The question of how far attorneys should go in their efforts to zealously represent Terrebonne Parish could end up before parish council members for discussion next week.
News stories detailing how attorneys are defending the parish against a suit from a woman who was 14-years-old when repeatedly sexually abused by a juvenile detention center guard have raised the ire of some council members and child advocates, who would like to see an immediate change of course.
Experts in legal ethics say it is not unheard of in some instances for such a request to be made, and even to be followed, despite the general understanding that lawyers must use every weapon available to defend their client.
At issue is the claim in briefs supporting the parish’s case that the girl consented to the sexual acts, thus mitigating the parish’s responsibility. Safeguards in place, such as surveillance cameras, could only be defeated if the victim acted as a co-conspirator to her own victimization, the court records say.
Houma attorney Carolyn McNabb, a founding member of CASA of Terrebonne, whose members act as child advocates in court, and a board member of the Bayou Area Children’s Foundation, wrote a letter last week to attorney Alexander “Kip” Crighton, criticizing the tactic.
“To say that a 14-year-old mentally and emotionally distressed girl with a history of having been abused and neglected as a child should be found at fault for consenting to be raped by a male guard while in confinement at the hands of my local government, which is charged with the responsibility of keeping her safe, not only sets the cause of children’s advocacy back a hundred years, but I believe the parish government commits ‘documentary’ sexual assault against the child by taking this position in a public record,” McNabb’s letter states.
“Derogatory and Accusatory”
Parish officials have thus far maintained – for the most part – that attorneys defending the interests of taxpayers have a responsibility to take courses of action that are not always pleasant nor easily defensible. But some council members – Arlanda Williams among them – say they are open to the potential of asking Crighton to take a different tack.
“I am respectfully requesting, in my role as a children’s advocate and in my role as a Terrebonne Parish taxpayer, that the parish motion the court to strike all derogatory and accusatory language … which purports to assign blame to (the victim) for being raped while in the juvenile detention facility from any and all pleadings, motions or memoranda filed on behalf of Terrebonne Parish Consolidated Government,” McNabb states in her letter to Crighton. She expects to ask the parish council to take the action of asking Crighton to do so.
Attorneys for the young woman, who is now 20 years old, have objected in their briefs to the suggestion that she shares responsibility for the acts committed against her. A 14-year-old, they have argued, cannot consent to sex in Louisiana. And while imprisoned, they note, consent is not something that is possible even for an adult when a guard is the perpetrator.
Crighton did not return a call seeking comment. Parish Attorney Courtney Alcock said she did not wish to comment for this article.
The woman, who is not being identified by the Tri-Parish Times due to the nature of the crimes committed against her, filed suit against the parish and against the former guard, Angelo Vickers. Vickers is serving a 7-year prison sentence after pleading guilty to molestation of a juvenile in connection with the allegations.
The civil suit seeks money damages only.
A trial began last month before District Judge George Larke. But it has been continued until March 2014 because of scheduling issues.
The parish maintains that the victim, who was sexually abused by various people from the time she was 5 years old, suffered from post-traumatic stress disorder and had other mental problems before the abuse at the detention center. As such, the parish’s written arguments state, the parish should not be liable. Even if there is some degree of liability, the parish argues, it should be mitigated because of the child’s alleged consent. Tangible losses, such as inability to earn a living, according to economists who testified, would be extremely low because the woman would likely be unable to perform at anything but a minimum-wage job.
Such economic assessments, attorneys for both sides acknowledge, are common in civil cases, where a key element of determining an award is what actual damage a plaintiff suffered.
It exists separately from punitive damages, which are specifically designed to punish a person or entity for wrongdoing.
Attorneys for the woman have attempted to show that the abuse by Vickers was par for the course in an institution that had received a scarlet letter from the U.S. Department of Justice, whose investigation of the detention center showed a wide range of abuses and failure to keep children safe while in confinement. Included in the DOJ assessment, which resulted in a consent agreement the parish still follows, was a determination that more than one guard exchanged candy, fruit, time on the telephone and other favors in return for sex with youngsters being held there.
That report has not been admitted into evidence by Larke, nor has the consent agreement.
The peculiar posture now assigned to Crighton, a veteran legal practitioner who works for the parish on a contract basis, is that of an attorney who is – as legal ethics dictate – zealously guarding his client’s interest, albeit through means some may find distasteful.
The Tri-Parish Times contacted legal ethicists to determine whether the parish has a right to ask Crighton to stand down on the victim-blaming aspect of the defense, and the general answer was that they certainly can ask. How duty-bound Crighton would be to accede to those requests, if made, drew varied responses.
Anthony Davis, a lecturer in law at New York’s Columbia University who specializes in legal ethics, said it is up to the client – in this case the parish – rather than the vox populi, to request a change in how a case is being handled.
A key question as to whether a change is justified, Davis said, is if the method of defense is “vexatious or harassing.”
Whether that is seen as the case could depend on whether such a defense is generally accepted at law.
Chrighton’s briefs mention other civil cases where minors who are sexual victims are assigned some degree of blame, which would mean he didn’t pull the defense out of thin air.
But the parish council does have the ability, within its own rules, to decide that it does not wish to follow that course of action.
“I plan to invite the council to discuss making a change, so that we are not blaming a girl for her own victimization,” McNabb said, blasting such tactics as archaic.
Another widely-published legal ethicist, Eli Wald at the University of Denver’s Sturm College of Law, said it is perfectly appropriate for a government entity, or even a corporation, to see a certain manner of defense as being contrary to its desired image or its inherent philosophy.
Crighton would not be the first attorney, Wald noted, to be criticized for doing what lawyers are supposed to do, which is defend the client zealously.
American Bar Association rules and best practices, Wald said, would indicate that a lawyer in Crighton’s position represents the client certainly, but in another sense also the legal system itself and the public interest.
In balancing what is right to do, he suggests, some examination of how all three of those interests are met is not out of order.
“The general question is whether a lawyer can be subject to moral criticism for presenting an argument the public finds offense,” Wald said. “In that sense the issue is a moral one and not a legal one.”
The authority to seek a different method rests with whomever the attorney is working for, and that authority is easily exercised, Wald said.
If the parish chooses not to pursue the argument that a 14-year-old is responsible in part for her own rape, the attorney can be asked to back off it.
The attorney then can advise the client of what it risks by not following that line of argument, and once that is explained can do what is requested.
Or, as Wald also noted, the attorney is free to tell the client that he cannot in good conscience continue the representation, and that they must get another lawyer.
McNabb said she is hopeful the parish council, administrators and the lawyers representing them will understand why a change is important. If the item is placed on the agenda the likely meeting for it would be Aug. 14.
“This does not represent who we are as a parish,” McNabb said. “This defense, when it is obvious other defenses are available, does not represent who we are.”