Jeffrey Epstein, R. Kelly and a Change in How Prosecutors Look at Sexual Assault

The arrests came in swift succession: In the span of a week, federal prosecutors swooped in and charged two prominent men who had seemingly avoided criminal accountability for claims of sexual assault that had swirled around them for years.

The separate cases against financier Jeffrey Epstein in Manhattan and singer R. Kelly in Brooklyn and Chicago, both announced earlier this month, suggested that #MeToo has not just shifted the culture. It has also begun to change attitudes within courts, some prosecutors’ offices and, crucially, among victims deciding whether to place their trust in the criminal justice system.

Victims are more comfortable coming forward; prosecutors say they are more confident that juries will believe them. Some detectives are being trained to be more patient and less skeptical of victims, officials say.

“What most people don’t understand is how slanted the criminal justice system has historically been against survivors of sexual assault,” said Kristen Gibbons Feden, a former prosecutor who helped win the conviction of Bill Cosby in 2018 — widely regarded as the first high-profile trial of the #MeToo era.

“The #MeToo movement has helped level the playing field,” Feden said.

Judges, too, have been put on notice: In New Jersey, a sharp backlash followed the news this year that a judge had spared a 16-year-old boy from being tried on rape charges as an adult because he “comes from a good family.” Just last week, New Jersey’s courts announced that the judge had resigned and that judges statewide would receive enhanced training “in the areas of sexual assault, domestic violence, implicit bias and diversity.”

Still, legal experts cautioned that high-profile cases such as those of Epstein and Kelly did not reflect across-the-board change in a criminal justice system with thousands of local prosecutors, police forces and courts and nearly 100 U.S. attorney’s offices.

“I think that it is something that we should notice and mark as progress, and yet be very careful about assuming this means that sexual violence survivors will now en masse see justice,” said Deborah Tuerkheimer, a law professor at Northwestern University who has studied sexual violence and formerly served as an assistant district attorney in Manhattan.

The prosecutions of both men followed journalistic exposés that drew wide attention to the accusations.

Before Epstein was charged in Manhattan this month, his case lay dormant for more than a decade, ever since he pleaded guilty to two state prostitution charges as part of a 2007 deal with the federal prosecutors in Miami that allowed him to avoid federal prosecution there.

Epstein was arrested on July 6 and charged with sex trafficking. Kelly, whose real name is Robert S. Kelly, was arrested less than a week later, facing child pornography charges in Chicago; in Brooklyn, he was accused of recruiting women and girls to engage in illegal sexual activity with him.

But the movement has had broader impact, playing out in police squad rooms, jury boxes and prosecutors’ offices around the country. Investigators are being taught, for example, how sexual trauma can affect memory. In interviewing victims, the police used to ask, “What happened next?” A victim’s ordeal, however, “is not necessarily recorded in an orderly way,” said Eric Rosenbaum, a Queens sex crime prosecutor.

Echoing their new training, the police are now more apt to say, “Tell me more,” said Ashleigh Andersen, a social worker in New York who is sometimes present when victims are interviewed.

Prosecutors also are seemingly more willing to pursue cases they might not have before.

Anne Milgram, a former New Jersey attorney general who earlier had prosecuted sex-trafficking crimes while working in the Justice Department, said cases with a single accuser and without a lot of corroboration or physical evidence have been considered tough to prove and sometimes not prosecuted.

“In the ‘he said-she said,’ the ‘he’ often won,” Milgram said.

“#MeToo has shifted that,” she added. “I think we’re seeing a willingness for people to push through on tough cases where they weren’t pursued initially.”

Current and former prosecutors and Justice Department officials said that authorities have also benefited from legal changes. In 2006, for example, Congress eliminated the statute of limitations in sex trafficking cases involving minors, opening the door to prosecutions like Epstein’s. He faces allegations of sex-trafficking of minors from 2002 to 2005.

“I think there has been a realization of how broad the trafficking statutes are and how much conduct they can reach,” said Taryn Merkl, a former chief of the civil rights division in the U.S. attorney’s office in Brooklyn.

The impact of #MeToo became an issue in the Cosby case.

Cosby was first tried in June 2017 on charges of drugging and sexually assaulting a woman, Andrea Constand, at his home outside Philadelphia. It ended in a mistrial after the jury said it was deadlocked. But that was just months before #MeToo took off in late 2017.

Cosby was retried the following April. During jury selection, the judge asked 120 prospective jurors about their awareness of the movement. All but one indicated they had heard of it.

At the retrial, the judge allowed into evidence the testimony of five women who, like Constand, said Cosby had given them an intoxicant and sexually assaulted them — allegations for which Cosby had not been charged. (Only one such additional witness had been allowed to take the stand at the first trial.) Cosby was convicted.

Thomas A. Mesereau Jr., the lawyer who represented Cosby at his second trial, said the judge’s decision to allow additional accusers to testify was “highly prejudicial.”

“It was a signal to me that he was not going to stand up to the #MeToo movement — in fact he was going to knuckle under its pressure,” Mesereau added.

Some victims who resolve to go forward find themselves confronting the same kind of skepticism that advocates had long complained about.

Andersen, the New York social worker who has accompanied victims to law enforcement interviews, recalled one case in which a woman initially told the authorities that she believed she had been drugged and raped by a man she met at a bar. But she had little memory of what happened, Andersen said.

Several months later, the woman’s recollection of the night started to return: She remembered saying “no,” and trying to push the man off her, Andersen said.

But Andersen, who was present as the woman described her new memories to a local prosecutor in Brooklyn, said the woman’s account was not well-received.

“They believed something had happened,” Andersen said. But the prosecutor explained it would be difficult to build a case that had begun with her being unconscious and then evolved into something different.

“They would not be allowed to move forward,” Andersen recalled the prosecutor saying.

Another woman, a 34-year-old Californian who said she was sexually assaulted in 2017 by a former boyfriend, said #MeToo had given her the confidence to come forward to police.

But she recalled the interview taking an unexpected turn when a detective accused her of lying about her account. She said she was left feeling that law enforcement only took such accusations seriously when they involved celebrities.

“For most normal people, we don’t have spotlights on our cases,” she said.

This article originally appeared in The New York Times.


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