Is “No Discretion” The Next Move For Sexual Assault Accusations?

Decades ago, there was a push to eliminate all discretion by police in making domestic violence arrests. If a woman accused a man, the man was arrested, regardless of whether the evidence supported the accusation. The argument for it was that cops didn’t take domestic violence seriously. The joke was that it was because they were often its perpetrators, and it wasn’t a very funny joke. But the flip side became a tool that was abused, with women using it to exact revenge on men for ulterior reasons, to deflect their own culpability as the abuser to their victim, which was often the case though rarely said aloud.

Like most efforts to overcome one perceived problem, it created others. The notion was that the only way to overcome police failure to take domestic violence seriously was to remove their discretion. That meant the innocent men, or male victims, were burned in the process. It was a price activists were willing, if not happy, to pay.

Jane Manning was a former Queens sex crimes prosecutor who is now the director of an activist group, argues that police and prosecutors are failing “survivors.” They are. And they’re not. But one can’t tell from her weasel rhetoric, which she uses to push for elimination of discretion when arresting and prosecuting men accused of sex offenses.

A U.S. Department of Justice review, published by the Office of the Inspector General this July, found that F.B.I. agents delayed commencing an investigation, neglected to interview key witnesses and failed to notify state law enforcement officials. The F.B.I.’s inaction, the report noted, left Mr. Nassar free to continue working with girls and young women and thus to assault at least 70 athletes who might have been spared if federal agents had done their jobs.

Larry Nassar presented a massive failure on many levels, and the FBI and a great many others earned gymnast Aly Raisman’s condemnation, that their failure “was like serving innocent children up to a pedophile on a silver platter.” But that’s Nassar. Are we only talking about the Nassars? Manning makes a pseudo connection to the anecdote she really wants to tell.

I couldn’t watch their testimony live because, as the gymnasts testified, I was on the phone with an Arizona rape survivor, breaking the news to her that local prosecutors were refusing to file charges in her case, despite extensive corroborating evidence and a second victim reporting a similar assault by the same man. Prosecutors declined the case because they don’t believe my survivor will make a credible witness. Outrageously, they decided that she lacked credibility without ever speaking with her.

Did this actually happen or did she make up a story to pursue her cause? Was there really “extensive corroborating evidence,” because she doesn’t offer any hard fact to show it. And was there a rape, or was this another instance of consensual drunken sex, a regret accusation, a variation of what passes in the minds of activists and misled young women for rape that isn’t? Who knows? Manning artfully dodges all substance to present only her vague conclusions to prove how outrageous it was.

If it happened at all, if it was a legally cognizable rape, if there was corroborating evidence and if the prosecutors never spoke with her, did they conclude she lacked credibility because the cops caught her in a whopper of a lie and told the prosecutor that this accuser is a liar? That would ruin the story. Or maybe the story is true and it’s as outrageous as Manning would have us believe. But who knows? Who can tell? And yet, this is the launching pad for Manning’s polemic against discretion.

As an attorney and advocate with a nonprofit that works to help sexual assault survivors navigate the criminal justice process, I witness this failure again and again and again. The survivors I serve have reported sexual assaults to law enforcement in states all around the country, only to find that investigators routinely fail to conduct proper victim interviews, to retrieve probative video footage, to interview crucial witnesses, to investigate the perpetrator’s background to see if he has committed similar crimes, to preserve relevant digital or paper records or to conduct other basic investigative steps. The cases are then declined by prosecutors on the grounds that there is not enough evidence, though those prosecutors rarely demand that police investigators or prosecutors’ in-house investigators go back and do the missing work.

There are very real problems with the handling of rape cases, such as the thousands of rape kits in stranger rape cases that sit untested until they’re thrown away. There are very real problems with cops being dismissive or belligerent with rape accusers, as if they were invariably sweet to anyone else. But Manning’s claims, beyond being worthlessly generic, are based on such weasel words as “The survivors I serve…,” a distinct subset who, by definition, are the ones whose claims weren’t pursued, each of whom passionately believes they are a “survivor” whether they are, whether there is a case, whether a prosecutor, in the exercise of discretion, determines it is worthy of pursuit. Sometimes, the answer is “no,”* whether because they can’t dedicate the resources to making a case that can’t happen because there was never a crime to begin with or some other issue influences that allocation of scarce resources.

Some well-intentioned commentators have suggested that, given chronic police failures, survivors should give up on the criminal justice system and turn to therapy and restorative circles. This is not the answer. There are some crimes too serious, and some offenders too dangerous, for alternative justice. When the survivor wants or the crime demands a law enforcement response, it’s not too much to ask that it be a diligent and competent one. Sexual assault cases are not too inherently difficult to handle competently.

If the call was for prosecutors to handle cases competently, this would be largely uncontroversial. But it’s not. It’s the prelude to calling on the feds to do pattern and practice investigations to coerce police and prosecutors into pursuing a zero tolerance approach to avoid federal monitors and oversight. This was how discretion was lost in domestic violence cases. This is how the simplistic “zero tolerance” arose.

Manning was a sex crimes prosecutor in the Queens District Attorneys office. Did she slough off legit rape complaints? Did the other ADAs in her office do so? Did she see that in Manhattan, Brooklyn and The Bronx? And if she did her job competently, and her fellow ADAs did their job competently, exercising discretion as to what cases to pursue, where to allocate investigative resources, then why are other prosecutors failing so miserably to competently exercise discretion where she and her office did such a fine job? She also knows well that not all accusations are worth pursuing, which is why her claims are so vague and weaselly, and will do vast harm to innocent men who may beat the rap but not the ride. Not that she cares.

*A glaring giveaway is Manning’s use of RAINN’s nonsense stats to back up her claim:

The combined effect of police and prosecutor malfeasance is that, according to the Rape, Abuse & Incest National Network, in an estimated 975 in 1,000 sexual assaults in the United States, perpetrators go free.

This is flagrantly disingenuous on many levels, and it’s pathetic that the NYT wouldn’t edit such a glaringly false claim out of a published op-ed.

5 thoughts on “Is “No Discretion” The Next Move For Sexual Assault Accusations?

  1. B. McLeod

    Why isn’t she still in the Queens District Attorney’s Office? If she’s not doing the job, it is going to fall to those who are doing the job to do it as they deem appropriate.

    1. SHG Post author

      One of the curiosities that I’ve learned from prosecutors in NYC sex crimes units is that they go in full of the sort of passion that Manning shows and are quickly disabused of the simplistic notion that they will be the saviors of women’s sexual virtues. They soon learn that complainants are full of shit, ill-motivated, nuts, etc., just as there are real rapists and real rape victims, and even then, it turns out that some of those they believed were guilty were the innocent party. It’s hardly one or the other.

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