Writing about a sexual assault case
March 23, 2012
On Fridays, we talk about legal fiction writing.
No topic is as incendiary for the writer as a sexual assault case.
In my years prosecuting and defending these sorts of cases, I learned some lessons.
Since most rapes involve a perpetrator and a victim who know each other, rather than an attack by a stranger in a poorly lighted parking lot, I will focus this week on those types of crime. I will also take it a step farther and confine the discussion to sexual assault within the family context.
Maybe the most important lesson I learned is that once a person becomes tainted by an accusation of sexual assault, he will never remove the stain. This is why principled prosecutors are slow to pull the trigger on such charges. They want to be sure they can make their case.
Any lawyer who has handled divorces knows that it is common for an accusation of child molestation to arise in the context of a contested child custody case. I have seen it many times in my practice.
Of course, the kicker is that by its very nature sexual assault is usually something that happens in private with only two possible witnesses, the accused and the victim. It is classic “he-said-she said” sort of stuff. This is particularly true when the sexual assault may have occurred years before, or over a course of time. Usually DNA won’t help because the victim may not have reported the crime when it happened, or may not have received a proper rape anaylsis at a hospital where evidence could have been collected.
Domestic sexual assault almost always involves a combination of either a husband and wife or the three-fold combination of husband, wife and child.
One of the most powerful dynamics that comes into play is the step-child sexual assault scenario. In this setting, the crime may go unnoticed or unreported for years. Or a wife may turn a blind eye to it for fear that she will lose the support of her husband, even if he is molesting her own child. No case is so difficult to prosecute as the sexual assault case where the mother is called to testify against her spouse, a spouse that may still reside in her home. Many times such a person will have filed the original complaint against her husband only to recant her report on the witness stand.
The writer has to make a choice. Will he have his readers view the crime from the perpetrator’s perspective? the other spouse’s point of view? the perspective of the victim? This is a crucial decision that controls the narrative.
Is the hero the DA, the defense attorney, the wife who blows the whistle, the child who runs away to escape years of torture?
Are the charges valid or cooked up to gain an advantage in a divorce case? Is the perpetrator a serial rapist, a coward who preys on children, or a good person falsely accused?
As you can see, the writer has a thousand ways to go at a sexual assault case. But whatever way he chooses to portray it, he is dealing with conflict that is dynamite on many levels.