulge abusive impulses. By sending this message that encourages harmful behavior, the system failed its fundamental mission.
II. The Valley Between
Imagine any social group – tribe, village, or church. If they could start from scratch, would this system be the one they chose to resolve this type of dispute?
What if, instead of assuming the inherent superiority of the adversarial process to resolve issues of consent, we attempted mediation? An accusation would trigger very different events. First, the man and woman might speak individually to a mediator, telling their stories without provoking intense fear and anger that might arise from a premature face-to-face encounter. Unlike an advocate seeking to exploit differences or attack the other’s version, the mediator aims, over time, to bring parties together.
Content appearing in both narratives could be stipulated as truth. This mirrors the common-law winnowing procedure, but the goal here is not to sharpen the focus of dispute, but to demonstrate areas of consensus. Committing this emerging story to paper, even with blank spaces remaining, might foster a shared enterprise. The Bryant narrative would have exhibited considerable overlap – meeting at the Lodge; the offer to go swimming; the decision to return to his room.
Participants could then discuss – in person, through video conference, or via the mediator, what they hope to gain from the process. If their goals are wholly incompatible – perhaps she seeks severe punishment while he craves absolution – trial remains a fall-back option. Yet while a trial establishes that one person’s gain (e.g. conviction, or acquittal) necessitates the other’s loss, a flexible framework might allow for mutually desirable tradeoffs. Perhaps she seeks an apology, a recognition of her pain. Perhaps he yearns for retraction of the accusation. Here, an accuser might be prepared to admit that, while she did not consent, she may have been less than clear about her intentions, perhaps out of ambivalence, or fear. This could lessen his shame, for in this story, he is no brazen attacker; he is primarily guilty of misunderstanding. He might then be more likely to admit he was callous, or failed to understand the level of respect owed an intimate partner. The accused might then – perhaps at the mediator’s urging or the accuser’s insistence – accept punishment for his actions, just as he might in plea bargaining discussions with prosecutors.
The participants – perhaps with the mediator’s help – together write the story of their encounter. The story might be difficult to compose, but in working through each element, the authors understand the interaction in a new way, enlarging each point of view. Whereas in the traditional system, courts impose a narrative, here participants control the story. Such a version, told by those in a position to know what occurred, might be more credible than the traditional judicial product.
Finally, we disseminate the shared version. An accuser and accused from separate cases might appear together at schools or workplaces, each reading from combined narratives, and taking questions from a live and online audience. Deterrence could thus be accomplished not solely out of fear of the Law Lord, but because more people would learn how to avoid inflicting injury, or suffering it themselves.
III. Responding to Natural Concerns
Let us now reconsider our instinctive fears of mediation in light of the proposal.
Women Won’t Participate
The current system alienates accusers. Mediation offers another pre-trial alternative that affords greater control of process and outcome. Unlike plea-bargaining, where prosecutors dictate narrow terms of settlement, women could ask for precisely what they desire – an apology for example, penance, or restitution. Mediation would also allow accusers to refuse to agree to any settlement, and proceed toward trial. Thus the process provides the power to withhold consent, the very thing the accuser felt was taken from her in the original encounter.
Mediation Compromises Defendants’ Rights
A defendant would retain the constitutional right to demand a jury trial. Just as settlement discussions are typically made inadmissible in civil suits to promote compromise, mediation talks could be ruled inadmissible to protect rights against self-incrimination.
What about the State’s Interest in Punishment and Deterrence?
Today, only a small percentage of acquaintance rapes lead to prosecution and conviction. By providing a safer process that empowers accusers, mediation might lead to a higher percentage of bad actors being held to account. Further, the proposal anticipates sentences that embrace punishment, rehabilitation, and education, which would likely lower the recidivism rate and pre-empt future disputes.
The proposed remedy may not rely on elaborate, established evidentiary rules, yet it advances the goals behind the federal rules: “to secure fairness … [eliminate] unjustifiable expense and delay … [and promote] the end that the truth may be ascertained, and proceedings justly determined.” Rule 102.
III. Conclusion: A More “Civil” Discourse
Despite systemic flaws manifested in the Bryant criminal proceedings, the subsequent civil action provides hope. Perhaps the very word “civil” suggests benefits gained. Once the criminal process ended, both parties sought a settlement – a situation not wholly unlike that described in the mediation proposal. With structural enmity reduced and the burden of proof placing the parties on more equal footing, aligned interests led to a shift in rhetoric.
Bryant apologized “for my behavior that night, and for the consequences she has suffered in the past year." One might question Bryant’s sincerity, but would we find contrition more heartfelt if he were tried and convicted, and made similar statements to gain a lighter sentence, or parole? Note that if he were found not guilty at trial, no similar expression of remorse would likely be forthcoming.
As the settlement process advanced, Bryant acknowledged complex, multiple perspectives. "Although I truly believe this encounter between us was consensual,” he said, “I recognize now that she did not and does not view this incident the same way I did."
No solution to the problem of data rape will be perfect. Any system can be attacked for failing to protect the accuser, the accused, the law, or society at large. The proposal offered here is certainly no exception. I ask only that it be taken in the spirit intended, as an attempt to generate – for both parties, both before and after an encounter – more empathy. The goal, then, is not only to heal the pain of confrontation, but also to encourage ways of thinking and acting about one another, so that we can stop the explosion before the match ever touches the wick.
