Trial and Travail

Trial.  It is always a wonderfully bad experience.  Sweet bitterness.  Beautiful torture.  Horrific….well, you get the idea.  Trial is one of those things like High School or Basic Training.  When you’re in it, you can’t wait for it to be over.  When it’s over, you love telling the stories and wouldn't mind being back there again.  I mean it wasn't really THAT bad was it?

A trial is the apex of our judicial process.  It is a modern take on the gladiatorial arena.  We indulge the almost mystical belief that when information is thrown in to the crucible of two adversarial attorneys testing every fact with the fire of passionate advocacy, the truth alone will sit glowing and refined in the ashes of all falsehood.  While there may be no final death blow, lives definitely hang in the balance.  It is not just the defendant, but the victim, the families of both and the friends who love them who will be forever impacted by what happens.

Trial can also be funny.  In jury selection I've had jurors discuss everything from breaking and entering in the Philippines  to having their hot air balloon stolen (in what must have been the sloooowest getaway ever).  In our last trial, counsel ceased being adversaries and became professional colleagues for long enough to swear in the former law clerk now lawyer who’s Bar exam results had just been released… and then resumed waiting for a verdict.  Misplaced exhibits, lawyers getting the flop sweats, technology never working like it did two minutes ago before the jury walked in; all of it adds to the drama that is a trial.

My co-counsel and I had one go our way last week.  It was a tough case, but in the end, the jury did the right thing and convicted.  A trial victory is always a great feeling.  It is perhaps even more so when you think the lawyering might have actually made a difference (likely a rarer occurrence than we lawyers like to think).  Even then it is hard to wax triumphant.  Justice has been served, the victim is safer, and the defendant is headed for a much deserved prison term, but the family is still a wreck, the crime still happened, and all are left to deal with the aftermath as best they can.

Thus are the vagaries of trial.  On to the next one, we go.  The crucible awaits.

Hannah and Montana

(aka Twerking and Shirking)

A judge in Montana sentenced 49 year old high school teacher Stacey Rambold for the rape of his 14 year old student.  You can read the entire story here.  Though sentencing the rapist to 15 years, the judge suspended all but 30 days, meaning that this man will do 30 days in jail for having sex with a 14 year old girl.  The judge explained that the teen girl was "older than her chronological age" and "as much in control of the situation" as the male teacher.

Last week at the VMA awards, Miley Cyrus shocked everyone with her hypersexualized performance.  The entire nation began clucking like chickens, wondering how this could happen to Hannah Montana.  

You might wonder how Miley Cyrus’ performance on a VMA stage could be related to a sentencing case in Montana.  I’m not sure they are, but bear with me.

The case in Montana may seem to be isolated to a remote jurisdiction.  It is not.  I recently had a statutory rape case in which the defense attorney (yeah, yeah…doing her job) repeatedly referred to the 12 year old victim as a “mature minor”.  Even in his apology/explanation, Montana judge G. Todd Baugh reiterated that the victim really was “older than her age” when it came to sexual matters. 

How did we get here?  How is it that the hyper-sexualization of a child has moved from disaster to defense?

The answer in part is culture.  Using the terms loosely, life often imitates art.  Our children are bombarded with programming like the VMA awards.  It’s not just MTV, though they aim products like “16 and Pregnant” and “Teen Mom” squarely at our young people.  Statutory Rape is now commercial rather than criminal.  Lifetime has a series featuring a single mom who turns to escorting (read prostitution), Victoria’s Secret and Viagra advertise during primetime.  We adults then sit casually back and wonder how our fourteen year olds became so sexually mature.  How did they learn to talk like that?  Where did they learn THAT?  I also wonder if the presentation of children in this way doesn’t embolden perverts like Mr. Rambold by allowing them to feel that their desires just really aren’t that out of line.

Against that backdrop, is it any wonder that our young people fall victim to predators telling them that sexual behavior is “normal” for kids their age.  “What is age anyway?” they say, knowing it to be the siren song of every teen convinced of their own maturity.  Make no mistake, the Stacey Rambold’s are out there in our communities.

Statutory rape laws are there for a reason.  There are a lot of “adult” activities that children could do, but aren’t allowed because they don’t yet possess the cognitive or social ability to deal with the consequences.  They can’t drive.  They can’t vote.  They can’t drink alcohol.  They aren’t supposed to see R rated movies alone.  They also can’t consent to sex.  Not because they aren’t equipped, but because they can’t yet process the import of that decision. 

Mr. Rambold’s victim couldn’t.  This “mature minor” tragically chose to take her own life before the case came to trial.

Our job as adults should be more than picking up the pieces.  As adult consumers, we should expect more of the adult producers, agents, actors and marketers when it comes to our young people.  Culture has consequences.  Miley Cyrus (Hannah) isn’t responsible for what happened in Montana…but the culture that gave us primetime twerking might also have contributed to judicial shirking.