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DR. DREW

Ohio Rape Case Ignites Fury; Theater Massacre

Aired January 7, 2013 - 21:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(BEGIN VIDEO CLIP)

DR. DREW PINSKY, HOST (voice-over): The shocking alleged sex acts against a high school girl apparently caught on tape while teenage boys appeared to laugh and brag about it.

Parents, could this happen to you? It`s an era of disrespect, sexual assault, pornography -- social media gone awry.

Plus, an exclusive interview with a teenage girl who claims sexual battery by the son of a Hollywood star.

UNIDENTIFIED FEMALE: I was raped.

PINSKY: And new details about what really happened in the Aurora theater massacre.

Let`s get started.

(END VIDEO CLIP)

PINSKY: But, first, we`ll be talking about the alleged rape in Ohio. Now, those of you who have been watching Nancy, you saw her excellent coverage, but we`re going to have our own take on this and get into it hopefully from an angle that you haven`t heard yet.

So, the story is that last summer, a 16-year-old girl was allegedly raped by two high school football players in the small town of Steubenville, Ohio. She appears to be quite drunk, possibly even unconscious, though an attorney for one of the boys disputes that fact.

The whole thing has played out in social media. Look at this photo alongside of me of the alleged victim`s, what appears to be limp body. She appears to be carried by two teen young males, and some -- I`m not sure if those are the two themselves, but there are to young males charged and set to stand trial.

Here`s my thing with this. Laura Baron is here to help me out with this.

Laura, my thing is, first of all, it`s obviously disgusting.

LAURA BARON, RELATIONSHIP COACH: Disgusting.

PINSKY: But to me, this is how boys are treating girls.

BARON: Yes.

PINSKY: That`s really where the rubber hits the road on this thing. There is a 12-minute video of this young man. And Nancy had it on her show. I`m hoping there is an opportunity to get it for you guys tonight on our program as well.

But these young males, high school kids, are gloating about this young girl being dead, about her having been intoxicated, about her having been raped, and no sense that`s a person, even.

And my question: do you think, with all the pornography, the social media rained down on our young males, should we -- should we be surprised?

BARON: Well, I want to know is this really just locker room talk that is now exposed on social media? I mean, as women -- I will tell you something though -- as women, we have always believed that this is a conversation that goes on behind closed doors.

PINSKY: OK, stop right there. I`ve got criminal defense lawyer Mark Eiglarsh. His Web site is speaktomark.com.

I`ve also, of course, got family law attorney Areva Martin.

And as I`ve said, relationship coach, Laura Baron, is with me all week.

Mark, I want to go to you. This is not locker room talk I`ve ever heard. There`s -- I`m used to sort of disparaging, unsavory talk --

BARON: Oh, that`s lovely.

PINSKY: Listen, I`m just trying to be honest. This is disgusting, though -- Mark.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Yes, I had a lot of problems watching this video. I couldn`t get through it. I had to go back a few times because I knew I had to comment on it, so I had to look at it.

It`s just abhorrent. Beyond the, quote, "dumb behavior," which is what his attorney apparently is calling it.

And I think the difference in part other than the availability of pornography like we never had is that they`re performing on camera. Every kid thinks they`re a reality star, so they`re just saying whatever stupid things just to be on camera.

PINSKY: Well, that`s an interesting take. I had not even thought about that.

Areva, you`re a mom. What`s your take on this?

AREVA MARTIN, FAMILY LAW ATTORNEY: I agree with Mark wholeheartedly. So many people, including teens, are doing outrageous things so they can have their 15 minutes of fame. So you never know what people are feeling or what they`re just acting out in order to get some attention. But as a parent, and as an attorney and an woman, of course, I`m very concerned at what I saw on the tape.

And, you know, I have to ask you, Dr. Drew, what are young girls to do to protect themselves? You know, we never want to blame the rape victim, but clearly women have to be prepared for this kind of outrageous conduct on the part of men, and we have to protect our daughters.

PINSKY: Well, I think that`s absolutely true. I think we as parents have to address on both sides, both in terms of what the young males are doing in terms of their objectification of young women, and we have to teach young women how to feel empowered, how to set boundaries. How to they should -- I`m not sure the women understand this as much as the men do, that if they`re intoxicated, they are not rendering consent, they are being raped.

BARON: I agree. I also want to know, where were these girl`s friends? That is another thing women need to recognize, that we need to be in a sisterhood for each other. I mean, you`ve got a girl that`s in college now. How does this feel as a father looking at this?

PINSKY: It feels -- listen, myself as a person, I am saddened and disgusted and here`s why. Not only, just forget -- don`t forget -- the fact that this story is what we`re talking about tonight, that we are also talking about somebody that shot up a theater, we have somebody that shot up, you know, young first graders, we have somebody pushed in front of a subway and nobody does anything. I think we are in the midst of a sort of sea change and it ain`t good.

BARON: I agree.

PINSKY: And that`s why I think it`s important to address these things.

Mark, do you agree with me at all?

EIGLARSH: I`m wondering whether I agree with you or not. Has the tide changed? Are things so different now, or is it because there`s so many shows devoted to it, we`re just hearing about it more. I don`t know. And I`m asking you. I don`t know.

PINSKY: Mark, whenever -- I`ve been doing media for a long time, and I remember the first things we exposed in the `80s were physical abuse and the impact it had on relationships. And people, back all the way in the `90s, people say, oh, we`re just talking about it now.

No, we`re not just talking about it more now. It`s a problem. And should we be surprised that it`s a problem with our families broken up? With Internet stuff raining down on kids. And maybe we`re -- we have to parent contrary to what`s going on here.

The capacity for empathy is something that is late evolving in a human brain. It`s something that comes very late in the process, and it happens to relationships, of closeness with people who loves children, someone who protects them and loves them and stays close. Kids don`t necessarily have that the way they should, and they have all this contrary material coming down on them that works against that.

BARON: And parents are not parenting these days. Parents are not parenting. You have these young men --

PINSKY: Laura, I`m going to interrupt you. I`m sorry I`m going to interrupt you because I`ve just gotten approval to watch the video. Thank you in the control room for doing this. We`ve been struggling to get this.

BARON: Sure.

PINSKY: I want you to just watch it. It needs no introduction. Please?

EIGLARSH: It`s so disturbing.

PINSKY: It is disturbing. And, Areva, I`ll let you comment when we come out. Go ahead.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: What if that was you daughter?

UNIDENTIFIED MALE: But it isn`t.

UNIDENTIFIED MALE: What if it was?

UNIDENTIFIED MALE: If that was my daughter, I wouldn`t care, I`d just let her be dead.

UNIDENTIFIED MALE: Listen to yourself.

UNIDENTIFIED MALE: I`m listening to myself fine.

(END VIDEO CLIP)

PINSKY: Listen, I need you guys to play some more of this, because that was actually him behaving himself compared to the horrible, horrible stuff. That part where he`s saying, she`s as dead as -- fill in the blank -- person who is dead person, again, as a dead person, she meant nothing to them. She meant nothing to them as a live person, she was strictly an object.

Areva, what do we do with this?

MARTIN: You know, what I want to say, Dr. Drew, is, you know, girls going to parties, teenagers going to parties, getting drunk and, you know, boys not understanding what no really means, that`s not new. So, I do agree with Mark that so much of in is about the way we communicate, and social media allows people to post stupid things on Facebook, to tweet about, you know, crimes that they`re involved in.

I think this whole episode really just shows us the true need to start very early on teaching kids about, you know, responsible behavior because this girl apparently was drunk or drinking or something. So we`ve got to step back even before the rape.

EIGLARSH: Drew --

PINSKY: Go ahead, Mark.

MARTIN: What`s going on at a party with 16-year-olds that there`s liquor?

EIGLARSH: We`ve got to --

PINSKY: Mark?

EIGLARSH: We have to make the distinction. There are two different issues here. One involves this kid or these kids doing that video.

PINSKY: Yes.

EIGLARSH: They are apparently not the ones allegedly involved in the rape.

PINSKY: Right, that`s right.

EIGLARSH: Without question, it would appear, assuming this is undoctored, that their conduct is abhorrent.

PINSKY: Yes.

EIGLARSH: You clearly see that.

PINSKY: Yes.

EIGLARSH: The rape case, however, is still open, it`s still pending. There`s a lot that we don`t just yet. And I don`t want to make any assumptions yet about guilt.

PINSKY: Mark, I`ve got to go to break, guys. But, Mark, the deal here is that video which I want to show more of is really what`s got me upset. Yes, it`s a horrible rape and this horrible - -

EIGLARSH: Me, too.

PINSKY: There`s all kinds of allegations --

BARON: They`re ethically guilty. Ethically, they`re guilty.

PINSKY: We should be taking that video and having our kids watch it and going, do you see there`s a problem there? If you omit --

(CROSSTALK)

EIGLARSH: The ones on the video --

PINSKY: If you omit an action --

EIGLARSH: The ones on the video --

PINSKY: Go ahead, Mark.

EIGLARSH: -- are not the ones we have to -- again, the ones on the video are not necessarily the ones that are accused of the rape.

PINSKY: I know.

EIGLARSH: Yes, their actions are abhorrent, but we need to make sure that we separate those two issues.

PINSKY: OK, fine.

BARON: Why is there a "but"? I do not understand. Why is there a "but"?

There are young men totally denying any quality of life for this young girl who are totally objectifying her. And because they didn`t rape her, because they didn`t break a law, it is broken down in this society, it is --

PINSKY: I`ll make a recommendation. I think you take your teen kids and you have them watch this video, the males particularly, and go, did you see a problem here? What`s the problem? And have them talk about what the problem is.

There is omission. They omitted to do something for this young girl to prevent her from being the object -- alleged object of a crime. They`re committing, they`re participating in this thing in explicit ways, and I think there is a learning opportunity here for parents.

Next up, someone who is allegedly defending what happened on that tape.

And later, a teenager who said she was a sexual victim by the son of a Hollywood icon and she is here to speak to us exclusively.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MARIANNE HEMMETER, SPECIAL PROSECUTOR: Unresponsive and not in a position of consent and they knew about it. And let`s be clear, they knew she was drunk.

(END VIDEO CLIP)

PINSKY: That was the prosecutor in the case of a 16-year-old girl who was allegedly raped. Two 16-year-old high school football players from Steubenville, Ohio, are charged in this case.

Joining me and my co-host all week, Laura Baron.

I`ve also got now, Walter Madison, attorney for the 16-year-old Ma`lik Richmond, one of the buys charged.

Now, Walter, you -- thank you for being here, first of all. I really do appreciate it.

But you made some statements, and I really want to kind of bore into them a little bit here. You`ve said the victim was not unconscious, that she could speak, that she could walk. To me that`s not a defense against taking any sort of advantage of somebody who is intoxicated. Intoxication makes someone unable to render consent.

And it`s kind of confusing to me when I read the Ohio laws where Ohio comes in on this. Help me understand.

WALTER MADISON, ATTORNEY FOR TEEN ACCUSED OF RAPE: Well, first of all, intoxication has a legal definition, or at least a meaning. So, you assume a fact, that there is a level of intoxication beyond the ability of being in control of your faculties when you say that.

What I meant by my statement earlier that you repeated back to me is that she was in control of her faculties. There were cognitive skill sets being displayed, there were an ability to walk and talk and make decisions. So, you know, those types of decisions certainly would be enough to operate a motor vehicle --

PINSKY: What?

MADISON: -- or whatever else is there is --

PINSKY: Operate a motor vehicle? Not in this state. I don`t know about Ohio. Again, I`m confused.

Areva, you`re in California. Help me -- help me with this a little bit. You`re going to -- you know, in this state you couldn`t consent to sex, you couldn`t drive a motor vehicle after basically two glasses of wine, right?

MARTIN: Absolutely. And I`m confused by Mr. Madison`s statement, because when I look at that video, this young woman doesn`t appear to be able to do anything. She appears to be out of control and not in control at all of any of her faculties. So when he says her cognitive abilities are there and she can drive, it doesn`t appear on that tape.

So, maybe there`s something we`re not seeing, and I`m open to that as a possibility. But from what we`ve seen so far, this young woman was not in control and couldn`t give consent.

PINSKY: Areva, I`m going to throw -- I`m going to throw up the photo that you`re referring to. This is the alleged rape victim with two teens. I`m not sure if these are your clients, or client.

What do you make of that photo? I`ve heard you speak about it before. Go ahead and help us understand what you`re seeing there.

MADISON: Well, again, it`s very difficult to keep an open mind and just simply say you don`t understand or that you don`t have all of the facts. The photo is just a frame. It`s a still moment. It doesn`t suggest before or after.

And, you know, no one can say if that person -- if that was a joke, if that person was able to get up and walk after that. The problem -- wait a second, if I can just answer and respond to your comment.

You know, you mentioned the still photo but you mixed it with the video, which is exactly the problem.

PINSKY: Yes.

MADISON: The video and the still in combination makes a person draw an inference which is very dangerous.

PINSKY: No, Walter, I absolutely agree with you. I want -- and Mark Eiglarsh made this distinction, too. The open rape allegations are quite different from the video of the boys sort of being disgusting and talking about.

They literally -- apparently I can`t get some more of that video for you guys at home, but he says, she`s as dead as Caylee Anthony. That`s what they equate her with, and then laugh about her being sort of deserving of whatever happens to her.

Now, again, that`s separate from Mr. Madison`s case. It`s entirely separate.

But, Laura, you wanted to respond to what he was saying.

BARON: If you just base this off the video, and granted, I did not see the alleged rapist.

PINSKY: Her guy -- his guys are not in the video. They`re not.

BARON: No, I understand. But I`m just saying if you have the photo of one of your clients or both --

PINSKY: That`s not even his client, necessarily. It`s just a photo of a woman -- it is -- I`m being told in t control room it is his client.

BARON: OK. So if one of your clients is in that video, and frankly -- in that picture and frankly --

MADISON: Video or still photo.

PINSKY: Still photo.

BARON: Still photo. I do. Let me admit, as a woman, I have a closed mind on this. I am not open to inference. I do not believe that woman had her faculties about her.

Maybe she had sex in this alleged rape. Maybe when she was dragged through a party like a tied-up hog that she went on to conduct some sexual activities. That does not mean she had control of her faculties.

EIGLARSH: Drew, I got to jump in.

PINSKY: OK, Mark, go ahead. Go ahead.

EIGLARSH: I`ve got to jump in and defend the defense attorney. All we`re asking is that people keep an open mind. We don`t know when this photo was taken.

PINSKY: Right.

EIGLARSH: We don`t know if the alleged incident occurred four hours before.

PINSKY: Right. I think that`s what he`s asking --

EIGLARSH: It`s fundamentally unfair to crucify this guy right now. There`s plenty of time to do that later.

PINSKY: Mark, I actually agree with you. That`s why I`m trying to distance my comments from the rape case and focus in on the behavior of all the rest of the young males in that vicinity and how egregious that was.

But back to the defense attorney, I agree with your position, I think that`s an important one for us all to take. But I still --

MARTIN: Can I just say something about the video?

PINSKY: Yes, Areva, please?

MARTIN: So, to move this forward, and one of the issues that`s made this case so, you know, such a national -- given the national attention is the allegations that the sheriff`s department, the police are protecting members of the football team and that there are other members involved in this case that have not been arrested or indicted and that the investigation should be broadened.

So when we talk about the video, one of the questions I think we have to ask is, are any of those individuals, not the clients, not the defendants, but any other individuals, any other teenagers that should be a part of the criminal case.

PINSKY: Are you asking that of Mr. Madison?

(CROSSTALK)

EIGLARSH: I can answer that, Drew.

MARTIN: I can ask it as a general question because there is a concern about whether there are more people that should be brought into this case.

PINSKY: Go ahead, Mark.

EIGLARSH: OK. It is morally repugnant to do what these kids on the video, whoever made it, whoever said anything. But don`t kill the messenger. There`s nothing unlawful about speaking saying abhorrent things.

PINSKY: Right.

MARTIN: No, no, I know that Mark. That`s not my point. My point isn`t about that.

PINSKY: Let me ask, Mr. Madison. Let me ask, Mr. Madison. Are there other people potentially to be brought into this? Or do you have any knowledge about that?

MADISON: I can tell you that there were -- the only other allegations that existed was that there was a transmission of a juvenile in a position of nudity, so on and so forth. Those individuals were given immunity by the special prosecutors that were brought in presumably to offer an unbiased opinion. And so --

EIGLARSH: Well, the attorney general said that didn`t happen. Apparently, I saw an interview today of him on another network. He said no one got immunity, no one has been given promises -- and again, I don`t know if that`s true or not, but that`s what he`s representing.

PINSKY: I`ve got to break in here. Thank you. Mr. Madison, I do appreciate you being here. I hope this is helpful for everybody.

I`ve got to take a quick break. I`ll be right back.

(COMMERCIAL BREAK)

PINSKY: I`m back with Laura Baron, my co-host for this week. We`re discussing the rape of a young girl in Ohio. She accuses two 16-year-old boys of assaulting her. The case appeared to play out all on social media. We have boys on the video talking about it as though it`s some sort of joke.

Joining Laura and I to discuss is Cheryl Arutt She is a clinical and forensic psychologist.

All right, Cheryl, so both of you guys, I almost feel like -- to me, both as a father and as a human being, so much of this, this is not about rape and laws -- it is, but I mean, for me not what is so emotional. It`s how boys treat girls.

CHERYL ARUTT, PSY.D., CLINICAL AND FORENSIC PSYCHOLOGIST: Yes.

PINSKY: I have a daughter. I have sons. This to me speaks volumes about how boys treat girls today. Am I wrong?

ARUTT: You are absolutely right. And I think that -- I know I`ve spoken to my 8-year-old son about these issues, that girls have to agree for you to touch them in certain ways.

PINSKY: Do you think it`s a good idea to show like teen sons these videos and going like, come on?

BARON: Without question.

PINSKY: You think it`s a good idea?

BARON: Without question. Use that as a parenting tool, because clearly we are not parenting our kids as we need to. I mean, Drew, how do boys wind up looking like this?

PINSKY: Well, here`s one of the ways. Broken families, drugs and alcohol. Maybe it`s as simple or as subtle as we have a world that our young boys are entering where all kinds of garbage rains down on them, and unless we do something actively against it, we don`t know this yet, the research isn`t out.

I mean, if we had a bunch of animals that were exposed to provocative images, would we be surprised if their behavior is somehow different? It may be happening to our boys.

ARUTT: What about rape myths.

PINSKY: What about what?

ARUTT: Rape myths.

PINSKY: Rape myths.

ARUTT: Rape myths are pervasive in our culture and this actually isn`t something new. This is something where -- we have these myths about rape that rape is something that girls decide that they change their mind that they want, or that it`s an apology and after the fact for being sexual --

PINSKY: Or being drunk.

ARUTT: Or being drunk.

PINSKY: Yes.

ARUTT: And you`re right.

PINSKY: There`s a lot of the boys were saying. What else are they going to tell the parents? What else if you -- you just tell the parents I was wasted, or tell the parents I was raped, or somebody did this to me, which is blaming the victim again.

BARON: Even the fact that we`ve got adults on this show that are saying that these girls had their faculties, that this girl had her faculties, and knowing that she was intoxicated, we`re talking about a teenager.

PINSKY: Yes, a girl.

BARON: Who -- a little girl who was intoxicated.

PINSKY: Yes.

BARON: And the fact if adults are giving excuses --

MADISON: Dr. Drew --

PINSKY: I let you in, in just a second, please hold on.

BARON: If adult males are giving excuses for this behavior, how do we expect more from our young men?

PINSKY: OK, Mr. Madison, go ahead.

MADISON: Certainly. Listen, no one is supporting rape, OK? We are all here to seek justice.

Now, these issues this case highlights are all very important and worthy of discussion. But before we go further, one of the main reasons why persons with social capital or emotional capital invested into a topic are not worthy to be judges of facts is because just that. This inflammatory video will just arouse the pride of some people who sit on one side of an issue, in particular females.

BARON: Yes.

MADISON: And that`s not to suggest that it`s not --

(CROSSTALK)

BARON: Yes, as a matter of fact, sir -- as a matter of fact --

MADISON: One moment. One moment. One moment.

BARON: Excuse me, I don`t believe that this is an inflammatory video.

PINSKY: Guys --

BARON: This is a real video of young men talking about a girl as if she was just an object.

EIGLARSH: He`s not talking about that.

PINSKY: You guys -- Mark, you`re defending the defense attorney again.

MADISON: If I can finish --

EIGLARSH: I have to defend the defense attorney. He`s trying to do his job. He`s saying certain things in order to showcase what really wasn`t on in the criminal case. He`s not defending that video.

PINSKY: Right.

EIGLARSH: He just doesn`t want that video to adversely affect his defending of his client.

PINSKY: I totally get it guys. I get it. But in the meantime, we have this video. And it`s I don`t want to bias your client, Mr. Madison --

MADISON: We do have the video.

PINSKY: -- but I have this video telling us about young males today, and I am -- I`m troubled.

BARON: And dare we suppose to have this conversation? This is such a perfect teachable opportunity.

MADISON: One moment -- it is.

PINSKY: You guys, I`m sorry, I`m out of time. I`m out of time.

I thank you, Walter Madison, Mark, Areva, Cheryl be joining me later.

You guys, I believe -- both Areva and Mark, you`ll be back a bit later.

But, first, I`ve got the son of a Hollywood icon accused of sexual battery. We`ll meet that young woman making that claim. She`s here with her mom talking only to us. It`s an exclusive. We`ll be back. We`re going to tie this all with somebody who has actually been through this after the break.

(COMMERCIAL BREAK)

PINSKY: I am back with relationship coach Laura Baron. She`ll be my co-host this week.

Now, a teenage girl is accusing the son of Hollywood legend Dennis Hopper with sexual battery. She says she was violated on multiple by Henry Hopper, who is five years older than she is.

Joining us in shadow and with her voice`s altered, Jane Doe, and Jane`s mother, Stella Doe, and Jane`s attorney, Jeff Herman. Jane, I`m going to you first. Tell us briefly the story about your first encounters with Henry Hopper.

`JANE DOE`, ACCUSING DENNIS HOPPER`S SON OF SEXUAL BATTERY: When I first met Henry, I had my best friend with me for backup. As your co-host, it`s very crucial. I thought I would be protected. He plied me with drugs, he plied me with alcohol, and then, he took advantage of me. And it`s still something I`m facing every day.

PINSKY: And Jane, you were how old when this happened?

`JANE DOE`: I was 15.

PINSKY: And how old was he?

`JANE DOE`: I believe he was 21.

PINSKY: OK. So, we have a 21-year-old with a 15-year-old. Jeff, you are Janes` attorney. In California, again, we`ve been sort of goofing around with what`s up in Ohio, and I`ve tried to read those laws, and it is quite confusing. In California, it`s not so confusing. A 21-year-old alone with a 15-year-old, he got some explaining to do.

Just that. Forget what she alleges he did to her, just being alone with her. What is your take on what went down here?

JEFF HERMAN, ATTORNEY FOR `JANE DOE`: Well, you know, the statutory rape, which is the age difference in and of itself is wrong. But what we have here allegations that he drugged her, he gave her alcohol, and that she attempted to resist, although, she was in a very, you know, intoxicated state and it wasn`t able to really defend herself.

But she goes over there as what we call complying victim which is mostly what happens when people are abused. They participate in the beginning, but at some point, she tries to protect herself, and what she alleges is that he just ends up raping her.

PINSKY: Now, Jeff, you deal with a lot of abuse survivors and victims, right?

HERMAN: Yes.

PINSKY: This is your expertise. Is there something that we can -- again, I`m trying to tie this all together for people this evening? Are there things we need to be telling young women, from your perspective, to help prevent this sort of thing from happening?

HERMAN: Well, I do think it`s a different world out there, and I heard your first segment. I think because of the internet, people, young men are being desensitized and being exposed to things like never before. And so, the message for parents and for kids and young girls is to be prepared to protect yourself.

Do not put yourself in those positions. And when something does happen, speak out and do not suffer in silence.

PINSKY: Now, I want to remind people that what Jeff alleges, we cannot confirm or deny here at HLN. I want to go back to Jane. Jane, you know, I don`t want to inflame your feelings about talking about the rape and whatnot, but I wonder if you can share some thoughts or feelings you have about how your experience sheds light on what happened in Ohio and what might be happening in towns all over America today.

`JANE DOE`: Definitely. I believe that young men today need to realize, and I`m not saying that I`m not trying to generalize and I`m not trying to say that all men are animals or anything of that sort, but they need to respect no. They need to respect no, no matter who you are, no matter what situation you`re in. If a woman is telling you no, I do not consent, you have to respect that.

PINSKY: And by the way, we have to educate our young males to understand this, and as part of that, two glasses of wine is equivalent to no.

`JANE DOE`: Right.

PINSKY: That`s the other part that we missed here. I`m going to go to a caller real quick. Leanne in Wisconsin. Leanne, do you have a comment?

LEANNE, WISCONSIN: Yes. Dr. Drew, first, I want to commend you for your work. I have a question and a comment. I want to know why in this country it is an epidemic proportion that women are being violated, raped, and murdered. Why is it that these women are being violated like that? What is the mindset? And another thing that got me.

PINSKY: Please.

LEANNE: When that boy said he didn`t care if it was his daughter --

PINSKY: Right.

LEANNE: -- if she were dead --

PINSKY: That`s right. That to me --

LEANNE: What is going on here with our judicial system?

PINSKY: Well, Leanne, it`s very hard to make a comprehensive theory about what`s going on here, but I think we need to sort of wake up and smell the coffee a bit and begin thinking about exactly what the question you`re raising here. I wonder, Laura, let me just post a polemic into the mix of this. Some people have advocated that a way for women to empower themselves is with the return to modesty.

Is that turning back the clock in a bad way or is that actually empowering women to give that message?

LAURA BARON, RELATIONSHIP COACH: I think to ask women to change their behaviors, that if women dress more modestly, that they won`t get raped. If they don`t drink, that they won`t get raped. If they don`t go to parties, they won`t get raped is the absolute wrong message.

PINSKY: That`s why I said it`s polemical.

BARON: Yes. Without question.

PINSKY: Yes.

BARON: Without question. And Jane, my goodness, how brave you are to be able to come out here and share your story, because Drew, you know firsthand when people don`t deal with this, what kind of addiction issues and what goes on afterwards.

PINSKY: Oh, yes, please. Listen, if people -- particularly -- another sort of pattern here that people may be aware of at home is if you`ve been in any way exploited or violated as a child, you will unconsciously get attracted to people and circumstances that repeat the behavior. Not your fault. Again, the really careful piece -- remember, Doctor Eric (ph) brought up a little while ago, we cannot blame the victims.

BARON: Agree.

PINSKY: We cannot blame the victims. That`s why this idea of modesty is somewhat blaming the victim. That`s why I think it`s a polemical argument, and I`m not sure it`s a good solution that`s something to talk about. Let`s go to Rhonda in Wisconsin -- Rhonda.

RHONDA, WISCONSIN: I have to say this. I actually am a victim of childhood sexual abuse, and what I learned in my adult life after I finally got help for my issues, that yes, I did attract and choose people in my life who were not healthy. I also drink a lot and put myself in a lot of situations for things to happen.

PINSKY: But Rhonda, I`m going to interrupt you and say you are precisely the person that we need to protect.

BARON: Yes.

PINSKY: You`re precisely the person we need not to blame and help make sure you get proper care. I mean, listen, so much of the garbage I`ve been reporting on for the last couple of weeks have been about things that happen when people don`t get access to proper mental health services. Thank God you got what you need. Are you OK now?

`JANE DOE`: Yes. And I think --

RHONDA: I am, but let me just mention, this is very, very important is that one of the things that helped me that prevented me from making those same mistakes over and over again is that, yes, I understand that behavior was residual to my abuse, but I also had to take responsibility for the fact that, as an adult, I was drinking and putting myself in situations where things could potentially happen.

PINSKY: Yes.

RHONDA: -- harm me. And I think it`s really important for us to put that message out there.

PINSKY: Absolutely. Listen --

RHONDA: -- have to stop doing that.

PINSKY: And by the way, if you have a substance issue, that needs to be treated before the trauma issues if the substance issue is figuring into this as well. I`ve got to read a statement from the LAPD. They`ve confirmed a criminal investigation has been conducted, but as far as we now, Hopper has not been charged.

Meantime, we asked his attorneys for comment but have not heard back to them. Jane, you were trying to say something. I want you to wrap this up for us.

RHONDA: Sure. I just wanted to comment to Rhonda that it`s really important that she didn`t use the substance abuse as a type of band-aid on the problem.

PINSKY: Yes.

RHONDA: You got to surface the problem. And I`d also like to give a tip to young women outside trying to protect themselves when they are partying. It`s always essential to be, I`d say, a crowd of three females when you go out as well as carrying your own alcohol. If you are going to be drinking, it`s really important to have a flask or bottle that you keep. You do not know what could be placed in your alcohol.

PINSKY: Right, Jane, thank you very much. Thank you to Stella, Jeff Herman. Thank you for bringing your client in. I appreciate it.

Next, a police officer weep (ph) whiled testifying today in the Colorado theater massacre case. James Holmes, it`s a lot to get into. We`ll be following very closely. We`ll be discussing after this.

(COMMERCIAL BREAK)

PINSKY: Welcome back. I`m with relationship coach, Laura Baron, my co-host all this week. And just (INAUDIBLE) important territory tonight talking about spring boarding out of that rape in Steubenville. Now, a number of people were forced to relive the Colorado theater massacre during a court hearing today. Police officer shed tears as he described the bloody tragic scene.

We don`t have video of it, but we have sketches. Cameras were not allowed in the courtroom today. Twelve people were killed, (ph) scores were injured. James Holmes is accused of the crimes. Joining me to discuss also back is Cheryl, Dr. Cheryl Arutt. And of course, I`ve got Mark Eiglarsh and Areva Martin there with me as well.

Mark, let me go with you since for you and I, this feels like old territory to be going over cases that are disturbing. This gets kind of complicated in this case. As I understand, Colorado has not adjusted its laws as it pertains to insanity, putting a burden on the prosecution. Help us understand this.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: That`s correct. You know, after John Hinckley, Jr. got sent to a mental hospital instead of going to prison, the law changed in the federal system. The burden now is on the defendant in the federal system to prove that they suffer from a mental illness, enough they didn`t know right from wrong at the time the offense was committed.

Colorado did not change its law. So, the burden is actually on the prosecutors. Once the defense raises the insanity issue, prosecutors must prove that he was sane, which ordinarily would be tough to do, but with these facts, there`s so much that shows premeditation and planning, that he knew right from wrong, the body armor, the way that he went in and purchased the ticket, pried the door open, had three guns, knew which guns he used after each, there is so much here.

The booby trapping, everything that shows that he was sane. Not necessarily, you know, with all his faculties but just that he knew legally right from wrong.

PINSKY: Areva, let me go to you and ask what happened in court today, and also, address the issue, perhaps, of why we can`t -- forget this insanity versus not insanity -- why can`t we hold somebody accountable for not having dealt with his mental illness that resulted in such a horrible crime?

AREVA MARTIN, FAMILY LAW ATTORNEY: You know, what happened today, Dr. Drew, was a preliminary hearing, essentially a mini trial, an opportunity for the prosecutors to present evidence to the judge and for the judge to determine if there is enough evidence to hold this guy over for a trial on these charges that he`s been accused of.

No doubt, in this case, he will be held over. A preliminary hearing also gives both sides an opportunity, perhaps, to strike a plea bargain. You know, a lot of talk about capital punishment, whether the death penalty will be sought in this case and some believe that there may be a plea where you get Holmes in this case to accept some deal, maybe that`s life in prison without opportunity to get out, you know, without opportunity for parole in lieu of the death penalty.

So, lots of evidence. And usual preliminary hearing, usually these things are about an hour a day at best. This is predicted to go on for five days because there is so much evidence. You know, I just want to address one thing that Mark said, too, about, you know, the surefire position that he takes that insanity will be pretty clear.

I don`t know. You know, we got the guy showing up with the orange hair we`re seeing on the screen. We have him saying that he was the joker when the police arrived on the scene. We have bottles of prescription medication. We have evidence that he tried to call a psychiatrist right before the shooting took place.

So, it`s going to be, you know, kind of a coin toss, I think, when we talk about can the prosecution establish that this guy was sane? I know there`s a lot of premeditation type evidence, there was a lot of executive planning that took place, but there is also a lot to suggest that Holmes was not mentally stable.

PINSKY: Right.

MARTIN: That he was, in fact, insane.

PINSKY: Right.

MARTIN: And we`re going to see a lot more about that.

(CROSSTALK)

PINSKY: You`re a forensic psychologist. And so, for me, this is some sort of schizophrenic form reaction pretty clearly. I mean, it`s pretty clear.

CHERYL ARUTT, PSY.D., CLINICAL AND FORENSIC PSYCHOLOGIST: The first thing I thought.

PINSKY: It`s not a mystery. This is how people can behave. So, the question, though, is, can we -- why aren`t we trying to hold people accountable for not following through on their treatment before they do something awful? Because for me, I am very sympathetic to the mentally ill, but if they refuse treatment to the point that they do something awful, isn`t that a reason to hold him accountable?

ARUTT: Well, I think we need to point out that Holmes, himself, seemed to be in treatment and on medication and working with a psychiatrist who was a specialist in schizophrenia and paranoid schizophrenia.

So, he actually may have been attempting to work on his issues. But the thing that is so tough about psychotic disorders is that people lose the ability to tell the difference between what`s real and what isn`t and what`s happening inside them and outside them, and even if they may have periods of clarity --

PINSKY: Or cognitive function where they can plan and things, yes.

ARUTT: It`s very, very difficult -- it`s difficult for my high- functioning people who I see to access services and deal with insurance companies and get the care that they need, and it is so much more difficult when people have these serious, serious illnesses.

PINSKY: Laura?

BARON: Well, the thing that I truly don`t get is that I don`t even understand why insanity is coming up, because what does that mean? So, he gets thrown into a mental institution for a couple of years, gets some drugs and then gets back out?

PINSKY: Well, that`s the scary part. In Colorado, that`s the scary thing. He could be out in a few years. He could be sitting next to you or our kids in a movie theater. Mark -- finish it up, Mark.

EIGLARSH: I found an interesting statistic. I don`t know if it`s true, but I read from a reliable source that the average stay in a mental hospital for someone who committed homicide, but yet, was found insane legally was 7.5 years. And for this, that would be a miscarriage of justice.

BARON: Can that help them, drew? Can that help?

PINSKY: Well, yes, it can help them, but the question is, is there not something to be held accountable for above and beyond his mental condition? You`re saying yes.

BARON: Yes.

PINSKY: Hold that thought. We got to take a break.

BARON: OK.

PINSKY: back with calls. More on this after the break.

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

UNIDENTIFIED FEMALE: 315 and 314, first shooting at Century Theaters, 14 300 East Alameda Avenue. They`re saying somebody`s shooting in the auditorium.

He came down with a gun in my face. He was about three feet away from me at that point. And I honestly didn`t know what to do. I was terrified.

UNIDENTIFIED MALE: We need rescue inside the auditorium, multiple victims.

UNIDENTIFIED MALE: The guy was just standing right by the exit just firing away. He`s not aiming at a specific person, he`s just aiming everywhere, trying to hit as many people as he can.

UNIDENTIFIED MALE: I`ve got a child victim. I need rescue at the back door of theater 9 now.

UNIDENTIFIED MALE: Suspect is going to be a male, unknown race, black camo outside outfit believed to be wearing a vest, gas mask, and multiple long guns.

(END VIDEOTAPE)

PINSKY: That was the 911 calls from the night of that shooting. Such disturbing material. These stories are so almost unbelievable. But Mark, my question is, let`s say we establish he has severe mental health issue. Let`s say they`re not able to keep this out of a courtroom and it goes to a jury.

If I was sitting on that jury, again, even as enlightened as I like to think I am about mental health, I would have a hard time not wanting to take some action against this man that set the scales of justice right. Do you think I`d be alone in that?

EIGLARSH: You, me -- no, you, me, most people, because -- and that`s why the insanity defense works in maybe about three percent of the cases. Most people don`t want to kind of excuse to some extent abhorrent behavior and also knowing that somebody may be let out in a few years simply because a doctor says the person is OK? That`s just not punishment for most people, so it just rarely works.

MARTIN: This is another wrinkle in this case, too, Dr. Drew, in terms of the Colorado law. Even if Holmes knew the difference between right or wrong, there is this irresistible impulse part of the criminal statues in Colorado which says, you know, it has to look at -- could he stuck (ph) his behavior? Could he control his behavior?

So, something else that we have to look very closely and as the experts start to come forward assuming there is a trial in this matter. We`re going to hear a lot about did he know the difference between right or wrong, and also, could he control --

(CROSSTALK)

PINSKY: Areva, that`s very interesting. Something I`m familiar with, and that`s another sort of wrinkle in this. And we don`t think in term as mental health professionals, you know, whether psychotic patients could versus can`t control their impulses, so we consider them just disconnected from reality.

But a lot of people may not be aware, there are this thread of assessment teams since Virginia Tech, and University of Colorado had a great threat assessment team. It was operating normally. I`m going to ask Cheryl, do you have any speculation why it broke down? It seemed like he was seeing a good psychiatrist who knew what she was doing.

She`s excellent trained. I have a feeling she couldn`t do her job for some reason. Do you have a theory why?

ARUTT: You know, I think it`s tempting to -- because of what we know about the devastating outcome to possibly even put undue blame on the psychiatrist --

PINSKY: I`m not ready to blame her at all. I think (INAUDIBLE.)

ARUTT: I don`t know. I got to say, I think there is a major fail --

(CROSSTALK)

ARUTT: -- on the medical system, and I also want to know, you know, the victims are always the ones that are surprised. The family is never surprised. That family, I am sure, knew that this guy was like tink.

PINSKY: It`s back to another issue which I`ve talked about. Meantime, the show which is, you know, adult children with mental illness, you can get conservatorships for them, you can dictate what they can and can`t do if they`re dangerous. Would you advocate for conservatorships? I certainly do.

ARUTT: I would. Do you think that this guy could help himself? Do you think he could make --

PINSKY: Could have stopped himself?

ARUTT: Do you?

PINSKY: He knew enough to call a psychiatrist before he did. So, there was some piece of him that knew something. It`s all so sad, the breakdown of our mental health system, there`s victims is just another disgustingly horrible case where we`ve let our victims down and we`ve let our mental health patients down, too.

BARON: But Drew, where does the responsibility lie? Who could have stopped this guy?

PINSKY: We`re going to find out, hopefully, as more of this comes out. I do appreciate. Listen, thank you to Mark, Areva, Cheryl, of course, Walter Madison, Jane and Stella Doe and Jeff Herman for Joing us as well. Laura, thank you for joining me this week. It`s going to be really fun.

BARON: Oh, yes.

PINSKY: You always bring interest. Bring the energy.

(LAUGHTER)

PINSKY: We`ll be back with some vital information about influenza, the flu, that`s right, right after this.

(COMMERCIAL BREAK)

PINSKY: Now, people have been asking lots of questions about the flu this year. My executive producers just reminded me I went to medical school specifically to help you guys with this kind of thing. And the flu season has hit hard early this year. The south and the east, south central United States being hit especially hard.

Now, let`s talk about what the flu is. It is a viral condition. It is spread through particular like sneezing and that sort of thing, but hands. Wash your hands. And your hands going to your face, that is the way you definitely will get this problem. A reminder that whooping cough is on the increase as well. There are vaccines against for whooping (ph) cough. There are vaccines for the flu.

You need to get the vaccine. It`s not too late. Now, some reports say it may be is up to 70 to 90 percent effective. Some reports are saying 60. Whatever it is, get the protection you can get. I had H1N1 about two years ago which now is covered on the vaccine. It was devastating. I got to tell you, it was just awful.

Now, the season is expected to be moderate to severe overall. The head of the season, say, in March. If you`re sick, stay home, see the doctor, don`t expose other people, and the rest of us wash our hands. I want to show you a map up here of the United States. It gives us a look at what`s happening right now.

This was December 22nd where 31 of the United States were affected. Now, look at where we are toward the end of December. This flash up that next, there we are, 41 states now just two weeks ago, and I think the entire thing will be filled in with blue soon enough. This is something to pay attention to.

People can get a pneumonia on top of the flu, and then the pneumonia can get complicated where people could need ventilators. A staph infection can form on top of the pneumonia, sometimes. So, it`s serious business. Pay attention, get the vaccine, wash your hands.

Laura Baron will back with me tomorrow. Thank you all for watching. Reminder that "Nancy Grace" starts right here, right now.

END