Dylan Farrow’s Regret: Why We Need a New System for Rape Testimony
Crossposted on TikkunDaily
By Tara Kipnees
The many angles of the Dylan Farrow/Woody Allen sexual assault saga have been dissected relentlessly over the past two weeks. For all the information unearthed, it is increasingly apparent that we will never know what happened between Woody Allen and his adoptive daughter nearly 22 years ago. One thing we do know for certain, though, is that in 1992 the Connecticut state prosecutor Frank Maco found “probable cause” to prosecute Woody Allen, but he did not move forward with filing charges due to “the fragility of the child victim.”
In a November 2013 Vanity Fair article, Farrow told author Maureen Orth “”I have never been asked to testify. If I could talk to the seven-year-old Dylan, I would tell her to be brave, to testify.” Maco, for his part, told the author that he found Farrow too uncooperative to testify. Either way, someone made a decision that it would be too much for Farrow to testify in court against her alleged assailant, and Farrow today wishes a different decision had been made.
The ordeal shines a spotlight on the multi-layered predicament facing many rape victims. A victim may be told that she must testify, or she never will have the opportunity to testify because charges are dropped. And if a victim is given the choice, does she expose herself, her story, and her credibility to that kind of scrutiny, or does she avoid testifying and risk spending the rest of her life wishing she had spoken up?
It was about this time a year ago that I heard I would not be testifying for a second time against my rapist, fashion designer Anand Jon, this time in his New York trial. While there was a large part of me that wanted to expose Jon’s crimes to their fullest extent and see that he is punished adequately (which seems unlikely; in his plea deal 48 charges – including rape, drugging women, and issuing death threats – were dropped), I primarily was relieved that I would not have to undergo a cross-examination and confront my attacker in court for the second time. Frankly, I wish that I could claim to be more indignant about not being able to point Jon out to the jury and proclaim “He is the one who raped me,” but after being notified of the plea deal, I felt, above all, liberated.
When I first testified in Jon’s 2007 Los Angeles trial, the actuality of sharing a room with my rapist consumed me in the same terror I felt the night of the incident. My apprehension was compounded by the cross-examination, during which a graying man in a well-tailored suit spent over three hours trying to cast me as a liar. He strived to wear me down and elicit some hidden truth he demanded I was withholding. But as soon as I stepped down from the witness stand, I was electrified with a sense of empowerment at having revealed something that felt so shameful for so long to those who could bring my rapist to justice. When the judge handed down a 59-years-to-life sentence, I knew that I had played a part in bringing that about, though I can’t deny the memory of the questioning (which entailed, for example, describing to strangers in what hole Jon inserted himself in me) is still rattling nearly seven years later.
In a statement evoking Maco’s, the Manhattan District Attorney’s Office explained that they offered Jon the plea “to spare the victims from having to testify at multiple proceedings” (and also because the California Supreme Court declined to overturn Jon’s 59-year-to-life sentence). But not all prosecutors and judges are as inclined to consider the effect of a trial on victims. Victims of rapes and violent crimes frequently have no choice in the matter of testifying. In 2011, a Kansas mother of three was held in contempt of court after refusing to testify against her stepfather, who was charged with having sexually assaulted her when she was seven. The Nebraska judge presiding over the case presented the victim, who refused to testify for fear of the toll it might take on her family, with a no-win proposition: either take the stand or face 90 days in jail. She chose the latter, and true to his word, the judge had her imprisoned. The Nebraska Supreme Court upheld the ruling, explaining that a state law permitting witnesses decline to testify when they would be shamed or publicly disgraced does not apply to criminal cases.
A nearly identical scenario played out in 2012when a Sacramento judge ordered that a 17-year-old alleged rape victim, who early on in the case failed to show for two appearances, be jailed to ensure she would take the stand against her rapist. The judge cited his fear that the girl, who had a history of running away, would flee rather than testify. Only following a public uproar was the victim finally released.
In the Nebraska and Sacramento cases, the judicial system made little attempt to strike a balance between the interests of the victims and the constitutional right of the accused to face his accuser. The Confrontation Clause of the Sixth Amendment, however, makes no requirement that the confrontation must be in person. Several states have already enacted laws allowing child rape victims to testify via videoconference technology, but states rarely embrace this as a systemic option for adult victims. And in the few circumstances in which it is employed, it is only done on a sparing, ad hoc basis (e.g., largely when the victim is physically incapacitated or too far away). As the United States Supreme Court held in the 1990 opinionMaryland v. Craig, indirect confrontation such as video testimony is permitted “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” That standard, however, sets a very high bar, making it easy for courts to deny the option of video testimony in all but the most exceptional circumstances. In practice, courts are extremely wary of condoning live video testimony. As one federal appellate court found in a 2006 opinion, “[t]he Sixth Amendment’s guarantee of the right to confront one’s accuser is most certainly compromised when the confrontation occurs through an electronic medium. Indeed, no court that has considered the question has found otherwise.”
But if the electronic medium used during testimony presents a live feed, allowing a jury to watch a victim being cross-examined by a defendant’s lawyer, why are courts so adamant that the integrity of the Confrontation Clause would be jeopardized? Indeed, several empirical studies conducted by William and Mary professor and court technology expert Fredric Lederer have concluded that presenting testimony via remote video does not have a statistically significant impact on jury verdicts.
It is understandable that prosecutors and judges want to do everything in their power to bring rapists to justice, but a rape victim’s suffering during testimony should not be tolerated as collateral damage. Efforts to accommodate victims’ varying degrees of psychological distress may also encourage victims who remain silent about their rapes to come forward. In 2010, a U.S Department of Justice National Crime Victimization Survey found that 50% of rapes go unreported. Reasons cited for that reluctance include self-blame, shame, fear of being accused of lying, and lack of faith in the criminal justice system. Having experienced this gamut of emotions myself, I can attest that the deterrent effect of these factors is exceptionally powerful.
For rape victims to feel more supported in coming forward, the justice system’s attitude towards rape victims needs to change, and video testimony should be a more broadly endorsed practice not only for victims who are too young, but for victims who are too shaken to sit mere feet away from their alleged assailant. There is nothing that can be done to erase the psychological wounds inflicted by rape, but the justice system should take pains not to exacerbate them. There are great benefits that come from aiding in the conviction of one’s abuser, but those benefits should not have to come at the cost of the victim, especially when a near and effective substitute for in-person testimony is so readily at hand.
Tara Kipnees is a writer living in New Jersey with her husband and two-year-old daughter. She received a B.A. in English from Tufts University in 2007, and worked for Sotheby’s and the Worldwide Orphans Foundation before becoming founding editor of the online literary forum Voices in Space.