Up Against a Wall: Rape Reform and the Failure of Success

Notes

265 NOTES Chapter 1 1 Though, as I show in chapter 4, criminal justice actors are often reluctant to recognize rape even in cases of violent penetration resulting in physical injuries. 2 Although there were several excellent large-scale quantitative studies in the wake of rape law reforms (Berger 1991; Caringella-MacDonald 1985; LaFree 1989; Marsh, Geist, and Caplan 1982; Spohn and Horney 1992), there have been few recent studies. Given increasing qualitative and anecdotal evidence that police routinely ignore rape complaints because of institutional bias against the crime and its victims (Civil Rights Division 2011; Martin and Powell 1994; Tracy 2010), the lack of studies on police and prosecutorial decision-making is quite troubling. However, a large-scale study of policing and prosecuting in Los Angeles was released shortly after this book was completed (Spohn and Tellis 2012) and the National Institute of Justice has signaled some renewed interest in these issues. 3 “One of these centers remarked that there was a large ‘Take Back the Night’ march in their community, but that only two or three of the center’s 60 volunteers took part; the program director felt that the demonstration was ‘disgusting ’ and ‘useless.’ The director of a second program reported that the attitudes of her staff and goals of her program were largely in opposition to those of the local ‘feminist community’” (Gornick, et al. 1985, 260). 4 Indeed, Gruber begins her 2007 article with an account of a conflict between herself as a defense attorney, her client Jamal (described as having “a beautiful baby face, with neatly done-up plats and the latest Nike sneakers”), who is accused of domestic violence, and Britney, Jamal’s girlfriend who now does not want to press charges against Jamal. Britney asks Gruber if she has to testify, and whether the charges will be dropped if Britney doesn’t make a statement or leaves the courthouse. Gruber describes her ethical conflict as a defense attorney, framed as seeking to honor Britney’s wishes and to protect her client from an overly punitive and racially discriminatory justice system. She encourages Britney to sit down and tell her the “truth” of the event—separate from legal distortions of the incident. Just as I am finishing my sentence, a young woman rushes up and inserts herself between Jamal, Britney, and me. She is blonde, no more than 24, with a hip haircut and an enormous diamond engagement ring. “Domestic violence clinic student,” I think to myself. She glares at me and demands, “What are you doing talking to my victim, and why is your defendant near her? He’s violating the no- 266 Notes to Chapter 1 contact order!” . . . I reply, “Britney came up to me. Apparently, she does not want to pursue this case or have no contact with Jamal.” The advocate replies sarcastically, “I’m sure she told you that she wants to drop the case.” Britney turns to the advocate and protests, “I don’t want to be here, and Ms. Gruber told me I could leave.” The advocate shoots me an accusatory glance, so I defensively reply, “No, I told her that I could not give her any advice on what to do, but, as you can see, she does not want to pursue this case.” The advocate snaps, “Well, we’ll just see about that. Come on Britney we need to talk, away from them.” With that, she leads Britney away through the mass of humanity gathered in the bustling hall. Ten minutes later, we are all seated at counsel table. I listen as the judge orders a renewable one year civil-protection order, including a requirement that Jamal have no contact with Britney or the baby. Britney looks down as the judge reads the order. (Gruber 2007, 742–6) Though obviously intended to illustrate “typical” problems with the intersection of feminism and the criminal justice system, this account bears absolutely no resemblance to any statement I encountered in interviews with close to 170 advocates, almost every one of whom described respect for client wishes (often described as an “empowerment philosophy”) as an absolutely fundamental, core value of their practice with victims. 5 A report from the ABA Commission on Domestic Violence (2003) includes law school–based courses and clinics dealing with domestic violence. Of the programs listed, more than three dozen describe themselves as specifically serving victims of domestic violence, battering, or family violence, as distinct from general family law clinics that serve victims of spousal...