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The Gymnasts’ Army in the Age of Viral Media

March 6, 2018

THE GYMNASTS’ ARMY IN THE AGE OF VIRAL MEDIA: VICTIM IMPACT STATEMENTS’ CULTURE-SHIFTING POTENTIAL

By: Julia Wolfe, Volume 102 Staff Member

“I thought that training for the Olympics would be the hardest thing that I would ever have to do. But, in fact, the hardest thing I would ever have to do is process that I am a victim of Larry Nassar.”[1] Jordyn Wieber, Olympic gymnastics medalist, made this statement in the courtroom at Dr. Larry Nassar’s sentencing hearing in January after he was convicted of sexually abusing young female athletes. This was no ordinary sentencing hearing. It lasted for a full week and involved over 150 of his victims testifying about their experiences in the courtroom.[2] Judge Rosemarie Aquilina sentenced him to 40 to 175 years in prison after he pled guilty to seven counts of sexual assault.[3] This courtroom spectacle—as well as the underlying events involving years of covering up Nassar’s crimes—garnered extraordinary media attention, but it also put the controversial use of victim impact statements into the spotlight. It is natural to wonder, for example, if their use introduced too much emotion into the judge’s decision, or whether defendants convicted of similar crimes may receive lesser sentences when their victims are not comfortable facing their perpetrator and publicly describing their suffering. These concerns are not misplaced, but these young women revealed how victim impact statements related to sex crimes can ultimately be a force for good in the age of viral social media and #MeToo.

I. A BRIEF OVERVIEW OF VICTIM IMPACT STATEMENTS

The right of crime victims to speak at sentencing hearings is enshrined in federal law and most state laws or constitutions. Support for this practice originated in the 1970s with the rise of the crime victim’s movement, although it was not until 2004—after a failed attempt at adding this right to the Sixth Amendment—that Congress passed the Crime Victims’ Rights Act, which guaranteed the “right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”[4] There are four traditional justifications for victim impact statements: (1) conveying relevant information about the crime’s harm that is useful in deciding on an appropriate sentence; (2) therapeutic effects for the victims; (3) communicating to the defendant the harm caused by the crime, ideally leading to accepting responsibility and higher likelihood of rehabilitation; and (4) a sense of justice, that all parties affected can be heard.[5]

A common criticism of victim impact statements is that they can be so “emotionally moving” that they sway the judge into administering harsher penalties.[6] Consequently, because some victims might agree to give statements while victims of similar offenses refuse, this practice can lead to sentencing disparities.[7] Similarly, critics assert that victim impact statements are unrelated to the goals of punishment because they are not connected to the defendant’s blameworthiness;[8] they could actually negatively impact proceedings “by introducing irrelevant assertions about the offender.”[9] Academics have also argued that “victim input violates the fundamental principles of the adversarial legal system, which . . . do not recognize the victim as a party to the proceedings.”[10]

However, research shows that these concerns are generally unfounded. In reality, victims rarely give inflammatory, inaccurate, or purely vindictive statements, and judges tend to make sentencing decisions based mainly on legal considerations rather than emotions provoked by victims’ statements.[11] Paul G. Cassell, law professor, former federal district judge, and longtime proponent of victim impact statements, also points out that hearing from victims will virtually always offer new and useful information to a court, and that without it, “a judge may get a distorted picture of what happened.”[12] Of course, the effects of victim impact statements are not entirely benign. Risks remain regarding potential pressure by the prosecution on victims to testify and victims and their families’ disappointment and mistrust of the legal system when their statements do not seem to influence a court’s decision.[13]

II. IMPACT STATEMENTS GIVE SEXUAL ASSAULT VICTIMS POWER TO CHANGE NORMS

While few crime victims actually agree to give impact statements,[14] the case of Larry Nassar illustrates the unique, far-reaching potential victim impact statements can have in the sexual assault context. While the United States is grappling with the #MeToo movement and rapidly shifting sexual norms, the attention Nassar’s victims have shone on this topic and the conversation it has sparked should be encouraged.

In today’s age of social media, where anything can go viral, victim impact statements’ power is no longer confined to the courtroom. The proponents of this practice probably could not have envisaged the broader effects on society that victims’ confrontations of their perpetrators could have just a few decades later. As one journalist put it, “If we can’t talk about sex, we can’t talk about sexual abuse,”[15] and the national conversation accelerated by Nassar’s dozens of victims automatically puts some discussion of sex into the spotlight.

More people talking about this crime might even lead to fewer cover-ups in the future too. After all, the fallout of these young athletes’ very public stories has been extremely far-reaching. Public outrage recently led to resignations by Michigan State University leadership and officials from the national gymnastics and Olympic governing bodies, and that is likely not the end of it.[16] Just one example of the public shaming of these organizations and support for the victims was the Detroit Free Press’s devoting an entire front page to a simple list of all of the victims’ names.[17]

The Nassar case is only the latest example of sexual assault victims giving statements that have captured the public’s attention. That case is unique for how numerous the victims were, but another notable example is the victim of rape by a male student at Stanford. Her lengthy statement about the effect the crime had on her highlighted the grave consequences of this offense for members of the public who may not have given them much thought before, and also pointed to just how lenient the perpetrator’s six-month sentence was.[18] That victim and Nassar’s could also use their platform as a way to correct misconceptions they might have felt “the media had created about them or the reasons for their victimization.”[19] Through their statements, they can dispel common assumptions about sexual assault’s impact on victims.

While victims should never feel pressured into giving statements, this unique case illustrates the role victim impact statements can play in changing norms, and perhaps will make future victims feel more comfortable addressing their perpetrators. Celebrated gymnast Aly Raisman recognized this potential in her own statement in court: “The army you chose in the late ’90s to silence me, to dismiss me and my attempt at speaking the truth, will not prevail over the army you created when violating us.”[20]

  1. Carla Correa & Meghan Louttit, More Than 160 Women Say Larry Nassar Sexually Abused Them. Here Are His Accusers in Their Own Words, N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/interactive/2018/01/24/sports/larry-nassar-victims.html. ↑
  2. Scott Cacciola & Victor Mather, Larry Nassar Sentencing: “I Just Signed Your Death Warrant,” N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/sports/larry-nassar-sentencing.html. ↑
  3. Zach Schonbrun & Christine Hauser, Larry Nassar, Sentenced in Sexual Abuse Case, Is Back in Court, N.Y. Times (Jan. 31, 2018), https://www.nytimes.com/2018/01/31/sports/larry-nassar-sentencing.html. Nassar had already been sentenced to 60 years for child pornography, and was later sentenced to 40 to 125 years for additional counts of sexual assault in a different Michigan county. Christine Hauser, Larry Nassar Is Sentenced to Another 40 to 125 Years in Prison, N.Y. Times (Feb. 5, 2018), https://www.nytimes.com/2018/02/05/sports/larry-nassar-sentencing-hearing.html. ↑
  4. 18 U.S.C. § 3771(a)(4). ↑
  5. See Paul G. Cassell, In Defense of Victim Impact Statements, 6 Ohio St. J. Crim. L. 611, 619–25 (2009). ↑
  6. See Edna Erez & Julian V. Roberts, Victim Input at Sentencing, Encyclopedia of Criminology and Criminal Justice (G. Bruinsma & D. Weisburd, eds.) 5425, 5429 (2014). ↑
  7. See id. ↑
  8. See Cassell, supra note 5, at 627. ↑
  9. Erez & Roberts, supra note 6, at 5430. ↑
  10. Erez & Roberts, supra note 6, at 5429. ↑
  11. See, e.g., Erez & Roberts, supra note 6, at 5429, 5431; see also Cassell, supra note 5, at 632–38. ↑
  12. See Cassell, supra note 5, at 629. ↑
  13. See Tracy Booth, Victim Impact Statements to Sway Homicide Penalties? Think Again, The Conversation (Feb. 23, 2014), https://theconversation.com/victim-impact-statements-to-sway-homicide-penalties-think-again-22955; Erez & Roberts, supra note 6, at 5429. ↑
  14. See Erez & Roberts, supra note 6, at 5429, 5433. ↑
  15. Maureen O’Connor, If We Can’t Talk About Sex, We Can’t Talk About Sexual Abuse, The Cut (Oct. 30, 2017), https://www.thecut.com/2017/10/if-we-cant-talk-about-sex-we-cant-stop-sexual-abuse.html. ↑
  16. See Christine Hauser & Maggie Astor, The Larry Nassar Case: What Happened and How the Fallout Is Spreading, N.Y. Times (Jan. 25, 2018), https://www.nytimes.com/2018/01/25/sports/larry-nassar-gymnastics-abuse.html. ↑
  17. Detroit Free Press (@freep), Twitter (Jan. 24, 2018, 7:38 PM), https://twitter.com/freep/status/956370662788124673. ↑
  18. See Tim Dick, The Problem with Victim Impact Statements, Sydney Morning Herald (June 13, 2016), http://www.smh.com.au/comment/the-problem-with-victim-impact-statements-20160612-gph974.html. ↑
  19. See Erez & Roberts, supra note 6, at 5430. ↑
  20. Scott Cacciola & Victor Mather, Larry Nassar Sentencing: “I Just Signed Your Death Warrant,” N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/sports/larry-nassar-sentencing.html. ↑
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