Folks — Today’s recap is brought to you by my friend and renowned legal guru Leslie Budewitz. I’ll will be back next week. Many thanks to Leslie for her awesome recap! This is a real treat — Leslie is one of the country’s foremost experts on legal accuracy in fiction.
Allison’s under the weather this week, so I’m your brave–or foolhardy–substitute, Leslie Budewitz. I’m a Montana lawyer with experience on both sides of the law– civil and criminal, that is. The closest I’ve come to prosecuting SVU cases–and the closest I’ve come to wearing stilettos in the courtroom–is to drive an SUV with studded snow tires. I’m the author of Books, Crooks & Counselors: How to Write Accurately About Criminal Law & Courtroom Procedure, winner of the 2011 Agatha Award for Best Nonfiction. Death al Dente, first in The Food Lovers’ Village Mysteries, will debut in August 2013. I blog about the law for writers at the Law and Fiction blog.
RECAP: We first meet Avery Jordan, a 30-something TV sports reporter, in a locker room, where she politely but firmly fends off flashing and pawing. We next meet her at a coffee shop where she tells Olivia she was attacked a month ago, at home. She told no one, and can’t bring herself to say “rape.” But that changes when she finds an envelope at her door. After a road trip, her cameraman, Rick Purcell, offered to carry up her bags, then raped her. He’s been calling ever since, and now he’s leaving photographs.
Cragen orders investigations of Avery and Rick, a law school grad who never took the bar. And boy, is Rick slick. “An unspoken attraction,” he says. “He must have found out”–referring to Avery’s affair with Jason Hollis, a married network anchor. Rick had been spying on Avery and Jason for a year, installing cameras in her hotel rooms. Tests find semen from two men on her sheets.
Avery worries about the affair coming out. “In theory, rape shield will protect you,” Olivia tells her. Rick is charged with first degree rape and aggravated stalking.
But Avery is pregnant. She’s incredulous–her infertility led to a divorce. DNA establishes Rick is the biological father.
At trial, Olivia testifies with competence and compassion that rape survivors can take years to come forward. Rick was her co-worker–reporting the assault could damage her reputation, harm others, and cost her her job. But ultimately, she could not let him get away with it. Nick notes the stalking is strong evidence of nonconsensual sex, and Fin found copies of the videos on Rick’s hard drive. Jason, the weenie, balks at testifying, then agrees. Rick had gone after him, too–the reason he broke off the affair.
A first-class egomaniac, Rick interrupts the trial repeatedly and demands to represent himself. We’re spared the legal process–and mid-trial, the judge would have kept it short–but the witnesses aren’t spared one bit when Rick starts his cross. No, sirree. Ever seen a rape victim keep the baby, he asks Olivia, who replies with equanimity: “It happens.”
Avery–played by Lauren Cohan, who’s looking like the Walking Dead about now–explains how she’s come to bond with the child she thought she could never have.
Rick calls his expert, a congressman and retired obstetrician playing the part of Todd Akin, the former Missouri congressman and 2012 Republican candidate for U.S. Senate who torched his campaign with the idiotic remarks that give this episode its title. Over token objection, he testifies that it is “nearly impossible for a victim of legitimate rape to become pregnant,” that a woman’s body has “a mechanism for shutting down ovulation.” (No one points out that sex doesn’t trigger ovulation, and that Avery’s egg was likely in transit long before Rick’s semen entered her body. If she’d ovulated after sex, not before, she’d likely have conceived a girl.) But Fin and Amanda have done their job. The prosecutor establishes that the doctor’s research is 40 years old and he hasn’t practiced in 12 years following disciplinary action. (Translation: bad acts, probably sexual, that the victim is barred from discussing.)
The jury convicts Rick of stalking but acquits him of rape. A female juror bought the “legitimate rape” argument. Avery goes into labor and has a healthy boy.
But it was only 47 minutes after the hour. What next? Does Avery kill Rick? No. Rick sues her for custody, claiming she’s such a mess–unemployed, depressed, on meds–that she’s not a fit mother. We’re told 31 states allow such suits, generally used to pressure the complainant to drop charges, but that New York has no law. The family court judge tells Rick that despite the verdict, his actions were “reprehensible.” She awards Avery sole custody but “with great reluctance” gives Rick as biological father 2 hours of weekly supervised visitation.
The first Saturday, Rick waits at the precinct, a chilly place. Olivia is with Avery, who’s packing to leave. Not a good idea, Olivia says; wait for him to make a mistake and take him to court. But Avery’s had enough of courts.
Olivia returns to the station alone. The detectives all keep up the pretense that they don’t know what’s going on, that Avery and the baby are still at the pediatrician’s. “Somewhere beyond extradition,” Olivia tells Nick. And then the kicker: “Remember when you asked me about my father and I told you it was a long story? It’s not that long.” And that, friends, is why we love this series.
MY FAVORITE LINES: The prosecutor’s objection: “Argumentative and ridiculous.” I may borrow that one. And Avery’s custody lawyer’s comeback when Rick testifies he called and sent photos to show Avery how much he loved her: “You never heard of flowers?”
WHAT THEY GOT RIGHT:
1) The judge rightly says Rick has the right to represent himself–called pro se or pro per, although often, questions arise about the defendant’s mental competence to make that choice and whether he has sufficient intelligence, understanding, and language skills. No such questions here.
Judges hold pro se defendants to the same legal standards as lawyers, but give them some leeway on procedure. I thought both the criminal judge and the family court judge a touch lax with Rick, tolerating too many badgering questions and loaded comments–especially in questioning Avery–but it all served the drama.
2) I don’t know enough about custody laws to call that one, but the judge did apply the right standard, the best interests of the child. The hearing took place awfully soon–barely a month–but an emergency hearing for a temporary arrangement could be fast-tracked.
KINDA SORTA NOT REALLY: Rape shield laws prevent a victim from being questioned about her sexual history, unless it’s past sexual conduct with the accused, or it’s relevant to show the origin of semen, pregnancy or disease at issue in the case. (State laws vary; I’m quoting Montana’s.) Avery’s relationship with Jason was relevant to show the presence of semen from two men–but that wasn’t relevant to the rape charge. She admitted sex with Jason, and there was no doubt that she’d had sex with Rick–only a question of consent. But the writers didn’t make her sexual history a big issue, so I’ll give them a pass.
WHAT THEY GOT WRONG:
1) Good criminal defense lawyers are tough. They’ve got strong personalities and brook no nonsense. This one let Rick make faces and objections. Client control ain’t easy–I say, having once practically tackled a client to keep her from charging the bench and interrupting opposing counsel–but this guy was a wuss.
2) Oh, where to start on this so-called expert? Experts can testify only if their specialized knowledge will help the jury understand the evidence, or is necessary to determine a fact at issue. Okay, so far. But the expert must be qualified. Dr. Congressman testified based on his experience, but made no showing that he had particular experience in dealing with rape victims. Many O.B.s don’t (says the doctor who watched the show with me). And we’re told that admissibility has been decided pre-trial–as most such challenges would be–under Frye, a 1923 Supreme Court case. My late-night five-minute legal research says Frye still applies in New York–it’s been superseded in the federal rules and in many states. (We’ll ignore the “pure opinion” wrinkle because I doubt it applies.) Generally, Frye requires that expert testimony be “generally accepted” in the scientific or medical community. And the medical experts who filled the airwaves after Akin’s remarks made clear that the “mechanism” argument flunks that test.
But of course, if they’d gotten that right, we’d have had to watch American Idol and please, please, not that.
Crime, slime, and a satisfying ending, sharply written. What more could you ask for?
What do you think, SVU fans? Fry Rick–or anyone else–in the comments, but be gentle with your humble substitute!
jack says
28 March, 2013 at 4:54 pm“KINDA SORTA NOT REALLY”
thank you for including a middle category, I like her reviews but it irritates me the way ALLISON tends to list things as inaccuracies that are just odd or implausible
PJ Nunn says
28 March, 2013 at 5:08 pmLove your take on this, thanks!
Leslie Budewitz says
29 March, 2013 at 11:58 amThanks, PJ — and thanks, Allison!
Leslie Budewitz says
28 March, 2013 at 5:14 pmJack, glad that category works for you. I was typing at midnight, and around then, you never really know!
Valerie Horowitz says
28 March, 2013 at 5:40 pmThanks Leslie, this is a great review. Appreciate your insight, esp. on the expert. It’s a terrific and important show, and the writing gets better and better every year. This particular episode has really stayed with me. I too loved how Olivia’s emotions were expressed subtly; in light of her background, the writers didn’t explain the implications of Olivia’s parentage- we as regular viewers know her story. My husband had to work late Wed. night, so I’m going to watch it again with him.
Leslie Budewitz says
29 March, 2013 at 11:45 amThanks, Valerie. I particularly liked the writing for Avery and Rick — she was so realistic, and he was so slimey, using just enough legal lingo and turning and twisting it. Enjoy the rerun!
Sharon says
28 March, 2013 at 5:54 pmGreat job, Leslie. SVU can be hard to watch, so I don’t put myself through it every week.This one looked interesting because of the legitimate rape issue, so I decided it would be worth a look. Now I’m going to have to search the name of the actor who played the rapist and see if I can find him playing a nicer character. I thought he did a brilliant acting job playing that AWFUL Rick character. So good I want to scrub his face from my brain. The woman playing the victim was equally good, but Rick sure gave everyone in that cast something to work with. So did the writers, of course.
I can’t watch every episode of SVU because the shows are TOO well done. Knowing this stuff goes on in the real world is hard to take. Especially in a case like this one where there’s no way out for the victim except to disappear with her child.
Leslie Budewitz says
29 March, 2013 at 11:49 am“Now I’m going to have to search the name of the actor who played the rapist and see if I can find him playing a nicer character.”
Good idea, Sharon!
Aeon J. Skoble says
31 March, 2013 at 10:06 pmHe plays a good guy on “Homeland.”
Carl N. Brown says
28 March, 2013 at 6:05 pmWouldn’t the prosecution have a heads-up on the defense witness list and have a rebuttal expert to respond to the defense “expert”? That theory is — what — 1700s? and thoroughly debunked?
Leslie Budewitz says
28 March, 2013 at 6:43 pmCarl, good point — I made a note of that, but it slipped my mind when I wrote the post. Obviously the prosecution knew about the expert — they’d moved to exclude him pretrial — so why not bring in a rebuttal witness? Certainly that’s what would happen in real life.
Tan says
29 March, 2013 at 12:59 amMy big complaint on this one was that the DA just did not go after the “expert” hard enough, relying far too much on implication and on the argument being ridiculous on its face (which it -is-, but sometimes that’s not enough). Grill the guy on a little thing called confirmation bias (that bit at the end of his testimony for the defense, “Lie to your husband and yourself, but don’t lie to Doc Congress and God”). As a medical “expert”, he surely knows about double-blind studies and their benefits in not only accounting for placebo effects but also preventing the people performing the study from inadvertantly pushing their own biases on the subjects. Press him on how reproduction works and where these magical “ways of shutting down” come in. And then, as Carl says, bring in rebuttal witnesses. This argument needs to be -destroyed-, not just smugly smirked at.
Leslie Budewitz says
29 March, 2013 at 11:54 amAll good points, Tag — for the real world. But then it would have been a 2 hr episode! I admit, I did want to reach into the screen and smack him for that crack about lying to your family or your self, pretending a consensual encounter was a rape. But what Law & Order does really well is heighten the drama to make a point — and on that score, this episode was a winner.
Leslie Budewitz says
29 March, 2013 at 11:59 amOops — your name is Tan. Sorry — I’ve got a character named Tag and mistyped!
Meb Bryant says
29 March, 2013 at 6:11 amEnjoyable post, Leslie. Sorry to say, I missed the SVU episode, but you did a fine job of telling the story.
You won me over at “Jason, the weenie.” (A Montana legal term?)
Leslie Budewitz says
29 March, 2013 at 11:55 amI admit, I have never said “weenie” in a courtroom!
Katie says
29 March, 2013 at 9:26 amThis was an interesting episode and a great recap! I love Allison’s reviews, but it was fun to hear the perspective of another lawyer, especially one with such impressive credentials. Thanks for introducing yourself, Leslie! I will look up your books.
Leslie Budewitz says
29 March, 2013 at 11:55 amThanks, Katie! And thanks to Allison for the opportunity!
David DeLee says
29 March, 2013 at 11:18 amGreat recap of a fine episode, Leslie. I’ve been following your law and fiction blog for a while and thoroughly enjoy your insight and perspective there, too. Thanks for a fine job filling in for Allison, (hope you’re feeling better, Allison).
From a writer’s perspective, I particularly enjoyed this SVU episode. It dealt with a compelling issue, the regular cast actually acted in character (not something that’s been consistent this season) and the guest performances by Lauren Cohan of the Walking Dead and Homeland’s David Marciano were stellar and convincing. I particularly enjoyed how they ended it, with Liv helping Avery get out of the country. Well done, SVU. Well done.
David DeLee
Leslie Budewitz says
29 March, 2013 at 11:58 amAh, David Marciano as Rick — thanks for putting the name to the face. Marvelously slimey. And thanks for the kind words.
Robin Burcell says
29 March, 2013 at 1:07 pmNice recap, Leslie. I still watch L&O SVU, because it’s fun to match up the ripped from (several) headlines to the current episode. This was a particularly powerful episode and I found my gut twisting with the outcome of both trials, especially the custody case. It ended well, and I loved the way the cops covered for the injustice by turning the other way when necessary. And I was glad they didn’t resort to shooting him (because I wanted to!). That’s what makes for good fiction.
Leslie Budewitz says
30 March, 2013 at 12:32 amThanks, Robin. I agree — this episode was really engaging emotionally. Credit to the writers and actors, esp Cohan and Marciano. And you’re not alone in wanting to shoot Rick!
Carl N. Brown says
31 March, 2013 at 10:07 am“…I was glad they didn’t resort to shooting him…” Yes. The gimmick of having the pedophile/rapist gunned down by least-likely Little Mary Sunshine just before closing credits should be banned by the Writer’s Guild.
Leslie Budewitz says
1 April, 2013 at 11:21 amAnd of course, action stems from character. Avery never would have shot Rick, b/c that would have deprived her and the baby of each other. As Fin tells Rick while they’re waiting for her, “you want to be a father, first thing you need to learn is that it isn’t all about you anymore.”
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