Mental Gymnastics: Silenced Voices of Victims in the Sexual Assault Case by USA Gymnastics Team Physician

By: James Trusty

The high-profile prosecution of the disgraced physician who treated U.S. Olympic gymnasts ended with a stern sentence but a lingering mystery regarding victim rights.  U.S. District Court Judge Janet Neff, serving in the Western District of Michigan, sentenced Larry Nassar to 60 years in prison for his possession of child pornography, as well as some related charges.  Nassar had been the team physician for USA Gymnastics, whose members included now-celebrity Olympic gymnasts like Aly Raisman, McKayla Maroney, and Gabby Douglas.  Raisman and other molestation victims provided written victim-impact statements for the judge’s consideration, but Judge Neff made a surprising decision to forbid live testimony from six young women who had been repeatedly molested by Nassar.

Part of the surprise stems from the fact that federal sentencing proceedings are designed to provide the judge with expansive information about the crime and the defendant.  While the sentencing judge is afforded wide discretion, it is well-established that the judge can consider information about the defendant or his/her conduct that far surpasses what the jury would hear during trial.  For instance, in Williams v. New York, 337 U.S. 241 (1949) the Supreme Court approved a sentencing judge’s consideration of burglaries allegedly committed by the defendant but not charged in the current case.  Further, in U.S. v. Watts, 519 U.S. 148 (1997) the Supreme Court allowed sentencing judges to consider crimes for which a defendant had been acquitted, as long as they were supported by a preponderance of the evidence.  You can safely guess that Al Capone’s sentencing was not limited to tax evasion calculations and, more recently, although O.J. Simpson’s robbery sentencing judge swore off considering the well-known murders, she likely could have done so without fear of appellate reversal.  Adding to the already permissive mix of sentencing considerations is the crime victim’s “right to be reasonably heard,” under the federal Crime Victim’s Rights Act, 18 U.S.C. Section 3771.  At least since 1991, the Supreme Court has shown clear favor for full consideration of victim impact, even in highly charged capital cases.  (See Payne v. Tennessee, 501 U.S. 808 (1991).

It is true that the six sexual assault victims were not directly part of the government’s indictment, but the conduct they suffered at Nassar’s hands was consistent with the rest of the government’s case, not contested by the defense, and well within the “heartland” for consideration at a child pornography case.  Indeed, it does not appear that the defense objected to these statements and the court expressly found that the victimization of the six was permissible and relevant to the defendant’s sentencing.  There was simply no obvious reason to exclude the live presentation at sentencing.  Here is where the mental gymnastics come in.  The court ruled:

“The Court’s decision on the Government’s motion is by no means intended to deny these victims—of clearly horrific conduct—a voice.  Their statements deserve to be heard, in the appropriate forum, at the proper time.  There are multiple state criminal cases and multiple civil lawsuits specifically focusing on Defendant’s years-long, nationwide—and beyond, sexual assaults committed against these and his other more than 100 victims.  Their voices will, and properly should, echo through the halls of justice for generations to come.”  Case 1:16-cr-00242-JTN, ECF 42 filed 11/30/17, pages 2-3.

But this comes across as -Your important voices need to echo through the halls, but just don’t talk in my courtroom.  The judge followed up on this comment by claiming that consideration of the six live witnesses would possibly eclipse the many other victims of Dr. Nassar who “have no voice to redress the crimes committed against them.”  In light of the federal sentencing standards, the Crime Victim’s Rights Act, and the uncontested relevance of the six victims, Judge Neff’s conclusion is baffling.  The end result of Nassar spending his life in prison is undoubtedly appropriate, but the twisted procedural road created out of thin air was reminiscent of the old days when Russian judges would penalize American gymnasts for phantom “errors.”  Sadly, though, this was no sporting event.