The subject of acquaintance rape has garnered a tremendous amount of publicity in recent weeks. This type of sexual assault is far and away from 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 they 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 effect.
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 juror 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 ashamed, 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 destroy a witness's 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 mythology has built around the pervasiveness of these drugs. Study after study reveals 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 accused 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 commonwealth 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.