It took four years and two rape trials to send Yee Xiong’s attacker to jail. And to get there, Xiong says she felt continuously attacked by the defense attorney.
Xiong said she woke after a night of drinking to fellow University of California-Davis student Lang Her raping her while she was passed out on July 9th, 2012, in his apartment. Her was sentenced last week to one year in jail, five years on probation and has to register as a sex offender. He pled no contest to a felony assault charge after two mistrials ― juries couldn’t reach a unanimous verdict.
Yet during the criminal trials, Xiong was asked “every imaginable question” that seemed to put blame on her, she noted in a six-page statement she read at the sentencing hearing in Yolo Superior Court.
“’Why were you there in the first place? How much did you have to drink? What were you wearing? Why didn’t you call the cops? Why didn’t you do anything right?’ Well, I did everything I believed was and is right,” she said in the statement, before saying that Her’s lawyer, Christopher Carlos, deserves “many years in hell with Lang; you two are perfect together.”
“God forbid anything should happen to your wife or your daughters, but I wouldn’t be surprised if you were the first one to sign up to protect your wife or your daughter’s rapist,” Xiong said about Carlos.
““I felt like he didn’t have any respect for me at all."”
“I felt like he didn’t have any respect for me at all,” Xiong told The Huffington Post. “He did anything and said anything he could to make me feel angry on the stand make, to make me feel frustrated on the stand.”
Xiong’s experience is not unlike what other women, including the victim in the Vanderbilt University gang-rape case and the woman assaulted on Stanford University’s campus by Brock Turner, say they experienced during criminal trials. In each of their victim impact statements, the three women all spoke about how they felt blamed and had their character dragged through the mud during the criminal trials.
But law professors, legal advocates for rape victims and defense attorneys agree ― these sorts of questions are part of the unfortunate and emotionally difficult reality of what it’s like for a sexual assault survivor to go through the criminal justice system.
“Let’s not mince words, the job of the defense lawyer when a witness’s word is the bulk of the prosecution, the defense’s job is to undermine that witness,” said Abbe L. Smith, director of the Criminal Defense and Prisoner Advocacy Clinic at Georgetown University.
“I would argue that better a vulnerable victim should withstand a withering cross-examination than an innocent person be convicted."”
Smith, a self-described feminist who has represented accused rapists, concedes sometimes in a courtroom the person she has the most in common with is the woman she’s about to cross-examine and accuse of lying or being mistaken about a sexual assault claim. But Smith argues prosecutors should do a better job preparing the victims to face questions in court that they may feel as blaming them for their own assault.
“I would argue that better a vulnerable victim should withstand a withering cross-examination than an innocent person be convicted,” Smith said.
Lynn Hecht Schafran, senior vice president at Legal Momentum, which advocates for abuse victims, said a rape crisis agency once contacted her about something they were writing that would’ve said it’d be good if rape victims did not have to testify at trial.
“I told them that is not the U.S. system,” Schafran said. “They would be misleading the people they’re advocating for, and have no credibility with the folks of the legal community.”
The U.S. judicial system is an adversarial one, experts interviewed repeatedly said, and one that obligates a defense attorney to zealously defend their client.
“Our obligation is to the defendant ― we’re not there as neutral, we’re there to advocate for our client,” said Jill Paperno, a public defender in Rochester, New York.
It may be offensive for a counselor or a college dean to ask a woman how much she drank before she was assaulted, but when a criminal case rests on a woman being too intoxicated to consent, then a defense lawyer must ask that kind of question, said Steven Zeidman, a professor at CUNY School of Law.
“It can be absolutely unpleasant,” said Zeidman, who spent 25 years working in criminal defense. “The rape shield laws were designed for exactly this purpose.”
In the 1980s, every state adopted some form of a rape shield law that prevents attorneys from asking about an alleged assault victim’s past sexual behavior, number of partners or other irrelevant details. So there are legal restrictions on what a defense attorney can ask of an alleged rape victim, but there’s also incentive to simply avoid being a jerk, Zeidman said.
“If you’re not sensitive to the witness ― forget about as a lawyer, but as a human being ― it’s going to blow up in front of the jury,” he said.
Smith similarly cautioned against a “purely sexist” defense theory: “Women are allowed to go out and party and not be raped, there’s no question about that, but that’s not how I would be trying the case.”
In the Turner case, defense attorney Michael Armstrong asked the victim if she drank a quantity of vodka in a red cup all at once ― “Like, chugged it,” he said, and then “that was a decision you made; right?” The woman replied, “yes” to those questions. Armstrong asked if she’d had blackouts before and whether she did a lot of partying in college. The prosecutors did not object to these questions.
“After a physical assault, I was assaulted with questions designed to attack me, to say see, her facts don’t line up, she’s out of her mind, she’s practically an alcoholic, she probably wanted to hook up,” Turner’s victim said in her statement, which was read at the sentencing hearing.
Turner apologized for this line of questioning in a statement to his probation officer, saying, “I didn’t want to victimize her at all. That just was just my attorney and his way of approaching the case.”
But it isn’t just his attorney: This approach has frequently been deployed in high-profile campus rape cases.
In Tennessee, former Vanderbilt football players Corey Batey and Brandon Vandenburg were found guilty this year in connection with a gang rape of an unconscious woman in a Vandenburg’s residence hall, while the two others accused in the crime, Brandon E. Banks and Jaborian “Tip” McKenzie have pled not guilty and await trial.
During Batey and Vandenburg’s trials, defense lawyers painted the victim as culpable in her assault on the night of the attack with one attorney telling jurors, “She drank quite a lot of alcohol.”
The defense perspective seemed unconcerned by the evidence introduced by prosecutors that revealed to the jury photos and video taken using the men’s cell phones showing the assault of her unconscious body, and surveillance footage that showed them laughing in the hallway as they carried her limp body. During the trial, she cried frequently and at one point appeared to vomit, according to the Tennessean.
The Vanderbilt woman, who remains anonymous, released her victim impact statement in full that she read in court prior to Batey’s sentencing this month.
“It is also hard for me to push aside all of the attempts by the defendant to misrepresent himself and disparage my character, because I could stand here for hours talking about the impact of all the lies I’ve had to sit in this courtroom and listen to,” she said. “I remember each and every one of them, and every time it hurt me.”
“The burden is on the victim in these cases. There is no way around it.””
Advocates, like Schafran of Legal Momentum, concede that sexual assault victims often face an uphill battle in criminal trials.
“Basically what this always comes down to is while in theory the defendant is on trial, in a case where the prosecutor has to ‘prove’ the victim did not consent, the burden is on the victim in these cases,” said Schafran, of Legal Momentum. “There is no way around it.”
Despite these challenges, Xiong feels some relief that, at the very least, her attacker and others are held accountable.
“Even though it is difficult, there are people who have been through it and have found justice even,” Xiong said. “If it’s not all the justice they want, it’s some justice.”
Read Yee Xiong’s victim impact statement in full below: