A commenter left a charmingly patronizing comment on one of my earlier posts about the Mercer University related sexual battery case today, and since it so nicely leads into the post I was planning on putting up today, I think I’ll start with it. (Welcome Feministing readers here from Valena’s guest post. I hope the details below satisfy any further questions.)

What I don’t understand is why we’re so quick to believe her story over his? I mean, come on, we live in the 21st century. I highly doubt the courts dismissed her claims due to his “powerful” family! What were the details of this case? Also, you claim in your earlier posts that you contacted the plaintiff’s firm, but did you ever contact the defendant’s firm? If we want to be treated fairly as woman, then we need to view this case, and the defendant, in a fair light. Just because his family has money doesn’t mean that he’s guilty of a crime. He could make the arguement that he’s being sued BECAUSE of the fact that his family is wealthy. Come on, ladies. Let’s be fair.

Now, the first thing to point out is that, in fact, our organization includes men and women, although I’m sure none of our guys mind being considered one of the ladies. Second, what we got from the plaintiff’s law firm were some of the documents filed in the case, and what I will be quoting from below are the judge’s statements, not the plaintiff’s lawyer’s. Third, the defendant, and the judge (which I will get to at the end), did indeed make the argument that the plaintiff was only after his money, which is why his money is mentioned at all. Fourth, we believe her story over his because, depending on which research studies you use, rape survivors make false accusations below or just at the rate for other crimes, around 2 to 8% of accusations. So the odds are heavily in her favor. Fifth, what is actually at stake in the case’s petition to Georgia’s Supreme Court is the trial judge’s favoritism towards the defendant, so I think we can be excused for leaning the other way. And, finally, I’m not sure what 21st century you live in, but I live in one where money and power still gets away with an awful lot. No one should be thought guilty because of his or her money or power, but a judge who throws out a case on legally shaky grounds deserves to be questioned as to whether the wealth and power of the defendant’s family had any influence.

A lot of what is at stake in this case are questions of what kind of evidence should be allowed and/or required in a lawsuit related to sexual assault, what kinds of questions or personal beliefs it is appropriate for the judge or the lawsuit to put forward, what constitutes a frivolous lawsuit, and whether proper procedures were followed by the judge. I will try to explain as non-technically as possible (I’m not a lawyer, which helps), and please bear with me. The kinds of things that happened to Melanie Ross (she has agreed to be identified) in a judge’s courtroom in Georgia are wrong and dangerous for other sexual assault survivors. What may seem like legal quibbling could have huge consequences for other sexual assault survivors in Georgia and will be devastating for her personally if allowed to stand.

I will focus primarily on the actions of the judge, because what is currently at stake is whether he was correct in dismissing her case as frivolous. If she gets, and then wins, her appeal to the Georgia Supreme Court, all she gets is reversal of damages and possibly a trial (the case was thrown out before it reached trial) – which would be the chance to have her case heard by a jury of her peers. The facts in the case are not currently up for dispute – hopefully a jury will get to decide eventually. What is up for dispute is the judge’s interpretation of those facts. I will be proceeding from the position of the truth of her allegations in part because that is what a judge is required, by law, to do when she or he considers a motion to dismiss a case on summary judgment. According to Davis and Shulman’s Georgia Practice and Procedure, a judge considering dismissing a case must do so “viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party,” who in this instance would be the plaintiff. As you will see below, the judge did the exact opposite, skewing the evidence in the case to support the defendant. In arguing that her case should not have been dismissed, I will be constructing the evidence as required of Georgia courts, putting it in the light most favorable to the plaintiff. It’s important to remember that lawsuits are different than criminal trials, and different standards of evidence and different expectations of who had to prove what apply.

So, finally, to the case. The major issues are, in order of importance (1) the judge is requiring the plaintiff to pay the defendant’s court costs, a decision made in violation of correct procedure and an attack on the character of the plaintiff (2) the judge inappropriately questioned the plaintiff about her prior sexual history (3) the judge said that a comparable case which was decided in favor of that plaintiff did not apply because the survivor in that case had been a virgin, which the plaintiff was not (4) the judge dismissed the evidence provided by the rape kit through a contorted piece of logic that relies on a statement the plaintiff denies ever making (5) the judge found that because the plaintiff had no memory of the evening, there could be no proof of rape, although her lack of memory of the evening would seem to be evidence in favor of the allegation that she was drugged by the defendant (6) the judge used the failures of campus security at Mercer University as evidence against the plaintiff.

The judge ordered the plaintiff to pay $150,000 for the defendant’s court costs. He did so immediately after the plaintiff told the court they were appealing the decision, which is a violation of the normal procedure. What evidence was provided as to how those fees were calculated suggests that the defendant’s lawyer was billing at the rate of $660 an hour, hardly the plaintiff’s fault if the defendant chose an outrageously expensive lawyer. Moreover, lawyer’s fees can only be awarded in cases deemed frivolous. I’ll let you decide after reading some of the other issues below if the plaintiff’s case was so ridiculous as to merit the claim that a jury couldn’t possibly believe she’d been sexually assaulted. Even the judge said at one point that her pursuit of the case through the discovery phase was reasonable, and therefore one would presume she cannot be responsible for at least those expenses – so why did he fine her with them?

Georgia, like most states and the federal government, has laws that prevent rape survivors from being extensively questioned about their sexual histories involving people other than the defendant. The judge compelled the plaintiff to disclose every person she had ever dated, or engaged in any sexual activity with, including their names, dates of interaction, and contact information. This evidence was supposedly to show “consent;” the actual purpose was to humiliate the victim and discourage her and other victims from pursuing these cases. The result of this case is that any victim who brings a civil claim for sexual battery in Georgia must be prepared to discuss all of her previous sexual partners. ClarificationUnlike the federal rape shield, Georgia’s rape shield only specifically lists four criminal offenses. However, the protection of Georgia’s rape shield has been expanded beyond the listed offenses in past cases and the protection of Georgia’s rape shield should logically encompass survivors in civil cases. Other states have applied their rape shields in this manner.

The judge then went one step further, and used the information, which he should not have acquired in the first place, that the plaintiff was not a virgin when she met the defendant, to dismiss as a comparable precedent a case where the survivor was a virgin when she was raped and the rapist was found liable for sexual battery.

A rape kit was done on the defendant. No evidence of date rape drugs was found, which is not unusual since they pass from your system very quickly. Evidence was found that the plaintiff was anally raped – there was redness and a tear in her skin. The judge decided, apparently at the defense’s suggestion, that the plaintiff got the tear from shaving. The plaintiff denies that she shaves her anal area, so it is unclear why the judge decided she did. In one of the judge’s more confusing statements, he claimed that rape can’t cause tears in the skin, which is flat out untrue – as the medical professional who did the rape kit clearly stated in using the tear to determine that an anal rape had occurred.

The judge also dismissed the medical evidence of her bruising. “[b]ruises can come with a bump into furniture or from other causes.” While, indeed that is true, it seems like quite a coincidence – the plaintiff just happened to bump into something hard enough to cause serious bruising in just the places that one would likely get bruises if one was being sexually assaulted on the day that she claims she was sexually assaulted? This interpretation is particularly ridiculous given that his legal obligation when deciding whether to dismiss the case was to construe things in her favor, not reach for the most defendant-friendly interpretation possible.

The plaintiff’s lack of memory of the evening, according to the judge, “means you don’t have any proof.” “There’s no witnesses in there. There was no evidence. It’s a closed door. And there’s no possibility that there could be any proof that there was rape…” Now, first of all, that’s what a rape kit helps to establish, but the judge had already dismissed the rape kit. Second of all, there was testimony from the plaintiff’s friend that she saw the defendant give the plaintiff a drink, that the defendant then dragged the plaintiff with him into his fraternity, and that the defendant hung up the phone while the plaintiff was speaking with her friend, asking where she was. So actually, there was a witness to some suspicious behavior. Third, an experience where a victim was completely blacked out ought to be grounds for suspicion, not instantaneous dismissal. How often have you, dear readers, truly not remembered a single thing that happened during the space of several hours? A blackout that complete usually requires drugs in addition to alcohol. Now, as I said, the question here is not whether the defendant did or did not drug the plaintiff. The question is whether the judge was correct in dismissing her case as frivolous because there was absolutely no grounds for suspecting that she had been sexually assaulted.

(It is unclear under Georgia law whether the plaintiff being that severely intoxicated, whether by drugs or alcohol, would in and of itself be grounds for declaring that she would have been unable to legally consent, automatically making this interaction a sexual assault – it would be in some states – but one could certainly argue that such a possibility might also be grounds for allowing the case to go to trial.)

Finally, my favorite, albeit a small, part of the judge’s twisted logic in dismissing the claim. The judge claimed that the failure of Mercer University’s campus police to take action against the defendant was grounds for seeing the case as frivolous. The first major problem here is that this is a civil case, not a criminal one, so the police decision is irrelevant. Second, as an organization that works with college students, we hear a lot of horror stories about incompetence and failures to investigate on the part of campus security – many campus security forces are not even trained to investigate sexual assault – and the idea that their actions could be used as a basis on which to judge a victim’s claims is very scary. (Mercer University, in a related case, succeeded in blocking access to their police records, so I’m not sure the court even actually knows what the Mercer police did or did not find.) Third, this is an aspect where the defendant’s privileged status is very relevant – his grandparents founded Mercer and his grandmother remains on the Board of Trustees. Those facts alone do not prove that there was pressure not to investigate the plaintiff’s claim, but a jury should have been allowed to determine that. Again, construing the facts in the light most favorable to the plaintiff, the judge certainly should not have used the actions of the campus police against her.

To summarize this very long report, SAFER is concerned about this case because, if this decision is allowed to stand, it significantly decreases the chances that other survivors in Georgia will file civil suits against their attackers. This case demands that those who want to file (not even win) such claims in Georgia be virgins, prepared to discuss any sexual contact they have ever had with anyone, have clear memories of everything that happened (ie not have been drugged or had anything to drink), and have had a criminal prosecution of their attacker (But then, why would he or she be filing a civil case??? Civil cases are often filed when the victim feels like the police or prosecution did not adequately handle her or his case.). If not all of these things are true, the survivor better be prepared to pay the court costs of her attacker as well as her own, because clearly she should have known better.

And, oh yes – as a final note – in the classiest part of the judge’s decision, he accuses the plaintiff of being out for money. “Defendant is a scion of a wealthy and well known family… The ploy appears consistent with his family wealth being a target of a claim that was completely unsupported by facts.” That’s what makes the defendant’s money an issue here – the defendant and the judge made it one.

What can you do to help? Sadly, there’s not a lot that individual activists can do to influence the outcome of a court case, but publicity may influence a court into taking the case. So write to the Atlanta Journal Constitution or the Atlanta TV stations and ask them to expand their (very brief) coverage of the case. Share this story with any journalists you know. Read the two stories already available, here and here, and share them with others; news websites certainly pay attention to what people are reading.

UpdateThose in need of further information should contact Ross’s law firm, Barrett & Farahany, LLP.