Tuesday, December 11, 2018

Conflation of punishment with price system distorts justice in sex-assault cases

We live in an era when "justice" has been defined largely in terms of the price system, as though it were subject to laws of supply and demand. The root theory behind our modern justice system, in large part, holds that punishments are a "price" paid for misconduct and, if they do not deter, it's because the "price" wasn't high enough.

Defining punishment abstractly as the "price" of crime generates perverse cultural meanings for victims, prosecutors, jurors, and others engaged with the system. Under the price-system mindset, harsh punishment by the state (which monopolizes the currency of punishment) is evidence that the victim is valued, while more lenient outcomes are evidence that they are not, that a lower "price" has been placed on their suffering.

This implicit pricing model distorts nearly every part of the justice system, but particularly regarding sexual assault. Certainly, some women want maximal punishment for their rapist. But because the overwhelming majority of women know their perpetrators, often including beloved family members, harsh punishments can also perversely prevent some women from reporting crimes against them. For them, defining the "value" placed on their suffering vis a vis the "price" of punishment harms their interests, making them less safe and abnegating their needs rather than meeting them.

This is why Grits has often thought that restorative justice tenets may ultimately provide a viable, alternative path for how to confront these horrible situations. Such interventions focus on the questions, “Who was harmed? What do they need? Whose obligation is it to meet those needs?,” which seems like a more constructive approach than one-size-fits-all punishment regimens.

But the pricing model is what we've got, and a couple of recent, high-profile cases help demonstrate how treacherous this terrain can be.

In Waco, the town is in a furor over outgoing DA Abel Reyna's office agreeing to a plea bargain for a former Baylor frat president, Jacob Walter Anderson, indicted by a grand jury on four counts of sexual assault. Under the deal, he pled to a third-degree felony charge of unlawful restraint. He'll serve no jail time, undergo counseling, pay a $400 fine, and won't be required to register as a sex offender. Reported the Tribune-Herald:
The victim, who has been outspoken against the plea bargain, began to cry loudly Monday after Strother announced his decision to accept it. She urged the judge to reject the plea offer and set a trial so she could have her day in court. She said Anderson sexually assaulted her, repeatedly choked her and left her for dead after she fell unconscious. 
Later, in an emotional victim impact statement, she told Strother she is devastated that he approved the plea bargain. She called out prosecutor Hilary LaBorde, who struck the deal with Anderson, and McLennan County District Attorney Abel Reyna for not attending the hearing. 
“If I had the courage to come back to Waco and face my rapist and testify, you could at least have had enough respect for me to show up today,” she said. “You both will have to live with this decision to let a rapist run free in society without any warning to future victims. I wonder if you will have nightmares every night watching Jacob rape me over and over again?” ... 
The woman described in sometimes graphic detail what she said Anderson did to her. 
“When I was completely unconscious, he dumped me face down in the dirt and left me there to die,” the woman said. “He had taken what he wanted, had proven his power over my body. He then walked home and went to bed without a second thought to the ravaged, half-dead woman he had left behind.” 
The woman said she has learned through this process that “the McLennan County justice system is severely broken,” but she thanked the women who created an online petition opposing the plea agreement that she said was signed by more than 85,000 people.
So why did the McLennan DA's office fail to go to trial? They feared an acquittal, was supposedly the reason. ADA Hillary Labord
declined comment about the case. However, in an email she sent the woman and her family after they learned of the plea agreement by reading the Tribune-Herald, she said she offered the deal after an acquittal in a sexual assault case that she said was similar to Anderson’s. She said she was concerned Anderson would be found not guilty. 
“(The jury) engaged in a lot of victim blaming — and the behavior of that victim and (this victim) is very similar,” she said. “It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim.”
The prosecutor's motive ostensibly was to protect a victim who didn't want to be protected, but she never spoke to the victim to tell her about the deal, letting her learn about it in the newspaper. So far, one notices, no one has judged the behavior or credibility of the victim but the prosecutor. Jurors never had  the chance.

In that light, how did anything that happened throughout this process meet this woman's needs? The state demonstrated they didn't value her by judging her credibility, failing to communicate, even to say the DA planned to dishonor her wishes, then they placed a low, abstract "price" on her pain through lenient punishment without giving her a chance to tell jurors her side of the story. No wonder the woman's angry! A statement released by the victim's family, the Tribune-Herald reported, declared:
“This is an absolute travesty,” the statement reads. “By agreeing to this plea, (prosecutor) Hilary LaBorde and the McLennan County DA’s office have allowed that rape is no longer a crime in Texas. They are telling the rapists and sexual predators, ‘Go ahead and violently rape, choke to near death and abandon your unconscious, ravaged and used-up victim and we will make darn sure you get some counseling. Even if a grand jury indicts you on four counts of sexual assault, we don’t care.’ 
“Oh, and ‘All you rape victims, don’t bother to report it, because we will put you through hell for years, make promises about getting a conviction and lie to you about not accepting a plea the whole time. We will give your rapist counseling and drop all charges and let him go free. We don’t care about about justice and we don’t care about you,’ ” she said in the statement.
The victim here isn't just angry about a light sentence, although she clearly thinks her rapist should have been punished more harshly. But she's also angry about not being kept informed, about the DA's office ignoring her willingness to testify, and not getting her day in court. She feels lied to. She felt throughout the process that she wasn't being heard, viewed the trial as the moment when she finally could be, then saw that opportunity taken from her in a deal considered friendly to her assailant. Anyone would be mad.

By contrast, consider this recent story:  In Bell County, a man disproved false rape allegations by producing a selfie taken in Austin as an alibi. An ex-girlfriend accused him of breaking into her house, raping her, and carving an "X" into her chest. Police initially believed her, and the guy was in serious jeopardy of spending a long stretch in prison if he hadn't been able to prove his whereabouts.  Now, she has been charged for making the false report.

Thank heavens the fellow was out of the county and could produce a time-stamped selfie! If the same fact-pattern occurred in the pre-cell phone era, he'd be screwed.

False allegations are rare but do happen. Indeed, the FBI has asserted that, 'The “unfounded' rate, or percentage of complaints determined through investigation to be false, is higher for forcible rape than for any other Index crime." Some false allegations, as in the San Antonio Four case, appear to arise from retaliation. Some come from young women embarrassed at their own behavior. And some are women who are raped by a stranger and make an honest but tragic mistake about their assailant's identity.

In those incidents where a rape did occur but the wrong person was accused, a double tragedy occurs. An innocent is punished for the sins of another and the real perpetrator goes free. That's a worst-possible-case scenario that should justifiably scare anyone - say, jurors asked to pass judgment in these instances.  Women deserve justice, but justice is poorly served when an innocent person is punished.

Grits values both the victim's pain in Waco and the liberty interests of the man in Bell County. For that matter, I hope that the defrocked frat president turns his life around, repents his sins, goes on to live a productive life, and never does anything like that again. It's possible the best way to ensure that happens is to send him to prison for decades, but I've no evidence that's true.

I don't know how to resolve these high-level contradictions based on evidence, particularly when the evidence we do have suffers from undercounts and corrupted data about how many rapes are actually solved. One bit of good news: changes on the misleading data front are apparently in the works.

In response to the Reveal podcast criticizing Austin PD's categorization of "exceptionally" cleared rape cases (see Grits coverage here and here), the FBI will change its definitions regarding what qualifies a rape investigation for "exceptional" clearance, according to a followup story from the Center for Investigative Reporting.

For decades, law enforcement lumped cases which were "cleared" by arresting a suspect into categories along with much more numerous cases where police had identified a suspect, had probable cause to make an arrest, but chose not to do so because a judgment had been made by police or prosecutors that the case wasn't winnable. As with the case in Waco, typically victims weren't involved in or often even notified of those judgments.

Grits cannot presently discern the path leading from an unsatisfactory status quo to a system that more reliably delivers just outcomes in sexual-assault cases. But it's clear to me the justice system as presently constituted exacerbates the problem, and IMO a big source of the disconnect is this conflation of the value society places on victim's suffering with punishment as the "price" paid for crime.


Anonymous said...

“Judge” (and I use the term loosely) Strother is a Baylor grad, and sock puppet for the now disgraced McClendon County DA, the now de-elected and under FBI investigation, Mr. Abel Reyna, another Baylor grad. If memory serves correctly, these two mokes were at one time law partners, an obvious conflict of interest. Hopefully, the voters of McClendon county will de-elect Strother in 2020 and he can go back into practice with Reyna, assuming Reyna is not indicted or imprisoned by then.

After swearing in, as his first official act, hopefully the DA elect, Mr. Barry Johnson will fire the ADA Hilary LaBorde who negotiated this deal and didn’t even show up in court for Anderson’s sentencing. This sentence is a slap in the face to the victim, and Strother disgraced “justice” by accepting such a light plea bargain.

This frat boy Anderson should have received at least 15-20 years at a tough Texas prison, with a very large man named “Tyrone” as his cell mate to teach that frat boy the “social graces” of prison life. - Just like any other rapist. It appears that Daddy’s money and political connections resulted in such a light sentence.

I hope that some honest and enterprising Baylor grad has started a sewage pumping service, as both the McClendon County courthouse and Baylor U need to be pumped out.......

Then there’s the Ken Star $2,500,000 severance pay thingy….. - And let’s NOT forget the 120 or so bikers who were arrested 3 ½ years ago, held on $1,000,000 bails (by a former DPS Trooper, another Baylor grad, then a JP )– And OH – The charges were dropped and now they’re trying to get their confiscated stuff back. That’s McClendon County “justice”………It’s a sewer up there………

Lauren said...

As a woman who has survived a violent rape I think it's important that when we ask for accountability we do so without being nonchalant about supporting rape culture which is what the comment about "Tyrone" which also carries some problematic racial undertones. Rape isn't okay, even if you think the person deserves it, even if they are in prison, even if they are there for rape. We can't solve problems with the same thinking that brought them.

Anonymous said...

As a sex offender this outcome was especially difficult for me to read for reasons intrinsic to myself and also my experience being treated by the state. I feel the most heartfelt grief for the victim, both for the pain of her assault and also for the sting of the states fluctuating "rate of exchange" when it comes to the "price" of justice in sex crime cases. Without treatment I'm skeptical that Anderson will find a path of lifelong attonement that many offenders have learned to embrace even with the cost being a lifelong unpaid debt.

From someone who knows, I'm very sorry for the Victim, and for all the people of Texas.

Anonymous said...

The adjacent Bell County has a DA that is so lax, crime continues rise. You can't turn on the local news without hearing of daily shootings, robberies, etc. in Bell County. I'd rather have an Abel Reyna than Henry Garza.

Anonymous said...

So you'd rather innocent people be arrested on trumped up charges and cost the county a mountain of money, and rapists be set free? I for one wouldn't trade one shit DA for another, I'd hang them both from the tallest tree...

Anonymous said...

5:28PM, while I can't disagree. Henry Garza is horrible too.

Anonymous said...

“It’s my opinion that our jurors aren’t ready to blame rapists and not victims when there isn’t concrete proof of more than one victim.”

To ADA Hilary LaBorde-
Please don't presume to know what "Us Simpletons" are thinking. We are not as ignorant as you assume. Some of us even have bachelors degrees, PhDs, MDs, and also law degrees...similar to yourself. If you do your job correctly, we will make up our own minds based on the evidence presented.

Yes, you might lose at trial. But, is your ego so frail as to not even attempt a trial? Because what you did...is not a win. Not.Even.Close.

You should really consider why you became a prosecutor, why you want to serve the Public's interest (especially since you have such disdain for juries).

Or resign.

Anonymous said...

This frat boy showed his true colors when he was raping and choking out his victim. He is at least a sociopath and most likely a psychopath. For those of you who don't know a sociopath is made and a psychopath is born. Neither is likely to change but a sociopath can at least respond to a correction applied by our justice system such as being incarcerated. That is a punishment that the sociopath would find so imposing and distatasteful that, once discharged, he would avoid reoffending at least the most violent part (the choking) of his crime but will continue to belittle, disrespect, and manipulate women into being raped again. If this guy is a psychopath then he will revisit our judicial system again and likely for the same crime.

Either way this little slap to his pee pee is just enough to irritate him and reinforce his belief that he can offend again and beat the system again even more than he already has.

What has happened here is that any opportunity to change "junior's' behavior via the Texas Department of CORRECTIONS has been lost thus encouraging him to reoffend and this time the next woman may die in the dirt just as he intended this one to do.

I would also like to pass a message to his current victim that has been so tragically abused a second time by the same system she looked to for help and support but was mindlessly and bitterly disappointed... If it makes any difference I think you are one of the bravest women in the world. Much more courageous than the DA who abandoned you in court when you needed her the most. With your personality you are destined for great things be it having and empowering your children or leading others in a righteous cause. You are someone who can be trusted. Unlike many others involved in your life to date. I hope you move forward to meet your calling whatever it is.

SOFAQ said...

Get work as always Grits. Thank you for such in depth research. I will be posting a copy here:

Anonymous said...

First off; I have never met an honest judge in my life. I know someone who was given 20 years under law of parties for being in the same apartment when a sexual assault occurred. After she did 75% of her sentence, she had to registry for life on the sex offender list. But, she was a brown hispanic woman versus the white frat boy. You get the justice you can afford to pay for in this country.

Anonymous said...

These cases are every prosecutor's worst nightmare. Any outcome you obtain is going to make someone upset. Do you attempt to appease the victim and the "me too" movement by attempting to obtain a maximum sentence? If you really believe the defendant committed the crime and deserves some measure of justice or supervision, do you risk a "not guilty" verdict in the sort of case where victim judging and blaming is all too common? Do you attempt to appease the media by throwing them some "red meat?" Do you attempt to fashion individual justice for a young offender who might hopefully have learned his lesson and not reoffend--thereby fulfilling your obligation "not to seek convictions but see that justice is done?" The easiest approach is simply to tea it up in a jury trial and let the chips fall where they may. But even that approach is likely to result in much second guessing regardless of the outcome. One thing is for certain though, these are the cases that best exemplify the need for prosecutorial discretion and independence. At the end of the day, justice should not be based upon the wishes of just the victim, the media, the social justice warriors or anything other than the law and the evidence. I don't know that the prosecutor's in this case made the right decision. But kudos to the them for having the cajones to make a tough decision that obviously was not likely to be popular.

Anonymous said...

If any cases were being settled at trial anymore I might agree with you, but in this case and the stark majority of cases everything is a plea deal. Prosecutorial discretion settles more than 90% of all cases, we need that knocked down to something far more reasonable where they are using their discretion to choose who to prosecute and when to apply pre-trial diversions instead of what the final punishment should be.

Any case that can result in sex offender registration should be settled by judry. If they want to plea a defendant out then they have to accept that it wasn't worth persuing to the fullest extent of the law. Prosecutors plea out so many sex crimes for probation (sending sex offenders right back home to the community) because the shorter sentence on their couch is better than prison (an easy win), but the lifetime registration is a life sentence.

Anonymous said...

Thank you, Grits, for a thoughtful piece. As a restorative justice practitioner I know the weight a voice such as yours carries. Lauren, thank you for the compassionate challenge to 2:04. Indeed, more violence has never taught anyone less violence.

Anonymous said...

@9:40...That all sounds really great in principle. You want to tell that to all the parents of 4 and 5 year old victims that if they choose to go forward with filing child molestation charges their child is inevitably going to have to go to court to testify? Or the 11 year old rape victim who's afraid of having to go to court to confront her attacker and is also fearful of her life being ruined once everyone finds out what happened to her?

Are you prepared for the inevitable tax increase that will result from all the jury trials and subsequent appeals (cost of court appointed attorneys for trial and appeals, cost of the court reporter preparing the trial record, etc.) For an indigent defense system that is already terribly underfunded, you better hang onto your pocketbook because the cost is about to significantly increase.

Anonymous said...

What would you rather pay for? Hamburger buns or justice?

I'm not saying every case has to go to trial, prosecutors need to work with victims to find justice even if it means plea deals, and really are you going to quibble over registration? But if you think someone should get a life sentence (which let's be honest, the sex offender registry is) it should be decided at trial just like any other capital crime should be.

Anonymous said...

@10:41, I can tell you in this county it's the DEFENDANTS who don't want to go to trial on sex crimes. Rest assured, if juries in this county could treat most sex offenses as a capital crime, they would be happy to do so.

Anonymous said...

I don't disagree. I guess where I'm pointing though is by moving registration entierly to jury sentencing it removes it as a bargaining chip for prosecutors on plea deals so they have to use real tangible punishments. Right now you can plea to a sex crime with lifetime registration but only a few years probation. To me that lifetime registration is either a pronouncement that the treatment provided on probation is meaningless or these people are unreformable, so why are we getting them off so lightly?

Now if you can only be registered by jury the prosecutor can't claim a win with just a short probation, they'll have to seek meaningful punishment, and if the defendant won't accept it then they face registration at trial. How many people are going to gamble on being on the sex offender registry?

But either way what we have (across all crimes, not just sex crimes) is a tragically flawed system and I refuse to applaud prosecutors for making do with broken tools.

Anonymous said...

Where do I start? My son was falsely accused of sexual misconduct, he served the time that was forced upon him. The Prosecutor while making campaign speeches told a room of Tea Party members that he added 10 year probation to all the sentences. In which he explained that he could always pull them back into the system. They have refused him a drivers license but expect him to get to probation appointments, go to work, pay fines & collection fees - while trying to put his life back together. He was completely innocent but Tax Payers only pay for Prosecutors to have an investigator. Three Attorney's have stated that they have to go before this Judge (he said he was God) quite often (close friend of Prosecutor), so they cannot make waves. This Prosecutor is now the Judge (still incompetent). Is this what is called justice? The Court has ruined the lives of at least 6 families in this one bad judgment - Can this be justice or would you call it revenue & benefits?

Anonymous said...


I might have you beat. My brother served 20 years for 1 count of sexual assault. The picture that sent him to prison for 20 years was taken by the MOTHER of the 23 year old so called victim during a sexathon. The court decided NOT to summon the eyewitness picture taker since the 23 year old "victim" told the Dallas police she wouldn't press charges unless the police promised NOT to summon her mother as a witness. After the conviction the photographer told me on the phone that as long as she was living with my brother her family couldn't steal her social security check from her every month. A total set up. CDC 4 you have a special spot in the movie script.

A movie script is being written as we speak. Hey there, Dallas FBI office, are you listening? Hollywood might. Fathers, counsel your sons very carefully about the new PC legal code....................

Fat Jack AKA "Junior" said...

@08:50: "My son was falsely accused of sexual misconduct, he served the time that was forced upon him. The Prosecutor while making campaign speeches told a room of Tea Party members that he added 10 year probation to all the sentences. In which he explained that he could always pull them back into the system. They have refused him a drivers license but expect him to get to probation appointments, go to work, pay fines & collection fees - while trying to put his life back together. He was completely innocent but Tax Payers only pay for Prosecutors to have an investigator. Three Attorney's have stated that they have to go before this Judge (he said he was God) quite often (close friend of Prosecutor), so they cannot make waves. This Prosecutor is now the Judge (still incompetent). Is this what is called justice? The Court has ruined the lives of at least 6 families in this one bad judgment - Can this be justice or would you call it revenue & benefits?"

Let me guess--Judge Jack Skeen Jr.?