The Tragedy

Justice for Real Victims

Our justice system has drastically failed when one of our most promising young citizens is wrongfully sent to prison for 7 years while thousands of women continue to be assaulted on college campuses all over this great nation. I know people who have been assaulted and I have some perspective as to the powerful way in which these events impact and influence the rest of their lives. It is complicated and difficult, to say the least, but we need to work harder to prevent sex crimes and protect victims. Our legislators have more recently begun to recognize the prevalence and significance of these crimes and are taking steps to stiffen and prolong penalties. I believe these actions are a huge step in the right direction toward deferring potential offenders and inhibiting repeat offenses. Our focus should not stop there.

The statistics regarding the percentage of alleged perpetrators that are actually convicted is absolutely astounding. One study found that 287 cases out of 2643 police reports, or just under 10.9%, resulted in a definite disposal by acquittal or conviction. (Liz Kelly, Jo Lovett and Linda Regan. “A gap or a chasm? Attrition in reported rape cases.” Home Office Research Study 293. February 2005.) What makes it even worse is that studies have shown only 5% of rapes experienced by college women are actually reported to the police (Fisher, Cullen, & Turner, 2000; Warshaw, 1998).  Even given the real potential for a large number of false accusations (the most recent, well performed studies estimate these numbers between 2-11%), we can be assured that there are a huge number of perpetrators roaming the streets day andnight.  Furthermore, studies have shown that the vast majority of sexual assaults are in fact serial rapes.  One study of 76 rapists showed that they had actually committed a total of 439 rapes, which translates to an average of 5.8 per rapist.  It is tragic that our justice system has not made much progress in putting these perpetrators behind bars, but rather allowing them to build confidence and aggression in pursuit of more victims.

If we want to protect our young men and women, we need to pour our efforts into bringing the truth to light in such a way that a judge or jury can confidently convict. Judges and juries will most often be biased in wanting to convict in cases of sexual assault. Where can we start in providing them with the evidence to convict?  Lawyers need more tools to prove guilt beyond a reasonable doubt. We need to regulate sexual assault nurse examination protocols- we are far behind many countries in Europe in this regard where entire conferences have been devoted toward establishing a consensus protocol and training is extensive. Other countries fly the professional examiners to the hospital nearest the victim’s location in order to obtain a consistent and accurate exam.

We need to create a safe environment where victims can boldly speak out and feel confident that they will be heard.  We need to have a united front in support of those who have been assaulted.  We need to educate men about the consequences of these crimes from a young age.  We need to create a culture where the line is not blurred between sexual acts and sexual assaults and where men do not feel the freedom to even approach this line.  We need to contribute to the advancement of forensic science like we contribute to cancer research. Read this article by Joseph P. Polski –“The Science Behind Forensic Science,” to understand how far behind we are.

The victims and the families of those victims should hold marches and rallies to raise awareness and support in the fight to accurately prosecute predators. According to RAINN.org, one in six American women are victims of sexual assault, and one in 33 men. In 2004-2005, there were an average annual 200,780 victims of rape, attempted rape or sexual assault.  Perhaps even more sad is that many of these women bear this trauma in silence.  Up to 95% of college aged victims do not report sexual assault.  They don’t have the support of family, friends and advocates because they don’t feel confident in speaking out.  They are not afforded any form of justice.

According to cancer.org, the lifetime probability of a woman developing breast cancer is 1 in 8. Millions upon millions of dollars go into efforts to prevent cancer and to diagnose cancer and to treat cancer. Who’s giving money to prevent sexual assault and to recognize when it occurs and to accurately prosecute those who do it and to appropriately treat and counsel the victims? What if we were this poor at diagnosing cancer or determining the tissue source of known cancers? We used to be. Then we pooled together some money and put it toward the work of some highly motivated, intelligent people and the statistics began to change. I believe we can do a better job of protecting potential victims through accurately prosecuting perpetrators.

Sir Matthew Hale, a chief justice in England in 1847, wrote, “It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

So how do we then bring the truth to light in a world full of perverts and liars who have no fear of the criminal justice system? I certainly don’t know the answer to that question and I believe that we are as a society constantly trying to determine how to best answer that question. I do however, have my own opinion…

Warning! I’m about to rant - read at your own risk and pardon my limited education on this matter. People who come down hardline on the faults of our medical system and practices with hardly any scientifically based medical education frustrate me. However, I am aware that I am about to do just that with the legal profession.

Our justice system is about bringing to light the truth and then doling out appropriate and effective consequences when it is determined that a person has truthfully acted outside of our established laws. I personally feel that we could do much more to aid lawyers, judges and juries in confidently determining the truth. It seems that in a legal setting, “truth” is established based on a wide number of factors that ultimately direct a judge or jury toward establishing a gut feeling. This gut feeling is our best legal approximation of the “truth.” There are countless factors that affect this gut feeling. It is unfortunately often based on previous life experiences and our own fashioned understanding of what is normal or reasonable. Biases (racial, cultural, religious, etc)- which we all have to some degree- affect it. It is too easily swayed by a brilliant lawyer.  Financial resources are a huge factor. It could be easily altered through a passionate testimony. Any evoked emotions will impact it. Expert opinion can bring either clarity or confusion to it. Science will shift it. The list goes on. This gut feeling is what we proxy as the truth. When a precedent “truth” is then established, lawyers and judges will refer back to it as the standard upon which future judgments should be based.

Science seeks to proxy truth in a different fashion- through the scientific method. It’s not perfect, but when used appropriately, I would argue that we can feel much more confident about the truths that are established. In medicine, where there is so much room for error and speculation, the best understanding of what is good for a patient is ideally based on evidence. Reasonably good doctors practice, “evidence based medicine.” This is certainly not to say that the practice of medicine is not an art. The very best doctors are those who have mastered the art of medicine while constantly seeking to understand and advance the ever-changing science behind their practice. In both science and medicine, there is a constant drive toward eliminating false hypotheses so that we move closer and closer to the truth. If we based our practices only on opinion and gut feelings we would not be traveling so far out into the ocean for fear of falling off the edge and I would have placed leeches on the most recent patient I determined to be manic so as to balance the black bile boiling in his brain. We haven’t built on these precedent theories, we have eliminated them as false hypotheses.

I would argue that there is a strong need for the increased presence of legal evidence that is based on scientifically determined truths.  Furthermore, this scientific evidence should hold more weight in impacting the “gut feeling.” There will always be room for interpretation, art, and feeling in the courtroom and in the operating room but they should only exist to the extent that science is unable to establish the truth. The medical field is moving rapidly in this direction. The legal field is moving quite slowly in this direction. Lawyers and judges are not willing to hold another lawyer or judge accountable for practice decisions that stray far beyond what most would determine to be acceptable. They want the freedom that comes with limited accountability. They are, however, quite willing to hold doctors accountable for practice decisions that are just outside of what 51% of other doctors would deem to be reasonable and evidence based practice. While both professions hold the lives of their clients in their hands in some form or another, only one regularly pays ridiculous amounts of money for malpractice insurance. I haven’t seen any commercials recruiting victims of legal malpractice. There seems to be only the standard of honesty and proper interests in the legal system and these are quite often ignored with very little repercussion.

In reality, we need more people like Victoria Cole (formerly Dominguez, the prosecuting attorney in Jordan’s case) who passionately fight to protect women. Her work has potentially prevented hundreds of sexual assaults. Her passion in this case, however, was misplaced as it led her to charge blindly past the truth. To her, Jordan was a rapist and she refused to even consider the alternative that was blatantly evident through the facts and physical findings in this case. She prosecuted the victim and defended the perpetrator to the best of her ability and won. It is sad to have a perpetrator freely roaming the streets where potential victims exist, but it is perhaps worse to send a victim to prison. While I freely give her praise for so much of the work that she has done- work that likely goes unrecognized in regard to the impact it has- in this case, she has done a huge disservice to our justice system and to the society that it seeks to provide justice for. Passion for the truth should rise above any other passion in our justice system.

We have a long way to go as a society in protecting our citizens from the fastest growing crime in the United States.  So where do we start as individuals?  We start by acknowledging the problem – its magnitude and its impact.  We then move on to educating ourselves.  We then start to evaluate our own personal attitudes and biases toward these crimes.  We then start to educate others- family, and friends.  We all know victims of sexual assault, whether we are aware of that or not.  Perhaps we will be in a position where we can encourage them to report or at the very least we can stand by them and work to direct them toward resources for recovery.  We may even know perpetrators and we should boldly speak out against them and thereby prevent serial offenses.  Some of us may be inclined to take it a step further and start some of the much needed research that will help us better understand this problem so that we can make informed change.  Others should donate to the cause.  There are many different ways to be financially supportive.  Check out http://rainn.org/donate/ways-to-give.  There are numerous other web resources for education and ways to contribute.  Some of you likely have much more knowledge in regard to directions that we should be taking as individuals and I would encourage your feedback.

False rape charges are extremely rare.  Unfortunately, Jordan was one of the victims.  That’s a real problem and he may or may not ever see justice for the crime that was committed against him.  He certainly won’t ever have those years back.  The much larger, grander scale problems, however, are the current prevalence of sexual assault in this country, the lack of reporting this assault and the number of perpetrators who are not facing consequences for their devastating actions.  Let’s not wait until it happens to our wives, daughters or friends before we take action.

Jason Holm, MD

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