CRIME
04/28/2018 08:21 pm ET

How To Convict A Rapist

Bill Cosby's guilty verdict is a rare victory for survivors. But it will take a lot more to combat sexual assault myths that run rampant in courtrooms.
Bill Cosby after his conviction on three counts of aggravated indecent assault in Norristown, Pennsylvania, on Thursday.
Mark Makela via Getty Images
Bill Cosby after his conviction on three counts of aggravated indecent assault in Norristown, Pennsylvania, on Thursday. An earlier trial had ended with a hung jury.

On an overcast Friday morning in February, three lawyers gathered at their office in Washington, D.C., to discuss a particularly difficult sexual assault case. They knew the behavior of Erica Layne, an 18-year-old college student who said she was raped by a group of four other students, would be hard for a judge and jury to understand.

The night of the alleged crime, Layne had been drinking heavily: four shots of vodka in her dorm room, followed by two or three cups of Kool-Aid mixed with Everclear at a house party on a Saturday night. She was already drunk when her crush, a junior football player named Ryan Boland, suggested they do a few shots of tequila. Layne didn’t feel well, but how could she say no? After they made out in the kitchen, Boland took her hand and suggested they go upstairs to his room for more privacy.

He asked to take a video of her giving him a blowjob. Layne agreed, and the last thing she remembers is passing out in his bed. She woke up alone, naked and with a sore vagina. She was confused, but on Monday, the events became clear. A Snapchat video of a football player having sex with her while three other guys, including Boland, watched and talked about “going for a ride,” was making the rounds on campus. She texted him: “Can you call me?” He didn’t respond.

The prosecutors knew the fact that Layne was drunk and had consensual oral sex with Boland would make a judge and a juror question her credibility. But they were most worried about what happened next: A few weeks after reporting the assault to the police, Layne posted a photo of herself to Instagram. She was at a football game, topless and giving the middle finger to the camera. A few students shared the shot on their own accounts, with the caption: “Is this what a real rape victim looks like?”

The lawyers needed the jury to understand that Layne’s actions — however baffling they might seem to the average person — did not make her a liar. They decided to bring an expert witness on the stand, someone who could explain that it was common for victims to act out in a sexual or emotional way after an assault to cope with the trauma.

― ―

Here’s a curveball: Erica Layne’s case is fake and the “lawyers” are actually Georgetown University law students. They’re taking a course on sexual assault cases run by AEquitas, an organization that wants to transform the way prosecutors think about sexual violence through interactive training that involves role-playing and mock trials.

Sexual assaults are the most difficult kind of crimes to prosecute: Of the 31 percent of cases that are reported to police, less than 2 percent result in convictions, according to the Rape, Abuse & Incest National Network. One of the biggest reasons these numbers are so low is that, despite the complexity of sexual assault trials, lawyers are not required to go through any specialized training before handling them. Many prosecutors throw out cases, mistreat complainants and botch lawsuits in court because they don’t understand victim behavior.

“Everyone thinks they are doing the right thing,” says Jennifer Long, AEquitas’ CEO. “And they might not realize that while some practices in their jurisdiction are really good, others are not good.”

Comedian Bill Cosby’s recent sexual assault conviction is a rare victory for victims, but it will take much more than a high-profile guilty verdict to change a legal system with a long history of mistreating survivors. The public has many misconceptions about how sexual assault survivors should act — misconceptions that trained legal professionals and jurors bring into the courtroom every day.

There’s a stereotype that offenders are creepy-looking strangers who attack unsuspecting women in dark parking lots and that any credible victim should put up a fight, run away and immediately report the assault to the police. When survivors instead act in seemingly counterintuitive ways — seeing their offender again, delaying a police report or posting a topless photo on Instagram — even the lawyers tasked with explaining this behavior to a judge and jury are quick to label victims as liars.

“Prosecutors at their very core are just human beings,” said Richard Smothermon, the district attorney for two Oklahoma counties and a champion of sexual violence training. “We all have these inherent biases that have been built in from hearing about them or seeing them on television.”

Andrea Constand, the main accuser in the Bill Cosby retrial, leaves the courtroom in Norristown, Pennsylvania, on Thursday.
DOMINICK REUTER/AFP via Getty Images
Andrea Constand, the main accuser in the Bill Cosby retrial, leaves the courtroom in Norristown, Pennsylvania, on Thursday.

AEquitas’ trademark program is a 3½-day course that uses a mix of mock trial exercises and short lectures to run through all the steps involved in prosecuting a sexual assault case, from victim interviews to closing arguments (the organization also offers courses on related crimes, such as domestic violence and human trafficking). Each training begins with participants examining police reports full of the kind of sexual assault victims society tends to disbelieve: an underage, intoxicated college student; a woman whose husband is a deputy sheriff; and a recent U.S. immigrant who works as a scantily clad bartender. The participants, usually gathered in a hotel conference room, use the scenarios to act out mock bail hearings, meetings with police officers and victim interviews. They don’t just learn to litigate these complex cases, they come face-to-face with their own biases about sexual assault victims.  

These sessions equip lawyers with the skills they need to support complainants and, ultimately, to win more cases. Yet, due to a lack of resources and an excess of red tape, AEquitas holds its multiday trainings only a few times a year — reaching a very small number of the almost 25,000 prosecutors in the U.S. The organization receives $1.5 million in primarily government funding annually, which barely stretches to cover the more than 4,300 hours of training and technical assistance the 12 staff members provide each year. There is also an approximately 90-day government approval process for every 3½-day course and shorter trainings, which makes it logistically difficult to hold more of them, according to Christina Supinski, AEquitas’ chief operating officer.

AEquitas wants more funding. But the government and nongovernmental organizations — donations from NGOs make up 5 percent of AEquitas’ budget — tend to prioritize giving money to frontline organizations, such as women’s shelters and advocacy groups, Supinski says.

AEquitas wants potential funders to know that fixing a broken legal system is a key part of reducing violence against women. When the legal systems fails survivors, “it discourages victims and survivors from coming forward in future cases because they don’t believe that justice will be done on their behalf,” Supinski said. “And then perpetrators go unchecked and assault more victims.”

Without better-trained prosecutors, victims will never trust a legal process that re-victimizes them and sides with their abusers.

“If you don’t understand the dynamics of sexual assault and the dynamics of trauma and the gender bias that plays into violence-against-women crimes in America, you’re not going to be as successful in the courtroom,” said Casey Gwinn, a former prosecutor and president of Alliance for HOPE International, an organization that provides services to victims of sexual violence. “[You] are going to re-victimize victims and do a terrible job.” 

What prosecutors need to know about victims

The way prosecutors interview victims before a trial is a crucial part of sexual violence cases. Yet too often lawyers make a series of faux pas, said John Wilkinson, an attorney adviser at AEquitas who runs trainings. When dealing with victims, prosecutors tend to rush the process, ask judgmental questions and assume victims are lying if they have a scattered memory or appear unemotional, he said. Many don’t know that in traumatic situations the body releases a series of hormones that may cause victims to freeze and prevent their brains from forming memories. Or that survivors might laugh or speak with a flat affect while recounting the assault, due to a flood of natural opiates and oxytocin in the body that help people cope with pain.

Wilkinson himself used to be terse with sexual assault victims before he understood how trauma affects their behavior.

“I was a classic elements-checklist type of interviewer, cutting victims off and getting what I needed,” he said of the seven years he spent working as a state prosecutor in Fredericksburg, Virginia. “I’d say things like, ‘OK, I know that didn’t happen. Now tell me what really happened.’ But in a really crappy way, like, ‘You’re a child.’... It’s not like I was trying to be a jerk, but I was kind of being a jerk.”

Wilkinson trains prosecutors with similar attitudes. In one exercise, lawyers take turns interviewing “Elena Boginskaya,” a 22-year-old bartender who was sexually assaulted after finishing her shift at a club. The police report notes the bar’s dress code for young female staff ― “tight pants or skirts and tight shirts” ― and that the offender took a body shot off Boginskaya’s stomach earlier in the evening. The attorneys often ask questions during role-playing that reveal their own biases, according to Wilkinson.

“I’ve seen prosecutors start to question the victim, and they are sort of going down a fine line — and some jump right over the line — and start asking questions about whether or not she’s a prostitute,” he said. “And some of the victims [played by facilitators] just shut down and say, ‘I don’t want to answer any of your questions.’”

Through a combination of mini-lectures and role-playing, AEquitas trainers and guest lecturers teach a “trauma-informed” approach to dealing with victims, encouraging prosecutors to slow down, withhold judgment and form a trusting relationship with complainants. Prosecutors take turns playing the victim, to feel what it’s like to have a stranger pelt them with questions about trauma.

“If [the interviewer] comes in hot, and they are like, ‘Just the facts, ma’am,’... you immediately see the ‘victim’ tense up and ... they start becoming defensive,” said Supinski from AEquitas. “It’s eye-opening for folks when they go through that to be like, ’Wow, this is all pretend, but still, the questions you were asking me made me feel like it was a real invasion of privacy or made me uncomfortable.”

John Young, an assistant attorney general for the Cherokee Nation in Tahlequah, Oklahoma, said he became more patient and compassionate during interviews after taking an AEquitas course in 2016. Before he learned how trauma fragments memory, he expected victims to have a detailed, linear account of their assault and didn’t know to ask them open-ended questions. “I wanted to hear a story and [would say,] ‘Let me frame this visually: Tell me where you started and tell me what happened next and kind of walk me through it,’” he said. “I don’t think it really dawned on me until after the training that this is not how people tell you these stories.”

How do you convince a jury to believe a victim?

Even the best victim interviews won’t lead to fair trials if prosecutors can’t convince a jury to believe a survivor’s story. But it’s incredibly difficult to fight biases in the courtroom. A recent study by British psychologists found that jurors who scored high in “rape myth acceptance” rejected facts that didn’t match their narratives of the case and were likely to side with the defendant.

[Being] raped is not a consequence of getting drunk ― that’s a consequence of a rapist being around when you’re vulnerable. John Wilkinson, attorney adviser at AEquitas

AEquitas teaches prosecutors to pick less-biased jurors by asking specific questions during the selection process, such as “Is there anyone here who believes that rape is only committed by people who are strangers?” or “Do you have any expectation about how a person would react after a traumatic event?”

“[Being] raped is not a consequence of getting drunk ― that’s a consequence of a rapist being around when you’re vulnerable,” Wilkinson explained. “You have to say that right into the face of the jury: ‘Who needs force when you have alcohol?’ That might be the theme of your alcohol-facilitated case because that’s going to hook that jury. You’re going to talk about the facts in the case and repeat that theme.’”

Does any of this make a difference? 

Although AEquitas’ success stories are mostly anecdotal, there is research that shows education can help change people’s attitudes about sexual assault survivors. Jurors who learned about victim behavior, either from an expert witness or a judge, were less likely to think a complainant who delayed reporting an assault or who spoke with a flat demeanor was not credible, according to a 2009 study by researchers at the University of Leeds and the University of Nottingham. And AEquitas developed a program to help district attorneys’ offices track their progress on sexual assault cases using a mix of statistics, victim feedback and case analysis.

There is plenty of demand for AEquitas’ work, Supinski said, but the government does not prioritize prosecutor training. The amount of grant money available for AEquitas from the Department of Justice’s Office on Violence Against Women has declined by around 25 percent in the past nine years, which Supinski says is in part because organizations that provide direct resources for victims in danger, such as shelters and advocates, take precedence.

“If you have $5, who are you going to give it to?” she said. “Mostly likely not an agency that provides training and technical assistance for prosecutors … [even though] it’s contributing to the prevention of these crimes.”

But the real problem is that many lawyers aren’t interested in taking courses on sexual assault, Gwinn, the Alliance for HOPE president, argued. “Prosecutors’ offices across America have never treated violence against women as a high priority offense historically,” he said, adding that prosecutors have “large egos” and often consider themselves jacks-of-all-trades. “I believe specialization is crucial — prosecuting a murder case is not the same as prosecuting a sexual assault case or a domestic violence case. But you can go to lots of places where elected district attorneys will say, ‘I’m tired of everyone ... [focusing on] their own little area. If you work for me, you’re going to do everything.’”

Smothermon, the district attorney in Oklahoma, agrees that prosecutors tend to have an “I can try any case” attitude. But a bigger issue, he argued, is that offices can’t afford to send lawyers to a 3½-day training and cover their caseloads.

“Oklahoma had an $870 million budget hole this past year, which means my budget has been down by approximately 12 percent for the past 18 months,” he said. “We’re trying to keep people employed, not trained.”

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