Rape in the Criminal Justice System

By Bryden, David P.; Lengnick, Sonja | Journal of Criminal Law and Criminology, Summer 1997 | Go to article overview

Rape in the Criminal Justice System


Bryden, David P., Lengnick, Sonja, Journal of Criminal Law and Criminology


I. Introduction

Modern rape scholarship has been informed by a number of empirical

premises concerning the operation of the criminal justice

system in rape cases. The most fundamental of these premises is that the

justice system discriminates, at every stage, against rape victims.(1) The

details of this charge can be briefly summarized. To begin, the case

attrition rate in rape cases is shockingly high, and very few rapists are

convicted of the crime.(2) Victims often do not report the rape, largely

because they fear overbearing, hostile police,(3) and -- should a trial ensue

-- vicious attacks on their character.(4) Although false reports of

rape are no more common than of other crimes,(5) justice system

officials are highly skeptical of women who claim to have been raped by

acquaintances.(6) If the rape victim's conduct prior to the crime

violated traditional sex-role norms, police commonly disbelieve her

report or blame her for the rape.(7) Thus, officials deny justice to women

who have engaged in nonmarital sex,(8) or other "improper" activities

such as heavy drinking or hitchhiking.(9) None of these sex-role-norm

violations is relevant to whether the woman was raped,(10) but the

norms are enforced because they serve to keep women in their place(11)

and because the men who control the justice system are irrationally

obsessed with the danger of false rape accusations.(12)

Afraid that losing cases will look bad on their records,

prosecutors are excessively reluctant to prosecute acquaintance rapists.(13)

When they do prosecute, the system puts the victim rather than the

defendant on trial.(14) Juries, motivated by the same biases as other

participants in the system,(15) often blame the victim and acquit the

rapist.(16)

Most rape scholars believe that, in large measure, these travesties

of justice have been due to rules of law, fashioned by male judges over

the centuries, that promote victim blaming.(17) Among the foremost

such rules were the requirements that the victim resist her attacker(18)

and that her testimony be corroborated by other evidence.(19) The

"cautionary instruction,"(20) warning the jury about the danger of false

rape accusations, has been another impediment to justice in rape

cases.(21) According to some scholars, the very name of the crime

"rape" has perpetuated subtly harmful myths such as the idea that the

perpetrator's motivation is sexual rather than violent.(22) Worst of all,

the rule allowing testimony and cross-examination about the woman's

sexual habits(23) distracted the jury's attention from the defendant's

behavior, and often led to unjust acquittals.(24)

Most scholars have contended that, although attitudinal changes

are also necessary, law reforms can play a major role in eliminating

discrimination against victims.(25) By changing the name of the crime

to "sexual assault" or some similar term,(26) legislatures can help to

make the public aware that the crime is motivated by a desire to

dominate women, not sexual hunger, thus reducing public sympathy for

the perpetrator.(27) By abolishing rules of rape law that embody sexist

assumptions, courts and legislatures can encourage victims to report

the crime, combat anti-victim stereotypes that pervade officialdom,

and empower prosecutors with the legal tools to secure convictions.(28)

Not every rape scholar has explicitly subscribed to every count of this

indictment, but its main propositions have been the conventional

wisdom.

Since the 1970s, most states have responded to this critique by

enacting several reforms of their rape laws.

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