‘Not charged’ with sexual assault doesn’t mean ‘cleared’

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Last month, Pete Hegseth and Matt Gaetz — two men nominated for important Cabinet positions in the incoming administration, though Gaetz has since stepped down from the running — faced reports of prior investigations of sexual assault. The investigation into Hegseth’s conduct centered around one occurrence in 2017 at a California Federation of Republican Women convention, where Hegseth was the keynote speaker, and his accuser was a staffer. The investigation into Gaetz was wide-ranging and included Venmo payments for sex and allegations of sex with underage girls. Both men have leaned into the fact that neither was criminally charged with sexual assault. Both have also proclaimed, in varying ways, that they’ve been “cleared” of all wrongdoing.

I beg to differ.

The criminal prosecution of sexual assault cases presents unique and troubling challenges. Credibility is often difficult to parse out, primarily due to lack of eyewitnesses, drug and/or alcohol use by both parties, and claims of consent by the accused. For some reason, it’s always the victim’s conduct that is most scrutinized, rather than that of the offender.

One of the first adult sexual assault cases I ever took to trial involved drug and alcohol use, and an encounter that started one way and ended another. The defendant, testifying on his own behalf, admitted that the victim had yelled at him and told him NO, but that he didn’t think no actually meant no.

I was certain a conviction was in the bag, so was quite unprepared when the jury came back with a not-guilty verdict.

A member of my team reached out to any juror who was willing to speak with us and learned that, while the jury believed the victim’s version of events, they would have liked to have seen “more injury.” While this trial occurred at least a decade ago, I’m not certain society has changed its views on sexual assault in any significant way.

When I reviewed sexual assault cases for charging, I always reminded myself that, at least as to credibility, it would never be a level playing field. There’s a jury instruction devoted entirely to evaluating credibility and in every closing argument, I would go through each factor and try to explain to a jury why the victim’s testimony was more credible than the defendant’s. I can’t tell you how many sexual assault cases I actually won, because it’s the ones I lost that are seared in my memory.

Per office policy, if I declined to charge a case, I was required to offer a meeting with the victim to explain my reasoning. Sometimes the meeting went well, other times it did not. In most of those cases, I believed the victim was telling the truth, but did not think we could get a conviction based on other evidence that would negatively impact her credibility. In the criminal justice system, the prosecution’s burden of proof is “beyond a reasonable doubt” — as it should be.

For some reason, people prefer to believe that a victim of sexual assault is lying, as opposed to considering that the person accused of sexual assault might be the one who’s untruthful. This begs the question: Who has the most to lose? In some cases, a motive to lie can be quite evident but, in my experience, most of the victims I encountered in my career were judged for their clothing, their actions, and their drug and/or alcohol consumption, while defendants were held to a completely different standard.

In the cases of “he said, she said,” I also believe misogyny and racism play prominent roles in how people view sexual assault cases, adding yet another challenge to these prosecutions. The odds of a Black man being convicted of sexual assault on a white woman are easily higher than if the defendant is white. A striking exception can be found for athletes and celebrities, unless multiple victims come forward. It’s as if a single event could never be sufficient to convict a famous or powerful man of sexual assault. Notably, Kirby Puckett was acquitted of fifth degree criminal sexual conduct, despite additional eyewitness testimony.

Which brings us to where we are now: A little under half of our nation’s population voted for an individual who was found civilly liable — by a jury — for sexual assault. And this person, soon to be our next president, has wasted no time nominating others to positions of national trust and security who are alleged to have committed similar conduct. Matt Gaetz quit Congress to keep the Ethics Committee report from coming out. Pete Hegseth was never charged, but he ended up paying his victim to keep quiet.

And nobody seems to care.

Debbie Russell is a lawyer turned author in Clear Lake, Minn.