CHAPTER 2

• Jurisdiction: United States

CHAPTER 2

The #MeToo Movement in the United States: Reckoning with the Law's Failure

Jessica A. Clarke¹

The #MeToo movement has brought the problems of sexual harassment and assault in the United States into sharp focus, exposing the systemic failure of the law for survivors. In October 2017, the New York Times and The New Yorker magazine reported that media mogul Harvey Weinstein had been sexually harassing women in the entertainment industry since the 1990s.² On social media, an overwhelming number of people responded with the hashtag #MeToo, telling their own stories of sexual assault and harassment.³ In the year after the Weinstein story, more than 200 prominent American men lost their positions as a result of accusations of sexual misconduct.⁴ The movement brought new attention to the then-pending criminal prosecutions of actor Bill Cosby⁵ and USA Gymnastics doctor Larry Nassar,⁶ both accused of a series of sexual assaults spanning decades. During the September 2018 hearings to confirm Justice Kavanaugh to the U.S. Supreme Court, Dr. Christine Blasey Ford testified about being sexually assaulted by Kavanaugh when the two were teenagers in the 1980s.⁷ After politicians expressed doubts about Dr. Ford's credibility because she had failed to come forward earlier, survivors began using the social media hashtag #WhyIDidntReport to explain their reasons for not availing themselves of the legal system.⁸

This chapter offers a brief summary of some of the key features of U.S. law on sexual assault and harassment in an attempt to explain why the law has been such a profound failure for survivors. It also discusses legal reform efforts that have been undertaken as a result of the #MeToo movement.

Criminal Law

In the United States, rape and sexual assault are, for the most part, defined by the governments of individual states.⁹ Historically, U.S. law treated rape claims with extraordinary skepticism, both because women were thought to fabricate accusations and because the crime was penalized by the harshest of sanctions, including the death penalty.¹⁰ The law therefore imposed a number of special requirements on victims, including physical resistance, prompt reporting, and corroboration.¹¹ Moreover, because the offense was seen "as an injury to the husband or father of the raped woman" it could not be committed "against a female victim of previously unchaste character."¹² As a result of feminist advocacy beginning in the 1970s, these requirements now find themselves on shaky legal footing.¹³ But outdated ideas continue to have an influence over what cases are reported to law enforcement, what cases are pursued by the prosecutors who have the discretion to decide whether to bring charges, and what cases are convincing to the juries who must determine that a defendant is guilty beyond a reasonable doubt.¹⁴

Early American courts borrowed their definition of rape from English common law: "carnal knowledge of a woman forcibly and against her will."¹⁵ In recognition of the harms of same-sex assaults and assaults by women against men, most U.S. jurisdictions now define offenses in gender-neutral terms, by reference to particular acts and body parts.¹⁶ While historically a victim was required to resist "to the utmost," that requirement has now given way.¹⁷ But the roles of force and consent remain debated. A majority of states now penalize sex without consent, even in the absence of force.¹⁸ But many still define rape to require that the perpetrator used force in addition to requiring sexual penetration, even in the absence of consent.¹⁹ Definitions of force vary, with some states defining force broadly to include "circumstantial coercion or intimidation."²⁰

In 2012, the American Law Institute (ALI), a nongovernmental organization of U.S. legal professionals, began revising the sexual assault provisions of the Model Penal Code, an influential set of model criminal laws. The ALI's 2017 draft includes "sexual penetration or oral sex without consent" as a separate offense, apart from "forcible rape."²¹ This offense would require that the perpetrator acted "knowingly" or "recklessly."²² The ALI has approved a definition of consent to mean "a person's willingness to engage in a specific act of sexual penetration, oral sex, or sexual contact. Consent may be express or it may be inferred from behavior—both action and inaction—in the context of all the circumstances."²³ "A clear verbal refusal—such as 'No,' 'Stop,' or 'Don't,'—establishes the lack of consent";²⁴ but consent may be absent even without such a statement.²⁵ This concept is known as "contextual consent."²⁶ There remain disagreements over what circumstances might "nullify apparent consent" such as "force, fraud, and coercion," among other issues.²⁷ The ALI's project has been controversial due to specific policy arguments as well as generalized opposition to rape reform "attributable to misogyny."²⁸

U.S. law once required a victim's "prompt complaint" as a prerequisite to a sexual assault prosecution, on the theory that victims who did not immediately report could not be trusted.²⁹ While this rule has been abandoned, many U.S. states still have statutes of limitations that bar claims if they are not brought within a certain time period, sometimes ten years or less.³⁰ These time limitations were reportedly the reason that, out of the sixty women who had accused Bill Cosby of rape and other crimes, prosecutors could only bring one case, that of Andrea Constand.³¹ Although they could not bring charges, several accusers were permitted to testify at Cosby's re-trial about how he had drugged and sexually assaulted them, lending support to Constand's accusations.³²

Historically, U.S. law required "corroborative evidence" such as physical injuries for claims of rape,³³ and even with that evidence, jurors were instructed to regard a victim's testimony with particular caution.³⁴ While these rules have been eliminated or curtailed,³⁵ the criminal justice system continues to impose an informal "credibility discount" on victims in rape cases.³⁶ Some researchers estimate that only 7 to 27 percent of rapes that are reported to law enforcement are prosecuted, and only 3 to 26 percent result in conviction.³⁷ Surveys reveal that law enforcement officers believe reports of rape are much more likely to be false than reports of other crimes, despite the lack of evidence to support this assumption.³⁸ The criminal justice system imposes a particular credibility discount on "women of color, immigrants, LGBTQ individuals, women in poverty, and sex workers."³⁹ Even prosecutors who do not personally discount the credibility of survivors may decide not to bring cases because they predict that jurors will not believe survivors.⁴⁰ One of Harvey Weinstein's accusers caught Weinstein admitting to sexually assaulting her on tape, yet prosecutors still thought there was not enough evidence to bring a case.⁴¹

While U.S. rape law once turned on the victim's chastity, inquiries into the victim's sexual history are now barred by evidentiary rules called "rape shield laws."⁴² And yet defense lawyers can still "re-victimize the complainant through subtle, but still dehumanizing, cross-examinations" about the victim's dress and behaviors leading up to the rape, implying that the victim was to blame.⁴³

Studies demonstrate that sexual assaults are the most underreported of all serious crimes.⁴⁴ As the #WhyIDidntReport discussion revealed, survivors have many reasons for not coming forward, including concerns that they will be not be believed by police and fear of reprisals from their perpetrators and communities.⁴⁵ Consider Maryville, Missouri, where, in 2012, after a 14-yearold girl reported that she had been raped by a 17-year-old football player, the girl's family was subjected to vitriolic harassment, her mother was fired from her job, and the family's home was burned down under suspicious circumstances.⁴⁶ While rape is no longer a crime punishable by death, a punitive movement in criminal justice reform has succeeded in implementing draconian penalties for those convicted of sex offenses, such as onerous public registration requirements.⁴⁷ Some opposition to rape reform today is driven by legitimate concerns about these draconian penalties, as well as the general dysfunction of the U.S. criminal justice system in terms of dramatic racial disparities, stark class biases, and mass incarceration.⁴⁸ The image of the assailant that underlies punitive reforms is that of a predatory stranger, rather than the more common experience of rape by intimates and acquaintances.⁴⁹ This view may paradoxically make efforts to recognize abuse more difficult. For example, for decades, Bill Cosby's accusers "were met, mostly, with skepticism, threats, and attacks on their character," perhaps because of Cosby's sitcom image as America's dad.⁵⁰ And one curious aspect of the Larry Nassar case is that gymnasts had long been reporting his sexual abuse, but because it was difficult to square their stories with Nassar's generous personality and effective medical care, the gymnastics community did not turn against him until a police officer found his cache of child pornography.⁵¹

The #MeToo movement has drawn attention to the lack of resources devoted to rape and sexual assault by law enforcement.⁵² A 1994 federal law, the Violence Against Women Act (VAWA) provides funding to law enforcement agencies, courts, and private organizations to address domestic and sexual violence.⁵³ These funds have supported the creation of special law enforcement units devoted to sexual violence, services for victims, and community education, among other things.⁵⁴ VAWA requires that state and local governments pay for sexual assault survivors to undergo forensic medical examinations to collect DNA, photographic, and other evidence.⁵⁵ This evidence is stored in containers known as "rape kits."⁵⁶ Because sexual assault investigations were not...