Linda Fairstein discusses the most underreported criminal activity.
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GUEST: Linda Fairstein, Esq.
I’m Richard Heffner, your host on THE OPEN MIND. And my guest today works right smack in the midst of one of the most extraordinary – and increasingly disastrous – aspects of contemporary American life: violence against women.
Last year Newsweek reported horrendous statistics:
“Every hour 16 women confront rapists; a woman is raped
Every six minutes.
“3 to 4 million women are battered each year; every 18
Seconds a woman is beaten.
“More than 1 million women seek medical assistance for
injuries caused by battering each year.
“The United States has a rape rate 13 times higher than
Britain’s; nearly 14 times higher than Germany’s and more
than 20 times higher than Japan’s”.
Yet Newsweek could also quote my guest today, Linda Fairstein, head of Manhattan District Attorney Robert Morgenthau’s highly successful Sex Crimes Prosecution Unit to the effect that “sexual assaults remain the most underreported cases within the criminal justice system”.
Now, in an interview two years ago, Assistant District Attorney Fairstein said about efforts to explain the motivation for rape: “It is the only crime, I think that we can’t understand. I’ve read everything about anger and power and hatred of women, all of which might play some part in every rape, but I can no better answer the question”. Perhaps she can and will today. Thank you for joining me. Is there any possibility that we understand, you understand, in the midst of these incredible upsurge of crimes against women?
Fairstein: No. I think one of the problems is we have come very late to looking at this area of violence, in particular, sexual violence. I think that it’s really only in the last two decades that psychologists, psychiatrists, sociologists have devoted any attention to studying rapists.
Fairstein: And…it has always been the least talked about crime. It has always been something to which, unfortunately, a stigma has been attached to the survivor of the crime…the victim. It’s the only crime I know of that is, is often called “victim precipitated”…people tend to blame the victim for some aspect of what has occurred…”why was she where she was”, or wearing what she was, or why did she talk to her assailant or have a drink with him? And I think that for a very long time this society dealt with it as a problem that didn’t happen to “women we knew…our sisters, our mothers, our wives”. And so, it is only very recently, sadly, that we have come to focus attention on, on this crime, and we’re now only learning to un…to begin to understand why it occurs.
Heffner: Do you have any thoughts about what the numbers would be if it were not…sex crimes were not the most underrated crimes of all…underreported.
Fairstein: I think that in large urban cities such as ours, the reporting has increased. And I think that’s because there are a lot more services that, that respond to women now. I think a lot of the “good” media attention to this problem has brought women forward. So, I think while national statistics say that one in ten report this crime…I think…I agree with those figures that say that as many as three or four in ten report regularly now in particularly metropolitan areas. But it’s still terrifically underreported.
Heffner: Now do you think this is factually, realistically any different that the level of crimes against women is different today than it was a half century ago?
Fairstein: Oh, yes, I do.
Heffner: I don’t mean the reporting. I mean the fact…
Fairstein: The occurrence…
Fairstein: …the volume of occurrence?
Fairstein: Yes, I think it is far greater today, and I think, while it doesn’t explain everything, some of it, for example, has a lot to do with the drug problem in the city. I see very many cases that, that would not have occurred 50 years ago because of crack use. That doesn’t explain all of the cases, but there’s a tremendous amount of violence that, that occurs often among crack addicts. I mean the effect of that drug on the person who takes it is very different than the effect of, for example, heroin on, on a user.
Heffner: But this is violence, generally, isn’t it? You’re not talking…
Fairstein: Yes, generally.
Heffner: …or maybe you are, about women-directed violence.
Fairstein: Generally, there is…that is, does accompany…it is accompanied by more violence in general. But a lot of that violence is directed against women. So that accounts for some of the upswing.
Heffner: Now, what do you see as the future bringing in this area?
Fairstein: I think it’s got to bring some immediate attention to the problem, which has not existed before. Now there have to be resources, places for women, for example, in battered or domestic situations, to go. I mean the burden is always, sadly, up to this point, on the victim or survivor herself. She’s the one who has to leave the home and be moved and be hidden from the offender who will follow and find her. So one problem is there are just no resources available for women who have been victims of violence in a domestic setting. That’s a terrible problem. There have to be more resources available for women who have been victims of violence by strangers. I, I think there has to be an attempt to study and understand those persons who are convicted of the crime to get beyond what they offer as pat excuses for why they’ve committed the crimes and to understand why this crime occurs, and with such frequency.
Heffner: Talking about the people who are accused of committing these crimes…
Heffner: …would you support the movement now to have them tested for AIDS?
Fairstein: Well, I think it’s been a very difficult question because there is, understandably, a privacy right that should extend to people with HIV infection because the stigma and prejudice in our society has been so great against them. But I certainly think, personally, I think that there needs to be an exception carved when there has been enough evidence to, to charge someone…when there’s been enough probably cause to make an arrest, to charge someone with a crime, like rape in the first degree, then I think that that is one of the rights that that offender loses, that privacy right. I think that the victim of that assault has the right to know the health status of the person who has attacked her.
Heffner: But you are a little uneasy, I gather, about making this conditional, not upon conviction, but upon accusation, or arraignment or indictment.
Fairstein: I’m not uncomfortable about it as long as it’s done properly. I mean I realize that on, on the privacy side the risks and a lot of people are concerned about the risks of disclosure, and what happens if a person is falsely charged or the wrong person is arrested or a victim has fabricated a story. I mean for those of us who’ve worked in this field for a long time, and understand that those are myths frequently associated with, with rape charges, but are not actually the facts, those things worry me less. I’m not worried about the volume of false reporting. That’s, that’s not…that’s not what rape is about.
Heffner: Tell…tell me…let me stop you with that…
Heffner: Tell me about that because certainly that is what one hears so frequently…about false reporting and about the real need to be careful. Not just in the charge, but in the effort that’s made following the charge.
Fairstein: Well I think certainly that’s one of the myths that has always accompanied this area of, of law. You know rape was the only crime, until a decade ago, a little more than a decade ago, in these states which had a corroboration requirement, which meant that more than the victim’s word was needed to take an offender into court, unlike any other crime in the penal law. And that came…that was legislated in this country in the 1800s and it came from centuries of, of British law which said that it was easier for a woman to accuse a man of a charge as inflammatory as rape than for a man to defend himself against such a charge. And so these, these elements were written into the laws to say that the victim’s word was not enough. And, I think that’s one of the, one of the ways those laws were always justified was by saying that women could falsely, would falsely report and would falsely charge. I mean it’s, it’s not an easy charge to make and anybody who’s ever been through the process of reporting and prosecuting a crime, although I like to think we’ve made it easier in this day and age, knows that it is not undertaken lightly. It’s…the victim is put through quite an ordeal in the process most of the time. And so I really reject the, the arguments that it’s…that there’s a lot of false reporting and mistaken IDs. IDs I think and those of us who work in the field think, are much better than in any other category of crime. The victim and offender have been together under much more contact circumstances and for a longer period of time than in muggings and in bank robberies and in crimes that only take a few minutes to commit. I mean sexual assaults take a long time to occur, and I’m talking in minutes to hours. And so the identification is, I think, generally, much better than in other categories of crime.
Heffner: Do you find that the public generally understands that now, and that there is a sea change in our national thinking about this matter?
Fairstein: I think there is beginning to be a change, but I think it’s dramatically separated in two different kinds of cases. I think in what we in law enforcement call “stranger” cases, when a victim is attacked by someone she has never seen or met before, the general public tends to be understanding, sympathetic, compassionate…it’s everybody’s worst nightmare about someone they love, and so people do now tend to believe that the crime occurred and then the lawyers have the, the…have to limit the trial really to the issue of whether the right person is on trial. That’s an easy task for me as a prosecutor. On the other hand, the category that we call “acquaintance” cases or “date” rapes, are the cases that still present the most problems to a survivor in a courtroom and therefore, to the prosecutors arguing the case. They are the cases in which public attitudes have lagged far behind the changes in the law. And whatever people mouth at a dinner table or listening to the show and nodding in agreement as we speak, these are the cases in which, when people reach the jury box, they still tend to look for ways to blame the victim for what occurred and to excuse the defendant, to find that he is not a rapist, he is not a career criminal. He’s more likely to be, in an acquaintance case, a middle class guy with no criminal record and often a wife and children, or from a “good” family, from a middle class background and so people tend to say, “Well, I don’t consider him a rapist”.
Heffner: Now does the criminal justice system enable you to make some inroads on this way of thinking in your voir dire proceedings?
Fairstein: Yes. We can in our voir dire proceedings inquire, with most judges, into some of the attitudinal thinking that you hope will reflect itself and flush out before people get onto a jury. But, very often we can’t get the information we need, and so you often don’t find out until, until…for the victim it’s too late…until the jury is deliberating and people’s attitudes can’t be changed.
Heffner: Let’s go back to this matter of testing for AIDS.
Heffner: And the AIDS virus. For someone accused…
Heffner: …of a sex crime. Now, when I asked before whether you were made uneasy, somewhat, by that, you, you said “no”. But I thought I detected…reading your history, I know you’re not simply a tough prosecutor…you‘re a person with…concerned about the rights of the accused…
Fairstein: Yes, I am.
Heffner: Here you’re making inroads upon those rights of a, of an…incredible nature and you still are not willing to wait until there is conviction?
Fairstein: Well, the reason that I’m not willing to wait is because, and for a long time I think I was willing to wait, when arguments were made to me by opponents of this view, that, that the victim didn’t gain anything by knowing the health status of the offender.
Heffner: Does the victim gain?
Fairstein: Well, there is argument in the medical community…but the fact is this: That many medical health professionals are now advising victims of sexual assault about the option of taking experimental drugs like AZT. They may or may not be prophylactic. No one will say that it is a sure thing, that it is certainly a prophylactic against developing the HIV virus, if it’s been transmitted. Most scientists agree that it slows does slow the progress of the virus. And so I feel I can’t play God with that victim’s life and I don’t think my adversary or the defendant can. I think that she and her medical professional, whoever is advising her have decisions to make that are affected by what they know about the health status of the offender. And I think that they need to have that information as soon as they can.
Heffner: Do you believe also that your success as a prosecutor will be enhanced to the degree that you do identify the accused as being victims themselves, of the HIV virus?
Fairstein: Well, I think…I am willing to concede, I should have said the, that…that I don’t need the information…doesn’t have to come to me, the prosecutor, in the case. I don’t need it as evidence. I will make my case on those charges based on what the survivor has told me about the facts of the case. I am talking about getting information to her, being disclosed to her only and to her physician so that she can make decisions that affect her physical health, her mental health, her well-being.
Heffner: Is information about syphilis, gonorrhea, other venereal diseases that afflict the accused, is that…do we test for those things?
Fairstein: Yes we do. There, I mean among the differences are the fact, of course, that the…that we will know within days of the assault if the victim has contracted those diseases, and we may ask the court to order a test to determine whether or not that offender is the person from whom the disease was contracted. Among the tragedies, of course, with AIDS and HIV is that she may not know…she may continue to be tested…as she must do anyway, whether or not, I get the information from the offender, for months…at least a year, and possibly longer.
Heffner: Now, in your experience, are accused…those who are accused as being offenders, sex offenders, generally willing to lay themselves open to this testing?
Fairstein: Generally not. We have a large problem…of course, with our offender population in a place like Manhattan, where so many of the offenders are IV drug abusers, and again, many are recidivists, repeat offenders, who’ve been in state prison where the, the HIV incidence is much higher than in the general population. So we have found that the offenders, we have had a handful, and not many more literally than a handful of offenders who have volunteered results, by have wanted to do so in exchange for a lighter sentence on the case, which is something we’re really loathe to do.
Heffner: Would you do it? Do you do it?
Fairstein: We have done it in one instance at the express request of the victim of the crime, who really wanted to know that information for medical health reasons, and because her doctor wanted to know the information. That offender was negative and has continued to test negative. So we found in a handful of cases where the offenders are negative and are willing to give that information, it’s, it’s been a great help to victims. We have, keep in mind, many victims who are pregnant at the time that they’re raped, many victims who are trying to become pregnant in their marriage or their personal life, victims who have decisions to make about their own course of conduct in their, in their private lives. So it’s really a problem that impacts physically and emotionally and it’s been I think, whatever the trauma that has always been associated with rape, this extra dimension now has really been a tremendous blow to victims of sexual assault.
Heffner: Do many states now provide for testing, compulsory testing of the accused?
Fairstein: Yes. I believe…very good question…many are now split between accused and convicted. But I think at least 16 states at this point do mandate testing at some stage in the criminal justice process and legislation is pending in most other states for some kind of change.
Heffner: And you would opt for accusation rather than conviction, as the point at which the testing should take place?
Heffner: What do you think will happen in the state in which we record the program, New York?
Fairstein: I think that the legislation was only very newly proposed at the end of 1990, and didn’t get anywhere. I’m not impressed with the legislation as it’s written. I think it’s overly broad, and I think until it’s refined that it does not stand a chance of passing at this point.
Heffner: The rape statistics that I read before from Newsweek magazine…the difference between ourselves and the British and the Germans and the Japanese…how do you explain that?
Fairstein: I really can’t. I am staggered myself by the volume of occurrence that we see. I don’t know how much of it has to do with how we treat our offenders. We…in convicting and sentencing offenders, I think it’s tragic that a state like New York, for example, has done nothing to , to undertake any kind of studies in rehabilitation of sex offenders in prison. Our neighboring states, New Jersey and Connecticut have and…
Heffner: With what results?
Fairstein: Well, mixed success. I mean they claim great success. We, in the metropolitan area, see many of their repeat offenders, sadly, who’ve been released, after being rehabilitated. But I think that by making no attempt to understand what the problems are and to isolate the offenders and in some way try to work with them, it’s just waling time bombs where releasing them, in any event… I mean they’re not serving the maximum part of their sentences in most instances, and so they’re released and the recidivism rate is higher than it is with any other kind of crime.
Heffner: What does that lead you to feel about the potential for rehabilitation?
Fairstein: Well, I think…that I can’t really measure the potential until we understand what, what problems we’re addressing. But to do nothing about it…I mean what I understand as by doing nothing except sentencing the offenders…we can track, we can read as I did in yesterday’s Times about patterns of cases that, that are going on in two boroughs of the city at this, this moment. You can almost bet, very safely, that the people being sought already have convictions for the same act.
Heffner: Given your concern for this particular type of crime, though you are involved in many others…the prosecution of many others…what would you want done? What would you have us do as a society?
Fairstein: There are a number of things that can be done. I think that it’s really only very recently that the media, both print and electronic, have, have focused their great powers to educate on this problem. I mean very little has been written and understood about it…for year, when I started on these cases in the courthouse in the mid-seventies, the New York Times reporter who covered the courthouse told me that, unlike the tabloids, he wasn’t writing about our sex crimes cases because the Times readers weren’t interested in a topic like that. And I was interested and pleased to see that, that in the last year, in the A Section, the national section of the Times there were, finally, many issues related to these crimes that were addressed on a national level, and there’s a series of articles. Television programs…women’s magazines for a long time were the only people covering these things, but I think that educating the public about these issues is the only way to, to begin to change attitudes. We lecture…we’ll go anywhere to speak about these subjects. I think especially things like acquaintance rape.
Heffner: You mean at the District Attorney’s office.
Fairstein: My colleagues and I, exactly…because the public are the people that end up, all across this country, on the juries that will be making the decisions in these cases, so I think understanding them…the only way that we’re going to remove the stigma from victims who have been, up to this time, unwilling to name themselves or identify themselves is to, to get people to talk about his crime and understand that it doesn’t happen because of something the victim does, but because of what the offender’s conduct has been. I think trying to, to devote some resources to studying what the problems are, identifying them at an earlier point, that we’re not going to be able to curb this, this growth of violence.
Heffner: Are we talking about sexuality or about violence?
Fairstein: We’re talking about very violent crimes. I am one of the people, however, that thinks that, that these are crimes…that the sexual element is very much a part of it. It is not, it is not sexual acts, it is not sexuality as we normally think of it. But it’s violence that the, the criminal has chosen to express through a sexual act. And not through hitting me over the head with a baseball bat. I mean he’s…he has choices in most cases to make, and he has chosen the sexual act as the instrument of that violence. So I, I don’t at all think it’s anything close to sexuality, but it is extreme violence that is channeled through a sexual outlet.
Heffner: Let me, let me just go back a minute…we don’t have many minutes left…go back to this notion of recidivism. You talked about recidivism as something you see…
Heffner: …constantly. Talk about rehabilitation…something you don’t see. What then would you opt for, were you judging, once a jury has convicted someone, what would you do, as a judge, more rather than less with the, with the accused, the convicted?
Fairstein: I think that if someone has been fairly convicted by a jury of these crimes…
Heffner: Which we’ll assume.
Fairstein: …which we’ll assume, then…then he should be sentenced to state prison. And I think it should be a very hefty sentence. I can’t think of any crime, short of homicide, any crime in which the victim survives, that so completely alters her life. It is clearly and obviously the most personal intrusion that, that someone can sustain. And so I think that the punishment has to be very severe. And I think because of the recidivist nature unless we isolate these offenders for as long as the law allows, and until we understand something, to do something that may affect their ability to function again in society, they’ve got to be isolated for as long as possible, or they will repeat.
Heffner: If we leave the area of stranger rape…
Heffner: …and talk about date rape again…
Heffner: …do you feel as many people have said that really what we’re talking about is a failure to understand, on the part of many young men, our college students, for instance, what it is that they are doing, they really don’t understand that they are doing a deed that is close to the worst intrusion upon another individual possible?
Fairstein: Well, I think that one of the difficulties is you can’t…I just did…but we can’t talk about all acquaintance rape as though all the cases are the same.
Fairstein: They’re very, very different. Are there cases, do we see cases in which there is a lot of sexual foreplay and activity that’s consensual on both parts and the offender thinks he’s getting one signal and then pushes a little harder? Those acts are different, that circumstance may be different than an occasion in which a person who has seemed perfectly normal throughout the course of an evening then becomes violent, throws a woman to the ground, threatens to kill her unless she complies with his, his demands. There are, there are ranges in many different kinds of conduct within, within what we call acquaintance rape, which is not the least of the many problems that, that confront us dealing with it. So there, there are certain…I can’t speak about each situation as if it were the same as the others. There are certainly some instances where I think the defendant is not at all aware of what line he has crossed. Maybe rightly, maybe wrongly, but he’s, he’s…he is less culpable, in, in some cases and those are quite often the cases in which he’s not prosecuted. They’re often the cases in which the victim expresses to me or to one of my colleagues that she’s not exactly sure what happened. That she’s not sure what signals she communicated and whether or not she, she said “no”. And some of those cases don’t belong in the criminal justice system.
Heffner: We’re talking about a lot…a few…any?
Fairstein: I think a few…I think a few. I think the lines are generally quite clear. I think in most cases the women who report and present themselves are able to make it clear at what point the conduct became forcible and at what point consent was either withdrawn or never given. It’s very, very few that the area is so gray that one can excuse the young man for this sort of “boys will be boys” conduct. I don’t think that’s what rape is about.
Heffner: One hell of a situation we are in, in which these statistics that we started the program with are so true today. Thank you very much for joining me to talk about this grim subject, Linda Fairstein.
Fairstein: Thank you.
Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s intriguing guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.
Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Edythe and Dean Dowling Foundation; The New York Times Company Foundation; The Richard Lounsbery Foundation; and, from the corporate community, Mutual of America.