Visnugada is proposing that the CPO should not duplicate responsibilities that are held by state authorities. It sounds reasonable on the surface, but upon further consideration it's been in the news lately that in many areas, rape victims get no justice because the criminal system is overburdened.
Furthermore, when I wrote to Tamohara Prabhu (CPO, GBC) in July 2005, he responded saying, "The incident was fully reported to the authorities in Texas, but it was some years later that the girl came forward. The police were not able to do very much, as any evidence was gone, and the people involved no longer lived there... Texas authorities did not choose to pursue the matter."
Visnugada suggests the matter was addressed by the police, but based on Tamohara's statement, it was not. When it was reported, it was no longer a matter of concern for the Texas State Police, but it was and remains a concern for ISKCON. Considering the way ISKCON membership can distance individuals from the influence of the broader "karmi" society, I don't think there is any reason to place our confidence in state legal system. Of course incidents should be reported, but the failure of the state to find guilt certainly does not mean a person is innocent. Please note that when Visnugada says he thinks Vakresvara was "wrongly convicted," it does not say that he appears innocent, only that there may have been some divergence from what he considers standard legal procedures. His wording appears carefully stated to avoid revealing that difference.
I have to get to other matters now, but hopefully I'll get the time to write more on this later. Hare Krishna.
January 28, 2003
Dhira Govinda dasa
c/o ISKCON Child Protection Office
Re: Vakresvara Pandit dasa
Dear Dhira Govinda prabhu,
Please accept my humble obeisances. All glories to Srila Prabhupada.
First, please accept my apologies for the long delay in providing you with
this written opinion. You and I spoke in November (I believe) at which time
I articulated my views of the evidence in this case.
Since it is anticipated that you will not be the only person to read this
letter, I want to preface my views with some information about me.
I am an attorney in practice in upstate New York. I have been a criminal
prosecutor (in New Hampshire and New York), but my primary area of
concentration has been criminal defense. I also have a good deal of
experience in Family Court, representing both adults and children.
I have been admitted to practice since January of 1989 but prosecuted prior
to admission in N.H. for nearly a year. In that I have been conditioned to
defend the accused, I initially viewed the package of material with the eye
of a defense lawyer. I was conscious of this bias and tried not to let it
influence or dilute my objectivity. But if I had a bias, it was that I view
allegations with a wary eye and always look for material to refute them. It
is almost a reflex at this point.
I was a bhakta in the NY W. 55th St. temple when Vakresvara Pandit das was
there (hereinafter, I will refer to him as VPd for the sake of brevity). I
didn't have any significant dealings with VPd at the time other than to
attend temple functions that he also attended. I mention this only because I
want to state that I brought neither positive or negative impressions of him
to my review of this material.
CONCLUSION: After reading the correspondence, statements, notes, test
results, etc. which you provided to me, I came to the conclusion that the
Committee made the correct decision in deciding that VPd was guilty of the
charges leveled against him.
REASONING
VPd's defense can be broken down into two stages: 1) prior to having the
counsel of Sesa prabhu, and 2) with counsel. Both these stages will be
discussed separately.
Stage 1 -- Without counsel: VPd's pro se defense did him far more harm than
good in terms of credibility.
Rather than deal with the merits (based on facts, time frames, alibi
witnesses that could exonerate him), VPd immediately resorted to attempts at
deflection and manipulation of the Committee. He did this in various ways in
his responses to your 12/5/00 questionnaire.
His first defense was to raise the specter of racism despite the lack of any
mention of race in XXX's accusations (hereinafter, I will refer to her as
YT).
Nor was it raised in a passing fashion. He employed the use of the word
"nigger" a number of times while both imputing a racist mentality to YT and
in general portraying himself as an underdog and victim ("I'm an easy
target...I'm a nigger....").
I have seen this mentality many times in my practice of criminal law. It is
not confined to the use of racism but in VPd's case that was his tool of
choice.
This tactic is designed to distract from the facts and persuade the reader
that the accused is actually a victim. He is being made a victim of the
process and since he is among the downtrodden (poor, has a prior record, or
in VPd's case, is a member of a minority) he can't possibly receive a fair
hearing. The intent is to convey the message to the Committee that if they
find him guilty, then they are ratifying this racism or are perhaps even
racists themselves. This type of defense is usually offered first by those
who lack better defenses. It is not an actual defense.
Another tactic employed by VPd is to attack the
accuser: YT came from a bad family situation; she was sexually active with
neighborhood boys (nondevotees, too), etc. While there are instances in
which the credibility of an accuser can and should be attacked, nothing was
offered by VPd other than character assassination (this occurred even while
Sesa was representing VPd). This did not constitute impeachment. Later, Sesa
will complain about criminal standards being misapplied in this case (not a
valid argument as will be discussed below), but in criminal cases there
exists a "rape shield" law which would prevent prior sexual conduct of the
accused being used by the defendant. The defense was not barred from using
it here, although I perceived his use of it as an act of desperation more
than the offering of a legitimate defense.
VPd suggests the existence of a mysterious conspiracy by references of
"...whoever is behind this all."
Other comments such as stating that he feels "Resigned and ready to go to
hell" are further attempts to gain sympathy (deflection). But perhaps the
most damaging was his unsophisticated attempt to criticize the process of
the Committee by stating that if he were guilty he would still say "no" to
the allegations (i.e. he would lie).
The inference was that a guilty person would give the same answer as an
innocent person. He goes on to state that his answers should not be believed
by the Committee.
Stage 2 -- With counsel: My comments in this section should not be taken as
a critique of Sesa's performance as counsel. I don't know the contents of
his communications with his client or other factors that he had to work
with.
It runs contrary to any civilized notion of justice to have the burden of
proof rest upon the accused. In other words, VPd was not, and should not be
expected to prove his innocence. It is up to his accuser and / or
investigator / prosecutor to prove guilt. This is true whether dealing with
the criminal burden of proof (guilt beyond a reasonable doubt) or the civil
burden (guilt by a preponderance of the evidence -- or the higher civil
standard: guilt by clear and convincing evidence).
VPd complains about the criminal code of California being used to establish
the elements of the sex offenses. Yet this complaint ignores the actual
context of these proceedings. While some elements from the California Penal
Law were used, this was an administrative proceeding which VP was subject to
only because of his voluntary participation in ISKCON. No punitive sanctions
involving incarceration are possible in this proceeding. There was not even
a prosecuting attorney. Instead the Committee was more inquisitorial in
nature (no negative meaning is attached to "inquisitorial"). It is also true
that the burden of proof in a criminal case is guilt beyond a reasonable
doubt whilethis Committee employed the lower standard of what appears to be
a preponderance of the evidence.
The majority of my experience having been in criminal court, I can state
that prosecutors don't like to go to trial unless they can be reasonably
confident of a victory.
In VPd's case, there is no physical evidence of sexual contact. Nor are
there any eye witnesses to the alleged sexual activity. It is not a
prosecutor's dream case by any measure. However, one person's word against
another's can be sufficient to convict even in a criminal court if the trier
of fact determines that there is sufficient disparity in the credibility of
the parties. A comparison of the parties' testimony and their respective
approaches to stating their positions is called for. As a prosecutor, I
would take this case to trial and count in large part upon VPd to help
convict himself.
YT was forthcoming about a number of details. Her allegations were not
"bare-boned" but were accompanied by descriptions of places (most noteworthy
was her detailed description of the residence of a client of VPd in which a
sexual encounter was alleged to have taken place--if she had not been inside
and had only waited in the car, she could not have offered these details),
specific acts, etc. I was once told by a forensic psychologist that the
recitation of details that embellish and that are beyond the necessary
basics to establish an occurrence is a sign that the speaker is telling the
truth. That has been my professional experience as well.
VPd's tactic while he was represented was to withhold as many details as
possible. The basic premise is that details don't hurt you if you are
telling the truth.
Details can harm you if you are lying because it is hard to keep fictitious
details straight through more than one telling of them. Details can also
harm you if you are guilty.
While it is improper to shift the burden of proof onto the accused, a
comparison of the manner in which the parties related their versions does
not do that. This comparison should not be mistaken as an attempt to shift
that burden.
Individuals in superior positions who exploit or take advantage of those in
inferior positions are akin to predators. Any "good" predator will select
prey in a logical manner. YT's character, background, and appearance all put
her in a vulnerable position.
Recall that she was overweight, from a broken home, poor, and suffering from
low self-esteem. She, not VPd, was disenfranchised. She had only recently
come into adolescence and the consciousness of viewing herself as a sexual
being. She was, in short, a good victim.
Part of VPd's defense was to offer numerous character references. In
criminal court such references are confined to general statements regarding
the speaker's knowledge of the reputation of the accused in the community
and then what that reputation is. Specific instances of the accused
demonstrating good character are not allowed. In this regard, VPd enjoyed a
relaxed standard. But his own choice of character references backfired
against him in my view.
I especially noticed his use of a statement from Syama devi dasi, a social
worker who dealt with sexual and physical abuse of children. She is well
educated on the topic of child abuse and would know what to watch for in her
own children. A predator would not be likely to select her children
(presuming that the predator know Syama) for abuse. Syama as the mother
would be too strong and smart a protector and her children would probably be
well schooled by her in defense against such abuse.
There were other individuals who were members of strong families or who had
experience in child protection. The predator goes for the weak, not the
strong. It comes as no surprise that such individuals who know VPd and the
good works that he has done in other areas would come forward and vouch for
him. They or their children would be unlikely targets. YT on the other hand
had no protector. Her mother wasn't a skilled social worker, her father
wasn't around, her family was troubled and not of significant standing in
the community. She was vulnerable. It means little that those in more
powerful positions upon whose offspring he would not dare to perpetrate any
sexual misconduct come forward and say, "He never did anything to my
children."
An issue was made about why YT would be dancing in kirtana that VPd led even
after the sexual exploitation had occurred. Why did she wait so long to come
forward, etc.? Those who ask these questions (or assert those facts as a
defense) do not realize the dynamic involved. YT, having been sexually
exploited (assuming her version is true for the sake of this point), and has
had her self-esteem lowered even further by having become prey. She would
realize that she was prey on a very basic level. She would see VPd in a
glorified position leading popular kirtans, receiving adoration from other
devotees (including many of her generation), and she would feel dirty and
insignificant. It would take a long time to get the courage and
determination up to come forward. She would probably be indenial about the
abuse as well which could explain her participation in temple events with
VPd.
I don't want to stray into the psychological realm overly much. My
experience as a criminal attorney has caused me to be familiar with both
victim and perpetrator thinking to some extent, and by necessity I have
explored those thought processes as they pertain to VPd's defense.
CONCLUSION
The findings against VPd are supported by the evidence before the Committee,
not the least of which is his own attempts at a defense. Almost all of his
defenses hurt him more than they helped. This is especially true of his
words and attitude prior to obtaining counsel, but that trend continued even
after the appearance of counsel.
YT struck me as credible in no small part because of her detailed
descriptions. That she fit the profile of someone that a predator would
likely exploit was also worth considering. VPd's attempts to distract, to
raise the race issue, to solicit sympathy, to cast himself as the underdog,
and to withhold detail from his testimony all hurt him.
This letter is not meant as a critique on the procedure ISKCON is using. I
certainly have thoughts on how it could be improved, but that goes beyond
the scope of this case. My opinion today is confined to the articulation
that I believe that the committee's findings were supported by the evidence.
The procedure used by the committee for arriving at its conclusions were not
so flawed as to render them unfair or biased.
Indeed, some of the rules clearly favored the accused (such as the lack of
zealous prosecutor whose job it would be to aggressively prosecute the
accused).
I agree with the committee's conclusions regarding VPd's involvement with
YT.
If I can be of further service, please let me know.
Your servant,
Kirtana rasa dasa
