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In her forthcoming book Emotional Trials: The Moral Dilemma of Women Criminal Defense Attorneys, Cynthia Siemsen explores the dilemmas faced by female lawyers in cases involving brutalized female victims. It is a gripping study, which began after she read an account by a public defender in one of my own casebooks on legal ethics. Siemsen quotes at length the experience of a woman attorney: “Last year I defended a man charged with assault and rape. He and the complainant were dance partners in a club . . . .She testified that the defendant appeared at her door late one night, forced his way inside, then dragged her into the basement where he viciously raped and beat her. The client said that he had been invited into the house for sex which was interrupted when the complainant’s husband came home; it was her husband who beat her, not him.” After an emotional trial, the jury acquitted him. Afterward, the defense lawyer met with one of the jurors. “[The juror said] that she believed in his innocence because she was certain that I could not have fought for him in the way that I did, had he committed that crime,” the lawyer recalled. The defense lawyer later learned that her client was arrested and convicted in two new rape/assault cases similar to the one she had tried. That case and crime victim said the lawyer, “still haunt me.” She still thinks “about the two women that were beaten and raped by him just a few months later. Finally, I think about my role in that.” Siemsen’s book draws on interviews with women defense attorneys who have grappled with exactly that issue in cases involving sexual abuse, such as rape, domestic violence and child molestation. These women had encountered endless variations on the same question: “How can you defend him?” And they hated having to repeat endless variations on the same response: “Everyone is entitled to representation, “It’s not our role to judge them” and “I’m not defending the act . . . I’m defending the right to a fair proceeding.” What makes the book so compelling is that the author enabled these women during interviews to get beyond these ritualistic responses by focusing on different, but related, questions. How did they manage to avoid distancing themselves from victims? Were there times when their emotional responses conflicted with their moral commitments? How did they resolve those conflicts? Although the answers varied by individual and career stage, several common themes emerged. First, most women defenders worked hard to empathize with their client, regardless of the heinousness of the act. Sometimes there was reason to doubt the prosecution’s case, given that victims lie and police lie. Often factors in the defendants’ own life histories helped to explain or mitigate the offense: They were victims of child sexual abuse or domestic violence, or they had drug or mental health disabilities that called for institutionalized treatment rather than extended incarceration. In many cases, excessive penalty structures, particularly California’s three-strikes law, created incentives to provide the best possible defense. Many of these lawyers found special satisfaction in the social work aspect to their work; they looked for opportunities to help turn someone’s life around. No easy solutions By the same token, most women defenders attempted to avoid empathizing with victims. Typically, the strategy was to fall back on one’s role as an advocate: “I can’t be concerned about [them] . . . .It’s not my job.” The function of the defense lawyer was to make sure that “every arm of the government . . . plays by the rules.” However, some women lawyers made efforts to minimize the costs to other women who had suffered “horrible pain,” and then were forced to relive it in court. But while sensitive or gentle cross-examination might help, it often could not avoid the basic conflict in role obligations. The object of the woman defense attorney was to make the woman witness “look like a liar,” with all the additional humiliation that entailed. And such experiences sometimes left the lawyer with emotional scars, ulcers or an unwillingness to accept certain kinds of cases, especially child molestation. But for the vast majority of defenders in the vast majority of cases, their work was not in tension with their feminism. Rather, they saw defending the “poorest of the poor” as an extension of feminist values. It reflected a commitment to individual rights, a respect for human dignity, and a compassion for those who had been victims as well as victimizers. Reading this book not only offers answers to the long-standing question of “how can you defend him,” but also builds new respect for the women who do. Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School and an NLJ columnist.

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