We’re all used to the cocktail party question, “How can you defend those people?” But there’s a new variation on that theme, directed at women criminal defense lawyers, and more specifically, women who defend men accused of rape. These women, Kathleen Walsh contends, are “soulless,” traitors to the feminist cause and weaponizing their gender for a “brand.”
As R. Kelly’s long-awaited criminal trial got underway last week, I was unsurprised to see that the most public-facing of the four defense lawyers representing Kelly was also the lone woman among them. If you are a hugely famous alleged rapist and sex pest with accusers in the double digits, there is an obvious optical advantage to having a woman as the public face of your legal team. Harvey Weinstein had Donna Rotunno, Andrew Cuomo has Rita Glavin, and Bill Cosby had Jennifer Bonjean. And now, R. Kelly has Nicole Blank Becker, a Michigan-based attorney who has used her credentials as a former sex-crimes state prosecutor to build a personal brand specializing in sexual-assault defense.
What somehow eludes teen vogue-level writers is that there are extremely few high profile rape cases, and it’s not exactly a full-time specialty to defend a celebrity. But what’s far worse is the failure to recognize that these women got the gig because they are exceptional lawyers. Female lawyers, like male lawyers, come in all flavors, some excellent and some downright awful. These are great lawyers. And they are great lawyers who defend the accused, even if they are accused of crimes that women like Walsh believe are undeserving of a defense.
Of course women have been throwing one another under the bus in the service of terrible men for time immemorial, but still, I am darkly fascinated by women who have made a career out of it. What woman would choose to defend an R. Kelly? The kind of woman who has no compunction with weaponizing her gender for her own advantage, that’s who. Becker and her ilk are bringing the outrage-mongering techniques perfected in the media by the likes of Ann Coulter and Candace Owens to the actual courtroom.
What kind of woman defends any accused is the right question, and that kind of woman is the one who understands and appreciates her duty as a criminal defense lawyer. But Walsh has a point about women throwing women under the bus, because that’s what she’s trying to do with women who defend against heinous accusations like rape. That’s the job, the way our system works, whether the lawyer is male or female. Is effective defense now “outrage-mongering techniques”?
No high-profile sexual-assault defense attorney has been as straightforward about this devil’s bargain as Donna Rotunno, who defended Harvey Weinstein. “I have the ability to get away with a lot more in a courtroom cross-examining a female than a male lawyer does,” she said in a pre-Weinstein Chicago Magazine interview. As women, attorneys like Rotunno and Becker are assumed to have more instinctive empathy for the accusers, giving their bad-faith, “Well, why didn’t you just leave?” attacks a veneer of objectivity. “He may be an excellent lawyer, but if he goes at that woman with the same venom that I do, he looks like a bully. If I do it, nobody even bats an eyelash. And it’s been very effective,” Rotunno said. During the Weinstein trial, she opined that her cross-examination would just look like two women talking.
And here Walsh has a point, although she gets it backwards. If a question is relevant, if a defense argument is viable, then not only should it be made, but it should be made by whoever is defending. And yet, the flipped sexism, combined with the conniving distortion of “acceptable” arguments that defy the facts and reality put a male defense lawyer in a position where his effectiveness is compromised.
But a man challenging a female accuser’s false testimony violates the “believe the woman” mantra that too many have embraced. Except sometimes the accuser is a liar, and that’s why we have trials. Then there’s the “blame the victim” mantra, similarly mindlessly adopted without any thought to the fact that there is no victim until the trial is over and the jury has reached its verdict. But when a male defense lawyer does a hard cross on a woman, there is a strong likelihood that it’s going to offend some jurors no matter how relevant and material his questions. Guys just can’t look like they’re being mean to female accusers, and it very likely inures to the defendant’s detriment to have a man challenging a woman.
So not only is Walsh sexist in assuming that women defense lawyers are only there for the optics, to put a skirt in the courtroom next to a rapist, but sexist in blaming these “soulless” women for doing the job that her brand of sexism prevents a male defense lawyer from doing.
And surely, Becker knows the consequences of such an effective defense because, well, who doesn’t? Witnesses are regularly retraumatized by victim-blaming during cross-examination. It is an essential part of recovery for survivors to understand that what happened to them is not their fault, and a harsh cross-examination can dismantle it all, perhaps most impactfully when it’s done by a woman whose real-world experience means she knows the difference between a “real” victim and a liar. Fear of retraumatization and a reasonable belief that their rapist will go free may be one reason so few women report their assaults at all. And, having prosecuted sexual-assault claims for ten years as Becker says she has, she must also be aware of the danger she puts other women in by helping a perpetrator walk free.
And so we come to the crux of Walsh’s complaint, that defendants accused of rape shouldn’t be defended, no less effectively defended which has largely become the domain of women lawyers since it’s no longer socially acceptable for a man to zealously represent such a presumptively guilty man. And to their enormous credit, these exceptionally talented and principled women defense attorneys have stepped into the breach to keep our adversary system functioning and provide even male defendants accused of rape their constitutional right to a zealous defense. These women lawyers are the soul of the Constitution, and I thank them for it.