(Trigger warning for discussion of rape, sexual assault, sexual abuse, and topics of this nature).
It’s no surprise that our judicial system does not work for victims of sex crimes. Statistics collected by RAINN (Rape Abuse & Incest National Network) from the Department of Justice, the Federal Bureau of Investigation, and the Department of Defense indicate that only 34.4% of rapes are reported. Of those rapes that are reported, approximately 18.3% result in an arrest. Of the rapes that result in an arrest, about 20.6% are referred to prosecutors. Then around 53.8% of those cases result in a felony conviction. And in approximately 85.7% of those cases resulting in a felony conviction does the guilty party become incarcerated. If those higher percentages at the end had you hopeful, I’m sorry but that’s really a factor of how small the numbers get after a certain point. All in all, 6 out of every 1,000 rapists end up in prison, a meager 0.6%.
Before we go on, let’s take a closer look at the first statistic I gave from RAINN, that just over a third of rapes are reported (and for this article I will be talking about rape, but know that similar suggestions can and likely should be employed to help victims and survivors of the vast array of sexually based crimes from child pornography to sexual harassment to sex trafficking). The University of Maryland as well as RAINN report that among the most commonly held beliefs that survivors have which keep them from reporting are as follows: they know their rapist and therefore either do not feel free to report because of their almost constant proximity to them or because they worry about what reporting might do to their close network of friends and family; they fear reprisal from their rapist, especially because court cases can take a long time and there’s definitely no guarantee their rapist will go to prison; they don’t want friends, family, and possibly coworkers to know; they don’t feel they have enough proof and they believe the police will not do anything to help them. Those are just a few of the reasons highlighted by these two organizations, but they shed quite a bit of light on the subject.
Time Magazine also compiled a list of similar reasons, and a few of them jump out as issues I want to report before we get into making suggestions to make things better. Of special significance on their list which the former studies do not cover is concern about the amount of control they will have after reporting. The article states that “victims are afraid of going through a public rape trial because of how awful it can be for the victim. Media portrayals of rape trials show how often they are about the victim’s character and credibility. Given the low rate of conviction, victim’s naturally decide it isn’t worth the risk.” They also highlight the broad discrepancy between districts in how they handle rape cases, with some districts able and often willing to pursue cases beyond the victims’ wishes, while in others the victim is in the driver’s seat so to speak.
So what can we do? Essentially what I am proposing is a comprehensive bill that would impact the way rape cases are handled throughout the United States. I have no pretense that what follows will be perfect, but I think we need to start having a discussion around how to fix this massive fracture in the Justice System. So going forward, I’m going to suggest several major points that I would put in this comprehensive bill to help shape a Justice Department that is actually equipped to handle rape cases, because right now, I thoroughly believe they are not.
1.) Lower the Burden of Proof prosecutors must meet for all sex crimes from the standard criminal “Beyond Reasonable Doubt” to “Clear and Convincing Evidence” with the ability of the judge in the case to lower the burden of proof one step further to a “Preponderance of the Evidence” AKA “More Likely Than Not” in a pretrial hearing. However, lowering the Burden of Proof in said manner must come with a cancellation, for said case only, of any mandatory minimum sentences and a reduction of any maximum sentence by one third.
This is perhaps the most important, most necessary, and unfortunately probably the least likely point included in this bill outline. As much as I would like to request that the Burden of Proof be permanently lowered to “A Preponderance of Evidence,” also known as “More Likely than Not,” I do think there is something to be said for attempting to avoid unintended consequences that could sully the reputation of the entire law. And I think the clause which allows for a case-by-case lowering of the Burden of Proof gives a decent compromise which would hopefully address the issue even further without allowing for any unintended consequences. For the main rule, though, the one that would govern most cases, I’ve chosen to advocate for Burden of Proof to be lowered to “Clear and Convincing Evidence.” Even this one step down in Burden of Proof would fundamentally change how our Justice systems handle rape cases. So often cases of rape do not have “adequate evidence” available for even the best of prosecutors to prove beyond reasonable doubt that the defendant raped the accuser. Helen Reece, an Associate Professor (Reader) of Law at the London School of Economics and Political Science, argues in this Guardian article (TW for some questionable statements on victim blaming) that the astronomically low 7% conviction rate for rape cases (likely in England, though the article does not specify) has more to do with things like a lack of independent witnesses for such cases than it does with rape myths and victim blaming.
While Reece’s take on victim blaming raises some questions in itself, her statements about the lack of the type of abundant evidence on may find in a crime like a robbery or a murder in cases of rape highlight just how different rape is from a prosecuting standpoint than any other non-sexual crime. As she says in the article, often rape cases come down to “one person’s word against another [in which] both sides are saying they had sexual intercourse but [don’t agree that it] took place in the [same] way.” A case like this can absolutely be a case of rape, but unfortunately the way the Justice System is set up now, a prosecutor would have no way to prove beyond a shadow of a doubt that the defendant did indeed rape the accuser, and likely it wouldn’t even go to trial. Thus far our Justice System has not figured out how to allow for the fact that not every crime has tangible evidence that makes it impossible for anything other than the Prosecutor’s narrative to be true. This is why I think lowering the Burden of Proof permanently for all sex based crimes would lead to more justice. And I especially think that the ability for a prosecutor to lobby for a further lowering of the Burden of Proof in a case like Reece described above, while admitting that opting for the case to be tried on a “More Likely Than Not” basis does give a razor thin margin of error, and so should likely come with different sentencing guidelines. I think overall, this law would give prosecutors all across the country the ability to move forward with and win rape cases, likely skyrocketing the incarceration rate for rapists.
2.) Abolishing all Statutes of Limitations for all sex crimes across the country. Furthermore, ensuring that the amount of time an accuser waited to report, the circumstances surrounding their report, the timing of their report, or any other time or situation related aspect linked to the accuser’s report of said sex crime will not be admissible as evidence or even an aside against the accuser’s claim, their character, or their motivations. If any witness, attorney, judge, or any member of court proceedings attempts to covertly or overtly use these details in such a way, it shall be the accuser’s decision whether to simply have the remark(s) stricken from the record or to have the judge declare the trial a mistrial, which would then be followed by a new trial in which whomever made such comment would not be allowed to serve on the new case in any capacity and will not be allowed within the courtroom during the proceedings.
Statutes of Limitations. Where do I start. I don’t know of any ill-advised, bone-headed, and completely unfounded part of the Judiciary System than imposing Statutes of Limitations on sex crimes. There’s absolutely no reason for it. How many rapists have gone free because it’s taken their victims decades to work through the often horrifying psychological aftermath of being violated in one of the worst, most heinous ways possible? How many child molesters have gone free because not only did their victims have to work through what happened to them, or possibly even struggle to remember what happened to them, but also just go through adolescence and teenage years and just make sense of the world around them before they could properly put into perspective what was done to them and whether or not they want to report it? How many celebrity rapists have gotten off scot free because they intimidated and threatened their victims with their power, prestige, money, and just their celebrity alone? This point in the law I am proposing hopes to end all that. Because time should not be a barrier to justice. An individual who was molested as a child should be able to seek criminal charges against their abuser when they’re 40 years old. A victim who was scared into silence shouldn’t just have to settle for a civil suit because by the time they worked through everything and decided they wanted their abuser to pay for what they did to them, a completely arbitrary “Statute of Limitations,” ran out.
Statutes of Limitations for sex crimes are some of the most heinous perversions of justice that I can see in this country. As I mentioned, they’re completely arbitrary. For example, Arkansas’ criminal Statute of Limitations for Offenses Against a Minor is “until [the victim(s)] turn 28” which, like, where the hell did that come from? You’re 29 and you’re reporting abuse that happened to you when you when you were 16? Too bad you’re past 28 and everybody knows 28 is the magical year when victims can truly decide if they want to pursue charges or not. What the hell? Also in Arkansas you have 6 years after a rape and 3 years after a sexual assault to report and press charges. Again, considering the psychological ramifications at stake here… that’s nothing. California also employs “the 28 rule” while their Statute for rape is a “generous” 10 years. There are some states like Colorado which do not have SoL for Crimes against Minors (technically 15 and below for Colorado), though even they still have a 10 year statute for Sexual Assault. Delaware gets a gold star for having no criminal SoL for any sexually based crimes. Minnesota actually has one of the worst I’ve seen. For sexual crimes against I minor their SoL is a mere 9 years after the offense or 3 years after it was reported to the police, whichever is longer, which is just… mind bendingly ridiculous and awful. Add in that the SoL for Criminal Sexual Assault is just 3 years and it’s completely maddening regardless of their DNA exemption.Then there’s States like Louisiana and Missouri which specify “forcible rape” in their Statutes, but seem not to have a Statute for “non-forcible” rape, leaving you to wonder if the only type of rape they penalize is “forcible”?
The whole thing is such a mess that even if it weren’t a gigantic failure of justice it should be torn down and replaced with something cohesive. The fact that it is a failure of justice only means that we should tear it down and replace it with an explicit statement that there will be no statutes of limitations under any circumstances for sexually based crimes. The last few sentences of that point are incredibly important too. We’ve all seen how the defendant’s attorney often tries to impugn the character of the victim in whatever way possible. The media does so as well but unfortunately we can’t control that. Even today, as things are, women are being called out for “waiting too long” to accuse Bill Cosby of rape. When you see a celebrity being accused by one person, and then all of a sudden many others come out of the woodwork as well, instead of seeing that and understanding “wow I can’t imagine how difficult it would be to accuse someone that famous, with that much power of rape,” many people and news outlets say “where were all these people before the first person said anything?” When the obvious answer is that one by one victims of the same abuser saw that people were speaking out against them and found the courage to do so themselves, or maybe saw their situation differently and realized that they wanted to come forward. There’s so many ways to twist and turn things in rape cases, unfortunately, which is why, after abolishing Statutes of Limitations, we would have to take a hardline stance against anyone in the courtroom using the time it took a victim to come forward against them.
3.) [i] No witness, attorney, Judge, or any other individual may use the accuser’s character, style of dress or appearance, work or work environment, behavior, past behavior or behavior patterns, past relationships, sexuality, gender identity, or mental status to suggest or state that one of said attributes somehow implies or is a logical step in concluding that the accuser is lying, is mentally unfit to levy an accusation of this nature, could not have been an unwilling participant in said sexual acts, or anything else that would act against the accuser’s testimony, but which is solely dressed up and reckless conjecture.
[ii] The accuser is under no circumstances to be “put on trial” or harassed by an attorney asking questions in an examination or cross-examination. Any time an accuser is asked questions as a part of the the legal proceedings, they are allowed to call for breaks to regain their composure which are not to be used against them in any way and they have a legal right to a credible psychologist who is able to oversee the questioning of the accuser with the judge, given the authority under that circumstance to halt the proceedings temporarily, or to call for an immediate session with the judge to discuss the potential harassment of the witness.
[iii] The accuser is only to be asked about the details of their story, how they line up with other witnesses, and other directly related material. Attorneys are also not to harass the accuser by accusing them or derisively speaking of them as being a liar, about being sexually active, about any past accusations, or anything else that is deemed to be said with the intention of rattling, harassing, emotionally manipulating, or in other ways harming the accuser emotionally or mentally. Any such statements or questions to them or any other witness about the accuser’s character or other personal aspects shall be considered grounds for a mistrial, with the accuser given the decision.
[iv] Before their testimony is presented to the jury and the court, the prosecution has the ability to have a credible psychologist or psychiatrist perform a psychological evaluation on the accuser, if the accuser agrees (if the accuser does not aggree, the prosecution may choose to have a credible psychologist or psychiatrist put together and/or read from an authoritative text what to expect from victims in the accuser’s shoes). The prosecution also has the ability to either have said psychologist or psychiatrist give a plain-words description of this evaluation, and how any mental vulnerability due to victimization might present itself in the accuser’s testimony. The psychologist or psychiatrist is only to explain to the jury how the accuser’s current mental state might affect testimony and might affect their mannerisms and emotion solely for the purpose of educating the jury so that they do not mistake anything that is to be psychologically expected with a sign that the accuser is lying (such as how a certain amount of confusion and difficulty recalling details being expected of a victim and should not be interpreted as a sign that the accuser is making said details up). No member of the court may use this information to imply or state that the accuser is somehow mentally unfit. This is to be referred to as the right to a compassionate court and the right to an educated jury.
[v] Additionally, the accuser has the right to only go through the events in question once. This includes any mistrials that may take place, in which case it will be permissible only in this circumstance and only if there is no other type of testimony, to have the transcript of the testimony from a previous mistrial read in the new trial with any instances of the testimony that may have lead to the trial being declared a mistrial being redacted from the testimony transcript. However this is only to take place if the accuser refuses to testify for the new trial (which will be within their rights) and no other type of testimony exists. To accomplish a single testimony, the accuser may opt to have a recorded testimony which will then be played for the court and the jury. This testimony may be conducted either by both sides’ attorneys (while ensuring that no attorney asks a question that repeats a previous one), or it may be conducted by a neutral psychologist with questions provided by said attorneys. This decision, however, must be made before they would be due to appear on the witness stand, and once testimony starts, while breaks may and should be afforded by the judge, they are to be considered as having waived their right to recounting said events before a video camera. It is the prosecutor’s responsibility to inform the accuser of this law as close to one month from testimony as possible, then again one week from testimony, then again, three days before scheduled testimony when the final decision must be made (though a final decision may be made before this).
[vi] The accuser also has a right to a competent mental health counselor, therapist, or psychologist provided to them free of charge, and if the resources exist, the right to choose which mental health professional they would like to work with. A general mental health professional must have some experience in issues of sexual abuse, rape, and PTSD, however if one is available, a mental health professional who specializes in sexual abuse and related crimes and PTSD should be provided to the accuser. Absolutely nothing that is said in confidence between the accuser and the mental health professional should be recounted to anyone involved in the trial regardless of the content of the information. The mental health professional, however, still remains under the guidelines of their profession, such as being required to report a client’s plan to harm oneself or another. This right is to be communicated to the accuser at the time of reporting/decision to press charges.
Trials are incredibly hard on victims. The (intense, somewhat disturbing) Guardian article about Frances Andrade shows that much, quoting her as saying that after the cross examination, she felt as if she had been “raped all over again,” her son later echoing that saying that coming out of the courtroom after the cross-examination she described it as “feeling as if she had been assaulted all over again.” Ms. Andrade later said very poignantly in a GC interview that “this is why cases don’t come forward.” She was found dead in her home just days after giving those statements, and a week after the cross-examination that many feel led to her death, which the coroner was unable to definitively say whether it was an intentional or accidental overdose of her prescription anti-depressants. Her husband said after her death, “I hope they can change the law… Fran felt as if she was on trial. She kept saying, ‘I can see why nobody comes forward. I can see how people crack under the pressure.'”
This is not an uncommon occurrence. In the same Guardian article, Tina Renton is quoted as saying giving evidence against her abusive step-father was the “most difficult thing [she] had ever done.” That statement should hit you like a ton of bricks. This woman had been abused by her step father, and yet giving testimony in court was the most difficult thing she had ever done. That betrays a profound schism in our criminal justice system. These cases are from the UK, but they’re just as emblematic of the US system. This article in The Huffington Post details how lawyers working for the defendants are trained to undermine the victim’s character, credibility, and even to make use of their gender to turn a survivor who has (possibly recently) been victimized into someone who feels so personally attacked, invalidated, and emotionally spent that they end up looking to the jury like someone who isn’t credible. It would be my hope that the sections in this article of the overarching bill would all come together to make the trial process even just a little more bearable for accusers, and make scumball tactics like undermining someone’s character completely illegal. Maybe this would not only make the experience less hellish for the accuser, but also result in more victims coming forward.
4.) [i] The accuser has the right to complete anonymity throughout the reporting, filing, trial, and sentencing processes as well as any other proceedings (such as parole hearings) that are attached in any way to the case. This includes but is not limited to the ability to appear via television link with obscured voice and appearance, the ability to never appear in court at the same time as the defendant, the ability to appear in court with physically obscuring disguises and voice modulation, the ability to have all information about their identity hidden to up to everyone except the prosecutor (although if requesting a special prosecutor, identity may be held from current prosecutor until that request is heard and decided upon), and the ability to keep their identity off all court documents.
[ii] Additionally, the accuser has the right to sign away their right to be attached in any way to the trial and proceedings. In this instance, when the accuser makes it clear that they wish to press charges, but do not wish to be a part of the court proceedings, they must sign a legal document saying as much. They must, then give the police or prosecutor all the information and potential evidence they have about the case. This includes, at minimum, the accuser’s account of said incident. However, the accuser is advised that the more information they give, such as names of potential witnesses, location where there may be a security camera, whether or not they had a rape kit administered, and other such important evidence. The individual they are speaking with is to let them know that this approach is much less likely to yield a guilty verdict, and that the accuser will not be all0wed to change their mind except in the event of a mistrial. The accuser must take the legal papers home with them and may not hand them in before 24 hours has passed so as to ensure they have had time to think over their course of action.
Anonymity is something that is not given to victims of sex crimes nearly often enough. The debate rages on online about whether such anonymity is constitutional or whether it’s fair. I’m not a constitutional law scholar, nor am I an expert in law at all, but personally, I find it ridiculous that this is a question that has to be asked. It is apparently not enough that victims are put through hell just going through trial, they have to be tried in the court of public opinion as well, especially in those high profile cases. I believe we have the obligation to protect the anonymity of the accuser to whatever lengths they feel is necessary. As with almost all points in this law, it’s about putting accusers and victims back in the drivers’ seat.
More or less, those are the ideas I have for improving the criminal justice system when it comes to sex crimes. There are, without a doubt, an endless list of things we could and should be doing better in this regard, but I believe these changes, especially made on a Federal level, would be a good way to start protecting rape victims and actually locking up rapists, which is something we’re doing an appallingly terrible job at. We simply cannot keep making the trial process so psychologically damaging for victims and wonder why more people don’t come forward. What we need is sweeping changes to our legal system, to put it in black and white that accusers are to be protected throughout the proceedings, not harassed and abused all over again.