OPED: The question of consent: This rape law could change things

Melinda Henneberger
Tribune News Service

Former Missouri Gov. Eric Greitens: "This was an entirely consensual relationship, and any allegation of violence or sexual assault is false. This was a months-long consenting relationship between two adults."

In this Aug. 2, 2016, photo, Eric Greitens poses with his wife, Sheena and his two sons Jacob and Joshua at a watch party at the Doubletree Hotel in Chesterfield, Mo., after he was declared the winner in the Republican Governor primaries. Greitens has acknowledged being “unfaithful” in his marriage but denies allegations that he blackmailed a woman to stay quiet, following a bombshell news report that overshadowed his annual address to the Legislature on Jan. 10, 2018. (J.B. Forbes/St. Louis Post-Dispatch via AP)

Benjamin Brafman, defense attorney for former big-deal Hollywood producer Harvey Weinstein: "The only rape victim that Mr. Weinstein is accused of raping is someone who he has had a 10-year consensual sexual relationship with."

Harvey Weinstein leaves the first precinct of the New York City Police Department after turning himself to authorities following allegations of sexual misconduct, Friday, May 25, 2018, in New York. Police say Harvey Weinstein has been arrested on rape, criminal sex act, sex abuse and sexual misconduct charges for encounters with two women. (AP Photo/Julio Cortez)

Former New York Attorney General Eric Schneiderman: "In the privacy of intimate relationships, I have engaged in role-playing and other consensual sexual activity. I have not assaulted anyone. I have never engaged in nonconsensual sex, which is a line I would not cross."

Former New York Attorney General Eric Schneiderman leaves his apartment building, Wednesday, May 9, 2018, in New York. Schneiderman resigned Monday, just hours after accounts of abuse by four women. (AP Photo/Mary Altaffer)

Have you noticed those accused of sex crimes talking about their culpability any differently post #MeToo? I haven't, though it's a major myth that men can't tell consent from its absence.

So has the treatment of victims changed in a way that's encouraging more of them to come forward? Jackson County Prosecutor Jean Peters Baker said recently she hasn't noticed any uptick. No wonder, since the way the woman who said Greitens coerced her sexually was treated by the governor's lawyers, in a brutal 9-hour deposition, is still the norm. But maybe not for much longer.

This combination photo shows, top row from left, film producer Harvey Weinstein, former Amazon Studios executive Roy Price, director James Toback, New Orleans chef John Besh; middle row from left, fashion photographer Terry Richardson, New Republic contributing editor Leon Wiseltier, former NBC News political commentator Mark Halperin, former Defy Media executive Andy Signore; and bottom row from left, filmmaker Brett Ratner, actor Kevin Spacey, actor Jeremy Piven and actor Dustin Hoffman.

Nancy Hogshead-Makar, the former Olympic swimmer and founder of Champion Women, says that in the recent case involving Larry Nassar's prolific abuse of gymnasts, she saw the defense tactic of sullying victims work against a defendant for the first time. "They're always liars, in it for the money," she said of the usual treatment. "But after the women spoke" — 156 of them — that defense backfired."

Victims are changing, too, she said, in a way that's making the standard "nuts and sluts" shaming tactic less potent: "I work with a lot of victims right now, and that being sexual is a mark against them is alien to them." One recently testified that she'd "wanted to have sex with this guy, but then he started beating me. If they don't buy into the narrative," that only pure victims are real victims, "it's a lot less effective."

While that's true, it's still 1978 in many courtrooms. "In the last 40 years, it hasn't changed" says Frank Jackson, a Dallas defense attorney (and original Kansas City Chief) who has been representing men accused of sexual assault all that time. "When there are no physical injuries, is there proof, or just her word? What is the woman getting out of it? If it's rape, we plea bargain, but most of the time, it's a consensual issue. I've got a case this very day where I've got text messages that she can't wait to see him again."

More:Missouri governor admits affair, denies blackmail

Now, though, California and Maryland have a law that could change everything — and that should become the national standard. In April, Maryland's General Assembly passed a bill that said accused predators who claim their victims consented to sex may be countered with testimony about prior attacks. Though 15 states have laws that earlier sex crimes may be cited under some circumstances, only California and now Maryland have laws that allow evidence of past behavior even without an earlier conviction.

More:Harvey Weinstein arrested on rape, criminal sex act charges

That's a game-changer because rape is a crime of compulsion, so perpetrators generally keep offending until convicted. Even now, only three out of every 100 sex offenders spend any time in jail. And while almost any one victim can be shredded on the witness stand, victims are a lot harder to discredit en masse.

The big difference between Bill Cosby's first trial, which ended in a mistrial, and his second, in April, is that at the later trial, the judge allowed five of Cosby's other accusers to bolster with their own stories Andrea Constand's account that he had drugged and sexually assaulted her. Only one other woman was allowed to testify at his first trial.

More:New York AG’s fall: From women’s defender to alleged abuser

This spring, every member of the Maryland Senate voted to allow prior evidence of sex crimes at trial, and the state's Republican governor, Larry Hogan, signed what he called this "common-sense policy" into law in May. It lets judges allow such testimony when a defendant admits to sex acts but claims the victim consented.

Before you rush to call this a rush to justice, there are built-in protections for defendants: Judges must hold pretrial hearings on whether there is "clear and convincing" evidence that other attacks occurred. Then they have to weigh whether the value of the evidence outweighs the possibility that it would unfairly influence jurors.

Baltimore State's Attorney Marilyn Mosby, who'd been pushing for the law for five years, said her motivation was one Nelson Bernard Clifford, who was tried for four sex attacks in three years and kept being acquitted by juries who knew nothing about the earlier cases. Again and again, they believed Clifford's insistence that everything that had happened was consensual. At his fifth trial, he was convicted and sentenced to 31 years.

"It's still too early" to see any change in conviction rates, says Susan Burke, a Washington, D.C.- and Baltimore-based attorney for victims. But the new law "will undercut the validity of consent defenses, and the real impact will be on juries."

Who will now be allowed to see lifelong patterns of behavior that should never have been hidden from them, and us, at such great cost.