As of this writing all I know about the Palm Beach incident is what you know and it’s very little: a rape either did or didn’t occur on the grounds of the Kennedy family estate one night during Easter weekend, and it either was or wasn’t committed by a 30-year-old man named William Kennedy Smith. The victim–if she was that–being a local woman who accompanied him home from a bar.
It is of course true that we have all been inundated with a lot more speculation and circumstantial chitchat than that and a flood of narratives about how everyone on all sides has behaved in the aftermath. But for all the acres of verbiage, we still haven’t a clue about the one thing that should be dealt with, namely, what happened. I calculate that if one tenth of the effort that lawyers, cops, witnesses, media, family, friends and principals have devoted to complicating, eluding or embroidering the facts (depending on their interest) had been given over to establishing the truth, we might know by now whether the crime of rape had been committed.
There are a lot of reasons why it has been like this, but most of them come down to the way the law works and the way we have come to think about the law and turn it to our purposes. Sen. Edward Kennedy, when his nephew, Smith, was first reported to be a suspect, said he truly hoped there would be a quick and thorough investigation to clear the matter up. But then we read that lawyers and investigators hired for Smith’s defense were actually conducting inquiries of their own and not just into the truth of what happened that night, but, more ominously, into the background and possible embarrassing records of relatives of friends of the alleged victim. For example, the father of the female friend who had come to the Kennedy place (we think) to rescue the alleged victim was said to have had some criminal conviction in his past; this, the dope stories explained to us, was being unearthed for the purpose of either discrediting his daughter’s testimony or scaring her out of participation.
Nice. When I observed to a colleague that this was pretty wormy conduct, I was told that it was what any competent defense lawyer would do in such circumstances, the implication being that such a lawyer owed his client every legal effort that could be made to keep him out of trouble. I guess this is true. And I further guess that it would be considered hopelessly illiberal and prejudging of me and altogether subversive of the innocent-until-proven-guilty foundation of our justice system to say that such counterinvestigation with its menacing aspect sure makes me suspicious of the innocence of the client for whose sake it is being done.
As a diehard civil libertarian and one who believes in all those protections of criminal suspects which make people so frustrated and angry, I still must admit that there are times-and this episode is one of them-when it seems to me that we have finally constructed a legal system that is state of the art at accomplishing just about everything but what one wishes it would. In my bleaker moments I sometimes wonder if we might not just as well go back to those medieval days when guilt or innocence was established by pitching the accused into a body of water to see whether he floated or sank; at least you got a finding one way or the other. Nowadays battalions of lawyers and public-relations specialists counsel the well-placed suspect and/or the well-placed accuser; something is eventually “worked out” or years pass and motions are filed and more motions and more years to come are spent in appeals courts. Yes, at its best this morass of expensive activity does or at least can protect the innocent; but I think it can also protect the guilty.
That, my civil-libertarian conscience immediately reminds me, is the price the society must pay for a system that safeguards the falsely accused, and I subside. But it still seems to me that this Palm Beach event is a case study in the shortcomings of our system. As we have oddly come to accept the notion in this country that wrongdoing is limited to the commission of convictable crimes and that the failure of accusers to get a conviction is in itself evidence of the moral worthiness of the acquitted, it has become understandably much more important to those who are accused to use every device imaginable to confound the legal outcome.
How many times in the past couple of decades have sleazy government officials declared that the inability of prosecutors to nail them for a crime closes the book on all questions about their (often outrageously unethical) behavior? First, and generally for good reasons, we make it extremely difficult to, say, prove a rape or a bribe or establish libel. Then, we take the next step and buy into the assumption that the absence of a conviction or even a lawsuit demonstrates the probity of the suspect and even immunizes him from criticism.
Rape cases are notorious in this regard. Men and women both have been victimized over the years-men (think of black men in the South) falsely accused, women falsely charged with enticement or consent. Every protection must be available to save victims from the legal and social consequences of these slanders. And especially in a time when the definition of rape is being revised the situation is complicated and the risks are high. Our cultural tradition has at times really exalted rape in myth, romance and legend, and generations of women were raised to believe that something bordering on it was either (a) acceptable or (b) the only way for a proper, reputation-regarding female to acquiesce in sexual activity. So the establishment of facts and guilt or innocence becomes all the more difficult.
But who, as you read your papers, do you figure is even trying? Do you get the sense that family and friends on both sides are attempting to get to the truth of what happened and achieve a just outcome? Or do you get, as I do, a sense that the Palm Beach events have become a fee-generating, T-shirt-manufacturing, media-hysterics hustler’s holiday? If there was not a rape, the charges are despicable. If there was, the behavior of the suspect’s patrons is disgusting. I wish I thought all the turmoil was directed at finding out which was true.
