Mimesis Law
20 September 2020

Special Victims or Special Unit?

October 20, 2016 (Fault Lines) —  For many years, my only connection to the series “Law and Order” (and its many spinoffs) was the introductory theme music. Once I heard those stern notes, I reached for the remote.

I have many problems with the formula: police and prosecutors working seamlessly to convict the guilty, slowed ever so slightly by annoying criminal defense lawyers and their pathologically evil clients. Besides corrupting millions of Americans into believing that justice is merely an interrogation or a lab result away, it caricatured topical cases into 47-minute morality plays with simple answers. In the words of  H. L. Mencken, “There is always an easy solution to every problem – neat, plausible, and wrong.”

After my recent posts about other television legal dramas, I was very specifically asked by the mean-ass editor to critique Season 18, Episode Three of “Law and Order SVU” entitled “Imposter.” He also sent me a New York Supreme Court case from 40 years ago, People v. Evans, 379 N.Y.S. 912, 85 Misc. 2d 1088 (1975), that was reminiscent of the script.

The plot and the case involved sexual assault by fraud. This is a concept that a person commits rape by convincing another to engage in sexual intercourse through a false representation. For instance, a man convinces a woman to sleep with him because he falsely claims that he is a billionaire destined to become President. I am unsure whether this theory of rape is currently viable in any American jurisdiction, but I know it does not exist in New York where the show takes place.

In New York, there are three degrees of rape. In total, they prohibit sexual intercourse by forcible compulsion, with persons below the age of consent, with the mentally disabled, or with persons otherwise incapable of consent. By the late 20th Century, most jurisdictions changed their rape laws to similar definitions and removed requirements that victims must physically resist to refuse sex and that “no” can be sufficient. These changes sought to recognize women’s autonomy over their bodies and made lack of consent the definitive element of sexual assault. Although either gender can be a victim of rape, traditionally, the prohibition treated women as property of fathers, husbands and the state.

In the show, an affluent Manhattan couple wants their high school son to attend a prestigious university. (By the way, did you know the top school of higher learning in the United States is located at 504 Riverside Drive, a block from Grant’s Tomb?) The boy’s mother, Laura, is obsessed with her son’s potential matriculation at Hudson University (perhaps so he can come home for lunch). Her obsession causes her to seek out the admissions director of the school and offer herself to him sexually in the hope that Junior will get favorable treatment, despite his tepid interview and lackluster essay.

The trouble starts after the affair is consummated, when, during post coitus banter, Laura realizes her lover thinks the school’s endowment is $9 billion when it is actually $13 billion. (Yet she never checked the school’s website to see that the admissions director is a distinguished African American man, not the creepy white guy she slept with). She then texts him her rape allegation and accidentally passes out from drugs and alcohol in a hotel room.

Finding her there comatose draws the stars of the show. She readily admits she gave valid legal consent, albeit with very poor judgement (“I didn’t mean [rape] literally.”). In fact, it would have been an equally bad decision to sleep with the real director of admissions instead of a temporary campus security officer, Tom, whom she met at the school cafeteria. However, the SVU team knows better than to listen to mere citizens. If a person does not think they are the victim of a crime and the law does not make the conduct criminal, then just press ahead. Maybe something good will happen (“We can’t just let this guy walk.”).

Laura is not the only woman that the fake director fooled into trading sex for her child’s promised admission to Hudson. About half a dozen other mothers also did not figure out who the real director was. The ones on the show seemed to be intelligent women, capable of deciding what to do with their own bodies. One of them, discovered moments after she succumbed to the scheme, casually wrote it off. “The hustler got hustled. Lesson learned,” she said.

The SVU team decides to convince Laura to prosecute Tom for rape even though it does not meet the New York legal definition. The team’s prosecutor cites the nonexistent People v. Hoff instead of Evans (rape by fraud is not a crime in New York), but he clearly states there is no legal basis for a rape charge. As the show’s introduction dramatically intones, “sexually-based offenses are considered especially heinous” – and apparently, do not need to appear in the Penal Code.

The ambitious prosecutor will fix it later (or ex post facto) with the legislature in Albany after all the sympathetic publicity the case receives. Because the “members of an elite squad,” are the heroes of the show, there is no attempt to question whether it is a good idea to return the law to treating adult, able women as incapable of voluntarily deciding with whom they can have sex.

Just so you will not think the episode is merely sexist, it is racist too. When the two cool young male and female cops barge into the black admissions director’s office, thinking he is the “perp,” even when they realize their error, the meeting still has all the warmth and caring of a stop-and-frisk. As a person of color, who has probably overcome explicit and implicit bias his entire life to get a postgraduate degree and a job at a top academic institution, he is treated little better than a suspected gang member. Apparently, if you are not friendly and servile to the team, you are not a good guy.

Every opportunity is used to discredit college affirmative action plans. A parent of an applicant stares at former performer of “Cop Killer” (now cop) Ice-T and, referring to her daughter’s flimsy chances for acceptance at Hudson, says with disdain, “She’s not a minority.” The actual director of admissions is similarly mocked for the school’s policy of saving slots for qualified candidates of color. These issues are not dealt with in any serious way, just a couple of lines and a few knowing expressions.

The show tends to get big things wrong and little things right. Prior to charging him, a police officer and prosecutor confront Tom while in custody and demand he accept a plea bargain. He is not offered legal representation nor told he is free to leave. More realistically, the judge stops the prosecutor on the street for an ex parte warning that he should not waste the court’s time with a nonexistent legal theory.

During the trial, the lawyers make competent arguments and follow the rules of evidence. In one subtle adherence to courtroom procedure, the prosecutor waits until the complaining witness has been impeached before rehabilitating her with a prior consistent statement. This however, does not make up for proceeding with the fantasy charge of rape by fraud.

After closing arguments, the judge calls the lawyers into chambers and does what the prosecutor should have anticipated from the start. He tells them to work it out for a lesser charge or he will dismiss the case. It is unclear why the defense has any incentive to plead to anything at this point, unless Tom’s lawyer has simply not read Evans or whatever the faux Hoff case says.

The lead officer goes to Laura’s house to give her the bad news. The SVU team has exposed her humiliation to the world without any possibility of a rape conviction. Her son inexplicably sat through the whole sordid trial.

When the officer arrives, she finds police already there and the parents sobbing. Their son, the entire reason for everything Laura has done, has committed suicide by jumping to his death.

I would like to think the writers of “Imposter” thought of this as a complicated story where everyone was imperfect. However, a show that has been on for 18 seasons has loyal fans who would rather not think that much. They want a tidy ending with good guys and bad guys. I think for most viewers, the SVU team are good guys fighting legal technicalities which impede justice. To those viewers, the only bad guy is Tom, who they think should be called a rapist despite what the law might say.

The show puts all the emphasis on the SVU members. They are the ones that are “special.” Victims are only special when they both appear sympathetic and they cooperate with the SVU team. At a time when a candidate for national office does not understand that grabbing another’s genitals without consent is a sexual assault, perhaps Law and Order SVU should stick to educating its viewers about what legally constitutes rape and not try to turn the clock back to a time when abortion was illegal and women had to wait for police and prosecutors to tell them whether they had been sexually assaulted or not.

3 Comments on this post.

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  • Donald
    20 October 2016 at 12:22 pm - Reply

    As long as we’re on the subject of SVU; you touched on part of the formula that is both demonstrative of real life, and exposes the show as total fantasy. Roughly 50% of the time, they nab somebody in the first 15 minutes, and they give him the nasty interrogation, threaten charges of arson murder and jaywalking, and are unshakable in their confidence that they’ve got their guy. So far, uncomfortably accurate.

    What happens next is the fantasy part: there’s a knock on the one way glass, and the captain/the ME tells them of a new development that means it definitely couldn’t have been this guy. And the detective go, “well damn, I guess we better look at it again. In reality cops would never allow something like facts to disrupt their narrative, they’d go back in and Reid technique him into a confession and or have the DA stack charges to force a plea (following through on the threat of arson murder and jaywalking).

    What’s remarkable in-universe is that no one seems to learn from the previous 100 times this has happened. You’d think after two hundred something episodes, Olivia Benson would have noticed a pattern.

  • Alex Bunin
    20 October 2016 at 1:42 pm - Reply

    It is a formula. Viewers do not want change, they want to know what they are going to get. On this show they expect the SVU folks to prevail, no matter the obstacles. That is what makes it so insidious. They could hide evidence, threaten witnesses or simply make up crimes. The audience will briefly question the conduct, but assume it is fine because this is television and the formula demands that the heroes are ultimately correct.

  • Dee
    21 October 2016 at 8:59 am - Reply

    Trust me, not every fan of the show thinks like this. I spent that hour literally wanting to scream because it was just unrealistic!