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As a law student, I learned two very important things.  First, I'm too liberal to represent banks.  Second, virtually every man around me believes that he might, at any moment, be accused of being a sexual harasser, or even a sexual predator.  While I can't quibble with the first, I find the latter to be quite remarkable.

Warning: this diary discusses rape and sexual assault.

There's a bad man next door

When I was in law school, I wrote an article (a "note") that was published in the law review.  I explored a case in which a mother of a young child, whom she believed had been sexually molested by a neighbor, was found liable for defamation of that neighbor in the realm of six figures, and lost her home.

A mother of a young girl, 6 or 7 at the time, allowed her daughter to have a sleep over with a friend in the same subdivision.  When her daughter returned from that sleep over, she had redness and irritation in her vulvar region, which did not immediately set off alarm bells; the mother attributed it to a yeast problem.  Soon though, mom noticed a radical change in her daughter's toileting habits, including incontinence and, later, terrible constipation because the child was "withholding stool."  This is one of the signs of sexual assault in children.  

The daughter had nightmares and refused to sleep alone.  She freaked out if her mom left her.  She played aggressively with other kids, including grabbing at genitalia.  She was angry, then inconsolable, then infantile.  

Mom suspected that something had happened at the sleep over.  She contacted the police, who investigated.  While the daughter never described specific abuse, a psychologist concluded that her behavior was consistent with having been molested.  The authorities found insufficient evidence to charge the father of the friend, who was home alone with the girls the night of the sleep over.

Mom was haunted by the fact that her neighbor had apparently gotten away with molesting her daughter.  She began to warn other parents with young children to stay away from the neighbor.  She later testified that she felt compelled to try to protect other children from abuse.  Eventually, neighbor sued mom for defamation, and prevailed, both at trial and on appeal.

Megan's law and wanting to know if your neighbor is a pedophile

I can empathize with mom.  I can see how and why she did what she did.

The case came not long after a wave of "Megan's laws" had swept the nation.  The first Megan's law was passed in New Jersey, a response to the rape and murder of 7 year old Megan Kanka by a previously-convicted sex offender who lived across the street from her.  Every state has its own Megan's law; there is also a federal equivalent, which is comprised of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registry Act and the Adam Walsh Child Protection and Safety Act.  

Generally, Megan's laws create registries of convicted sex offenders which are available to the public, and may impose restrictions upon where convicted sex offenders can live.  Because Megan's laws have been common for nearly two decades, many are not aware of the controversy surrounding these laws at the time.  

There is no registry of, say, armed robbers, even though you would probably like to know if your neighbor is one.  These laws uniquely target sex-related crimes to the exclusion of all other crimes, including violent crimes.  The provisions of Megan's laws were also viewed as imposing punishment even after the offender had served the sentence imposed by law, and this punishment would be life-long.  

Ultimately, however, legal challenges to Megan's laws did not overcome what has become a generally-accepted strong public policy that the public has a right to know the identity of sex offenders.

One thing that captured my interest about the mom who lost her home because she warned other parents about a suspected child molester in their midst is that it arose at the same time that the courts were widely proclaiming the public's interest in identifying sex offenders.  Yes, I agree, mom's neighbor was never convicted.  

Still, there are legal principles that could have resulted in a different outcome for mom.  Defamation is a false and "unprivileged" publication of information about someone.  One commonly recognized "privilege" to share information that may not be true is what is known as the "common interest" doctrine.  This doctrine generally applies to a communication made by a person with an interest or duty to make the communication  and sent to a person with a corresponding interest or duty.

I think it's certainly arguable that, to the extent that mom was warning other parents of small children, she was communicating information that they would have a common interest in knowing, and that her interest in conveying the information was to protect the children who might otherwise be victimized.  

I'm too liberal to work for banks

I grew up very poor.  I went to a "lower tier" law school on a free ride scholarship, and did very well.  I was courted by high-paying law firms, and I dallied with them.  I was flattered, seduced.  Ah, filthy lucre.

I interviewed at a 200+ lawyer firm that primarily represented financial institutions.  I knew the interview was not promising when I was scheduled to meet with 8 lawyers, all of whom were white men.  Of 200 lawyers, they couldn't introduce me to a single woman?  A person of color?  Really?

But what intrigued me was that they had all read my published article.  And they were generally incensed by it.  Without exception, every one of these men empathized with the neighbor, imagining what it would be like to be "cleared" by the police, but to have this woman out there telling all parents in your subdivision that you were a sexual predator.  One of them flat-out told me that, by even entertaining the prospect that there might be justification for mom's behavior, I'd proven that I was "too liberal to represent banks."

Walking a mile in who's shoes?

Something that is absolutely striking about Herman Cain's sexual harassment and sexual assault problem (or, rather, apparent lack thereof), is the repeated comments from conservatives indicating empathy with Cain.  Implicit, if not actually expressed, is the idea that it could just as easily be the speaker facing these "scurrilous" charges.  

Likewise, I have been absolutely shocked to find defenders of Joe Paterno on DailyKos.  What strikes me in every one of these discussions is the focus on poor Joe, to the absolute exclusion of any consideration for the poor children who were molested and raped by Joe's good buddy Jerry.  The very notion that JoePa might be a victim of some sort of witch hunt because "all" he did was hear a report of the rape of a child and do nothing more than report it to his athletic director, wow, that's astonishing to me.  

And just to silence the Joe defenders, let's examine the grand jury report again.  (Please, for your own peace of mind, skip this if you are not inclined to defend Joe, it's heartbreaking and has cost me more sleepless nights than any of the men directly involved in the coverup).

Grand jury report at 6-7.  Graduate student testified that he heard rhythmic slapping sounds coming from the showers, which sounded to him like sex.  He looked into the showers and saw a boy who appeared to be 10 years old, up against the wall of the shower, being subjected to anal sex by a naked Sandusky.  

He "reported to his father what he had seen."  The next day, a Saturday, he went to Paterno's home "where he reported what he had seen."

Joe defenders jump in to say that it's not clear that grad student gave Joe all the details.  I'm not sure how you read this and believe that it means that grad student kept back some of these details.  Indeed, it seems undisputed that grad student was shaken by the event, that he went to the trouble of informing Joe on a Saturday in Joe's home.  On what basis do you believe that the grad student would have minimized or held something back?  

The grand jury notes that Paterno acknowledged "receiving the report" from the grad student, and passing along to the athletic director "that the graduate student had seen Jerry Sandusky in the Lasch Building showers fondling or doing something of a sexual nature to a young boy."   Page 7.

At a minimum, Paterno testified that he was aware of the sexual molestation of a young boy.

Empathy.  It's, ah, kind of essential.

I really, really hate to do this.  But let's think about what grad student has described regarding Jerry Sandusky.  This filthy, amoral bastard was sodomizing a young boy with such vigor that grad student could hear "rhythmic slapping sounds."  Imagine the force, the violence.  The pain, the fear, the shame being experienced by that poor boy.

Did that boy see the grad student?  Did he hope he was about to be saved?  What did he think when this adult walked away and left him to the continued assault?  

What does he, now in his late teens or early twenties, think today, knowing that multiple adults, multiple respected members of the community, have known for a freaking decade that this child was raped by Jerry Sandusky and did not one thing to help the child?  That they've slept soundly at night, taken victory laps, been cheered and toasted, have rolled in money, without a thought for what happened to him?

Is Herman Cain an entirely different class of predator?  Sure, I'll buy that.  But I saw someone on dKos refer to Cain's victims as a "bimbo explosion."  Really?  A young woman who approached a respected business man, a mentor, seeking advice and assistance in locating a job is subjected to a crude come-on and having her head forced toward his crotch?  How would you feel if this was done to you?  How could you believe it is appropriate to call the victim a "bimbo"?  

I am absolutely disturbed by what it says about America that so many men believe that they are one step away from an accusation of sexual predation.  That it is every man's cross to bear that he might be falsely accused, even of something as outrageous as child molestation.  That the first instinct of so many men in our culture is to empathize, not with the alleged victims, but with the alleged predator.  

Here's a clue:  when you hear a story about a man who was told about the rape of a child and "reported" it to an admin in the athletic department, much as he would report the theft of post-it notes, your empathy should not be placed with that man.  When you hear about a man whose "good name" is being "destroyed" by accusations of outrageous conduct, why would you imagine that, there but for the grace of god goes you?  

I really hope to provoke a conversation about what it is about our society that would lead so many of our men to so misplace their empathy as to, always, first imagine what it would be like to be the predator, or predator-enabler.  Last week, I would have believed that this was yet one more instance of the dividing line between conservative and liberal, Republican and Democrat, how universally the Republican electorate seems to be embracing "poor" Herman Cain.  But I've seen enough apologizing for Joe Paterno in the last couple of days to wonder if this is not a societal failing that is far broader than our political divides.

Originally posted to milton333 on Fri Nov 11, 2011 at 07:40 AM PST.

Also republished by Community Spotlight.

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