Shayla Swift is an educator, a social justice historian, and an advocate for victims of sexual violence. She is also the Executive Director of Speak Truth to Sexual Violence. When she is not fighting hard for social change (always) she might be found in a dojo actually fighting, er, training several martial arts practices and overusing the word “rad.”
Last month, the Associated Press broke a story about child sexual assault cases in the military, and the staggering number of plea agreements the Judge Advocate General makes in lieu of going to trial. What’s more, the general public can only find out about such cases after an arduous freedom of information search process.
The story was profoundly disturbing, raising all sorts of red flags. It seemed to be yet another case of military’s shady handling of sexual violence, even against children. It was a moment that called for something more than the vagaries.
What is really going on beyond the surface?
The military has a less than stellar record when it comes to investigating and prosecuting sexual assaults, including sexual violence against children. It’s worth mentioning that many people, both within and closely related to the system, are working hard to change this. However, such changes have not yet come to fruitition.
With so few perpetrators facing real time, one wonders what exactly is going on. And is it unique to the military?
The answer is No.
Such wheeling-and-dealing are actually more prevalent in civilian courts. The case of Subway pitchman Jared Fogle is the exception that proves the rule.
Fogle initially achieved fame when he dropped as massive amount of weight by supposedly dieting on Subway sandwiches. Now the longtime corporate pitchman is the latest high profile pedophile.
When it was time for Fogle’s sentencing early Thanksgiving week, the judge felt what many of us do when faced with perpetrators of sexual violence against children: antipathy and disgust. Furthermore, this particular judge has a reputation as being tough on crime, and when Fogle’s plea came before her bench, she did a rather remarkable thing: she sentenced him beyond the plea deal that had been struck.
Before handing down a 15 year sentence, she proclaimed that his crimes were appalling and it was her duty to ensure he served an adequate sentence for them.
Fogle’s original deal was for between five and twelve years. Prosecutors had settled with him for twelve until the judge intervened. She gave him fifteen years and eight months.
Why do perpetrators in both civilian and military courts so often strike plea deals that lessen their sentences even when the nature of these crimes rips at everything in us? How are these deals more the rule than the Fogle- exception in both civilian and military courts when it comes to child sexual assault cases? The answer is complex and ugly.
Part of it is the role plea agreements play in today’s legal system. Ninety percent of criminal court cases now end in a plea. Indeed, in legal circles there is some concern that if more judges follow the lead of the Fogel case, and set aside plead deals for tougher sentences, it would actually undermine the legal system. The system simply isn’t equipped to have even a sizable minority of cases actually go to trial. And so the vast majority of child rapists rarely go to trial.
But there are also other important factors that preclude most perpetrators of child sexual assault from going to trial.
To begin with, no one really wants to take these cases. They come with all of the same baggage that accompanies adult sexual assault cases. The victim’s credibility will be called into question because no one wants to believe sexual assault is even a thing. But there are other problems.
Emotionally, terribly difficult for the victim to re-live the assault(s) if they are ruled able to testify.
There is often little physical evidence, so it is the child’s word against the adult’s.
Frequently the abuse is within families and there is pressure on the justice system not to “breakup” the family, so there is more abuse happening but of an emotional variety . Of course this kind of pressure, is also a crime, especially when it is brought to bear as a means to keep one from testifying. And if records of such intimidation are kept, they can be used to bring other charges as well as to help keep children from having to take the stand.
But even under the best of circumstances, these cases can be difficult to win. And if they are lost, the abuser goes free, which means they typically have access to the victim again. They are not just back on the street, but back in the home or the school or the church.
Thus, plea deals are often seen as a way to make certain the perpetrator is taken away from the victim. Guilt is at least established, and the victim is spared the burden of facing their abuser in court.
However, the substantial drawback is that time served is often light.
Even worse, after a guilty verdict, a judge can paint a victim as being “mature” for her or his age and “asking for it.” The judge might conclude the jury has been too hasty, and release the criminal after sentencing him to time already served.
In such cases it is not uncommon for the victims to commit suicide.
And every time prosecutors take on a child sexual violence case, they must confront the realities of a rape culture in which newspapers report Fogle’s crimes as “sex with a minor” rather than rape.
Legally, a minor cannot consent to sex. Sex with a minor is always legally defined as rape.
But culturally we are not comfortable with that word unless very specific circumstances are met. This must change. Such misuse of language is not just horrifying, but also dangerous.
Because when we refuse to call those crimes what they are, we normalize the sexual assault and violation of children. By engaging in the pervasive misuse of language or failing to treat crimes with the gravity they deserve, we convince more people the system will never change, and that it will never help them.
But rape culture can change; we can change it. And as we do change it , these plea deals will become a thing of the past and the punishments will become more appropriate.
For now though, at least the majority of reported child sexual assault cases are being adjudicated and a large percentage of perpetrators are serving some sort of sentence. All of that is more than might be said of other forms of sexual violence, but there is hope there too.
All things change.