When I first told one of my law school friends that I was going into the JAG Corps, he laughed. It was going to be a life of quiet irony, he said, being a liberal feminist in the Army. I knew what he meant, but I think that it’s genuinely important to have liberal feminist types in all areas. Especially in a place where we prosecute a lot of sexual assault cases. I would say that the biggest portions of my work are drug and AWOL (absence without leave) cases. Sexual assault cases are a significant part of my work, but by no stretch the biggest. Of course, I am only one of many prosecutors in my office, and at any given time, we have at least a handful of active sexual assault cases. And being lawyers, we talk about our cases. A lot. (And I am singularly grateful, that I work with an amazing group of attorneys who handle these kinds of cases with dignity and professionalism.)
There are two distinct threads which come out of these conversations. The first is about our (the attorneys’) attempted understanding at what happened. We have conversations which are essentially “There is something mechanically confusing about how the accused* says he did this,” “Well, if he’s in this position/in this part of the room,” “I don’t understand how that would work,” “Do people really do that? That seems like something CSI made up,” “How does this piece of physical evidence fit in with what the witnesses say happened,” etc. The more awkward conversations are when someone really wants to just say, “Well, in my experience, X is normal or I’ve tried Y and I don’t think it’s weird or anything,” but would rather not air their entire sexual history or proclivities to a third of the office. Obviously, some of that is professionalism. But it’s also that talking about sex is frequently thought of unseemly, that it’s not dignified.
Most of my fellow prosecutors are my peers, in terms of age, education, and professional experience. We have to be comfortable getting up in front of officers who outrank us to explain in very clinical terms how someone was assaulted. It’s essential that we be able to say “Where did he put his penis?” without feeling foolish, flustered, or embarrassed. We have to be able to talk with survivors and victims and help them come up with some kind of vocabulary for explaining what happened to them both as a matter of sexual mechanics and personal experience. This is the sort of thing that gets easier with practice, but it requires talking about sex in a way that’s both detached and understanding. The facts of a given situation really determine how difficult this is likely to be. For instance, at my installation, we prosecuted a case where the fact that a threesome had occurred earlier in the evening was relevant to the case. Getting people to talk about that (and to figure out a way to put it in front of the panel**) was hard. And there were definitely points in the conversation where some people wanted to say “Look, I’ve done that. Could we please stop talking about it like no one on the planet’s never done it before and that it’s some sort of deviancy that has to be hidden away?” Talking about sex as though it’s a normal part of the human experience isn’t somehow perceived as professional: there must be some prurient interest hidden behind.
The second line of conversation seems to involve trying to make sense of the behavior of the people involved. We are always looking for ways to explain why someone might have done something: an accused, a witness, a victim. Can you make someone (i.e., a panel member**) understand why a victim of sexual assault might still continue to attend parties where her assailant was also present? Why she might not tell anyone? Believe it or not, there are experts to hire who attempt to explain counter intuitive victim behavior. (After spending enough time this job, I don’t believe there’s such a thing as intuitive victim behavior or an expected pattern of responses. Sexual assault affects every person differently and putting stock in their reactions isn’t going to provide any meaningful information about the veracity of the allegation.)
And it’s that second line of conversation that I seem to inevitably utter a sentence which begins “Well, having been a [insert relevant demographic identifier]…” When I worked on a case that involved a young teenager who had had a “consensual” sexual relationship with a significantly older soldier, I felt like I was constantly saying “Look, I was thirteen years old once…” I worked on a case where a young female soldier was groped by another soldier who banged on her barracks room door in the middle of the night while absolutely smashed and essentially pushed his way in past a very sleepy woman when she answered the door. Someone (thankfully not one of the attorneys) kept asking why she didn’t just push him out and lock her door, why she said please when she asked him to leave, why she didn’t call the police. I began every other sentence “Well, I know that when I was [in a position that bore a remote resemblance to the fact pattern]…” or “Well, having been a [demographic identifier]…” I kept hoping that by offering some point on which this individual could empathize, I might not have to say “Look, he’s drunk, out of control, and terrifying her. What is so fucking hard about understanding that he is not behaving rationally and reasonably represents a threat to her safety, well-being, and general peace of mind about her goddamn living space?!”
Which is why I think you need liberal feminist types in places like the JAG Corps: you need to have people who are willing to engage on those points of discussion, to try and persuade commanders and others in positions of leadership that this sort of thing needs to be taken seriously, and so on. When Justice Sonia Sotomayor was going through the confirmation process and there was all of this discussion about empathy, I was genuinely excited. I think that having people who don’t have the standard experience can provide a lot of awareness that might otherwise be overlooked, either deliberately or just through the exercise of privilege. I’m not claiming that I am single-handedly helping bring enlightenment into my work place or anything like that, but I am hopeful that these discussions are moving the ball forward.
*In the Army, a defendant is referred to as the accused.
**Panel=jury, member=juror