AEquitas Attorney Advisor Jonathan Kurland discusses Counterman v. Colorado and the implications for cases. In particular, he addresses the potential impact for stalking cases.
In the case, Counterman v. Colorado, the Court appeared willing to increase the threshold for identifying speech that rises to the level of a “true threat” and overturn a criminal stalking conviction as an infringement of the harasser’s constitutionally-protected First Amendment right to speech. Victim’s rights advocates and the state of Colorado warned that modifying the standard would have devastating consequences for victims of abuse and handicap prosecutors who would need to prove that an abuser intended to threaten the victim, rather than that a reasonable person would find the speech threatening.
Victims’ and women’s rights advocates—including Legal Momentum, the Feminist Majority Foundation, the National Crime Victim Law Institute and AEquitas—argued in an amicus brief that considering the speaker’s subjective intent would jeopardize future stalking prosecutions, as well as civil protection orders, and create another hurdle to prosecution in such cases, which are already underreported and lead to arrests in less than 8 percent of cases.
In this podcast episode, Kathryn Kosmides of Garbo talks with AEquitas CEO Jennifer Gentile Long about the prosecution of gender based violence and how AEquitas supports prosecutors in their efforts to achieve justice and safety for victims and their communities, by providing them with victim-centered and trauma-informed expert strategies.
“There is a level of disregard,” she [Jennifer Long] says. “But then there is also a level of someone who is so violent, so hateful, that committing the act in front of the children is part of the crime — it’s part of the injury they are trying to cause.”
In the case of stealthing, perpetrators rob victims of their consent. This is why advocates against sexual violence are pushing to make nonconsensual condom removal illegal—and California just officially became the first state in the country to codify the offense.
[Jennifer] Long says it’s important to remember that the only person at fault is the perpetrator. No one has a right or reason to assault anyone. “The things that we do that make us vulnerable do not make us at fault,” Long says.
The trend of men ejaculating onto women has become a hot topic in Korea, where advocates want to see it defined as a sex crime. But these sort of attacks may also be dramatically underreported in the U.S.
“With sexual assaults, [experts] often say the person to whom a victim first reports can have an impact on whether the victim proceeds with the process. So, if you can imagine telling a friend or family member or loved ones about a semen attack, only for it to be minimized as, ‘Thank God you weren’t raped.’ Or it might be law enforcement saying ‘Well, what do you want us to do? Our laws don’t cover that,’” [Jennifer] Long says.
Jennifer Long, a former Philadelphia prosecutor, co-founded a training organization called AEquitas in 2009 to help prosecutors tackle sexual assault cases. She thinks her peers focus too much on conviction rates.
“I don’t mean to minimize convictions. Obviously, we want to hold offenders responsible. But we want to identify what skills and knowledge we need to be able to do that,” Long said.
Too often, she said, prosecutors underestimate the strength of their cases and the ability of juries to sort through them.
AEquitas shows them how to overcome potential hurdles, such as using a toxicologist to discuss a victim’s impairment or a psychiatrist to explain victim and offender behavior.
This one decision could upend her life, starting her on a path that might expose her worst or most terrifying moments to the world, and force her to relive them day after day. “It’s a very daunting and a very personal decision,” says Jane Anderson, a former sex-crimes prosecutor who now works for AEquitas, a group that advises prosecutors on sexual-assault cases. And by law, the odds are against her: “The system isn’t designed to support victims. The system is designed to provide defendants with their constitutional rights.”
Jennifer Long, CEO and founder of AEquitas, a non-profit which aims to improve justice in sexual violence, says with an incident that begins with consensual sexual activity but then becomes non-consensual, like stealthing, justice can become somewhat of an uphill battle for survivors.
‘Sometimes people will say, well, it’s not as harmful to a victim, because they’ve already consented to something. That’s a problematic value judgment because survivors have individual experiences and we can’t calculate the harm,’ Long explains.
Jane Anderson, a former prosecutor in Miami and current attorney advisor for AEquitas, a nonprofit aimed at improving prosecution practices related to human trafficking, said she’s never seen anything like this investigation — noting law enforcement essentially hired someone to commit a crime.
“There’s sort of an upside, which is that he is at least documenting it because I think we hear from survivors that this level (of sex acts) happens more often than we know about,” she said, “… but it was very obvious that this was unnecessary and totally gratuitous.”