The Response To Rape: Detours On The Road To Equal Justice
If you have issues viewing or accessing this file contact us at NCJRS.gov.--------------------------- The Response to Rape:Detours on the Roadto Equal Justice Prepared by theMajority Staff. Of theSenate Judiciary COmmitteeMay 1993145360U.S. Department of JusticeNational Institute of JusticeThis document has been reproduced exactly as received from theperson or organization originating it. Points of view or opinions stated inthis document are those of the authors and do not necessarily representthe official position or policies of the National Institute of Justice.Permission to reproduce thisgr llJ.ca1. . . . .1 materialhas beenDomainU S. Serrate Judiciary COlmuitteeto the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permissionof the owner.
J VIOLENCE AGAINST WOMENTHE RESPONSE TO RAPE:DETOURS ON THE ROAD TO EQUAL JUSTICECONTENTSIntroduction by Chairman Joseph R. Biden, Jr. . 1Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Summary . ". 11Chapter I:Detours on the Road to Equal Justice: A Case Study of Rape . 13Chapter II: Detours on the Road to Equal Justice: The Numbers . 25Chapter III: The Violence Against Women Act: A National Response . 39Chapter IV: The State Survey . '.' .51AppendicesAppendix A -- Methodology .57Appendix B -Endnotes Acknowledgm nts:. 61
. INTRODUCTIONBy Senator Joseph R. Biden, Jr.Chairman, Senate Judiciary CommitteeMay 1993The report I issue today culminates a three year investigation by the Judiciary Committee's majority staff concerning the causes and effects of violence against women.Women in Anlerica suffer all the crimes that plague the nation -- muggings, car thefts,and burglaries, to name a few. But there are also some crimes -- namely rape and familyviolence -- that disproportionately burden women. Through a series of hearings andreports, the committee has studied this violence in an effort to determine what' steps wecan take to make women more safe.Through this process, I have become convinced that violence agaip.st womenreflects as much a failure of our nation's collective moral imagination as it does thefailure of our nation's laws and regulations. We are helpless to change the course of thisviolence unless, and until, we achieve a .public outrage.nation lconsensus that it deserves our profound
11.A. The Report's Findings'Today, the majority staff releases findings of a six-month investigation of staterape prosecutions. These findings reveal a justice system that fails by any standard tomeet its goals -- apprehending, convicting, and incarcerating violent criminals:*98% of the victims of rape never see their attacker caught, tried andimprisoned;*Over half of all rape prosecutions are either dismissed before trial or resultin an acquittal;*Almost one quarter of convicted rapists go to prison;another quarter receive sentences in local jails where the average sentenceis 11 months:This means that almost half of all convicted rapists can expectto serve an average of a year or less behind bars. No crime carries a perfect record of arrest, prosecution, and incarceration, but thepattern that emerges for rape is strikingly inferior to that of other violent, crimes:*A robber is 30% more likely to be convicted than a rapist;*A rape prosecution is more than twice as likely as a murder prosecution tobe dismissed, and 30% more likely to be dismissed than a robberyprosecution; and 12
*A convicted rapist is 50% more likely to receive probation than a convictedrobber.Imagine the public outcry if we were to learn today that one quarter of convictedkidnappers or bank robbers were sentenced to probation or that 54% of arrests for thesecrimes never led to a conviction. We would consider such a system of justice inadequateto protect the nation's property, yet we tolerate precisely such results when the rape ofwomen is at issue.The disparity in how our system prosecutes rape, in contrast to other violentcrime, mirrors the disparity in our society's attitude towards these acts. The American legal system has always treated cases ,of assault by a stranger on our streets as a seriouscrime. But violence that primarily targets women has too often been dismissed withoutresponse. Where the victim knows the perpetrator, there is a tendency to consider hecrime a product of a private relationship, not a matter of public injustice. Even wherethe violence comes at the hands of a stranger, the victim may be seen not as an innocenttarget of intolerable criminal acts, but as a participant who somehow bears shame oreven some responsibility for the violence.A recent case from New Jersey vividly illustrates this attitude. A 17-year-oldmentally retarded girl was raped by a group of young men she had known her entire life,who used a baseball bat, a broom handle, and a stick to abuse her. This was not the 3
furtive act of a lone individual, it was the afternoon activity of a group of young men whoengaged in the rape of a girl as nonchalantly as a pick-up game of basketball. After the crime became publicly knowIl, members of the community, according to press accounts,defended the young men's conduct on the ground that '''pys will be boys."The nonchalance displayed by the young men during and after the attack revealsthe attitude that this incident does not constitute serious criminal activity. Worst of all,this same attitude is mirrored in the court's treatment of the case. Although three of thedefendants were convicted of first degree aggravated sexual assault -- the most seriouscharge under New Jersey law -- and because of their age at the time of trial could havebeen sentenced as adults, the judge sentenced them as "youth offenders." As a result,they will likely serve less than two years in a youth camp. At sentencing, the judge madereferences to the attackers' status as successful high school athletes who presented "no threat" to society.This is but one recent example of how our system discounts the severity of rape,how it "normalizes" rape as the mistakes of errant youth or negligent men. It is repeatedday-in, day-out, in case after case, shaping women's perception that the system simplydoes not accept that violent acts against women are serious crimes. To reshape thisperception, we must begin to ask the right questioIls:Why do we discount vio]ence that occurs between people who know each other?Why do we seek to blame the victim for the rape -- focusing on her behavior4
instead of her attacker's? Why is our system unresponsive to violence that occurswhen a man terrorizes a woman through rape or other physical assault? .Survivors of rape and family violence pay a double price: like other victims ofviolent crime, they suffer the terrible toll of physical and psychological injury. But, unlikeother crime victims, they also suffer the burden of defending theJ( gitimacyof theirsuffering. It is bad enough when friends or neighbors ask why a survivor "let it happen,t1or why the survivor was in the 'Wrong place at the wrong time." But, when the criminaljustice system adopts these attitudes of disbelief and hostility, surVivors' only recourse isto blame themselves. More than any other factor, the attitude of our society that this violence is notserious stands in the way of reducing this violence. This attitude must change.The first step in altering our attitudes toward this violence is to understand thefailures of our laws and policies in this regard. Our criminal laws must be judged bytheir effectiveness in responding to the injustices done to victims of violence. This is thecovenant of equal protection guaranteed by our Constitution -- that our criminal justicesystem shall not make distinctions in practice that cannot be sustained in law. To fulfillthis promise, we must put Qurselves in the position of those who suffer this violence; wemust use their experience as a measure of justice; and we must be vigilant in judging thelaws as they operate in practice, as well as in theory. 5
The knowledge that society and its criminal justice system offer no real protectionhas the potential to victimize all women, forcing them to remain in abusive family situations, or to circumscribe their activities, to accept limitations on how they conducttheir lives, because of fear. The stakes are high. If we do not succeed, we risk the faithof over half our citizens in the ability -- and the willingness -- of our criminal justicesystem to protect them. And, what is worse, we condemn future generations to acceptnot only the possibility of violence but the reality of lives too often limited by the fear ofviolence.B. 11ze Vwlence Against Women ActTo. help focus the nation's attention on this issue and to provide the help thatsurvivors need, Ifirs introduced the Violence Against Women Act in 1990. Since thattime, I have chaired numerous hearings, heard from scores or'women who have suffered violence, and released a number of reports documenting our findings. This year, I haveintroduced the bill for what I hope is the last time -- it is my highest legislative priority tosees. 11 become law during this Congress.The legislation is the first comprehensive approach to fighting allfOnDSof violenceagainst women, combining a broad array of needed reforms. These include:*New laws to reinforce the focus on the offender's conduct, rather than thevictim's character;6
*New investments in local law enforcement efforts that treat rape and familyviolence as serious crime;*New evidentiary rules that extend "rape shield"-type protection to civil andcriminal cases as well as sex harassment litigation; and*New education programs in our schools and in our law enforcementinstitutions about family violence and rape.Most importantly, in my view, the Violence Against Women Act creates, for the,first time, a civil rights remedy for victims of crimes "motivated byg cler."I believe thisprovision is the key to changing the attitudes about violence against women. Thisprovision recognizes that violent crimes committed because of a person's gender raiseissues of equality as, ell as issues of safety and accountability. Long ago, we recognized that an individual who is attacked because of his race is deprived of his right to be freeand equal; we should guarantee the same protection for victims who are attackedbecause of their gender. Whether the violence is motivated by racial bias or ethnic biasor gender bias, the law's protection should be the same.I realize that this legislation will not eradicate violence against women, but I dobelieve that it is a step in the right direction -- in the direction of changing this nation's"false idea" that violence directed at women is "second-clllss" crime. Until we recognizethat fact and brand the violence as brutal and wrong, we can never hope to stem the tide of violence against women in America .'7
ILC. ConclusionThe purpose of this report is to help us recognize that 'Violence against women" is simply'Violence." We are all responsible for the beliefs and the attitudes that allow us toapply rape laws grudginglY, with suspicion rather than sympathy. As the AttorneyGeneral recently reminded us during her confirmation hearings, the doors of the JusticeDepartment offer the fonowing reminder to all who enter: "Justice in the Life andConduct of the State is possible only as first it resides in the Heart and Souls of theCitizens." It is my hope that this report, with the others released by the committee onthis subject, will move our hearts and souls and, in doing so, will help us to create asystem that realizes the promise of equal justice for all. 8
ACKNOWLEDGMENTS This Report was prepared with the assistance of literally hundreds of peoplethroughout the United States who responded to our written questionnaire and spentsignificant time in telephone interviews reporting and explaining the data containedwithin this document. A full listing of the many people who consulted with and aided mystaff appears in an Appendix to this Report.I offer special acknowledgment and thanks to the members of my staff who spentso much of their time and energy on this report. In particular, Lisa Monaco and StevenSegaloff performed most of the information gathering and analysis that forms the bulk ofthis Report. They were ably assisted by Chris Putala, Cynthia Hogan, Don Long and Nancy Solomon .Most of all, I want to give special recognition to the efforts of one woman who hasshaped this report and, indeed, much of the committee's efforts in the area of violenceagainst women. For the past three years, Victoria Nourse has served as my chief advisoron this issue, among others. She has played a critical role in the development anddrafting of the Violence Against Women Act and has worked tirelessly to promote itspassage. As she now prepares to leave the committee staff, I offer her my personalthanks for her tremendous energy and intellect and for her dedication to this issue.Senator Joseph R. Biden, Jr.May 1993 9
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VIOLENCE AGAINST WOMEN:THE RESPONSE TO RAPE: DETOURS ON THE ROAD TO EQUAL JUSTICESUMMARY *98% of rape victims will never see their attacker apprehended, convictedand incarcerated;*Over half (54%) of all rape prosecutions result in either a dismissal or anacquittal;*A rape prosecution is more than twice as likely as a murder prosecution tobe dismissed and 30% more likely to be dismissed than a robberyprosecution;*Approximately 1 in 10 rapes reported to the police results in time served inprison; 1 in 100 rapes (including those that go unreported) is sentenced tomore than one year in prison;*Almost one quarter of convicted rapists are not sentenced to' prison but,instead, are released on probation;*Nearly one quarter of convicted rapists receives a sentence to a local jail -for only 11 months, (ac ording to national estimates);*Adding together the convicted rapists sentenced to probation and thosesentenced to local jails, almost half of all convicted rapists are sentenced toto less than one year behind bars .11
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CHAPTER IDETOURS ON THE ROAD TO EQUAL JUSTICE:A CASE STUDY OF RAPE Try to imagine a legal system in which robberies of retail stores are treatedseriously, but robberies of homes are not considered "real" crimes. Try to imagine a legalsystem predicated on the notion that robbery victims are likely to lie about whether thecrime really occurred, or that renders the financial history of a robbery victim a centralissue at trial. This is a fictional world for the victims of robbery. For the survivors ofrape and family violence, it is all too real -- it is the criminal justice system of the UnitedStates, today, in 1993 .Over a year ago, the Judiciary Committee issued a Report that surveyed staterape 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 against13
women." We found that, despite some reforms, serious legal barriers remained wherewomen 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 classesof people," like women raped by their husbands or children raped by their parents. Wefound that "women assaulted by sexual means are routinely subject to legal hurdles othervictims never face," including requirements, in some cases, of psychiatric exams,polygraph tests, and special cautionary instructions to the jury.1These barriers of law, however, pale before the barriers of prejudice faced bywomen who are raped. Prejudice takes many practical forms in a rape prosecution- policemen refuse to take a report; prosecutors encourage defendants to plead to minoroffenses; judges rule against victims in evidentiary matters; and juries, despite instructionsto 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 TollOurs is a system which responds to victims of rape with suspicion rather thancompassion. The figures we release today demonstrate the scope of the failures ofpractice. They reveal that the detours on the road to a rape conviction are far greaterthan the detours on the road to a conviction for other violent crimes. We found:1Se Committee on the Judiciary, The Violence Against Women Act of 1991, ReportNo. 102-197 at 42-46, (October 29, 1991).14
*More than half of those arrested for rape will not be convicted, making it30% more likely that a robber is convicted than a rapist;*Over half of all rape prosecutions result in either a dismissal or anacquittal, almost double the number for murder and almost 30% higherthan for robbery;*Almost one quarter of convicted rapists never go to prison, almost anotherquarter receive sentences to local jails housingmino offenders.This means that almost half of all convicted rapists can expect to receive asentence of less than a year. B. Barriers of Practice: The SurvivorsThe figures tell only part of the story, though. Not every arrest leads to aprosecution in the case of car theft; not every prosecution leads to a conviction or even ajail sentence in a whole host of criminal cases. But a consistent pattern that divergesfrom the norm does reveal that overall, rape is different.Accounts of individual cases are illustrative. In 1993, we would like to believe thatour criminal justice system is getting better. The reality is that from the survivor'sperspective, the system remains woefully inadequate. In fact, despite decades of legalreform and increased attention to rape, studies indicate that there has been no significant 15
increase in the percentage of rape complaints that result in a conviction, or in arrestrates for rape. 2One would hope that legal reforms would yield new attitudes as well as newpolicies. 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 dormroom of an acquaintance. While the victim testified that she said "no" throughout theincident, the judge ruled that because the dorm room d09r, although locked, could havebeen opened from the inside, the victim was technically able to leave the room. Thejudge 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.Mer being shown a videotape of the incident made by the husband with the womanpleading, "please don't tie me up again, I'll do anything you want me to," a jury acquittedthe 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 anintruder in her home. The first grand jury to hear the case refused to indict because she2 Parrot, Andrea, and Laurie Bechhofer, ed., Acquaintance Rape: The HiddenCrime. New York: John Wiley and Sons, Inc., at 326. (Citing Loh, W.D., ''The Impact ofCommon Law and Reform Rape Statutes on Prosecution: An Empirical Study,"Washington Law Review, 1980; and, Polk, K., "Rape Reform and Criminal JusticeProcessing," 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,';-V/ashing!Qn Post, April 18, 1992, at A2.16 --- -------
had tried to protect her life by asking the attacker to wear a condom. S Or, again,remember the recent New Jers
No crime carries a perfect record of arrest, prosecution, and incarceration, but the pattern that emerges for rape is strikingly inferior to that of other violent, crimes: * A robber is 30% more likely to be convicted than a rapist; * A rape prosecutio
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