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Co-authored by Melissa Sontag Broudo, Esq. attorney for the Sex Workers Project,
This past August, over the span of a few days, the Manhattan Criminal Court issued two decisions in cases centered on sexual violence. One is the now-notorious case against Dominique Strauss-Kahn (DSK). The other, which has gone unnoticed, involves a client of the Sex Workers Project, whom we’ll call “JD.” The two cases serve as stark comparisons of how the criminal justice system does or does not help victims or complainants of sexual violence find justice, peace of mind, or financial stability.
In the DSK case, law enforcement initially considered the complaining witness “ND” to be an “ideal witness,” as she reported the alleged attack almost immediately and had a story that was evaluated as highly credible. However, prosecutors backtracked once they realized there were inconsistencies with details ND had given about her past and some details surrounding the encounter. The case soon erupted into a media frenzy and ND became subject to attacks labeling her a criminal, a fraud, and a prostitute. Eventually she felt she had no choice but to come forward publicly and in the media to fight for her day in court. As we all know, prosecutors dismissed the case against DSK in August.
In contrast, JD’s case ended with a positive outcome for her and no media fanfare. JD is an immigrant who was forced to engage in prostitution by her abusive husband. Once she was able to escape her situation, she was left not only with the trauma of the abuse she experienced, but with a long criminal record stemming from arrests for acts she was forced to commit under constant threat of physical, sexual, and psychological harm. As a result of her criminal record, she has been denied employment and has suffered deep shame and stigma. Because of a law passed last year in New York State, she was able to make a motion in criminal court to vacate, or essentially erase, her prior convictions. The law, spearheaded by the Sex Workers Project and Assembly Member Richard Gottfried, allows trafficking survivors to apply to have criminal convictions vacated if they are caused by human trafficking. Days before charges against DSK were dismissed, JD got the relief she requested—all of her convictions, including non-prostitution charges, were vacated.
These cases were handled very differently, highlighting the inherent problems and potential benefits of seeking justice in the criminal courts for people who come forward to report sexual violence. The needs and rights of the complaining witness are often different from the needs of the prosecutor attempting to convict the defendant. It is crucial in most criminal cases to have a “victim/witness” who can tell a consistent, authentic, and substantiated story. However, victims of sexual violence may experience disruptions to their memory or have difficulty establishing a narrative, and repetitive interrogations by untrained law enforcement officers often cause victims to re-experience trauma and respond inconsistently. In fact, if ND changed the facts in her story at various points, this may indicate psychological effects from an assault rather than disprove her story.
ND’s story highlights the importance of getting skilled social and legal services for survivors of sexual violence. In ND’s case, there is much talk of how the Manhattan District Attorney’s office moved too quickly on the information it had, even against the advice of its own Sex Crimes Unit. In addition, her own attorney appeared to be a very skilled lawyer, but representing victims of sexual violence takes a particular expertise and understanding of the issues. The trauma of sexual assault, compounded with the experience of being an immigrant who does not understand our legal system, can impact all aspects of a case such as this. In our experience of working with people who have survived sexual violence, it takes time, proper trauma counseling, and skilled legal representation for the complaining witness to construct a steady timeline and to be able to participate successfully in a prosecution.
ND’s case also pinpoints how the media can fuel decisions against the best interest of a complaining witness in a sexual violence case, and then turn viciously on her if she fails to fit a stereotype of victimhood. It is all too common in cases of sexual violence–especially when the defendant is a powerful man–that the accusers are almost automatically painted as seeking money, having brought this upon themselves, or as unstable. Some media outlets went so far as to call ND a prostitute, the ultimate label of a victim who deserved what she got. It seems that both the prosecutors and the complaining witness’s attorney capitulated to the media frenzy, rather than thoroughly engaging in their investigations. The result? The prosecutors issued a devastating dismissal, stating, “The nature and number of the complainant’s falsehoods leave us unable to credit her version beyond a reasonable doubt… If we do not believe her beyond a reasonable doubt, we cannot ask a jury to do so.”
In contrast to ND’s case, JD’s ultimate criminal justice win was a story of needs respected and justice served. She was able to bring her motions once she was in a safe and stable place. The court documents and subsequent interactions with the District Attorney’s office and the court allowed her story to be fully explored and shared in a sensitive and respectful way. The prosecution and judge recognized that, even though she was an immigrant and a defendant with convictions for prostitution and drug possession, she was also a mother, a grandmother, a hard worker, and a survivor of terrible violence. Additionally, JD’s case was low-profile–there was no media frenzy surrounding her that placed pressure on any party to act hastily or question motives. She was represented by lawyers who specialize in cases involving in sexual violence and trafficking in persons, and she was supported by a counselor throughout the process. Once the motion to vacate was filed, the District Attorney’s offices and judge came to a measured conclusion that allowed her to move forward with her life. While JD’s case did not lead to financial compensation from her abuser, she will finally have a clear criminal record, and she will be able to access mainstream employment and financial stability.
Both cases point to the limited nature of the remedies the criminal justice system can provide, but the dismissal of charges against DSK make ND’s case more poignant. Even if her case had gone forward, the remedy would have been limited. A prosecutor can send a defendant to jail or prison, or to take anger management classes, but rarely is there any outcome leading to financial stability. Even in cases where a judge orders restitution, it is hard to enforce. Often, victims of sexual violence stop working or going to school because they cannot manage the demands of being a victim/witness in addition to all of their other obligations, or because of trauma or shame. In other cases, they cannot afford the care they need, in terms of seeking a counselor or moving to a new home for safety reasons. The criminal system generally does not address these problems. For those of us who do this work, it is clear why ND is reportedly filing a civil suit.
The distinct legal remedy JD applied for is a limited one. It does not compensate her for the years of trauma she suffered, or the discrimination in employment she coped with because of her criminal record. Nor does it make up for the fact that she was arrested and convicted in the first place.
The criminal justice system has an important place in helping those who come forward to report sexual violence find the peace of mind they need. But it is by no means the entire solution—and at times, it may not be worth it to pursue a criminal case at all. ND deserved the chance to make these decisions outside such a glaring spotlight, and with supportive service providers advocating for her best interests. JD should never have been dragged into the system as a defendant in the first place, but at least she was able to reclaim her own narrative and find a concrete solution to help her improve her life. Survivors of sexual violence deserve the time, space, and resources they need to decide what works best for them.
Melissa Sontag Broudo, Esq. is a staff attorney with the Sex Workers Project at the Urban Justice Center in New York City. Ms. Broudo provides legal advocacy, advice, and information to sex workers and survivors of trafficking on a variety of issues, including privacy, family law, criminal law and civil consequences of convictions. Prior to joining SWP, Ms. Broudo worked with various organizations that engaged individuals who are marginalized because of poverty, criminalization, or discrimination based on gender, sexual orientation, or HIV status. Ms. Broudo is also very active in the sex workers’ rights movement and is a member of the Sex Workers Outreach Project-NYC and a Board Member of both Best Practices Policy Project and the Desiree Alliance. Ms. Broudo graduated from Brown University, the Bloomberg School of Public Health at Johns Hopkins University, and Georgetown University Law Center.