Silence is Not Consent: Women’s Freedom Conference 2015
Sometimes the victim of a sexual assault does find justice.
In the case of UC Davis graduate Yee Xiong, a lasting sense of justice took a long six years. She realized it on Oct. 12, when a Yolo County jury unanimously awarded Xiong – the American born daughter of Hmong immigrants – $152,400 in damages for medical expenses she incurred and anguish she suffered after being sexually assaulted by a man she thought was her friend.
Truthfully, that dollar amount is a pittance considering what Xiong has endured since the night she was assaulted. She doesn’t really expect to see much of the money, if any at all. But that doesn’t matter to her.
What matters to Xiong, now 26, is the hope that her story will give strength to other sexual abuse victims. She hopes they will come forward and tell their stories, face their accusers, reclaim their lives, and increase our collective understanding of sexual abuse and assault.
“I hope some victims can see themselves in me and are able to find justice in the way they define justice,” said Xiong. “I’m really hoping that some survivors see my story and realize they are not alone.”
Xiong’s story is an antidote to the recently concluded confirmation of Brett Kavanaugh to the U.S. Supreme Court, a shameful exercise in which the accusations of a woman accusing Kavanaugh of sexual assault were obliterated by the intense desire of a Republican majority to confirm Kavanaugh no matter what.
Yee watched the proceedings on TV and saw parallels to her story: The rush to support the man and disbelieve the woman; people choosing sides based on their own biases over the substance of the allegation; a lack of a vigorous truth-finding process.
This happened to Xiong, too. She was fearful of coming forward. Her life and plans and hopes were temporarily derailed after her attack. Our system of justice abused her. This is why some women take years to come forward with their stories and why most never do at all.
According to the U.S. Department of Justice, only 30 percent of sexual assault cases are reported to authorities.
And when they are reported, the process can be hell.
In Xiong’s case, her abuser wasn’t arrested and charged until two years after her attack. Those initial years caused Xiong psychological and emotional damage that she is only now acknowledging and treating.
“I had all these symptoms but I couldn’t put a word to them,” Xiong said.
“It was only when I started seeing a psychiatrist recently that I was diagnosed with post-traumatic stress disorder and anxiety. It explained a lot but before that, I couldn’t put it together.”
That Xiong proceeded with her case says a great deal about her personal courage, and our failures when we blame women or don’t believe them after they say they were sexually assaulted.
Xiong was only 20 on July 9, 2012. According to the police and court accounts, she awoke after a party with young people, who were her friends, to find Lang Her, then a fellow UCD student, on top of her. Xiong’s under garments had been pulled down. Her arms were pinned down. She felt a sharp pain between her legs. She said she had not given consent.
Her was charged with rape of an unconscious person, rape of an intoxicated person and sexual battery. Two Yolo County juries couldn’t reach a verdict that it was rape, even though Her’s story changed repeatedly, and even though Yolo prosecutors produced evidence that Her’s semen was found inside of Xiong. In the eyes of the law, it was not rape.
The hangup in the second trial spoke to our societal ignorance on sexual abuse. Ten members of the jury were ready to convict Her of rape. But two jurors – both older men – couldn’t go there. They couldn’t get past the fact that Her had given Xiong a ride to UCD after the assault. Somehow, in some convoluted way, this raised doubts in the minds of the men that a rape had occurred.
Her initially claimed nothing happened. And then said he and Xiong had only kissed. Then prosecutors produced the semen evidence. What was so hard to understand?
The party had been at Her’s house. Young college kids did what young college kids sometimes do – they drank to excess. Xiong felt sick and fell asleep there. Unbeknown to Xiong, her friends left her at the house. Other party goers left as well. Xiong trusted Her. Their families knew each other. The Hmong communities in Yuba – where both were from – and in Yolo – where both went to school – are tight.
She had no reason to fear she would be sexually attacked – until she was. She ran to a bedroom and tried to call her friend who had left her at the house. But her cell phone died. She was afraid if she confronted Her in the moment, he would get violent. Her would later prove his capacity for vindictiveness. So in that moment of shock and horror and shame and vulnerability, Xiong said yes when Her asked if he could give her a ride to school.
“To some people it was questionable but your brain tells you what to do to survive,” she said.
To their lasting credit, Yolo prosecutors were prepared to go to trial for a third time when Her took a plea instead – no contest to assault by means of force likely to produce great bodily injury. It’s a felony but it’s not rape. Her was sentenced to a year in jail, five years probation and required to register as a sex offender. On the day he was sentenced, as Xiong and her family embraced and thought the nightmare was finally behind them, they were shocked to find it was not.
Her sued Xiong and some of her siblings for defamation. He was upset that he had been a called rapist on social media. He sought $4 million. Xiong couldn’t afford to see a counselor for as many sessions as she needed, let alone pay for a lawyer.
Sacramento-based lawyers at Orrick, Herrington & Sutcliffe – a massive firm with offices around the world – took her case for free. They got the defamation suit tossed and then won her the damages. Xiong’s case was initially handled by McGregor Scott, who then passed it on to other Orrick lawyers when he was appointed U.S Attorney for the Eastern District of California by President Trump.
Sadly, some members of the Hmong community continue to blame her, out loyalty to Her and his family. When I wrote about Xiong’s case a few years ago, I was surprised at the attitudes of women I knew who had sons and found fault with Xiong and her story.
When a spokeswoman for President Trump said some women saw their sons and husbands in Kavanaugh, I believed her. I’ve seen it for myself.
“(Sexual abuse cases) play out the way we are taught,” Xiong said. “But if the perpatrators aren’t held responsible, the crimes continue.”
So do the recriminations. Xiong grew apart from the friend who left her at the party. “She blames herself but it’s the rapist who should be held accountable,” she said.
In the years of pursuing justice, she felt her life was clouded by fear and foreboding. She felt she couldn’t make plans. That her case was a like a weight around her ankle. So why go forward it? Because she felt life would have been even worse if she hadn’t.
“No amount of money can fix the damage that’s been done,” she said. “But it was important to fight it out, to set the record straight.”
She feels she can go on with her life. Xiong works with sexual victims in Yolo County now. She’s begun to allow herself to ponder a brighter future.
“Before (her case) was a strain or a barrier,” she said. “It was very dark and I wouldn’t be able to get out of that tunnel. But this has opened up the light for me to see what I want for my future.”