Monday, November 07, 2011
I am not a political junkie. In fact I get pretty sick of the news coverage of electoral politics which treat the candidates like athletic figures and the election like a sporting event, complete with partial scores, expert handicapping, and celebrity worshippers. But these last few days the saga of Herman Cain has caught my attention and reminds me of my old job.
Cain, whose campaign at first seemed to be more Don Quixote than Ronald Reagan, was surging in the polls, and apparently gaining momentum as an outsider with fresh ideas. ("Fresh" should not be confused with "smart", "effective" or "savvy.") Frankly, I have not spent a lot of time watching the battle for the Republican nomination as I am not a registered Republican and therefore not eligible to vote in their primary. (I am not a Democrat either but of course there is no contest for the Democratic presidential nomination.) But I do read the news every day and it has been filled with allegations coming out daily about Cain’s sexual improprieties. A fourth woman leveled allegations today.
The candidate has not been entirely consistent in his responses, first denying any knowledge of the accusations, then admitting that his organization did pay off one of his accusers. He has denied everything else. Now he is simply stonewalling questions, a strategy others have employed and rarely to good effect. His silence is deafening.
As more women come forward I can’t help but be reminded of the prosecution of sex offenders. Powerful evidence in those cases is the admission of other acts, commonly known as 404(b) based upon the rule of evidence allowing admissibility. Trial judges by and large dislike 404(b) evidence, generally feeling it unfairly allows the prosecution to convict a man (and the defendants in virtually all of these adults sex assaults are men, notwithstanding Kari Quevli’s prosecution of a woman for raping an unwilling man by giving him some over-the-counter Viagra substitute) based upon his commission of other crimes, a significant violation of a defendant’s rights.
Appellate courts, on the other hand often see the bigger picture. I remember a Colorado case from several years ago where the Court of Appeals, I believe through Judge Steve Bernard, a former Adams County Assistant District Attorney, upheld the use of prior sexual assaults as proof. The opinion, completely based on common sense, held that when the same thing happens over and over, the likelihood of it being a mere coincidence is diminished. Or as Bernard wrote, “A man who wins the lottery once is congratulated; a man who wins twice is investigated.”
Where multiple women come forward and level the same allegations against a man, the odds go up that they are telling the truth. Might four women lie about Herman Cain? Sure. Obviously, the kind of publicity and potential financial benefit for lying about a wealthy presidential candidate are much greater than for lying about some poor college student, but that does not mean these women’s stories should be dismissed out of hand. If we had a rape case with four 404(b) victims we would feel it was a very strong case. Men who mistreat women, especially those who engage in inappropriate sexual behavior, do so repeatedly because they don’t see that behavior as wrong.
When I was prosecuting a rape case where the defendant had forced himself on his ex-girlfriend in front of her three-year-old child, I was struck by how the defendant acted outside the courtroom with his current girlfriend. His treatment of her as an object was apparent, reflecting his attitude about his view of a woman’s place in his life. The jury never saw this and ultimately the defendant was acquitted. But I have never harbored any doubt of his guilt.
Maybe Cain is the victim of a bunch of lying publicity seekers. Maybe. After all, it was not too long ago that a Democratic candidate for president was accused of sexual misconduct. He got elected. He got impeached. Now his is the most highly-sought after speaker in the world. So who knows?
Cain, whose campaign at first seemed to be more Don Quixote than Ronald Reagan, was surging in the polls, and apparently gaining momentum as an outsider with fresh ideas. ("Fresh" should not be confused with "smart", "effective" or "savvy.") Frankly, I have not spent a lot of time watching the battle for the Republican nomination as I am not a registered Republican and therefore not eligible to vote in their primary. (I am not a Democrat either but of course there is no contest for the Democratic presidential nomination.) But I do read the news every day and it has been filled with allegations coming out daily about Cain’s sexual improprieties. A fourth woman leveled allegations today.
The candidate has not been entirely consistent in his responses, first denying any knowledge of the accusations, then admitting that his organization did pay off one of his accusers. He has denied everything else. Now he is simply stonewalling questions, a strategy others have employed and rarely to good effect. His silence is deafening.
As more women come forward I can’t help but be reminded of the prosecution of sex offenders. Powerful evidence in those cases is the admission of other acts, commonly known as 404(b) based upon the rule of evidence allowing admissibility. Trial judges by and large dislike 404(b) evidence, generally feeling it unfairly allows the prosecution to convict a man (and the defendants in virtually all of these adults sex assaults are men, notwithstanding Kari Quevli’s prosecution of a woman for raping an unwilling man by giving him some over-the-counter Viagra substitute) based upon his commission of other crimes, a significant violation of a defendant’s rights.
Appellate courts, on the other hand often see the bigger picture. I remember a Colorado case from several years ago where the Court of Appeals, I believe through Judge Steve Bernard, a former Adams County Assistant District Attorney, upheld the use of prior sexual assaults as proof. The opinion, completely based on common sense, held that when the same thing happens over and over, the likelihood of it being a mere coincidence is diminished. Or as Bernard wrote, “A man who wins the lottery once is congratulated; a man who wins twice is investigated.”
Where multiple women come forward and level the same allegations against a man, the odds go up that they are telling the truth. Might four women lie about Herman Cain? Sure. Obviously, the kind of publicity and potential financial benefit for lying about a wealthy presidential candidate are much greater than for lying about some poor college student, but that does not mean these women’s stories should be dismissed out of hand. If we had a rape case with four 404(b) victims we would feel it was a very strong case. Men who mistreat women, especially those who engage in inappropriate sexual behavior, do so repeatedly because they don’t see that behavior as wrong.
When I was prosecuting a rape case where the defendant had forced himself on his ex-girlfriend in front of her three-year-old child, I was struck by how the defendant acted outside the courtroom with his current girlfriend. His treatment of her as an object was apparent, reflecting his attitude about his view of a woman’s place in his life. The jury never saw this and ultimately the defendant was acquitted. But I have never harbored any doubt of his guilt.
Maybe Cain is the victim of a bunch of lying publicity seekers. Maybe. After all, it was not too long ago that a Democratic candidate for president was accused of sexual misconduct. He got elected. He got impeached. Now his is the most highly-sought after speaker in the world. So who knows?
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