Crying CW

I just finished a sex crimes trial. The courtroom was small and intimate. The complaining witness was seated two rows behind me, when I gave my Closing Argument. Her row was no further than six to seven feet away from the edge of the jury box. Each time I pointed out inconsistencies between her testimony and prior statements, she began to sob loudly. Her crying became even louder whenever I challenged her credibility. I was between a rock and hard place as it would not have been in my client’s interest for me to stop my argument, approach the bench, and ask the judge to admonish her. The jury---including several female jurors who glared at me each time the complainant began to cry---would not have liked that. By the same token, no judge wants to unilaterally and publicly call-out an emotional victim in front of his or her jury. As a result, the situation persisted. It was distracting and disconcerting; almost as though there was someone over my back-shoulder countering every argument I made. It wasn’t heckling per se, but it was definitely undermining. There should be no debate about a sex crime victim’s right to be present for Closings. Moreover, those of us who also defend murder cases are used to seeing and hearing some display of emotion from the victim’s family, but only to an extent as it is not unusual for a judge in such circumstances to discreetly advise family members to try to do a better job at holding-it-together. For some reason, there is an inherent reluctance to do the same with sex crimes victims. This shouldn’t even remotely be so because when the source is a murder victim’s loved one, its often nothing more than a reflexive mourning of the tragedy of their loss and/or a reaction to listening to the horrible details of the moment of death. By contrast, when the source of audience emotion is a sex crimes complainant, she is all but speaking-back to the jury and messaging that the defendant’s attorney should neither be listened -to or believed. To me, Courts need to be far more effective in assuring a neutral forum in sex crimes cases. This can be done by advising prosecutors and victim advocates quietly, and in advance, that while the complaint has the provisional right to attend Closings, the defendant has the absolute right to a fair trial; court officers will be prepared to ask the complainant to excuse herself if she cannot control her emotions.