A Discussion with Liz Holtzman and Alice Vachss

A Discussion with Liz Holtzman and Alice Vachss

by Merle Hoffman

Why haven’t candidates, especially, women candidates, made violence against women – and specifically rape – a central issue in election campaigns? And how can women’s groups formulate a political agenda to attack the problem? To find out, the editors of ON THE ISSUES invited two well known prosecutors of rape cases to discuss the issue and generate ideas on how women can move forward on this issue.

Liz Holtzman served eight years as the first woman district attorney in New York City, as part of her long career in public service. Alice Vachss is the author of Sex Crimes: Ten Years on the Front Lines Prosecuting Rapists and Confronting Their Collaborators.

OTI: How do we stop rape? How do we cure the disease?

HOLTZMAN: We have to start at the beginning and change basic attitudes. My eyes were opened by a poll published in a New York newspaper in the late 1980’s. Someone had surveyed a group of Rhode Island junior high school kids on their attitudes toward sex. An overwhelming number of boys -more than 60%- said it was okay to use force against a girl if they had spent 50 cents on her or if they had been seeing her for six months! More troubling, a substantial percentage of girls agreed. Not only do boys devalue girls, but girls believe that in the end they have no alternative. We have to start influencing the boys’ frame of mind as well as the girls’. You cannot solve the problem of rape by focusing on a woman’s sense of self worth. You have to start by dealing with men’s attitudes about violence and their definition of their manhood. That was something that came up in the Central Park jogger case and other gang rape cases; the victim is only a pretext for the men to show each other how macho they are. They’re using violence against another human being as part of their self definition. That’s what’s horrible. When women have a lower status than men, they are demeaned and dehumanized. Rape becomes part of the spoils of war. We see this in Bosnia today. The idea of woman as property is deeply rooted in our civilization. Rape is part of this phenomenon and we’ve got to free ourselves from that. It’s very deep seated because it means changing men and women’s self image as well as their attitudes toward the other sex.

OTI: Alice, you’ve been on college campuses, doing publicity for your book. Do you agree with Liz’s observations? Is sexual violence a reflection of society’s attitude towards women?

VACHSS: When I started as a prosecutor, I quickly learned that you could send a message if you were clear cut. I would like to see enhanced the consequences of rape and change public attitudes from the ground up. The Senate Judiciary Committee released a report last June in support of the Violence Against Women Act. It said that 98% of the rape victims in this country failed to see their attackers arrested, prosecuted, and incarcerated. Like it or not, we’re sending a message that it’s okay to rape.

HOLTZMAN: One of the things I found most trouble some as a prosecutor was the fact that many women who are victims of domestic violence felt that there was no alternative, that this was their fate. Many women have been taught that if they’re victims of domestic violence, they’re the ones at fault. We still have laws in this country that permit husbands legally to rape their wives. I was the only prosecutor in New York State to challenge the exemption to marital rape.

We argued specifically on the point that the origin of the idea of the exemption of marital rape was in the notion of the woman as property. So when we talk about rape and deplore it, we must be willing to admit that married women still do not have the right of bodily autonomy in many places in this country.

OTI: Most people still think rape is about sex. But you both seem to agree that it’s about power, it’s about possession.

VACHSS: One serial rapist I prosecuted used an insanity plea. He was supposedly hypnotized by the defense to relive the rapes. He said, “I looked for women who looked happy because I wanted to take that away from them.” And he did. That’s what rape’s about.

OTI: Alice, before the interview you used the term “sexual misconduct.” This term implies levels or degrees of rape -it seems almost a diminution of the whole thing. It’s like a sliding scale.

VACHSS: You’re right. Rape can be prosecuted and punished two ways: as the second highest felony, a B felony, or as a misdemeanor. The misdemeanor rape statute is called sexual misconduct. There should be no such thing as a misdemeanor rape. That values one victim over another.

OTI: The magazine followed the Aileen Wuornos case, a prostitute who killed six johns in self defense, and was labeled the first female serial killer. Now, apart from the question of how you can kill six people in self defense, people ask how can a prostitute be raped?

HOLTZMAN: In New York State you have no rape protection for prostitutes. They are viewed as the dregs of this earth. You can try to prosecute the rape of a prostitute, but the defense can bring in every single prior sexual act she’s ever had, on the theory that if she’s ever said “yes” once, she’ll say “yes” again. The rapist’s prior rape convictions, on the other hand, won’t be admissible.

OTI: Beyond targeting deep-seated attitudes, how do we attack the problem, the behavior?

HOLTZMAN: We need tough laws. We need sensitive prosecutors. We need judges who understand that rape is not a joke. We need police officers who are properly trained. We need counseling services. We need a panoply of services throughout the criminal justice system, and we’re not there yet. When I was prosecutor, there was a case involving a rape victim who was allegedly asked to get down on her hands and knees in the courtroom and re-enact the rape. And under oath, the assistant district attorney said that the rape victim had done that. And when I raised an objection, I was chastised for publicly questioning the conduct of a judge. The criminal justice system doesn’t take rape seriously enough.

There was another rape case in which a guy broke into a house with a stocking mask over his face and raped a woman. The judge gave him an extremely lenient sentence saying, “Well, you know, maybe it started out as a rape but obviously the two of them…”

OTI: Enjoyed it?

HOLTZMAN: Yes, it had to be, because women presumably want to be raped. That’s part of the mythology. That’s why we have juries that won’t convict; judges who won’t sentence; prosecutors who won’t prosecute. They all reflect society’s deep seated attitudes.

OTI: What about date rape cases?

HOLTZMAN: That’s when the double standard kicks in. Date rapes, or acquaintance rapes, are one of the most difficult kinds of cases to prosecute because women are held to an extraordinarily high standard. Let’s say a woman allows a man to walk her home from a bar. He says, “Gee, I’m going home, but can I just use your phone for a second?” If she lets him in, forget it! You’re not going to get a conviction because the jury’s going to say she should have known better. Why was she walking home after dark? In robbery cases nobody asks what were you doing in the subway at seven o’clock at night.

VACHSS: One of the underlying attitudes is, “she asked for it, she deserved it.”

OTI: Alice, how can we change things?

VACHSS: We need to up the stakes across the board and hold our elected officials accountable. The people I’ve talked to while I’ve been touring can no longer tolerate the sexual violence in this country. But they have this abiding despair that they have no ability to change it. And I’ve been telling people that we can change it in the voting booth. For the most part, prosecutors are elected. We should say to them, “Do your job or lose your job.”

OTI: Liz, could you have run on a platform like that?

HOLTZMAN: Not in the past. The problems affecting women are not major issues for the press. Let’s look at the treatment of the Central Park jogger. I had a very interesting contretemps with Ted Koppel on his show. All he wanted to talk about was the racial aspect of the attack. But gender was the central issue.

OTI: But f you raise the issue from the election platform, they have to cover what you talk about.

HOLTZMAN: No, they don’t. But I agree, we need to hold the feet of all officials to the fire. That includes judges, police, prosecutors, and elected officials.

VACHSS: We need to have a longer memory, to remember names. Everybody was shocked when the Glen Ridge judge let all those defendants out. But when it comes time for his re election, who’s going to remember what he did?

OTI: When you talk about a judge’s or prosecutor’s sensitivity to the seriousness of rape, it raises another issue: the victims themselves having the courage to come forward. A lot of people who come to the rape treatment center at Choices for counseling are absolutely terrified of bringing these cases forward. They risk being victimized again, this time by the court system.

VACHSS: When I wrote my book, which is about sex crimes, I got mail from women who’d never told anyone they’d been raped. Every single one of them said the same thing, “I didn’t think anybody would believe me.” That’s the basic reason women don’t report rape. And, they have a good basis for that. We don’t believe victims when they come forward.

OTI: Why don’t we?

HOLTZMAN: At common law, a woman’s word was worthless. She could not be believed on the issue of rape unless she had a corroborating witness. Why? Number one, women really want to be raped, so they can’t be trusted. Number two, they’re liars, because if they get pregnant, they can protect their reputation by saying that they were raped. This was the law of the land until the late 1960’s and early 1970’s. Laws began to change but it’s still very difficult if it’s a woman’s word against a man’s word. I remember when I became the D.A.; we had to go and train doctors because they would write on the hospital records, ‘no evidence of rape.’ Her word wasn’t evidence of rape. And if there were no bruises there’s no evidence of rape, they thought. But they were wrong and their analysis helped botch cases.

VACHSS: People dismiss it as a “he said, she said” kind of case. Well, most robberies are “he said, she said.” Whoever believes that rape charges are easily made and hard to disprove has never talked to a rape victim.

HOLTZMAN: But just to show you how the laws demean women, when I became a D.A. in the early 1980’s the basic rape law said that it could not be a rape by law unless a woman put up what was known as “earnest resistance,” a Victorian phrase. So, unless a woman could show that she fought back, it wasn’t a rape by law.

VACHSS: There’s a lot of collaboration with rapists in the criminal justice system. There are people who are not rapists themselves but who literally create a support system for rapists.

OTI: In your book you seem to say that it’s in the structure of the system.

VACHSS: The people in the criminal justice system have the power to literally free rapists. Rapists believe that every man would rape if he had the guts. And they find support for that belief in judges who say, “You know, it wasn’t violent. She’d been raped before so we’ll give him less of a penalty.” And prosecutors say, “I’d rather protect my conviction rate than go after a rapist.”

OTI: I’m really amazed to hear that you think people in the system are pro-rape.

VACHSS: Let me give you an example. There was a case in Texas where the guy broke into a woman’s apartment at knifepoint and raped her. They presented the case to the grand jury and the grand jury refused to indict after hearing that the woman had asked the rapist to use a condom. Everyone was critical of the grand jury but the grand jury foreman went on one of the talk shows afterward. It turns out, the prosecutor didn’t ask for a burglary charge, didn’t put the knife or the rapist’s confession into evidence. To top it off, he didn’t put the victim on the witness stand and he allowed the grand jury to laugh about the condom request. When asked about the dismissal, the grand juror said, “We thought that’s what the prosecutor wanted.” But when the story made national news, it put pressure on the prosecutor to present it to a second grand jury, which did indict and the guy was eventually convicted.

OTI: You’re saying they throw these cases.

VACHSS: This is the way cases are thrown. Fortunately this time it was in Texas, which happens to be a state where you can put the case back in the grand jury.

OTI: That’s what you meant when you said that people in the criminal justice system collaborate with rapists. The prosecutor didn’t even use the tools or the evidence he had. That’s startling.

VACHSS: But it happens.

HOLTZMAN: But what do you do when the rape victim doesn’t want to proceed? They’re reluctant to expose them selves to the brutality of the defense. That’s why we actually had counselors going into the courtroom with the rape victim. We created a whole apparatus of counseling, and think it was very successful.

VACHSS: Half the time victims are betrayed in the name of the victim. I think prosecutors use victim vulnerability as an excuse, and also that they fail to do what they can’t help victims overcome their fears. You get a case where it’s a strict identification issue and the victim is worried about having worn a seductive shade of lipstick. She thinks t1it the cross examination is going to be awful, because that’s what she’s seen on TV. But many times cross examination, though difficult in other ways, is not the confrontational thing that victims imagine. So what you need, before the victim makes the decision that she doesn’t have the strength to do this, is a prosecutor saying, “I’m going to be with you every step of the way.”

OTI: Do you feel that you’ve made a contribution that will stand?

HOLTZMAN: Oh, we changed the rape laws in the State of New York. We changed the corroboration requirement a lot of changes that will be permanent. I don’t think there’s any going back. The question is how much farther we can go and how quickly.

OTI: Do you think the momentum is there in terms of the movement, in terms of the people in politics? Do you think it matters to people who are there?

HOLTZMAN: Well, I think it matters to the public, but they’re not really aware of what the problems are; and they’re not really getting an assessment of how active or inactive, how aggressive or how sensitive any particular prosecutor is, or that these cases are assessed in that fashion.

OTI: When women run for office, they’re often thought of as weak on law and order. Why aren’t women candidates able to move the process forward and to run on the law and order issue -0as in, “I will be strong on violence against women.” I imagine you could point to women prosecutors and judges around the country who have very good reputations and have done a lot of good work over the years.

HOLTZMAN: There are very few women who are seeking the office of prosecutor or who are prosecutors. The number of women who are attorneys in general in this country is still minuscule.

OTI: I mean running for Congress or Senate or City Council.

VACHSS: I don’t think that gender alone solves this issue. I’ve seen too many horrendous women judges, women prosecutors, women politicians at high levels, who are betraying victims. Gender’s not necessarily the answer.

OTI: Given the epidemic of violence against women -harassment, abuse, battery, rape- why wouldn’t a political platform that says, “Yes, I’m gonna get tough on this and on the laws of state sentencing,” resonate with the population?

HOLTZMAN: We did a radio ad on rape when I ran for comptroller. Our follow-up poll showed that there was very strong support for prosecuting rapists and helping rape victims.

OTI: So maybe this issue is resonating. Maybe women are getting more conscious of the disparity between the idea of equality and the reality of how the criminal justice system deals with the crime of rape.

VACHSS: Violence against women needs to be looked at for its own sake. But I also think there’s a kind of sociopathic violence in this country that’s growing. I used to make a distinction between “did he hit you over the head and then take your money;” or “did he take your money and then gratuitously hit you over the head?” As a country, we’re getting more and more intolerant of this sociopathic gratuitous violence, whether it’s car jackings or bombings or rape. When we tolerate sexual violence between two people who know each other, we invite sexual violence between strangers. That’s the logical next step. I think plenty of people are finally beginning to say that sexual violence is not only a women’s issue. Violence is an issue for all of us. In that way, it might become a viable political issue.

OTI: Yes, it affects all of us. It affects the perpetrators as well as the victims.

VACHSS: I don’t care about perpetrators, I really don’t. I don’t care about their history, their problems.

HOLTZMAN: Well, I differ with you. We haven’t paid enough attention to the question -I mean aside from incarceration- of whether there’s any way to deal with these people. Let’s say they’re 20 years old and in jail for 10 years. They’ll be out at the age of 30 and then what happens? Adolescents who are convicted are probably not going to get a long sentence. What do you do? There’s very little research on whether there’s any kind of treatment, counseling, or therapy, that works. That’s something we need to look at.

VACHSS: It I don’t believe that there’s any treatment. And my favorite study was one that was done a few years back of released rapists. They compared the recidivism rate for those who received treatment and those who had not. And those who received treatment recidivated at a higher rate than those who had not.

OTI: Do you believe in the “three times and you’re out” approach?

VACHSS: Habitual offender laws have been on the books for years; what we need to do is start enforcing them. When you’ve got people who have proven by their behavior that they’re going to be dangerous, at some point we need to say, “They’ve proven enough, we’re not to give them anymore chances. “Somebody who does a series of rapes; gets out; does a second series of rapes; may very well be released in his lifetime to do a third series of rapes. That’s obscene.

HOLTZMAN: We still have a long way to go. It’s two steps forward and one step back.

VACHSS: But, we’re going, we’re moving. I don’t believe prosecutors will change all that much; they’ll still work on self interest like they always have. We need to change their ideas of what self interest really is. That’s why I believe so much in the voting booth. If we define the criteria for reelection, we can change things. We haven’t yet, but we can.

Liz Holtzman began her distinguished career in public service when she won a seat in the US. House of Representatives in 1972 as the youngest woman ever elected to Congress, a record she still holds. In l980 Holtzman became the first woman in New York State to be nominated for the US. Senate by a major party and was elected Brooklyn District Attorney in 1981, where she served for eight years as the first woman D.A. in New York City. Liz Holtzman is the author of the federal rape privacy law as well as laws allowing better treatment of child sex abuse victims through two way video in the courtroom and allowing videotapes of victim testimony instead of live testimony in the grand jury. She is co-founder and co chair of Congresswomen s Caucus. Currently, she is counsel to Herrick, Feinstein, a New York law firm.

Alice Vachss is the author of Sex Crimes: Ten Years on the Front Lines Prosecuting Rapists and Confronting Their Collaborators (due out in paperback in September 1994 by Holt), which details her experiences as a prosecutor trying the toughest rape cases and as Chief of the Special Victims Bureau in the Queens District Attorney’s office. Currently she lectures on college campuses on the issue of sexual assault.