One thing I’ve been meaning to post about for a while is why I think reforming rape and sexual assault laws, while worthwhile, is unlikely to cause an increase in rapists being convicted and imprisoned. I was reminded of this while I was reading a recent law journal article by Corey Rayburn entitled “To Catch A Sex Thief.”1 From the article’s introduction:
While every trial has elements of theater, rape and sexual assault cases are unique because they emphasize the gender performances of the accuser and the accused. Complainants who testify are not just recounting the events of the alleged rape. They are also defining the essential parts of their gender roles for the jury. Every statement, mannerism, action, and emotion of the accuser on the witness stand relays information about her gender to the jury. If the jurors deem a performance too emotional, they may assume the accuser is stereotypically hysterical and unreliable. If, however, she appears cold and calculating, the jury may believe she is a “gold-digger” using the criminal trial as a prequel to a lucrative civil suit. If she shows too much anger (as though it were possible for someone who has been raped to be “too angry”), the jury may see vengeance as her motive for “crying rape.” Which predefined gender roles the jury assigns the accuser and accused during the trial are important in determining whose story the jury will ultimately believe.
At its core, a criminal rape trial taps into the linguistically and culturally founded beliefs of the jury in order to reach a desired outcome. In most cases of “simple rape,” as Susan Estrich has labeled acquaintance rape, the defense attempts to access certain meta-narratives about sex and rape to convince the jury that the alleged rape event was really consensual sex. These rape myths and the rhetoric of rape and sex, not statutory rules and procedures, are the critical pivot points for shaping the jury’s decision. The trial itself is like a play where the actors and their agents fight to define the roles and script utilizing these meta-narratives. As Stephen Schulhofer has written, “[s]ocial attitudes are tenacious, and they can easily nullify the theories and doctrines found in the law books. The story of failed [rape law] reforms is in part a story about the overriding importance of culture, about the seeming irrelevance of law.”
There’s a crowd of independent actors standing in between a rapist and the inside of a prison cell, and any one of them has the ability to make sure that the rapist never sees the cell. The cops who perform the arrest – or choose not to. The supervisor cop at the station, who can order the (alleged) rapist let go. The prosecutor, who can decide not to bring the rapist to trial – or to do so only on a lesser charge. The grand jury. The jury. The judge.
If the written law moves in a direction that strikes any of this crowd people as unfair or unjust, that person can resist by finding excuses not to implement the law as written. This is why the frequent suggestion (often from conservatives) that sentencing for rape be made “tougher,” or be made a capital offense, is a bad idea. If the sentence for rape is harsh enough so that many people see the sentence itself as unjust (“you can’t put a boy in jail for 30 years just because he went a little too far”), the result will be that fewer rapists will be convicted of rape.
So it’s important to seek a middle ground – a punishment not so light that it makes a mockery out of rape, but not so tough that the people who make our justice system work will be loathe to find anyone guilty of rape.
Similarly, with rape law reform. Feminists have been right to reform rape laws over the past few decades so that rapes that previously were in effect legal – such as spousal rape and many acquaintance rapes – can be prosecuted. Feminists have also been right to push for reforms like so-called “rape shield” laws, which in theory reduce the ability of defense attorneys to use rape trials to humiliate the victim and put the victim on trial.
More from Corey Rayburn’s article:
A person who is on the witness stand telling her story of rape does not just have to convince the jury that she is telling the truth. Instead, because of the desensitization effect, she has to compete with every movie, television program, book, magazine, newspaper, and website depicting rape or consensual sex that any of the twelve jurors has ever seen. If her story does not measure up to the jury’s high standards as constructed by years of mass media inculcation of rape imagery, then the defendant will walk free. Each fictionalized account of rape normalizes and naturalizes rape in a way that makes potential jurors numb from the repetitive experiences.[…]
The images of the especially graphic and shocking rapes in mass media create a standard that is too high for most accusers to meet in front of a jury already confronted with conflicting accounts of an alleged rape event. A jury who hears about a run-of-the-mill simple rape where the accuser was intoxicated is likely to shrug at the details of the complainant’s story. The jurors have heard it all before, but with more shocking details, more horrifying tidbits, and, if through movie or television, with an accompanying audio/video record. The accuser cannot inject extra details like the movie-of-the-week screenwriter. She cannot ask the makeup artist to paint on extra bruises before her big entrance. And she certainly cannot ask the director to have the defendant portrayed in an uglier light to highlight his evil nature. Rather, the accuser’s story is limited by what she remembers and what she told the police when she first reported her rape. Any variation from that story will hurt her credibility and will likely ruin a chance for conviction. (210) And yet, with her heavy burden of performance, if she does not improve her story, a conviction is unlikely because of the jury’s desensitization to her rather mundane rape narrative. […]
When a rape is recounted through oral testimony, with limited physical evidence, it is likely to underwhelm a jury that has heard much better stories and seen more convincing accounts of rape. The fact that television or movie rapes may have been fictional does not mean a jury’s conception of rape is not actively shaped by them. As discussed earlier, fictional accounts can be more powerful because they are dramatized and sensationalized. Furthermore, the fictional accounts often lack the uncertainty and nuance that jurors often confront in rape trials.
The defense can also take advantage of the intersection of the desensitization of rape and the roles ascribed to the accuser. A story that portrays the accuser as a money-grubber becomes more potent if the victim’s injuries are minor and her tale not particularly lurid. The jury can be convinced that the accuser has simply decided to take financial advantage of unpleasant sex or that she is using the rape complaint out of regret for having sex with the defendant. If the details of the alleged rape are not shocking, the defense can easily dovetail the regret story with the facts of the case. As the defense capitalizes on the intersections of these narratives, the accuser’s burden of performance becomes heavier.
As I said before, I am in favor of many feminist reforms to rape laws. But that’s only half of the reform that’s required for real change in how the legal system treats rape. The other reform that has to take place isn’t the letter of the law, but in the minds of the people who implement the law. And since the people who implement the law include jury members, in effect what needs to be transformed is how every American thinks about rape – which in turn requires changing how the media presents rape. Until enough Americans begin to think about rape differently, then the people who make the law happen will resist legal changes to rape laws, rather than implementing them.
Of course, I hope that the more that Americans change their thoughts about rape and sex in a more feminist direction, the less rape will happen, and the less we’ll need the justice system to address rape. However, even in a more feminist society, there will still be some rape victims, and the criminal justice system has severe limitations when it comes to providing justice to rape victims. I’ll discuss this more in a future post.
[Comments for this post are reserved for feminist and pro-feminist posters only. If you don’t think you’ll fit into Amp’s conception of “feminist and pro-feminist,” you may leave comments instead at the crosspost on Creative Destruction.]
- “To catch a sex thief: the burden of performance in rape and sexual assault trials,” by Corey Rayburn, Columbia Journal of Gender & Law, June 2006, Pg. 437 ,Vol. 15, No. 2. [↩]