Kudos to Law & Order: SVU for always reminding viewers that incapacitated people can't consent to sex.
Sometimes people don't realize that, and that can lead to serious problems when someone is too drunk to consent, and their partner has sex with them anyway.
On Law & Order: SVU Season 18 Episode 18, the show took the idea of informed consent a step further with the bizarre case of a New Age "spiritual leader" who hypnotizes women before having sex with them.
I hope this case wasn't based on a real-life event because Trask's hypnotic routine was downright creepy and I'd hate to think that any real women were subjected to it!
I knew from the first scene that there was going to be some trouble at the retreat. Declan Trask just seemed too much of a Timothy Leary type for there not to be.
Man: My friends, we're here to take an amazing journey. One that will connect you to your deepest selves and to each other. And if you open your souls to it, tonight you will change your life.
Guy: Buckle your seatbelt.
Woman: Here's to nothing.
Guy: You mean here's to everything.
I'm not sure how I feel about that.
New Age stuff gets a bad rap, and sometimes deservedly so. Some beliefs and practices are way out there. But on the other hand, not all spiritual retreats or meditative practices are ridiculous, and I'd have liked to have seen a more balanced view.
In any event, Trask's manner was disturbing from the second he walked into the room for the first time, so I had no doubt that he was a predator. However, since the opening scenes spent so much time focusing on some Hispanic dude Abby Clarke was talking to, I expected him to be involved in the crime somehow.
He was, just not the way I expected him to be.
I was very uncomfortable with the way the defense attorney approached Abby's cross-examination.
It doesn't matter whether she went there intending to have sex with 100 guys who weren't her boyfriend. She still had the right not to consent to sex with Trask, and slut shaming her to make the jury dislike her and help them disregard her claims wasn't okay.
Plus, as Olivia pointed out, the whole reason for bringing up Abby's ambivalence about her boyfriend wasn't to argue that the sex was consensual. It was to intimidate Abby so she'd withdraw her testimony.
Abby: Steven will never forgive me.
Olivia: The question is, will you be able to forgive yourself if you walk away now? They are shaming you to get you to walk away. You didn't do anything wrong, Abby.
The "she wanted to have sex with the whole world" defense was not only inappropriate but didn't address Abby's accusations at all.
Trask's attorney and Trask himself claimed Abby wouldn't have sex under hypnosis if she didn't want to, but nobody was claiming that she was hypnotized into taking her clothes off and engaging in the act.
Abby's claim was that she was hypnotized into believing she was unable to move and was therefore paralyzed and unable to fight back when Trask forced himself on her. That claim was never addressed because the defense was busy fighting straw men.
Rollins: Maybe he slipped something into the water.
Barba: I think maybe he slipped something into his words. Neuro linguistic programming.
Fin: Neuro linguistic what?
Barba: I think she was hypnotized.
Of course, the major problem with the case is that it's very difficult to prove that someone was incapacitated by hypnosis. There's no blood or urine test proving hypnosis is in someone's system, as with alcohol or other drugs.
The burden was on Barba to prove hypnosis and he never really met that burden. The hypnosis didn't slur Abby's speech or otherwise make her sound incapacitated, so the recording in which she allegedly consented effectively ended the case.
It was completely understandable that Barba wanted to make a deal and predictable that Olivia wouldn't want him to. Olivia always fights for victims and more often than not she wins.
Benson: You're considering making a deal?
Barba: The facts are not on our side.
Benson: No registry? You can't be serious.
Barba: I can be pragmatic.
But in this case, Barba resorted to something that seemed pretty desperate and that I didn't think should have won him the case. In fact, it probably shouldn't even have been admissible.
The Hail Mary evidence that Carisi found and Barba presented was completely irrelevant to the question of whether or not Trask had hypnotized Abby.
Yes, the fact that he had let a fellow heroin user fatally overdose while he ran away was despicable and suggested that when he used to use drugs, he wasn't the most moral person in the world.
But letting someone die of a heroin overdose doesn't prove hypnotism.
Furthermore, since the conviction was expunged, Trask wasn't lying when he said he had never been arrested because legally speaking the case never happened. So it didn't even really serve the purpose of undermining his credibility on the stand.
It also was unnecessary. Barba should have and could have presented other evidence. The recording of Trask telling Roe that hypnotism wasn't rape and the recording of his other victim's testimony would have been better evidence than this.
Barba did mention in his closing that Roe had testified, but since we didn't see it, it's hard to tell what he said or why it wasn't good enough. It seemed to me that it should have been.
In any event, Barba should have lost based on the fact that he didn't present the case he needed to present.
Did anyone else expect Abby to admit at the end that she'd made the whole thing up?
SVU is known for the last-minute twist, and when Olivia went to talk to Abby after the case ended, I was sure that's what was going to happen.
Abby: I haven't heard from Steven in three days. He won't return my calls.
Olivia: If you want him, fight for him. But if he doesn't get it, he's not worth fighting for.
Fortunately, I was wrong, and Olivia was just there to give her characteristic excellent advice. I wish more people would learn that someone who is not willing to believe their word over the words of people who have strong reasons to discredit them are not worth pursuing.
What did you think of "Spellbound"? Was this case mesmerizing or did you think it was too out there? Should Barba have accepted the defense attorney's offer instead of continuing to try to win an unwinnable case?
Weigh in below, and don't forget you can watch Law & Order: SVU online to catch up if you missed anything.
Jack Ori is a senior staff writer for TV Fanatic. Follow him on Twitter.