It is an immutable law of SVU that if a wealthy young woman has a significant role before the second commercial break, she will either turn out to be a rape victim or a mastermind behind the assault – even if it was gang rape by a bunch of crazed strangers in a crowded nightclub. Tonight’s episode stayed true to this silly form.
Recap:
Two pretty young women get ready for a night on the town. Bubbly Brit persuades shy Gabby to wear a strapless yellow top. “Jake will love it!” Brit gushes. Gabby, Brit and preppy Jake go to a nightclub and have fun watching the band, until fireworks go off behind the stage. (Um, didn’t we learn that was a bad idea after the Great White tragedy? Are fireworks even allowed at indoor concerts any more? The lawyer in me starting calculating the nightclub’s tort liability, and there were a lot of zeros.)
Anyway, in the midst of the fireworks, someone pulls down Gabby’s top, exposing her breasts. Seeing this, a bunch of scraggly male clubgoers descend on Gabby, push her to the ground, and violently gang rape her.
At first, our detectives think the head of club security, Frank, was the ringleader. But Frank served a couple tours in Iraq and Afghanistan, and is suffering from PTSD. Confused, he admits to the rape, then realizes he didn’t do it, and eventually helps ID the real bad guys.
Turns out, there are two sets of bad guys. First set: the scraggly clubbers who actually raped Gabby. Second set: three of Gabby’s rich prep-school friends, who pulled off her top in the first place. See, Gabby’s ex-boyfriend, Alec, wanted to get back at her for dumping him. So his BFF Brit befriended Gabby, got her to wear the flimsy top, brought her to the club, and signaled for the de-shirting to begin. Jake was in on it too. The trio paid a blue-collar kid to “top-shark” Gabby, that is, pull her top off in order to take a topless photo of her.
Who should the detectives focus on: the shirt-snatchers or the gang rapists? The shirt-snatchers, of course! Another immutable law of SVU requires immediate prosecution of any character who is questioned while: (a) carrying oars at his rowing club, (b) wearing tennis whites, or (c) shopping at pricey boutiques. Since our preppy trio did all three, they are immediately indicted.
ADA Barba apparently gets high off-screen, then argues that because the prep-school kids conspired to top-shark Gabby, they should have foreseen the resulting gang rape, and can be held legally responsible for it. Thereupon follow some extremely silly trial scenes (more on that below). Frank realizes halfway through his testimony that someone videotaped the whole assault. Our detectives track down the video, which shows the rich kids thumbs-upping each other before initiating the top-sharking.
Alec, Brit, and Jake all plead guilty to conspiracy to commit aggravated sexual assault and are sent to Rikers.
Verdict: C-
What they got right:
The Woodstock music festival in 1999 ended with allegations that several women had been raped while in the mosh pit at the event. The descriptions that came from that event – of chaos within densely-packed crowds, mob mentality, and sexual violence – were captured in tonight’s episode.
What they got wrong:
Barba’s a great character, but he was totally off his game tonight.
First, he said that the DNA on Gabby’s body after the attack would “only show proximity,” not an assault. But there were bite marks, and forensic testing would be able to tell if the DNA was from saliva. If you’ve got someone’s saliva in a victim’s bite mark, that’s not just proximity – that’s an assault.
Worse, was Barba’s theory that he could convict the top-sharking kids for rape. Sure, the kids were horrible. But there was no legal basis to hold them responsible for the gang rape committed by strangers. The prepsters conspired to take a girl’s shirt off and photograph her. Barba implied that because they’d formed a shirt-stealing conspiracy, they would be guilty of anything reasonably foreseeable from a situation where a woman is missing her shirt. But that’s not the case if the resulting crimes were committed by someone outside of their original conspiracy. Maybe Barba meant the kids had aiding and abetting liability. But to be guilty of a crime under a theory of aiding and abetting, the defendant generally must know of the direct perpetrator’s criminal purpose, must intend to aid and abet the perpetrator, and must do or say something that in fact aids and abets the crime. Here, the trust-fund kids didn’t even know the scraggly gang rapists; they certainly didn’t know about their criminal purpose. This conviction wouldn’t stand in real life.
It was silly that there was one defense attorney for all three rich kids. That would never happen in real life; the attorney would have a total conflict of interest. The kids’ best bet would be to turn on each other. They’d each need their own attorney to advise them about that option. Even if the three wanted to share one attorney, no judge in her right mind would allow it — this just sets up the perfect situation for the kids to appeal.
And you already know how unlikely it was that Barba would learn about the incriminating video in the last five minutes of trial. It was dramatic! But moments like that only happen on Perry Mason and SVU.
I’ve got more, but I’ve run out of words. So leave your comments and hit the issues I don’t have room for!
James Pollock says
2 May, 2013 at 5:16 pm“If you’ve got someone’s saliva in a victim’s bite mark, that’s not just proximity – that’s an assault.”
Not in a mosh pit, it isn’t. It means that the victim violently collided with the other person’s mouth… but since that can happen with or without intent, it doesn’t prove an assault. You’re going to need more evidence to meet all of the elements of the crime… not only can’t you prove who assaulted who in this circumstance, you can’t even establish with certainty that there was an assault (or a battery tort).
Josh says
2 May, 2013 at 5:52 pmReally? Biting someone isn’t enough to prove ANY form of assault? I’ve been in a mosh pit a couple of times, and as wild as things get, no ones forcing you to open your mouth and bite someone bad enough that it leaves any mark.
James Pollock says
3 May, 2013 at 7:14 amNot by itself, no, in those circumstances. The batterer could have been the the person with the teeth, and most likely WAS the person with the teeth. But not beyond a reasonable doubt, no. It’s similar to the case where the cops roll up on an obvious case of mutual combat. Each side says the other threw the first punch, and they were just defending themself. To convict, you need someone who saw it and testifies “that guy threw the first punch”. Or surveillance video. Or even a past history of starting fights. Or some kind of evidence of motive. Something. The more something, the better.
“bite marks” don’t necessarily mean someone meant to bite. They’re pretty strong evidence, but you’d want corroboration if there’s any alternative explanation that the jury might latch on to. The defense only has to convince one juror.
Josh says
9 May, 2013 at 2:30 am“Not by itself, no, in those circumstances. The batterer could have been the the person with the teeth, and most likely WAS the person with the teeth. But not beyond a reasonable doubt, no.”
Please note my emphasis on “ANY form of assault”, not just necessarily the charge that they were going for in this episode.
Stefi says
9 May, 2013 at 10:56 amBiting can be assault but it can also be consensual; lots of people bite and scratch during sex.
James Pollock says
9 May, 2013 at 10:42 pmYour emphasis is noted, and still immaterial.
You can get bite marks without being assaulted. You can get bite marks from being the assailant..
You need corroboration to PROVE it was assault, particularly in the case of a charged-up mosh pit, where violent collisions between people are common, and could include an accidental impact with the teeth of another person.
Because the “accident” explanation is possible (however unlikely), the bite marks do not prove ANY kind of assault on their own.
Josh says
7 June, 2013 at 8:37 pm“Biting can be assault but it can also be consensual; lots of people bite and scratch during sex.”
Yeah, most of them are people the person KNOWS. It being consensual goes out the window, when the person being bit, DOESN’T know the biter.
Josh says
2 May, 2013 at 5:55 pmI’m interested Allison what are the other problems that you found with this episode? I agree that things came across as a bit silly here.
Mecha-Shiva says
2 May, 2013 at 7:45 pmThey constantly argue that a woman in revealing clothing is no excuse for rape.
But then here their conspiracy argument relies on the idea that gang rape was the logical conclusion to a topless girl in a crowd.
The latter depicts all men as animals incapable of controlling themselves at the slightest hint of sex, which is not only offensive to me as a man, but also seems to contradict the former, which is all about putting the responsibility for rape entirely on the rapist where it belongs.
kimsch says
2 May, 2013 at 9:50 pmHaving two more attorneys would mean two more actors… Cost cutting… 🙂
Stefi says
4 May, 2013 at 3:12 amIn England, there would have been a prima facie case of rape against Louis, Ralph, Brit and Jake, under the principle of joint enterprise. In fact, they would have been at considerable risk of conviction. So I’m surprised that’s not the case in New York.
In England, it wouldn’t matter if they knew none of the other attackers, they would all have been charged with rape, regardless of who actually did the fingering or groping because Gabby would never have been raped had Louis no pushed her topless into a crowd and the rape was a continuation of the initial attack, and none of them did anything to discourage it. The prosecution would argue the conspirators had a common purpose with the rapists.
Moreover, the alleged motivation for the attack being revenge for Gabby ending a sexual relationship with Alec, coupled with Louis’ evidence that he went to into a nightclub pulled down Gabby’s top and pushed her bare-breasted into a baying crowd of intoxicated men, and his older brother Ralph’s evidence that he videoed the rape and disseminated it over the internet and that they did it at the behest of their co-conspirators because they were paid would be considerable evidence of malice. The prosecution could argue that the conspirators were keenly aware that Gabby was at considerable risk of rape or violent sexual assault and welcomed it.
I assume from what you said NY doesn’t apply the principle of joint enterprise?
James Pollock says
6 May, 2013 at 6:46 pmAlas, L&O never shows us the resulting civil lawsuit, like the one that would have quickly followed the events in this story. Imagine the entertainment value of watching the rich kids learn that their trust funds, and any other cash lying around the house, would be turned over to the victim
Carl N. Brown says
6 May, 2013 at 7:59 pmMy gut feeling that a civil liability case against the “pranksters” would be easier to prove than a criminal case.
The application of the English common-law “joint enterprise” or “common purpose” (in Texas “law of parties” and also in Massachusetts) requires an agreement of parties to commit an act that has a reasonable possibility of “foreseeable danger” involving 3rd parties. I think is is mostly restricted to conspiracy to commit a felony that results in an unitentional or accidental death.
Stefi says
6 May, 2013 at 11:17 pmCarl, a similar standard is applied in England, but the CPS use it much more widely, and it’s not without controversy. It’s often referred to as “guilt by association”. A typical example is if A and B go out with the intent of assaulting C, and A stabs and wounds C, B is guilty if he knew either A had a knife on his person or was likely to have a knife on his person. It has been applied to gang rape, particularly where all parties involved had varying degrees of participation or their precise actions were unknown. Several girl have been convicted of rape under joint enterprise. In this case, the stripping of the Gabby in public would constitute an indecent assault, and the fact that it was done in public venue where alcohol is served in front of crowd of men, whom she was pushed into would be a very strong evidence that the rape was foreseeable. Although, this would be a trial point.
Carl N. Brown says
8 May, 2013 at 3:30 pm(For the uninitiated (including me before 2006), CPS = Crown Prosecution Service. I remember downloading a CPS guide that reminded me of the tactical equivalent of a state attorney general opinion.)
I’ll bet each of the fifty states have developed their own variety of this aspect of English common law. In the US “gult by association” gets controversial when the most involved in the conspiracy can bargain inside info for leniency, and the least involved end up harshly punished because they have nothing to trade.
Stefi says
6 May, 2013 at 10:31 pmIt depends how the trust fund is set up. Also trust funds are often indemnified against tort, and the students are also likely to have personal liability insurance.
James Pollock says
9 May, 2013 at 6:17 amThey’re minors, so you can reach the parents’ assets.
Liability insurance, as a rule, doesn’t cover intentional torts (such as battery).
The only way the trust doesn’t go to the victim is if the trust never pays out to the beneficiary… otherwise, all you have to do is file the judgment, and wait. As soon as the money transfers to the beneficiaries, levy on it.
Stefi says
9 May, 2013 at 9:37 am@ James
Sorry I respectfully disagree, assault is not necessarily an intentional tort, and although admittedly, as an avvocato I’m not familiar with US law, I’ve practised in many EU countries and every personal and professional indemnity policy I have dealt with does cover assault. In fact, I’ve represented clients charged with varying degrees of assault and homicide in criminal and civil litigation, and sports tribunals, where my fees were paid via such insurance policies. I’ve known policies to be voided for fraud, non-disclosure or the tortfeasor inviting the claimant to sue.
“all you have to do is file the judgment, and wait. As soon as the money transfers to the beneficiaries, levy on it”
The problem with that is that the client has to pay her legal fees before she receives any compensation.
James Pollock says
10 May, 2013 at 3:10 am“assault is not necessarily an intentional tort”
Very well, I’ll rephrase. Battery tort (which is what this actually is) IS an intentional tort.in common-law.
“The problem with that is that the client has to pay her legal fees before she receives any compensation.”
In the American system, parties pay their own attorneys, win or lose. We have some areas where the prevailing party can collect fees and costs from the loser, but this is not one of them. She’s going to have to pay her lawyer however the collection efforts work out. As I noted, however, since the tortfeasors were minors, you can also reach the assets of the parents. I could see 8-figure damages for pain and suffering, so I bet she could find a lawyer to take the case on contingency if they couldn’t afford to pay up-front.
Stefi says
10 May, 2013 at 4:49 pm@ Jame
You’re right. Let me rephrase: assault and battery are not necessarily intentional torts in England… but apparently they are in the US. However, having spoken to my insurers, I know that both defences against assault and battery are covered in the US in most circumstances. For instance, my insurer would cover a rugby player who deliberately stamped on an opponent in a match played in the USA , despite the fact that raking is now illegal and the player may have caused substantial damage to his opponent.
James Pollock says
10 May, 2013 at 5:51 pmHow do you negligently batter someone?
Stefi says
11 May, 2013 at 1:50 amThe classic example: Gene Kelly blinding a pedestrian by wilding swinging his umbrella on the street is certainly guilty of battery under section 39 of the Criminal Justice Act 1988 because his action were reckless. In civil proceedings his conviction for battery would be prima facie evidence for a a tort of battery. He could be sued for negligence instead.
Another example is in sport, the aim in amateur boxing is to land punches with he scoring part of the glove to someone’s head and front of their torso. Punching the opponent in the groin is contrary to the rules but is nevertheless deemed as consensual because it’s a foreseeable risk. However, there are limits a boxer who repeatedly and reckless infringes could be held liable. There have certainly been cases of this sort heard in the High court with respect to Rugby and football.
The point is that insurance policies ordinarily cover this type of offence. They would have to prove that the individual’s actions were so intentional as to obviously invalidate the policy. A teacher convicted of statutory rape with a minor they knew might be such an example but a nightclub bouncer convicted of statutory rape of a minor he didn’t know might not be. He might argue notwithstanding his criminal conviction that he had consensual sex with a woman he believed to be over the age of consent.
Intent in a civil battery is far from clear cut. In the Moonlight Shadow shooting: Steve Dagenham was shot six times in the back walking down a street in London. The surgeon extracted the bullets from Dagenham’s back. Questioning Dagenham, a villain from Kent, proved unproductive because he didn’t even acknowledge being shot. The police asked the hospital for the extracted bullets but the hospital refused without Dagenham’s consent. The hospital successfully argued before a judge that to hand over the bullets would amount to a battery because Dagenham had not consented to having the bullets removed, and that the doctors acted properly in removing the bullets without consent to save his life (thus no battery) but would not have done so if they removed them for the benefit of a criminal investigation.
Stefi says
11 May, 2013 at 3:19 amI think you misunderstood what I said about a client being left paying her own fees after obtaining a judgement against a defendant without means and waiting for a trust fund to payout. However much the lawyer’s percentage is they only get a cut of what’s recovered. I’m aware that there have been eight figure awards in the US for rape, but they’re always appealed and in most cases unrecoverable. Even against a wealthy defendant that’s unrealistic. Nafissatou Diallo received £950,000, less £320,000 in legal fees, leaving her with a settlement of £630,000. Incidentally, not a penny came out of Dominique Strauss-Kahn pocket.
You also say lots of lawyer would wait on the never never, which I find surprising. I know I wouldn’t because I can earn the same fees and get paid on another case. Would the lawyer insure against loss ? In Europe, it’s always an effective strategy against a lawyer representing a client on a shoe string to expand costs. Lots of claims are discontinued as a result of aggressive spending.
Incidentally are you sure the kids were minors on that episode, if so shouldn’t they have been charged for child pornography related offences for the creation and distribution of the video. Suing the parents makes sense if they’re insured or independently wealthy otherwise go after the club for negligence. They didn’t put enough security on for the size and capacity of the venue.
Anyway, interesting talking to you.
James Pollock says
12 May, 2013 at 3:12 am“However much the lawyer’s percentage is they only get a cut of what’s recovered.”
Yeah. Parents with deep pockets. The lawyer’s going to get paid fairly quickly (they might have to wait to get a cut of the hypothetical trust funds, but they won’t go home empty-handed.)
“Nafissatou Diallo received £950,000, less £320,000 in legal fees, leaving her with a settlement of £630,000.”
There were problems with her case, making her a poor complainant in the U.S. Criminal charges were dropped because the prosecution didn’t think they could get a conviction at all.
“I know I wouldn’t because I can earn the same fees and get paid on another case. ”
We currently a significant surplus of lawyers relative to paying work. 5 successive classes of law students have graduated into the face of no hiring, and many law firms are contracting, cutting loose lawyers who aren’t generating enough revenue. By contrast, this is an almost perfect case… deep-pockets defendants who pled guilty to criminal charges, and slam-dunk evidence of guilt. Yeah, she’s gonna find a lawyer to take the case.
“shouldn’t they have been charged for child pornography related offences for the creation and distribution of the video.”
Depends on what’s on the tape they actually made/distributed. They indended to catch her half nude, which is not in itself “pornography”. The American justice system is struggling with the question of where that boundary is, given the number of girls who shoot and distribute nude pictures of themselves.
In any case, distribution of child pornography is a federal crime, which means it would involve different investigators, different prosecutors, and a different trial.
“otherwise go after the club for negligence. They didn’t put enough security on for the size and capacity of the venue.”
This is a different suit, which they could also pursue. I’m not sure how effective it would be… I’d hae to look up New York’s opinion of implied assumption of risk. I’d go after the rich kids and their parents first, then discuss settlement numbers with the club’s insurance provider.
The closest thing to “sporting battery” I’m familiar with was a Canadian case, where a pro hockey player was assaulted on the ice duirng a game. But, it was clearly an intentional battery. In your hypothetical boxing scenario, I see a case for battery (against the boxer) and negligence (against the referee, and possibly whatever sanctioning body provided the referee.)
As for Mr. Kelly, I don’t think he’d face criminal charges, and he’d be sued (successfully) for negligence.
Finally, on the subject of insurance, it seems that NY has a general rule that liability insurance cannot cover intentional torts. I found this in a very non-authoritative source, however, in an article describing the fact that intentional torts ARE covered by “Uninsured motorist” coverage held by the victim. This makes sense. If, as in the case cited, the driver of a vehicle intentionally drives into a crowd of people, this is an intentional tort and the driver’s insurance does not cover this liability. Therefore, for claims of this type, the driver is uninsured and “uninsured motorist” coverage applies.
In practice, the prohibition on liability insurance for intentional torts means that the legal theories for recovery are phrased in terms of negligence… commonly seen as “negligent hire” or “negligent supervision” against the tortfeasor’s employer, which allows the plaintiff to reach the employer’s insurance coverage. Of course, this requires satisfying the requirements of respondat superior.
Alternatively, there is apparently a growing tend of naming the non-offending parent in cases of abuse of children to reach homeowner’s liability coverage, again on a negligence theory, because the insurance will not pay on the intentional tort of the offending parent.
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