I Cannot Prosecute… What Now?

What do survivors do when they cannot prosecute?

It is a far more common problem than facing a full trial and we don’t have other systems to hold predator’s accountable. It deserves mention in the process but I have read little about the problem. People talk about how few sexual abuse and assault cases make it to a trial or a plea deal. People know this is a likely scenario. However, people do not then address “what now?”

I have asked myself what now so many times. I cannot prosecute my father, what now? I cannot prosecute Will, what now? I cannot prosecute Trey, what now? Apparently, I cannot prosecute Bobby, what now? The words thud and clank obnoxiously around in my head even as I type this. It is infuriating when you know you do not have the evidence, when you know you aren’t believed, or will not be believed. It is heartbreaking to think, “well that’s that.”

But recently as I watched that god awful show 13 Reasons Why the answer hit me. Clay’s mother looks at him intently after he asks her a series of “hypothetical” questions about his friend Alicia’s rape. He was trying to discover, from his lawyer mother, if Bryce, the rapist, could even be tried. If there was any possibility of him actually being held accountable. His mother admits the hypothetical sounds like one of the most difficult cases she’s heard of.

Clay freaks out, frustrated, angry, bitter, hurt. I know that feeling. I’ve felt it about things that have happened to me and things that have happened to others. My mind has screamed out “No they can’t just get away with it!” His mother comforts him, he opens up, and at some point she tries to coax the story behind the “hypothetical” out of him. He shakes her off but then she says it, the thing, the big epiphany for me, “even if a crime can’t be prosecuted it shouldn’t stay a secret.”


So why the hell do we think it should? Why the hell does our society pressure us to pretend people are morally innocent?

Our American legal system has really skewed how we think of crime and abuse. It is almost as if we believe someone is truly innocent if the crime cannot be proven beyond a reasonable doubt to a jury of their peers. That is so not how it works. People can be guilty of a crime without ever stepping foot in a court room and being judged as so. “Innocent until proven guilty” is a rule for our court system it does not have to rule our morality and our lives. It simply means that your innocence is presumed within the justice system, you will not be punished for the crime by the law until it is proven beyond a reasonable doubt that you committed the crime.

I ran into this after George Zimmerman’s trial. Zimmerman had a history of domestic abuse previous to shooting Trayvon Martin. He continued to have incidences of domestic abuse after shooting Trayvon Martin. For some reason this violence was not considered in his trial despite overwhelming evidence that domestic abuse is an indication of violent behavior overall. Studies show those who commit abuse against those they claim to love the most have little to no compunctions about hurting others and often can go on to do so. Zimmerman is a violent man who beats his spouse and chose to hunt down a young black boy despite police officers telling him not to. He is a murderer. However, the courts found him innocent so the law is not punishing him. This does not somehow change reality though. The man is violent. The man shot a young innocent kid. The man abuses his wife. He’s not a good guy! Society should not pretend this did not happen because the courts declared him legally innocent.

But still, people, even people who thought he was guilty, defended him. “He was found innocent in a jury of his peers, that’s that.”

Ummm… no it is not.

I do not have to pretend he is morally innocent. I do not have to pretend he is morally not culpable. I have to accept that he is not being punished by the law. I have to accept that he cannot be punished for that crime. I do not have to pretend Zimmerman is a decent person.


To give another example of this “law defines reality” misunderstanding:

I run into the same issue with freedom of speech. Again people do not comprehend what it means. It means that speech cannot be censured. Thus, the government cannot ban books. Institutions cannot interfere with your ability to speak. You cannot violate someone’s freedom of speech by calling them a dick on Facebook. You cannot violate someone’s freedom of speech by arguing with them and saying their opinions are bigoted.

Freedom of speech does not mean I cannot disagree with you. The function of freedom of speech is to enable a marketplace of ideas. Mill, the guy who really laid philosophy this out, knew that some ideas would lose. Should lose. The marketplace is for open discussion. It does not mean that all opinions are created equal. It does not mean you must be heard by people. It does not mean we must accept your opinions. It does not mean your opinions have a right to air time, news coverage, etc. It does not mean black people have to consider your white experience as more valid to understanding race relations than their own. It does not mean that women have to accept male perspectives that tell them what they experience every day does not actually happen as equally valid to their own. It does not mean that LGBT have to sit back and allow you to spew vitriol at them because its “your religion, your freedom of expression.”  It does not mean that society should stop trying to change how you think and believe, because how you think or believe comes at the expense of oppressed population’s rights and lives.

It certainly does not mean oppressed groups must face violence in silence to allow you your “freedom.”


Similarly, simply because a crime cannot be prosecuted does not mean it did not happen. Yet, society acts like that. That is gas lighting at its finest.

I remember when my university sent me an email concerning Javier’s sexual harassment disciplinary committee saying “there were differing perspectives on what happened.” That they could not do anything because of this. It was a gut punch. I had to call my therapist. In our session she calmed me down and walked me towards rationality again. The world saying something did not happen to you or dismissing it does not mean it did not happen.

I remember calling the police about my father. My sister had told me she saw photographic evidence of what he did to our cousin on our father’s computer. That’s how she said she had discovered what happened. That same sister was now trying to live with our father. The father who had a history of taping young girls in their most vulnerable private moments. The father who had a history of violent abuse. I was going to speak at the custody hearing, I would do anything to protect my sister. I was horrified by the idea of confronting my father with the truth. But I mean this, I would do anything to protect my sister. Alas, my ride fell through.

I broke down sobbing on the couch. I had built up so much adrenaline and strength to confront my father. I dissolved when I realized I had missed my chance. I dissolved when I realized I was back to being able to do nothing to protect my sister, to hold my father accountable. I called my therapist, I got voicemail. I called my husband, he was busy. My mother and Honora were at court. I sat on the couch my soul crumbling. Then I called the police.

I explained I did not think I could do anything, that they could do anything but I had to know for sure. I told them everything I knew. They said they believed me but they could not do anything without direct testimony from my sister, who saw the evidence. They could not do anything because I was too distanced from the discovery. I despaired. “I figured as much. I just had to try. I am tired of keeping this secret.” They said they could flag him, or file a report for me, he would be on the sex crimes radar. It was the most I could do.


I can’t stop these people. I can’t prosecute. But that absolutely does not mean these crimes should remain a secret. It does not mean we cannot talk about them. It does not mean we cannot be honest with people. It does not mean I have to carry family secrets to the grave. It does not mean I should.

I cannot prosecute… what now?

I cannot, will not, tell you what to do or how to move on and heal. But I can tell you, you do not have to be silent. You do not have to feel crazy. You do not have to doubt yourself. You do not have pretend these perpetrators are decent people. You do not have to suffer alone. You do not have to shut up about it.

 

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