Congress’ Epstein probe raises a thorny question: Who counts as a victim?

Nearly a year after the launch of the House Oversight Committee’s Jeffrey Epstein investigation, lawmakers are now wading into a thorny debate over whether certain women in Epstein’s orbit should be considered co-conspirators or victims.

The Republican-led panel, eager to haul in witnesses who can shed new light on the convicted sex offender’s crimes, appears to have taken a side in recently asking Sarah Kellen — a top assistant to the late, disgraced financier — to sit for a transcribed interview on May 21.

Kellen was one of four women named as possible co-conspirators in the now-controversial 2007 agreement with Florida federal prosecutors that granted all of them immunity, while also allowing Epstein to spend minimal time in a county jail rather than face federal sex-trafficking charges.

“There is a list of four alleged victims that took plea deals that I think are co-conspirators and got let off the hook,” Rep. Anna Paulina Luna (R-Fla.), a member of the Oversight Committee, said recently. “And I’d like to bring them in.”

“If you’re an adult female and you’re recruiting underage girls, you’re not a victim. You’re a prostitute, a child predator, and a sex trafficker,” said Rep. Nancy Mace (R-S.C.), another committee member, in an interview. “Certainly the adult women that were recruiting underage girls should go to jail.”

But few of Epstein’s former associates have proven as fraught a subject for federal prosecutors as Kellen. In the immediate aftermath of Epstein’s suicide while awaiting trial on sex-trafficking charges in 2019, federal officials grappled with the question of whether to prosecute Kellen, according to two people familiar with the matter as well as documents released in the Epstein files.

The files show that Manhattan prosecutors discussed a possible witness tampering charge for Kellen and that they submitted a prosecution memo concerning her to then-U.S. Attorney Geoffrey Berman. But Kellen argued that she was a victim, according to the files and people familiar with the deliberations, who like others were granted anonymity to share private conversations. Prosecutors opted not to bring a case against her.

A lawyer for Kellen did not respond to a request for comment for this story.

House Oversight Chair James Comer (R-Ky.) said in an interview that several GOP women on his committee were eager to have Kellen testify and he has deferred to them in deciding which women should be invited to give statements in the Epstein probe. But while some members of Congress support the decision to bring in Kellen, others are also signaling they, too, recognize the complicated dynamics of questioning a woman who claims to have been sexually abused.

“For folks who are not trauma-informed, and folks who don’t understand this world, I think it can be an easy ‘yes, we should charge this woman,’” said Rep. Lateefah Simon (D-Calif.), who sits on the panel and previously worked in the San Francisco District Attorney’s office. “It’s a conversation that should be taken seriously.”

Simon added that she has been providing committee staff with “resources [on] how we look at how we treat and support survivors while they’re coming here, how to look at women who historically have been in these situations.”

At the same time, the committee is under increasing pressure to surface new information after the Justice Department’s haphazard release of the Epstein files — and as law enforcement in the United Kingdom has seized opportunities to arrest Epstein associates in contrast to the U.S.’ continued finger-wagging.

In the interview last month, Comer blamed the committee’s lack of progress, in part, on disagreements about who is and isn’t an Epstein victim.

“That is honestly one of the reasons why there’s been issues getting documents — [DOJ] released documents, and some of the victims say, ‘oh my gosh, you didn’t redact the names’ … Well, they were victimizers too,” Comer said. “Like they recruited other girls to come in. But they, I do believe, were victimized. This is a tough issue.”

Kellen had been accused in numerous civil lawsuits of scheduling young girls to give Epstein massages, with one lawsuit dubbing her “the lieutenant.” In Palm Beach, where police investigated Epstein, girls told detectives that Kellen would prepare rooms for the massages, laying out tables and lotions intended for their use.

But when prosecutors were mulling charges, Kellen’s attorneys argued that their client was abused, writing that “given the fact that we see her basically as a cog in Epstein’s wheel, acting entirely at his direction and doing what she did at a time that she herself was a very vulnerable victim, a [non-prosecution agreement] would be the appropriate disposition.”

In an interview with The Sun published around the period in 2020 in which her lawyers were attempting to fend off potential charges, Kellen also described herself as a “victim,” saying that she was “raped and abused weekly.”

During the sentencing in 2022 of Epstein’s only convicted co-conspirator, Ghislaine Maxwell, U.S. District Judge Alison Nathan described Kellen as “a knowing participant in the criminal conspiracy.”

Lauren Hersh, a former sex-trafficking prosecutor in Brooklyn who is now the CEO of World Without Exploitation — a coalition combating human trafficking and sexual exploitation — said situations like Kellen’s are “really common.” The Oversight panel, she suggested, would be better served by focusing on those who could not conceivably be considered a victim of Epstein instead of trickier cases like Kellen’s.

“There are a lot of people where it’s absolutely clear-cut they should be brought in,” Hersh said of Epstein’s associates. “So let’s start there.”

Rep. Thomas Massie (R-Ky.), one of the GOP’s most vocal proponents of Congress using all available tools to bring Epstein’s co-conspirators to account, had a similar perspective.

Asked how one could determine whether someone like Kellen is a victim or a perpetrator, Massie said, “I don’t think you’re gonna figure that out in the forum that the Oversight Committee has. I think you need to have an investigation with discovery and presentation, adversarial presentation of facts in a courtroom to decide that — matters of guilt or innocence.”

Some members of the Oversight Committee who worked as, or with, prosecutors prior to serving in Congress also cautioned it was important to tread carefully.

“I’ve prosecuted cases where someone has been a victim and has also been charged with a crime, and that’s something that in the due course of justice — a court or jury can determine. Those types of factors can be considered,” said Rep. Wesley Bell (D-Mo.), a former St. Louis County prosecuting attorney.

But, he added, “given the circumstances at this point in time, anyone connected with the investigation should be called in.”

Other lawmakers defended the panel’s decision to call in Kellen. Rep. Melanie Stansbury (D-N.M.), a member of the Oversight Committee, said that since the committee’s ultimate goal was to support future trials of co-conspirators and build an evidentiary basis, it made sense to interview Kellen.

“Folks like Sarah Kellen were complicit in crimes,” Stansbury said. “Were they also victimized by Jeffrey Epstein? It’s very likely that was his pattern of abuse. But does that absolve them from culpability in this case? I think it depends on the specifics and the individual, and that’s why DOJ’s investigation and investigation and prosecution of these individuals is really important.”