The friend of a friend was intentionally knocked off her bike in traffic yesterday. She also happens to be a cool entrepreneur, who in a small world, huh, moment I discovered on Kickstarter before learning she was the friend of a friend.
She’s relatively uninjured, but. But. I just can’t wrap my head around how a person can be intentionally violent toward a stranger. I cannot place myself into the head of a person who does that.
So, it’s easy to be outraged by this, but I am also finding it easy to be dumbfounded by this because I cannot work out a reality in which this can be explained.
I wasn’t there, so I really don’t know what happened. And I have worked in criminal law–and I continue to work as a researcher–long enough to know that witness testimony (even victim testimony) is unreliable. We always get details wrong and one likely cannot trust a witness when it comes to the motivations of the person they witnessed. Even so, there are some basic facts which you can trust:
- The driver of the SUV passed the cyclist too closely.
- The driver of the SUV passed the cyclist closely enough that a passenger in the SUV was able to grab the cyclist.
- The passenger grabbed the cyclist’s bag, which was slung over her body, not over her bike.
- The cyclist collided with a parked car and was injured.
- The driver of the SUV did not stop, even after the cyclist fell from her bike and was injured.
Most of that is intentional behavior. Driving too close to the cyclist may, at first, have been an accident, but it was a decision not to move over or slow down or otherwise create a safe distance between the car and the cyclist. It was a decision on the part of the passenger to reach out of the car and touch or grab or make contact with the cyclist. It was one human being choosing to directly endanger the life of another human being.
It was an intentional action to drive away from a person you had injured.
And I cannot imagine a justifiable motivation for that.
To reiterate: A person reached out of a moving car, which was too close to a human being riding a bicycle, and intentionally grabbed her. Then, when she was lying injured in the road, the person in the best position to have avoided harming her in the first place, left.
I cannot empathize with the driver or his passenger. I simply can’t put myself in those shoes.
And, because it’s much too frightening to contemplate being that woman on the bicycle, I’m angry. Just angry. I don’t know what to do with this anger. I don’t know how to make a productive lesson out of this. I already know not to assault people. I already have an anti-assaulting people philosophy of life.
So I’m thinking about what it might be like to be the fact-finder, should this get to a court. I’m imagining the driver and the passenger are found. I’m imagining they are charged. I am imagining they are tried. I am imaging they are sued further for civil damages.
I am thinking about how we ensure fact-finders can wrap their heads around completely irrational behavior without making bad assumptions, without giving into hateful prejudice, without finding themselves clouded by too much vicarious fear.
Fact-finders–whether judges or juries–have to take testimony and make sense of it. They have to take jumbled memories, unreliable statements, and completely nonsensical behaviors and come up with the facts. They have to take stories that include people allegedly doing things which no rational human being would ever do and make a reasonable determination of what really happened.
They also have to look at victims doing things that confuse them or that seem alien to them and recognize that whether or not they’d ever do that thing doesn’t matter in the determination of what really happened.
I’m worried that all the incomprehensibility in this story will obscure the path to justice.
That’s all very vague. Let me try to tighten it up.
One newspaper reporting the incident has said that the driver of the SUV passed too closely and the cyclist “became entangled” in the car, whereas the cyclist clearly reported the events as the driver in the SUV pulling alongside her and the passenger grabbing the bag slung across her body. One of these things is not true. The fact-finder will have to find the fact of which is true.
In determining the legal truth of the event, the fact-finder must first decide whether or not the driver of the SUV passed too closely; whether or not he intentionally pulled alongside the cyclist. Having found that–let’s assume either the driver is found to have passed too closely or intentionally pulled alongside–the fact-finder will have to determine whether the passenger grabbed the cyclist (a deliberate, incomprehensible, violent act on the part of the passenger) or whether the messenger bag of a woman riding a bike in traffic after midnight got hooked on the SUV (where riding a bike in traffic after midnight strikes many people as incomprehensible and unnecessarily risky). The fact-finder will then determine whether or not the driver stopped when cyclist hit the parked car and was released by the passenger (or dislodged from her entanglement, if you want to go that route). Then there will be application of the law to those findings (either criminal or civil, depending on what kind of fact-finder we’re looking at). But that’s not where my thoughts are headed.
Defendants often get screwed over because fact-finders cannot relate to them. I’ve seen this happen often in my cases. “Why on earth would someone grocery shop with cash?” the middle class, steady-income, never-been-UnBanked juror thinks and decides that the cash means yes, the defendant is a drug dealer.
But it happens with victims, too. Why on earth would that woman agree to go back to the apartment for a glass of wine with the man she just told that she did not like him enough for dating, just friendship?
My sympathies in this case are so overwhelmingly with Jana and the behavior of the men in the SUV is so mind-bogglingly incomprehensible to me that I can’t help wondering how other people would parse the different stories that will be told about the
incident attack event altercation attack.
Empathy–in part, judicial empathy, but not exclusively–is a tremendous problem in law. Too much, and you have no predictability and it becomes difficult to assign blame and hold people accountable in meaningfully punitive ways. Even as an advocate of restorative justice systems, alternative and community courts, I recognize that appropriate punishment serves a legitimate social function in justice systems. Nonetheless, too little empathy has long been–and continues to be–the greater problem in our courts.