To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials

Article excerpt

All the world's a stage, And the men and women merely players: They have their exits and their entrances; And one [wo]man in [her] time plays many parts. (1)

Jacques' observation in Shakespeare's As You Like It describes the typical rape and sexual assault trial in the United States. The complainant (2) plays many different characters throughout the course of the trial. Prewritten cultural scripts dictate her (3) lines. The setting is both the courtroom and the scene of the alleged rape as imagined by the jury. Unique to a rape "play," however, an accuser cannot be sure which role the jury will assign to her by the time it begins its deliberations. Is she to be cast as a whore? (4) A vengeful liar? A tease? Mentally unstable? If she has the "proper" background and the defendant is a stranger, can she play the role of an innocent Madonna whose perceived purity may result in the rarest of events: a guilty verdict?

While every trial has elements of theater, (5) rape and sexual assault cases are unique because they emphasize the gender performances of the accuser and the accused. Complainants who testify are not just recounting the events of the alleged rape. They are also defining the essential parts of their gender roles for the jury. Every statement, mannerism, action, and emotion of the accuser on the witness stand relays information about her gender to the jury. If the jurors deem a performance too emotional, they may assume the accuser is stereotypically hysterical and unreliable. If, however, she appears cold and calculating, the jury may believe she is a "gold-digger" using the criminal trial as a prequel to a lucrative civil suit. If she shows too much anger (as though it were possible for someone who has been raped to be "too angry"), the jury may see vengeance as her motive for "crying rape." Which predefined gender roles the jury assigns the accuser and accused during the trial are important in determining whose story the jury will ultimately believe.

At its core, a criminal rape trial taps into the linguistically and culturally founded beliefs of the jury in order to reach a desired outcome. In most cases of "simple rape," (6) as Susan Estrich has labeled acquaintance rape, the defense attempts to access certain meta-narratives about sex and rape to convince the jury that the alleged rape event was really consensual sex. These rape myths and the rhetoric of rape and sex, not statutory rules and procedures, are the critical pivot points for shaping the jury's decision. (7) The trial itself is like a play where the actors and their agents fight to define the roles and script utilizing these meta-narratives. As Stephen Schulhofer has written, "[s]ocial attitudes are tenacious, and they can easily nullify the theories and doctrines found in the law books. The story of failed [rape law] reforms is in part a story about the overriding importance of culture, about the seeming irrelevance of law." (8)

The William Kennedy Smith, Jr., Big Dan's Tavern, Central Park "wilding," and Mike Tyson trials, as well as the failed trial of Kobe Bryant, illustrate an important concept of law in America: the roles assigned by the media and jurors to the accuser and accused are fundamental to the outcomes of rape trials. When the defense attorneys for Kennedy Smith, Jr. successfully painted him as a respectable doctor from a good family and his accuser as an unstable money-grubber, the jury found him not guilty. (9) Kobe Bryant's defense team successfully deployed a similar strategy and his case did not even go to trial. (10) In the Big Dan's Tavern trials, the defendants were portrayed as wild Portuguese immigrants who represented a culture built on misogyny. (11) Similarly, the Central Park "wilding" cases were framed less as traditional rape cases than as general acts of violence by Black and Hispanic hordes against innocent, civilized New Yorkers who needed protection. (12) Mike Tyson was the embodiment of the wild man who could not be controlled by society's rules and the prosecution exploited that perception. …