The Courage of Gisèle Pelicot

Photo by Amin Zabardast on Unsplash.

Authored by Kimberly M. Hult

Earlier today, a French court announced its verdicts following a lengthy rape trial of 51 men in Avignon, France.  Every one of the men was convicted, and many (but not all) face long prison terms.  For those of us who have followed the case closely for months, this outcome could never have been achieved without the courage, dignity and resilience of Gisèle Pelicot, the survivor of dozens, if not hundreds, of assaults.  For those unfamiliar with the case, over the course of a decade, Ms. Pelicot’s husband, one of the men convicted, had arranged for more than 50 (and maybe as many as 80) strangers to come into the couple’s home and rape Ms. Pelicot, a petite mother and grandmother, after he had first drugged her and she had become unconscious. 

Under French law, Ms. Pelicot had the right to remain anonymous through these proceedings.  She instead made the decision not only to proceed under her own name, but also to insist that all phases of the trial be public, including the viewing of horrific videos that her husband had made of the rapes and maintained in a file folder on his computer labeled “Abuse.”

Ms. Pelicot has insisted that she should not bear any shame for what happened to her; her assailants deserved the shame.  To be clear, her decision to proceed publicly, which has resulted in international media attention, could not have been easy.  Today, however, she told reporters that she has never regretted her decision. 

Ms. Pelicot has been rightfully hailed throughout France and beyond for her courage and poise and has ignited an important debate in that country about the definition of rape in the French criminal code and the need for affirmative consent to be part of that definition. 

She deserves every bit of the admiration and love that she has received.

Ever humble, this morning, Ms. Pelicot expressed her “profound gratitude” to her supporters, who have greeted and applauded her every morning and every evening outside of the courthouse.  For more than 20 years, I have worked with sexual assault survivors, and I have learned just how important true support is to them. 

But if I have also learned anything over the last couple of decades, it is that it is not easy to fight such an important battle so publicly.   To do so while recovering from sexual abuse requires an inner strength that is not available to many.  Gisèle Pelicot came forward publicly for all of those who simply could not. 

This holiday season she, and so many like her, have my deepest and most profound gratitude.

Marianne Luu-Chen Graduated from Inaugural Class of the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel

Credit: Rocky Mountain Fellows Institute

We’re excited to announce that Marianne Luu-Chen, a partner at the law firm of Hutchinson Black and Cook LLC in Boulder, Colorado, has graduated from the inaugural class of the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel (ACTEC).

The Rocky Mountain Fellows Institute was created by ACTEC Fellows to develop the profession’s future leaders in trust and estate law by invitation-only through a series of in-depth educational presentations led by outstanding subject matter experts in each field from across the U.S. For more information, visit www.rockymountainfellowsinstitute.org.

Marianne Luu-Chen provides counsel on estate planning, probate and trust administration, premarital and marital agreements, and estate, gift, and income tax planning for individuals and families.

Congratulations, Marianne! We’re honored to see your expertise recognized by the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel.

Insights and Observations from the Groundbreaking House v. NCAA Settlement Preliminary Approval Hearing

Photo by Jacob Rice on Unsplash

After nearly three hours of probing questions and answers from Judge Claudia Wilkins at yesterday’s preliminary approval hearing, several intriguing takeaways emerged:

1. Judge Wilkins and the Settlement: A Clear Preference for Resolution
   Judge Wilkins seems intent on steering clear of obstructing the settlement process. Despite at least two significant sticking points discussed below, she appears optimistic that these issues will be resolved by the parties themselves. Her encouragement for the parties to start drafting the settlement notice by the end of the hearing underscores her expectation for a resolution.

2. NIL Money and the Judge’s Sticking Point
   The right for athletes to continue receiving certain NIL (Name, Image, Likeness) money from collectives is the major sticking point for Judge Wilkins. While she’s not likely a cheerleader for collectives, she doesn’t see a strong reason to eliminate this potential income source for athletes. The parties argued that this provision doesn’t significantly alter the status quo, as the only prohibition in the settlement is against pure pay-for-play deals with no legitimate business interest (e.g., "come play football and we’ll give you five million dollars"), which are already banned by the NCAA. However, Judge Wilkins remained unconvinced. It seems this provision is a key point of negotiation for the NCAA, possibly to prevent any future court from allowing collectives unrestricted payment power. The NCAA appears ready to defend this point vehemently.

3. Binding Future Class Members: A Potential Hurdle
   Another potential snag is whether the court can bind future class members—such as current fifth graders who might become college athletes down the line—who aren’t represented in this case. Judge Wilkins seemed to suggest she’d feel more at ease if these prospective members were represented by separate counsel, though it’s unclear if this alone would address her concerns.

4. Title IX Concerns: A Quiet Issue
   Title IX doesn’t seem to be a major concern at this stage. Despite the likelihood of future litigation, neither the judge nor the predominantly male legal teams appear particularly worried about it right now, although Judge Wilken requested the parties clarify that the settlement does not release Title IX claims. An objection raised by Attorney Steve Molo, representing a group of female athletes and arguing that the settlement unfairly values women’s sports, seemed to have little impact on the court’s focus.

5. The NCAA’s Stance: A Firm Negotiator
   The NCAA doesn’t appear thrilled about this settlement or is simply willing to play hardball, threatening to walk away if their terms aren’t met. At any mention of possible changes to the negotiated provisions, NCAA counsel was clear that the removal of any provision could jeopardize the settlement. This stance could reflect the NCAA's general attitude or just the personality of their legal team. Either way, they’ve signaled a strong disinterest in altering settlement terms and would prefer to go to trial if necessary. Whether this is a strategic bluff remains to be seen.

The parties have three weeks to address these sticking points and submit a revised proposal for Judge Wilkins’s consideration. It’s likely they’ll find a resolution to the judge’s concerns, but the ultimate decision will rest with Judge Wilkins on whether the proposal meets her standards.

Building Awareness and Support of Survivors in the Face of Institutional Betrayal

Last week, after Harvey Weinstein’s conviction was overturned by the New York Court of Appeals, Ashley Judd, one of the first to come forward to reveal Mr. Weinstein’s abuse, called it an “institutional betrayal.”  While more will be written about the reasoning behind the New York court’s decision, the concept of institutional betrayal is very familiar to those of us who represent sexual assault survivors as they seek some measure of justice and accountability.

Hutchinson Black and Cook has been honored to represent sexual assault survivors for well over two decades.  During that time, while we, as a society, have made great progress in recognizing the seriousness of sexual violence, we have also come to realize that there is a lot of work that still needs to be done:  RAINN (the Rape, Abuse & Incest National Network) reports that every 68 seconds, another individual is sexually assaulted and nearly 435,000 individuals are sexually assaulted each year in the United States alone.  One out of every six American women has been the victim of an attempted or completed rape in her lifetime. 

As we close out April, which is recognized as Sexual Assault Awareness Month, we celebrate the progress that has been made and the work that still needs to be done to educate our communities and to support all survivors.  In doing so, we want to acknowledge how institutional betrayal continues to be something we focus on in our work to ensure that the institutions we look to for services, protection, and support do not instead add to the losses and trauma associated with sexual assault by overlooking or even betraying the interests of the survivors impacted by violence in their institutional community.

First, though, a bit of background:  Over the last 20 years, research into what we call “institutional betrayal” has expanded significantly.  The term was first introduced in 2007 by University of Oregon professor Dr. Jennifer J. Freyd, who defined institutional betrayal as “wrongdoings perpetrated by an institution upon individuals dependent on that institution, including failure to prevent or respond supportively to wrongdoings by individuals committed within the context of the institution.” Institutional betrayal is an additional source of trauma that is related to but distinct from the underlying trauma of the sexual assault itself.  When our clients talk to us about an institutional betrayal that they have suffered, it is usually because there are inadequate (or nonexistent) school or employer policies to address sexual assault, there are alarming individual behaviors (often due to poor hiring decisions, training or supervision), or there is some combination of the two.  In our cases, we have seen instances where employers or schools have ignored warning signs (or even actual reports) of sexual violence and then further fail to support the survivors, prioritizing the needs of the institution or even, in some cases, the perpetrator.  Frequently, this leads to more sexual violence as perpetrators end up further emboldened to engage in additional sexual violence.  

There is no doubt that when an institution betrays a survivor, it is adding to the existing trauma from which the survivor has to recover.  Dr. Freyd and others have identified and begun to measure the specific impacts of that betrayal on the physical and psychological well-being of survivors of sexual violence in their studies.   Several studies show that after controlling for the general trauma associated with sexual violence, there is a clearly definable and measurable increase in stress and trauma associated with institutional betrayal.  This additional trauma is created when a seemingly trusted institution denies the sexual assault survivor’s experience, creates an unwelcoming environment where the survivor does not feel safe to stay at the institution, or even retaliates against a survivor for reporting the sexual violence.   It can lead survivors to feel as if they are not safe to seek out the assistance that they need, which in turn may cause an institution to claim that it is the survivor’s fault for not seeking that assistance.

In our work for survivors, we seek to distinguish the effects of institutional betrayal from the trauma of the assault.  We work with our clients to collect evidence that supports their claims that the institution betrayed them.  We collect the institution’s policies and look to whether they are adequate and enforced given the known risks in that community.  We examine the training (if any) that a particular employer or school provided.  Finally, we work with experienced experts who know how to identify the nature and impact of institutional betrayal, along with things like future short- and long-term treatment options that might help a survivor recover.  

The goal of our work is not simply to develop our clients’ cases.  It is to acknowledge and redress the systemic role of institutions in sexual violence that has long been too common and to try to ensure that next time, our trusted institutions will do better.  And knowing that they too are working to address these issues, to change our community’s institutions, and – hopefully – to protect others, is something that can bring hope and peace to our clients.