The Role of the Female Defense Attorney in #MeToo Cases
Illustration by Hanna Barczyk
Before now, I consciously stayed away from posting about #MeToo. I was concerned it was too controversial and might distract from the real purpose of the blog. But, as time has passed, it is clear the #MeToo movement is not going away and the role of the female defense attorney is very much intertwined with the conversation. My intention is to foster a dialogue with our readers, whose varying opinions on this topic are invaluable. With that purpose in mind, I want to explore some of the issues in this post:
First, I want to examine why women criminal defense attorneys are being specifically sought out to defend men in these types of cases.
Second, and probably the most controversial topic among women in the field, is whether or not our acceptance of this role impacts our standing as female defense attorneys in what has traditionally been a male dominated field.
Third, female defense attorneys who have represented men accused of sexual offenses against women have faced criticism for this role and have been accused of being anti-feminist.
Fourth, I want to evaluate the role of the female defense attorney in corporate internal investigation relating to #MeToo allegations.
Regarding the first issue, in the wake of a number of investigations and actual charges, there are definitely instances of men specifically seeking out a female defense attorney. Harvey Weinstein is an obvious example. Justice Kavanaugh is another one. In reality, this is not a new phenomenon, there is simply more work of this nature due to an increased wave of investigations and charges relating to #MeToo and Title IX. Let’s analyze why. I myself have discussed the range that women have in the courtroom and their ability to humanize clients. A woman can help a male client appear more likeable before a jury if she can demonstrate that she feels safe and comfortable around him, especially a jury with other women. There is little research on this issue, but we previously posted about the research conducted by DOAR for a ABA presentation here. The study found that women jurors were more persuaded by female counsel. This may be even more true for a male client charged with a sex offense.
Regarding the second issue, there is a discussion among women in the field about how women defense attorneys disproportionally representing men in sexual offenses impacts women in the field, if at all. As you might imagine, there is a wide range of opinions. Some female colleagues feel truly insulted to be specifically sought out for these types of cases. These colleagues have expressed that when we accept this role—as being best suited to defend allegations of misconduct against women—we are ultimately allowing ourselves to be marginalized in the field. To permit either clients or other colleagues to see us as best suited for one case over another is offensive. There are women who feel that when we allow ourselves to assume a role that is more than simply being a defense attorney—that is, a role aimed at subtly conveying that the client could not have done what he is alleged to have done when he has a woman by his side—we diminish our value. There is much discussion in law about women being given token roles on trial teams to present the air of diversity when in truth there is no substance to the role; these token women barely talk in court. I think the women criminal defense attorneys who have expressed being offended feel the issues are closely aligned. These women express wanting to be hired because they are the best defense attorney, not the best female defense attorney.
But there are just as many women, if not more, who feel quite the opposite. A wise colleague pointed out to me that if these were the only cases women were getting, then she would understand the argument, but as long as women are being considered for other types of big cases, then why not take on a case we might be best suited to handle.
Another colleague shared her thoughts in writing:
No criminal defense attorney, man or woman, should ever decide whether to defend someone based on the nature of the crime. Our role is to help people/entities that are accused of a crime in a manner as best as we can. This is not a buffet selection of representation: we will help when the crime is this but not the other. I understand that the optics of seeking out a woman for someone accused in a #MeToo case can seem predictable and transparent but the same can be said about rape cases, child porn cases, any case where a woman is a victim. By avoiding the cases, we are simply giving up an opportunity to represent someone accused of a crime, nothing more. Eventually someone will represent them and who better to help than me?
Regarding the third issue, no woman should be accused as anti-feminist, simply because she is doing her job. There are so many flaws in this criticism. First, it assumes the client is guilty. An allegation is just that—an allegation—which our constitution demands must be tested when one’s liberty is at stake. Second, it falsely assumes a woman representing the client stands in the shoes of the client, as it relates to the conduct against a woman. Does any defense attorney, man or woman, become anti-victim when they take up the defense of a defendant who has victimized another? Of course not. But there has been a real pattern of women attacking women attorneys who defend men accused of crimes against women. I wrote about this pattern in a previous blog post about Marie Henein’s representation of Jian Ghomeshi in Canada here. In that post I said, “As women criminal lawyers the fact that we are women is self-evident, but when we are in a courtroom, we are defenders first. To be anything else would be a violation of the principles of our profession and our duty to our client.” I said that before the #MeToo movement, and it is as true today as it was then.
Regarding the fourth issue, in my opinion, there is a strong argument that women bring a unique perspective to evaluating #MeToo allegations in a corporate context and give a higher sense of credibility to the investigation. In the role of investigator, an attorney is in a neutral role when evaluating witness statements and the relevant documents. I am not suggesting that men can’t be neutral, but there are many complicated dynamics at play in these types of allegations. As an example, an allegation of misconduct by a man against a female in a corporate environment would require that the investigating lawyer question the complainant. I believe female witnesses are more likely to be forthright and comfortable talking to another woman in this scenario. Also considering that the #MeToo movement is not just about specific incidents, but an overall pattern of behavior toward women previously accepted by our society, are women more able to objectively evaluate the trustworthiness of the allegations? Further, do companies open themselves up to criticism about the fairness of the process if women are not involved in the investigation process? The answers to these questions may be up for debate, but the fact is that women defense attorneys are being hired by corporations to conduct many of these internal investigations relating to #MeToo allegations, and there is obviously a good reason for that.
In sum, none of these issues are cut and dried. There are complicated dynamics at play, nuances, and no clear answer. There are just opinions, mine included. I think this is why I have waited so long to weigh in on this topic. But as I write this, I realize that this a real issue for women in our field to contend with. Regardless of whether we see eye to eye on the issues, we are united in what matters most: the defense of our client and the support of each other in the field. I would love to hear your opinion on any of these issues, if you want to share.