Rape in the criminal justice system.

Author:Bryden, David P.

I. Introduction

Modern rape scholarship has been informed by a number of empirical

premises concerning the operation of the criminal justice

system in rape cases. The most fundamental of these premises is that the

justice system discriminates, at every stage, against rape victims.(1) The

details of this charge can be briefly summarized. To begin, the case

attrition rate in rape cases is shockingly high, and very few rapists are

convicted of the crime.(2) Victims often do not report the rape, largely

because they fear overbearing, hostile police,(3) and -- should a trial ensue

-- vicious attacks on their character.(4) Although false reports of

rape are no more common than of other crimes,(5) justice system

officials are highly skeptical of women who claim to have been raped by

acquaintances.(6) If the rape victim's conduct prior to the crime

violated traditional sex-role norms, police commonly disbelieve her

report or blame her for the rape.(7) Thus, officials deny justice to women

who have engaged in nonmarital sex,(8) or other "improper" activities

such as heavy drinking or hitchhiking.(9) None of these sex-role-norm

violations is relevant to whether the woman was raped,(10) but the

norms are enforced because they serve to keep women in their place(11)

and because the men who control the justice system are irrationally

obsessed with the danger of false rape accusations.(12)

Afraid that losing cases will look bad on their records,

prosecutors are excessively reluctant to prosecute acquaintance rapists.(13)

When they do prosecute, the system puts the victim rather than the

defendant on trial.(14) Juries, motivated by the same biases as other

participants in the system,(15) often blame the victim and acquit the


Most rape scholars believe that, in large measure, these travesties

of justice have been due to rules of law, fashioned by male judges over

the centuries, that promote victim blaming.(17) Among the foremost

such rules were the requirements that the victim resist her attacker(18)

and that her testimony be corroborated by other evidence.(19) The

"cautionary instruction,"(20) warning the jury about the danger of false

rape accusations, has been another impediment to justice in rape

cases.(21) According to some scholars, the very name of the crime

"rape" has perpetuated subtly harmful myths such as the idea that the

perpetrator's motivation is sexual rather than violent.(22) Worst of all,

the rule allowing testimony and cross-examination about the woman's

sexual habits(23) distracted the jury's attention from the defendant's

behavior, and often led to unjust acquittals.(24)

Most scholars have contended that, although attitudinal changes

are also necessary, law reforms can play a major role in eliminating

discrimination against victims.(25) By changing the name of the crime

to "sexual assault" or some similar term,(26) legislatures can help to

make the public aware that the crime is motivated by a desire to

dominate women, not sexual hunger, thus reducing public sympathy for

the perpetrator.(27) By abolishing rules of rape law that embody sexist

assumptions, courts and legislatures can encourage victims to report

the crime, combat anti-victim stereotypes that pervade officialdom,

and empower prosecutors with the legal tools to secure convictions.(28)

Not every rape scholar has explicitly subscribed to every count of this

indictment, but its main propositions have been the conventional


Since the 1970s, most states have responded to this critique by

enacting several reforms of their rape laws.(29) As one commentator

notes, "[t]hese changes represent a shift away from laws containing

misogynist assumptions and reflecting societal skepticism about the

seriousness of rape and the veracity of women's accusations."(30) For

example, the corroboration requirement is gone;(31) Many states have

eliminated the cautionary instruction;(32) and rape shield laws, with varying

degrees of success, have restricted inquiries into the victim's sexual

history.(33) In many states, rape has been redefined as "sexual

assault" or some similar term, in an effort to emphasize that rape is a

crime of violence and not due to an uncontrollable sexual passion.(34)

These reforms had multiple purposes. In part, they were

designed to alleviate victims' ordeals during rape investigations and

trials.(35) Another purpose was symbolic and educational: to abolish

rules that were thought to embody sexist assumptions.(36) The

reformers' main goals, however, seem to have been instrumental: to

encourage reporting of rapes, and to facilitate prosecution of the


There is growing evidence that, while die performance of the

justice system in rape cases may have improved,(38) the legal reforms have

generally had little or no effect on the outcomes of rape cases, or the

proportions of rapists who are prosecuted and convicted.(39) What explains

this failure? Some scholars believe that the original rape law

reforms were too modest. These scholars have proposed new reforms,

a process that continues to this day. Among these "second wave" reforms

have been proposals to base rape liability on negligence(40) or

even strict liability;(41) to redefine the crime as non-consensual sex,

eliminating "force" from the definition;(42) and to require that the

woman's consent be affirmatively given in advance of the sexual act.(43) So

far, most of these proposals have not been widely adopted.

The purpose of this article is not to offer new ideas for improving

rape law. We believe reforms need to be grounded in accurate

perceptions of social reality, including a realistic understanding of the

reasons why criminals escape justice and an awareness of the

limitations of legal doctrines as instruments for changing case outcomes.

Accordingly, our aim is to lay a foundation for discussion of reforms

by reexamining the two central tenets of the rape law reform

movement: (1) that discrimination against rape victims pervades the

criminal justice system, and is the main reason why few rapists are

punished; and (2) that die outcomes of forcible rape cases can be

substantially changed by abolishing rules of law that are thought to

foster such discrimination. In our judgment, a through analysis of

these assumptions is a prerequisite to intelligent evaluation of new

proposals for rape law reform.

Like most rape scholars, we will confine our discussion to

forcible, heterosexual rapes.(44) We will not consider sentencing practices, a

complex topic that would lead us far afield.

Does the social-scientific evidence vindicate or refute claims of

bias against victims? In Part I we discuss this question in specific

institutional settings, beginning with reporting of rape and continuing

through evaluation of rape complaints by police, prosecutors, and

juries. If anti-victim biases are indeed prevalent, have law reforms

mitigated the problem? When objectionable laws are repealed or

modified, do more victims report rapes, do prosecutors file more

charges, and are juries more willing to convict? If not, why not? In

answering these questions, we we analyze data from the latest

social-scientific research.

In Part II, we consider the problem of bias from a different

perspective, focusing on three pervasive questions that recur in every

institutional context:

1. How common are false reports of rape? Most academic

discussions of this subject are cursory and tendentious. The prevalent

assumption is that only a negligible proportion of rape reports are false.

On that assumption, skepticism towards putative rape victims is hardly

ever justifiable. But does the assumption rest on a solid empirical

foundation? Here again we analyze social-scientific findings that have

not yet been discussed by legal scholars.

2. To what extent is the difficulty of securing convictions in

acquaintance rape cases due to the prosecution's burden of proof. In

other words, how often is leniency towards accused rapists attributable

to genuinely reasonable doubts about the defendant's guilt, rather

than unfair biases of police, prosecutors, and jurors? This difficult

issue, though almost totally ignored in the rape literature, is central to

an appraisal of the functioning of the criminal justice system in rape

cases -- not only the fact-finder's decision, but also the decisions of

police and prosecutors, who often decline to pursue cases that they

regard as unprovable.(45)

3. In an acquaintance rape case, does evidence that discredits the

alleged victim's character have genuine probative value in

determining whether the sexual encounter was consensual? Many scholars

have discussed the relevance of evidence about the complainant's

sexual history, particularly in connection with rape shield laws.(46) We will

broaden the inquiry to include other types of evidence commonly

used to discredit rape victims' characters.

Observers agree, for example, that juries tend to acquit men

accused of raping women who violate sex-role norms by engaging in

casual sex.(47) Is this because jurors are unfairly biased against such

women, or because in such cases die defendant's claim that the

woman consented is often plausible enough to raise a truly reasonable


Similarly, rape scholars report that, if the defendant and his

accuser had previously been lovers juries are extremely reluctant to

convict him.(48) Is this because jurors harbor prejudices against

nonmarital sex, or is it because in this type of case the defendant's version

of events -- seduction rather than rape -- is more likely to be plausible?

Our discussion of these issues will introduce the concept of

"ambiprobative evidence," which, we believe, sheds new light on all of

the major types of evidence used to discredit rape victims, from

promiscuity to mental instability to hitchhiking or drunkenness.

Assuming that evidence of the woman's "misconduct" is

irrelevant to the defendant's guilt, we conclude by considering whether


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