RAPE IN THE CIVIL AND ADMINISTRATIVE CONTEXTS: PROPOSED SOLUTIONS TO PROBLEMS IN TORT CASES BROUGHT BY RAPE SURVIVORS.

• Author: Slyder, Leah M.

CONTENTS INTRODUCTION I. OVERVIEW OF CRIMINAL LAW AND JUDICIAL PROCESS ON RAPE AND SEXUAL ASSAULT II. A POSSIBLE SOLUTION: A HISTORY OF CIVIL CLAIMS RAPE III. ADVANTAGES OF BRINGING A TORT SUIT IV. ISSUES ARISING OUT OF CIVIL CLAIMS A. Tort Defenses B. Procedural Barriers to Survivors' Recovery C. Societal Costs V. PROPOSED CIVIL AND ADMINISTRATIVE REFORMS A. Model Civil Sexual Assault Statute B. Administrative System Alternative 1. Existing Administrative System 2. Problems With Existing Victim Compensation Schemes 3. Model Administrative Remedy C. Comparison Between Model Civil Statute and Model Administrative System CONCLUSION INTRODUCTION

On August 26, 2016, Jane Doe filed suit in the Superior Court of the State of California for the County of Los Angeles, alleging that she was raped by then New York Knicks player Derrick Rose and two of his friends. (1) Doe sued for $21 million in damages. (2) Doe and Rose had dated and been sexually involved on and off for two years prior to the alleged rape, (3) but Doe ended their relationship because she refused to engage in group sexual acts with Rose and two of his friends. (4)

Doe had been drinking the night of the alleged rape. (5) All of the parties admitted that the sexual intercourse occurred, so the primary issue at trial was consent. Doe alleged that she was incapacitated by drugs and alcohol at the time and, as such, was unable to give consent, while the defendants argued that all of the sexual activity that night was consensual. (6) But, in his deposition, Rose admitted that he did not understand the meaning of the word consent. (7)

On the night of the alleged assault, Doe and Rose exchanged a series of sexually explicit text messages. In Rose's deposition, when asked if there was anything in those messages that made him believe that Doe wanted to have sex with him and two friends, he said no. (8) Nevertheless, Rose and the two other defendants described having consensual sexual encounters with Doe, but Doe testified that her memory of the night was clouded because she had been drinking and believed she may have been drugged. (9) Later that night, Doe returned to her apartment and passed out in her bedroom. The men later entered her apartment in the early morning and claimed that Doe welcomed each defendant into her bedroom individually. Doe testified that she did not let them in and that while she was incapacitated, the defendants had sex with her. (10)

Doe sued under a pseudonym to protect her anonymity due to the potential media attention she expected the case to draw--as Rose was a professional basketball player--and because she was concerned about the effect the case would have on her family. (11) She was ordered by the trial judge to disclose her name. (12) Rose argued that interviews and press conferences that Doe had conducted with the media showed that she had willingly placed herself in the spotlight and thus she did not deserve anonymity. (13) Doe argued that talking with the media was only necessary due to statements by Rose and his lawyers to the media that were designed to make her look bad. (14)

The judge also ruled that evidence of Doe's sexual history with the defendant and with other men was admissible because the plaintiff had voluntarily raised issues of her prior sexual history in her complaint, and the defendants should have the opportunity to negate her claims by using this evidence. (15) While the civil suit was ongoing, Doe reported the incident to the Los Angeles Police Department and the police were conducting an active criminal investigation against all three defend ants. (16) In the criminal investigation, Doe was allowed to proceed using a pseudonym. (17)

After a two-week trial, the jury determined that all three men were not liable. (18) Shortly thereafter, Doe filed an appeal, alleging that the judge erred in failing to exclude certain testimony and in ruling that other evidence was inadmissible at trial. (19) Doe argued that the judge abused his discretion by misapplying the rape-shield law to her civil case. More specifically, Doe contended that "the judge should have excluded testimony by the Knicks point guard and his friends who said the woman willingly engaged in sex with them earlier in the evening at Rose's house because it was irrelevant to the later incident." (20) After Doe filed her appeal, Rose's lawyers asked the judge to award $70,000 in court expenses and wrote that an appeal would be "meritless, frivolous, and sanctionable." (21)

Doe's story is not unique. Although one of her alleged assailants was famous and her case was followed closely by the media, many women (22) who are raped face similar challenges in civil suits. Increasingly, women across the country have begun to file civil suits against their alleged rapists, either in addition to, or instead of, filing criminal charges. (23) However, women who are sexually assaulted face immense obstacles in attempting to vindicate their rights, either through conviction of their attackers in the criminal setting or through recovery of damages in civil suits. As in the Rose case, the issue of consent is most often the survivor's greatest challenge. However, other issues such as the identity of the defendant, the survivor's past sexual history, the desire to stay anonymous, and the prevalence of rape myths and victim blaming within the legal doctrine of rape can also play a role.

More recently, countless women have come forward accusing male celebrities or men who occupy positions of power of rape. (24) Some of the men accused include Harvey Weinstein, (25) James Franco, (26) Louis C.K., (27) Matt Laur, (28) Larry Nassar, (29) Senate Candidate Roy Moore, (30) Senator Al Franken, (31) and President Donald Trump. (32) Still other women have brought suits against third parties, such as universities or athletic associations, that allowed their rapes to occur. (33) There seems to have been a tipping point and rape survivors are finally coming forward to tell their stories. (34) More than ever, this country needs a solution for the issue of sexual violence against women.

This Note will argue that civil suits brought by rape survivors against their attackers are ultimately an ineffective alternative to the criminal justice system in solving this problem. While at first they may seem appealing, these suits raise many of the same problems as found in criminal cases. Accordingly, an administrative system designed to compensate survivors for the harm that they have suffered as a result of having been raped is a necessary alternative to the civil system. Such an administrative system is necessary in order to effectively compensate survivors and to facilitate their recovery in the aftermath of their rape.

Part I of this Note will give a brief overview of the problems of underreporting and under enforcement of sexual assault in the criminal context as well as the factors in the criminal justice system that have led to these results. Part II will address the history of civil claims brought by rape survivors against both their attackers and against third parties. Part III will address the potential benefits of using civil, rather than criminal, cases to deter violence against women and as a potential alternative to the criminal system in the context of rape. Part IV will explain the problems that arise in using civil claims, some of which carry over from the criminal law and others uniquely challenging in tort cases. Part V will propose potential solutions to many of the problems in civil suits, first creating a distinct civil cause of action for sexual assault, and second, creating an administrative system that would allow survivors to recover damages for the harm that they have suffered. Part VI will compare the benefits and detriments of these two proposed solutions and will suggest the best course of action in creating reform to benefit survivors of sexual assault outside of the criminal justice system.

1. OVERVIEW OF CRIMINAL LAW AND JUDICIAL PROCESS ON RAPE AND SEXUAL ASSAULT

   Sexual assault is one of the most underreported crimes of violence. (35) Many have endeavored to explain why--in much more detail than can be explained within the scope of this Note--but there are at least three primary reasons why rapes are underreported. First, rape survivors feel revictimized by the criminal justice system. Second, survivors feel ashamed and may blame themselves for their own assaults because of the way that survivors are perceived by society. Third, survivors fear retaliation by their assailants. This Note will address each of these issues in turn.

   First, rape survivors feel victimized by the criminal justice system itself, on top of the victimization they feel as a result of having been raped. (36) Survivors are often not believed or are dismissed by police and by prosecutors. (37) "Pursuing a rape complaint under the best of circumstances has unique costs; pursuing it where the prosecutor seems to think that the crime is not serious or will not result in serious punishment or does not deserve his attention may be more than most women can endure." (38)

   Many women want to avoid repeatedly explaining their assaults in excruciating detail to police, prosecutors, medical examiners, and jurors and as a result may choose not to report the crime to police. By any estimate, less than fifty percent of rapes are reported to police. (39) Even if reported, a rape is unlikely to result in an arrest. If the police do make an arrest, prosecutors may refuse to prosecute the case. Even if the prosecutor tries to prosecute the case, it is unlikely to result in conviction, and even if the defendant is convicted, he may not serve any time in prison. (40) If a rapist serves any time in prison, his sentence is often minimal, which has led to public outrage and criticism. (41)

   Only one in seven reported rapes results in a conviction. (42) Thirteen percent of rapists who are convicted are...