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In court cases around the country, a common way to defend a client against allegations of sexual harassment or sexual violence is to blame the victim. Defense lawyers dig into a victim’s sexual history, talk about how much she had to drink before an alleged assault, suggest she led the attacker on – or worse, question her sanity.
Unfortunately, in recent years, as a city, we have had some missteps on this issue. In the case of Anthony Arevalos, the police officer convicted of sexual battery, the city defended itself using some of these techniques. First, the city hired a private investigator to follow Arevalos’ victim, then the city accused her of “bribing him with her panties.”
In one of the many Bob Filner cases, witnesses who were deposed by his defense team were attacked by attorneys representing the third parties. They were asked disturbing personal questions about their sexual histories and social lives, as if that would somehow undermine the importance of what they had to say.
Although it is the duty of the city attorney’s office to zealously defend the city of San Diego against any and all legal challenges, we must find a way to balance the interests of our client (the city) with the rights of potential victims – particularly given our role as public attorneys.
I have represented parties on both sides of cases involving sexual harassment. As a seasoned litigator and trial lawyer, I know that attacking a victim is not only reprehensible, but also not a necessary or even wise legal strategy. A skilled attorney can defend his or her client and limit liability without participating in slut-shaming and victim-blaming.
Treating victims with respect will also often save money by resolving cases early, before attorneys’ fees are racked up and before victims are so mistreated in the litigation that they seek more compensation than they would have settled for earlier.
There is also an insidious harm that comes from attacking victims. Other victims will fear coming forward when they see how victims are treated. This is something a public attorney like the city attorney should never condone, encourage or support.
This is why as city attorney I will change the way we do things when defending the city against such cases. First, we will investigate the underlying allegations to determine for ourselves whether the alleged conduct took place. We will do so respectfully and conscientious of the courage victims have in coming forward. If we determine the allegations are true, we will do what we can to limit the city’s potential liability and resolve the matter as quickly as possible, while doing what we can to right the wrong.
Second, we will not engage in slut-shaming or victim-blaming. In the workplace, there is no instance where a person opens the door to sexual harassment or sexual violence. We should not be asking victims why they wore provocative clothing, how sexually active they are or question their role in “encouraging” inappropriate behavior.
Third, we will protect witnesses or others involved in any case from the abuses of outside attorneys. It will not be enough to object when a line of questioning becomes abusive or inappropriate; rather, we will end the depositions and seek appropriate court orders to restrict the type of questions that may be asked. Our own investigators and attorneys will be similarly respectful when interviewing potential victims of sexual harassment or sexual violence.
When defending a client, attorneys seek to determine the truth of what happened at a moment in time. We can do this without personally attacking or humiliating people who may have been victims of sexual harassment or sexual violence. To do otherwise is to re-victimize these individuals and make it less likely that the next victim will have the courage to report abusive conduct.
As the city attorney, I will have the responsibility of defending the city, but to do so in a manner that also recognizes the importance of protecting victims. I do not believe these goals are mutually exclusive, and a city attorney’s office under my leadership will achieve both effectively.
Gil Cabrera, a candidate for city attorney, is principal of The Cabrera Firm and a former chair of the San Diego Ethics Commission. Cabrera’s commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.