I've been mulling over the statement made by Mass. Rep. James Fagan since the story broke because I have mixed reactions to the focus of both the backlash and the defense of these statements.
Here's the statement and context:
A Massachusetts politician and defense attorney has touched off a firestorm with his shocking public vow to torment and "rip apart" child rape victims who take the witness stand if the state legislature passed stiff mandatory sentences for child sex offenders.
Rep. James Fagan, a Democrat, made the comments during debate last month on the state House floor.
"I'm gonna rip them apart," Fagan said of young victims during his testimony on the bill. "I'm going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”
Some people have labeled Fagan as evil. Others have viewed him as a hero for being an effective advocate for defendants. I disagree completely with both assessments.
The flaw in calling Fagan evil is that by focusing the backlash on one individual that a systemic and historic problem will be left in place. One man might suffer in the name of protecting child rape victims, but no child rape victims will actually be protected from the destructive strategy described by Fagan.
Fagan dropped the spin and exposed a common practice without the slightest bit of soft-pedalling, but he is no hero since he made it clear he would use these tactics if he couldn't get a short sentence for his client through a plea deal.
In viewing Fagan as evil for describing this common strategy so clearly, others who do the same will have incentive to continue being less than honest about their tactics and the fact that these tactics are allowed in our courtrooms.
The core problem is the criminal justice system's acceptance of Fagan's strategy and the expectation many people have that defense attorneys are obligated to destroy rape victims if they can -- usually in the name of exposing the alleged victim's credibility problems. This expectation is often described as coming from defense attorneys' fiduciary duty to their clients.
And of course these destroyed witnesses are most likely to be described as "rape" victims or flat-out called liars in order to justify this strategy.
Too many people who talk about ethics in the criminal justice system and who demand an end to unjust results want prosecutors and the police to be held to high ethical standards while rejecting any requirement that defense attorneys be held to the same ethical standards.
Innocent defendants suffering: unjust.
Innocent crime victims suffering: just.
Notice that Fagan didn't say he will only destroy alleged child rape victims if he is convinced his client is innocent.
He claims to want the ability to plea down to a lesser sentence than the proposed mandatory minimum sentences for the benefit of his clients and rape victims. Of course this lower sentence is rarely a benefit to rape victims -- their only benefit is being spared a cross-examination by defense attorneys determined to destroy them from the inside out if the case goes to trial.
These lower sentences which are given only to "protect" young rape victims are not a benefit to public safety as evidenced by the discovery of 12 year old Brooke Bennett's body in Vermont. Her uncle, Michael Jacques, a registered sex offender, is one of the prime suspects in her death and he has been arrested for allegedly raping another girl beginning when she was 9 and ending only a few weeks before Bennett's disappearance. According to the latest story I've read, he will be charged with her kidnapping.
News stories which don't refer to the actions which led to the charge against a surviving victim as rape and instead talk about an alleged sexual relationship between Jacques and an underage girl are doing part of what Fagan said he would do in court. They are attacking the alleged victim through their choice of words and minimizing what was allegedly done to her.
Jacques pleaded no-contest in 1993 for a kidnapping and aggravated sexual assault. His 18-year-old victim in that case reported that he told her during the assault that in 1985 he had murdered a 12-year-old girl to prevent her from going to the cops when that girl told him she would report him. Even if he was lying to that woman, his talking about murder during rape indicates what he viewed as acceptable.
I don't know what strategy was used by Jacques' original defense attorney to convince the prosecutor to agree to a plea deal, but a criminal justice system which is openly hostile to alleged rape victims -- especially those who do something like drink alcohol prior to being assaulted -- was a contributing factor. This man kidnapped and raped a co-worker with a clear message that he had no moral objection to murder and he was sentenced to only 6 years and not surprisingly he served less than that.
The sex offender registry and civil commitment programs were created to counter this problem where dangerous sex offenders reach the end of their sentences and are as dangerous as the day they were convicted, but these programs are costly and no substitute for having a criminal justice system that does a better job of getting it right the first time.
Because of these systematic problems, a 12-year-old girl paid with her life.
The widespread use of Fagan's strategy and the widespread results of that pattern of questioning negatively impacts public safety. This is true even when the alleged victim isn't a small child who will gain everybody's sympathy. Too often prosecutors accept unacceptable plea deals because they are afraid a jury will buy the defense spin Fagan talked about and a rapist will go free.
Defense attorneys need to do their jobs competently and they need to practice law ethically -- no matter what the public thinks about the alleged victim -- if they are serious about upholding the values of justice and due process rights.
Setting out to destroy the alleged rape victim is not ethical.
The idea that anything goes simply because "a man's life is at stake" is nonsense. If it weren't then defense attorney's would have the right to directly threaten child rape victims with what will be done to them if they don't recant before the trial starts. This is witness tampering and it is not only wrong, it is forbidden in most jurisdictions. I'd say all jurisdictions, but I'm afraid some jurisdictions have pathetically weak protections against witness tampering.
I believe that the strategy which Fagan describes is also witness tampering -- only it is allowed in most jurisdictions because it is done inside a courtroom.
Defense attorneys who use their questions to try to destroy alleged rape victims during trials should be held in contempt if they do not immediately return to ethical questioning. If a defense attorney doesn't have a chance of winning a case without this sort of scorched Earth strategy then that defense attorney is representing a guilty client where there is sufficient evidence of guilt -- and the attorney desperately needs to distract the jury from that evidence -- or that attorney is incompetent.
I suspect that many lawyers learned this strategy in law school -- either directly or through the absence of condemnation of the this strategy as unethical. This too must stop. It does innocent defendants no favor since it is one of the key contributors to leaving a permanent taint on those accused of rape but not convicted.
Those who insist that this current system of attacking alleged victims needs to continue as is or without the restrictions of the rape shield laws usually insist that any alleged rape victim who stops cooperating is doing so because the allegation is false. This is clearly nonsense. There are many cases where witnesses refuse to cooperate out of fear. This includes murder cases, but nobody would use a murder witnesses's refusal to testify as proof that there was no murder. But people do make just such an argument about rape cases.
For many of us who are active in fighting sexual violence, Fagan's statement of what he would do to child rape victims is no surprise at all except possibly in its honesty. The admission that this "ripping apart" of alleged rape victims wouldn't be limited to older rape victims who are seen as more acceptable targets for this sort of personal attack is what many people seem to find most shocking. He would do that to a child.
Those who defend this man's stated strategy against any alleged victim demonstrate that they care only about the welfare of defendants and consider the deliberate harm to rape victims -- which could clearly leave some rape victims suicidal -- to be nothing more than collateral damage.
What these people seek is far beyond due process rights and competent representation. They seek injustice in the name of justice and they defend injustice as long as the victim of that injustice has not been charged with a crime.
I believe from Fagan's statement that he doesn't enjoy ripping rape victims apart, but has accepted this deliberate harm as part of his job. If he won't reject that action because of what he believes he should do during trial, then the public needs to make that ethical call for him by demanding that this strategy be banned from all courtrooms.
Verdicts based on character assassination and witness intimidation rather than evidence, which includes testimony about what happened or didn't happen, are bad for justice whether those verdicts are guilty or not-guilty.
Hat tip: Cara of the Curvature