Unsafe at Any Age

By Andrew Vachss
Originally published in The New York Times Op'Ed, June 15, 2005

A trial is not a search for truth. It is a contest, and often, one that produces no winners. In certain cases—the Scottsboro Boys and Roy Bryant and J. W. Milam in the murder of Emmett Till—a trial produces an outcome so repulsive that we are shocked into individual and collective self–examination. Other trials cost us much, but teach us nothing. Guess where the Michael Jackson verdict fits in?

With that verdict, the pious waves of outrage are as misguided as the verdict was predictable. Overwrought posturing to the contrary, "pedophilia" was not on trial; a celebrity was.

Does that mean that if a noncelebrity had committed the sex acts alleged in the Jackson trial, he would be facing the endless years of incarceration we were constantly reminded of throughout the proceedings? No. The truth is that a defendant who pleaded guilty would probably have disappeared into the probation–and–treatment maw without a ripple, resurfacing later as a (possibly) registered and (supposedly) rehabilitated ex–offender. Until the next time.

Ask any experienced defense lawyer: the real risks are for an accused person who is innocent. A guilty defendant has many more options available.

Sure, it's easy enough to blame the Santa Barbara County District Attorney's Office, and hard to imagine a softer target. But a calmer look at the probable motivations behind the acquittal will suggest that the jury could certainly have perceived Mr. Jackson's accuser as a victim, and yet have been unable to come to a decision as to the identity of the true perpetrator.

No matter what the experts proclaim, this trial was not a "swearing contest," not the classic "he said, she said" situation. The jury heard the testimony of the accuser, but not that of the accused. Indeed, had the district attorney presented only the accuser, the verdict might have been otherwise. The prosecution's decision to showcase the accuser's mother—even to the extent of vouching for her in closing argument—was the skull–and–crossbones label on what it was asking the jury to swallow.

The jurors might have believed a child was sexually assaulted by Michael Jackson. But they surely believed the mother of that child was a professional scam artist, a perjurer and a fraud. (Even the prosecution acknowledged that she was a welfare cheat.) And it is certainly within the realm of possibility that they regarded her as something far worse: a mother who trafficked her own child to a potentially dangerous individual in the hope of a multimillion–dollar payoff.

How many jurors wondered why that mother had not been indicted for, at minimum, gross neglect? After all, wasn't this case all about the district attorney's office protecting a child?

Whatever Michael Jackson did or didn't do to the accuser, he didn't lie on the witness stand about it. And some juries take such things very personally. Whatever Michael Jackson may have done, the jury knew he didn't jump out of the back of a van wearing a ski mask and kidnap a victim. The child had been delivered to him. And whatever Michael Jackson may have done, he wasn't wearing a disguise. His most prominent public persona is not that of a musician. (Quick, name his last hit single; extra points for its decade.) Instead, he is best recognized as a bizarre, secretive, hyper–privileged human being who believes that sharing a bed with a little boy is something to which he is entitled.

Michael Jackson has another reputation, too. It is a matter of record that he has paid many millions to settle allegations of child sexual abuse. The jury heard all about that. Did this convince them that Mr. Jackson was more likely to have committed crimes against the accuser in this case? Or that he was more likely to be the target of an extortionist using her own child as bait?

So what have we learned? Inherent in American law is the "clean hands doctrine." You cannot commit a bank robbery and then sue your accomplice when he cheats you out of your share of the loot. This doctrine is applied in civil, not criminal, cases. But perhaps we have just witnessed the birth of a new form of jury nullification, one that demands not only innocent victims, but innocent motives for bringing the case.

The judge would have warned the jury against being influenced by news reports on the case, but could any judge excise from the minds of modern–day jurors the overwhelming impact of "fictionalized fact" TV shows like "Law and Order" and "C.S.I."? When a defense lawyer challenges, "Where's the DNA?" how many jurors, acculturated to the (misguided) belief that there is "always" forensic evidence, nod their heads and hold its absence against the prosecution?

The trial of Michael Jackson was a badly scripted melodrama, rendered even more insipid because we could so easily guess the ending.

In the months since charges were filed, I have heard people profess intense anguish that Michael Jackson might "get away with it." Each time, I asked these people what other possible miscarriages of justice concerned them, past or present? I asked if they knew that in many states, including New York and California, the penalties for sexual abuse of one's own child are markedly less than those for abusing an unrelated child. I asked each of them if this incest loophole also provoked their outrage; if they were prepared to actually do anything to change such laws. Not one ever answered.

Let us not pretend that the fanatical interest in the Michael Jackson case signals a new wave of concern about child protection throughout the world. Sure, producers are emptying their Rolodexes, and professional pontificators are clogging the airwaves. Yes, the "false allegations" crowd is already crowing that this case proves the validity of their contention that most such prosecutions are a witch hunt. At the same time, the contingent that claims that children never lie about sexual abuse is bemoaning how power and privilege overruled justice. But not one single word of any of this represents change. The only thing altered by the Michael Jackson verdict is that now we won't have to listen to the prison rape "jokes" that would inevitably have followed a conviction.

What does the Michael Jackson verdict mean to the future of child protection in America? Nothing. The verdict only underscores one fundamental, persistent truth: when it comes to child sexual abuse, from public perception to prosecution, nothing has changed. Nothing at all.

Andrew Vachss, a lawyer whose practice is limited to the representation of children, is the author, most recently, of the novel "Two Trains Running."

© 2005 Andrew Vachss. All rights reserved.