Q&A on the trial and videos-- part one

Been deluged with questions here and by email and on facebook so I will try to answer them one at a time. Here is part one! Pretty much the overwhelming theme I get is as follows: How could a crime like that be on video and those fellas not be found guilty? How can Aaron France give one account and the pro-defense people give another, of the same video?

YES, so frustrating that "eyewitness accounts" aren't more consistent. Welcome to the problems of ... eyewitness testimony! Everyone filters through their own worldview, it seems. Especially if they're watching something like this. OTOH I don't think necessarily someone/anyone is being dishonest.

People see what they know how to understand and stuff that's over their head or outside their box doesn't register or get remembered. People focus on stuff that scratches an emotional itch-- whether they want to justify a preexisting belief or shore up an argument or what have you. It can be entirely subconscious in fact. You and I would likely have to watch the tapes 6-7-8 times to glean most, not all, of the relevant data... once or twice just to take it all in, then another time or four with a notepad... sometimes to see it for State's evidence, sometimes to predict the Defense argument... etc. People who only saw it once (in pretrial motion practice for example) or twice (that plus trial) will likely not gather all the relevant data in their heads much less remember it. They may not even know what is legally relevant.

I received a series of emails from someone identifying themselves (by first name only so far) as a defense lawyer who watched the trial. I am not going to censor but I am trying to verify her identity first just to be as professional as I can with this journalism.

Anyway, she described for me her take on the video and why she believed a jury could find consent depicted in it. It started me thinking and so I'm sharing those thoughts even before I feel like I can share the content of her description.

Just dealing with one small fragment of what this this viewer described as the survivor moving her body in a certain way as evidence of consent. That is a definite physical movement [xxx]. But there are many layers of interpretation going into that description. Was it volitional movement? was she swaying from intoxication or fatigue or momentum from his force? was she moving moving backwards towards something behind her versus away from something in front of her? LOTS of ways to interpret what is seen-- not even really getting into WHY the movement happened.

Then if you KNOW what the movement really was, the MOTIVE for the movement is still not crystal clear. Let's assume the survivor moved, and moved towards the assailant, volitionally and not for any other reason like swaying from fatigue or intoxication... let's say for argument's sake moving her body closer to his.... the next step the viewer may take is to assume that this means the survivor was consenting. But not to be too graphic-- I'll just say that in my years of experience as a sexual assault crisis counselor meeting survivors in emergency rooms immediately post-assault, I have heard more than one survivor say that the most painful part of rape is the sawing back and forth, and that they tried to move closer to avoid as much of that motion as possible.

So, the framework of the audience will play a huge role in the interpretation. If you are watching to establish a list of reasons you could claim consent (i.e. if you're New Defense Attorney come to watch Heavy Hitters Showing How It's Done) then you will see movement where there is none... or you'll see movement towards penetration instead of swaying from drunk fatigue, as examples, and then that movement will register in your mind (like the so-called minds of the Phil Proctor-esque idiots yammering on the internet) as "backing it up."

Another example makes it clear that the difference of interpretation doesn't have to be intentional-- there's ignorance too. If the viewer has never been blackout drunk before, or terrified, or assaulted, they won't know that the survivor might not have even been aware she had a cell phone much less have the presence of mind to call 911 during these events much less have the courage (or stupidity?) to do it while passing in and out of consciousness or in fear (for her life?) or even just trying to dissociate... so this viewer may see not calling for help as consent instead of drunkenness/unawareness/focus on violation/fear.

Not trying to defend that viewer's perspective so much... just realizing all the slips 'twixt cups and lips, as they are also going to plague the jury. Our job as lawyers is to EDUCATE at least one juror so they can educate and influence the rest of the jury-- give them a candle to light the way out of the cave, so to speak. And seeing this as a black and white "someone is lying" picture is not always as helpful in that educational process...

Tomorrow I'll address the comments I see on the sub-reddit about Aaron France's statement.

Thanks for reading.