The Rape Continues: Victims on Trial

By: Katarina A. Hernández

Every seventy-three seconds, another American becomes a victim of one of the most heinous crimes—sexual assault. These survivors are then faced with the ultimate question of whether they will report their victimization and pursue prosecution against their assailant. Though survivors are often dissuaded by fear, denial, and societal disbelief, another deterring force causes many survivors to not report their assaults. Sexual assault survivors often face secondary victimization from the criminal justice system’s handling of rape and sexual assault cases which results in more severe post-traumatic stress than the rape itself. This experience is referred to as the “second rape.”

Rape myths have circulated in the societal conscience for centuries; however, the system meant to be the saving grace for survivors has fallen into the same stream of belief. Sexual assaults that deviate from the notion of “real rape” are often met with skeptical inquires that place partial blame on the victim and doubt their allegations. This process begins with the initial fact gatherers—police officers. To begin their journey into the criminal justice system, survivors are interrogated by police instead of interviewed. Several victims recall being threatened by officers with criminal charges for lying to police and being encouraged to “stop lying and just tell the truth” when they reported their assaults. For many survivors, the first interaction with the justice system begins with feeling disbelieved. Unfortunately, this feeling only worsens as survivors proceed through the criminal justice process.

The next obstacle for sexual assault survivors in the criminal justice process is the issue of prosecution. Ultimately, the decision of whether to prosecute lies with the State, not the victim. Prosecutors may choose not to prosecute sexual assault cases for various reasons including prejudicial victim characteristics, lack of evidence, inconsistent victim recollection, and political pressures. However, the primary source of a prosecutor’s decision centers on their ethical obligation to not prosecute a case unless there is a reasonable likelihood of conviction. This creates an additional obstacle for survivors who chose not to file a report immediately after their assault as well as for victims who were unconscious and cannot testify to what happened. Regardless of a victim’s desire to prosecute and proceed to trial, only 25% of reported rapes are accepted for prosecution and the majority of those cases (76-97%) end in plea bargains. Survivors’ lack of control over the outcome and progression of their own assault prosecution further exacerbates the post-traumatic stress victims face as a result of their victimization.

If a sexual assault case does proceed to trial, victims are often retraumatized and used by the prosecution to secure a conviction. The Confrontation Clause of the Sixth Amendment guarantees the defendant the right to face their accuser and dispute their testimony in cross-examination. Although some jurisdictions have implemented Rape Shield Laws to reduce the accusatory questioning victims undergo on cross-examination, survivors still experience severe post-traumatic stress from their trial experiences. Victims must sit in the witness box and be subjected to cross-examination while sitting across a courtroom from their attacker, possibly seeing them for the first time since the assault. To instill doubt in the victim’s allegations, defense attorneys will “try their best to throw victims off their game and make them wish they hadn’t reported the crime in the first place.” Victims have stated that this process makes them feel like “the rape just keeps going.” Attorneys on cross-examination will question the validity of a victim’s testimony if the victim forgets details of the incident or testifies inconsistently. However, little weight is given to the fact that “[w]hen stress or fear or trauma kicks in, the brain shifts into a mode when the hippocampus goes into a super-encoding mode, in which those central details really get burned in and the peripheral details are lost.” Instead, our justice system allows impaired recollection to dispel the finding of proof beyond a reasonable doubt.

The criminal justice system must initiate reform in the area of sexual assault victim treatment before general societal perspectives toward survivors can become a system of support, rather than a source of tyranny. To spark the catalyst for change, the criminal justice system should mandate victim support throughout the criminal justice process. Reform can be achieved by requiring the appointment of a rape victim advocate or counselor trained in rape victim advocacy for victims of sexual assault. This right will parallel that of a court-appointed attorney for defendants under the Sixth Amendment, therefore allowing victims equal support in judicial proceedings. Victim advocates offer administrative as well as emotional support for victims of crime and provide them with vital resources to assist them long-term. In addition, rape victim advocates who are also licensed attorneys, could provide immediate support for survivors following their assault and maintain that support while also offering legal representation through the entire criminal justice process. Federal adoption of a victim’s rights amendment that expressly requires such appointments could mean the difference between continuing the rape of survivors, or standing in solidarity with these victims instead. We need to humanize and empower sexual assault survivors’ position in the criminal justice process by prompting effective reform that puts perpetrators on trial, instead of the victim.

National Sexual Assault Hotline: 1-800-656-4673

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