Jennifer Long is the CEO of AEquitas. AEquitas’ mission is to improve the quality of justice in sexual violence, intimate partner violence, stalking, and human trafficking cases by developing, evaluating, and refining prosecution practices that increase victim safety and offender accountability. AEquitas provides prosecutors with the support, training, mentorship, and resources necessary to objectively evaluate and constantly reexamine and refine their approach to justice in these cases. Jennifer (MGA, JD) also serves as an expert on issues related to the prosecution of sexual violence, gender-based violence, and human trafficking.
In this episode Jennifer discusses:
You're listening to Reckoning, the go-to resource for conversations about gender-based safety, survival, and resilience in the digital age. Reckoning is brought to you by Garbo. Garbo is on a mission to help proactively prevent harm in the digital age, through technology, tools, and education. I'm Kathryn Kosmides, the founder and CEO of Garbo and your host for each episode. In the interest of safety, I want to provide a content warning for listeners as we do discuss some hard subjects in each episode. So please use your own discretion when listening, you can learn more about Garbo and our guests by visiting our website at https://www.garbo.io Thank you so much for being here and listening to this episode.
Jennifer Gentile Long currently serves as the Chief Executive Officer at AEquitas, which she co-founded in April 2009, and serves as an expert on issues related to the prosecution of sexual violence, gender-based violence, and human trafficking. She began her career as an assistant district attorney in Philadelphia, Pennsylvania, where she prosecuted cases involving adults and child physical and sexual abuse, and served on a team in the family violence and sexual assault unit. After her departure, she served as an advocate for victims of domestic violence and child abuse in Bermuda, Philadelphia. Jennifer was a senior attorney and then appointed the director of the National Center for the Prosecution of Violence against Women at the American Prosecutor's Research Institute at NDAA. She promoted meaningful multidisciplinary collaboration and improved prosecution practices through authorship and contribution to numerous articles, publications, resources, and curricula, and provided assistance to prosecutors and allied professionals. Jennifer's commitment to the identification, implementation, and preservation of innovative research-informed practices led her to co-found AEquitas, where she continues to work with prosecutors, professionals, and policymakers across the US and internationally. Jennifer also serves as an advisory committee member with the American Law Institute and editorial board member with the Civic Research Institute for the Sexual Assault and Domestic Violence Reports, and an adjunct professor at Georgetown University Law Center, where she teaches prosecuting sexual violence from research to practice. Jennifer graduated from Lehigh University with a Bachelor of Arts in English and East Asian Studies, and the University of Pennsylvania Law School and Fellow School of Government with a Juris Doctor Degree and a Master's in Government Administration. She is a member of Pennsylvania and New Jersey bars and enjoys running, walking her dogs and making homemade pancakes for her family.
KATHRYN: Give a little introduction about yourself and for those who might be unfamiliar with your work, what AEquitas is.
JENNIFER: Sure. So my name is Jennifer Long. I'm the CEO of AEquitas. AEquitas is a non-profit that's based in Washington DC and we are a collection of advocates and primarily former specialized prosecutors in sexual violence, stalking, intimate partner violence and human trafficking who come together to provide expertise, training, and overall support for others in the field on the prosecution of these crimes. We work across the United States in all 58 jurisdictions, the states, the territories, District of Columbia, Military, [and] Federal. We work internationally and we really consider ourselves the hub of prosecuting these cases. We really try to arm ourselves with the most recent research. We've obviously all been experienced in a variety of jurisdictions across the country, and we work on the ground with practitioners and with survivors. So we know the research, we know what it tells us, and we rely on our partners and the people we work with to help us know what it doesn't tell us. And just from my perspective, I was a former prosecutor in Philadelphia, Pennsylvania. I specialized on these crimes, although when I prosecuted, there wasn't even a human trafficking statute. So when we saw these crimes and was primarily mischaracterized as pimping, and street prostitution, or interfamilial families selling children or, selling other members of the family, we would cobble together the laws on the books at the time to try to address it, not as well as we should have, and mostly overlooked many victims.
KATHRYN: Wow. And you founded the organization or help founded the organization all the way back in 2009, which is crazy to think about. And I'm sure it's been quite the journey for you all with the rise of the internet and the disinformation era that we kind of found ourselves in post 2016. So how has that been like, Me too? I mean, just all of it, right? So how has that impacted the work and what's that journey been like?
JENNIFER: Yeah, so yep. I am one of the proud co-founders. And to just put in some context, many of our co-founders have moved on. Some are judges now, some elected prosecutors, other experts across the country. And when I joined, I'm trying to remember what kind of [environemnt it was, it was] certainly was way before the smartphone. And so, and I'm thinking about when I prosecuted, even looking back, I think we had intranet, not internet, but it's interesting because with the evolution of everything, there are some truths. When I started child pornography, although some of it was online, it was also rapists taking pictures, polaroids of their victims, of the crimes they were committing. Same with adult victims. And so you start realizing that with the rise of technology, it just facilitates the crimes that are already happening. Same with misinformation and these movements in some ways. There have been so many people who've come before grassroots to try to raise awareness. Even going back to the 1970s. And so, you see a lot of the same themes, sadly. Some of the same myths are there regardless of how we've progressed, regardless of all these movements. So I think it gives you a healthy understanding that there's no one thing, there's no movement that's gonna make all the change, but it also gives you an appreciation for how many people [are] coming together and building on what's happened before can really move change. Because with each movement, there's greater awareness, there's greater progress, still so much more to be done. But I would just say the co-founding of this organization, it's been one of the most meaningful journeys of my life because it was truly founded not only by the co-founders, but by allies in the field who believed in the fact that we needed a place that could focus on these crimes from the prosecution perspective, because it wasn't there. And outside the whims of associations, outside the whims of politics, just staying true to really ultimately trying to get the response right.
KATHRYN: And I'm sure that response has definitely evolved and changed. And I always say, “These are not new problems”, right? The internet just exasperated existing problems, whether that is sexual violence, domestic violence, human trafficking, all of these different things, misinformation. Like you said, these things have always existed. It's just now they can proliferate much, much faster and much, much bigger ways, and to ensure that that kind of has impacted your work. And you touch a little bit about the work that AEquitas does to help ensure effective prosecution of crimes against some of the most vulnerable members of society. So how does the organization actually help make that happen, especially in today's digital age? Have you seen any rulings or new information around the prosecution of these crimes as they go online?
JENNIFER: Yes. First answering the first question you asked in terms of how we do this, because I think the fact that we've all come and practiced in different jurisdictions and the fact that there have been others that have come before, there's no practicing in isolation. We really try to build off each other's expertise. What we're seeing in the field, emerging issues, and then what we see now in gathering technical assistance. And I mean, I think that there's a lot of emerging issues in the area with people going online, the image based abuse, exploited, etc. Image based sexual abuse with either photos that were taken consensually and shared non-consensually or photos non-consensually produced. I think that we've seen a lot of minimization, obviously some gaps in the laws that are available that allow us to hold people accountable. And even the way that it's spoken about in the media. I think so many times, it's in the verbiage of sex instead of an assault, instead of a crime, instead of it's beyond just an invasion of privacy. It's criminal a lot of times in what's being done. And so, really trying to map the digital tools that we have, investigative and prosecution tools that help us identify and sort of link the sharing of a photo to the bad actor so that it's not just reliant on the victim's testimony, but also just still those same biases, those same myths that get in the way of jurors, fact finders, prosecutors taking these cases, taking them forward, knowing how to litigate them, and argue them, and finding someone guilty accountable for what they've done. We still have to focus on the basics there too. Again, stop blaming victims for “putting themselves in situations” and understanding that trust whatever has made you vulnerable, trust and interest in experimenting in something does not pave a pathway to your victimization that leaves someone not culpable for what they've done to you.
KATHRYN: The media and the victim blaming is a big one. And, we're seeing people talk about cancel culture and things like that and saying, “Oh, I can't just call someone out on Twitter or Facebook.” “Oh, they weren't convicted.” “Oh, they weren't prosecuted, or they didn't go through the criminal justice system.” “Who are you to call them out as a bad actor?” But then we see the reality of the criminal justice system, right? Which you've seen all too well in your entire career, Being a former prosecutor of gender-based violence offenses, and human trafficking, and seeing now where we are today, I'm sure you've seen the crime funnel play out in your own career. For those listeners who might not know what the crime funnel is, it's a visual way to show how a crime makes its way through the traditional criminal justice system and specifically with gender-based violence. Studies vary, but it's around less than 25 ish percent will ever report into the criminal justice system. I think it's much lower than that, especially now in today's age where we have even less trust in that system. And then as it makes its way down the funnel, you see that about 7% of those reports end in an arrest and then only 1% end in conviction, and oftentimes the conviction is not the real crime, right? Pled down for many reasons. Plea bargains, I call it whitewashing. When men have good lawyers. Usually white men have good lawyers. They could get it pled down. So how do you see this in your experience? In your opinion, why does this happen? And are there patterns you've seen on who or what actually makes its way through the system? And then we'll kind of get into is there any way to improve that system, essentially?
JENNIFER: Yes, yes and yes. I think you've done a really good job at distilling the studies. There have been great studies on the funnel. We call them attrition, basically the weeding out of cases, and we'll talk about sexual violence cases, because when we look at the national research, when we think experientially about what we've seen it maps. I'll talk a little bit later about how we try to use the research to work with jurisdictions where they are to help them, maybe not repeat it. So the most maddening part about the research, and I'll just talk about the sexual violence for right now, is that the reasons, the factors that seem to pull cases out of the system are the most common factors in cases, right? If you have an individual who's vulnerable, maybe they're using substances, or they're homeless, or sexually exploited women and the greatest rates of violence directed at them, and serious violence, rape, homicide, assaults, previous relationship with a perpetrator, all of the things that when you do the work and you're experienced in the crimes, and when you read about it, and when you work with survivors, all the ways we know that perpetrators access their victims, that they identify them, they build relationships with them, they get them to a place where they can perpetrate, and when they know they can silence the victim through the victim's own sense of confusion about the relationship maybe. And because of the victim's own behaviors that are regular behaviors, they have not been the cause of any harm. No one's done anything other than trust and maybe make decisions that would put them in a place where there wouldn't be other witnesses. But again, people are not responsible for what bad actors do when you're alone with them. But yet society continues to blame people for that. So the confluence of all of those things then impacts how a case makes its way through the system. And one thing we've really tried to do–so the research and I think the stats you pulled are from RAIN in their analysis. They're great stats, [they’re] probably the only ones that are available. Just one thing to remember, there are no comprehensive statistics across the United States. So we know that there's a gap, like you said, it's probably way larger than that. But what we've tried to do with the national research, which we've distilled, is to then work with jurisdictions to have them say, “Okay”, because again, unless you're a bad actor, most prosecutors, most individuals in this work, were not in it to do a bad job. You're in it to do a good job and achieve safety. And I think most people think they're doing a good job. Then it's just a matter of understanding what your practice actually looks like. So there's the national research, then we have some methods of encouraging offices to take part in case assessments, where they're looking at their own cases, looking at the characteristics, looking at the trends, again, in cases on how the victim–because that's the other thing. We talked about race and in these particular cases, it's not the offender’s. Actually the racial disparity there is research when there is different race, unfortunately, because I mean, there should be no disparity in the system, but when you have a black or African American perpetrator and a white victim, that tends to be the disparity. But the real weakness, I think is looking at the impacts on looking at the victim's race, because we think that that's a much bigger driver in where the racial bias is, and it's one that hasn't been prioritized. But when you're looking at these cases, we try to sit with jurisdictions to look at the trends, then sit with the decision makers round table, a few of them to look at why it's happening. Maybe is it biased? Or maybe if you have cases with particular complexities like if a victim is intoxicated, do you not have the right knowledge or information on how that actually impacts victims? What experts you can use, how you can try a case successfully with that to really try to isolate what the problem is so that they can focus on that and then overcome it to turn these numbers around. And I would say, “I feel like we work with a lot of jurisdictions, it's often very confidential and there's a lot of urgency.” I certainly don't believe that we've solved anything, but I do believe the biggest limitation is our reach and our ability to work sustained with jurisdictions, because I think we've really found a way to open the eyes of practitioners onto what's happening and help them isolate where the problems are.
KATHRYN: And I think that's it. You have to, right? The problems are so widespread, but I would say if you look jurisdictionally, especially in counties, or cities, or police departments, even the victims going in to report these crimes or calling 911, do have probably their own lived experience based on the communities that they come from. Is it a community of color? Is it a community overrun by drugs or these other things? And how does that then go into the biases seen within that police department, that reporting system? I've seen it all too many times what you just said, which is often the biases don't come in the conviction, or they don't even look at the offender if they even get to that point, that's a pretty far point, right? It's usually the victim going in and reporting, like you said. And in my work, and I'm sure in yours, we've talked to dozens if not hundreds of survivors who have gone through the system or at least have tried to report into the system, and you see those biases creep into it. And oftentimes if they do go through this, they report, right? And then they are retraumatized, even then are they believed? They're questioned. I've had people say, “Oh, well, a person in my life, she was reporting a stalker at her work who was showing up consistently, really bothering her.” Her work was very concerned for her and forced her to report to the police and make the note. And they said, “Oh, well, they looked in the system and she had filed for an order of protection against a partner who abused her, which she also lost for bias reasons”, we will say. And they said, “Well, you lost that, so why would I even believe you?” And you're like, these are two totally separate things, you know? And so, you see this constantly occurring. You report, if they even take the report seriously, I've gone and helped people report, and the police don't wanna take the reports, and you kinda have to know the laws just to get them to take the report. And then that system then kicks in. And myself, I've gone through it, right? I've gone through the criminal justice system all the way through, and all I can say is that, and all I've ever heard any survivor who's gone through it, is to say it re-traumatized them. It really didn't fix anything. If anything, it made it kind of much worse in ways. In your work, you want to prosecute these and we need to prosecute these guys, but at the detriment oftentimes of the victim. How do we kind of reckon with that?
JENNIFER: So, the first thing I wanna say: I know this is really lacking. I'm so sorry to hear your experience, and it is an experience that obviously should never occur. The reality is, it does occur because when individuals are harmed, the first harm that's happened, there's no system. There's really no remedy that's going to undo what has happened. The idea is to try to provide some voice, some avenue for justice, for achieving safety for you, for a community, for having your voice heard, for having someone be held accountable, even if it's just standing beside with the prosecutor elevating your voice and using all of the tools at their disposal to make sure that you are not attacked in a way that's unfairly. Although, we all know that even the best prosecutor isn't always successful at that. But, I work in the system, so I ultimately believe in it as the best system and as something that has such power and potential. So having said all of that, though, the urgency, the fact that victims will be harmed in it, or even one victim is harmed in it would be something unacceptable and something we'd always want to work at. When we think about the system and what it can provide, particularly for people who have no voice. I think you're right. I recount, and mostly I think you recount the things in your career you wish you did differently, you wish you did better. I would say that's how I look back on my career. And even in those cases where we had good outcomes, there were times when you would watch what would happen to a victim in a courtroom, despite all of your efforts, despite all of your strong advocacy, what was allowed to happen either by judge or what the defense did in that room would really make you walk out of the room and question too. What was worth it? That's the one side, that's the horrific side. On the other side, I've had the privilege of sitting with people who really don't have anybody, or may have had family who turned their back on them, or really were in a community where they were shunned for making the report, and where perhaps they were devalued as not being worthy of reporting the rape. Again, maybe they were prostituted individuals. If they were abused, maybe their demeanor when they reported, they normalized it, they minimized it. But they had law enforcement who took it forward and investigated the case. Prosecutors who were not willing to just throw the case away, but to go forward, to stand up, to say that, to sit and allow the victim in a public forum to talk about exactly what had happened to them, to push back on defense attempts that are really despicable. I understand that there's advocacy that has to be done, but what can happen in those rooms, the stated and unstated worthiness of a victim. I've seen it up front. I've fought it up front. And to have that relationship with the victim. You're a prosecutor. This isn't a client, you're moving for justice. But to stand by side by side with someone who has suffered one of the most horrific assaults that can ever be suffered, and to stand with them to say what happened to you wasn't right. That you do deserve a voice, that you deserve to be safe, and that you have contributed to something that might keep another victim safe, I think was really important and valuable. And in some ways, reinforcing to the people in the room, to the judge, to anyone listening that what happened wasn't right, and that there needed to be amends for it. So, it's complicated in our system, right? Our justice system is one that values due process. There are some pieces of that that are very important. I've both worked in other countries. I've worked around having people be able to face their accusers, to be able to confront what's said, to be able to challenge their credibility. These are all very important things. There is a price, there's a balance, though, right? And I think it was Judge Cardoza who says, “fairness is due the accused, but it's due the accuser as well, and we shouldn't narrow it to a filament.” You have to keep that balance true. And so for our survivors, making sure that when we're fighting we are pushing back on these narratives that, again, if you're a sexually exploited person, that somehow you lose your right not to consent. That if you have taken in this information and trying to bring in activities of a victim to really blame them for their own assault and to discredit them so unfairly. These are areas and opportunities we have to fight back at that. And I think they go well beyond the courtroom.
KATHRYN: I think it is important for listeners to understand all of the nuances of what you just said, that it is hard, right? And there might be things and there will be questions. And for someone who doesn't believe you along the path, but to stick with it, to believe in yourself for that great or good, right? To prevent the next generation of harm. That's also what I hear so many survivors say, is that they don't report usually for themselves and it's usually to prevent the next person. I wanna stop the harm, I wanna prevent this from happening. It's never about the offender, even like, “Oh, I want them to go to jail. I want them to suffer.” No, it's always about preventing the next person. And I know in my own work, and in my own cases, and things like that, that's what keeps me going is knowing even–we set precedent in New York about a few that women can now get in family court and that is what keeps it going. Even if that system, the justice system, didn't give me “justice” in the way which I would've wanted, it did help the next person. And I think (that’s what) keeps the hope alive in it and in our work, your work in trying to make the change from the inside out. And our work in trying to point a finger at those holes and stuff. It is a system I do believe in, right? Like you said, the criminal justice system does believe in due process, and it is one of the best systems in the world, right? If you think about the way in which offenses make their way through, there is obviously a lot of room for improvement there. And that's what I kinda wanna get into next, is that room for improvement, especially as it relates to sexual assault or gender-based violence offenses. And I'm sure you've seen this many, many times, is also the victim being arrested in it or convicted of crimes, themselves, especially if they have experienced harm, sex workers, prostitution, sex trafficking, all of these things. They themselves get prosecuted for the offense. And studies show that up to 94% of incarcerated women have experienced gender-based violence within their lifetimes. Often the thing that led them to be incarcerated is a direct response to that violence, whatever that response may be. So how do we reckon with this as we start to see a lot of background checks come into play in the world? It used to be employment or housing background checks, but now we're seeing this big push for dating apps to background check people, or social media, or even Airbnb doing background checks, all of these things, right? Your record is being used in new ways. And we know that that record isn't always an accurate reflection, whether it is the woman's problem of the reaction to male violence or even someone wrongfully convicted. So many different nuances in there. But, how do we handle this information being used in those ways when it's not always clear who's at fault, especially as it relates to women in the system?
JENNIFER: Yeah, I think one of my biggest frustrations with the criminal justice reform movement, which was an important movement, but I think looking at the standing up at conviction integrity units and looking at all of the discussion about it, the constant that's left out were the women. You talked about the statistics ahead of time. The individuals who are intimate partner violence victims who've used violence either in legitimate self-defense and that was not accurately assessed their culpability, or they used illegal violence. But if you understand the context of the situation, they might have been triggering the violence in order to stop a greater abuse later on. Sometimes we know our intimate partner victims will trigger an assault so that it happens out of sight of their children or so that they're protecting their children. There's so much context, and again, prosecutors and investigators who are trained on this and are really specialized, look at these cases, look at the context, because you may have a case where someone shouldn't be charged at all and should be removed, or you may have individuals who have used violence. They've used it illegally, and maybe it's important that there is some sort of accountability, but it's not the type of accountability that they're being charged with. And certainly a domestic violence victim does not need to go to batter's intervention, or does not need to be talked to about abusive behavior. This is not an abused person. Sometimes the illegal use of violence, there still was a consideration that maybe it was necessary for safety. So again, really taking the time to understand this so that you're charging justly so that you're not putting someone in harm's way. So I've talked about intimate partner victims, I'll just stick with that for now, in terms of moving them through a system where now they may be afraid to call the police again. They may shut down, they may put themselves in a situation where they are the only ones who can protect themselves. So maybe you're talking about a need for increased violence, because it really emboldens a perpetrator and it follows a line of exactly what will be said. And just remembering too there are other coercive means that we even try to, when our victims haven't used violence, where we try to get them to participate in a system instead of looking for alternative methods to support them so that they can participate and to prosecute cases with other evidence. When we think about sexually exploited individuals, prosecuted individuals, I think we've come a long way, although not even nearly as far as we need to, understanding how wrongfully arrested, charged, and convicted they are for prostitution related crimes. When I say a long way, we are aware, but the data still shows that individuals, and this is again, where race plays a huge part because black and African-American women are arrested at a higher rate than other individuals. So that's a disparity that I don't feel like is talked about. But you have those other crimes. You have crimes of theft, or crimes of substance abuse, or other misdemeanors, or felonies where you have an individual who's a sexually exploited person. And in the investigation, either indicators of that are totally missed, or you have individuals who see them but don't somehow think that they're related. And then you've got individuals going through this system who have been forced to commit the crimes in many cases, or they might have committed the crimes, but there might be mitigation if you understood the full piece. So really what we try to do across all of these crimes, we create resources, we consult, we train. We're trying to teach the prosecutors and investigators how to look at these cases holistically, how to assess culpability, why it's so important to do so. And so that on the front end you're avoiding this, and where this has happened on the back end reminding people they have an ethical duty, a responsibility to remedy harms. And so in these conviction integrity units, making sure that they're also focusing on these crimes as well.
KATHRYN: And I'm so glad that you brought up other types of crimes. I have many different buckets of offenses when I think about that, but two broad ones are crimes of desperation, which can be theft. It is drug usage. It's, “I was desperate to escape my situation”, whatever version that is. And then you have crimes of power and control, which are intimate partner violence, but can also be a lot of white collar crimes and things like that. And to actually see why is someone desperate? Why are they doing that? And are they forced to rob the bank, are they forced to engage in that sex act? Things like that. And understanding that, I think it's such a critical piece that is often missed. And I think it's a problem with public records, and I'm having my own kind of reckoning with it. The public record doesn't tell the full story no matter what. Even if they are guilty of it, even if they are actually a bad actor or if they have been wrongfully convicted or arrested, whatever it may be. How do we deal with that nuance and the culpability and all of those things? ****I think so many people just want “black, white, good or bad” on these things. And I always say, “We've all done bad things”, right? Whether that's speeding down a road–technically illegal. If that's doing drugs where it's not legal. All of these things, we've all done it. And so to say you're a good person or a bad person, just looking at a public record is not reality. And so, how do you feel about that?
JENNIFER: I think that, especially given the business you're in and being thoughtful about it, and just thinking about how to create messaging around background checks. You started talking about how so few of the violent cases are actually coming through and being reported. So reminding users that this information does not mean that you are safer. Well, you certainly are. I shouldn't say that. I don't wanna minimize, because we know what happens when perpetrators are allowed to act under the radar. They get bolder, they commit more crimes, and they do horrific things. So, the information in large part is good, but there's caveats. It's both under inclusive and it can be over inclusive. It can really sweep people in who either, like you said, were forced to commit crimes who were in a state of desperation or were wrongfully convicted. Maybe they didn't have the right representation or the system mistreated them in some way. And so, I think that's the first piece of it. The second is understanding the partnership, the responsibility. And I think prosecutors have this ethical duty. I've been very lucky because I've worked in this realm my whole career basically, and I've had the opportunity to be around very thoughtful, very passionate people who are truly trying to do the right thing and who do take the ethical responsibility to heart. So the one thing to remember is you're dealing with the majority, the overwhelming majority of people who wanna do the right thing, who take the ethical responsibility seriously. And so reminding them of the collateral consequences with greater access to this information, it's just another reason to get it right. It's not a greater reason, because we should be getting it right no matter who sees it, because the consequences of getting it wrong are so important. And no guilty person should suffer either. Sorry, no innocent person should suffer either. Guilt shall not escape, innocence shall not suffer. And we should really be thoughtful about that. But knowing how this information is used. I think we need to go back and ensure not even more than we are, it's another reminder of why it's so important.
KATHRYN: And it's to say, I'm so glad that you said that, most people I do believe are trying to do good. It's just a broken system in many different ways. But I always say to people–and you kinda touch on in the criminal justice reform movement, which I'm so happy happened and is continuing to, and we're having these conversations–is also though you're seeing bad actors being able to put doubt into victims' heads or potential future victims if they did the background check and they do see something and they're like, “Oh, well, the criminal justice system is so effed up in many ways”, or that they rely on whatever. And then it puts doubt even into those convictions, and we see the stories are always publicized of the false convictions, right? Like truly. They got it really, really wrong here. And I think it puts those seeds of doubt in the minds of people. And that's what scares me is like it, especially I think with domestic violence and gender-based violence, if it gets it through, right? Especially if it is a non vulnerable person, I'll say that generally it's probably true, right? Something happened there, right? Something did happen there. And we should believe it.
JENNIFER: And again, because I think the removal of someone's liberty is a devastating thing. So I never wanna minimize one crime that would be too many. But when you're talking about the exonerated numbers, which are in the hundreds, mid hundreds, and you're talking about the victims who have been victimized and for whom nothing has happened, and perpetrators who have gone on, one hard number we could take are the untested rape kits. Let's just take the 400,000 estimated, where nothing happened. And so when we're really thinking about the magnitude, it's not one or the other. I think the people who are focused on really ensuring that the harms that have led to wrongful convictions are remedied, and that they are prevented, and that they don't happen again, that needs to happen. But equally as important and with greater magnitude behind it, are victims and survivors who are being repeatedly abused because maybe they didn't have access to report, or when they did report, no one understood the crime, so they didn't believe them, or their case fell out of the system for some reason. And that harm is generational and goes on and on, and you have people who are not able to protect themselves or not able to stop a perpetrator. So I don't think we need to lose sight of either. It's just the victims have been so silenced and so overlooked here. We just feel like we need to keep elevating that as well.
KATHRYN: And it's interesting. Even if you see media, media is so obsessed with bad actors, right? You see all these things, right? We wanna constantly tell, get in the mind of the perpetrator of bad acts, but we never wanna talk to the victims. We never wanna hear their stories. We never wanna center them. And I say in my work, I have the privilege of standing in rooms where they never talk to a victim before. I was at an event with dating people in the industry and they were all talking about how they'll call up the bad actor, or the scammer, the romance scammer, and harass them or get into it. And then I just said, “Have you ever talked to one of their victims?” “Have you ever called them and see how it happens? And so, how can you really prevent it?” And they say, “no”, they don't say anything, right? Because it never even crossed their mind to actually talk to a victim.
JENNIFER: And you have to be careful when you talk to perpetrators. I'm not gonna call it any media piece, but I would. Media, the community, people, the population, it's like they have about a two second attention span of whatever's thrown, and then it’s moving on to the next thing. But one thing that a really great expert who works with offenders and victims, her name is Ekue Valerie. Dr. Valerie always said, “You have to be very careful when you put yourself in the shoes of an offender because offenders use behaviors that we may use for good, like nice or trust. They are using these things to commit their crimes and the second you try to sit in their shoes and try to understand why they did something, you open yourself up to manipulation and you're really not ever gonna truly be able to see it.” And I think that I always think we wanna talk to perpetrators. We want to understand why, but we really have to be thoughtful about the fact that we continue to be the audience and we will be manipulated by most perpetrators, at most times. Not that people cannot make amends or feel remorse, but I would just say across my career, when you really thought about the crime as it was happening and how horrific it was, and at the points where mercy could have been shown or any part of retracting, it was never shown at the moment. The remorse was happening at the moment of sentencing or some other place. And as horrible as it was, because even with the most violent criminal who's done the most horrific acts, it's not a pleasant thing to think about a sentence for someone like that. It's a horrible human tragedy, but it just has made me wonder about when the victim needed mercy most, and it wasn't given just [inaudible content] sometimes some of that remorse says.
KATHRYN: Exactly, exactly. I always say, I empathize with a lot of people. I can understand why people do things. I do believe hurt people, hurt people, and hurt does not mean physically hurt. It could be hurt by society being poor, being vulnerable, whatever. Hurt people, hurt people. But I can't condone it. I don't condone it. And you had a choice in those actions.
JENNIFER: I was with a lot of victims who never hurt anybody.
KATHRYN: Exactly. So, it's not an excuse, it's not a reason, for sure. So as we kind of look at the criminal justice system, and I do believe, like you said, it is a good system and it has problems in it, but I'm not an abolitionist, right? I don't believe in abolishing these systems. I hear so many people just say “ACAB” and things like that. And I'm sure I've screamed that at a protest somewhere too. You say to a domestic violence victim, “Oh, you're experiencing violence, but we don't have the police. We actually got rid of those once you want to do in that moment and things like that.” But we are seeing this movement towards outside of the criminal justice system, which we kind of talked about now. And seeing that it will never capture all of the harm. And even the harm that it does capture is not often a public record, right? People actually can't use that information to then help them make safer decisions for themselves and the people around them, their communities. We're seeing a lot of folks not be able to access the information within the criminal justice system. A lot of stuff isn't a public record. Sometimes only convictions are, and then only for so long, but orders of protection aren't. And if you even have that, like so many, EEOC complaints, all of these things. That system only does so much to prevent future harm from occurring. And letting people make those informed decisions about who they're meeting, who they're allowing into their life or in their communities, whatever it may be. And you're seeing the development of these other sources of information to prevent harm. We have seen the rise of the whisper networks, whether that's the shitty Media Men's List or even platforms starting to share bad actor reports with each other like Uber and Lyft do with sexual assault allegations against drivers. So you're seeing the criminal justice system won't always capture all of this harm. I would love to hear from you of what do you think about first whispered networks, and how those have worked? We can kind of get into the broader set of these systems.
JENNIFER: Yeah, and I'm trying to remember the first time I realized that existed formally, was formalized, although obviously it was informal, right? So obviously I have mixed emotions. On the one hand, I completely understand why they exist and they need to exist. You have individuals who, perhaps what's happened to them isn't criminal. They're not sure where to go, but something is wrong and therefore they need to share and protect. Or you may have people who are not ready to engage and participate in the system, or who have and have been rebuffed and the system has let them down. So I understand the need for them and absolutely to try. And again, like you said, though it'll only scab. It's only gonna capture some of the people, and it's only gonna be able to protect people as much as that information can. And there's the piece of due process that is missing from there. But, it's basically formalized gossip to try to keep people safe. On the other hand, the reason I'm mixed feelings, obviously as prosecutors, we don't know about this. So if we're in the system and someone has reported this individual, this is information we may not even understand exists. Now when we're talking about investigating and prosecuting these cases, and we're telling our investigators to think, cast a wide net to talk to people, to talk to ex-girlfriends, to think about–because individuals might have used violence or you might get information in another way that might pick some of it up, but it might not. And so, you may have information when we have reported incidents of this, there are legal means to sometimes admit that in trial to show defer a specific purpose and it might weigh into finding other evidence and other things. On the other hand, there's another piece, the whisper network is only as protective as the people in the network. So where does privilege play a role in these perpetrators? And we know from our research on serial offenders that perpetrators, it's not like they have a type that we thought of anymore. A lot of them do a particular crime, they cross offend, they commit crimes against other people. So are there individuals who are at harm because only a certain number of people are aware of the individual and their bad behavior and the violence that they're committing. But, I completely understand and I would never hold it against individuals for trying to keep themselves safe. That's ultimately what's happening. I think raising awareness for me as someone in the system, raising awareness within the system that these may exist. And number two, another reason, an urgency to improve the system so that you don't have these other informal areas where information is known that we'll never know about.
KATHRYN: And that's it. Who's behind it? Who has access to it? I know a lot of whisper networks that are formalized and informal, and you are always questioning these things. And that is my big thing, especially even if someone does have access to a list or something like that, right? But then they see someone that they are friends with or maybe in a relationship with, and then it devolves so quickly because they aren't willing to reckon. “Oh, that person hasn't caused me harm.” “That person is nice to me.” And then they cause this other person harm. And then they go tell, “Oh, you're on this list.” And then it just gets crazy. So it's interesting to see that there is this desire, this demand to share this information outside of that official system. And I think it'll be interesting to see how it evolves in the reporting outside of the traditional criminal justice system. You even see things like accountability networks or–why am I forgetting the term right now?–something justice, where offenders can talk to the victim directly.
JENNIFER: Oh, “restorative justice”.
KATHRYN: Restorative justice processes happen and stuff like that outside of these systems. So as we kind of weave our way to the end of this conversation and looking to the future of things like the metaverse and the sexual assaults that are already happening, the harassment that's happening there. We talked a little bit about the non-technical term “revenge porn”, but even deep fake revenge porn happening, where they actually aren't in the photo. They didn't take the photo, but it's being shared like they did, etc. How do you see the criminal justice system impacting those offenses, holding those perpetrators accountable in the digital age?
JENNIFER: Yeah, I think so. It's a lot of the old, right? It's a lot of what we have been doing for almost 50 years. I guess 70s? Understanding some of the minimizing that happens. “Oh, it's not your real body.” Or, “Oh, it's a beautiful body you're on, so why is this even a big deal?” “There's no harm done here.” Understanding the actual harm done to individuals that psychologically, the awareness that somehow there's a nude image of them out there, or an image of them being assaulted out there, and that they have no control over it, and that people have seen this, and the family, and everything else. That deep psychological harm is real. That is a sexual crime and that needs to be taken seriously. So I think some of how to do this is gonna be the courts, and prosecutors, and actors understanding, and the community, because the community is ultimately who holds everyone else accountable, who decides what laws are gonna be passed. So, don't forget the actors are just an extension of the community. So it's everyone taking the cases seriously, understanding how harmful they can be, and thinking about the legal challenges that are needed to maybe overcome any impediments that might exist in the current law or in how the law's been analyzed. If you've got a deep fake situation or something else. And then there's the tech and the digital side really understanding that not only, again for the investigator prosecutors where to get the information, how to tie it to a perpetrator, how to present it to the court, but understanding that you're gonna have juries and judges with differing levels of tech aptitude, and that you're gonna be able to have to explain this to them and have experts explain why there's harm, why this is? If it's existing in a metaverse, why it is public or published, if it's not out on the street? And really trying to bridge that divide between a generation that's, I don't wanna say isn't as comfortable with a virtual reality, but it isn't as real to them as it is to others. And then a jury and their feelings about it. Because we know when we're prosecuting rape, one of the big hurdles we have to overcome is that it's not sex. It's actually rape that has happened, and it's because we're so comfortable with one topic and yet we don't wanna talk about it and then overlaying it on everything else. So I’d get thinking about your jurors and the biases they may have about tech and what's harmful and what's not, and how to communicate with them. And just one other point, because I know we talked about alternatives. I mean something to remember, restorative justice has a history. What we used to say were cases, we were trying to get cases out of the criminal justice system and think about different treatment and different ways to address the behavior that wouldn't have these negative collateral consequences. And I think it's really important, again this goes back to the shiny penny thing, for people who are in the system now, to be mindful that there's been a lot of work. There's experiential. There's things written that you can learn from that have happened, even the failures to figure out how to move forward. Because none of this is new. We have tried this for many times, and in many ways it hasn't yielded the prevention. So, it doesn't mean we should abandon it, it just means we have to keep trying. And the other thing is that many of these alternatives to the system are also victim blaming. When you think about, and again we've seen this sometimes overseas, but here as well, whoever has the higher status. So if you have a victim with low status and a perpetrator with higher status, then when you're in a restorative justice setting, is there really going to be amends made? Are you really going to be able to access that? Is there gonna just be the same pressure playing out? So we don't wanna just put everything up on a pedestal. We really wanna make sure that we're still addressing all these important issues no matter what the forum is.
We hope you enjoyed this conversation. If you're interested in learning more about the topics discussed in this episode or about our guests, visit our website at https://www.garbo.io Now available: Garbo's new kind of online background check makes it easy to see if someone in your life has a history of causing harm while balancing privacy and protection in the digital age. This episode was produced by Imani Nichols, with whisper and mutter. I'm Kathryn Kosmides and I look forward to having you join us for the next episode of Reckoning.
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