The Soul of Women Rape Defenders

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.

12 thoughts on “The Soul of Women Rape Defenders

  1. Alex Sarmiento

    > defendants accused of rape shouldn’t be defended

    Don’t feminists like her have fathers, brothers, sons, husbands, and boyfriends? People that she might love, trust, know, and yet might fall prey to the anti-due process nonsense she promotes? Wouldn’t she want to defend them?

    Reply
  2. Jessa Nicholson Goetz

    Soulless gender traitor reporting for comment. (Doubly so now that I’ve dared to start raising a daughter whilst single-handedly setting women back half a century by doing my job.)

    I’m really pleased to see this discussion, and would add the following observations.

    The number of people (both men and women) in the criminal justice system (prosecutors and victim witness coordinators in particular) that ask me how I can, as a woman, defend sex crimes is deeply problematic for me. It used to really offend me. I’d get on a pedestal about how justice requires equal treatment, that defending the accused is not an endorsement of the alleged behavior, all the usual hits. Now, I’ve started to view these comments as much more indicative of a systemic problem that I’m unsure of how to fix. People, and women, in particular, seem hell bent on inextricably linking the capacity to be victimized to a person’s gender identity. I started law school 18 years ago. For 18 years, I have woken up every day and make a choice to pursue a legal career, to pursue litigation, and to pursue trying serious felony cases. Those are my conscious, deliberate choices, and those choices have contributed immensely to who I am. The reality that women are disproportionately victims of sexual violence is not lost on me. I am aware that my biology renders me more vulnerable to certain bodily attacks than my male colleagues. I had no choice in that statistical reality. More relevantly, I certainly haven’t spent any time whatsoever making deliberate decisions to perpetuate and accentuate that reality. This is because my biological capacity for being victimized simply isn’t a core identifying feature of who I am. When women suggest that I should or could feel more connected to this, a trait shared by roughly 50% of the population only due to the lottery of genetics, than I would to something I have chosen for nearly two decades is patently absurd. To suggest otherwise, to me, is to dismiss my humanity in favor of my “womanhood.” People may call that a lot of things, but I wouldn’t ever call it feminism. Personally, I call it a Dworkin-inspired fever dream in which we’re raising generations of girls and women to believe that they are hapless victims first, and people second. That no philosophy or principle (like those that I dearly hold in reference to criminal justice) can ever override my forced alliance with the capacity to be victimized. That to be a “good” woman with a soul, I must pledge an unwavering devotion to the “protection” of “my sisters” without consideration, reflection, or nuance. That because of my biology, I ought to be more empathetic, kinder, or less capable of a core requirement of my profession — cross examination. I reject these ideas as strongly as I reject the idea that any woman who survives a sexual assault must be defined by having done so. We are what we do. We are what we believe, and what we stand up for, and what we teach our children. We are not something that has happened to us, or our capacity to be harmed. It’s outdated, sexist garbage.

    Reply
      1. bmaz

        Yep, me too. And I making the rare decision to try to navigate the dreaded Captcha to say so. Ooh it was much easier this time! Also, kudos to Scott who wrote a much more even keeled post than I could have. I saw Walsh’s article yesterday and almost exploded. It is so demeaning to professional women, much less defense attorneys. I thought about telling her some of the undesirable clients I have had, arguable worse that her pet peeves. But she would not understand that either. Oh well, excellent comment, and cheers to you Jessa.

        Reply
      2. Chris Van Wagner

        I am honored to have done just that, try a case with Jessa. Jessa has certain insights that transcend stereotypes and frankly, amaze me constantly. Why, Jessa has even reduced my own misogynistic traits.

        Reply
  3. B. McLeod

    I can’t shake the feeling that one side or the other of this conversation offends “ABA core values,” but I’m going to have to await a determination on that from Refo Wom’n and the Horrible Ten.

    Reply
  4. Elpey P.

    The replies to her celebratory tweet are something to witness. Heartening, but also disturbing how it shows the level of insularity that thrives in haut monde journalism. Probably a late stage capitalism thing.

    Like racism, misogyny must evolve or die.

    Reply
  5. Jessa Nicholson Goetz

    I wish I were tech savvy enough to insert a gif of the the fist in the air at the end of BC, but alas, I’m not.

    Any time Scott wants a novella about this, I’m in. This subject maddens me.

    Reply

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