Survivors' Arduous Path to Justice

Note: This article addresses the topics of sexual assault, trauma, and the criminal justice system. Please take care of yourself while reading or listening.

I was all set to report on an exciting new scientific study when a Facebook response to my last article on the outsized burden of proof for sexual assault survivors caught my eye.

I’ll excerpt his two comments:

• Of course the burden of proof rests with the prosecution

• Currently the law allows for multiple methodologies of providing alternative and supporting evidence

• The law is fair and just even if in particular instances it doesn’t work out that way

• Many jurisdictions have opened new windows for old allegations to be made

• When they come forward they will have to prove that it happened and the proof can simply be their testimony supported by corroborating evidence which can be circumstantial

• It’s a balancing act and right now the courts have it “mostly right”

It will come as no surprise that the commenter is male. (He also happens to be a lawyer.) Also, I know him to be earnest, intelligent, and well-meaning.

That said, his perspective immediately called to mind Audre Lorde’s wise words about epistemic labor:

“Black and Third-World people are expected to educate white people as to our humanity. Women are expected to educate men. Lesbian and gay men are expected to educate the heterosexual world. The oppressors maintain their position and evade their responsibility for their own actions. There is a constant drain of energy which might be better used in redefining ourselves and devising realistic scenarios for altering the present and constructing the future.”

The inimitable Audre Lorde

Applied to the medium of sexual assault, Lorde’s words mean that it continually falls to survivors to navigate the criminal and social justice systems that are biased against us at every stage. Also, survivors are called upon to balance others’ lack of education by perpetually explaining to non-survivors, particularly men, how these systems are unfair, perpetuate systemic injustice, and collude with perpetrators of assault.

Let’s walk together through the stages of the justice system, detailing the main nodes of bias.

The Problem of (Under) Reporting

First, let me state that sexual assault is the most underreported of all crimes.

To offer perspective, let’s look at reporting rates for other crimes. Roughly 63 percent, or almost two-thirds, of assault and battery crimes are reported to the police. In the case of robberies, the number is nearly identical at 62 percent.

When it comes to sexual assault, the percentage flips, and then some. Nearly 70 percent of all sexual assaults go unreported.

How, you might be wondering, is it possible to get statistics on crimes that have not been reported? It’s a good question. The U.S. makes some effort to understand chronic under-reporting of crimes, including sexual assault. The primary data source that scholars and advocacy groups use in the United States is the National Crime Victimization Survey (NCVS). In this is annual survey study conducted by the Justice Department, researchers interview tens of thousands of Americans each year to learn about crimes they have experienced. Based on these interviews, the study estimates the number of crimes in each category not reported to the police.

One caveat: Children under twelve are not interviewed, so the study skews heavily toward the ages of 13 and older, and therefore overlooks the prevalence of childhood sexual assault.

After the Report: The Police

One key block to justice that survivors face is the high rate of dismissal of reports by the police, a factor I discussed briefly in this section of my last article.

In 2019, researchers from Wellesley College for Women’s Justice and Gender-Based Violence and Research Initiative conducted a study funded by the National Institutes of Justice. Their analysis included reviews of police and court records, as well as in-depth interviews with police investigators and prosecutors.

They found that for every 100 sexual assaults (or attempts) reported to the police, only 18 led to an arrest. Of these, only one case ended in a guilty verdict through a trial.

“Arrest is the least likely outcome, apart from the small number of reports that are determined to be unfounded,” Professor April Pattavina, one of the study coauthors, said in an interview. “The fact that so few cases end in arrest is troubling, especially since we know that most victims are reluctant to go to police in the first place.”

What logistical factors interfere with justice for sexual assault survivors? Why does such a shockingly low numbers of rape and sexual assault reports end in arrest?

Professor Morabito, a coauthor on the study, said that a key contributor to both low arrest and low conviction rates remains a chronic lack of resources for police and prosecutors. Sex crime investigations take time and effort, yet budgets and personnel are not allocated to these crimes.

Furthermore, police consider sex crimes to be “low prestige” assignments; turnover remains high among both police and prosecutors assigned to these cases.

In 2022, a group of researchers from the Lakehead University School of Social Work in Ontario published a qualitative study of 23 survivors whose reports of assault were disbelieved by the police. They interviewed the survivors with respect to the assault itself, their experience with the police, their experience of not being believed, and the impact this had on their health and well-being. At the outset of the experience, the women had hope that the police would help them, and that justice would be served. Yet the police responded with insensitivity, questions that blamed the survivors for the assault, lack of investigation of the crime, and lack of follow-up by the police. The study authors concluded that police officers need training that will give them a deeper understanding of trauma as well as trauma-sensitive interviewing skills.

After the Report: The Prosecution

For every 1,000 cases of rape, only 13 go to a criminal prosecutor, and only 7 will lead to a felony conviction. That’s less than 1 percent of all rape cases.

In the Wellesley study, the researchers found that even when arrests are made, and when detectives believed they had a good case and solid evidence, prosecutors often decline to move forward with the case, Morabito said. This is due to their judgments about victims’ credibility, mental health, alcohol or drug use, and other behaviors that they believed might prejudice a jury against conviction.

They also expressed reluctance to go forward in “he said, she said” and consent-defense cases that did not include third-party witnesses, the use of weapons, or evidence of physical injury to the complainant.

This means that when they do move forward at all, sexual assault cases move slowly through the criminal justice system. They are also more likely to be designated as “inactive” and to languish in the system. A full 42 out of every 100 cases end up in this kind of limbo.

And then there’s the ideological “lag time” in the understanding of consent. As of March 2023, some American states lacked a clear definition of consent. This allows cases that would otherwise be considered rape to be ruled as not meeting the conditions for rape. Because of this, reporting rates vary across states. (And they shouldn’t.)

In cases of rape, the burden of proof comes down to consent. And yet, consent is difficult at best to prove due to definitions that vary dramatically state by state in the U.S.

In Massachusetts where I live, even though rates of sexual assault are relatively low, there is no official definition of consent, which has a negative impact on convictions.

Both police officers and prosecutors are aware of the difficulty of proving non-consent, and often dismiss cases that they happen to believe will not have a good outcome in court. (And of course, rape myths influence their decisions.) Of cases that do get reported, police fail to forward an average of 86 percent to prosecutors, who in turn dismiss many more. In 2019, for example, prosecutors dismissed 49 percent of sexual assault cases.

Rape Myths and Victim Blaming

A key factor in sexual assault outcomes in the criminal justice system continues to be the perpetuation of rape myths. Rape myths aren’t just “harmless” misconceptions; they impact the outcome of criminal and civil trials. This includes the notion that a woman assumes the risk of rape when she engages in behaviors known to be unsafe, including walking alone at night, drinking, or allowing a date into her home.

Rape myths aren’t just a buzzword floating around. Consider what Wikipedia has to say about them:

Rape myths are prejudicial, stereotyped, and false beliefs about sexual assaults, rapists, and rape victims. They often serve to excuse sexual aggression, create hostility toward victims, and bias criminal prosecution.^[1][2][3]

Extensive research has been conducted about the types, acceptance, and impact of rape myths. Rape myths significantly influence the perspectives of jurors, investigative agencies, judges, perpetrators, and victims. False views about rape lead to victim blaming, shaming, questioning of the victim's honesty, and other problems. These beliefs also influence the determination of the guilt of the accused and sentencing for sexual crimes.

Alarmingly, rates of victim blaming in the news media have increased over the last four decades. As an example, consider the growing prevalence of the term “accuser” in reference to the victim. As I mentioned in this section of my last article, defense attorneys continue to perpetuate this deliberately biased technique, even toward children, and despite being aware that it is a bias.

Victim blaming also increases when the perpetrator doesn’t fit the stereotype of a rapist—in other words, when the perpetrator has wealth, success, celebrity status, a distinguished career, or when the perpetrator is a well-respected member of a community.

Prosecutors prefer not to risk a trial and the perpetrator being discharged without consequences. Because of this, they frequently encourage both survivors and perpetrators to accept a plea bargain. This means that the defendant agrees to waive the right to a jury trial in exchange for a guilty plea and reduced charges or a lesser sentence. Because cases that culminate in plea bargains are settled before trial, felony sexual assaults are often reduced to misdemeanors.

According to the Justice System, a full 87.5 percent of sexual assault cases end in plea bargains.

To highlight the frequency with which this occurs, a judge in Ohio pulled together a list of cases dating from 2005 to 2017 that resulted in reduced charges or lesser sentencing.

Out of hundreds of cases, fewer than 60 were sentenced to more than one year in prison, while 250 served no time and were sentenced to probation, a fine, or a suspended jail sentence. In one of these cases the perpetrator, who was charged with raping a child, pleaded guilty to “interference of custody,” and was sentenced to a mere six months in jail.

Perpetrator Enabling

Even when someone admits to sexual assault, victim blaming and the excusing and protection of perpetrators continues to uphold sexual assault.

Two 2019 rape cases with rulings exemplify this. In the first, a 16-year-old boy raped an unconscious 16-year-old girl from behind and filmed himself doing so. He then shared the film widely among his friends with the comment, “When your first time having sex was rape.” This was an act not of drunken carelessness but premeditated cruelty. Judge James Troiano of New Jersey determined that the act was not rape but “merely” sexual assault, and redefined rape as “an attack at gunpoint by strangers.”

The judge was misinformed, of course. According to the National Crime Victimization Survey, 80% of rapes are actually committed by someone known to the victim.

Furthermore, the judge declined a request to treat the offender as an adult, saying “He came from a good family and was a candidate for a good college.” He concluded that the victim’s family was “ruining the boy’s life” by pressing charges. An appeals court rebuked the judge in a 14-page ruling.

In the second case, also in New Jersey, a 16-year-old boy sexually assaulted a 12-year-old girl by force. The boy wore a condom, showing the attack to be premeditated. He left the twelve-year-old girl bleeding from the assault and boasted about it to friends. He spat in the face of one of his arresting police officers. Family court judge Marcia Silva denied a motion to try the teenager as an adult. She stated that the offense was “not especially heinous or cruel” and “beyond losing her virginity, the State did not claim that the victim suffered any further injuries, either physical, mental or emotional.” Fortunately, an appellate court reversed her decision.

These judges’ initial rulings aren’t exceptions, or even unusual. They signal that legal institutions marginalize survivors’ rights, while perpetrators with wealth, privilege, and power, even sexual predators, are not responsible for their crimes. They communicate to survivors that reporting sexual assault is a losing proposition.

The Bias Against Survivors of Color

The abominable statistics in criminal justice are even worse, research shows, when the sexual assault survivor is part of a community that dominant culture marginalizes. An investigative report by NBC TV in Chicago found a pattern: Perpetrators of sexual assault against Black survivors were nearly 26 percent less likely to be convicted of a sex crime than those of assault against white survivors, at close to 41 percent. And the disparity was comparable for Latine survivors.

Former Manhattan prosecutor Deborah Tuerkheimer attributes this to the cultural bias against believing accusers, which is even more pronounced for members of marginalized communities. This bias particularly affects “he said, she said” cases, those that do not have additional corroborating evidence and which pit the word of the survivor against that of the perpetrator.

“The testimony or word of a victim is itself evidence, but often it’s not considered evidence,” Tuerkheimer told NBC News. “Often, it’s dismissed as something less than evidence or something that can’t be believed,” she said.

This bias against Black and Latine survivors persists even when a weapon is involved, which is traditionally the kind of case most likely to result in an arrest and conviction.

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There is so much more from the research I’d love to add, but we’re already going way past the ideal length of a Substack.

So I’ll end by asking:

Does this sound to you like a “balancing act,” as my Facebook friend called it, that at the moment the courts have “mostly right?”

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Sources:

Roughly 63 percent, or almost two-thirds, of assault and battery crimes are reported to the police: The Criminal Justice System: Statistics | RAINN. (n.d.). Retrieved June 12, 2024, from https://www.rainn.org/statistics/criminal-justice-system

In the case of robberies, the number is nearly identical, at: The Criminal Justice System: Statistics | RAINN. (n.d.). Retrieved June 12, 2024, from https://www.rainn.org/statistics/criminal-justice-system

When it comes to sexual assault, the percentage flips: The Criminal Justice System: Statistics | RAINN. (n.d.). Retrieved June 12, 2024, from https://www.rainn.org/statistics/criminal-justice-system

Rape costs the United States more than any other crime: https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf

For every 1,000 cases of rape, only 13 go to a criminal prosecutor: What to Expect from the Criminal Justice System | RAINN. (n.d.). Retrieved June 12, 2024, from https://www.rainn.org/articles/what-expect-criminal-justice-system

A group of researchers from the Lakehead University School: Murphy-Oikonen, J., McQueen, K., Miller, A., Chambers, L., & Hiebert, A. (2022). Unfounded Sexual Assault: Women's Experiences of Not Being Believed by the Police. Journal of interpersonal violence, 37(11-12), NP8916–NP8940. https://doi.org/10.1177/0886260520978190

And in 2019, researchers from Wellesley College for Women’s Justice and Gender-Based Violence and Research Initiative: Decision Making in Sexual Assault Cases: Replication Research on Sexual Violence Case Attrition in the U.S. (n.d.). Wellesley Centers for Women. Retrieved June 13, 2024, from https://www.wcwonline.org/Publications/decision-making-in-sexual-assault-cases-replication-research-on-sexual-violence-case-attrition-in-the-u-s

Professor Morabito, a coauthor on the study, cited a lack of resources for police and prosecutors as a key contributor: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

And when they do, they are more likely to be designated as “inactive” and to languish: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

Of cases that do get reported, police fail to forward an average of 86 percent: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

In 2019, for example, prosecutors dismissed 49 percent of sexual assault cases: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

An investigative report by NBC TV in Chicago found a pattern: Haeberle, B., Capitanini, L., Halder, N., Smyser, K., Stefanski, M., Walinchus, L., Dore, C., & Richardson, A. (2024, May 22). Dismissed part 2: Racial disparities and the difficulty of prosecuting sexual assault cases. NBC Chicago. https://www.nbcchicago.com/investigations/nbc-5-investigates-dismissed-sexual-assault-racial-disparities-difficulty-prosecution/3438100/

This bias persists even when a weapon is involved, which is traditionally the kind of case: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

Consider what Wikipedia has to say about them: Rape myth. (2024). In Wikipedia. https://en.wikipedia.org/w/index.php?title=Rape_myth&oldid=1214427782

According to the Justice System, a full 87.5 percent of sexual assault cases end in plea bargains: Rodriguez, I. (2022, April 8). ‘Outrageous Outcomes’: Plea Bargaining and the Justice System. The Crime Report. https://thecrimereport.org/2022/04/08/outrageous-outcomes-plea-bargaining-and-the-justice-system/ In: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

Out of hundreds of cases, fewer than 60 were sentenced to more than one year in prison, while 250 served no time: Rodriguez, I. (2022, April 8). ‘Outrageous Outcomes’: Plea Bargaining and the Justice System. The Crime Report. https://thecrimereport.org/2022/04/08/outrageous-outcomes-plea-bargaining-and-the-justice-system/ In:  Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

In one of these cases the perpetrator, who was charged with raping a child: Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining is a Bad Deal (New York: Abrams Press, 2021). In: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

Victim blaming increases when the perpetrator doesn’t fit the stereotype of a rapist: Why Do So Few Rape Cases End in Arrest? | UMass Lowell. (n.d.). Retrieved June 13, 2024, from https://www.uml.edu/news/stories/2019/sexual_assault_research.aspx

In the first, a 16-year-old boy raped an unconscious 16-year-old girl from behind and filmed himself: Ferré-Sadurní, L. (2019, July 2). Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says. The New York Times. https://www.nytimes.com/2019/07/02/nyregion/judge-james-troiano-rape.html

According to the National Crime Victimization Survey, 80% of rapes: Criminal Victimization, 2018 | Bureau of Justice Statistics. (n.d.). Retrieved June 13, 2024, from https://bjs.ojp.gov/library/publications/criminal-victimization-2018

In the second case, also in New Jersey, a 16-year-old boy sexually assaulted a 12-year-old girl by force in 2017: Ferré-Sadurní, L. (2019, July 2). Teenager Accused of Rape Deserves Leniency Because He’s From a ‘Good Family,’ Judge Says. The New York Times. https://www.nytimes.com/2019/07/02/nyregion/judge-james-troiano-rape.html