The subject of acquaintance rape has garnered a tremendous amount of publicity
in recent weeks. This type of sexual assault is far and away the most
prevalent rape scenario. 84% of women who were raped knew their assailants.
5% of all college women are victimized in any given year, meaning that
over 4 years of college one-fifth to one quarter of college women may
be sexually assaulted before the graduate.
The Bill Cosby accusations have brought attention to drug facilitated sexual
assault. Similarly the events at UVA highlight the terror and tragedy
that sadly befalls many college women. Social media and polls reflect
a strong public outcry for local prosecutors to bring these offenders
to justice and to take these cases to trial. However, prosecutors are
understandably reluctant to take un-winnable cases in front of a jury.
Here are five very practical reasons why prosecutors have a difficult
time proving rape cases.
1. HE SAID/SHE SAID DOESNT EQUAL BEYOND A REASONABLE DOUBT - In many rape
cases there are only two witnesses to the crime—the victim and the
defendant. When a trial boils down to the believability of one uncorroborated
witness, the skill sets of the opposing attorneys can be the differentiating
factor between guilt or innocence. Also, rape victims are frequently unconvincing
witnesses. Myths surrounding the "typical" reaction of a rape
victim hurt prosecutions. Some jurors believe that all rape victims should
behave a certain way. If a witness doesn't shed enough tears, jurors
may consider her to be callous or capable of fabricating the facts surrounding
an alleged assault. An experienced defense attorney can unravel a prosecution
when the key witness presents an unconventional affect.
2. SKEPTICAL JURORS - People have very strong preconceptions about sexual
interactions between men and women. Jurors view rape evidence in the context
of their personal experience and beliefs. Despite politically correct
conversations to the contrary, people hold a wide variety of ideas about
motives women have to fabricate rape accusations. Although statistics
indicate that nearly a quarter of all college women have been sexually
assaulted, some people are skeptical of any uncorroborated sexual assault claim.
No one asks a robbery victim what she did to invite that crime. However
many factfinders are critical of the decisions a rape victim made prior
to an alleged assault. I've interviewed jurors that assert, "she
(the victim) put herself in that position" I've seen inexperienced
prosecutors try to exclude male jurors to avoid these verdicts. In actuality,
my experience and national statistics reveal that female jurors above
35 years of age are the toughest demographic for prosecutors in rape cases.
Older women are often harsh judges of sexual assault victims.
3. THE SVU / CSI EFFECT - In previous posts, I discussed prosecutors fears
of pursuing cases without definitive forensic evidence. When a woman reports
an incident of rape police usually have her submit to a medical rape examination
by a specially trained nurse. Contrary to common belief, these medical
exams rarely provide any indication as to whether consensual or even non-consensual
sex occurred. Additionally, most sexual assault victims do not physically
resist their attackers. 70% of rape victims receive no physical injury
during rape. Only 4% of victims suffer significant injuries.
The untrained public expects all rape to occur in very specific preconceived
scenarios. Accordingly, jurors often want evidence of physical injury.
They perceive those injuries as necessary proof of the victim's lack
of consent. They often equate the victim's injuries with her level
of resistance, which they in turn take to be a measure of the rapist's
use of force. Absent proof of injury some jurors will not convict.
4. DELAYED REPORT - There are many reasons why a rape victim might not
immediately report a sexual assault. Rape victims feel shamed, scared,
or a wronged sense of responsibility for the crime. Frequently victims
do not even understand that what happened to them was in fact a criminal attack.
Many judges and jurors see delay completely differently. Some view the
delay as a function of the witness refining a motive and fabricating a
story. A time lapse in reporting an assault often destroys a witnesses
credibility because the hesitation usually results in a permanent loss
of forensic or medical information to corroborate her story. Delayed reports
are another scenario where a phenomenon (hesitation) has a statistical
studied explanation that runs contrary to myths and common public understanding.
5. THE MYTH OF DATE RAPE DRUGS - Date rape drugs and roofies are at the
heart of the Cosby case and makeup the plotline in many television dramas.
Drug facilitated sexual assault is real but a mythology has built around
the pervasiveness of these drugs. Study after study reveal that rape victims
rarely test positive for Rohypnol, GHB or ketamine. Dr. Susan R.B. Weiss
the associate director for scientific affairs for the National Institute
on Drug Abuse at the National Institutes of Health, says that, "drugs
that are sedating drugs or incapacitating drugs probably are not that
common in sexual assault."
Prosecutions for date rape are more frequently weakened by the presence
of alcohol and voluntarily used recreational drugs. Quite a few sexual
assault victims lie about using drugs. One national study showed that
only 25% of accusing sexual assault witnesses who tested positive for
drugs such as cannabis, amphetamines and heroin admitted taking them.
There may be a number of reasons why a victim of rape might not want to
admit drug use. Nonetheless, victims of apparently real assaults lie about
drug use or something being put into their drink. An experienced defense
attorney can sink a rape prosecution by showing that the victim lied to
investigators about drug use.
Alcohol is an even more damaging scenario. Alcohol indisputably impacts
judgment and memory. More than 75% of college students who experience
unwanted intercourse are under the influence of alcohol or drugs at the
time of the incident. The presence of alcohol hampers prosecutions in
several ways. First, some fact finders hold on to antiquated views that
drunk women invite danger. Second, an intoxicated witness may have memory
or recall problems that prevent them from accurately testifying about
crucial details. Finally, some jurors may consider that an alcohol fueled
tryst is more likely consensual drunken sex where the female has remorse
rather than being the victim of a criminal assault.
RAPE CASES PRESENT UNIQUE PROSECUTORIAL PROBLEMS: In most Virginia jurisdictions
prosecutors are specially assigned and receive national training prior
to handling sexual assault cases. The result is that commonwealths attorneys
in these cases are uniquely qualified to address the challenges presented
in acquaintance rape trials. A person charged with one of these crimes
should consult with an attorney that recognizes the distinctive issues
present in any acquaintance rape case.