Two on trial

Anna Quindlen

August 06, 1991|By Anna Quindlen

I'VE HAD a hundred arguments about the William Kennedy Smith case, about whether sometimes women say no when we really mean maybe, about whether we should have certain expectations when we agree to go certain places with certain people, about whether anybody really believes innocent until proven guilty anymore.

And ever since prosecutors released the depositions, of three women who say that Smith also attacked them -- two alleged attempts, one alleged rape, none reported to the police, all described in some detail -- I've even argued with myself.

Perhaps the prosecution is trying to deprive the defense of its star witness, the medical student who burst from the toothy, tousle-headed mass of Kennedy cousins when a woman in Palm Beach said he had raped her at the family estate.

Perhaps prosecutors are sending the message that they can refute any representations of pristine past history. They sent that message through the newspapers, with evidence that may be inadmissible and will likely pollute the jury pool. That makes me uneasy. The defense is supposed to represent a client. The prosecution is supposed to do more, to serve the system.

But there's another part of me, too, and it argues another way. It's the part that knows that a rape prosecution is different from all others. It's the part that knows the assumption of innocence for the defendant means the alleged victim is assumed to be guilty, at least of lying if not much more.

"I'm not on trial," said the woman who alleged she was sexually abused by a group of St. John's University jocks. But of course she was, and the jury found her wanting and so acquitted.

While defense lawyers in the Palm Beach case bemoaned prosecutorial revelations, they filed motions asking for the details of "any and all" abortions performed on the alleged victim and for information on her use of contraception. I have no doubt that if they had unearthed three previous false rape accusations on her part, the evidence would be here on my desk.

This being the 1990s, the defense has also introduced a poll: 41 percent of Palm Beach County residents believe Smith is guilty or probably guilty. I bet preconceived notions go both ways. I'd like to see some polling on how many people assume women routinely make false accusations of rape, on how many assume nice men from good families are unlikely to engage in sexual assault.

We are all of us swayed by appearance, as swayed as the young woman who may look forward to a blind date with a personable professional man and wind up on the floor of his apartment, the bruises beginning to purple.

Our hearts and minds are in the arguments about this case. It's funny how we put the two together, because so often they diverge. My mind is uneasy about the way attorneys on both sides have traded the symmetry of the courtroom for the imperfect venue of the front page.

But my heart is elsewhere. Rape is always a shadow, if you are female, in a way that is often inexplicable to your male friends; so is the knowledge that it is far easier to perpetrate than prosecute. We say that rape cases are one person's word against another's, but that is seldom true.

They are usually only the word of the alleged victim, because the prosecution bears the burden of proof. The defendant often sits silently next to his attorney, combed and suited, never taking the stand but sending a message nonetheless: Could a guy like me have done a thing like this? There is still a kind of superstition that the rapist is visually recognizable. I wish.

A rape case does not have one accused. It has two. The prosecutor becomes a kind of defense attorney for the alleged victim: She is the embodiment of the prosecution case, and defense attorneys have been known to attack dress, drinking, drug use, gynecological, psychological and sexual history to fashion an acquittal independent of the central issue, whether certain acts were performed without consent.

The prosecution strategy in Palm Beach is clear. Just as defense lawyers are fighting hard for their client, so the prosecutors are fighting for theirs, within the limits of the law. After all the arguments, I can't condemn that; I can't entirely put out of heart ++ or mind the possibility that someday I might need a prosecutor fighting on my side.

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