• Lydia Boyer

Rethinking Rape in the Courtroom


The victim’s statement in the Stanford Rape Case made headlines in 2016 because the victim described what it was like to go through the process of reporting her assault, be probed for evidence and then endure a trial. It isn’t a new concept, even in the wake of #metoo, that sexual assaults are underreported. The ordeal described in the Stanford Rape Case – as well as stories about victims who later commit suicide – contribute to victims’ reluctance to report or press charges. This type of impact begs the question: is the court room really the right place to be seeking justice in sexual assault cases?

Courtroom justice and the adversarial system focus on retribution and deterrence for the underlying crimes, but the #metoo movement has had men and women speak out about how murky the waters can be when it comes to figuring out what really happened. The result is an environment that pits re-traumatization of the accused against the rights of a defendant in a trial. There are rules, like Rape Shield, the govern what happens in the courtroom, but are they really helpful? There hasn’t been much change in prosecutions, even with the #metoo movement, and sexual assaults and rapes keep happening.

So why do we prosecute these crimes? The concept of seeking justice in an adversarial system is about who wins and the other who loses; and whose version of the truth is vindicated. If the defendant loses, they are punished for their crime. Justice has been served. At least in the small number of cases that prosecutors take to the courtroom.

Except it doesn’t. Victims – and their families – don’t have the experience end with the verdict and sentencing. There is still healing. And a guilty verdict alone doesn’t give closure or suddenly make the trauma go away. There are also two different experiences that may never be reconciled between the two parties and the creation of more trauma for the victim, like in the Stanford Rape Case. While sometimes a person convicted may be mandated to take classes to prevent recidivism, it may be too late to really teach that person about consent if they didn’t learn it in their formative years.

The waters are also muddied for the lawyers prosecuting and defending the case, and judges trying to protect everyone’s rights. Sexual assault cases have ample room for burden shifting, and can be particularly difficult in cases where there are questions of whether there was consent. An affirmative defense alleging consent inherently puts the victim, and the accused, in a vulnerable position where they share their thoughts, feelings and actions with a room full of strangers. Lawyers also have to grapple with moral and ethical obligations and personal feelings about how to do their jobs versus causing more damage.

But what might a solution look like? Consider some of the theories of punishment (More Information): deterrence, retribution, rehabilitation, restitution – often linked to restorative justice, and incapacitation. The current approach focuses on retribution and general deterrence for perpetrators. Retribution comes in the form of jail or probation, sex offender registries, fines, and the criminal record even though many of these are seen as aiming at rehabilitation. All of these punishments are then deterrents for others who might commit similar crimes. Deterrence works on the idea that a person will only commit a crime if they assess three factors: swiftness, certainty, and severity of punishment. The biggest factor consideration is the certainty of getting caught, which is lower in rape cases because most rapes go unreported.

Requiring proof of affirmative consent might be a solution, but it poses other legal issues, like burden shifting. If a defendant at trial is required to show affirmative consent, it means the defense is just short of compelled to put on a case, which in turn permits a rebuttal by the prosecution. Furthermore, if only the victim and defendant were present during the alleged assault, there is the potential to run afoul of the Fifth Amendment (right not to testify) because only the defendant can contest the victim’s testimony. Some college campuses are looking at affirmative consent as a solution, including public universities in California. The affirmative consent standard might work better on college campuses that use mechanisms that have more flexibility than a traditional criminal court room.

Considering the proliferation of restorative justice approaches, a better solution to traditional trials would use restorative justice approaches in cases that aren’t suited to a courtroom. As data from RAINN illustrates, rape victims don’t report their crimes for a number of reasons, including the belief that the system can or won’t help them. Other didn’t report because they saw it as a private matter. Removing proceedings from a traditional court room in some cases could give both parties more privacy – like not having to detail the event for a jury – and could focus more on what that particular case needs to achieve justice.

What seems to be the biggest barrier, however, is the consent standard. Many states do not define consent and consent is not taught to pre-teens and teens in most of the country. Having a general population educated about consent is critical not just for reducing crimes, but ensure that juries really understand what is – and what is not – consent.

Education is something that has to be started sooner and addressed more broadly. Sex education tends to focus on either safe sex or abstinence. They aren’t teaching about consent and healthy relationships. Only ten states require teaching these concepts in public school sex education. More states focus on preventing pregnancy and STD transmission. Oklahoma’s legislature is considering a bill that would allow schools to utilize this kind of curriculum as a deterrent to the issues. Community organizations, like the Virginia Sexual and Domestic Violence Action Alliance, are also focusing on the issue of consent and providing resources for educating pre-teens and teens about what consent is, how to give it, and how to respect it. “Not all 11-16 year olds are dating, but most have probably thought about what it means to be in a dating relationship. Attitudes and beliefs formed during these critical years will most likely affect how they treat their dating partners now and in the future.” By focusing on when beliefs and attitudes form, the hope is to create a more effective deterrent to decrease the number of sexual assaults.

Reconsidering traditional notions of justice for some rape cases may just help us reduce the number of sexual assaults overall because the current system isn’t working. A large number of reported sexual assaults will never even be referred to a prosecutor. The outcry has to be believed and a quick perusal of victim’s stories on the internet will show that often their initial outcry was not believed. If a case does make it into the criminal justice system, then a jury has to understand what sexual assault – and consent – really are from their own experiences. Until there can be a cultural shift in how we approach sexual encounters, which require consent, a courtroom may not be the best place to resolve these cases.


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