Crime

Trying A Sex Case As A Woman In The #MeToo Era

How could I defend a man accused of rape without appearing insensitive to the #MeToo movement?

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I picked up a rape case two years ago.  My client was alleged to have gone into a bar in New York City, lured a 22-year-old to the bathroom to do cocaine, and then raped her.

I fretted about the case from the moment I picked it up.  I’d done rape cases before, but way before the #MeToo movement. I had treated rape allegations like any other, but things had changed.

In addition to my own lurking predisposition to believe women who say they’d been raped, I now have my own 22-year-old daughter who goes clubbing.

I was faced with a cultural shift. How do I represent this client to the best of my ability without appearing insensitive to the #MeToo movement?  How do I, as a woman in 2018, defend a man accused of rape? 

Questions kept me awake at night: How could I cross-examine the complainant without looking like I was “slut-shaming”? How do I find a fair jury? What if my client really did it, but I got him off? (In most cases this doesn’t bother me, but here it did.)

While we waited for the case to go to trial, the defendant made bail and stayed out of trouble, but he couldn’t find steady work.  As soon as an employer looked him up, they’d find the open rape charge.  On the couple of occasions when he found work, he had to come back to court so many times (and sometimes wait all day for the case to be called), that he’d lose the job.  He fell further and further into depression and desperation.  On the night of the alleged rape, he had gone into a small bathroom with a young woman, given her coke (at her request), and had sex.  But, he insisted, it was consensual.

The longer it took to try the case, the worse it got for my client.  Since 2017, things only amped up further in the #MeToo world.  Dozens of celebrities and power-brokers lost their jobs, status, and acclaim after being charged with sexual harassment and rape.  “America’s Dad” Bill Cosby was convicted.  Brett Kavanaugh was appointed to the Supreme Court in spite of credible testimony by Christine Blasey Ford and a close-to-unhinged response by Kavanaugh himself.

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In these times, how would a jury be able to reasonably weigh evidence (or lack of it) and not jump to the conclusion that because a charge was brought, it must be true?

Manhattan jurors are unique — doyens of a high-class city, most with well-paid jobs, college, and often advanced degrees.  Most get their news from the “liberal” press rather than the New York Post.  These were the exact people I generally like on juries, but not on this case.

The voir dire started with the judge alerting the jurors to the nature of the case – Rape in the Third Degree.  Immediately more than half of the venire had to be excused.  Only one of the about 60 people expressed skepticism about the charge.  Her response took us aback.  “If she went in there and did cocaine, she was asking for it.”  She left.

Everyone else who was relieved from jury duty talked of believing the woman, having been exposed to sexual assault or harassment either personally or through a family member, and not being able to have an open mind.

Of the remaining jurors who were not excused, when I asked the question, “How many of you believe that just because a woman claims she was raped, she’s telling the truth?”  Almost every hand went up.  Reconcile that with the presumption of innocence.

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The evidence came in flawlessly.  The young woman was an actress from Chicago.  She admitted experimenting with drugs and agreeing to “party” with my client. They went into a 5ft by 2ft bathroom.  She did two “bumps” of cocaine.  She kissed him. He told her he liked her.  She told him he was “a beautiful person,” but when he rubbed her crotch over her pants, she said no, and both left.

An hour later, seeing him again, she beckoned and they went back to the bathroom.  She explained she’d Venmo him payment for the coke, assuming he’d understand that to mean the coke transaction was strictly business.  He didn’t.

What followed was what she claimed was non-consensual sex.  She admitted she did nothing to fight him off or scream.  She said she was too scared. When she left the bathroom, she told her friend, “I think I was raped.”

911 was called. My client was promptly arrested and the inexorable process of getting a rape case to trial began.

To my great surprise last week, he was acquitted.

I had a prosecutor who was overly dramatic, which only helped my case.  She’d described the complainant as shouting out, “No, No, No,” and banging on the bathroom wall.  The complainant didn’t say that happened.  The prosecutor described my client as “lurking” around the complainant’s table and “luring” her into the bathroom.  Her exaggeration cost her.  The video at the bar didn’t show him either “lurking” or “luring.”  It showed the complainant willingly going with him into the bathroom.

I made it clear on summation that I was not “blaming the victim.”  The mere expression “blaming the victim” assumes the conclusion — that she is a “victim.”  I called her a “complainant” like any one who makes a criminal charge.  I explained how my client was just as entitled to the presumption of innocence and proof beyond a reasonable doubt as a defendant charged with any crime, whether it be credit card theft or murder.

At the end of the case in speaking to the jurors (mostly women), they felt the prosecutor hadn’t proved her case.  The complainant was high, and she’d gone back in the bathroom with the defendant even though he’d touched her crotch during the first encounter.  They voted with their heads, not their hearts.  Some said they would have like to have found him guilty, but they couldn’t based on the evidence.

For my part, I’m at peace with the conclusion.  I still don’t know what happened in that bathroom but pinning my client with a rape conviction after an ambiguous encounter would not only have landed him in jail for up to five years but stigmatized him as a “sex offender” for the rest of his life.

I also don’t see the acquittal as a slap in the face to the #MeToo movement.  Both complainant and defendant had their day in court.  The jurors listened with rapt attention.  But the fact of the matter is that the burden in a criminal court is higher than determining to end a TV series, or whether someone gets fired from a job, kicked out of university, or appointed to the Supreme Court.  The proof is beyond a reasonable doubt.

Based on the evidence in the case, the jurors said they couldn’t really be sure what happened in that bathroom.  Even if my client “probably” did it, that proof is not enough. They left feeling they’d discharged their duty by following the law.  They also hoped that both the complainant and the defendant had learned a lesson.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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