Marla Hanson, a model in New York, was brutally slashed with a razor, but it was her racial attitudes and sexual morality that became issues at the trial of her attackers, who were convicted. And since the murder of Jennifer Dawn Levin in Central Park last August, the lawyer for the man who has admitted killing her has made an issue of the young woman`s sexual past in pretrial hearings.
In courtrooms nationwide many women still find that their legal claims and credibility or character are being judged on the basis of factors that seem to many legal experts and feminists to be antiquated, irrelevant and prejudicial: the company they keep, their sexual mores and how they walk, talk, dress and handle their emotions. Legal experts and social scientists say this is often true whether the issue is custody, sexual assault, domestic violence, the division of marital property or the awarding of damages in wrongful death lawsuits.
The problem was examined recently at a conference sponsored by the New York State chapter of the National Organization for Women and 25 other groups. The impetus for the meeting was a 313-page report compiled by the New York Task Force on Women in the Courts, which was issued just over a year ago.
The 23-member panel concluded after an 18-month study that sex bias was
”pervasive.” It went on to say: ”Perhaps the most insidious manifestation of gender bias against women–one that pervades every issue respecting the status of women litigants–is the tendency of some judges and attorneys to accord less credibility to the claims and testimony of women because they are women.”
The findings were almost identical to those made in November, 1983, by the New Jersey Task Force on Women in the Courts, the first such panel to study the question of bias against women within a state court system. More than a dozen states have since set up similar panels.
While noted state judges, including Chief Justice Robert N. Wilentz in New Jersey and Chief Judge Sol Wachtler in New York, have declared sex bias to be ”intolerable,” there is still resistance to change in an adversarial process in which stereotypes are frequently exploited.
Women who take the witness stand are vulnerable to two particular stereotypes, according to Dr. Martha R. Burt, a social psychologist at the Urban Institute, a research organization in Washington. One stereotype, she says, holds that women are childlike and are not ”accurate perceivers of what`s going on at the moment because emotions cloud their view.” The second stereotype, Burt says, is that woman are sly, vindictive and manipulative and therefore untrustworthy.
Social scientists have found that a woman`s sexual behavior often becomes an issue even in cases that do not involve rape. ”All you really have to do to prove she`s a bad woman is to deal with her sexual behavior,” Burt observes. ”She could have paid her bills for the last 80 years.”
For example, in a New York City paternity case in which tests indicated that there was a 99.99 percent probability that a man was the father of a woman`s child, a family court judge ruled against the woman because she had had six sexual partners in two years. The decision was overturned on appeal last year, but it left the woman`s lawyer, Claire Hogenauer, fuming. ”If a man had had the number of sex partners that my client had in that period, he would be considered inadequate or inactive,” she said in an interview. ”But she, on the other hand, was considered promiscuous. But more than promiscuous, she was considered a liar.”
Citing several recent cases, Harriet Newman Cohen, a matrimonial lawyer, said she would advise a woman seeking custody, child support or alimony to be very discreet if she was seeing another man, even if her husband had long ago abandoned her for another woman and was flaunting the relationship.
”I would tell her, `The court is going to look at your conduct differently from how it deals with his,` ” says Cohen, a partner in the Manhattan law firm of Solin & Breindel. ”Where the court will fault her for having a `love nest` with a `good-looking paramour,` it`ll say he has created a `nuclear family.` ”
It is the credibility of the rape victim that is ”uniquely suspect,”
according to the panel`s report. That point was emphasized by Elizabeth Holtzman, the Brooklyn district attorney, at the recent National Organization for Women conference. ”Nobody asks a robbery victim why she was out at night carrying money, why did she come home from her job at night exposing herself to robbery, why she was on the subway,” Holtzman says. But when the issue is rape, ”juries will hold that woman to a much higher standard.”
Prosecutors say that ”rape shield” laws, which were intended to protect victims from the freewheeling inquiries into previous sexual encounters that once characterized rape trials, afford no protection when the victim knew her assailant, even as a casual acquaintance with whom she never had sex. In such cases, ”the defense strategy is to make the jury think that there has been a sexual relationship,” according to Linda A. Fairstein, chief of the sex-crimes unit in the Manhattan district attorney`s office.
”Little things work against her,” Fairstein said, ”like the fact that she invited the guy in for a cup of coffee or for a nightcap or even went to his place. There is then the presumption that she wouldn`t be there unless it was a sexual encounter.”
Such insensitivity was evident when a judge in upstate New York, John J. Frommer, made remarks to reporters after giving a one-year jail term to a rapist who had broken into a woman`s home and repeatedly assaulted her. ”I think it started without consent,” Frommer had said, ”but maybe they ended up enjoying themselves.” The judge was later censured.
Some feminists and victims-rights advocates say that Levin, the Central Park slaying victim, has come under the kind of scrutiny that rape victims often endure. Robert Chambers, the defendant, has told authorities that he accidentally caused her death after she hurt him during rough sex play that she initiated. Chambers` lawyer, Jack T. Litman, unsuccessfully sought Levin`s diary, which he said contained references to her sexual dalliances.
Many litigators and legal ethicists say that Litman was correct in seeking the diary in pursuit of his client`s defense. They also support the vigorous and often unpleasant cross-examination of Hanson by Alton H. Maddox Jr., the lawyer for one of the men charged with attacking her.
Maddox did not respond to telephone calls to discuss his strategy. Litman has declined to comment because of the approaching trial.
Others think there should be checks on defense lawyers. ”I think that vigorous and effective representation doesn`t necessarily have to mean exploitation of racial or gender bias,” says Elizabeth Schneider, an associate professor at Brooklyn Law School.
Cohen noted that in the Hanson case, Maddox, who is outspoken about stereotypes that diminish the credibility of black victims and defendants,
”took the very type of negative and unacceptable assumptions to diminish the credibility of a woman and to utilize subliminal suggestions about a woman: that she is not worthy of belief, she is nothing but a lesser kind of a being and you must view her as someone about whom you should be skeptical.”
But efforts to appeal to prejudices of judges and juries are sometimes rejected, according to several lawyers. Lynn Hecht Shafran, a lawyer who directs a national program to educate judges about sex bias in the courts, cited as one example the 1983 gang-rape case in New Bedford, Mass. Jurors there convicted four of six men who had been charged with assaulting a 22-year-old woman on the pool table of Big Dan`s Bar. The jurors, in convicting the men, and Judge William G. Young, in sentencing them, rejected the defense position that there was no rape because the woman had no business in the bar alone and had enjoyed sex with the men.
Cohen, the matrimonial lawyer, says Hanson`s case was another example of jurors seeing through objectionable defense tactics, for in the end the jurors rejected the defense claims and convicted the men on trial.
Critics of the way women are treated as litigants say there is a growing willingness of state court officials to recognize that there is a problem and work toward eradicating it. At the same time bar associations around the country are working to sensitize their members, and efforts are under way to make sex bias a prominent part of law school curriculums. Still, Shafran said, ”There`s a lot of tension in making this issue public.”
