US First Lady Melania Trump tours the Cape Coast Castle, a former slave trading fort, in Cape Coast, Ghana, on October 3, 2018. (Photo by SAUL LOEB / AFP)        (Photo credit should read SAUL LOEB/AFP/Getty Images)
Melania Trump: I'm one of the most bullied
02:31 - Source: CNN

Editor’s Note: Elie Honig is a former federal and state prosecutor and currently a Rutgers University scholar. The views expressed in this commentary are his own. View more opinion articles on CNN.

CNN  — 

In an interview with ABC News, first lady Melania Trump said that victims of sexual assault “need to have really hard evidence” before coming forward. She added, “I do stand with women, but we need to show the evidence. You cannot just say to somebody, ‘I was sexually assaulted’ or ‘you did that to me’ because sometimes the media goes too far. …”

The hypocrisy is jarring. Trump proclaimed that she “stand(s) with women,” yet, in the next breath, opined that sex crime victims should not be believed unless they produce independent corroborating evidence for their allegations. In fact, Trump badly misconstrues how sex crime cases and investigations actually work. At the same time, she sends a dangerous message that threatens to discourage sex crime victims from coming forward to hold their attackers accountable.

Elie Honig

Trump’s statement is problematic because it distorts the law. Simply put, testimony is evidence. A core purpose of any trial is to elicit testimony and to enable the jury to evaluate the credibility of the witness. By her words, Trump promoted a problematic misconception that witness testimony – particularly if that witness is a victim of a sex assault – should not be believed, or should not be believed enough to visit consequences on the accused.

To the contrary, the law places great weight on the testimony of a witness, even if that witness stands alone. Judges commonly instruct juries that even the testimony of one witness, if credited, can be enough to convict a defendant in a criminal trial beyond a reasonable doubt, which is the highest standard of proof known to our legal system – and that’s even in the absence of other corroborating evidence.

Trump’s comments also are wrong from an investigative perspective. Law enforcement officers, and the public generally, do not expect victims of other types of crime to hunt for and obtain independent evidence. We do not expect robbery victims to dust for fingerprints, or fraud victims to track down bank records or hacking victims to run computer forensics. Why should it be any different for sex crime victims?

While victims sometimes do possess other evidence beyond their own testimony, it simply is not the responsibility of any crime victim to procure outside evidence. The victim’s job is simply to tell law enforcement what happened. Law enforcement then pursues other evidence that may (or may not) support the victim’s account.

This is how things are done – and for good reason. For victims to pursue external evidence on their own, first, is potentially dangerous and, second, may not comport with the law, which could render that evidence unusable at trial.

But Trump’s comments are most problematic because they discourage sex crime victims from coming forward in the first place. Sex crimes already are badly underreported across the United States. Conservative estimates show that at least 60% of sex crimes are never reported to law enforcement.

Indeed, it is extraordinarily difficult for sex crime victims to come forward for a complex combination of reasons. Victims fear that they will be shamed, stigmatized or disbelieved, or that they will be subject to retaliation by their attackers. It is noteworthy that, in the same interview in which she further stigmatized sex crime victims, Trump also proclaimed that she is “the most bullied person” in the world.

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    Trump’s message is particularly insidious because it is extraordinarily rare and difficult for young sex crime victims to come forward, particularly against authority figures. More than 85% of sex assaults against children go unreported to law enforcement. It also is exceedingly common for young victims who do come forward to do so many years after they have been attacked. As time passes, independent evidence inherently becomes more difficult to obtain. Therefore, Trump’s warning to victims that they should not come forward without external evidence, if heeded, disproportionately could benefit offenders who target children.

    Often, it takes one victim with the courage and support network to come forward to embolden others to do the same. We have seen serial sexual predators from Jerry Sandusky to Larry Nassar to Bill Cosby brought to justice largely because first one victim – and then many others – came forward about events that happened years ago. This unequivocally is a powerful and positive trend in criminal justice and more broadly.

    In her comments, Trump badly misused her platform as first lady to send a destructive message to sex crime victims: Don’t speak up on your own, because you will not be believed.