It Happened To Me: I Was An Expert Witness In A Sexual Assault Case And Began Believing The Person On Trial Was A Victim
ALSO: Jane is having trouble keeping this secret. PLUS: Get paid to write your story here! It's a fun and easy process (though maybe not the writing part).
Hi people, new and old!
To start: If you are new here (because many of you are and I am so so appreciative of that), I encourage you not to immediately unsubscribe if today’s story or subject line doesn’t interest you. (That last one I tested showed that you as a group both open emails with SEX in the subject line the fastest and unsubscribe from them most quickly thereafter - but I get that.) The range of topics we cover here varies a lot, as do the writers, so I would love for you to look around on the Another Jane Pratt Thing homepage itself and see if something else there does appeal. I also LOVE criticism in the comments if you are generous enough to offer up any of that.
That disclaimer was meant with no shade at all toward today’s story, which I find fascinating, and has more to do with this newsletter format versus everything else you can get from going to the whole site. Anyway, today’s It Happened To Me happened because Cal wrote me (at jane@anotherjaneprattthing.com, which you should use too any time you want to write your story here - and get paid $50 for it!) with the subject line:
Re: Submission From a Non-Cis/Trans Person.
Now that’s how to get the AJPT assignment! I had told friends (including you here) that I was looking for more diversity among the AJPT contributors. Cal heard about it and wrote me with a pitch on a riveting topic I’d never heard before. Then we had to wait a while for Cal to actually submit the story because it was tied to an ongoing trial.
Side note: I have been impatiently waiting for months to write here about a friend of mine who was shockingly and horrifically murdered this year, because I don’t want to screw up the trial any more than I just might have by using the word murdered without quotes around it. (The case was in the news a bit and I can give you clues in the comments if you want to look into it.) But it is killing me - bad word choice - to have to refrain from telling you a story that I so want to tell - for my friend’s sake, for his family’s sake, for all of you to get to know what an angel of a person he actually was, and to keep that part of him alive. But the “justice” system takes time and I have to wait. I am not good at this.
Anyway Cal, with more restraint than I just displayed, kept up with me for months while the first trial resulted in a hung jury – one woman was believed and the other initially was not in a sexual assault case against the same man. And then stayed in touch through a retrial and finally, the verdict. But I won’t give any more away. Here is that story. Let’s talk about how we feel about it all in the comments, as usual.
Thanks for being here always,
Jane
By Cal Cates
My parents named me Lauren. Seemed harmless enough. Lauren’s a beautiful name for any baby with girl parts. My parts, as it turns out, were just a packaging error.
Growing up as a person who never saw themselves as a girl, I also missed many of the things that I now understand were and remain part of life for women who went the “woman route,” ifyaknowwhuttameen. In case you don’t know what I mean, I remember watching Weird Science with my brother when I was maybe 10 years old. When they “built” the woman played by Kelly LeBrock, I only ever thought she was hot. No part of me was like, “Oh, that’s how I could fashion myself to attract the male people.”
When I was 8, playing flag football with the boys, they would pull the bottoms of their shirts up over their heads when it got hot. (Because I guess 8-year-old boys in rural New Jersey didn’t just take their shirts off. I don’t know. I didn’t make the rules.) I did the same. Obviously. Because Summer.
I’ve never questioned my own story. But for people whose comfort depends on everyone’s gender being obvious and stable, my existence is threatening. I am a white, transmasculine person assigned female at birth (that means I look mannish… well, boyish honestly, and I intentionally work to present myself in this way). I’m also a massage therapist and a rabid activist for the legitimacy of massage therapy as a healthcare profession. When I get to talking about massage therapy and massage therapists, I can be pretty compelling. Downright believable, you might even say. It’s possible I might even change your mind about things you thought you knew.
That’s how, many years ago, in a town far far away, I got invited to serve as an expert witness on a case involving a massage therapist who was facing charges for felony sexual assault.
The lawyer who commissioned my expertise sent me all the police reports, witness statements, and other background information. I’d done this gig before. My job would be to use these documents to write an expert opinion as a subject matter expert on massage therapy ethics and practice as they pertained to the case. Easy enough.
Somehow, I had made it through four decades with just one scary experience with a man, while my female friends who’ve remained solidly, socially cis women tell me such encounters are regular occurrences—in dating, at work, even in their marriages. As a result, reading through the legal documents triggered a feeling tinged with something unfamiliar. Certainly, I toggled between my experiences as a massage therapist and back to the sense of unsafety that I have often felt being a trans person, but maybe I was also feeling threatened as a woman?
As I read, I felt like I was there in that room, being assaulted. My hands shook, my heart raced. I had to stop reading multiple times to let my nervous system come back to itself. It was like a panic attack, but with a side of deep and inescapable vulnerability.
Two women were victimized in this case when they should have been able to feel safe and to trust the massage therapist. They didn’t know each other, but now they would be bound to each other in the way so many other women are by the things so many men do. The cases were very, very similar. Without photos, my brain found it hard to keep their reports separate. Every time I messed it up in my notes, I piled on myself about how I was doing exactly what I hate—failing to see these women as distinct individuals. I spent hours reading, making notes in the margin, re-reading and collating my notes so I would absolutely get it right on the stand.
The massage therapist admitted to the sex crimes he was accused of, but seemed like he really thought these were consensual engagements. He appeared to be truly unsure why he had ended up in a police cruiser talking about these nothing events. I found his testimony compelling.
I submitted my expert opinion indicating that not only were the actions taken by the massage therapist during these sessions far outside the bounds of ethical practice and consent, the environment and logistics were such that consent would have been virtually impossible for either woman to grant, based on a variety of ethical precedents and concepts. Done and done.
Then, I was asked to testify.
Ruh-roh.
I have been in a courtroom exactly one other time in my life. For a moment, I imagined myself standing up in the witness box and shouting, “This whole trial is out of order!!!”
Ahem. Reel it in, buddy. Deep breaths. This is a circuit court in Podunk, USA.
After talking with the lawyer, I knew I would not likely take the stand until the end of the second day of the proceedings, and possibly not until the third day, right before closing arguments, but I had been asked to attend the whole trial so I could be available to be called if necessary. I knew I was in for a couple of days of… court...? Imagine my shock at the conspicuous absence of both Doug Llewelyn and Judge Judy when I arrived at court on the first day. A most unsettling turn of events.
Listen. Court is slow as shit. It’s so much better on TV. Hats off and a hotline number to anyone who has chosen this type of law as their life’s work. I cannot imagine waking up energized to sit in a windowless room every day of my life wading through carefully-crafted evidence and arguments only to have it all come down to which lawyer is more clever or which jury member has a grudge or unexamined trauma that wasn’t surfaced in the jury selection process.
His lawyer positioned this massage therapist as a de facto expert on “sexual” moans versus “other” moans.
The trial began and I watched them call the receptionist from the massage practice to testify to evidence that was unbelievably obvious, and this person completely bungled their very simple testimony. The defense attorney asked, “Were you working the front desk on (the dates of the incidents that are the whole effing reason any of us were in the room)?” I shit you not, the witness cast their eyes toward the ceiling with a legit pensiveness and asked the attorney to repeat the dates. Wow. This was the first witness. Did anyone believe this person?!
Woof. I began to mentally apply for a karmic refund for the hours of my life that would disappear into the miasma of this trial. We wandered through the first witness’s “testimony” and over the next two days we heard, very briefly, from the women who reported being assaulted. Then, we heard from the police officer who picked up the massage therapist. His answers were mercifully short and polished. Who wouldn’t believe this man?
Just before we broke for lunch the judge said the bodycam footage from the arrest interview would be available for any juror who wanted to see it. As I drove to lunch, I rolled this over in my mind. Wait. So, some jurors would see this footage, and some wouldn’t? Personally, if I were a juror, I would want to look under all the shells in this game, thankyouverymuch.
I guess I wasn’t the only one wondering if we’d be seeing this footage with our own eyes because when we came back from lunch, the trial proceeded with everyone in the courtroom watching every minute of that arrest video. The video showed these two dudes, the cop and massage therapist, talking about how, if, and why one of them engaged in sexual behavior in the course of his work as a massage therapist on the two occasions in question. I watched the officer normalize it so the massage therapist could feel comfortable enough to share what maybe actually happened. They joked about how sometimes one thing means one thing and sometimes that same thing means something else. Over the course of the video, I watched the massage therapist admit to the crimes he was accused of, while insisting he had every reason to believe these “encounters” were consensual.
As the video concluded, I could feel my ladyboy wheels start to come off.
I felt a responsibility to take the evidence seriously. I was surprised to feel, as I watched, like the system was kind of “working.” Despite the locker room vibe and some crafty police work, I found the massage therapist’s testimony compelling. I could see his humanity. He seemed like he really thought these were consensual engagements. He appeared to be truly unsure why he was in a police cruiser talking about these nothing events.
I found myself wondering about consent and about the well-documented truth of how humans do most of their communicating in woefully unclear and indirect ways in just about every setting. I was left with a serious shadow of a doubt. I almost believed him. I wanted to believe him.
At the same time, I was acutely aware that the showing of this video essentially meant that this massage therapist just got two full hours of airtime in the courtroom, and he hadn’t even testified yet. When he took the stand, we heard a story that was very similar to the bodycam video. The details crept out of his face like a magician was pulling scarves out of his mouth, one by one.
Except, this time, his lawyer went a step further. His shifted his line of questioning in a way that positioned this massage therapist as a de facto expert on “sexual” moans versus “other” moans. As a result, the massage therapist’s assessment of the women’s vocalizations during the session were entered into the record as part of his unchallenged testimony.
And the kicker? He admitted that he did commit what the law deems a sexual act during each session. He testified that he received good training. He said he knew that he violated the ethics of massage therapy practice. He admitted to signing the clearly worded policy regarding sexual misconduct at the place where he worked.
Wait. Did we all just watch him deny committing a crime by completely owning it? If that’s not some systemic boys’ club action, I don’t know what is.
And I fell for it.
Then it was my turn on the stand.
“Mr. Cates, do you solemnly affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth?”
When I heard “Mr,” I did the somatic shift that has become reflexive after so many years of sitting on the gender fence. I pulled my shoulders back, hardened my face, and deepened my voice. “I do.”
The attorneys both asked me questions about my education, experience and current employment. So far, so good. Next came the questions about what massage therapy is, what’s typical in a massage session, ethics and boundaries. I answered truthfully and clearly without over-elaborating, which had been my biggest fear. I deflected the attempts made by the defense attorney to twist my words and turn me around. In terms of expertly witnessing, I killed it.
And I felt empty, powerless.
The massage therapist accused in this case had just said openly and on the stand that he knew and understood everything I had been brought in to say. None of it was in question. I was relieved I hadn’t made things worse or failed in the epic ways my massage therapy colleagues had warned me about, but I was deflated knowing that my participation had not clearly tipped the scales toward the women who had been assaulted.
I’ll admit I still felt a little slow when counsel made their closing arguments the next day and the only thing they were asking was if either of these women agreed for their massage therapy sessions to become sexual. That was the only thing left in question.
Personally, I didn’t know the answer. Or did I? Still, I silently wondered, “Why would he admit it, knowing the consequences, unless he really believes he did not commit a crime?” I was deeply conflicted. He didn’t have a prior record. He presented as kind and thoughtful. He testified that he had trained as a massage therapist because he wanted to “help people.” Even so, what he did was wrong? Right?
And these women, well on their way in their lives, with futures ahead of them, and good friends who showed up in court to testify about their mental state after the massage sessions and about their years’-long friendships through thick and thin did nothing wrong. How could he do this to them? And did they, as defense counsel suggested, “go with it in the moment” and then feel guilty and ashamed after the fact, setting the legal wheels in motion that had brought us all together in this deeply fraught and intersectional conundrum?
I was spent. Every version felt impossibly possible in the chaos and immediacy of those three days. My biology and identity were at war deep inside me.
The pretzel of my stomach tightened.
Is allowing space for complexity the same as enabling harm? In a situation of possible sexual assault, “both sides” can never be a neutral framework. The biases are deep and fraught with tribalism and loyalty and shame and trauma. My essential feminist (I know. It’s complicated.) fiber was shouting, “Believe women!” while my – was it maleness? was it fairness? was it conflict avoidance?---was doing a six-seven motion.
And, just in case this didn’t already feel like a terrible episode of SVU, leaving the courthouse after my testimony, I was approached by a pair of men, hands extended, “We just want to say thank you for what you’re doing for the profession.” It was clear they had clocked me as male. A trusted source to be believed.
Flattered. Dumbfounded. Totally unrehearsed in how to handle a conversation with people I had seen in the courtroom gallery and assumed were journalists, I asked who they were. The one man lowered his voice and scanned the immediate area in a laughably Maxwell Smart kinda way, “Let’s just say we’re people with a vested interest in the profession.”
I stifled a laugh.
Wanna know who they were? Yeah, ya do. And I hope you’re sitting down.
They own the practice where the incidents in question took place. They’ve owned it for many years.
Fellas, please at least try to be less predictable and straight out of central casting. Still, I wasn’t sure whose side they were on. Obviously, nobody wants to be sued, but maybe they’re still good guys who value massage therapists?
Man, I’m a sucker.
The next afternoon, as we sat outside the courtroom awaiting the jury’s decision, the one guy, arms crossed, hips jutting out, smug, “It’s obviously just a money grab. These women saw that they could sue us and they went for it. It doesn’t even matter what happens here. They’re after the civil case cash.”
I looked up at him from the bench on which I was seated. “That is the grossest kind of dudespeak I’ve ever heard. Do you really believe that these women have gone through all of this to maybe, possibly, squeeze some blood out of your little stone?!” I was… woman? He heard me roar.
He blinked. Scoffed. Obviously a little embarrassed, but honestly only embarrassed to have been caught talking shit and possibly to have thought I was a man and on his side all this time.
I stood up and shuffled to the other end of the hallway. Shaking.
I talk a good game, but I was gutted. I quietly wondered who was really being served by the narrative of complexity that had been created in that courtroom. A narrative that had left me on my heels and a jury to wonder who had been harmed and who deserved to be punished?
The jury would be expected to decide if consent took place in each instance. All the jury had to go on was what he said and what they said.
The jury came back very, very late that night and it was complicated.
“Stop. Just stop! He’s guilty,” my wife shouted.
I was floored. Ashamed. Confused. Oh, man. I suck the most.
Since the case had begun, my cis woman spouse, who has most certainly been harmed at the hands of and by the choices of men many times in her life, had been continually checking on me. Wondering how it was going. How was I doing? She knew I couldn’t really tell her anything until it was over, but she was worried about me. I had been keeping everything I was seeing and feeling and hearing to myself, but as I drove home that third night, I called to talk with her.
I told her about how compelling the massage therapist’s testimony had been. About how I observed the women as reticent and reserved, even on the stand. About how much I wanted to believe the massage therapist, to believe that he is somehow a victim, too-- caught in system of masculine expectation, a system in which massage therapists don’t make enough money to live on, a system where we know women are not believed, but in which people are people and some people, even women, might seek out some unattached sexual pleasure when introduced to the idea in a safe setting.
I took a breath to continue, but was interrupted by her audible crying.
“Stop. Just stop! He’s guilty,” she shouted. “They’re all fucking guilty! I can’t talk to you about this anymore.”
I was floored. Ashamed. Confused.
Oh, man. I suck the most.
How could I, knowing so much about my wife’s history, just spill my unedited, self-focused, epistemologically curious version of events?! And how could I still be under the spell of the dog and pony show of “open admission as absolution” that had been created?
Stand by please while I scratch a huge hash mark in the unintended, but very real harm ledger. The silence on the phone gaped a cutting admonition. I hung up. And then? I cried so hard my nose and mouth made a suffocating snot vacuum. What kind of person could wonder if these women consented? Is this “man thinking?” Maybe the testosterone has gone to my brain. I mean, this can’t be “woman thinking.” What woman would even hint that another woman may have consented to this?
I will never know what really happened. I do know that a man is
going to jail and I think now that he should.
Or maybe I am neither or both - occupying some liminal middle ground where I can see the machinery of male power for what it is, but still find myself caught in its gears.
Everyone wants to be believed. And I want to believe them.
I will never know what really happened. I do know that a man is probably going to jail and I think, now that I have some distance from those days in court, that he should. I also know that MeToo is a deeply important response to centuries of harm that has been made invisible. And I know that I ache for want of justice in a broken system that adjudicates the actions of broken people in a broken world.
In the end, my spouse’s response shook me awake. The practice owners’ gloating revealed whose interests the fabricated complexity was really serving. And I learned something about my own position I wasn’t prepared to see: my gender-bending perspective and presentation give me access to a kind of male credibility that I didn’t ask for and which I find hard to resist.
That’s work I’ll be doing for the rest of my life.
One of the joys of publishing pieces like this one is getting to come back and click on the link and read them fresh like a reader after spending a different kind of time with them over the course of days and weeks editing, building, publishing, etc.
Things I love about this piece that I already noticed and loved as an editor: Cal's incredible, unique, spoken-sounding and blunt writing style. It cracks me up constantly. The pop culture references strewn throughout a story on such a serious topic are priceless. The other thing I loved both as an editor and a reader is how willing Cal is to go into the gray areas and the nuances and to present parts of their story that may be not their proudest moments. That to me is the best type of memoir writing and it's so important that people do it. I also appreciate Cal's wife for getting in there and setting them straight.
The ways I am reacting now as a reader include: A memory that I had a massage therapist once who spent about 40 minutes of the hour session on my breasts only. I didn't say anything. I thought it was an LA thing that I didn't understand but should go with. Another massage therapist who afterward hung around my apartment for a long time and seemed to be coming onto me, but nothing happened because I wasn't the least bit interested. I found out later that he did have sex with at least four other women who were his clients after their sessions. It's a freaky and vulnerable position to be in getting (and giving, as we know) a massage and I'm really glad people like Cal are looking out for the ethics of all of it for us.
Last thing I'll say is a big apology to Cal because the headline that ended up going out initially (the one that got the most open rates on a headline test I ran) was not what they felt represented the piece. And they were right. It has since been changed. I'm sorry, Cal, and I appreciate you and your wonderful work so so much.
And I appreciate all of you for reading it and weighing in too.
I am really curious what you all think of this: I just answered one subscriber who cancelled because they are not interested in a rape apologist story. I asked them to see where the piece ends up and that I think it contains an important message because there are people who feel the way the writer started to. I understand that the article begins there with the headline, and that that element (of even questioning believing the perpetrator) is contained in the piece, but what do you all think?