Genesis The Podcast

Allocutions: Where survivors find their voices

• Genesis Women's Shelter • Season 3 • Episode 3

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Have you ever felt silenced? This is how many survivors of domestic violence and sexual assault feel as they traverse the criminal justice system. With Kelsey McKay, founder of Respond Against Violence and former prosecutor, we delve into the power of allocutions and how they can transform the narrative of survivors of violent crime, giving them a powerful platform to share their truth.

We navigate the labyrinth of the criminal legal system, peeling away layers to understand its complexities. Kelsey, with her rich experience and vast knowledge, guides us through this journey, talking about the importance of victim impact statements and allocutions in ensuring justice. By shifting the focus to the survivor, we explore how language can be wielded to realign the narrative around the victim, creating a more empowered and inclusive framework.

Our conversation also touches upon the role of programs like the Uncooperative website and Do No Harm campaign in uplifting survivor's voices, and how allocutions can be used to advocate for social justice.  This is more than just a conversation; it’s a call to action, an invitation to change the narrative and empower survivors of violence. 

Maria MacMullin:

Kelsey McKay, founder of Respond Against Violence, is back on the podcast to discuss allocutions and how they function in cases of violent crime.

Maria MacMullin:

I'm Maria McMullen and this is Genesis, the podcast. Kelsey McKay is a former prosecutor and a highly recognized expert on criminal asphyxiation, domestic violence, sexual abuse and other forms of power-based crimes. As a prosecutor, she spent 12 years handling complex cases and designing creative solutions. She has trained practitioners across all systems and represented individuals as they navigate the criminal system. With a skill for implementing change and working across disciplines, she appeals to audiences from the Pentagon to festivals such as South by Southwest. With a passion to motivate every audience, she brings cultural awareness to the need for systems change, built with solutions ingrained in efficiency, empathy and equality. Her approach recognizes the limits of practitioners and the vulnerability of survivors. Her influence has built a team facilitating solutions that move professionals and communities from awareness to action. Her nonprofit, respond Against Violence, is a multidisciplinary think tank seeking to generate sustainable change in our society's collective response to violence and trauma.

Maria MacMullin:

Kelsey McKay, welcome to the podcast. Thank you. I'm so happy to have you back on the show. Just to give people a brief history of everything we've done together at Genesis, the Conference on Crimes Against Women, we go way back. You always participate in the Conference on Crimes Against Women, which is our in-person conference held annually in Dallas in May. You often do a pre-conference session. I think this past year it was about how to catch a killer right.

Kelsey McKay:

Yes, it's always related to strangulation and asphyxiation in some way. For me, that is because that was my path to identifying problems and solutions, both in my community how to fill those gaps that existed and then how to take that systemically across the nation, replicate what we did in strangulation. I know we did a prior podcast on strangulation but because that's my lens and I've taken the journey, I feel like from streets all the way through the parole border or victims being criminalized as a result of it. We always use that pre-conference to address essentially what is the big issue I'm seeing and the very common gap that I'm seeing failures within the system.

Kelsey McKay:

Two years ago we did the sexualization of strangulation because I kept seeing the rough sex defense as a challenge for practitioners. The year after that we did misdirected and staged asphyxiation homicides. What we did this year was really pull together all those concepts and really give away for DV homicide prevention to be a topic of conversation. It was titled how to Catch a Serial Killer. It was really about looking into the history and utilizing our understanding of things like domestic violence and potential opportunities to identify those red flags that often escalate that killer over the course of his life, whether it's in this relationship or others to commit serial offenses, including killing. It was really fun. We used one fact pattern and did a deep dive in. It was a wonderful connection between practice and prevention.

Maria MacMullin:

Those pre-conference sessions are always well attended and you offer such a robust curriculum to the participants. As you mentioned, we did host you on the podcast on crimes against women discussing asphyxiation. That was back in 2020. Just this past year, you and I got together here on Genesis, the podcast, and we talked a lot about victims' rights. This episode today about allocutions is really an offshoot, or a continuation, if you will, of that conversation we had just months ago. I wanted to dig into all of the details about allocution. I know that you have a lot of experience in this area and on this topic. Can you first give us a basic understanding of what is allocution?

Kelsey McKay:

Absolutely Real quick, mary. I just re-listened to that podcast and it's great. What I realized is why I'm so excited to be here today is because that was a big conversation about all the gaps and broken things that a survivor and a victim experience as they go through a system, and how frustrating and disempowering and re-traumatizing it is. Today we're going to talk about the one thing I have found that can be incredibly empowering to a survivor within the criminal legal system itself. While I have, I guess, a lot of experience compared to other people on allocutions, the truth is it's not something I became particularly familiar with until the last two to three and a half years. I stopped being a prosecutor eight years ago. I realized that the time I was a prosecutor, those 13 years, thousands of victim-based crimes, thousands of gender-based crimes, crimes against women not once do I remember a victim doing an allocution. I certainly do not remember ever telling them about this. I definitely did not help them, have strategy and crafted, so it was empowering. I had to drive myself to this as a result of cases.

Kelsey McKay:

I've represented survivors who were going through and trying to navigate the criminal system. What I found in some of these, I would say some of the most horrifying cases I've ever had as a prosecutor, as a victim's rights attorney, as someone who gets consulted on a lot of cases. These were some of the most horrifying, disturbing and strong cases I've seen in crimes against women. One involved a sexual serial predator who was attacking women, outrunning. One involved a woman who was eight months pregnant, who had the child beaten out of her stomach and died, who works at her shelter. All of these cases were so horrifying. Another was a woman who, after obtaining a protective order by her against her abuser, that night he shot her eight times through a window and left her for dead. We're talking about serious, serious cases, and not one of those did I feel like we got justice, and if I'm alongside you and we still aren't getting that, there's a real problem.

Kelsey McKay:

Now, granted, those might be in a particular county where things lean a certain way, but the bottom line is what I recognized over the course of the last two and a half years is, one by one these cases would come to a resolution is what the system did to these survivors, the outcome of the case, how it would have destroyed these survivors, how to find a way for them to be able to walk out of this system and not just be resilenced. And in identifying and hearing so many survivors, including my clients, tell me that the experience of the system, the criminal process and in other systems as well it was worse than the abuse they experienced that got them there, which is when that is the feedback by the consumers that we rely on to report dangerous criminals that they wish they hadn't reported. That's not a great answer, and so the more I heard that, the more I started to explore okay, how can I help them come out of the system and not be destroyed by it? It takes a lot for a survivor to report most don't and so when they do, what we don't want, after years of often abuse or silencing them already is for them to report only to be silenced again by the system because they may never come back up. And part of the challenge in our communities we don't have a lot of survivors who make it all the way through the system or unsilenced, and then feel strong enough or have enough strategy to speak up in a way that the world can hear it, and so I was really searching for a way to close that door on the criminal case after there was plea and sentencing often not enough and not to the crime they deserved. Find a way for that last moment that they had to be in that courthouse, to kind of how to drop the mic moment, walk out with their head held high and kind of move past that onto something different.

Kelsey McKay:

And so, as I was going through things, I recognized that there are two ways the victim expresses the impact of a crime. The first is an opportunity to do what's called a victim impact statement and another is an allocation, and it can get a little bit confusing because they're called different things in different states. Here in Texas we have both of those terms, but they mean different things. A victim impact statement is something that the victim or the victim's family will write and it's something that's given to them and it is supposed to talk about what were the costs, what was the impact of the crime, and also to obtain financial stuff Should there be restitution, that type of thing and it's often given to them at the very beginning of a prosecution, which of course it could be years before it ends and that is something that is utilized as reviewed prior to sentencing. So DAs are supposed to review it, judges are supposed to review it and then later after, if he goes to prison, it's something that's in the file for the parole board to review as well. So it's that opportunity to kind of get something on paper that goes in the file and follows that offender along, so that occurs prior to sentencing and could play a role in sentencing itself.

Kelsey McKay:

Allocation, which is what we're going to talk about today, though sometimes I use them together strategically, and now acution is something that is delivered after sentencing, so it has no impact on the outcome of the case. It's afterwards all over and it is something that is read in court or it is something that is said in court, sometimes by the victim, the survivor, a close family member, especially in the case of a homicide, and it's something that if the person doesn't want to be there themselves for whatever reason they're fearful, they don't want to speak in front of the abuser, they don't want to be there they can have someone read it for them. And it happens, like I said, after sentencing. And it's an opportunity for them to even go beyond the impact of the case but to speak to the offender and in some cases at least those that we've worked on to speak to the system and how they treated them, and so it's something that, again, doesn't have an impact on the case but, in my opinion, can have an impact on the system and society if they can hear that.

Kelsey McKay:

Well, now it's not recorded, so, unlike a victim impact statement, it's very difficult if you don't have a written version of it because it's not something the court reporter takes down. I started to bring media in so we can have some documentation of it in advance. So that's some of the differences between them. And again, in other states they might call an allocation what the offender says to the court prior to sentencing. So just want to be clear that anyone in different states should look up what their state describes this opportunity to speak after sentencing and really say whatever they want. They don't get to be cross-examined, nothing.

Maria MacMullin:

Yeah, what a helpful clarification on what these things mean and how they function. So just to one other point of clarification a victim impact statement will exist in a file, but an allocation will not. Is that correct, correct?

Kelsey McKay:

I mean it could right One of the things I've thought of. I just did a training for the Texas Permanent Rural Board and the more I learn about what has an impact on parole decisions here down the line is it really is that the survivor of the victim's family has filed or expressed in some way their opposition or how this crime impacted them, and I know for a million reasons a victim or family may never think to do that. So if you include something in your victim impact statement and my suggestion for the future is that you attach your allocation to that or somehow get it in the criminal file that way it's something that the parole board could read in the future, even if you never are able to communicate with them.

Maria MacMullin:

And it's hard right. I mean, these are very intimate moments that people experienced and expressing things that were taken from them and done to them and victimized them. It takes an incredible amount of strength for someone to put that together and then also read it aloud in front of a room full of people who they probably don't know very well. But it's a wise counsel who will advise her clients to consider those things in order for her to achieve the truth and to achieve some level of justice for herself. And I recently was talking with Dr Judith Herman. I love her, I do too. She's amazing. Just a couple of weeks ago on this show about a victim's desire for the truth and given the opportunity to make an allocation or a victim impact statement, she speaks the truth. This is what happened to me, and it may be the only time that she has that opportunity to offer the truth and have this person held accountable for it.

Kelsey McKay:

Well an offer, the truth in a way that can be heard. I often say it's not that you're not saying it loud enough, it's that nobody can understand or hear you. And it's not about volume, it's about how we explain things, how we deliver things, because the truth is any of these crimes, sometimes the prosecutor doesn't even really understand them, or the judge or the defense attorneys, certainly not the court staff or citizens or society, and often not even the survivor. And so for me it's an opportunity to help them translate to whoever it is they want themselves or the world or the court translate what it is they experienced. And the flaw that I often see in the, the allocutions I've seen delivered not with my clients, but as I've kind of dug into this is you know, you see, a recounting of the events, of the crimes that occurred, all the painful things. You took my daughter away, you took away me being able to be a grandmother. It is all so sad and horrifying and it will upset people, as you said, and what that means is there's going to be a limited audience for that, because what people don't want is to sit around and just be heartbroken all the time, and I recognize that.

Kelsey McKay:

I've recognized that in the trainings I do with people in the community conversations I have, in conversations with anybody right, they have limited capacity to feel and walk alongside someone's pain. Which I want to mention, the Judith Herman quote. I and every training I do with a quote by Judith Herman that encapsulates so well this conversation. I am so glad you interviewed her and it really is about the pain it takes to walk alongside survivors and it talks about how it is just so much easier to stand on the side of the accused because they don't ask for anything other than have to get the exact quote, marie, because it's much better. But it talks about the painful path it takes to walk along with survivors and for me, I'm done doing it when I wrap up the cases I have now. I'm done, I can't keep doing it. It's going to kill me, it's going to destroy me. But what has happened out of so many of my cases is that I see the hope and the way I find that hope is sometimes in the years I'm spending with them.

Kelsey McKay:

You know we have conversations and I hear what were the things that were struggles for them once they entered the system or what prevented them from entering the system and as I hear those things throughout that path, sometimes I jot them down, often I just remember them. And as they mentioned, you know, an example is my client, lashonda. She's the one who was pregnant. She said, you know, after, after Charles's death, I was looking for support groups and she said I, you know, I tried out a few of the mothers who had lost unborn children. And she said, and I looked at her and I said you mean, they weren't built for women who had a child beaten out of their baby when they're in a domestic violence, abuse relationship. And she was like uh-huh, and I said you know what, lashonda?

Kelsey McKay:

Pregnancy is a lethargy indicator in domestic violence. It's a time violence escalates. I can guarantee you you were not the only pregnant woman who lost a child to DV and that's a group we can create. So it's in those conversations I find what is the thing Right. It's two part. What were the things that they experienced in the system? That was a gap that further harmed them beyond the crime, that made it unnecessarily painful, unnecessarily re traumatizing. So that's the first part. The other part is what were those missed opportunities where they could have healed along the way? So it may not be in the criminal system but alongside it, parallel to it. So by the time they're in the case and experiencing it, they're not putting all of their eggs in that basket, because people really rely on a criminal case to speak the truth. And if there's anything a criminal case does not do, it is speak the truth of a survivor.

Maria MacMullin:

Exactly. I want to point out that the criminal justice system is not in place to help a victim heal. It's there to uphold the law and or, yes, it's standard, and so the healing of the victim is the responsibility of the victim and the places that she chooses to participate in in order to heal her own trauma.

Kelsey McKay:

And what she chooses to participate in in the case of a criminal case is the criminal system. So law enforcement and prosecutors.

Maria MacMullin:

But I'm just trying to point out that that's only one aspect of this whole process and really it's the victim that continues to do the work Because, from what I'm hearing from you regarding allocutions and other things, if she doesn't participate then often her truth may not become real to the criminal justice system and others involved.

Kelsey McKay:

You know, and it's a double edged sword, because if they don't participate, that like they, they get blamed for that. If they do participate, it never rarely goes the way they would think. And the confusing thing is that when victims enter right or say they tell a friend or family member this bad thing happened, everybody's advice is the same you should, you need to report that right and so that allows, when the world thinks it's such an easy solution of just calling 911. That's where we have the gap in society and the system. They think it's fixed. Society thinks that it is fixed and what I've learned is that isn't often the solution or even if it is the choice, it isn't the healing part of their journey to be re empowered from this abuse. And you brought up a great point.

Kelsey McKay:

You know I hear people say criminal justice system. I used to say it all the time, I do not say it anymore. I say it is the criminal legal system. And the second thing is, if you want to use the word justice, of which I hear all the time, you know families who haven't gotten justice for their child, justice for so and so. All these campaigns, justice for this person, get justice. I can't wait to get our justice. The term justice and the context of criminal justice is justice for the defendant. Every single constitutional right that is recognized is afforded to the offender right Right to an attorney, right to remain silent, right to all these things, right to many appeals, even if they're convicted. And victims don't have that, and so it's that confusion that we have to get out there to survivors in society because people think this is their justice. I always ask in trainings and often ask survivors is what does justice mean to you? And that is often our starting point.

Maria MacMullin:

Well, here we are back again talking about language. Right, we had these conversations before about word choices and I appreciate you kind of giving us these options to describe things for what they really might be. And the words criminal justice system or criminal legal system refer to the person who is an accused criminal. It's not called the victim, right? It's not called the victim legal system. So where does that exist? Is that may be a different conversation, but you've described for us a couple of points that make these allocutions effective. Right, the gaps, finding the gaps, what would have worked better for you, what would have helped you through this process? And my hope is that, from those statements, perhaps along the way, changes are made. Is that possible?

Kelsey McKay:

Absolutely so.

Kelsey McKay:

To contextualize this, all the things that we just discussed, similar and following the story from our last conversation and where we're going to shift is, like the first, one of the ways to start getting that out to the world after there's a criminal case.

Kelsey McKay:

And so, just to end that conversation about the accused and whose rights it is, I had one more realization since we talked last time, when we talked about how we label victims and when we call them accusers and we call the defendant and accused and suggested that we instead call them reporting parties, because how much judgment comes with how we label victims as the complainants or accusers and I realized I don't know what I was watching, but oh, I know what it was it's. You know, there are some pretty serious federal trials by the US government that are going on right now and I kept hearing that the victim is like the United States right, and I thought to myself you know how many times when I picked a jury did I say these words. You know who are the parties to this case. It is the defendant in the state of Texas. It is not the victim right, articulating, she's not a party to it.

Kelsey McKay:

But unfortunately what happens is when we call her an accuser and call her a complainant, or we see her as a party, even though she is not, what happens is she is seen as the accused. The reality is he might be the accused right as is used in various language, but he is not accused by her. He is accused by the state, by the US government, by the Texas government. And that is where I came to the conclusion like, okay, if he's the accused, who's he being accused by? And the answer is not the victim, the answer is the government. And so I think that was a realization to me about like, oh, that's kind of the logical nuance and gap that I hadn't put together. Okay, so, and then I wanted to just wrap that point. That was something that I realized I had a realization in the last couple weeks about. But when we talk about what are those alternative paths to justice, right? One example I gave with Lashonda is what are the solutions we build? I find victims want two things they want to feel empowered and they want to make sure this doesn't happen to anybody else. And when I say this, sometimes it is the crime itself. But, honestly, the majority or the percentage or the proportion of a family or a victim wanting no one to go through it again is what they experienced in a system. And so what I've started to build, alongside programs that I'd like to do that are fueled by survivor stories and passions is how do we get there right, how do we fund that, how do we create a movement in campaigns and how do we build the solution? Who's going to do that? I'm going to do that, but the whole world thinks someone's already taken care of it, and so when society doesn't know a problem exists like there's not some person at the very top fixing all the systemic societal issues around gender equality, and when there's not some societal issues around gender-based violence, right, it can be heard to fund those solutions. And so that's why it's so important First, people understand that the system can be re-traumatizing, but it can be fixed, and then, second, is, let's start building those solutions.

Kelsey McKay:

So the way I started to connect, you know writing these allocations, not only so that the victim could have an empowering moment, but it was to set the stage for the next step, which is going and building these solutions, and then one of that transition door out of the system, walking out feeling empowered and also setting a conversation, getting it going, getting media attention, getting community involvement in a way that they could hear it. As I mentioned earlier, people get to like people don't want to hear sad, horrifying stories. I know I don't even know how many of those allocations you made it through because it like they're heartbreaking and that's kind of the point, except all of them have infused in it not just speaking to the defendant about how he destroyed their life, but speaks to the systems and what they experienced. It connects to a social justice issue that is important to the survivor and it's delivered in a way that has strategy. In my opinion, that's like my new way of writing a closing argument as a prosecutor.

Kelsey McKay:

That was kind of like the therapy at the end of the case. You could get up and you tell a story and it's emotional and it can be powerful. That was always that moment where I kind of synthesize all the emotion that goes into these cases and kind of put the nail in that coffin and it kind of allowed me to transition on and so for me, as I'm writing and working with these and being strategic and considering the words that we use and the way we deliver in the order of it. It's kind of like that closing argument for the victim, but she doesn't have to wait for a verdict because the verdict is what we're going to build after. So, making sure that there are things in there that connect to society and our community, things that media might pick up on, those are the types of things we really try to incorporate it and then afterwards, right, we're limited in who we do interviews with and we set the stage for our own narrative to be the story that is told.

Maria MacMullin:

Okay. So I have so many questions, one of them being Are allocations reserved for only one? There is a guilty verdict.

Kelsey McKay:

So that's so funny you said that because I was like writing down some thoughts before we met and I wrote a category that said things to expand. So, of course, in navigating through this thing called allocations the last two years, I've kind of dug into where some of the gaps, what are the things that maybe I need to think in advance before I just suggest victims should go all in and do these things? And I also thought about who are we missing? Right, who doesn't get to use an allocation but could benefit from something similar to an allocation? And some are like, right, those who don't report, like how can they get the same feeling of empowerment and unsilence? And then the other was how many of these cases don't get filed? And then those that do, how many get dismissed or don't end in a guilty play?

Kelsey McKay:

And that's one of the things I write down is is there a way, upon a dismissal, for there to be an opportunity for a victim to have their voice heard, even if there's not a conviction? So that was one of the things I was going to start to look into because, right, victims don't get to appeal dismissals, but if they are having a case dismissed, it means they have entered in the criminal system, so I haven't tried it yet, but it is one of those thoughts that I just started to have as I thought about whose voices don't get to be included in the application, with this being the delivery mechanism. Right, we can craft the similar thing. It doesn't have to be done in a courtroom, it can be done in a journal, it can be put on a blog, it can be recorded and in a video clip put on the website. It doesn't have to be an allocation, so I love the idea of thinking about it with a dismissal.

Maria MacMullin:

Yeah, so I guess what you're saying is this is really when we've gotten to the point of a guilty verdict and then we get in a sentencing, and then we can have an allocation.

Kelsey McKay:

Yeah, now it doesn't matter what the plea is to. So even if it were a homicide reduced to a misdemeanor, for instance, after that is rendered they can do an allocation. And I also realized, as I was thinking through, who are we missing in these and how did I get to seeing this as the solution? I realized that probably round A of this was about five or six years ago. I'm very curious.

Kelsey McKay:

I love to talk to survivors and learn their stories about the system and help explain to them like, oh, I know what happened there, because they take it personally as though they did something wrong. And so when I see the same mistake over and over, I recognize it and I know why they do it, because I did it right. And so just clarifying to them like, actually, this is why they did that, it's not your fault. This is something we misunderstand all the time. And in having some of those conversations, one day I had a film guy at my house and we were actually filming like a crime scene training. And in talking with one of the women who I just met, she started telling me her story as being a survivor. Right when someone finds out I was a prosecutor, they wanted like, oh, they tell me about how awful the experience was, and the more I listened and the more I asked questions and the more I heard them, the more I thought this is such a good opportunity.

Kelsey McKay:

I'm a practitioner and I created a little program called Better Together and instead of you know, one side yelling at the other like you didn't do this and being upset, it's about what are those touch points that we can learn from each other, where we're miscommunicating between survivors and practitioners, and so there were so many things in those, and so I have like three or four up on the website and something that's interesting that I hadn't thought about.

Kelsey McKay:

I thought about using them in training, but one of those survivors called me a couple months later and said can you send me that link? I want to show it to my dad. And she was a victim, a child abuse victim of sexual abuse by her older brother, and she reported 15, 20 years later since I've known her, and her father was struggling right, going back and forth about feeling bad and she could not articulate to him in a way that he could understand or that she could even say, and she took that video and gave it to him and just was like listen and watch that, and I remember telling me how it helped him understand, and so that, for me, is an example of the type of program we could do, where we could partner what we do to create an allocution, use it for similar things, but it's just delivered in a different way. It's not necessarily delivered in a courtroom setting.

Maria MacMullin:

Yeah, that's, it's a genius idea. You referenced several allocutions that you shared with me from cases that you participated in, and I wanted to, just for the benefit of our listeners, maybe give some examples of statements within those allocutions or others that are really memorable to you, that really exemplify an allocation and what makes it you know, can make it very strong.

Kelsey McKay:

Absolutely so. Let me add a couple I wanted to pull. One was my client LaShonda, who was the young woman who was pregnant, and it took almost four and a half years for us to get through the criminal case and in the end resulted in a really, really pathetic sentence. But one of the things we really wanted to deliver in her case was speaking to how the system kind of reabused her, and so I have a line from that that I would love to share. The way she ended her allocation I'll tell you the official version than the unofficial version, as she said, well, here I am free of you and your abuse, but still shackled to the trauma you and the system put me through, and I thought it was so powerful to be able to speak to how the experience of the system really played a role in giving a weapon to the abuser and how it just made that pain more. Now, at the end of that, she went off script a little bit and I remember she said I can't, because I can't curse in court. Here's how I'm going to end. And she looked at him and she said screw you, Do you Good? I could have died. It was one of the most powerful moments and you could just tell that after this painful allocation that was so difficult for her but so powerful, you could have heard a pin drop to kind of end on that note was really empowering for her Because in that case in particular, she didn't want him to know that she was still hurting. You know, one of the most egregious things I believe the system did in that case is allowed for her private, confidential therapy records to be subpoenaed and didn't file a motion to quash and she told me. She said you know what, like I don't want him to know how much that had hurt me because they're from after the abuse, and so I think it was really a moment for her to kind of be re empowered and be able to show that she was stronger and that she had moved past him. So that's, without a doubt, one of my, one of my favorite quotes from her case.

Kelsey McKay:

One of the other cases we talked about in our podcast had to do with a doctor who had abused women over the last 30 years, many of which were his medical students, and at the time I think we spoke, he had not been to prison and we had been on that journey for almost 10 years. After the time you and I spoke, we actually made a website called the uncooperative and it has a campaign called do no harm, where all of these women, all of these doctors, nurses, after reading an article we got out there, reached out to us. And that's kind of how some I knew about but had never spoken to others I didn't know existed. As a result of that, we had a revocation hearing in May it was actually the week before conference and six of them testified and it was so incredibly powerful. And after one of those cases, one of the victims was able to speak to the abuser and she said had I not found you, had I not had that opportunity to understand why the system was doing this? You know, I thought it was going to be made. It took very little to explain to each of these women how it wasn't them, it was the system. And then, by coming together, we were able to not only be on silence but to amplify those voices.

Kelsey McKay:

So one of the last allocutions he heard before he walked into the doors that would then take him to prison was the nurse who he had abused, whose case was pending for over four or five years, and part of one of the elements I like to do in an allocation is a little a little aspect of shame slash, humiliation of the offender. They've never felt it. We've felt it for five, 10 years in this case, and there's not a good allocation that doesn't include some kind of shaming and utter humiliation and destruction of that offender and sometimes also of the system. So what Rebecca said, her very last line, was he has two children and what made her report was realized. And he had a daughter and she said I have no doubt that your two children will grow up and be ashamed of who you are, and even if you're walking free on earth or they see you only behind plexiglass, and then I like for him to be scared. What we did last time he was in jail is that's when I found all the women and I knew he was going to prison for six months, which was defeating. It should be much longer. But my thought was what can we get done in six months? Well, he doesn't have a voice. And she ended her allocution with this line. I hope during this time as you sit in prison for six months, that every morning when you wake up and every night when you fall asleep, you are thinking to yourself about what other truths are emerging about me in the free world. Well, you are behind bars. We will be hunting justice. Wow, you know, it's incredible. And from that same trial, this is the first time we've done this, but I thought it was so effective. It was one of the other survivors.

Kelsey McKay:

I think a component we don't often see is the abuse that sometimes the attorneys are complicit in. So you know, often defense attorneys, they're doing their job, they can be ruthless, they can do anything they want. I feel like Sometimes all the way to witness tampering and it doesn't get taken seriously and it's just considered them doing their job. And yet when I'm representing victims, I feel like I can't even advocate for them without a prosecutor sometimes getting mad at me or upset with me and just hitting back because I'm representing a victim, not the accused. And in this particular case it was the same attorney that's been on it for many years and he'd done many, many things that I felt were not appropriate during the course of this case.

Kelsey McKay:

One of the attorneys hired the victim and attorney so she couldn't speak with me when I was the DA, without the abuser knowing so the attorney that was present in court with one of these particular victims. She had sought his counsel at some point, so he had already abused his ex-girlfriend and those charges were pending, and so he had portrayed her as crazy. So the second victim, who's also now a doctor, asked that attorney like is she crazy or is it him Like, what would you do if I were your daughter? And he told her yep, she's crazy. And she expressed how painful it was and how angry she was at that attorney because because of that advice she stayed another six months right, and how much he regretted that and how disgusting she felt like that was.

Kelsey McKay:

And after she left him and after she reported, she sent him an email and I mean it is so perfectly executed I couldn't have written it better myself and so humanizing and so just, I don't even have the words when we were in the revocation hearing and we did not get the outcome we wanted and so therefore, the allocutions we had prepared were no longer appropriate. In a moment of panic I was like do you still want to allocate? And I said do you have that email you sent to that attorney? And she did. And she got up on that witness stand in the allocation and she looked at the attorney and she said Mr Orr, I sent you an email four years ago. I never heard back from you. I want to make sure you heard me. And in front of that entire courtroom, she read that email and it was one of the most glorious moments I've ever experienced in court.

Kelsey McKay:

So, right, there are different ways and it's unique to different cases, but ending on that powerful note allows their pain and passion to not fizzle, but it starts to fuel something in them and my hope is it also fuel something in our communities, Because the other element that I've done, when we deliver these allocutions right, there's the writing and drafting version, some of which we've touched upon a little side of humiliation, humanizing the voice of the survivor, not talking about the accused, addressing issues and gaps in the system, but really the strategy, beyond the content, obviously, is I need people to hear these stories who don't hear them, that the society, the citizens who vote, the people who can put pressure on our political structures to do something different, People who need to be motivated to invest in solutions like what we're going to build at respond.

Kelsey McKay:

And so I started just inviting anyone I knew with a doctor case. We sent out things to, you know, women on doctors boards. On one of the cases where we had the female runners who had solved their own sexual serial perpetrator, they solved an incredible case as well.

Kelsey McKay:

Absolutely, and we can talk briefly about that and how that led to the name of the program. Let's circle back to that, marie, because that's, I think, how we can end with the name of the program we're going to build for this. What I found is we identified the groups who would connect with whatever this story was. In LaShonda's case, it was about protecting Black women, because, while we might be protecting Black men from mass incarceration in some of these progressive district attorney's offices, what I don't see those district attorneys doing is protecting Black women. They've been protecting Black men for many years from mass incarceration than these newly elected DAs, and unfortunately, that seems to come at the cost of them, and that is a social justice issue that we're infusing. In many of these cases where my clients are women of color, because it's a missed opportunity to leave their voice out of this movement, they are more likely to be abused. Women of color are more likely to be killed by their abusers and they're also less likely to report, and so in my mind, it was a huge opportunity for this particular DA in Travis County to buy into who is our most vulnerable populations, and for two huge cases he didn't do that, and so that became one of the social justice issues that we infused in both of the allocutions for Catherine and LaShonda's case, and so we were able to bring those in. So adding that social justice component is important. So, beyond the content, what we do is like who can we bring in that courtroom? Who can we get in there? Is it women who support Black women? Is it other female doctors, people in health care? Is it avid runners in Austin Texas who are not going to understand how women who are attacked out for a run by sexual predators, how those people don't go to prison? And so we pack the courtroom.

Kelsey McKay:

I always do like a media packet and release that I send out in advance, try to make sure there's a camera that can be in there, and usually that's media. One of the nuances of allocutions is they're not recorded by a court reporter, so if it's not documented, somehow it didn't exist, right. And so what I do is I do everything I can to try to get some kind of camera or recording in there so it's not just written words. They hear the voice, they see the image, and I've had some judges refuse to do that, and you know, I think, right, people are aware of what I do, at least in this county, and as a result they know what might happen when they get on the witness stand and what they say, and I think that can sometimes scare them. Of course I try.

Kelsey McKay:

My goal is not to destroy a single administration or single person. It is kind of to break something open with the entire system, not just one office, and so being able to get media. And there's another one of those things that I think we need to expand through legislation and victims' rights, because we've had cases where the judge won't allow it. In my opinion that's just another way that the victims and the survivors get silenced. So I make sure that, even if a camera can't be in there, that a copy of the allocation is out there to the media.

Kelsey McKay:

That's an important factual procedural background that have pulled some quotes, provided some statistics on it, if it's a social justice issue, and try to pack that courtroom with citizens and media and so that's kind of that other component to bridge the voice of survivors and the allocation to the outside world, and that my hope starts to build the movement and foundation for the solution and then really society can get on board right there. They don't have to go through the five years of pain that we went through. They can jump right in with. You know what is a depressing, horrifying experience, but get immediately to the good news and the hope and the change and the solutions that we want to build. So you know, we really, really protect the narrative. Every reporter, every time I do this, asks me the same question Can we interview the victims? I mean, I get 50 different reporters all over the country. Sometimes, like we want it, they won't even come sometimes if I won't let them interview the victim.

Speaker 3:

And my answer is always the same.

Kelsey McKay:

No, what question do you have that I have an answer. Here's the allocation, here's this. If you have questions, I'm happy to answer them. However, here's our narrative.

Kelsey McKay:

It's so easy for these things to go political, many of which have in my cases, not because I've taken it there, but because we have a dynamic setup politically here in Austin that makes it an easy target. And I don't participate in that. I mean, I have refused interviews and coverage by national news agencies simply because I know what the narrative is. I've had others who once I kind of give them the what for and I say here's our narrative, let me know if you'd like to talk about it. Right, I've had them circle back and write stories, even when I wouldn't talk to them, and that start to drive that conversation. And to me that's like such an incredible reward to start to see even little changes in what has become a really politicized news media. And to me I'm sure you'll agree crime, rape, murder, gender-based violence, abuse is not a political issue, it is a human right, and so the political story lasts two and a half seconds. The human aspect of this can last a lifetime and it can make systemic change. So that's part of also what we have done, and then, in building this website and it's a campaign and a movement of respond we've called it the uncooperative, and that comes from that judgment that occurs by the system of victims.

Kelsey McKay:

They often get blamed for not participating in what is sometimes a dangerous proposition, which is to testify or to become engaged with the criminal system or to, at every ebb and flow, as you mentioned, the burdens on them to basically do everything show up, talk, take off, work, put themselves in danger, testify over and over, and so what often happens and I think we discussed this before that gets dismissed and they're like well, she was uncooperative, right, she didn't participate, and that has always driven me absolutely nuts.

Kelsey McKay:

And so, over time, as I learned that in many of these cases the system wasn't going to give us justice, we designed a concept called the uncooperative, and so for me it's a fun play on. We kind of are being uncooperative, right, and how we're going about bringing out victims' voices. We're doing things that I don't think most survivors would even know they could do much less, that they needed to do much less, how to do it and deliver it. They're going through their own tragic pain and so coupling their stories with strategy. Systemic knowledge is something that I have heard from all of them was the key component in them having that shift from feeling defeated to empowered after these cases.

Maria MacMullin:

Okay, so it's only uncooperative if it goes against the rules of a system that doesn't support her, then they find it uncooperative. But the reality is is that we're trying to create a new reality, one that is just and fair.

Kelsey McKay:

Absolutely, and that's kind of, I think, of who's uncooperative. The system is uncooperative with the safety and healing.

Maria MacMullin:

Yeah, that's who's referring to. It's genius.

Kelsey McKay:

I mean, like what you said earlier, the system isn't designed to heal them. Right, and sometimes you know you're told as a victim, like everything is about the criminal. You can't do this, it might ruin the criminal case. You can't do this. You can't go file a civil suit. You can't testify and protect. You can't do that, like all this protection of the criminal case and in the end, right, the system can't keep them safe. No system can keep them safe.

Maria MacMullin:

Well, again, the system is not. The system is designed to uphold the laws as they are, and while protecting the constitutional rights of the accused. Right, yeah, I mean. And who created that system? Do you want to have a conversation about patriarchy? Are we going?

Kelsey McKay:

to have a whole cover next time on the podcast.

Kelsey McKay:

Absolutely. I have a whole opinion on that. But I want to read you Maria one, a quote from one of the survivors about the power of right. It's one thing to be able to do an allocation and learn and know about this, but there is, you know, it's not as easy as you're saying. Write an allocation for me, right, the big solution, because not everyone has access to me. In fact, I encourage you not to call me. I am trying to get out of the individual cases so we can build solutions for everybody.

Kelsey McKay:

But what I imagine, after I saw how powerful it was to have this experience and to build that bridge, is I thought okay, I've always thought it's not fair, it was never fair that as a prosecutor, it's kind of luck of the draw. You know, you might have gotten me, you might have gotten some of these amazing prosecutors that exist, you might have gotten that person, and to me that is not fair. And so, as I was doing these allocations and as I was seeing how much of an impact it had on the survivor and everything else, you know, I mean I've spent hundreds and hundreds of hours on some of these cases entirely pro bono and I invest so much time in these allocations. It's just not. There's no human capacity for me to do that for everyone. But I started to see patterns and things that were helpful. So the important thing is it's not just that, hey, let's tell people about allocations, it's helping them do it and create not only the allocation, the execution, but the strategy. So I want to read I had Lashonde, who I've shared her story a little bit.

Kelsey McKay:

She said have I been forced to do this alone? I wouldn't have done it, and she thanks me for assisting me and strategizing and supporting me to execute the allocation in a way that was hard, difficult and excruciatingly painful, but also incredibly healing. She said my allocation was a way for me to outwardly express all of the thoughts and emotions that I had pent up for the past three and a half years. And as I would hear that, I just thought it's not fair. Everyone doesn't have it. So I have been trying in my head how do we give this to all survivors Through allocation in other ways? And I just kept thinking I'm seeing patterns, I'm seeing how I'm building this, I'm seeing what I'm trying at with strategy, and I just kept thinking we've got to provide some kind of allocation assistance, which, of course, is not a great name for something anyone's going to get excited about.

Kelsey McKay:

So I've been searching for what is a name we could give that project where we educate people about what their state laws are, where we help them understand what an allocation is, maybe by playing some of the famous ones. You know Chanel Miller's allocation in the Rock in the Stanford case, some of the victims and survivors of Larry Nassau those were televised. So if people can see examples that can resonate with them, they'll start to be like, oh, I get to do that, what's that called? And then put in some famous quotes, put in examples, and ultimately what I'd love to do is, on the slide, choose your own adventure, fill in the blank that gets them started to give that allocation. Like I would put Judith Herman's quote up there, because those people can quote things right, it doesn't have to be their words. And so, as I have struggled to find what do we call that, I've come to a place where every campaign we build under the uncooperative I want to start with you, right with the un, and in doing an interview on the case that involved the next door case, for the women solved the case themselves.

Kelsey McKay:

She did such a powerful allocation Lynn, who is a survivor on or not today campaign, which is the runner, who solved, through the next door app, with the other survivors, the identification of the sexual serial offender, she said. In the end we walked out of what could have been a devastating experience empowered instead of defeated. Louder rather than silence. Kelsey helped me outline, write and execute my allocations so that I walked out of that system with a foundation built to make change. She made a campaign that brought citizens into the courtroom and you can go to the uncooperativeorg and you can read more about that story. That's the next door case. And she said without well, yes, I did a pro bono again, don't call me, look at it. On that, she said she ensured that our voices would be heard by the outside world. She made sure the media focused on our story, not the case.

Kelsey McKay:

And what's so incredible is when we were doing the one interview we did in that case, the reporter asked how did it feel to be able to do that allocation?

Kelsey McKay:

And I was still searching for how do we name this campaign?

Kelsey McKay:

And in telling it, she said it felt so incredible to finally be able to tell my story, to tell the DA what they did that hurt me, to tell law enforcement how I was thankful for something, how the system treated me, and she said it was so powerful to be able to do that. And then she paused and she said uninterrupted. And I just thought what a powerful word for how we should hear survivors. Right, they've been silenced and they need to be heard, but they need to be heard in a way that's uninterrupted by society and systems and all of those things that buzz in their ear, and so for me, like that was just the name of it. So we're hoping, as we build the new mission and everything for respond, that the young cooperatives going to be the passion that fuels all this change. It brings campaigns and builds movements for these stories that are really only amplified and humanized by survivors. You know, giving them strategy and that assistance is something I'm really passionate about and excited about building.

Maria MacMullin:

Sounds like an amazing journey that you've just gotten started.

Maria MacMullin:

And it's really incredible to me because just a few weeks ago when I interviewed Judith Herman, we talked about justice, because justice is really justice for survivors.

Maria MacMullin:

It's really the premise of her most recent book, which is called Truth and Repair.

Maria MacMullin:

So her original book about trauma and recovery was her book that came out in 1992. And this is the only book she's published since that time and it is really kind of a follow up and it talks about truth and repair and the role that social justice will play in really changing this system, in really changing how victims are treated and perceived and what we can anticipate as a more equitable, just future for the victim. It's incredible to me to hear what you're saying because you are kind of embodying the work that she's put out there about justice for victims and uncooperative is really just like right in the wheelhouse of that book. So I encourage everyone to, after they listen to this wonderful conversation, go back to Episode One of Season Three and listen to my conversation with Dr Judith Herman and, if you are inclined by the book, by both books, by all the books, she did write a book about father daughter incest back in the early 80s. I believe it was at a time when people did not want to talk about incest.

Kelsey McKay:

And that's the key we have to have conversations and what Judith Herman does or Dr Herman right, I think she's a doctor, I'll give her, you know doing these cases against this doctor where the survivors are doctors, I keep seeing him refer to as doctors and then just with their names. I'm always emphasizing, especially when someone is a doctor, that the quote I end like literally just ended a training last week to law enforcement on. I love to read the quote, because I think what she does in this quote in particular is she sets the stage very succinctly to say what took me 20 years, kind of, to learn, and it's kind of the foundation that I hope we can jump off on. It opens the eyes to why we are living with this injustice because, as you said, society needs to understand social change. Justice for survivors will never, ever happen without society becoming engaged, and they cannot do that if they do not understand their problem. And so I want to build the solutions. But before we can build solutions right, we can't do much if society doesn't even know it's a problem, and so I'd love to read the quote that I read, because I think it really catches people up to speed and then from there we can go build these wonderful things like allocutions and programs that build and find different pathways to justice for survivors, that are healing and hopeful and empowering and don't add further harm.

Kelsey McKay:

What a cure, okay, as Judith Herman MD wrote in her classic book Traum and Recovery, in order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure that no one listens. It is very tempting to take the side of the perpetrator. All the perpetrator asks is that the bystander do nothing. He appeals to the universal desire to see, hear and speak no evil. The victim, on the contrary, asks the bystander to share the burden of pain. The victim demands action, engagement and remembering.

Kelsey McKay:

Believing accusers and holding sexual perpetrators accountable takes courage and commitment. It means we must give up the comfort of our denial, acknowledge that our heroes are imperfect and can even be criminals, listen to the painful stories of victims and stand with them to demand justice. No wonder so many people choose to believe the accused instead of the accusers. It's just so much easier to do nothing and I'm someone who knows I can't keep doing it the same way. When we started the uncooperative it was because I finally had tried everything, and if everything doesn't work I'm not going to keep repeating. I learned from my mistakes and that is when I knew we kind of had to go all in, you know, put as much shots up there, call out the DA, call out the Texas Medical Board, put things out there, invite people into the courtroom, do the allocutions. So I really think she says it just so well to explain why we even need the social engagement and movement.

Maria MacMullin:

Yeah, her work is foundational. It was groundbreaking at the time. It remains foundational to understanding trauma and really understanding what victims want after they've been victimized 100%.

Kelsey McKay:

And this is just step one. Once we give this to a victim, guess what? They're ready, then they're empowered, they're not silenced, they don't go into depression, they don't end with the results that we see so disproportionate in domestic violence, for instance, suicide, coping with drugs or addiction, all those things like. We can change that if we change this.

Maria MacMullin:

Well, to her point, which she said to me when we had this conversation a couple of weeks ago back in the 80s, when she started working, 70s and 80s, when she started working with survivors, when people started to tell their stories and they felt safe and they were in a safe place and they started to be heard and they figured out that they were being believed, they started to recover. Yes, they start to kind of okay, it kind of breaks down the walls and allows them to start moving through the whole process.

Kelsey McKay:

Yeah, that's where they get stuck in the quicksand, right. I can't tell you the number of people who have found me, who I have a 10-minute conversation with never met them and just in. And it's not just listening, it's in hearing, right and understanding, and, like I said, it's kind of like a translator. It takes very little, right. I'll say one little thing that's like oh well, here's why that. And they'll go, you know. Or I'll say I'm so sorry you went through that that they will just break down and say you were the first person who has said that. And I was like, wait, that's the solution. I just like say I'm so sorry, like it really is incredible.

Kelsey McKay:

And I find that the point in which every client I've had or survivor I've worked with pivots is when they realize this thing that's happening in the system or society the not being believed, the not being heard, the not anything, when they realize it's not them that's causing that, it's the system. That is in every experience where things shift. So now, when they're seeing things right or something's being done, they're being told this instead of it just constantly feeling defeated. I always say we're going to use that. Great Sorry, that hurt, I'm sure. Indeed, we're going to use that and so being able to kind of transform or reframe what are the defeating things into powerful things.

Kelsey McKay:

But you can't do that if you don't even know what's happening. And so you're absolutely right, you know she has anyway, she's all the things, do you know? It's kind of funny. I actually, now that you you're in contact with her, I have I want her permission to do something that you and I have talked about. Read it in every training and I don't want to like point it out, but I would love to quote her correctly and I could like quote Dr Judith Herman 2023. She says believing accusers and holding perpetrators accountable, and now I like when I read accusers and now that I have recognized that, you know we were joking in our last podcast because as we talked about language, like we kept using the wrong language and that's you and I and so that would be my dream in life to say that Dr Judith Herman allowed me to change that into reporting parties.

Maria MacMullin:

Let me offer you this I think the language is reflective of the times and perhaps it's necessary to read the language for what it was and appreciate the fact that we now live in a place where you and I can talk about what's more precise language. And personally, I think Dr Herman would be open to conversation about language in her work and, and you know, listening to all different sides of what would what would make it even more powerful.

Kelsey McKay:

I love that point, Maria, because it gives me hope that like removing things forward. It's kind of like when you go watch a movie from 1993, and you're thinking, oh my gosh, you can't believe we would say that kind of thing about Pineda.

Maria MacMullin:

Even from 2003,. I look at stuff and I'm like that was us. We lived like this, but you know, to the point of things that were written 100 years ago. We look at the language and we think, wow, that is not how we would describe it today. Those are definitely not the terms that we would use for ourselves or for people who have experienced violent crime. And yet we can look now and see how we've evolved and how much more we can do. Language is incredibly powerful. It's always a topic on this show. It always comes down to what are we using the right words? How are we describing it? How are we talking about it and speaking of talking about it? I'm afraid we're out of time and I'm going to have to. Let you go. Tell us your website so people can find more about the Uncooperative and all the projects that you're doing.

Kelsey McKay:

Sure. So the nonprofit is respondagamsviolenceorg and from there you can get to the Uncooperative or you can go to theuncooperativeorg and that's where you'll see some of the campaigns. We are, over the next couple of months, Really going to get that up and going. You know, it's one of those things we kind of put together but as it grows and that is that becomes really this passion I have and we're seeing how it will build solutions. We'll do that, Please. You can follow us on Instagram at respondagamsviolence and we look forward to being able to share some of these conversation starters on that as well, and we will continue to share links to whatever we can as we do, these allocutions or opportunities for people to grow something in their own community where they can pack the courtroom. Thank you.

Maria MacMullin:

Maria, thank you. Attention Spanish-speaking listeners Listen to the end of this podcast for information on how to reach a Spanish-speaking representative of Genesis.

Maria MacMullin:

If you or someone you know is in an abusive relationship. You can get help or give help at genesisshelterorg or by calling or texting our 24-7 crisis hotline team at 214-946-HELP 214-946-4357. Bilingual services at Genesis include text, phone call, clinical counseling, legal services, advocacy and more. Call or text us for more information. Donations to support women and children escaping domestic violence are always needed. Learn more at genesisshelterorg. Thanks for joining us and reminding you always that ending domestic violence begins when we believe her Genesis.

Speaker 3:

el podcast anuncia servicios bilingües disponibles en Genesis Women's Shelter y Support. Si usted o una conocida este en una relación abusiva, puede recibir ayuda o dar ayuda a genesis shelterorg, o por llamar o mandar mensaje de texto a nuestra línea de crisis de 24 horas al 214-946-4357. Servicios bilingües de Genesis incluyen mensajes de texto, llamadas, consejería, servicios legales, asesoría y más. Llámenos o mandenos un text para más información. Siempre se necesitan donaciones para apoyar a las mujeres o a los niños escapando de la violencia doméstica. Aprende más a nuestra página de internet en genesisshelterorg. Barra inclinada donate. Gracias por unirse con nosotros. Recuerden que el terminar la violencia doméstica empiece cuando creemos a la víctima.