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When Juries Sideline Rape,|Activists Look Outside the Courts

MANHATTAN (CN) - Hundreds rallied outside Manhattan Criminal Courthouse last weekend to protest the acquittal of two New York Police Department officers accused of raping a drunken woman they were supposed to escort home.

"If you're wondering why women hesitate to report a rape or a sexual assault to the police, and why a victim wouldn't trust the justice system, look no further than the acquittal of NYPD officers [Kenneth] Moreno and [Franklin] Mata," one speaker, Nancy Schwartzman, told the crowd that gathered Friday.

A day earlier, a jury refused to convict Moreno and Mata of raping and burglarizing a drunken woman, despite evidence that prosecutors described as a taped admission, a photograph of a cervical irritation and a videotape showing the pair entered her house four times without alerting patrol.

Instead, jurors found the cops guilty of three counts of official misconduct, misdemeanors that can collectively carry three-year sentences.

And yet compared to national statistics compiled by a leading support group for rape survivors, the jury threw the book at Moreno and Mata.

Most alleged rapists never even get misdemeanors, and only 6 percent of all rapists ever see the inside of a prison, according to the Rape, Abuse and Incest National Network. One protester's sign echoed the 6 percent statistic.

Officially, the organizers demanded reform within the NYPD, but several notable participants in the demonstration held little hope that the numbers would improve.

The self-ordained Rev. Billy Talen, often arrested for performance-art demonstrations against major corporations, said in an interview at the protest that his experiences behind bars leave him with "little romance about due process."

Distrustful of the courts, he urged what he called an agnostic spiritual response to sexual violence.

"We here in America get violent signals all day long," Talen told the crowd. "And those two sad officers: They'll be especially sad if they go back into their lives now and make excuses for what they did. They need to change. ... The NYPD needs to change. We need to change. America needs to change."

University of Colorado Law School professor Aya Gruber said in a phone interview that many of her students confide in her about rape.

"I tell them, 'Do what's best for you to heal. If you think you can only heal by going through this criminal process, OK. Go through it with your eyes open. But if you think you can heal by other means, don't feel that you have to prosecute, or you're a bad victim,'" explained Gruber, a former defense attorney.

Schwartzman, a speaker at Friday's rally, described a unique way to voice allegations outside the court.

Like the cops' accuser, Schwartzman said she survived a sexual assault. And also like the cops' accuser, Schwartzman secretly recorded her attacker admitting his crime.

In the trial against Moreno and Mata, Moreno disputed the sound recording that captures him telling his accuser that he used a condom. Moreno said he said that to calm the woman down when she confronted him at his precinct.


Schwartzman never sought to prosecute her alleged attacker, however, and instead turned his videotaped confession into a 24-minute documentary called "The Line" that she shows to students, cops and community groups across the country.

"I honor people who used the system," Schwartzman said in an interview. "The way I did it is I defined justice very differently. To me, it meant I want to get it on tape. I want to create a conversation around it, and I want to do education and prevention. And I show him. I cover his eyes, but I show his face to thousands of people."

That she blurred the perpetrator's features is unthinkable in common media practice in which journalists conventionally protect the identities of alleged rape victims. During summations in the trial against Moreno and Mata, the prosecutor repeated the name of the accuser, reminding jurors of her humanity, but not a single press outlet would print it. The only published courtroom sketch of the woman blurred her face.

Schwartzman, however, put herself in the public spotlight and disguised her perpetrator.

Professor Gruber says that Schwartzman sets a healthy, if uncommon, standard for what's actually shameful.

"Yes, rape victims value their privacy in a world that blames them for being victims," Gruber said.

"On the other hand, the more you keep private the names, the faces, the reality of rape victimhood, the more you allow it to be something that should be kept in the shadows," she added. "I would like to think that there will come a time when more people are like the documentary filmmaker, and have nothing to be ashamed about being victimized by someone else."

Although not every rape survivor can film a documentary, Schwartzman said several community organizations practice "restorative justice," which she says values a "victim-based" approach to healing and confronting a perpetrator.

Supporters of social reforms say that, because criminal conviction gets the focus, little public money gets spent on community centers, treatment, therapy and paid work leave for rape victims.

With rape convictions so uncommon, Schwartzman says criminal trials often only succeed in victimizing a rape survivor and hardening an alleged rapist's denials.

"I think the way the court is set up is that your perpetrator, or the defendant, is going to deny wrongdoing," Schwartzman said. "It's really set up to demonize the victim, question her lifestyle, question her behavior, drag her through the mud."

Defense attorneys for the cops accused the alleged victim of alcoholism, talked about her sexual history and suggested that she made the allegations to benefit her $57 million civil suit against their clients and the city.

Professor Gruber said that, in prosecuting cops, the accuser came up against what sociologists call a "theory of a just world," which causes people to doubt horrific abuse by people in power.

"The criminal system can be a great route for going up against defendants that everyone already hates," Gruber said. "With defendants like police officers and victims like drunk women, the criminal system is going to have a tendency to reflect the prevailing views of those two groups, which leaves socially marginalized people out in the cold."

Gruber predicted that the woman will settle her civil suit for far less than $57 million.

If pursued, however, Gruber said the case - which would be judged on "preponderance of the evidence" rather than "reasonable doubt" - could have wider impact than criminal rape convictions.

"If it goes to trial, and she gets a significant jury award, that's really going to affect the systemic change, way more than one police officer going to jail," Gruber said. "If the police department has to pay money, and it's a significant amount of money, they will make changes."

Although the NYPD fired the cops on Thursday, it showed no sign of mulling systemic reform, and it did not respond to an email inquiry about the protesters, their demands and how the department plans to restore confidence in criminal prosecution.

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