Editor’s Note: Deborah Tuerkheimer, a former assistant district attorney in Manhattan, is the Class of 1940 Research Professor of Law at Northwestern University. The opinions expressed in this commentary are hers. View more opinion articles on CNN.
Proceedings in the Jeffrey Epstein case reconvened on Monday in a Manhattan courtroom, where a judge announced that he will decide on Thursday whether the financier, indicted for allegedly running a sex trafficking ring, should be released on bond or remain in jail pending the outcome of the case. Federal prosecutors have alleged that Epstein has tampered with potential witnesses, wiring large sums of money to two individuals close to him during the relevant time period. (Epstein maintains his innocence regarding the latest charges.) Not surprisingly, the case has captured the zeitgeist of the #MeToo era; it is an object lesson in how money can buy silence and how sexual abusers can be protected by those with great power.
While high profile cases can teach us a lot about how our criminal justice system responds to sexual assault allegations, they also threaten to obscure the run-of-the-mill problems that sexual violence survivors face everyday. It would be a mistake to think that Epstein’s alleged victims have for years been denied real justice only because he is wealthy, or because he is exceedingly well-connected, or because friends with influence apparently shielded his misdeeds for over a decade.
The Epstein story, though horrific, is also ordinary in ways that are just as important as those that make it extraordinary. As a former child abuse prosecutor, I am struck by how much of this case resembles those that I handled – those that would likely be deemed unworthy of headlines. Stripped of the wealth and corruption, the Epstein allegations are a powerful reminder of the limits of criminal justice for countless victims of child sexual abuse whose cases will never make national news. Their silence is procured – not by explicit cash payoffs, but by the abuse itself, in tandem with a culture that defaults to doubt when accusers come forward.
The vast majority of sexual assault survivors, adults and children, never have their day in court – less than 10 out of every 1000, according to the Rape, Abuse & Incest National Network, whose estimates are based on federal government data. For those victims who file an official report (many don’t), it is often too late. Statutes of limitations for sex crimes involving minors in particular have largely been extended or eliminated, which in theory means that charges can be pursued, however long after the fact. But in practice, the passage of time often leaves law enforcement officials unable or unwilling to proceed.
Even when a complaint is made soon after the alleged crime, child sexual abuse presents unique challenges for prosecutors. To be sure, as it certainly seems with former Labor Secretary Alexander Acosta, many are looking for a way to drop or otherwise dispense with the case. (Acosta defended his role in the controversial Epstein plea deal before resigning from his position last week.) But even prosecutors with the best of intentions can run into insurmountable obstacles to pursuing justice.
I know this from experience. One case from my time in practice – this was back in the late 1990s – haunts me more than any other. It involved a boy who I’ll call Ramon. Ramon was 13 years old when he joined a neighborhood youth group comprised of disadvantaged teens. He was living with a single mom who struggled to make ends meet. She was delighted when the leader of the youth group, a man in his late 20s, took Ramon under his wing. I remember her telling me that Ramon had needed a male role model. The group leader’s special interest in her son seemed like a fortunate development.
I met Ramon shortly after he disclosed ongoing sexual abuse by that group leader. Ramon was suffering enormously, and a good deal of our time was spent talking about anything other than what happened. Slowly, over time, he was able to trust me enough to talk about it, but only haltingly, in bits and pieces. For many reasons, I believed Ramon. But I also knew that his testimony would probably not convince a jury.
Like many survivors of child sexual abuse, and many of the dozens allegedly molested by Epstein, Ramon’s circumstances left him particularly vulnerable. All the evidence suggested that his abuser targeted him, groomed him and took advantage of him. To compound this unfairness, much of what made Ramon an easy victim would also make him a shaky witness.
Ramon could not remember every detail of his abuse. Nor could he provide a linear timeline or offer a crisp narrative. Ramon hesitated in response to any question asked of him – not just questions about the allegations. And his affect was flat. Experts could explain all of this as a response to trauma. Nonetheless, it doesn’t make for powerful courtroom testimony.
Even under the best of circumstances, accusers – children and adults – encounter a deep well of skepticism when they come forward with allegations of sexual abuse. The problem of “credibility discounting” is rampant throughout the criminal justice system. The discount is especially steep for marginalized victims – women of color, poor women, trans women, sex workers and disabled women, among others. Boys like Ramon also face distinctive barriers to belief that stem from commonplace stereotypes about men and masculinity.
Along with disbelief, accusers confront the real prospect of being held responsible for what happened when they come forward. Each of these dynamics is at play in the decade-plus unfolding of the Epstein case. Some people have credited Epstein’s denials and rejected the women’s accounts as untruthful. Others have blamed the girls themselves. And for others – so many others – the worth of the accusers has been devalued; their violation has mattered less than protecting the accused. Expect these very lines of attack to be deployed on cross-examination should Epstein eventually go to trial.
Ramon, whom I came to admire greatly, would likewise have endured a terribly difficult time on the witness stand. And after all was said and done, even with the corroborating evidence, it was quite possible that a jury would not convict. Had Ramon been able and willing to tell his story, proceeding with the trial would have been the right course of action.
But he couldn’t do it. After many months and lots of hard work in therapy, Ramon did not want to testify – indeed he was not able to testify, and this wasn’t going to change, at least not for the foreseeable future. For many survivors of child sexual abuse, testifying just isn’t an option. Had more than one victim of the accused come forward, it might well have been different. But credibility in numbers does nothing to help the lone victim, or even the first of many.
In the end, the case was dismissed. (Needless to say, Ramon and his mother were consulted and updated throughout the entirety of the process.) From time to time, nearly two decades after leaving the District Attorney’s office, I think about Ramon. I wonder how he is faring, whether he has managed to build a satisfying life after having been shattered. The system surely failed him, as it fails countless others who are sexually victimized by those more powerful.
The Epstein accusers are entitled to more than an elusive promise of justice, as are those whose cases won’t ever grab the headlines. As the Epstein case moves forward, it will serve as among the most important #MeToo-era tests of the system. Whatever the outcome, it will reverberate.