The impact of rape law reform on the processing of simple and aggravated rape cases.

• Author: Spohn, Cassia C.

1. Introduction

   There has been significant change in the laws and the rules of evidence relevant to the crime of rape during the past two decades. Reformers criticized traditional rape laws that defined rape narrowly, these laws would require both proof that the victim resisted her attacker and corroboration of the victim's testimony.(1) The defense could use evidence of the victim's past sexual behavior to prove that she consented, or to impeach her credibility.(2) Critics charged that these laws shifted the focus of a rape case from the behavior of the offender to the character and behavior of the victim. They argued that the laws discouraged rape victims from reporting the crime to the police and erected significant barriers to the successful prosecution of rape cases.(3)

   In response to these concerns, states enacted a variety of reforms.(4) Some states replaced the single crime of rape with a series of gender-neutral offenses defined by the presence or absence of aggravating circumstances such as use of a weapon, injury to the victim, or commission of a contemporaneous felony.@ Many states eliminated legal requirements that the victim physically resist her attacker and that her testimony be corroborated.(6) Most states also enacted rape shield laws restricting the use of evidence of the victim's reputation or past sexual behavior.(7)

   Reformers predicted that these legal changes would produce a number of instrumental effects. They expected the new laws to improve the treatment of rape victims and thus to prompt more rape victims to report the crime to the police.(8) They also predicted that broadening the definition of rape and changing the rules of evidence applied in rape cases would make arrest, prosecution, conviction, and incarceration for rape more likely.(9)

   Studies evaluating the impact of the rape law reforms suggest that reformers' expectations were overly optimistic. Most of these studies have not found the anticipated effects on reports of rape or the processing of rape cases, although two studies found that the reforms enacted in Michigan led to increases in the number of arrests and convictions for rape.(10) Studies conducted in King County (Seattle), Washington,(11) California,(12) and Nebraska(13) found that the legal changes did not produce the expected results. Our study of the impact of rape law reform in six jurisdictions(14) similarly found minimal effects. We used time-series data to evaluate the effect of the reforms on reports of rape and the processing of rape cases in Detroit, Chicago, Philadelphia, Atlanta, Houston, and Washington, D.C. We found that the reforms produced significant effects only in Detroit, and even there the impact was limited. The strong and comprehensive reforms enacted in Michigan resulted in an increase in the number of reports of rape and in the percentage of cases bound over for trial, but had no effect on the conviction rate or sentencing.

   The results of these studies suggest that changing the definition of rape and the rules of evidence applied in rape cases has not produced the dramatic results anticipated by reformers. It is possible, however, that the reforms have produced more subtle results. The studies conducted to date have evaluated the reforms, impact on the processing of rape cases generally. These studies have not explored the possibility that the reforms have produced changes in the types of rape cases entering the criminal justice system, they also have not explored the possibility that the reforms have had differential effects on rape cases of varying degrees of seriousness.

   Our earlier research on rape law reform in Detroit provides evidence in support of a more subtle impact.(15) In interviews, criminal justice officials suggested that the rape law reforms had increased the likelihood of prosecution and conviction in rape cases in which the victim and the defendant were acquainted@ more generally, they suggested that the odds of successful prosecution of "less serious" or "borderline" rape cases had improved in the post-reform period.

   These speculations were partially confirmed in a follow-up study examining the characteristics of rape cases bound over for trial in Detroit from 1973 through 1984.(16) We compared pre- and post-reform cases and found that a larger proportion of the post-reform cases involved questions about the victim's moral character, evidence of risk-taking behavior by the victim, and a victim and offender who were acquainted. We concluded that these changes reflected changes in the types of cases reported to the police, as well as changes in the screening criteria used by police and prosecutors.

   In this Article we continue our search for more subtle impact by comparing the types of cases bound over for trial in Detroit Recorder's Court in the pre-reform and post-reform periods and by examining case outcomes for different types of rape cases in the two time periods. In doing so, we rely on the distinction made by Kalven and Zeisel(17) and by Estrich(18) between "simple" and "aggravated" rapes. Aggravated rapes are incidents involving extrinsic violence, multiple assailants, or no prior relationship between victim and offender; simple rapes are incidents with none of these aggravating circumstances.

   Both Kalven and Zeisel and Estrich assert that aggravated and simple rape cases are treated differently by the criminal justice system.(19) Kalven and Zeisel, for example, found jury conviction rates nearly four times higher in aggravated than in simple rape cases.(20) They also found that judges were much more likely to disagree with jury verdicts in simple rape cases, believing that juries in these types of cases relied too heavily on victim characteristics and often acquitted in spite of sufficient evidence to convict.(21)

   Estrich similarly maintains that the handling of rape cases depends upon the type of rape@ simple rape cases are less likely to be reported to the police, less likely to be prosecuted, and less likely to result in a conviction.(22) She argues, in fact, that historically the processing of rape cases has not been characterized by indiscriminate sexism, but that there has been and is.

   a far more sophisticated discrimination in the distrust of women victims: all women and all rapes are not treated equally. As the doctrines of rape law were developed in the older cases, distinctions were drawn, explicitly and implicitly, between the aggravated, jump-from-the-bushes stranger rapes and the simple cases of unarmed rape by friends, neighbors, and acquaintances. It was primarily in the latter cases that distrust of women victims was actually incorporated into the definition of the crime and the rules of proof.(23)

   Estrich also suggests that traditional rape law provisions represented a set of clear presumptions applied against the woman who complains of simple rape."(24) She argues that because the essential features of aggravated rape cases - an attack by a stranger, multiple assailants, the use of a weapon, or injury to the victim - met the requirements of "real rape," there was no reason to distrust the victim in these cases.(25) If the rape was a "real rape," in other words, it was less likely that the prosecutor or judge would demand proof that the victim physically resisted her attacker, require corroboration of her testimony, or allow the defense to introduce evidence of her past sexual behavior.(26)

   If Estrich is correct, then it follows that most of the rape law reforms have been directed at simple rape cases, and thus the greatest impact should have been felt in these cases. In our previous six city study, we assessed the reforms, impact only in terms of overall numbers of reports and rates of prosecution, conviction, and incarceration; we were not able to compare case outcomes for different types of rape cases. More to the point, we were not able to compare case outcomes for aggravated and simple rape cases in the pre- and post-reform periods.

   In this Article, we use data on the characteristics of rape cases bound over for trial in Detroit Recorder's Court to test the hypothesis that the rape law reforms have had a significant effect on the processing of simple (but not aggravated) rapes. More specifically, we test the hypothesis that the proportion of simple rape cases bound over for trial will be greater in the post-reform period than in the pre-reform period. We also test the hypothesis that simple rape cases will be taken more seriously in the post-reform period. We hypothesize that simple rape cases will be less likely to be dismissed, more likely to result in a conviction, and more likely to result in a severe sentence in the post-reform period than in the pre-reform period. Because we believe that aggravated rapes have always been taken seriously, we do not expect to find similar changes for aggravated rape cases.

   We suggest that the rape law reforms have blurred the distinctions between simple and aggravated rape cases. We argue that simple rape cases were treated differently than aggravated rape cases in the pre-reform period, but that these differences have diminished in the post-reform period. Accordingly, we hypothesize that the degree of aggravation" will have less impact on the outcome of rape cases in the post-reform period than in the pre-reform period.

2. Rape Law Reform in Michigan

   We focus on the impact of reforms enacted in Michigan. Of the six jurisdictions included in our earlier study, Michigan adopted the strongest and most comprehensive reforms.(27) In fact, the comprehensive Michigan statute implemented in 1975 is regarded by many as a model rape reform law.(28)

   The Michigan statute redefines rape and other forms of sexual assault by establishing four degrees of gender neutral criminal sexual conduct based on the seriousness of the offense, the amount of force or coercion used, the degree of injury inflicted, and the age and incapacitation of the victim.(29) The...