TIME: Almanac 1993/TIME Almanac 1993.iso/time/101491/1014510.000

Text File | 1992-08-28 | 10.3 KB | 241 lines

                                                                                INTERVIEW, Page 11

The Trials of Convicting Rapists


Veteran Manhattan prosecutor LINDA FAIRSTEIN, tells how she
goes about proving date rape and protecting victims from being
violated a second time in the courtroom

By MARGARET CARLSON and Linda Fairstein


    Q. In acquaintance rape, there is an impression that a
woman had better have led a sterling life or else she will
suffer when the case comes to trial. For instance, a woman goes
to a party, meets someone and goes to his house afterward. They
have a drink. If the situation turns ugly and she is raped, she
should be above reproach and have some broken bones, especially
if her assailant is some clean-cut college guy.

    A. Sadly, many people believe there are people who,
because of their social class, appearance, whatever, can't
commit these kinds of crimes. That's ridiculous, since rapists
come in every size, shape and background. Part of what we do is
shatter these preconceived notions. For example, acquaintances
where there hasn't been a sexual relationship before the event
is not a difficult case to try. Legislative changes and
specialized police and prosecutorial units like ours have made
it a lot easier.


    Q. No one in her right mind would consent to group rape,
to sodomy, to being force-fed alcohol to the point of
stupefaction. Yet defense attorneys have successfully argued
consent in outrageous circumstances, especially if the victim
slips up on a detail -- saying it was vodka, for example, when
the defense proves it was gin.

    A. If a jury finds enough inconsistencies in a story, they
may reject the story. And if some acts are consensual and
others aren't, you have to separate these for a jury. We've had
a lot of experience where victims have used alcohol leading up
to what becomes a sexual assault. A prosecutor should be able
to present a picture that says yes, she did x, y and z, and
that's what made her more vulnerable, that's what made her less
able to repel an attacker. You have to get the jury to see that
you may not want to take this woman home to dinner because she
was doing cocaine all night or shooting heroin and then
drinking beer chasers, but that doesn't mean she asked for it.


    Q. If her story isn't coherent, that's a problem. But if
her story is too coherent, that's a problem too. How can she
remember something so traumatic so clearly?

    A. I've heard that kind of excuse too, that she was not
upset enough. There are some survivors who relive each part of
the episode like a single camera frame and others who repress
it. But each telling is different. With a serial rapist, for
example, you know exactly what he says when he approaches each
woman, what the language is, what the sexual acts are, how long
it took. And yet it's fascinating to see five women at trial
testify about a very similar event very differently, depending
on each woman's emotional strength, at what point this happened
in her life, how she's recovered.


    Q. The rape victim is often the only witness. Isn't that
a problem, especially if she kept her eyes shut the whole time?

    A. Many crimes have only one witness. Most muggings are
one witness against the person he identifies in a lineup three
months later. A mugging, it's 90 seconds -- don't scream, don't
look at my face, give me your money -- often from behind. A sex
offense rarely lasts less than 15 to 20 minutes, and if the
assailant has the victim in her apartment, on a rooftop, it can
last an hour. So the information is there through every one of
her senses, unlike other kinds of crime. No one forgets really.
It's getting her to trust what you're doing, knowing that
remembering can convict her assailant. And the conviction rate
is very high. I take pleasure in being able to tell people about
that high conviction rate because that's not what made-for-TV
movies present.


    Q. Your most famous case involved Robert Chambers, who was
tried and convicted in 1988 for the murder of Jennifer Levin in
Central Park. The episode quickly became known as the preppie
murder case, attracting headlines around the world, producing
a book and a movie. While the jury was out, you accepted a plea
of manslaughter. Weren't you disappointed?

    A. The trial lasted 11 weeks. The jury worked on the case
for nine days, the longest deliberation of a single-defendant
case in New York County history. We took the plea realizing
there was not going to be a verdict. Of course I was
disappointed.


    Q. Jennifer Levin's parents were in the courtroom every
day of the trial, being reminded that their daughter died a
horrible death. Why do families put themselves through that?

    A. It's part of the healing process, although no one ever
heals from a loss like that. Since then, the Levins have thrown
themselves into victims work and are active in Parents of
Murdered Children. I remain very close to the family. They
entrusted me with their daughter's memory. It's the survivors
who give the work its purpose. I'm godmother to Jennifer's
sister's child.


    Q. What do you think about the recent naming of a rape
victim by newspapers and a network without her permission?

    A. I think it's very courageous for a survivor to let her
name and face be attached to this crime, and doing so makes it
easier for other survivors. But it's still too difficult for a
lot of survivors, still too much of a stigma attached,
especially in acquaintance rapes, where they are so often blamed
unfairly for participating in what happened.


    Q. Are women jurors harder on women than men are?

    A. I've had women who are intelligent and have a lot of
common sense who make terrific jurors, but too often women tend
to be very critical of the conduct of other women, and they are
often not good jurors in acquaintance-rape cases.


    Q. Do you deal with male-on-male rape?

    A. Yes, it's a serious problem. But again, it's
underreported because so many people stigmatize the victims.


    Q. Do you have regrets about anyone who got away?

    A. I had an acquittal in a case with a 13-year-old victim
who was destroyed on cross-examination. The defendant was
acquitted and then went out and raped and killed a woman in the
same elevator in the same building about three weeks later. It
was terribly painful. I knew the weight of that case was in my
hands, and it was predictable to the detectives and all of us
who worked on the case that this was the right guy -- whether
or not the victim could articulate the reasons why -- and that
he was a very, very dangerous man. I've taken plea bargains from
defendants, settling for eight-year sentences rather than lose
the cases altogether. Then the guy does his eight years and gets
out and attacks somebody else. And you think to yourself, maybe
if I had got 20 years . . .


    Q. Rape is not sex, it's violence. Doesn't spending the
better part of your professional life seeing sex mixed up with
violence affect your attitude?

    A. The professional has a very dark side, but I'm blessed
with a life outside this job that's very bright, a wonderful
marriage, a great family and great friends.


    Q. When you leave the courthouse at night, do you look
around every corner? Do you expect someone to jump out of the
bushes?

    A. You can't get paranoid, but this business has given me
a healthier awareness. I tend to protect myself a little
better. Not every corner, but I'm fairly cautious.


    Q. After seeing thousands of rape cases, what would you
tell a woman to do -- talk back, be quiet, knee him in the
groin?

    A. It depends. Screaming, if you're in the lower tunnel in
the bowels of Grand Central station and there's nobody around
to hear you, does nothing more than aggravate the offender, and
he uses more force. I've had women who have seen someone close
enough -- perhaps within earshot -- and a scream and a kick in
the groin worked to send the offender packing. I've never had
self-defense training, but I've heard from many women that it
gives them confidence about confronting the situation. Some have
successfully talked people down from rape.


    Q. Has sex in movies and TV programs, in sitcoms where
teenage boys get laughs for seducing teenage girls, increased
the number of rape incidents?

    A. I haven't seen rapes that have occurred because of
someone seeing a movie or TV show, but I certainly think the
attitude that pervades those images takes its toll on some men's
thinking.


    Q. A pamphlet on date rape published by Swarthmore College
says acquaintance rape "spans the spectrum of incidents and
behavior ranging from crime legally defined as rape to verbal
harassment and inappropriate innuendo." Isn't that going too
far?

    A. Terrible. It minimizes the traumatic nature of a forced
act of intercourse by equating it to something that may upset
the person, but it's not nearly on the level with acquaintance
rape. I've been on campuses lecturing when people called kisses
that are forced on you rape, but it is not, and it does a
terrible disservice to rape survivors.


    Q. Do you have more women in the sex-crimes unit? Do you
find that women dealing with women is better?

    A. We've had a very good mix traditionally over the years,
but at the moment we have 14 women and two men. There are a lot
of women now in the D.A.'s office. When I first came, there were
only six women out of 200 in the D.A.'s office.


    Q. Have you ever thought about private practice? You could
be sitting in some mahogany-paneled office, Oriental rugs on
the floor, a silver tea service instead of warm diet Coke from
the vending machine and leftover plastic cups half-filled with
day-old Slim-Fast.

    A. If I ever get up and don't want to come to work, maybe.
But that's never happened in 19 years. And I'm lucky to have a
very generous husband. The office has come such a long way. In
1972 there were 18 convictions in sexual-assault cases in New
York City's five counties, and now, I think, the five counties
combined have several hundred successful convictions every year.
Women can recover from rape, from the hopelessness and from the
feeling that the guy will never be punished. Recovery is helped
immensely by a conviction.