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"If He Really Stalked Her, Why Isn't She Crying?"

At a meeting in chambers with the judge and defense counsel, we discussed scheduling for the afternoon. The judge then looked at me and said words I'll never forget: "If he really stalked her, why isn't she crying?"
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Years ago I prosecuted the case of a teenage girl being stalked in her community. On the bus, on her way to and from school, a part of her day was spent making a plan to avoid him, not encourage him, yet not piss him off to where he might come after her with acts to match the lascivious sexual taunts he made daily. When most girls carried backpacks of books to and from school, she also carried the burden of thousands of years of victim blaming and its evil twin slut shaming.

I thought about her this morning as I watched the Melissa Harris Perry Show discussing -- as NerdLand often does -- rape culture. Victim blaming runs deep through the human psyche, expressed in ancient "cavemen" gender roles, the biblical serpent's seduction of Adam through Eve in Genesis, coursing the puritanical veins of American culture from a young girl in Steubenville to Michelle Knight, Amanda Berry and Gina de Jesus in Cleveland to service members fighting an Invisible War to this teenager shouldering the burden of being hounded by a creep. Even after her stalker went to jail on unrelated crimes, he continued to call and write to her from jail, sending pornographic drawings and telling her how he would like to "celebrate" her 18th birthday. Which brought us together at the San Francisco District Attorney's Office.

When I met her, this San Francisco teenager was strong, bright, talented and capable. She came in for after-school pre-trial meetings and understood that she would have to face her stalker in court at the preliminary hearing on stalking and related charges. On the first day of the preliminary hearing she testified, calm, clear and bright about what he had said and written and sent to her. After a partial cross-examination by the defense we broke for lunch. At a meeting in chambers with the judge and defense counsel, we discussed scheduling for the afternoon. The judge then looked at me and said words I'll never forget: "If he really stalked her, why isn't she crying?"

Well. "Your honor, I replied, "it's not her job to cry, it's my job to prove the facts, and she has made a case for harassment with the repeated unwanted behaviors." Oh sure he said but what would a jury think when the standard of proof is higher at than at prelim. Off I went to lunch, and mentioned the judge's words. "Why should I have to cry?" the survivor asked. Why indeed? She vented about that: why should she have to break down in front of him so he can have something to brag about; some connection to hold over her? Wow -- she was deeply mad. And she had every right to be. Her aunt was even madder. "She pulled her life together -- why does he get to rip it apart just for a show for this case?" The three of us agreed that it was not her job to "act like a victim" and cry; it was my job to prove the cold hard facts of the case and to educate the judge and a jury if necessary that real victims don't cry on demand, especially not to give the predator a sick thrill.

When we returned to court, she did not cry. He did not get the satisfaction of seeing her cry. This victim refused to be revictimized. And when at closing arguments I asked that the judge find probable cause for the stalking as well as for the uncharged felony of furnishing pornography to a minor (remember the "celebrate" her 18th birthday missive with pornographic drawings meant the stalker knew she was a minor). [As a side note that charge was recommended to me by a defense attorney whom I knew from another case -- sometimes it takes a village]. The predator was hopping mad -- no display of tears needed to prove that charge; no tearing her up on the stand at trial to get a necessary "victim"-like" reaction, just the two facts: he knew her age and he sent her porn.

The ancients gave us the cornerstones of democracy; unfortunately they also offered us the cornerstones of hard wiring sexism into our legal system. As Herodotus wrote: "It is the way of sensible people to have no concern for abducted women; it is quite obvious that the women would not have been abducted if they had not been compliant." Two thousand years later, the more things change, the more they stay the same. Victim blaming and slut shaming are part of our DNA -- from how we teach girls not to become victims rather than teach boys not to rape to how we judge - as my survivor's judge did -- that we will know someone has been victimized if she acts a certain way; if she dresses a certain way; if she speaks a certain way; if she allows herself to be revictimized; if she cries. All too many predators depend on our old ways of thinking in order to perpetuate their crimes -- so it is up to us to relieve society of that burden of victim blaming and hardwire a new more enlightened thinking into our communities, our culture, and our courts. Real victims DO cry -- but they don't have to cry on demand in order to get justice.

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