Many victims of sexual assault do not immediately report the crime. In the allegations against Bill Cosby, his accusers came forward years later. And in the child sex abuse scandal within the Catholic Church, many victims did not come forward until decades after the fact. For most of these cases, the time to prosecute has run out. Now, a growing number of states are extending the time limits to allow cases to be heard in court. But criminal defense attorneys warn this will lead to innocent people being put behind bars. Diane Rehm talks with a panel of guests about the debate over extending the statutes of limitations for sexual crimes.

Guests

  • Mai Fernandez Executive director, National Center for Victims of Crime, an advocacy group
  • Marci Hamilton Professor, Benjamin N. Cardozo School of Law, Yeshiva University in New York; author, “Justice Denied: What American Must Do To Protect It's Children.”
  • Joelle Casteix Advocate, Survivors Network of those Abused by Priests, known as SNAP; author, “The Well-Armored Child: A Parent's Guide to Preventing Sexual Abuse"
  • Nina Ginsberg Criminal defense attorney and co-chair, Sex Offender Policy Committee, National Association of Criminal Defense Lawyers

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Across the country, more than half of all states have time limits on how long a victim of a sex crime can pursue their case in court. But a growing number of states, including Delaware and Indiana are changing these rules. With me to talk about extending the statutes of limitation for rape, Mai Fernandez with the National Center For Victims of Crime and Nina Ginsburg with the National Association of Criminal Defense Lawyers.

  • 11:07:30

    MS. DIANE REHMJoining us by phone from New York City, Marci Hamilton with the Benjamin N. Cardozo School of Law. I welcome your questions, comments. Join us at 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or Twitter. Thank you all for being with us.

  • 11:07:57

    MS. NINA GINSBERGThank you, Diane.

  • 11:07:58

    MS. MARCI HAMILTONThank you.

  • 11:07:58

    GINSBERGVery happy to be here.

  • 11:08:00

    MS. MAI FERNANDEZReally wonderful to be here today, Diane.

  • 11:08:02

    REHMThank you. Marci Hamilton, if I could start with you. Talk about why these laws were put into place in the first place. How come we have these laws?

  • 11:08:17

    HAMILTONThe reason that the statute of limitations were so short both criminal and civil is because we were ignorant about the ways in which children process and experience sex abuse and about rape victims generally. And so there's been an increase in the science of child sex abuse and what we know as scientific fact now is that there are a variety of disorders that arise after the effects of the abuse might, you know, physically wear off that then, excuse me, affect the child.

  • 11:08:56

    HAMILTONAnd so there are behavioral problems, emotional problems, but there are also, in about 30 percent of victims, PTSD and that dramatically delays them.

  • 11:09:06

    REHMI see. Mai Fernandez, I gather the law has changed a lot in the last 30 years.

  • 11:09:15

    FERNANDEZAbsolutely. We really saw, as Marci was saying, that with the growth of the science and understanding the dynamic of sex abuse, that legislatures around the country began to change laws in the '80s and '90s. So the laws really reflected how individuals processed these kind of crimes. The crime might happen when they're children, but it's only when they become adults that they realize that their depression or their anxiety, their alcoholism is really related to the sex abuse that happened to them when they were a child.

  • 11:09:55

    REHMNina Ginsburg, as a criminal defense lawyer, how do you see these statutes of limitation, their usefulness and perhaps how well they work in defense of those accused?

  • 11:10:19

    GINSBERGWell, I think we're talking about something very, very different in a criminal case than we are in a civil case where you're trying to present the manifestations of sexual abuse. In a criminal case, you have a person accused of a crime who will spend a considerable amount of time in prison if not most of their life if they're convicted. And the danger of long statutes of limitations dramatically increases the likelihood of wrongful convictions because memories fade, evidence is lost or not collected.

  • 11:11:04

    GINSBERGWhile there's unquestionably problems of the effects of these crimes on children, we also have many, many adults who claim to have been sexually assaulted or raped and many, many of those cases involve questions of intent and consent. And if you can only imagine what it would be like for your spouse, a parent, a child to be wrongfully accused of raping someone 20 years after the incident occurred and how difficult it would be to try and collect evidence to establish either that the person who's made the accusation was a consenting party or that the incident never actually occurred, it is just -- it's an unbelievably enormous burden.

  • 11:11:56

    REHMMai Fernandez, how do you respond to that. It does become something that's very difficult not only for the accused, but for the accuser as well.

  • 11:12:11

    HAMILTONWell, in a criminal case, let's remember, we have to prove a case beyond a reasonable doubt. That means that the onus of bringing forth the evidence is still on the prosecutor so if memories have faded or there isn't, you know, as much tangible evidence, that's something that is on the onus on the prosecutor to bring forward. Just because somebody has a chance to get to court and to find justice doesn't mean that the onus to prove their case is still not on them.

  • 11:12:40

    REHMMarci, I know you've represented rape victims. You're the author of the book "Justice Denied: What America Must Do To Protect Its Children." What about the idea that a child perhaps had some kind of forced sexual encounter, never talks about it, but then in later years, early adulthood, perhaps begins to remember and brings forth those memories and indeed brings forth charges?

  • 11:13:23

    HAMILTONIt is actually a red herring in this arena for the defense attorneys to be arguing that it is going to result in numerous false claims. If you look at the development in this law over the last 10 years, we have not seen an uptick in false claims. And part of it is that people don't make up that their uncle sexually assaulted them at the beach. They might make up slip and falls and other kinds of injuries, but this is something that is so shameful and humiliating it's just rare, statistically, that there are false claims.

  • 11:13:59

    HAMILTONBut I'd also like to point out that 37 states have completely eliminated the criminal statute of limitations at least for the top counts. And we have not seen a flood of claims. And so I'm really actually -- as much as I understand the legal argument, I don't think it has much weight in the child sex abuse context.

  • 11:14:23

    REHMSo what you're saying is that the rules regarding statutes of limitation vary by state and that must make it very confusing, I would think.

  • 11:14:38

    HAMILTONWell, it is extremely confusing, which is what lead me to start a website, SOL-Reform.com, to track all 50 states and soon to track globally foreign countries because it's critically important to know what is the shape of justice for child sex abuse victims across the United States and you can't do it unless you're constantly updating. And so I have a team of five students and we are constantly updating and following the trends.

  • 11:15:11

    HAMILTONAnd I have to say that false claims are the least of anyone's worries.

  • 11:15:13

    REHMGive me an idea of how these statutes of limitation differ from state to state.

  • 11:15:22

    HAMILTONWell, we have such a wide variety. We have -- with respect to civil statutes of limitations -- we have a lot of criminal statutes of limitations that are eliminated. But with respect to civil statues of limitations, we have states where the child -- age 23. So if you're sexually assaulted as a child, you reach the age of 23 in New York state, you're out of luck. You have no shot for justice. But if you are in the state of Minnesota right now where they have a three-year open window which permits people to go forward even if their statute of limitations had expired, you don't have any statute of limitations barrier.

  • 11:16:07

    HAMILTONYou still have to prove your case. You still have to have facts and corroborating evidence for your case, but at least that technicality's not in your way.

  • 11:16:16

    REHMInteresting. And Nina, you practice in Virginia. What goes on there?

  • 11:16:23

    GINSBERGIn Virginia, there are no statutes of limitations at all for any felony offense. It's not specific to sex offenses or rape so that creates a problems all of its own. But I'd like to respond to something that Marci said. I mean, we, as a society, we absolutely have to be concerned about false allegations and wrongful convictions and I'd just like to say that if you -- I'm sure everybody's heard of the Innocence Project, of the people who've exonerated...

  • 11:17:00

    REHMMany years.

  • 11:17:00

    GINSBERG...mostly for -- by DNA evidence and 45 -- I'm sorry, 50 percent, 57 percent of the exonerees who were proven innocent as a result of the efforts of the Innocence Projects were convicted of rape. There have been about 325 exonerees. Of the 325, 235 cases involved witness identification where someone said this is the person that did that to me. They were wrong. 154 cases involved invalid or improper forensics and 88 involved false confessions. And that is frequently a problem. People confess to crimes when they're faced with these charges.

  • 11:17:47

    REHMNina Ginsburg is a criminal defense attorney, co-chair of the Sex Offender Policy Committee of the National Association of Criminal Defense Lawyers. Short break here. We'll be right back.

  • 11:20:02

    REHMAnd welcome back. We're talking in this hour about the laws regarding statutes of limitation and especially in regard to victims of sexual assault. We did invite the U.S. Conference of Catholic Bishops to come on the program today as well as the Catholic Conferences in Pennsylvania, Massachusetts and New Jersey, but they declined to join today's discussion. Now there are a number of callers, tweets and emails. Tweet from Tim is very relevant to our discussion. What are some reasons that rape victims do not come forward? I've heard that one is because their rapist is someone they know. Mai Fernandez.

  • 11:21:07

    FERNANDEZIt's often somebody they know. It's either somebody in their family or somebody who's trusted in their family. So it's a coach, a teacher, in -- we've had cases where it's been a policeman that's been known by the family and the community. And so there's a trust about this individual. You feel like if you come forward and you say something bad about this person, you're not going to be believed.

  • 11:21:31

    REHMAnd here's a tweet from Katie, who says, in New Mexico, rape kits are backlogged over a decade, exceeding the statute of limitations for most cases, including kids. How wrong. You might want to talk about that, Nina.

  • 11:21:55

    GINSBERGAbsolutely. You know, it's -- as a society, and if we have the enforcement of these laws as a priority, it's inexcusable for law enforcement not to put the resources necessary towards making sure that these kids are tested. It's possible to identify the perpetrators of many of these crimes. The evidence is sitting in the hands of the police. And I think you can take it as a sign of a very low law enforcement priority that these kits -- maybe as many as 400,000 around the country, have remained untested. That sends a terrible signal to potential victims about the worthwhileness of coming forward. What's going to happen to them if they put themselves through the process?

  • 11:22:49

    GINSBERGAnd we also have prosecutors who have evidence. We have a very low rate of prosecution. And some may say, that's because it's hard to prove these cases. Others may say, it's just, they're hard and prosecutors just won't make the effort. And that is not the fault of the criminally accused and certainly not a reason to make it so difficult to have the same rights that other people faced with defending crimes have.

  • 11:23:18

    REHMMai, as you think about a young child who may have been sexually abused, how difficult is it for that child to come forward?

  • 11:23:34

    FERNANDEZIt's almost impossible as a child to come forward. Because you're not -- as a child, you're not totally cognizant of what is going on, particularly if it's somebody who's known to you and is -- who's a trusted family member or somebody in your community, like a teacher or a priest. So you're still under the control of this -- of the individual that's abusing you. You're thinking that you should trust this person. And so maybe what they're doing to you, in a child's mind, isn't bad. And it's only when you become an adult that you realize that was wrong. That person should never have been doing that to me. And I want justice now.

  • 11:24:12

    REHMAll right. Let's open the phones. We'll go to Jay in Winter Park, Fla. Hi, you're on the air.

  • 11:24:23

    JAYHi. Thank you for taking my call. When I was around four or five, a female friend of the family, who I was entrusted to kind of like as a babysitter, put me on a bed and I won't go into details, of course, but the effects of that just started avalanching later in life. And a few things I'd like to say about that is, you know, one thing I -- besides the effect that this had on relationships, especially, I've openly spoken about that to other men and they've shared with me their experiences where women have also sexually molested them.

  • 11:25:01

    JAYAnd in that regard, you know, one thing that we all had in common is that none of us reported it, which leads some credence to the fact that boys usually do not report a sexual assault when a woman is perpetrator, not because they like it. They just don't. I don't know why. I didn't mention it until I was in my teenage years. I guess I kind of buried it.

  • 11:25:23

    REHMYeah. And, Marci Hamilton, I would imagine that's what a lot of both boys and girls do.

  • 11:25:33

    HAMILTONIt's actually true across genders. And part of the problem that we understand now, the child traumatologists have taught us that the brain really doesn't understand what's happening to a child while a child is being sexually abused. They just don't have a frame of reference to even understand, is this love? Is this -- what is this? And so you really need to be an adult to understand that you didn't have a childhood. That is was stolen from you. I'm so sorry to hear of this man's experience. It repeats itself across the country.

  • 11:26:09

    HAMILTONAnd it's just clinically true that a great deal of time is needed for these victims. And that's why the statute of limitations in most states, till recently, were very friendly to the predators and very unfriendly to the victims. And that's really why we're working on trying to flip that.

  • 11:26:27

    REHMIndeed. And we were talking about these rape evidence kits. Considering that, as new evidence comes forward, that's why it becomes so important for the statutes of limitation to be extended, in your view, Mai?

  • 11:26:51

    FERNANDEZAbsolutely. Like Nina was saying, you know, by having all these kits out there that are untested, it does signal to men and women out there, that their case just doesn't matter. I've got to say that this administration and states around the country and localities are taking this very seriously. And they're really putting time and effort in trying to figure this out.

  • 11:27:13

    REHMTalk about Oregon and Melissa's Bill.

  • 11:27:20

    FERNANDEZI think that actually Marci might be better at talking about that. I can talk about rape kits in general and that I think that because of the science and the really understanding of how sexual abuse is -- happens, that all of these changes on putting less barriers to having people report, whether it be getting tested or going to the police, those things have changed because of our understanding of the dynamics of child sex abuse.

  • 11:27:53

    REHMMarci, can you talk about the proposals in Oregon?

  • 11:27:59

    HAMILTONOregon has proposed the elimination of the criminal statute of limitations altogether. It's also considering -- and a lot of states are actually on this move, which is that they will hold or toll the statue of limitations until a rape kit is tested. So, for example, you might have a short statute of limitations ordinarily. But if, once a rape kit is tested, it shows evidence that could be used for prosecution, then you can go forward with the prosecution. It's an interesting innovation and it's a great idea worth considering. What it doesn't do is for all -- the vast majority of child sex abuse -- not adult, but child sex abuse -- there is no rape kit. So the rape kit issue is really about adults and adult rape...

  • 11:28:54

    REHMI see.

  • 11:28:55

    HAMILTON...which really needs to be our priority. Child sex abuse happens in the bedroom, in the home, in the church. It is not something where you're likely to have any kind of rape kit. Because a kid just doesn't understand what's happening.

  • 11:29:08

    REHMAll right. Let's go to Sarah, who's in Raleigh, N.C. You're on the air.

  • 11:29:15

    SARAHHello.

  • 11:29:16

    REHMHi.

  • 11:29:17

    SARAHHi. I just want to mention that I think the whole statute of limitation is really a disadvantage to the victims of it. Because, in the end, it only protects the perpetrator who did the act. Because someone very close to me tried taking his molester to court 20 years ago and it was dismissed because of the statute of limitation had passed. And this person then went on to molest more children and he could have been stopped. Instead, he continued living his life working in schools and molesting children.

  • 11:29:50

    REHMNina, that's a very poignant story.

  • 11:29:53

    GINSBERGYou know what, but it's -- this person, if the victim had identified this person, reported the rape or whatever the abuse was but only was prevented from going to court, that didn't stop law enforcement from looking at that person, investigating that person and taking -- letting people who were close to that person become aware so that they could take precautions. There's nothing that stopped other people from helping to make sure that that didn't happen again.

  • 11:30:29

    REHMMai.

  • 11:30:31

    FERNANDEZI think when you look at a situation like that, a lot of times perpetrators move. So if they are not found guilty and there is nothing to really stop them, if they're a teacher, they can move to another school. If they're a priest, they move to another parish. And so it's not like the perpetrator stays in one place and you can tell the people that are surrounding that individual, oh, stay away from this one guy. Perpetrators move. A lot of times people also don't believe that, if it's a trusted member of the community, people don't believe that this person could do such a horrible act.

  • 11:31:05

    FERNANDEZIf you look at a situation like in Penn State and, you know, Coach Sandusky. A lot of people didn't want to know what was going on between him and those young children that he was continually molesting. So you can tell the community. They often don't believe them. And also perpetrators move around.

  • 11:31:24

    REHMAll right. And joining us now by phone from Newport Beach, Calif., is Joelle Casteix. She's an advocate with the Survivors Network of those Abused by Priests, an advocacy group known as SNAP. She filed a lawsuit after California loosened its statutes of limitation for sex crimes in 2003. Thank you for joining us, Joelle. You accused your high school teacher in Orange County of sexually abusing you. But you didn't come forward until much later. Talk about why.

  • 11:32:12

    MS. JOELLE CASTEIXWell, first of all, thank you for having me on the show.

  • 11:32:15

    REHMCertainly.

  • 11:32:16

    CASTEIXWhen I came -- when the abuse was happening, I actually went to school officials when I was a high school student and told them what was going on. And they told me to keep it quiet.

  • 11:32:25

    REHMWow.

  • 11:32:27

    CASTEIXAnd they told me that if I did report, that people would blame me. And because, like many survivors of child sexual abuse, I already had a troubled background. I had a mother who was an alcoholic. I had spent time in the psychiatric facility for suicidal thoughts. And so the school told me -- school administrators told me that I might end up back in that psychiatric facility and that people would blame me for what happened. So I stayed silent. And I was blamed all the way through my young adulthood for the abuse.

  • 11:33:00

    CASTEIXAnd, you know, and also, survivors don't come forward because there's so much shame and self loathing. Because you think, gosh, you know, what did I do to ask for this horrible thing that happened to me? Did I do something wrong? Am I a bad or broken person? And it wasn't until I was in my late 20s, early 30s that I was able to be adult enough and look down and say, gosh, you know, 14-, 15-year-old girls have no power whatsoever over adult men who are their choir teachers and who hold their future in their hands.

  • 11:33:33

    REHMAnd you're listening to "The Diane Rehm Show." By the time you actually came forward, Joelle, I gather the statute of limitations had run out.

  • 11:33:50

    CASTEIXCorrect. I only had until age 19, at the time that my abuse occurred, to come forward and do anything criminally or civilly. The problem was is that when I was 19, I was still horribly depressed and suffering from the trauma of the actual abuse. So in 2003, the State of California put out a civil window that allowed older victims of abuse to come forward, like what Marci mentioned in Minnesota. And I was able to file a lawsuit and publicly accuse the man who sexually abused me, as well as the school who covered it up. And as a result of that, I not only, you know, was able to use the court system to get justice but I also got all of the secret documents that showed that the school knew that this guy as abusing kids, including me.

  • 11:34:36

    REHMWow.

  • 11:34:37

    CASTEIXAnd then they let him move and they let him abuse other kids. And that's what's so important about, you know, opening the statute of limitations. Because not only does it expose wrongdoers, but it exposes the people who cover up for men and women who sexually abuse children.

  • 11:34:52

    REHMNina, how do you respond to Joelle's story?

  • 11:34:57

    GINSBERGWell, I think it's tragic. There's no question about that. You know, we can say we're sorry. That could never make up for it. But I don't believe that -- at least in the criminal context, where you have a person's liberty at stake -- that lengthening statutes of limitations helps us prevent other people -- institutions from covering up crime. I think that the movie "Spotlight" did more to shine a light on this problem and to make it unacceptable for institutions, individuals to cover up this type of activity, to allow a priest to go from one parish to another. That that is where, as a society, we ought to be focusing our attention.

  • 11:35:50

    REHMMarci, how do you respond?

  • 11:35:54

    HAMILTONWell, we had -- first of all, "Spotlight," everyone should see "Spotlight" because it is the perfect movie showing you the paradigm. It's not just a Catholic problem. Adults protect adults. And that is really the story that Joelle was just telling. Adults protecting adults and telling kids to get over it. But we've learned that if you let that fester and you don't find some way to have a justice when that survivor needs it, you create more traumatization.

  • 11:36:27

    HAMILTONAnd so the fact is, is that we have institutions across the United States that have engaged in horrific failure to act. It's not that they're not good people. And it's not that a lot of perpetrators aren't nice guys, because they are. But the truth is that we have not gone after them the way that we need to. And what I like about "Spotlight," but also what I liked about Attorney General Kathleen Kane in Pennsylvania, is that it shows you that you've got to hold people accountable, not just the perpetrator. And for the first time ever today, in Johnstown, Penn., an order of religious priests has been subjected to criminal charges, the Franciscans.

  • 11:37:15

    REHMAll right. We'll have to take a short break here. Marci Hamilton is professor at Cardozo School of Law at Yeshiva University in New York. Short break and we'll be right back.

  • 11:40:02

    REHMAnd welcome back. We'll go right back to the phones, to Christine in DeBary, Florida. You're on the air.

  • 11:40:10

    CHRISTINEHi Diane, thanks for having me.

  • 11:40:13

    REHMSure.

  • 11:40:14

    CHRISTINEI was abused by my brother in an incestual relationship from the time I was four until I was 12, and my father walked in on my brother having intercourse with me, and he turned around and walked back out. And from that time, I was told to never say anything about it, it was not to be told to anyone, and I still want to prosecute, but I don't even know what to do or where to start.

  • 11:40:47

    REHMMarci, what are the laws in Florida? What can Christine do?

  • 11:40:54

    HAMILTONChristine, this would all -- what matters the most is what is your age now.

  • 11:41:02

    CHRISTINEI'm 44 now.

  • 11:41:03

    HAMILTONOkay, you know, what -- Florida has actually done half of what needs to be done, which is that they've eliminated going forward for future abuse the civil and criminal statutes of limitations. But here is the real problem for us. California in 2003 tried to revive both civil and criminal statutes of limitations. The Supreme Court said it was unconstitutional to revive the criminal statute of limitations. So your only option would be to be able to file in a state where they are permitting the revival of expired statutes of limitations.

  • 11:41:42

    HAMILTONSo for example if you were taken to Georgia, you would be able to sue in Georgia. If the abuse only happened in Florida, right now it's just unlikely to happen, but if it's in other states right now that have these open windows, there's a possibility for survivors in those states.

  • 11:42:02

    REHMAll right, Christine, I'm so sorry for your experience, and it sounds as though it's tough to live with. You might want to see about talking with someone, perhaps a physician or a dear friend. I'm so sorry. Let's go to Becky in Bethesda, Maryland. You're on the air.

  • 11:42:32

    BECKYYes, hi, thank you for taking my call.

  • 11:42:36

    REHMSure.

  • 11:42:37

    BECKYI was a victim. I had a cousin, distant cousin, move in when I was eight years old into our home. He was a medical student, questionable sexuality, my parents used to say. For a year and a half, he stalked me in my home, put his tongue in my mouth, exposed himself to me consistently as soon as my mother would leave. And I can't tell you, I'm 61 years old now. I've spent most of my life alone. I've had a few encounters with men, one of which resulted in a pregnancy of the love of my life, which is my son, who I was grateful for and have continued to be grateful for.

  • 11:43:29

    BECKYBut I take a different stand on this in terms of legality. He was a cousin. I never old anybody. You lie in bed at night, and you wonder will he come in and, or when will I see him. The sexual actual intercourse was coming. And I at 10, and I'd like to say it was nine and a half, we were in the basement, and he was showing me medical books. And I remember screaming at him, you get out of here. You go away, or I will tell my mother.

  • 11:44:08

    REHMNow that's the question. Did you tell anyone?

  • 11:44:13

    BECKYI never told anyone, but in a few days, he had moved out of our home, married very soon after that, had two sons.

  • 11:44:25

    REHMWell, I'm glad he was out of your life. The question becomes when one does not tell, and there is no proof. I mean, she was a child. She didn't go to anyone. And now you have the Cosby case. In many instances, again, there is no proof. Marcy, what happens?

  • 11:44:56

    HAMILTONWell, there is proof. There's often corroborating evidence. Now with respect to Cosby, you know, we have over 55 women that have come forward. So we now have a pattern that shows us the way in which this was done on a routine basis.

  • 11:45:12

    REHMAnd what about the statute of limitations in those cases?

  • 11:45:18

    HAMILTONIt's actually very sad. All the cases are out of statute except for one criminal prosecution in Pennsylvania, which he is fighting tooth and nail. And a second one -- and then there are couple of others where he said he didn't do, and so the women are suing him for defamation. I've got to give Gloria Allred a high five for that. That was a clever move. I like that move. But the problem is that the vast majority of these women have come forward, and they have hit a brick wall.

  • 11:45:53

    HAMILTONAnd honestly we're starting to see a movement, like the child sex abuse SOL movement, where there's real consideration of eliminating the statute of limitations even for adult rape.

  • 11:46:04

    REHMSo in a case like that, of Bill Cosby, Nina, and in the cases regarding Roman Catholic priests, I mean, this issues of a statute of limitations, people coming forward, people remembering, people suffering from their experiences, doesn't removing any length of time that one is allowed to speak out, to make charges and to offer perhaps not evidence but experience?

  • 11:46:50

    GINSBERGWell, we have to remember, statutes of limitations apply not only in cases of child rapes but adult rapes, too. I don't really feel comfortable commenting on the Cosby case itself, but I would say that at this point, when someone is facing allegations that may be as old as 20 years, and you have a large number of people who are making these allegations, it's easy to assume that every one of these charges is valid. And how does someone in Bill Cosby's shoes, 20 years later, go about proving that an encounter he had with a woman in a hotel 20 years ago was entirely consensual?

  • 11:47:39

    GINSBERGThere are reasons we -- we have a criminal justice system that entitles a person accused to a defense, and when you -- and we're talking about different things in civil litigation and criminal prosecutions. But when someone's liberty is at stake, and you make it possible to prosecute them so much -- so many years in the future, when collecting evidence -- in adult rape cases, the issue of consent is usually, very frequently the primary issue, the only issue, and if you can imagine trying to prove, 20 years later, whether someone consented or didn't consent to a sexual act, it's just, it's a very high burden.

  • 11:48:31

    REHMMai, talk about that from a victim's point of view.

  • 11:48:36

    FERNANDEZYou know, in a situation like Bill Cosby, he gets to hide behind the statute of limitations. The victim doesn't have a chance for any kind of justice. Also, when one victim comes forward, whether it's an old case or a new case, it emboldens other victims to come forward. And then you start realizing if one, two, three, four, five, and in the case of Bill Cosby, 55 women come forward, it's hard to say that something wasn't really going on.

  • 11:49:07

    FERNANDEZSo I think that all barriers have to come down for victims in order to give them -- they face so many barriers of being embarrassed, being -- not knowing if maybe somehow they did something wrong, or, you know, the fear of going forward that we need to say we need to open all roads for victims so they can get justice.

  • 11:49:30

    REHMAll right, let's go to Russell in Austin, Texas. You're on the air.

  • 11:49:37

    RUSSELLHi Diane, it's a real privilege to be able to talk to you. I've listened for a long time.

  • 11:49:42

    REHMThank you.

  • 11:49:43

    RUSSELLThank you for talking about this topic.

  • 11:49:44

    REHMSure.

  • 11:49:45

    RUSSELLIt seems a little one-sided, though. I'm not hearing a lot on what legally happens to someone when they go through the process of being accused of something like this. Even if they're not ever -- or found guilty of it, is there something that's on their permanent record now legally that they'll have to spend maybe $10,000, $20,000 to get it removed, to get a note in their legal record that says this was a wrongful accusing, and now they have problems in the future, possibly adopting a child or...

  • 11:50:18

    REHMNina, what happens when...

  • 11:50:20

    GINSBERGWhat happens is this follows you around for the rest of your life.

  • 11:50:26

    REHMIf you're simply accused by exonerated?

  • 11:50:31

    GINSBERGWell if you're -- if you go to trial and are found not guilty, most states have expungement statutes, which would allow you to apply to the court to have your record expunged, and that would in fact get it off your criminal record. But people spend huge fortunes, if they have them, defending themselves in cases like this. Their lives are made a shambles while they're going through that process, and if they are -- many times people are convicted of something less than what they're charged with doing or plead guilty to avoid the fear of being convicted of the allegation of rape, and those convictions never leave, and then you have people who, once convicted, are now required by almost every state in the country to register as a sex offender, which means your name goes on a public website, your picture is on the website, the place that you work is on the website, your home address is on the website, the car you drive in many places is on the website.

  • 11:51:44

    GINSBERGAnd I can tell you personally, I have represented many people who have come to me and said how do I get off these lists, you can't get off, and they tell me over and over again, I plead guilty to a lesser offense because I was terrified of being convicted.

  • 11:51:59

    REHMMarci, do you want to comment?

  • 11:52:00

    HAMILTONWell, I'm going to go back to child sex abuse statistics. There just aren't that many false claims. And one of the most serious problems in the United States right now is that prosecutors have been complicit in the cover-up of abuse in many circumstances, which is why there aren't a lot of prosecutions, but they've been particularly dragging their feet on what we've been hearing on -- from the calls today, family abuse, which is horrific, and it is primarily women, and they're primarily stuck in the home.

  • 11:52:38

    HAMILTONAnd so they are really struggling survivors. And so we have a situation where it's very common for -- in order to avoid the cost of trial and everything, that a prosecutor will say, well, we'll plead you down to a misdemeanor. Then they don't get on the list, and nobody knows who they are. So -- and we have an extra problem, which is the national, the federal government, supposedly was putting together a federal list, but the states aren't cooperating, the federal government isn't helping with the cost of that, and so we have 50 state lists. It's very hard to track, and frankly there are so many pleas that put very dangerous pedophiles in the misdemeanor category that I just -- that to me is a much bigger problem.

  • 11:53:20

    REHMAnd you're listening to the Diane Rehm Show. Mai Fernandez?

  • 11:53:28

    FERNANDEZYeah, the other thing I wanted to say is that we're looking at one in six girls being sexually assaulted. Our problem really in this country is that we're not doing anything with these cases. Young women, girls, are not coming forward, and they're not telling their story. So what we need to do is look and to see how we educate our young people, how we get moms and dads and teachers and anybody in the community to say if this has happened to you, come tell me, and we're going to make things better.

  • 11:54:03

    FERNANDEZBut that message isn't going out, and this crime is still buried and kept into the closet.

  • 11:54:10

    REHMI just wonder whether, with the movie "Spotlight," with the publicity about those pedophiles within the Roman Catholic Church, with the story about Sandusky, with all this publicity, are young women and young men feeling more free about coming forward?

  • 11:54:37

    FERNANDEZWell, we see movements, like on college campuses. We're learning now that, you know, rape on college campus is common. And there are movements that students have created themselves. We're looking at young men really supporting women, about supporting men that may have been raped. So it is coming into the open. I think we're learning more and more about the prevalence of sexual assault, both assault on children and assault on individuals on campuses and actually teenagers and young adults.

  • 11:55:10

    FERNANDEZSo I think that the more we realize and are able to accept that this is common in our society, the more that we're really going to get help for those individuals and hopefully stop this epidemic from continuing.

  • 11:55:26

    REHMAnd Marci, do you see these laws regarding the statutes of limitations more and more being extended or lifted altogether?

  • 11:55:41

    HAMILTONThe trend is decidedly in that direction, both lifting expired statutes that are civil and eliminating both civil and criminal. And with many states having already done that, in some way or another the states that haven't, many are left to work, are looking at it very carefully. And I do expect to see, by the end of this decade, at least, that we will have the vast majority of states with many fewer barriers for victims from this technicality.

  • 11:56:15

    REHMAnd for you, Nina Ginsberg, that means more difficulties.

  • 11:56:20

    GINSBERGA great deal more difficulties, and, you know, while we have an increasing number of victims, we also have what just happened at the University of Virginia with the false allegation of this one individual who apparently had romantic feelings about someone and invented, literally invented, sexual assault by seven men, students at that school. And imagine if that allegation hadn't been brought for 20 years.

  • 11:56:53

    REHMWell, it seems to me that there is one big takeaway here, which is if you are assaulted, speak out and speak out immediately to not only someone close to you but someone in authority, as well. Thank you all for being here, Mai Fernandez, Nina Ginsberg, Marci Hamilton. And thanks for listening, all. I'm Diane Rehm.

Related Links

Topics + Tags

Comments

comments powered by Disqus
Most Recent Shows

The Rise Of QAnon

Tuesday, Oct 20 2020Diane talks with Adrienne LaFrance, executive editor of The Atlantic. She wrote a story in July called "The Prophecies of Q."