Is the best defense always a good offense? What if I told you that there have been times when the best defense is a weird defense? Brett Kavanaugh, a U.S. Court of Appeals judge who is Donald Trump’s choice for the vacant seat in the nine-person Supreme Court, claims that he could not possibly have sexually assaulted two women in high school and college because he was a virgin at that time and for “many years thereafter.” The alleged assaults happened more than 35 years ago with nary a word from the women; to some people, their silence for this long casts shadows on their credibility. Perhaps, but what I can tell you is this: many women who are victims of sexual assault remain silent for any number of reasons, principally out of shame or fear or a combination of both. But the times are changing and many of those who had kept quiet are now electing to stand up and speak out.
This sea change in victims’ attitudes presents a challenge to defense lawyers. They need to get creative. Barefaced denials will not work anymore because nobody’s buying them. When Bill Clinton stared directly into the cameras and told America about Monica Lewinsky, “I did not have sexual relations with that woman,” and was found out, denials became kaput as far as defense strategy was concerned. In the case of Brett Kavanaugh, the jury’s still out if his virginity defense will work. Strictly speaking, a man can still sexually assault a woman and remain a virgin, stopping short of penetration because that last act is what brings an end to virginity. How Kavanaugh, a Catholic, came up with such a defense is still unknown, but from the little I know of Americans’ attitude toward virginity, it is something that a man is supposed to brag about not being. The opposite holds true for women. The logic becomes obvious: by claiming to have been a virgin at an age when most boys were supposed to have lost theirs, Kavanaugh is exposing himself to ridicule and only an innocent person would willingly expose himself to jeers from his fellow men by such an admission.
Right. In any case, Kavanaugh’s plea as the “cherry” defense is comparable to the so-called “Twinkie” defense. That one’s a doozy. It’s forever connected to a man named Dan White, who shot and killed two city officials, one a supervisor and the other the mayor, of San Francisco in 1978. During his trial for murder, White’s lawyers argued that their client was suffering from depression and his change in diet, from wholesome food to sugary junk food must have caused mood swings which affected his capacity for acting rationally on the day of the shooting. Twinkies, a mass-produced sponge cake, was never specifically mentioned—reporters cooked up the term—but the jury bought it: White was convicted only of voluntary manslaughter and was sentenced to seven years in prison. It may seem that White got off lightly, but two years after his early release on parole, he ran a hose from his car’s exhaust pipe to the car’s interior, locked himself in, rolled up the windows and turned on the ignition.
On our shores, the need to get creative when defending a guilty client also poses challenges. When defending an alleged rapist, an unimaginative lawyer will rely on the so-called “sweetheart” defense, by which the accused claims that he and the victim are an item and that their sexual congress was ergo consensual. Judges usually thumb down that defense. In one case, though, the accused claimed that he could not have possibly committed the rape because the report prepared by the gynecologist, who had examined the victim, indicated that the latter’s vagina showed only “incomplete healed lacerations.” Impossible, roared the accused, the damage should have been more severe, given the size of his penis, which was measured seven inches in length and two inches in diameter. In other words, his daughter should have been destroyed!
Look, sniffed the Supreme Court, if the female vagina can expel a human fetus, it can handle the penetration by lesser-sized objects, including an alleged seven-inch dong.
If that put-down was embarrassing, it’s nothing compared to another case wherein penis size was likewise raised, not as an issue, but as a sidebar. The victims, a mother and her two daughters, were intellectually challenged, so to speak. None of them passed the first grade; the daughters could neither read nor write except for their own names and they could not even name the days of the week or the months of the year. When asked to describe their father’s penis, one daughter described a 14-inch long monster two inches in diameter; the other daughter gave a less frightening though still generous assessment of seven inches long and one-and-a-half inches around. Because these measurements could not be taken at face value, the trial court judge ordered a female doctor to take her tape measure and do what needed to be done in the name of justice. The true dimensions emerged as four-and-a-half inches fully aroused. “In short,” wrote the Supreme Court, “it was not really that long.”
Hence, our lessons this week are: lay off baked goods, do not brag and just plead guilty when confronted with a tape measure.