Question of Consent: A Novel

by Seymour Wishman

  She had to abide by the rigid rules of the court, although she had not been informed of these rules in advance. I knew the rules. She didn’t have a script or choreographer’s plan. She had no control over events as she was scrutinized by a jury and an intimidating, robed judge looking down on her. I had control over the events of the “cross.” I could yell at her, shoot rapid-fire questions, be sarcastic, or accuse her outright of being a liar. I didn’t know if Lisa was telling the truth. It was simply my job to make her appear to be lying. That’s what any criminal lawyer worth his salt would have seen as his job.

  As time passed and the cross-examination continued, Judge Bennett sat passively, patiently, as he had to, waiting. If ever I slipped and gave him the opportunity, the judge would slam me in front of the jury. But I was being careful. I might risk contempt when the jury was out of the courtroom, but in their presence I was respectful of the judge. With my remark about Lisa’s acting skills, I had almost gone too far, but not quite, and I had withdrawn the comment right away. I doubted the judge had expected me to be aggressive like that so soon. No, the only function for Judge Bennett, patient Judge Bennett, was to wait. The judge must have felt frustrated and angry at his inability to help the witness. Lisa Altman was going through the first stages of a process she would not be able to control, and the judge had to accept that she was in my hands. Poor Judge Bennett couldn’t do anything for her. He, too, had to play by the rules.

  It was fifteen minutes into the cross, and I had planted myself ten feet in front of the witness. I stood directly between Lisa and John Phalen, blocking her view of her only sure ally in the proceedings. John didn’t realize how isolated a witness could feel. I would never have abandoned one of my own witnesses like that.

  “You sensed him following you?” I was asking my questions with directness, the conversational tone long gone.

  “I felt his presence,” Lisa responded immediately. “It was dark and I only saw his shadows in the darkness.” The veins bulged blue on the back of her left hand as it smothered the fist of her right. I, of course, noticed that, and it pleased me.

  “You heard him?” I didn’t care how she answered. I wanted a rhythm, a rhythm of my questions and her answers, a rhythm of me demanding and her relenting. I would get her to shorten her answers; then I would have her.

  “I heard his footsteps behind me, following me. I felt…”

  “Did you try to run?” I knew she had told the police that she had walked directly home without calling for help.

  “I was too frightened to run. I felt somehow that would anger him. I don’t know why. I guess…”

  “But you were in excellent physical condition from exercising sometimes ten hours a day, seven days a week, isn’t that true?”

  “Yes.”

  “Yet, you didn’t run?”

  “No, I didn’t run.”

  “Did you cry out for help or go for a cop?”

  “I was too nervous. I wasn’t thinking.”

  “You didn’t call for help?”

  “I sensed that for some reason it was just between the two of us. I was just trying to get away. I didn’t think of anyone else.”

  “You went straight for your apartment?”

  “It was my home.”

  “You led him straight to your apartment?”

  “I wasn’t ‘leading’ him anywhere. I thought I’d be safe there.”

  “You unlocked the front door, and you both entered the building together?”

  “I thought I would be safe there. It was my home.” Lisa coughed, then coughed several times more.

  I turned to the court officer standing by the window. “Could the officer bring the witness some water? She seems to be having some difficulty.”

  “If the witness is having any difficulty, she can ask me for water. She seems to be doing fine,” Judge Bennett said.

  “Actually, Judge,” Lisa said, “I would appreciate some water.”

  The judge nodded, and the court officer went into a back room. Everything hung silent in the courtroom; all action was suspended. I turned to the jury as they studied the witness. I knew Lisa didn’t need water; I didn’t care if she did. I was pleased that some jurors would probably take her request as a stalling tactic to give herself time to think about her answers. I had asked for the water so I would appear considerate as I headed into the hardest part of the cross. Bennett knew that I didn’t give a damn about the witness, and I also didn’t give a damn about what Bennett thought.

  I turned around and surveyed the courtroom. Several of the spectators were familiar to me. They were old men and women who had attended earlier trials of mine—particularly the sex cases—mostly retired people with time on their hands. Criminal justice to them was live soap opera. I’d had short conversations with a few of them over the years.

  The court officer emerged with a glass of water and handed it to Lisa Altman. As I walked past, I said in a soft voice, but loud enough for the jury to hear, “Thanks, Tony.”

  Lisa took a few short sips. She was breathing hard.

  “Are you better now, Ms. Altman?” I asked.

  “Yes, thank you,” she said, forcing a smile that might have looked natural from the back of a theater.

  “Can we go on?”

  “Yes.” She sat erect, with her shoulders pushed down and her head held high, accentuating the long, dignified neck.

  “We left off where you opened the door for him,” I said.

  “I didn’t open it for him. He ordered me to open it,” she said, speaking with anger, but straining to retain her odd smile. Lisa’s eyes seemed to concede to me that her delay had gained her nothing. There was no course but to give in to my control over the moment, and over her.

  I had felt that point of resignation with other witnesses, and it always unleashed in me a new surge of energy.

  Sometime later in the cross I was shooting the words at her. “He threw you on the bed?” I said, taking several steps toward her. I had decided to risk bringing out the most damaging part of her testimony under direct examination again. It would be worth it if I could get what I wanted in the end. If there was no payoff, the worst evidence would be reinforced in the jury’s mind. The gamble had to work.

  “Yes, he did,” Lisa said, her inappropriate smile still set.

  “He ripped off all your clothes?”

  “Yes.” She moved back in her chair.

  “He lay on top of you?” I leaned closer to her.

  “Yes, on top of me.”

  “He pushed his knee between your legs?”

  “Yes.”

  “You struggled?” I felt my domination of the room, of the witness.

  “Yes, I struggled,” she answered feebly.

  I stepped directly in front of her, a foot away. “He entered you?”

  “Yes.”

  “You struggled?” I said loudly.

  “Yes, I struggled.”

  “You moved under him?” I yelled.

  The muscle around Lisa’s mouth began to quiver. “Yes,” she said, pushing her body into the back of the chair.

  “You wrapped your legs around him?”

  “Yes. Yes, I wrapped my legs around him,” she said, losing control.

  “He reached an orgasm?”

  “Yes.”

  “You came?” I said softly.

  Lisa tried to catch her breath. Her eyes bulged.

  “Objection! Objection!” John Phalen said, leaping to his feet. “This woman is not on trial here. It doesn’t matter how her body responded…”

  As John Phalen continued to make his objection, Lisa and I stared at each other. Both of us were trying to regain our composure from the excitement of the encounter. “I wrapped my legs around him.” That was as good as a confession, I thought to myself.

  Neither of us heard Judge Bennett sustain the prosecutor’s objection and admonish me.

  Lisa was trying to take deep, even breaths.

  I pushed my hair off my forehead a
nd stepped back a few feet from the witness. Admitting her orgasm would have been signing the confession, I thought to myself. I could feel the sweat from my armpits run down the sides of my body.

  “When it was over, you stopped struggling?” I asked in a softer tone.

  “Yes. I stopped struggling. It was over. He just left.”

  “You weren’t just acting when you were struggling, were you?”

  “No, I wasn’t acting.”

  “Are you sure? Because you did admit being aroused by it all.”

  “Objection. She never admitted any such thing,” the prosecutor said.

  “But in effect she did admit it, Judge. And I was curious to know if she’d concede the possibility that—at least unconsciously—the struggling was only an act.”

  “Sustained! And I don’t want to warn you again, Mr. Roehmer. You know your questions are improper. Restrain your curiosity.”

  Ignoring the judge, I turned back to Lisa. “As one of America’s most expressive dancer/actresses, as the critics call you, you’re very aware of the effect of your performances on your audiences, aren’t you?”

  “To some extent, yes.”

  “But you had no idea that you were having an effect on the defendant, no idea that you were provoking him, leading him on? His interest in you came as a total surprise?”

  “Objection.”

  “Withdrawn.”

  Lisa Altman’s lips were dry and slightly parted, and her eyes seemed to me faintly glazed as she stared at my chest. It was now apparent from her appearance that I had succeeded in destroying her. I looked at her with contempt. “You waited a week before making a criminal complaint?” I asked.

  “I didn’t want to make a complaint. I wanted to forget about it. I didn’t want to have to face a trial like this.”

  “You knew his name because it was sewn into the raincoat he left at your apartment. Is that correct?”

  “Yes, that’s correct.”

  “Did you think it strange that the man you claim raped you left, as it were, his calling card in your apartment?”

  “He ran out when he had finished with me. I didn’t think it was strange. I thought it was disgusting.”

  “Didn’t you say on direct examination that you delayed filing a complaint not because you wanted to forget about it but because you thought the publicity would harm your career?”

  “Yes, that too. There were two reasons.”

  “Two reasons, you say…” I paused, reviewing in my mind what I’d covered. Another few thrusts and I would be ready to close the cross. I had learned long ago the delicate balance between successfully exploiting a moment and, by going too far, either losing control of the witness or generating sympathy for her with the jury. I made the judgment of when or where to stop by relying on an intuition that told me how much was left in a witness and what kind of impression was being made on the jury.

  “The clothes, your torn clothes, do you at least have those to show us?” I asked disdainfully. I knew from the pretrial discovery supplied by the state that she hadn’t kept them. I was taking no risks now.

  “I threw them away that night.”

  “You don’t claim that the defendant had a weapon, do you?”

  “No.”

  “You did not receive lacerations?”

  Lisa shook her head.

  “You did not receive any lacerations?”

  “No.”

  “You did not receive any contusions?”

  “No.”

  “You didn’t go to a doctor, did you? There wasn’t even an internal medical examination, was there?” I knew there hadn’t been one.

  “No. No, there wasn’t. I just washed up. That was all I could think of doing. I just washed up.”

  I stared at the witness. She tried to return my gaze. I could see her struggling to look me in the eye, to show me her remaining strength. I knew she was fighting against lowering her eyes, to avoid admitting that I had beaten her. I felt exhilarated as I glowered at her. Lisa looked away.

  “There is nothing more of this witness,” I said, leaning against the wooden rail about thirty feet from the witness stand.

  Lisa stepped down from the witness stand, and walked past me. She glanced at me and quickly turned away. She was not as tall as I had thought on first seeing her, although she now seemed more beautiful, more feminine. She walked to the row of benches behind the reporters and sat down. Her face looked flushed. Breathing heavily and appearing shaken, she began watching me—more in fearful anticipation than in anger, it seemed to me.

  As her stare fixed on me, I felt a new wave of strength coursing through my body, as if another round of the cross were about to begin. On balance, the questioning had gone as well as planned, I thought. Maybe even better.

  I returned to my seat at counsel table and sat down next to my client.

  William Betz leaned over. “That was terrific,” he whispered to me. He patted me on the forearm.

  I smiled at my client reassuringly—or so it would have appeared to the jury. “Take your fucking hand off of me. Don’t you ever touch me again,” I said, speaking softly so that the jury would not hear my anger and self-contempt.

  Chapter 2

  THE FOLLOWING MORNING I began my summation, as I usually did, by citing the state’s burden to build with solid bricks proof beyond a reasonable doubt. I spent most of my two hours pounding the prosecutor’s bricks with a battering ram consisting of accusations of inconsistencies, implausible coincidences, and “literal misstatements.” In cases I considered weak, I shouted, but here I never raised my voice.

  By the conclusion of the summation I was speaking in a near whisper. “It would be more satisfying to all of us if we could understand why a woman like this would provoke and manipulate. Perhaps it was some perversion, or masochism, or lust, or hatred of men—who knows? She may not know herself. But the law recognizes the difficulty of fathoming people’s motives, and therefore imposes a burden on the alleged victim to convince you that she did not provoke the intercourse. She must prove to you beyond a reasonable doubt that she did not consent to it. Although the defendant has no such burden, we did show how my client was the manipulated victim of this tough and calculating woman.

  “If it comes down to her word against my client’s—and I think it does—you must give my client the benefit of any reasonable doubt. If she had sustained wounds and had photographed them, or if she had torn clothes she could have shown us—if there were any corroboration beyond her own testimony—we would have a different case. For you to find a person guilty, you must be convinced by hard evidence from the state. Too much is lacking here.”

  The last line of the summation was like the last line of all my summations, reminding the jury of their oath, “in the name of God, to well and truly try the case.” Summations were easy.

  When the prosecutor began his summation, I sat expressionless. Beyond this point in the trial I could no longer address the jury—not directly, anyway. “Mr. Roehmer told you all morning about reasonable doubt,” the prosecutor said. “But you have to accept what Judge Bennett tells you it is, and he will tell you that everything in human affairs is subject to some possible or imaginary doubt, and a possible or imaginary doubt is not reasonable doubt. …”

  I sat waiting. I had heard so many summations. During my first jury trial I had nervously written down every word. Now it was an effort to pay attention. At least those parts of the trial in which I was performing still excited me. And I was very good when I got excited.

  My father had sold life insurance, mostly to working-class people who couldn’t afford it. He would have been impressed by my performance in this trial, impressed that I had never lost my focus on the jury as my “customers.” My gentle, adoring mother would have been thrilled by how self-assured and decisive I’d been. Both of my parents had been dead for years: they had died while I was still in law school.

  My darling daughter, Molly, would have been proud of all the respect and
attention I was receiving—Molly was four years old. My ex-wife, Jenny, would have been appalled. She had divorced me about a year earlier. After twenty-two years of living together. Easy come. Easy go.

  “… The defendant does not deny the intercourse…” the prosecutor shouted. There was no reason for the prosecutor to shout about this point. The intercourse was undisputed. Consent was the issue, and the jury understood that. Hysterics only made the jury more suspicious. The prosecutor should have saved his outrage for the part of the case that touched on the issue of force. I should win the case on its merits, I said to myself, but this guy is helping.

  During my first year out of law school I had clerked for a criminal trial judge, Lloyd M. Singer, a gentleman of humor, intelligence, and decency. Every day in the course of his trials, “Bear,” as Judge Singer was affectionately called by his friends, made decisions based on his deep sense of fairness. I remembered, as the prosecutor continued his summation, that there had been nothing I’d wanted more than one day to be a man of such integrity and conviction as my judge. Defending Betz didn’t, at this moment, strike me as ennobling work.

  Bear had urged me to become a prosecutor after my clerkship with him. And that’s what I did, trying one case after another. And I learned my trade and loved what I learned. As far as the defendants I prosecuted were concerned, they were all guilty, I was sure.

  The prosecutor went on: “… A woman’s obligation to resist ceases once overcome by force or fear, even prior to when penetration of her body is finally consummated.”

  I suppressed a smile as I tried to imagine what the last incoherent garble would read like when the puzzled-looking court reporter transcribed her notes.

  “Why should this woman come to court and perjure herself?” It was John’s strongest argument, and I had been waiting for it.

  “Objection!” I screamed, jumping to my feet. “This is improper comment. It implies a burden of proof on the defendant. The woman admitted satisfying her lust. The defendant can’t explain her behavior afterward, and doesn’t have to.”

  “Overruled,” Judge Bennett said. “You’ve had your summation, Mr. Roehmer. The jury is admonished to disregard Mr. Roehmer’s remarks. Let’s go on.”