The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2010
• Citation: Vol. 20 No. 3

The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws

Andrea A. Curcio

Introduction

In some states, rape law reformers have successfully lobbied for strong statutory reforms to their state's rape laws.[1] In other states, political compromise has led to weaker and more ambiguous reforms than those proposed by rape law reform advocates.[2] In a few states, such as Georgia, advocates of rape law reform have been unsuccessful in convincing their state legislatures to revise state rape laws. Despite repeated attempts at statutory reform,[3] Georgia's definition of rape has not changed since 1861.[4] The only significant reforms to the Georgia rape law statutes include "a very weak rape shield law [enacted] in 1976, and [the] eliminat[ion of] the corroboration requirement in 1978."[5]

The passage of strong statutory reforms has been a symbolic victory for rape victims. However, even the most radical rape law reforms have not yet produced the desired effects.[6] In both states that have rewritten their rape statutes and states where reformers unsuccessfully lobbied for strong reforms, rape victims are still reluctant to report the crime.[7] Police still fail to investigate many reports or arrest alleged perpetrators.[8] Prosecutors fail to indict suspects, and conviction rates remain low, especially in acquaintance rape cases.[9]

To achieve the goals of failed statutory reform, victims' advocates, even in states that have passed major changes, need to deduce the next step of the reform process.[10] In states where significant rape law reforms repeatedly fail, rape law reform advocates should examine whether the energy devoted to statutory reform might temporarily be better spent elsewhere. This Article addresses how groups of reformers, both in states that have enacted reforms and in states that have not, can improve their handling and processing of sexual assault cases. This Article discusses how the Georgia Supreme Court Commission on Equality ("GSCCE" or "Commission") gathered prosecutors, criminal defense lawyers, victims' advocates, judges, and scholars from across the state to discuss problems with the justice system's processing of adult sexual violence cases. This Article also explains how this gathering led to meaningful suggestions that reformers and legislators can easily implement in Georgia or elsewhere.

Part I of this Article provides an overview of some of the problems facing the criminal justice system when dealing with victims of sexually violent crimes.[11] Part II discusses the major statutory reforms, as enacted in various states, designed to address some of these problems.[12] Part III examines empirical research indicating that the statutory reforms have, at best, been modestly successful in achieving the reformers' goals.[13] Part IV discusses some of the reasons postulated for this lack of success.[14] Part V explains the GSCCE roundtable discussion model used to examine how the justice system could better handle sexual violence cases.[15] Part VI discusses how the roundtable discussion model may be able to solve some of the shortcomings of statutory reform.[16] In conclusion, this Article suggests that all states could benefit by replicating the Georgia model of gathering all those involved in the processing of sexual assault cases to examine problems and devise solutions. The GSCCE's end result was a report entitled: Report of the Georgia Supreme Court Commission on Equality, the Georgia Justice System's Treatment of Adult Victims of Sexual Violence: Some Problems and Some Proposed Solutions ("Report"). This Report is reprinted in the Appendix.

I. Problems Faced by Victims and Prosecutors in Sexual Violence Cases

Reformers cite (1) the under-reporting of sexually violent crimes, (2) the lack of prosecution and convictions of reported rape cases, and (3) the judicial system's treatment of victims of sexually violent crimes as significant problems existing within the justice system.[17]

A. Under-Reporting

Under-reporting is not a problem unique to sexually violent criminal cases. The National Crime Victimization Survey ("NCVS") found that "[o]n average from 1992 through 2000, [only] 57% of robberies and 55% of aggravated assaults were reported to police."[18] However, under-reporting is much more prevalent with crimes of sexual violence. The same NCVS survey found that between 1992 and 2000, only "31% of rapes [or] sexual assaults were brought to the attention of the police."[19]

Among the more commonly cited reasons for a victim's reluctance to report a rape, especially an acquaintance rape, are (1) embarrassment of answering a stranger's questions about what happened; (2) self-blame--feeling that the rape was somehow the victim's fault; (3) fear of an assailant's retaliation; (4) desire to conceal the victim's own behavior before the rape, such as the use of drugs or alcohol; and (5) fear of the societal and official skepticism about the legitimacy of the complaint.[20]

B. The Attrition Rate

Another problem that advocates of rape law reform identify is the high attrition rate of reported cases. Law enforcement agents fail to indict many alleged perpetrators, and even if an indictment occurs, few cases result in convictions and incarcerations. This attrition rate is attributable to numerous factors including: (1) the failure of the police to pursue cases,[21] (2) the prosecutors' decisions not to seek indictments, and (3) the inability to achieve convictions.[22] A U.S. Senate Judiciary Committee report noted "that 98% of rape victims never see their attacker caught, tried and imprisoned.'"[23] The data also suggested a higher attrition rate in cases of acquaintance rape than in stranger rape, both in terms of the police's willingness to pursue the case[24] and the prosecutors' willingness to try the case.[25]

Another reason for the high attrition rate in rape cases is that victims often decide not to pursue criminal prosecution.[26] Studies indicate that this is also the main "reason for dismissals of all felonies except homicide."[27] What the empirical studies fail to reveal is whether rape victims and other felony victims have different reasons for refusing to press charges.[28] Many victims' advocates and scholars believe that the rape victims' unwillingness to prosecute cases is, at least in part, the result of poor treatment by the police and the prosecutors.[29] During interrogations, victims are often asked about "what [they] did, how [they] dressed, and why [they] did not resist more."[30] The tone and content of the police and prosecutors' questions can make a victim feel that she is blameworthy, that she was not really raped, or that she wanted or deserved it.[31] This kind of treatment may affect a victim's willingness to pursue criminal charges. Additionally, contact with the criminal justice system may serve as a reminder of the horror of the event, impeding recovery and making some victims unwilling to proceed.[32] This reaction is more likely in instances when courts repeatedly delay trials, as is common in felony cases.[33]

The victims' reluctance to prosecute is only one reason as to why many rapists are not tried or imprisoned. In many cases, especially those involving acquaintances or alcohol and drug abuse, police are unwilling to arrest alleged perpetrators, and "prosecutors are reluctant to charge and prosecute [the] cases . . . because of the lower rate of convictions."[34] Prosecutors note that persuading a jury to believe the victim in acquaintance rape cases is difficult. This is especially true if the victim and the accused engaged in consensual sex some time before the alleged attack or if the victim behaved in ways that violated societal norms: "being a prostitute, or promiscuous, or a truant or a runaway, frequenting singles bars, hitchhiking, using drugs, drinking heavily, or wearing sexy attire."[35] If prosecutors believe that obtaining a conviction will be difficult, either because of the lack of evidence or because the jury will not find the victim credible, they will often dismiss or plea bargain a case rather than lose at trial.[36]

C. Treatment by the Criminal Justice System

Many sexual assault victims feel mistreated by the criminal justice system.[37] For example, many victims find themselves forced to "reveal intimate, painful details [of their assault] to different prosecutors and different judges."[38] Prosecutors and other officials often subject them to embarrassing or gender-biased remarks.[39] Victims feel that the justice system's lack of respect is also demonstrated by the failure to communicate with them about the reasons for delays in hearings and in trials.[40] These experiences, combined with other factors that make a victim feel she is not believed, such as the fact that in some states prosecutors may require victims to take polygraphs before proceeding,[41] have led to the now-familiar understanding that in rape cases, it is often the victim who is on trial.

II. Reforms Enacted to Address the Problems

In response to these problems, many states enacted statutory changes. As explained in more detail below, the more prevalent reforms include: (1) amending the statutory definition of rape to include a series of gender neutral offenses and updating terminology from rape to sexual assault, sexual battery, or criminal sexual conduct;[42] (2) eliminating the corroboration requirement;[43] (3) eliminating or limiting the resistance requirement;[44] and (4) enacting rape shield laws that restrict the admissibility of evidence regarding the victim's past sexual behavior.[45] Other reforms include changing the statutory age of consent or the penalty structure and eliminating cautionary jury instructions, like those that stress the damage of a rape conviction to the defendant.[46] The drafters hoped these reforms would lead to a greater number of rape reports, arrests, convictions, and prison sentences.

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