“Her eyes didn’t seem to show any sadness, and I remember wondering if she could have been involved,” one of Meredith Kercher’s friends said.
Amanda Knox heard years of this—perfect strangers pretending to know who she was based on the expression on her face.
“There is no trace of me in the room where Meredith was murdered,” Knox says, at the end of the Amanda Knox documentary. “But you’re trying to find the answer in my eyes.…You’re looking at me. Why? These are my eyes. They’re not objective evidence.”
1 Here’s another example: Dzhokhar Tsarnaev, one of the two Chechen brothers who planted a series of deadly bombs at the Boston Marathon in 2013. The chief issue in Tsarnaev’s trial was whether he would escape the death penalty. The prosecutor, Nadine Pellegrini, argued strongly that he shouldn’t, because he felt no remorse for his actions. At one point Pellegrini showed the jury a photograph of Tsarnaev in his cell, giving the finger to the video camera in the corner. “He had one last message to send,” she said, calling Tsarnaev “unconcerned, unrepentant, and unchanged.” In Slate magazine, on the eve of the verdict, Seth Stevenson wrote:
And though it’s risky to read too deeply into slouches and tics, Tsarnaev certainly hasn’t made much effort to appear chastened or regretful before the jury. The closed-circuit cameras that were broadcasting from the courtroom to the media room Tuesday were not high-resolution enough that I can 100 percent swear by this, but: I’m pretty sure that after Pellegrini showed that photo of him flipping the bird, Tsarnaev smirked.
Sure enough, Tsarnaev was found guilty and sentenced to death. Afterward, ten members of the twelve-person jury said they believed he had felt no remorse.
But as psychologist Lisa Feldman Barrett points out, all of this discussion of whether Tsarnaev did or did not regret his actions is a perfect example of the pitfalls of transparency. The jury assumed that whatever Tsarnaev felt in his heart would be automatically posted on his face, in a way that matched American ideas about how emotions are supposed to be displayed. But Tsarnaev wasn’t American. In her book How Emotions Are Made, Barrett writes:
In the Boston Marathon Bombing case, if Tsarnaev felt remorse for his deeds, what would it have looked like? Would he have openly cried? Begged his victims for forgiveness? Expounded on the error of his ways? Perhaps, if he were following American stereotypes for expressing remorse, or if this were a trial in a Hollywood movie. But Tsarnaev is a young man of Muslim faith from Chechnya.…Chechen culture expects men to be stoic in the face of adversity. If they lose a battle, they should bravely accept defeat, a mindset known as the “Chechen wolf.” So if Tsarnaev felt remorse, he might well have remained stony-faced.
2 Knox’s list of lovers wasn’t what it seemed, either. In an effort to intimidate her, the Italian police lied to Knox and told her she was HIV positive. Knox, afraid and alone in her cell, wrote a list of her past sexual partners to work out how this could possibly be true.
3 There is an endless amount of this kind of thing. For the prosecutor in the case, the telling moment was when he took Knox into the kitchen to look at the knife drawer, to see if anything was missing. “She started hitting the palms of her hands on her ears. As if there was the memory of a noise, a sound, a scream. Meredith’s scream. Undoubtedly, I started to suspect Amanda.”
Or this: At dinner with Meredith’s friends in a restaurant, Amanda suddenly burst into song. “But what drew laughs in Seattle got embarrassed looks in Perugia,” she writes. “It hadn’t dawned on me that the same quirks my friends at home found endearing could actually offend people who were less accepting of differences.”
4 “What’s compelling to me about Amanda Knox is that it was her slight offness that did her in, the everyday offness to be found on every schoolyard and in every workplace,” the critic Tom Dibblee wrote in perceptive essays about the case. “This is the slight sort of offness that rouses muttered suspicion and gossip, the slight sort of offness that courses through our daily lives and governs who we choose to affiliate ourselves with and who we choose to distance ourselves from.”
Chapter Eight
Case Study:
The Fraternity Party
1.
Prosecution: And at some point on your way over to Kappa Alpha house, did you observe anything unusual?
Jonsson: Yes.
P: What did you see?
Jonsson: We observed a man on top of a—or a person on top of another person, I should say.
P: And where was that?
Jonsson: Very close to the Kappa Alpha house.
Palo Alto, California. January 18, 2015. Sometime around midnight. Two Swedish graduate students are cycling across the campus of Stanford University on their way to a fraternity party. They see what looks like two people, lying on the ground, just outside a fraternity house where a party is full swing. They slow down so as not to disturb the couple. “We thought that it was their personal moment,” one of the students, Peter Jonsson, would say when he testified in court. As they drew closer, they saw that the man was on top. And beneath the man was a young woman.
P: What about the person on top? Did you see any movement or motion from that person?
Jonsson: Yeah. So first, he was only moving a little bit. And then he started thrusting more intensely.…
P: And what could you see the person on the bottom doing?
Jonsson: Nothing.
Jonsson and his friend, Carl-Fredrik Arndt, got off their bikes and walked closer. Jonsson called out, “Hey, is everything all right?” The man, on top, lifted his body and looked up. Jonsson came closer. The man stood up and began backing away.
Jonsson said, “Hey. What the fuck are you doing? She’s unconscious.” Jonsson said it a second time. “Hey. What the fuck are you doing?” The man began to run. Jonsson and his friend gave chase and tackled him.
The person Jonsson tackled was Brock Turner. He was nineteen, a freshman at Stanford and a member of the university’s swim team. Less than an hour earlier, he had met a young woman at the Kappa Alpha party. Turner would later tell police that they had danced together, talked, gone outside, and lain down on the ground. The woman was a recent college graduate, known thereafter, under the protections of sexual-assault law, as Emily Doe. She had come to the party with a group of friends. Now she lay motionless under a pine tree, next to a dumpster. Her skirt was hiked up around her waist. Her underwear was on the ground next to her. The top of her dress was partially pulled down, revealing one of her breasts. When she came to in the hospital a few hours later that morning, a police officer told her she may have been sexually assaulted. She was confused. She got up, went to the bathroom, and found that her underwear was gone. It had been taken for evidence.
P: What happened after you used the bathroom?
Doe: I felt scratching on my neck and realized it was pine needles. And I thought that I may have fallen from a tree, because I didn’t know why I was there.
P: Was there a mirror in the bathroom?
Doe: Yes.
P: Could you see your hair in the mirror?
Doe: Yes.
P: Can you describe what your hair—how your hair appeared?
Doe: Just disheveled and with little things poking out of it.
P: Do you have any idea how your hair ended up that way?
Doe: No idea.
P: What did you do after you finished using the restroom?
Doe: I went back to the bed. And they gave me a blanket, and I wrapped myself. And I went back to sleep.
2.
Every year, around the world, there are countless encounters just like the one that ended so terribly on the lawn outside the Kappa Alpha fraternity at Stanford University. Two young people who do not know each other well meet and have a conversation. It might be brief. Or go on for hours. They might go home together. Or things may end short of that. But at some point during the evening, things go badly awry. An estimated one in five American female college students say that they have been the victi
m of sexual assault. A good percentage of those cases follow this pattern.
The challenge in these kinds of cases is reconstructing the encounter. Did both parties consent? Did one party object, and the other party ignore that objection? Or misunderstand it? If the transparency assumption is a problem for police officers making sense of suspects, or judges trying to “read” defendants, it is clearly going to be an issue for teenagers and young adults navigating one of the most complex of human domains.
Take a look at the results of a 2015 Washington Post/Kaiser Family Foundation poll of one thousand college students. The students were asked whether they thought any of the following behaviors “establishes consent for more sexual activity.”
1. Takes off their own clothes
Yes
No
Depends
No opinion
All
47
49
3
1
Men
50
45
3
2
Women
44
52
3
1
2. Gets a condom
Yes
No
Depends
No opinion
All
40
54
4
1
Men
43
51
4
2
Women
38
58
4
1
3. Nods in agreement
Yes
No
Depends
No opinion
All
54
40
3
3
Men
58
36
3
3
Women
51
44
3
3
4. Engages in foreplay such as kissing or touching
Yes
No
Depends
No opinion
All
22
74
3
*
Men
30
66
3
*
Women
15
82
3
*
5. Does not say “No”
Yes
No
Depends
No opinion
All
18
77
3
1
Men
20
75
4
1
Women
16
80
2
1
Consent would be a straightforward matter if all college students agreed that getting a condom meant implicit consent to sex, or if everyone agreed that foreplay, such as kissing or touching, did not constitute an invitation to something more serious. When the rules are clear, each party can easily and accurately infer what the other wants from the way he or she behaves. But what the poll shows is that there are no rules. On every issue there are women who think one way and women who think another; men who think like some women but not others; and a perplexing number of people, of both sexes, who have no opinion at all.
29. For each of the following, please tell me if you think the situation IS sexual assault, IS NOT sexual assault, or is unclear.
Sexual activity when both people have not given clear agreement
Is
Is not
Unclear
No opinion
All
47
6
46
*
Men
42
7
50
1
Women
52
6
42
–
What does it mean that half of all young men and women are “unclear” on whether clear agreement is necessary for sexual activity? Does it mean that they haven’t thought about it before? Does it mean that they would rather proceed on a case-by-case basis? Does it mean they reserve the right to sometimes proceed without explicit consent, and at other times to insist on it? Amanda Knox confounded the legal system because there was a disconnect between the way she acted and the way she felt. But this is transparency failure on steroids. When one college student meets another—even in cases where both have the best of intentions—the task of inferring sexual intent from behavior is essentially a coin flip. As legal scholar Lori Shaw asks, “How can we expect students to respect boundaries when no consensus exists as to what they are?”
There is a second, complicating element in many of these encounters, however. When you read through the details of the campus sexual-assault cases that have become so depressingly common, the remarkable fact is how many involve an almost identical scenario. A young woman and a young man meet at a party, then proceed to tragically misunderstand each other’s intentions—and they’re drunk.
3.
D: What did you drink?
Turner: I had approximately five Rolling Rock beers.
Brock Turner began drinking well before he went to the Kappa Alpha party. He had been at his friend Peter’s apartment earlier in the evening.
D: Other than the five Rolling Rock beers that you’ve mentioned, did you drink any other alcohol in Peter’s room?
Turner: Yes. I had some Fireball Whiskey.
D: And how was that consumed?…
Turner: It was just out of the bottle.
When Turner got to the party, he kept drinking. In California the legal intoxication limit for drivers is a blood-alcohol concentration of .08; anything above that and you’re considered drunk. By the end of the night Turner’s blood-alcohol level was twice that.
Emily Doe arrived at the party in a group—with her sister and her friends Colleen and Trea. Earlier that evening, Trea had consumed an entire bottle of champagne, among other things. There they were joined by their friend Julia, who had also been drinking.
P: Did you have anything to drink at dinner?
Julia: Yes.
P: What did you drink?
Julia: A full bottle of wine.
And then:
P: What did you do after dinner?
Julia: After dinner [I] Ubered to a place called Griffin Suite.…
P: And what was going on there at Griffin Suite?
Julia: A pregame.
P: What’s that?
Julia: Oh, sorry. It’s a jargon. It’s a pre-party that involves drinking.
After pregaming, Julia heads to the Kappa Alpha party, where she discovers an unopened bottle of vodka in the basement.
Julia: I opened it and we poured it into cups and took shots.
That leaves Emily Doe.
P: And so you started drinking with the shot of whiskey, and then how many—how many drinks did you have before you left your house?
Doe: Four.
P: And were they the same type of drink—a shot of whiskey—that you had the first time?
Doe: I had four shots of whiskey and one glass of champagne.
P: OK. So do you know approximately what time frame this was that you had the four shots of whiskey and one glass of champagne?
Doe: Probably between 10:00 and 10:45.
Then she and her friends go on to the party.
P: OK. And so after you guys kind of were goofing around, being the welcoming committee, what did you guys do?
Doe: Julia discovered a handle of vodka.
P: OK. And what is your description of a “handle of vodka”?
Doe: Probably, like, this big, Costco size…
P: And what happened when she presented the vodka?
Doe: I did a free pour into a red Solo cup.
P: OK. Were you measuring in any way how much vodka was
in your cup?
Doe: I thought I was, but I was unsuccessfully measuring. I poured right below the second marking on the cup, which I thought was going to be two to three shots. It turned out to be maybe three to four shots, because that marking was five ounces.
P: And you’re talking about a red Solo cup.
Doe: Yes.
P: Kind of something that you typically see at parties?
Doe: Yes…
P: OK. Now, when you were—after you poured the vodka, what did you do?
Doe: I drank it.
P: How did you drink it?
Doe: Just—for all.
P: Like, all at once?
Doe: Pretty much all at once. So I was already feeling drunk, because I was able to do that.
And then:
P: How—describe for us your level of intoxication at this point.
Doe: Umm, pretty much empty-minded. I become kind of just a dud, and I’m vacant, not articulating much. Just standing there.1
P: Do you have any idea what time this is in the night?
Doe: Maybe around midnight.
It was at that point that Brock Turner approached Emily Doe. He says she was dancing alone. He says he approached her and told her he liked the way she danced. He says she laughed. He says they chatted. He says he asked her to dance. He says she said yes. He says they danced for ten minutes. He says they started kissing.
D: OK. Did she appear to be responsive kissing you back?
Turner: Yes.
D: Did you have any further conversation with her that you remember?
Talking to Strangers Page 15