This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. CHAPTER I DETOURS ON THE ROAD TO EQUAL JUSTICE: A CASE STUDY OF RAPE Try to imagine a legal system in which robberies of retail stores are treated seriously, but robberies of homes are not considered "real" crimes. Try to imagine a legal system predicated on the notion that robbery victims are likely to lie about whether the crime really occurred, or that renders the financial history of a robbery victim a central issue at trial. This is a fictional world for the victims of robbery. For the survivors of rape and family violence, it is all too real -- it is the criminal justice system of the United States, today, in 1993. Over a year ago, the Judiciary Committee issued a Report that surveyed state rape laws. It documented how "traditional State law sources of protection have often proven to be difficult avenues of redress for some of the most serious crimes against women." We found that, despite some reforms, serious legal barriers remained where women sought the prosecution of an attacker: "[S]ome States have eliminated entire classes of persons from the scope of rape statutes, or increased burdens on entire classes of people," like women raped by their husbands or children raped by their parents. We found that "women assaulted by sexual means are routinely subject to legal hurdles other victims never face," including requirements, in some cases, of psychiatric exams, polygraph tests, and special cautionary instructions to the jury. (1) These barriers of law, however, pale before the barriers of prejudice faced by women who are raped. Prejudice takes many practical forms in a rape prosecution -- policemen refuse to take a report; prosecutors encourage defendants to plead to minor offenses; judges rule against victims in evidentiary matters; and juries, despite instructions to the contrary, continue to lay the blame on the survivor. At every step of the way, the criminal justice system poses significant hurdles for rape survivors. A. Barriers of Practice: The Toll Ours is a system which responds to victims of rape with suspicion rather than compassion. The figures we release today demonstrate the scope of the failures of practice. They reveal that the detours on the road to a rape conviction are far greater than the detours on the road to a conviction for other violent crimes. We found: * More than half of those arrested for rape will not be convicted, making it 30% more likely that a robber is convicted than a rapist; * Over half of all rape prosecutions result in either a dismissal or an acquittal, almost double the number for murder and almost 30% higher than for robbery; * Almost one quarter of convicted rapists never go to prison, almost another quarter receive sentences to local jails housing minor offenders. This means that almost half of all convicted rapists can expect to receive a sentence of less than a year. B. Barriers of Practice: The Survivors The figures tell only part of the story, though. Not every arrest leads to a prosecution in the case of car theft; not every prosecution leads to a conviction or even a jail sentence in a whole host of criminal cases. But a consistent pattern that diverges from the norm does reveal that, overall, rape is different. Accounts of individual cases are illustrative. In 1993, we would like to believe that our criminal justice system is getting better. The reality is that from the survivor's perspective, the system remains woefully inadequate. In fact, despite decades of legal reform and increased attention to rape, studies indicate that there has been no significant increase in the percentage of rape complaints that result in a conviction, or in arrest rates for rape. (2) One would hope that legal reforms would yield new attitudes as well as new policies. Yet today, we still encounter stories of individual rape cases that horrify. Consider the recent Pennsylvania case in which a young woman was raped in the dorm room of an acquaintance. While the victim testified that she said "no" throughout the incident, the judge ruled that because the dorm room door, although locked, could have been opened from the inside, the victim was technically able to leave the room. The judge ruled that her repeated, "no," was not enough to support a rape conviction. (3) Or, consider the South Carolina case in which a man tied up, blind folded and raped his wife. After being shown a videotape of the incident made by the husband with the woman pleading, "please don't tie me up again, I'll do anything you want me to," a jury acquitted the defendant, concluding that the videotape depicted a "sex game" rather than a rape. (4) Or, consider the case in Texas in which a young woman was raped at knifepoint by an intruder in her home. The first grand jury to hear the case refused to indict because she had tried to protect her life by asking the attacker to wear a condom. (5) Or, again, remember the recent New Jersey gang rape of a mentally retarded woman, where three of the four defendants in the case were convicted of first degree aggravated sexual assault, the most serious charge allowed, and yet were sentenced to a youth camp and are likely to be released in less than two years. (6) C. Barriers of Practice: A Survey Are these cases aberrations? After a survey of rape crisis centers throughout 12 states, we found that, unfortunately, cases like these happen on a daily basis. The old prejudices remain at work creating, one-by-one, the statistics we outline in Chapter II. For example, in our survey, we found cases of police officers who refused to take reports from rape victims, prosecutors who offered plea bargains that resulted in the release of dangerous attackers, and judges who sentenced convicted rapists so they were back on the street in months, often to rape again. These cases reflect a fundamental misunderstanding of the nature of rape -- a failure summed up by a report to committee staff of a county prosecutor's comments to rape crisis counselors that he had never seen a case of "real" rape. We heard stories like these: * An 18-year-old woman is stranded on the highway because of car trouble. A man stops to help and grabs her, trying to get her clothes off. She fights the man off, and he runs. The police officer who responds to the scene initially refuses to help her from the scene of the attack, downplaying her allegations with: "I heard the guy was a little more interested in getting on you than with helping you fix your tire." The officer fails to make a report or investigate the allegation, although the woman has given a description of the attacker. Eventually, as a result of this mishandling, the officer is suspended for six days. * A young woman reports to the police that she was kidnapped and raped by a former boyfriend. He had beaten her in the past, leading to his arrest on at least one occasion. The prosecutor resists bringing rape charges due to the victim's prior relationship with her assailant, and offers the man a plea to reduced charges -- a misdemeanor assault for which the attacker receives a six-month suspended sentence and 18 months probation. Less than a year later, the attacker brutally rapes and almost kills another woman. * A group of young men meet a woman in a bar at night; they surreptitiously slip her a tab of LSD upon leaving the bar. At the home of one of the young men, they slip her four more doses of LSD. The woman is then repeatedly raped with objects as a group cheers and takes pictures, which are later destroyed. One of the assailants stops the attack when someone suggests raping the woman with a statue of Christ. Three of the attackers are given immunity for providing statements helpful to the prosecution; one defendant pleads to evidence tampering and failing to report a rape. The final defendant is convicted of evidence tampering and delivery of illegal drugs; he serves three months of an eight-month sentence in jail, with eight years probation. Not one of the defendants is convicted of sexual assault. * A 30-year-old woman is raped, choked to unconsciousness and stabbed in the throat. She knows the individual who attacked her; he had come to her apartment, and attacked her when she refused to have sex with him. The woman's child finds her in a pool of blood. The defendant is released without bail and continues to harass the victim, despite a court order. The rape and assault case drags on for more than a year, while defense counsel try to interview the survivor's child. At one point, the defense lawyer goes to the survivor's home to persuade her to change her testimony. Eventually, the prosecutor accepts a plea to a lesser sentence of aggravated assault and sexual assault. * A woman breaks off her engagement with a man. Several weeks later, he goes to her house and they get into an argument in his car. She tells the police that he dragged her into the back seat of the car and raped her. After the attack, she goes to the hospital and files a police report. The prosecutor in the case accepts the defendant's plea to "unlawful restraint" -- a fourth degree felony with a two- year sentence -- saying, "it's not like she didn't have sex with him before." The attacker serves six months and one day in jail. * Two women agree to go out for a drink with a man. He says he wants to stop at his house first. Once there, he pulls out a gun and rapes both women, threatening to kill them. The attacker is charged with aggravated sexual assault, but based on the police reports alone, the prosecutor concludes that the case is too difficult to win because the victims had voluntarily decided to accompany the attacker. The prosecutor accepts a plea to a fourth-degree felony -- without consulting the survivors -- and the attacker is given two years probation. Unfortunately, these reports represent only the tip of the iceberg. Independent gender bias studies conducted across the nation conclude almost uniformly that prejudice pervades the system, citing cases similar to the ones we have described.(7) As the Judiciary Committee stated in its report last year, "[s]tudy after study commissioned by the highest courts of the States -- from Florida to New York, California to New Jersey, Nevada to Minnesota -- has concluded that crimes disproportionately affecting women are often treated less seriously than comparable crimes against men." Quoting an expert in the field, we stated then what our survey has again confirmed: "[C]ollectively these reports provide overwhelming evidence that gender bias permeates the court system and that women are most often its victims." (8) D. Barriers of Practice: What Do These Stories Tell Us? These stories portray, all too graphically, how the attitudes of those within the system affect how it works. Official skepticism means that a woman alone on the highway, threatened with attack, is not treated seriously by the police officer who responds to the scene. It means that a man who should be in prison for rape is out on the streets. It means that a prosecutor refuses to take a case because of a victim's social relationship with the offender. Time and again, day after day, victims of rape are victims of our beliefs about rape. We would not tolerate this with any other crime. These stories also help us pinpoint why the system fails. Most violence against women challenges deeply embedded assumptions our society holds about violence. Our stereotype of violence is an attack by a stranger that results in public outcry and vindication by state authorities. But the reality of violence against women is far different. These crimes are most often committed by someone the victim knows, not by strangers. These are crimes that, many times, take place in a home or at a job, as well as in parking garages and on lonely roads. These are crimes that for the most part go unreported, their victims silenced by a belief that they are to blame. It is where the stereotypes we hold about violence diverge from the reality of individual cases, that the system is most vulnerable to failure. Our stereotypes tell us that families are not violent; therefore, when a husband assaults his wife, we tend to ask, why did the survivor stay? Our stereotypes tell us that people do not assault someone they know; when we see that a victim of rape is charging her husband or date, we ask why did she begin or pursue such a relationship? Our stereotypes about violence undeniably shape our response to rape. In the words of one rape survivor, "Rape is the only felony that places the onus on the survivor. If an assailant held you at knifepoint, asked you for your wallet, and you complied, there is no question that a crime was committed. You would not be asked if you had consented. You would not be asked if you tried to resist. Only survivors of rape are asked these questions."(9) These are the wrong questions. But, they are the questions persistently posed to rape survivors by the criminal justice system. In fact, rape is not the only crime that suffers from a failure to meet our stereotypes of violence; and rape survivors are not the only ones who are not treated as crime victims. Other crimes that challenge the same stereotypes pose a significant challenge to our ideas of equal justice. For example, one study indicates that as many as 90% of all family violence defendants are never prosecuted, and one third of the cases that would be considered felonies if committed by strangers are filed as misdemeanors when committed by nonstrangers.(10) Similarly, child sex abuse cases suffer from some of the same difficulties. One county task force reported that, while 60 individuals were sentenced for sexually assaulting children in a year, only one person received a prison sentence.(11) And, a recent National Institute of Justice Study found that "90 percent of all child abuse cases do not go forward to prosecution due to the trauma on the child victim and evidentiary/procedural factors."(12) E. Conclusion In the end, our challenge is as much one of imagination as legislation -- it is a challenge to test our assumptions. We must demand to know why prior sexual history is relevant in a rape case, when prior financial history is irrelevant in a robbery case. We must ask why we doubt that a rape occurred if we know that the victim had something to drink earlier in the evening. We must ask why the clothes a rape victim wears has anything to do with whether she was forced to have sex. We must ask why our criminal justice system continues to disbelieve the survivor. NOTES 1. See Committee on the Judiciary, The Violence Against Women Act of 1991, Report No. 102-197 at 42-46, (October 29,1991). 2. Parrot, Andrea, and Laurie Bechhofer, ed., Acquaintance Rape: The Hidden Crime. New York: John Wiley and Sons, Inc., at 326. (Citing Loh, W.D., "The Impact of Common Law and Reform Rape Statutes on Prosecution: An Empirical Study," Washington Law Review, 1980; and, Polk, K, "Rape Reform and Criminal Justice Processing," Crime and Delinquency, 1985). 3. Commonwealth of Pennsylvania v. Robert A. Berkowitz. Appeal from the Judgment of Sentence May 23,1990, in the Court of Common Pleas of Monroe County, Criminal, No. 241-1988. 4. "Man Cleared of Marital Rape," Washington Post, April 18, 1992, at A2. 5. "Condoms, Consent, and Rape," USA Today. November 2, 1992, at 16A. 6. "Three are Sentenced to Youth Center Over Sex Abuse of Retarded Girl," New York Times April 24, 1993; and, "Four Are Convicted in Sexual Abuse of Retarded New Jersey Woman," New York Times, March 17, 1993. 7. See, e.g., Administrative Office of the California Courts, Judicial Council, Achieving Equal Justice for Women and Men in the Courts" 65 (1990); Colorado Supreme Court Task Force on Gender Bias in the Courts, Gender and Justice in the Colorado Courts (1990); Connecticut Task Force, Gender, Justice and the Courts (1991); Florida Supreme Court Gender Bias Study Commission, "Report" (1990); Supreme Court of Georgia, "Gender and Justice in the Courts" (1991); Illinois Task Force, Gender Bias in the Courts (1990); Maryland Special Joint Committee, "Gender Bias in the Courts" (1989); Massachusetts Supreme Judicial Court, Gender Bias Study of the Court System in Massachusetts (1989); Michigan Supreme Court Task Force on Gender Issues in the Courts, "Final Report" (1989); Minnesota Supreme Court Task Force for Gender Fairness in the Courts, "Final Report" reprinted in Wm. Mitchell Law Review, No. 4 (1989); Nevada Supreme Court Gender Bias Task Force, "Justice for Women"; New Jersey Supreme Court Task Force, "Women in the Courts" (1984); New York Task Force on Women in the Courts, "Report"; Rhode Island Supreme Court Committee on Women in the Courts (1987); Utah Task Force on Gender and Justice, "Report to the Utah Judicial Council" (1990). 8. Committee on the Judiciary, The Violence Against Women Act of 1991, Report No. 102-197 at 43-44 (Oct. 29, 1991). (Quoting Lynn Hecht Schafran in TRIAL. February 1990, at 28.) 9. "Victim tells jurors how life has changed," The Dallas Morning News, May 15, 1993 at 25A. 10. The Urban Institute, Family Violence: A Guide to Research, March 1993, at 41, (Citing Martin, M., Arresting Domestic Violence: A Study of the Connecticut Courts' Response to Mandatory Arrest for Family Violence, Brandeis University, April 1990). 11. The Boulder County Rape Crisis Team, "Sexual Assault in Boulder County, Colorado: The Crimes and Their Consequences," June 17, 1992, at 17. 12. Whitcom, D., Elizabeth R. Shapiro and Lindsey D. Stellwagen, When the Victim is a Child, U.S. Department of Justice, National Institute of Justice (Washington D.C.: Government Printing Office, 1985).