By the Discretion of the Judge

Apparently our judges get a great deal of discretion during sentencing. This went viral when a judge recently reduced the sentence of a convicted rapist to three months in jail. People were justifiably appalled, but according to the research Jon Krakauer did for his book Missoula, judges have this discretion in rapes where there is no accompanying physical injury to not require convicted rapists serve any jail time at all. This obscenely ignores the emotional trauma of being the victim of a rape. And is really just obscene enough to stand without comment.

Where Men Win Glory: The Odyssey of Pat Tillman, also by Jon Krakauer, included an incident that occurred when Pat Tillman was nineteen. It turned out to be a regrettable moment in his life that he used to motivate himself to be a better person, which he successfully accomplished, so I don’t love describing it with him gone. Long story shortened from the book, he basically put a younger kid in the hospital and knocked teeth out and was still at it when cops dragged him off the kid. He was no bully. He mistakenly thought a friend of his was being bullied by a group, so he picked out the biggest guy from the group he could find and started fighting him. As happens with vigilante justice, he misread the situation completely and had actually picked out a guy who wasn’t even in the group. (Besides not realizing his friend had actually approached and antagonized the group first.) He could have been convicted of felony assault which would have cost him his scholarship to ASU but the judge reduced the charges to a misdemeanor.

A friend of the boy Pat Tillman beat up, Erin Clarke’s comments are worth copying out: “At the time I didn’t agree with the sentence at all. It seemed like the judge was more worried about Pat losing his scholarship than what happened to Darin.”

Later she heard on the radio Pat Tillman had been killed: “I remember the air being sucked out of my lungs. He was the first person I knew who had died in the war, and that morning the war suddenly became very real to me. What I take from Pat Tillman is that you are not who you are at your worst moment. After what Pat did to Darin, it seems like he really turned his life around and became quite an honorable person. That judge held Pat’s future in her hands. She had the power to send him down one path or another, and she decided to make what turned out to be a really good decision. She said ‘I’m going to believe in you—I’m going to believe you’re going to take this opportunity and do the best you possibly can with it.’ And you know what? It sounds like that’s what he did. I don’t think there are many people on this planet who would have done as well with that kind of second chance.”

I couldn’t agree with everything she said more because I know what a heroic and honorable life Pat Tillman lived. But the judge made what turned out to be a really good decision. The last sentence of her statement might be cynical but is probably accurate. How many people take these second chances and do good with them and how many shake off a close call but continue to live with huge entitlement issues? If the Stanford rapist turns out to do something wonderful and selfless with the rest of his life we might all say his judge made what turned out to be a good decision, but none of us think he’s a very likely candidate for living an especially honorable life.

So what are judges going by? Pat Tillman’s judge believed in him, but what’s her track record? Maybe she just believes in the good in everyone that comes before her and gets burned by most people on the planet. What did the judge see in the Stanford rapist? Maybe he felt pity for a young man who enjoyed cooking out and having prime rib, just like the judge does, but doesn’t anymore since what happened. Whereas a young man who cooks out and has hamburgers and hot dogs like most of the population of the country the judge wouldn’t relate to as well and therefore wouldn’t have his empathy invoked.

My two problems are we all like the idea of second chances for people. In fact, we’re rather obsessed with people making it on their second chance. But second chances after minimal or no consequences for the initial mistake probably don’t show improved behavior as often as we like to think. My second problem is I’ve lost a lot of faith in our judicial system. I grew up believing judges were impartial, which meant purely objective, above making decisions based on partisan leanings. I’m rather embarrassed that I held onto that as long as I did since learning it at age eight, probably. In the same book, I learned Bush’s 2000 election was helped along by a 5-4 ruling from the Supreme Court on a Florida recount decision. Sandra Day O’Connor, one of the five, had stated on several occasions she was eager to retire and didn’t want a Democrat to nominate her successor. That doesn’t prove she didn’t cast an impartial vote but, like I said, I’ve lost faith in the impartiality of our judicial system.

I suppose this blog would be better if I could end with an answer to it, but I don’t have one. Maybe one problem is the huge swings in sentencing. A person can get from no jail time to twenty years in jail for a conviction of rape. Maybe judges shouldn’t get that much discretion. Maybe we should be more clear that court TV isn’t court at all. Court TV is third-party arbitration. These TV personalities have all the discretion in the world and most kids and probably a lot of adults think that’s court, which it’s not. Maybe we should do close studies on how judge’s discretion correlates with race or gender. I know not everything is about race and gender but a lot still is about race and gender.

There might also be a sense that what happened to the victim of a rape or an assault can’t be undone. What’s about to happen to the person convicted of the crime can be done or undone, right then by the judge. Presumably judges get to be judges because they’re capable of handling that pressure moment fairly but maybe we’re terrible at deciding who gets to be our judges. Maybe there’s too much inconsistency. Maybe we don’t give enough consideration to how these instances of light sentencing leave victims feeling victimized again. And not just the specific victim but anyone who’s been victimized and people who worry about being victimized in a society where people convicted can receive such light sentences. That may explain why the Stanford rapist case went viral. People weren’t reacting to how that didn’t seem fair. They were reacting to how that wasn’t fair based on circumstances in their own lives, either traumas of their pasts or their biggest fears.

Where Men Win Glory: Reviewed

So many tragic missteps led up to the completely avoidable death of this great man. Not even so much the actual fratricide because that tragedy commonly befalls soldiers in wars and I can’t begin to fathom the mixture of confusion and fear and adrenaline that must go on during a fire fight. More upsetting and easily preventable were the decisions before combat took place: splitting the group, forcing them to make a destination for no tangible reason. Then all the misinformation about what happened intentionally spread by lies of omission. This seems to be the practice of this age. They know the truth is eventually going to get out, but they withhold it and let the lies and the misinformation do the work they need done. Then by the time the true story breaks, it’s too late to have the effect they worried about it having. (Which is partly the fault of the media and, let’s face it, us, which includes me, for sure.)

Somehow one of the slights that really bugged me that didn’t get much page time was his very clearly stating his final wishes weren’t to involve a chaplain or a military service. Those were his religious beliefs and they were ignored and not just ignored but openly disparaged by that one guy, whose name I don’t recall now after finishing the book.

But what’s cool is this story, as maddening as it was to read many details, is more than anything about an inspiring person in Pat Tillman. I only knew going in that he gave up his football career to join the Army, but there were so many additional little things you discover about him reading this book that you admire and can then emulate moving forward in your own life.

Missoula: Rape and the Justice System in a College Town: Reviewed

A difficult read, an important book. I saw the title and thought, Why would I want to read that? and then I saw Jon Krakauer was the author and I put it on hold at the library. The front flap of the book already upset me when I discovered the term “acquaintance rape.” Shortly after a woman described denying a man’s advances but staying over at his house after he reminded her it wouldn’t be safe to walk home alone at night. She said, later, “Before you learn the realities of sexual assault, you’re taught that it’s dangerous to walk alone at night, because strangers are out to get you.”

85% of rapes are “non-stranger rapes” or “acquaintance rapes.” There is a stunning misplacement of empathy when it comes to acquaintance rapes. In a case presented in the book, a man confessed to raping a woman, a friend since childhood, while she was sleeping, and his character witnesses consistently referred to the rape as something that happened, never as something he did, and unfortunate as this event was they didn’t see the benefit of both assailant and victim and their respective families having their lives disrupted any further than they’d already been. This same thinking is brought into the legal system. The minimum sentence for a rape conviction is two years served in prison, but the judge has leeway and in cases where rapes don’t include bodily injury, a convicted rapist can conceivably be freed serving no time at all. This is as sick as it sounds. That means judges can let people off if they rape gently.

This is following the rare convictions, but prosecutors essentially go looking for reasons to throw out cases for lack of evidence. One of the villains of the book, to my interpretation, is Kirsten Pabst, who boasted a 99% conviction rate of rapists from her time as a prosecutor, primarily because she was so adept at discovering reasons, ahead of time, cases probably wouldn’t win and so decided not to prosecute them, convincing the brave women who filed claims that they shouldn’t bother moving forward. Her poor handling of rape cases led, in part, to federal investigation in Missoula.

Missoula was used in this book because of some highly publicized cases involving the football team, but as the author frequently points out there is nothing atypical about the statistics of rape and the deficiencies of the legal system in Missoula. Getting assailants put away and victims justice is a problem throughout America.

80% of sexual assault incidents go unreported. Of those that are many are thrown out by prosecutors because the cases are considered unwinnable. This after these brave women have made it past police and investigators whose first line of questioning, commonly, includes asking women reporting rapes if they have boyfriends. The reason, to “find out” if their immediate assumption is accurate: that the woman cheated on a boyfriend and now wants to cover it up by claiming rape.

Part of this is a misunderstanding of the reality of rape and of how our justice system works, which affects both public opinion and investigations. Less than ten percent of reported rapes are falsified, first of all. Ample avenues are still available through the proceedings to uncover instances of false claims. A police officer taking a victim’s statement is not when to begin. The “innocent until proven guilty” concept is meant to apply to a later stage of the legal process. As is pointed out in the book, if innocent until proven guilty were applied in the beginning stages, nothing would ever get investigated.

Rape myths are used at every stage to discourage these cases from ever seeing a courtroom. Beginning with investigators’ assumptions that rape accusations are false, as evident in the commonly asked question of “do you have a boyfriend,” to defense counsel using victims’ responses against them when cases get to a jury trial. There is no normal way to react to the trauma of being raped. Victims fear for their lives during rapes, including rapes by non-strangers, so they may be too afraid to fight off an attacker or even to cry out for help. Despite this, demonstrated through scientific study, defending counsel of alleged rapists purposely play on these rape myths to establish reasonable doubt, using a woman’s moans as evidence against non-consent, or as in one of the cases documented in the book, texting a friend: “I think I was just raped.” And then giving the assailant a ride home. Defense argued non-consent wasn’t made clear pointing out that even she only “thought” she was raped. If we’re ignorant of what rape trauma is like, and the pool juries are drawn from are, that “think” is enough to establish reasonable doubt, but anyone who’s been raped or has studied the subject is aware that acquaintance rape is almost always accompanied by feelings of doubt and self-blame. Commonly victims wonder if they were responsible even when their own account makes it clear that they were not giving consent, saying no and even fighting off their attackers.

My main take from the book is that we have a system reflective of our tendency to empathize with alleged assailants over their accusers. Nowhere is that more clear than with Allison Huguet, a woman smart and articulate and courageous, who woke up to being raped and urged her, after the fact, contrite assailant to seek help with his alcoholism and sexual issues or she would report the incident. He didn’t, and she did. And at his sentencing hearing, listening to his family talk about what a wonderful person he is, she empathized with him, with the man who raped her. This is the influence of a historically misogynistic culture. Her life was forever changed, she was irreparably damaged, yet a part of her hated to see this young man’s life affected. She decided she owed it to society to get justice, but she had to fight at every stage, against his defense, against prosecutors, against her own compassion for the friend she remembered, all while receiving vicious attacks from former mutual friends furious over “what she was doing to him,” despite his confession. She endured all this and remained stalwart because there are giant problems with how rape is handled across America, and she was courageous enough to take a stand against our flawed system. She fought a system that every step of the way tried to make her feel guilty for wanting justice after being raped.

If we don’t live in a society that subjugates women, we live in one influenced by one that subjugated women. (That’s undeniable, there are people still alive when women couldn’t vote.) That influence remains and will for a long time. So that needs to be applied when we look at our laws and our system or we’ll fall back on that influence and feel like we’re arguing for what feels right without realizing we’re arguing for a system operating under that old influence.

The statistic that less than 10% of reported rapes are false claims can be flipped around to sound even more appalling: Over 90% of reported rapes are rapes. Yet cases are screened out by investigators, thrown out by prosecutors, or turned into he said, she said trials where the alleged victim is often attacked, an experience sometimes as traumatic as the rape. We’re left with this statistic: “just .2 to 2.8% of rapes culminate in a conviction that includes any time in jail for the assailant.” (Missoula, pg. 110) Vast improvements need to be made. People reading this important book will be a start.