Rough Draft- Rape: One of the Most Challenging Crimes to Prosecute

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So I have been working really hard on my Rape paper for my Psych and Law class. The rough draft is due this Wednesday. I have a full draft done and wanted to post it because, one I am proud of tackling such a tough subject, and two because I think it’s an interesting paper that talks about something relevant in our society right now. So, if you take the time to read this paper, I would welcome any feedback to make the paper better for a final draft. Thanks in advance, XOXO Anna!

*I put all my block quotes in the block quotes button at top because the formatting was strange without that.*

Rape: One of The Most Challenging Crimes to Prosecute

Introduction

One of the most challenging prosecutions, both criminally and psychologically, in today’s courts is the question of rape. The very definition of the crime varies from state to state. The issue is further composited by the evidence and a prosecutors confidence that is sufficient to sway a jury. Ironically, when fight or flight instincts kick in, no one talks about the freeze instinct, thus leaving no physical evidence behind. If a trial comes out of a reported rape, the question of “who really is on trial” arises. Victims often become objects of intense scrutiny, having their character, motivation, and possibly their sexual history questioned. When on trial, the focus should not be questioning the victim’s character, but rather questioning the perpetrator’s character. Solutions to rape are not clear-cut. Some possible solutions could be addressing the definition of rape, making it universal across the country, having education on rape and consent at a younger age, and having psychologists as expert witnesses explaining why a victim might freeze over fighting when questioned on the stand. Rape ranks as one of the most challenging crimes to prosecute in today’s courts: the absence of a unilateral definition of the crime, the too frequent lack of compelling physical evidence to prosecute, and the likely attack on the character and integrity of the victim, all contribute to the difficulty of bringing this crime to trial.

Part 1

When someone is raped, how do they know they have been raped, legally speaking? Living in New York versus Connecticut, two people could experience rape, yet the legal definition is different in each state. Connecticut, for example, does not have the word “rape” in their definition. Connecticut’s laws on rape are defined using the term “sexual assault” (Attorney S.N., 2005). Using the terms “rape” and “sexual assault” interchangeably is confusing to a victim. Some states define sexual assault as everything but penetration, but if one lives in Connecticut, sexual assault includes penetration. In Georgia, a man cannot be raped because they definition is gender specific. Some of the definitions are old fashioned based on gender stereotypes of men being the aggressors and the women being the victims. These definitions were so outdated that if one were married in some states their husband could rape them and legally it would not be considered rape because the definition goes back to when women were the property of men (Deisen & Diesen, 2010). This is why definitions are important. Someone who has been raped might not come forward because they might feel that what happened to them does not meet the criteria, or they might think they were only sexually assaulted- which has a connotation of being a lesser crime than rape- based on the state’s definition. Definitions also challenge the prosecution. If what happened to a person does not meet legal definitions then the case cannot be taken. With legal definitions, there are two types of definitions, ones based on consent and ones based on violence,

“Rape has been commonly viewed as a crime involving assault with a sexual dimension, in which the violent force is the punishable component . . . modern rape laws are based on non-consent . . . indicating that the crime is viewed as an offense against personal integrity” (Deisen & Diesen, 2010, pp. 331-332).

The rape laws involving the definition of the use of force or threat implies that the woman is accessible until there is violence, and evidence is left, meaning the crime has officially occurred. Most rapes are assumed to be violent, and when they are not, the second problem arises- lack of physical evidence. When there is a lack of physical evidence then there is a lack of confidence in the victim reporting the crime.

Lack of physical evidence is one of the reasons rape cases can be so difficult to prosecute. Most rape victims are raped by someone they know, which increases the shock in the victim, and could lead to the victim having a “freeze” response. Most people, when talking about traumatic events, mention the “fight or flight” instinct but often forget the third response of “freeze.” This is where psychology comes into play to explain why there are many rapes that are not violent. Neuroscience is the best way to explain what happens when a person is attacked. Essentially the pre-frontal cortex is incapacitated and the person is relying on survival instincts and habits. James W. Hopper, PhD., wrote an article for the Washington Post explaining the neuroscience behind trauma explaining that, “Freezing occurs when the amygdala – a crucial structure in the brain’s fear circuitry – detects an attack and signals the brainstem to inhibit movement. It happens in a flash, automatically and beyond conscious control.” During this instinctual reaction, the pre-frontal cortex is overloaded with stress hormones, inhibiting rational thinking. This author makes a great point when mentioning that humans evolved as prey. Humans were not always the most dominant species, and so, humans have prey like instincts to survive a predator. When someone gets raped the three survival instincts kick in- fight, flight, or freeze- and that is how one rape might have left no marks and another rape could leave the victim covered in bruises. Police often believe a woman who reports the rape immediately and has physical evidence, leading to a stronger case for the prosecutor, making them more inclined to take the case. Women often wait to report rapes due to the trauma, causing emotions of deep humiliation, shame, and self-hatred. Often after such a psychologically detrimental attack the women may not feel strong enough, psychologically, to report the rape, or might fear not being believed by the police.

Police play a huge role in rape cases. Prosecutors may not take cases they believe to be too challenging to prosecute, but the police are the ones who determine whether the claim is unfounded, which means, “A complaint is considered founded when it meets state or federal crime standards; therefore, unfounded claims are claims that are not considered true crimes” (Mennicke, Anderson, Oehme, & Kennedy, 2014, pp. 814- 815). Society has many stereotypes about rapes and rape victims, so it is extremely important to make sure officers do not fall into the false beliefs out there, and yet most do, which often proposes a challenge. A study done in Florida with 148 officers on attitudes towards victims and rape resulted in,

“Most officers (79.7%) only provided a partial definition of rape, leaving out at least one of the four key components. In addition, most officers (80.9%) reported that the rate of false rape claims was much higher than current best estimates (2%–8%; Lonsway et al., 2009). These two findings taken together suggest that law enforcement officers still hold stereotypic and harmful attitudes” (Mennicke, Anderson, Oehme, & Kennedy, 2014, pp. 824).

The fact that officers leave out parts of rape definitions and believe that false rape reports are higher than they actually are, indicates a problem for victims. If police officers are having biased or stereotyped beliefs then that is going to affect their ability to handle a rape case. Police, using the training they have for dealing with other crimes, might come off as insensitive to a victim, or ask questions that make the victim feel as if it is their fault they got raped. Cops often are not trained in psychology, and may not have had the correct training to understand a victim’s reaction to rape, so when cops see a victim who is emotionless while describing the rape they might assume the victim is lying- “Cops learn to interview victims based on interrogation practices, which emphasize establishing a timeline and key facts” (Ruiz, 2013). Reasons victims do not report their rape not only can come from not knowing whether what happened to them legally is a crime, but also from the simple fear of police not believing them or making them feel guilty for a crime committed against them. Some “lucky” victims have their case taken to trial, but what really goes into the decision making on the prosecutors end? “Some studies suggest that prosecutors attempt to predict how the background, behavior, and motivation of the suspect and victim will be interpreted and evaluated by other decision makers, and especially by potential jurors” (Beichner, & Spohn, 2012, pp. 4). Not only do prosecutors look at the legal facts of the case -seriousness of the crime, amount of physical evidence, responsibility of the defendant- they look at the victim and make sure the victim has a “good image,” and if all the boxes are checked off that gives them confidence in prosecuting the case, that is when prosecutors take the case.

“CJS personnel often prosecute cases in which they believe the victim will make a credible witness. Therefore, a case might not be prosecuted if officials do not think that the victim will make a credible witness even if they believe that a rape occurred” (Patterson, 2011, pp. 1350).

Prosecutors also fall into stereotyping like cops. Our society has this image of rape being a stranger jumping out from a hidden place and attacking a victim with a weapon, and if a rape case that comes to the law enforcement or prosecutor does not line up with that “real rape” case scenario there is often hesitancy, “Because simple rape cases are not considered real rapes, such victim characteristics would play a more important role in determining the outcome of these cases” (Beichner, & Spohn, 2012, pp. 6). Sexual Assault Nurse Examiners play a role in the justice system as well, and the nurses often witness the treatment of victims from law enforcement, and they

“described police, medical systems, and legal system as wielding power to revictimize rape victims. In fact, SANEs felt that rape victims were particularly traumatized when members of such systems engaged in victim- blaming behavior or questioning, did not believe them, pressured them to recount the events multiple times to multiple people, failed to give them adequate information, or refused them help or treatment” (Maier, 2012, pp. 297).

The nurses who care for the victims even witness the harsh behavior that can come from the criminal justice system.

Part 2

Solutions to rape are far from simple. There are many parts to the solution to rape that will be discussed because rape is such a complex issue -criminally, mentally, and psychologically speaking.

Definitions of rape, as mentioned, are not universal. Each state has their own definition and statute of limitation. Why does rape have a statute of limitation when rape is the second most heinous crime that can be committed against another human, following murder, which has no statute of limitation (Giacalone, 2013).

“The crime of rape is not considered the most heinous crime (number 2) . . . but some, including myself would disagree. When someone is murdered, the pain and suffering lives on with the family and not the victim. Often rape is a crime that leaves the victim violated, their life and relationships in ruin and sometimes emotionally distraught. Sometimes the victim takes her own life because of it” (Giacalone, 2013, pp. 189).

Seeing that rape is such a monstrous crime, the definition and statute of limitations need to be changed. Bill Fitzpatrick, New York District Attorney of Onondaga County says,

“In terms of atrocity, in terms of the breaking of the social contract by the defendant, in terms of the impact on the victim, does it really matter to her at the end of the day if it was a penis or some kind of foreign object? . . . In my judgment, no” (Cowan, 2016).

By having a universal definition of rape, sexual assault, and all other sex crimes, people can avoid the confusion, and victims can be more confident coming forward, knowing that the definition does not discriminate against gender, object used, or what body part was penetrated. Adding to those standards, rapes, whether there was a weapon or not, should be treated equally by the law. Just because one rape did not involve a weapon does not take away from the fact that the rape was a horrifyingly traumatic experience for the victim. Along with a definition change, the statute of limitations should be abolished. Having a statute of limitations on a crime that violates the very soul of a human being is adding injury to insult at best and at worst just plain insulting.

Changes should not only be made in the law, but also in the preventative care. Instead of focusing all the efforts on after the crime has occurred, efforts should be put forth to educate the youth better. When teenagers are taught sex education in school, they should also be taught about consent and body language. Not all victims scream, struggle, or say no. Some victims freeze, dissociate. That should be part of the sex education taught. The younger generations should learn not only about STD’s and safe sex, that only skims the basics of having a healthy sex life. A healthy sex life requires two consenting people that are of legal age. Teaching teenagers in sex education about the psychology of rape and consent would be beneficial in preventing this crime from taking place.

“Enthusiastic consent essentially means that both people want to have sex with one another…If a person is unconscious, unresponsive, or not providing any sign of a ‘yes,’ then it definitely means no. No one is entitled to sex, Stamoulis states, and ‘even during sexual activity, you should check in with a partner if you feel that their interest has waned’” (Bushak, 2017).

When talking about rape,  another problem must be addressed that is considered “taboo” to talk about, which is porn. These days men and women are exposed to hypersexual images in our culture and are further exposed to pornography at such young ages, that it impacts their brains development in their sexual tastes, that our culture has become desensitized to rape, and

“regular exposure to pornography increased risk of sexual deviancy (including lower age of first intercourse and excessive masturbation), increased belief in the ‘rape myth’ (that women cause rape and rapists are normal), and was associated with negative attitudes regarding intimate relationships (e.g., rejecting the need for courtship and viewing persons as sexual objects)” (Anonymous, 2010).

Most people do not like to talk about porn, and think porn is harmless, but,

“this study showed the strong link between men’s viewing pornography and behavioral intent to commit sexual assault. Furthermore, when men view sadomasochistic and rape pornography, their danger to females increases concurrently. Using these two types of pornography makes men significantly more likely to report intent to rape, stronger beliefs in rape myths, a decreased willingness to intervene in a potential sexual assault, and a lower sense of efficacy about intervening in a potential sexual assault situation” (Foubert, Brosi, & Bannon, 2011, pp. 227).

Along with adding in consent education, education about porn and the harmful effects should be another addition to sex education in high school. If the younger generation has a well-rounded sex education, that goes into all the complexes of human sexuality, there will be more informed people that will hopefully be respectful of those around them.

Educating the criminal justice system is needed as well as educating the youth. As mentioned earlier, cops and lawyers might not be well versed in psychological knowledge, and thus treat victims skeptically or not give victims the chance to get justice, letting a criminal go. All police should be trained at the basic level in how to respond to a rape victim because detectives might not be a responding officer to the crime, and if a responding officer does not know how to create a safe environment to get the information needed, then that can affect the entirety of the case. Detectives should have more in-depth training, and there ideally should be a special victims unit in police departments, where those detectives are highly trained in rape psychology.

“[A] victim will attempt to avoid reminders of the rape or the offender for a long period of time following the rape. Therefore, a detective who questions a victim in a forceful, blaming manner is likely to resemble the offender, creating an uncomfortable and intimidating interview environment” (Patterson, 2011, pp. 1367-1368).

If someone is to help a rape victim, they must understand the psychology of rape for victims and perpetrators. Victims lose credibility because they report late, yet most victims have signs of Post Traumatic Stress Disorder (PTSD) and thus, they avoid any reminder of the traumatic experience, leading them to report late. The detectives that handle rape cases must have education in psychology, rape, and trauma, whether it is a class that they sign up for before they become a cop, or whether a psychologist comes into the department to teach the cops over the course of a couple weeks to months depending on how extensive the material is.

Along with educating the police, lawyers should have at least the very basic psychological knowledge of rapes, and how rape can impact a victim, so they know why a victim they originally might think would not be credible would actually be credible if presented in a psychological perspective. This is where the use of psychological expert witnesses come into play. In rape cases, there should always be a psychological expert witness to testify to explain the neuroscience behind trauma and the extent to which rape myths are rampant and should be excluded from people’s minds because it is not legally nor logically relevant to why a person might rape. Expert witnesses in rape cases are not limited to just testifying, they can even help the prosecutor evaluate the case and come up with strategies, help with voice dire questions, aiding in jury selection, and helping to prepare the victim if they are going on the stand (Lonsway, 2005).  It is important for people -police, lawyers, civilians, victims, and jurors- to understand the neuroscience behind trauma so that rape myths can be challenged head on in the courtroom. Mentioned earlier, the three survival instincts were described – fight, flight or freeze. People know of animals that play dead, like opossums. They go into a state called tonic immobility, and humans go into that state as well, usually during rapes and sexual assaults.

“One such response is tonic immobility . . . the body is literally paralyzed by fear – unable to move, speak, or cry out. The body goes rigid. Hands may go numb . . . Some people describe feeling ‘like a rag doll’ as the perpetrator did whatever he wanted . . . Sadly, many investigators and prosecutors still do not know some or all of these brain-based responses.” (Hopper, 2015).

Expert witnesses should be assigned to rape cases, and be included as part of the criminal justice “team” that is involved in rape cases, that way the victim can have hard science on their side as evidence.

The criminal justice system is in place for a reason, so why is it that college campuses have started taking on the responsibility of the police when it comes to rapes and sexual assaults? The idea may have started out positive, but in reality, the schools are more about protecting their image (and star athletes) than protecting the victim (The Hunting Ground, 2017). “So now colleges are conducting trials, often presided over by professors and administrators who know little about law or criminal investigations . . . The process is inherently unreliable and error-prone” (Rubenfeld, 2014). Having schools have rape trials has many problems being, the “judges” are biased because they work for the school and protect the school first, they do not have the legal knowledge that is necessary to conduct a fair trial, and because of those factors rapists walk among the campus raping other girls as they please.

“Rape on campus is substantially enabled by the fact that rapists almost always get away with their crimes. College punishments — sensitivity training, a one-semester suspension — are slaps on the wrist. Even expulsion is radically deficient. It leaves serial rapists free to rape elsewhere, while their crimes are kept private under confidentiality rules. If college rape trials become a substitute for criminal prosecution, they will paradoxically help rapists avoid the punishment they deserve and require in order for rape to be deterred” (Rudenfeld, 2014).

With campuses handling rape cases, it leaves rapists at large to rape again, and it essentially protects the rapists, which means having cases go to the proper authorities would be the best for the safety of the campus.

Conclusion

Rape is one of the most complex crimes to prosecute because of the psychological nature involved. There are no easy solutions to the problem, but if steps are taken to change the culture, definitions, education, then maybe one-day rapes will go down. Having universal definitions for the different sex crimes with no statute of limitations would make reporting the crimes less confusing, and victims might feel more confident that what happened to them is a crime. If teenagers have a well-rounded sex education, that is one preventative measure that can be taken against rapes to hopefully reduce the crime. Cops and lawyers having education in the psychology of rape and the traumatic reactions will have a huge impact on how they treat victims and more importantly, see victims. Having the police handle rape cases instead of college campuses would be more beneficial because cops are supposed to be impartial, whereas the school might have their best interest at heart instead of the victims. Finally, having an expert witness in rapes and trauma alongside them would be beneficial so we have all perspectives involved – investigative, legal, and psychological- would help improve the problem with rapes being one of the most challenging crimes to prosecute.

Reference List

A. (2010, March 31). National Review: Getting Serious On Pornography. Retrieved April 17, 2017, from http://www.npr.org/templates/story/story.php?storyId=125382361

Attorney, S. N. (2005). Retrieved April 13, 2017, from https://www.cga.ct.gov/2005/rpt/2005- R-0857.htm

Beichner, D., & Spohn, C. (2012). Modeling the effects of victim behavior and moral character on prosecutors’ charging decisions in sexual assault cases. Violence and Victims, 27(1), 3-24. doi:10.1891/0886-6708.27.1.3

Bushak, L. (2016, June 17). After Brock Turner, How Should We Teach Boys Not To Rape? Retrieved April 17, 2017, from http://www.medicaldaily.com/brock-turner-rape- consensual-sex-education-389909

Cowan, S. (2016, June 29). See How Your State Legally Defines Rape (or Does not). Retrieved April 17, 2017, from http://www.takepart.com/article/2016/06/29/state-rape-laws

Deisen, C., & Diesen, E. F. (2010). Sex crime legislation: Proactive and anti-therapeutic effects. International Journal Of Law And Psychiatry, 33(5-6), 329-335. doi: 10.1016/j.ijlp.2010.09.018

Foubert, J. D., Brosi, M. W., & Bannon, R. S. (2011). Pornography viewing among fraternity men: Effects on bystander intervention, rape myth acceptance and behavioral intent to commit sexual assault. Sexual Addiction & Compulsivity, 18(4), 212-231. doi: 10.1080/10720162.2011.625552

Giacalone, J. L. (2013). The criminal investigative function: a guide for new investigators. Flushing, NY: Looseleaf Law Publications.

Hopper, J. W. (2015, June 23). Why many rape victims do not fight or yell. Retrieved April 13, 2017, from https://www.washingtonpost.com/news/grade-point/wp/2015/06/23/why- many-rape-victims-dont-fight-or-yell/?utm_term=.d08c30e6a1b4

Lonsway, K. A. (2005). The Use of Expert Witnesses in Cases Involving Sexual Assault. Retrieved April 14, 2017, from http://www.ncdsv.org/images/ useexpertwitnessessexassaultcases.pdf

Maier, S. L. (2012). Sexual assault nurse examiners’ perceptions of the revictimization of rape victims. Journal Of Interpersonal Violence, 27(2), 287-315. doi: 10.1177/0886260511416476

Mennicke, A., Anderson, D., Oehme, K., & Kennedy, S. (2014). Law enforcement officers’ perceptions of rape and rape victims: A multimethod study. Violence And Victims, 29(5), 814-827. doi:10.1891/0886-6708.VV-D- 13- 00017

Patterson, D. (2011). The impact of detectives’ manner of questioning on rape victims’ disclosure. Violence Against Women, 17(11), 1349-1373. doi: 10.1177/1077801211434725

Rubenfeld, J. (2014, November 15). Mishandling Rape. Retrieved April 17, 2017, from https:// http://www.nytimes.com/2014/11/16/opinion/sunday/mishandling-rape.html

Ruiz, R. (2013, June 19). Why Do not Cops Believe Rape Victims? Brain Science Explains. Retrieved April 13, 2017, from  http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06 why_cops_don_t_believe_rape_victims_and_how_brain_science_can_solve_the.html

The Hunting Ground (2017).The Hunting Ground Book. Retrieved April 17, 2017, from http:// thehuntinggroundfilm.com/2016/05/the-hunting-ground-book/

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Building a defense…

So I remember posting about Ethan and our argument about Monster.

I know Ethan apologized that day, but it honestly hurt me very deeply that he said that. It hurt me that Dean told me I should have kept my mouth shut about it, and that it was extreme for me to report Monster. Ethan and Dean have made me feel like shit about doing the right thing.

I really need to talk to both of them, individually, about how their comments hurt me, and re-traumatized me by making me feel alone and as if they were on Monster’s side.

So the past couple days I’ve been building my defense against them. I know, its sad and sick that I would have to do this, but I just don’t know how else to do this. I don’t want to talk to each of them, and then them making it worse by saying that I was wrong all over again.

My sister made me text Ethan saying that I had to talk to him face to face when I got back to school. So Ethan knows I have to talk to him about something. I am honestly nervous to talk to him, because I don’t know what I would do if Ethan still took Monster’s side after the defense file I’ve put together for myself.

The problem is that most people aren’t educated when it comes to sexual assault and rape. Their are a lot of myths and misconceptions, and no one wants to think that their friend, family member, partner, class mate, etc. could be capable of something like that. Reading this article really spoke to me, and I think it will help when I let Ethan and Dean read it.

Yes, Your Friend May Be a Rapist

I hope that all goes well when I talk to them…and if they can’t see past their own ignorance, than I guess I’m better off without them…

XOXO Anna