Believing Jackie: A Sexual Assault Attorney's Perspective

Often times, formal justice is not achievable. But my hope is, over time, the right questions and the right services and the righteous movement that is building and the amazingly brave, beautiful survivors that are speaking out will help to cast off the shame and blame and silence that thwart their collective path to justice.
12/18/2014 12:24 pm ET Updated Feb 17, 2015

As an attorney who represents survivors of campus sexual assault, I was riveted by Rolling Stone's account of "Jackie," a UVA student who reported being gang raped by her classmates in September of 2012. When I read the Washington Post's exposé of discrepancies and follow-up reporting on the Rolling Stone story, like many advocates, I felt my heart drop in recognition of further horrors in store for Jackie.

In my role as an attorney, I have certain duties to my clients. I don't put my client's case in front of anyone -- a court, an opposing party, or the public -- without meticulously investigating his or her claims myself first. Because my clients are survivors of sexual assault, I hold myself to an even higher standard. As Charles Johnson's reprehensible act of misogynist hubris demonstrated this week, the cost of botched facts are simply too high for survivors of sexual violence. To protect my clients, I need to know absolutely everything. I strive to be the harshest judge of their claims, to ensure I put forward the strongest case possible on their behalf.

But my job doesn't end there.

Beyond investigating and litigating my clients' cases, I have to help my clients make sense of their lives after rape. I watch them navigate the murky sea of their memories, and struggle to make sense of unimaginable loss. I investigate housing options for them because they've been kicked out by loved ones who are angry at them for "getting raped." I help them file for unemployment because they are terrified to return to work. Tragically, I might be one of the only people to tell them I'm sorry for what happened to them. Sometimes, I talk to them frankly about their desires to end their life, or to hurt themselves. It is within this context that my clients' stories emerge, and often unravel.

The crux of media scrutiny following the publication of Rolling Stone's story centers around the following theme: Jackie can't get her story straight, so she must be making it up. This argument is the linchpin of most successful defenses in sexual assault cases. And I don't dispute the fact that without a clear, cohesive memory of the act of sexual violence itself, it would be unjust to convict a defendant in the absence of other compelling evidence.

But where does that put us?

Why have we narrowed our collective understanding of what happened to Jackie, or to other survivors of rape, to the confines of legal doctrine or verifiable facts? Since when did we become so staunchly wed to the notion of provable wrongs that we've forgotten our humanity in the face of nightmarish horror? Why do we revert to the reductionist logic of the justice system, or the tired media trope of "he said/she said," when we are confronted with suffering we can't fathom?

Having worked with multitudes of survivors who misremember, incorrectly recall, or inconsistently narrate the painful facts of their assaults, I frequently confront the problem of imperfect memory or selective storytelling. Typically, when I receive a counter-factual account of what my client has told me, I start by explaining the account to my client, and asking if it is true, false, or if they simply don't know.

If my client asserts that the account is false, we work to identify the discrepancies in the counter-narrative. We do our own version of "fact-checking." We brainstorm whether the counter-narrative evolved from a misunderstanding, and try to pinpoint the moment that misunderstanding occurred. If it seems clear the counter-narrative intentionally distorts the facts of my client's case, we think about potential motives. Could the person offering the contradictory account fear repercussions for themselves if my client's account is true? Are they telling lies because they believe it will save them from getting involved in the case? Do they have a personal connection to or interest in supporting the perpetrator?

If my client believes that the counter-narrative might be true, I start by broaching their memory. Are they having trouble remembering the conversations in the aftermath of their rape? Were time periods during or after the rape a blur? Did they feel like they were going to die? Were they suffering an acute panic attack? Did they feel sensory deprivation? At any point, did they find themselves substituting in details that are foggy or blank so their intact memories start to make sense? If the answer to any of these questions is yes, I'd explain that these are normal responses for survivors, and cite to studies that support that claim. I'd explain that memory lapses and shifting timelines are common in sexual assault narratives; that memory impairment is a direct result of the trauma; and while it is another thing my client must survive, it is not their fault.

If my client tells me the counter-narrative is true, I would ask a different set of questions to get to the heart of why I'm only learning the information now. The most common reasons that survivors don't share harmful information to their case is because a) no one ever asked them and/or b) they're angry, sad, or embarrassed with themselves for some reason relating to that information. So I might ask questions like: Were they scared to share the information? Why? Did they feel shame about not going to the police or seeking medical attention, and feel the need to justify it? Do they think they brought the assault on themselves by being alone with the perpetrator, or by consenting to some sexual acts with them? Did a friend or loved one say something to them that still haunts them about their choices leading up the rape? Have they walked through, minute by minute, the things they could have done and failed to do in the aftermath of their rape? Does imagining a different story help them cope with emotions of self-loathing and self-doubt? Were they worried they'd get in trouble if they told me the information? Were they worried I'd stop representing them? Were they worried they'd lose their friends, or their family would stop loving them if they found out?

I would explain that these types of thoughts flow from yet another form of post-traumatic stress. These reactions are not just a by-product of their rape, but a reliable consequence of the people and institutions all around us that perpetuate rape culture and victim-blaming. I'd work with them to question these ideas, and I would refer them to counseling to explore their responses even further with professional, trauma-informed support.

To some extent, these questions are about unearthing the cold, hard facts of my client's case. But to a greater extent, they are designed to help my clients traverse their hostile new world. A world where their word doesn't hold the same weight as before. A world in which their safety is a burden to the community that is supposed to protect them. A world in which they are trained to "take responsibility" for their actions, to question their character, and to rationalize their victimization so that others will feel safe.

When survivors are scorned, particularly by those who matter to them, their voices fade to inaudible. I've seen even the most cohesive narratives crumble under the pressure of relentless disbelief. When I saw the Post's reporting on Jackie, I felt sad recognition, not surprise. Part of my job is representing survivors in various tribunals where provable facts are the ones that count. But the other part is working with thousands of advocates, counselors, attorneys and activists to create a world for survivors in the aftermath of their rape that is a little more discerning than the one they inhabit now.

Often times, formal justice is not achievable. But my hope is, over time, the right questions and the right services and the righteous movement that is building and the amazingly brave, beautiful survivors that are speaking out will help to cast off the shame and blame and silence that thwart their collective path to justice.

Jackie is a part of this effort. Her story gives us an opportunity to examine our own responses to rape, and our instinctual urge to name a wrongdoer instead of accept her pain. Let us take advantage of this moment, so when the next Jackie emerges from the fog of rape and into the national spotlight, a journalist or a court will not be the arbiter of her truth. We will be. And our first words will be "I'm sorry." Not "prove it."