The Trials of Convicting Rapists

By MARGARET CARLSON Linda Fairstein

Q. In acquaintance rape, there is an impression that a woman had better have led a sterling life or else she will suffer when the case comes to trial. For instance, a woman goes to a party, meets someone and goes to his house afterward. They have a drink. If the situation turns ugly and she is raped, she should be above reproach and have some broken bones, especially if her assailant is some clean-cut college guy.

A. Sadly, many people believe there are people who, because of their social class, appearance, whatever, can't commit these kinds of crimes. That's ridiculous, since rapists come in every size, shape and background. Part of what we do is shatter these preconceived notions. For example, acquaintances where there hasn't been a sexual relationship before the event is not a difficult case to try. Legislative changes and specialized police and prosecutorial units like ours have made it a lot easier.

Q. No one in her right mind would consent to group rape, to sodomy, to being force-fed alcohol to the point of stupefaction. Yet defense attorneys have successfully argued consent in outrageous circumstances, especially if the victim slips up on a detail -- saying it was vodka, for example, when the defense proves it was gin.

A. If a jury finds enough inconsistencies in a story, they may reject the story. And if some acts are consensual and others aren't, you have to separate these for a jury. We've had a lot of experience where victims have used alcohol leading up to what becomes a sexual assault. A prosecutor should be able to present a picture that says yes, she did x, y and z, and that's what made her more vulnerable, that's what made her less able to repel an attacker. You have to get the jury to see that you may not want to take this woman home to dinner because she was doing cocaine all night or shooting heroin and then drinking beer chasers, but that doesn't mean she asked for it.

Q. If her story isn't coherent, that's a problem. But if her story is too coherent, that's a problem too. How can she remember something so traumatic so clearly?

A. I've heard that kind of excuse too, that she was not upset enough. There are some survivors who relive each part of the episode like a single camera frame and others who repress it. But each telling is different. With a serial rapist, for example, you know exactly what he says when he approaches each woman, what the language is, what the sexual acts are, how long it took. And yet it's fascinating to see five women at trial testify about a very similar event very differently, depending on each woman's emotional strength, at what point this happened in her life, how she's recovered.

Q. The rape victim is often the only witness. Isn't that a problem, especially if she kept her eyes shut the whole time?

A. Many crimes have only one witness. Most muggings are one witness against the person he identifies in a lineup three months later. A mugging, it's 90 seconds -- don't scream, don't look at my face, give me your money -- often from behind. A sex offense rarely lasts less than 15 to 20 minutes, and if the assailant has the victim in her apartment, on a rooftop, it can last an hour. So the information is there through every one of her senses, unlike other kinds of crime. No one forgets really. It's getting her to trust what you're doing, knowing that remembering can convict her assailant. And the conviction rate is very high. I take pleasure in being able to tell people about that high conviction rate because that's not what made-for-TV movies present.

Q. Your most famous case involved Robert Chambers, who was tried and convicted in 1988 for the murder of Jennifer Levin in Central Park. The episode quickly became known as the preppie murder case, attracting headlines around the world, producing a book and a movie. While the jury was out, you accepted a plea of manslaughter. Weren't you disappointed?

A. The trial lasted 11 weeks. The jury worked on the case for nine days, the longest deliberation of a single-defendant case in New York County history. We took the plea realizing there was not going to be a verdict. Of course I was disappointed.

Q. Jennifer Levin's parents were in the courtroom every day of the trial, being reminded that their daughter died a horrible death. Why do families put themselves through that?

A. It's part of the healing process, although no one ever heals from a loss like that. Since then, the Levins have thrown themselves into victims work and are active in Parents of Murdered Children. I remain very close to the family. They entrusted me with their daughter's memory. It's the survivors who give the work its purpose. I'm godmother to Jennifer's sister's child.

Q. What do you think about the recent naming of a rape victim by newspapers and a network without her permission?

A. I think it's very courageous for a survivor to let her name and face be attached to this crime, and doing so makes it easier for other survivors. But it's still too difficult for a lot of survivors, still too much of a stigma attached, especially in acquaintance rapes, where they are so often blamed unfairly for participating in what happened.

Q. Are women jurors harder on women than men are?

A. I've had women who are intelligent and have a lot of common sense who make terrific jurors, but too often women tend to be very critical of the conduct of other women, and they are often not good jurors in acquaintance-rape cases.

Q. Do you deal with male-on-male rape?

A. Yes, it's a serious problem. But again, it's underreported because so many people stigmatize the victims.

Q. Do you have regrets about anyone who got away?

A. I had an acquittal in a case with a 13-year-old victim who was destroyed on cross-examination. The defendant was acquitted and then went out and raped and killed a woman in the same elevator in the same building about three weeks later. It was terribly painful. I knew the weight of that case was in my hands, and it was predictable to the detectives and all of us who worked on the case that this was the right guy -- whether or not the victim could articulate the reasons why -- and that he was a very, very dangerous man. I've taken plea bargains from defendants, settling for eight-year sentences rather than lose the cases altogether. Then the guy does his eight years and gets out and attacks somebody else. And you think to yourself, maybe if I had got 20 years . . .

Q. Rape is not sex, it's violence. Doesn't spending the better part of your professional life seeing sex mixed up with violence affect your attitude?

A. The professional has a very dark side, but I'm blessed with a life outside this job that's very bright, a wonderful marriage, a great family and great friends.

Q. When you leave the courthouse at night, do you look around every corner? Do you expect someone to jump out of the bushes?

A. You can't get paranoid, but this business has given me a healthier awareness. I tend to protect myself a little better. Not every corner, but I'm fairly cautious.

Q. After seeing thousands of rape cases, what would you tell a woman to do -- talk back, be quiet, knee him in the groin?

A. It depends. Screaming, if you're in the lower tunnel in the bowels of Grand Central station and there's nobody around to hear you, does nothing more than aggravate the offender, and he uses more force. I've had women who have seen someone close enough -- perhaps within earshot -- and a scream and a kick in the groin worked to send the offender packing. I've never had self-defense training, but I've heard from many women that it gives them confidence about confronting the situation. Some have successfully talked people down from rape.

Q. Has sex in movies and TV programs, in sitcoms where teenage boys get laughs for seducing teenage girls, increased the number of rape incidents?

A. I haven't seen rapes that have occurred because of someone seeing a movie or TV show, but I certainly think the attitude that pervades those images takes its toll on some men's thinking.

Q. A pamphlet on date rape published by Swarthmore College says acquaintance rape "spans the spectrum of incidents and behavior ranging from crime legally defined as rape to verbal harassment and inappropriate innuendo." Isn't that going too far?

A. Terrible. It minimizes the traumatic nature of a forced act of intercourse by equating it to something that may upset the person, but it's not nearly on the level with acquaintance rape. I've been on campuses lecturing when people called kisses that are forced on you rape, but it is not, and it does a terrible disservice to rape survivors.

Q. Do you have more women in the sex-crimes unit? Do you find that women dealing with women is better?

A. We've had a very good mix traditionally over the years, but at the moment we have 14 women and two men. There are a lot of women now in the D.A.'s office. When I first came, there were only six women out of 200 in the D.A.'s office.

Q. Have you ever thought about private practice? You could be sitting in some mahogany-paneled office, Oriental rugs on the floor, a silver tea service instead of warm diet Coke from the vending machine and leftover plastic cups half-filled with day-old Slim-Fast.

A. If I ever get up and don't want to come to work, maybe. But that's never happened in 19 years. And I'm lucky to have a very generous husband. The office has come such a long way. In 1972 there were 18 convictions in sexual- assault cases in New York City's five counties, and now, I think, the five counties combined have several hundred successful convictions every year. Women can recover from rape, from the hopelessness and from the feeling that the guy will never be punished. Recovery is helped immensely by a conviction.