Content Warning: This article contains information about the problems rape survivors experience when seeking justice through criminal courts.
One thing is glaringly apparent right now: the criminal justice system does not work for rape survivors. An appalling 0.6% of rapists will ever be incarcerated for their crimes. Less than 1%. Millions will never even see the inside of a court room. The truth is that if you are a rapist, you have precious little to worry about when it comes to your freedom. Unless you committed your crime in such a manner that you left significant injuries on your victim, or did so in front an unimpeachable witness, you likely won’t even be charged. By the way, your victim isn’t considered an unimpeachable witness. The fact that they even accused you means that their motives are suspect. This is all because our criminal justice system is predicated on the concepts of “beyond a reasonable doubt”, “the presumption of innocence”, and “entitlement to a day in court”.
These concepts of course, are designed to protect the accused, but there are no such protections for victims. There are good reasons to have these standards of justice in a criminal court of law, but people seem to assume that we should apply these same standards to all other areas of our society. There is no reason, for example, that the court of public opinion has to hold to such standards. People are entitled to whatever opinion they want to have, and they can believe who they want to believe, which they do. That’s why it makes no sense to apply the same standards that we apply to criminal proceedings to civilian proceedings.
Certainly we need the reasonable doubt standard in the criminal justice system, although proof beyond reasonable doubt these days has come to mean proof beyond any doubt in some people’s minds. Our founders were wise to put protections into the Constitution and Bill of Rights that protect people accused of crimes, because they were trying to prevent a tyrannical government from being able to jail dissenters or falsify evidence. We still need these protections in our criminal courts.
Yet when we apply these standards to sexual assault cases, the results are abysmal. Rape victims rarely get justice, and they often don’t even try, because the system is so profoundly stacked against them. In no other area of crime is the victim not considered a credible witness to their own victimization. Yet when a rape victim makes an accusation, and the perpetrator says he didn’t do it, everyone just throws up their hands and says “well I guess we’ll never know, will we? There were no witnesses.” The victim IS A WITNESS. Why is the victim automatically not considered a credible witness? The concept of “He said/she said” by default means the perpetrator wins every time. Who has the incentive to lie? The person being accused, of course.
Separating Facts from Distortions
The truth is that false reporting of sexual assault is low, yet some people would have you believe that there is a massive conspiracy by women to destroy the reputations of men by falsely accusing them of rape. These same people would have you believe that women are just chomping at the bit to be accused of slander, blamed for their assaults, called liars and con artists, and destroy their own reputations and families.
What those who make these arguments have incorrect is that the classification of reports can be misleading. A “False Report” is a report that has been demonstrably proven after an investigation by law enforcement to be false. A “Baseless Report” means that the report was found to be truthful, but that the elements of the incident did not meet the threshold for a crime. In other words, police did not think the person was lying, but for whatever reason, the facts did not rise to the level of a criminal standard. An “Unsubstantiated Report” means that the investigation was not able to produce sufficient evidence to bring a charge, a classic outcome of the “He Said/She Said” variety. This doesn’t mean a crime did not happen, it just means they cannot prove it.
However, those who have an agenda to sell, political or otherwise, like to lump all three categories together and create propaganda about the supposed epidemic of false rape reports. It’s effective. This form of messaging has been used to lull Americans into some special kind of myopia in which we just can’t believe it when a rape victim speaks up and says what was done unless we see it with our very eyes, which of course never happens because rapists don’t go around raping people with lots of witnesses.
The Justice for Criminals System
I spent part of my early career working as a victim advocate for sexual assault survivors. I wore a pager, went out in the middle of the night to meet survivors who were about to undergo a forensic exam, attended police interviews and court proceedings with my clients, and in general just listened to and supported them in their choices. During this time, I got an up-close look at how the system operates, and I saw some pretty disturbing things happen, including:
1. I saw a sex crimes detective threaten my client with arrest “If I find out later that you’ve lied to me”. This same detective went to great lengths to try and convince me that her rapist was the real victim, because he swore to the detective with tears in his eyes that he didn’t do it. My client, understandably, ran as far away as she could from the system that was supposed to help her. She chose not to even file for a restraining order, which she could have done, because she was so fearful that she wouldn’t get it and would be further humiliated in front of her attacker, and left with no protection.
2. I saw another client do everything the sex crimes detective told her to do, and I sat there and watched as she participated in a “controlled call” (set-up by the police) and got her rapist to halfway admit, not deny at all, on the recorded call that he had assaulted her while she was intoxicated and passed out. The rapist offered to “pay her off” (this was all done under the surreptitious supervision of the detective). The rapist sent her an actual check in the mail, which my client did NOT cash. She handed it over to the state attorney as evidence in her case, along with the recorded call from the police. She did everything they told her to do and participated fully with getting evidence against her assailant for the state. All charges were dropped. The state attorney threw her case out. “No evidence,” they said.
3. I saw a sex crimes detective accuse a victim of being a prostitute after she was raped at gunpoint while walking home at 10AM in the morning, because of the neighborhood she was in. Later, they recovered the gun and found it to be a fake. The detective then told the victim “Don’t worry, you were never in any danger”. The gun was fake, but the rape was real.
4. A mentally disabled woman testified in court about her rape, and had to be subjected to cross-examination BY THE RAPIST (who wanted to represent himself in court). She did a great job, in spite of her disability. He was eventually found guilty (yay!) and sent to prison. Six months later, a judge threw the verdict out and ordered a new trial, because the man did not have adequate representation despite the fact that he chose to represent himself. The second time around, the survivor was not sure she could remember all the details as well as she did the first time; again, she was disabled. He was released.
I saw person after person after person who came in to my agency seeking help and support, but they did not want to report for many reasons, and I could not blame them knowing what I knew about how they would be treated for so little chance of ever seeing justice done. During my three years in working as an advocate, my team and I got called out to meet new clients at least 5 times a week, and sometimes we would be in the forensic center with 2 or 3 victims at once, all waiting at 3:00 in the morning for the doctor to perform the exam. Astoundingly, during that time, I can count on 1 hand the number of those cases that I can recall ever even being brought to court for charges. The System does not work for survivors. It works very well for rapists.
What Options Do Survivors Have?
So what can survivors do? Coming forward almost necessarily means that you will be accused of lying and have your case tossed off the state attorney’s desk. So, if by structure, rape survivors will likely never get justice in the criminal system, there are few other options. In some circumstances you may be able to complain to your school or place of employment, but these systems are not doing much better, mostly because everyone wants to apply the criminal standards to these other arenas as well. We shouldn’t have to. Those criminal standards are there for criminal courts, because we shouldn’t take away the freedom of an accused person without being sure beyond a reasonable doubt that they are guilty of the crime.
But while people may be entitled to their freedom unless the state proves them to be guilty in a court of law, no one is entitled to a job, a spot at a college, or even a reputation. You have to earn those things, and once you earn them, you have to keep them. The best way to earn and keep those things is by not raping people, and not sexually harassing them either. If you can figure out how to do that, you should be in pretty good shape.
Instead, survivors may have to sue to get justice. More women need support to file suit in civil court to get justice after sexual assault, and they need support from institutions like the ACLU, RAINN, and others to help them. Our criminal system is not equipped to prosecute rape cases effectively, and while rapists belong in jail, the sad truth is that we’re not putting them there.
Civil lawsuits have a different standard of proof than criminal courts. Remember the OJ case? If you were alive in the 90s you certainly do. OJ Simpson was acquitted of a double murder charge and released from jail, free to move on with his life and continue collecting his NFL pension. Despite mountains of evidence against him, and much of America believing in his guilt, his lawyers were able to secure an acquittal because they established reasonable doubt for a jury in a criminal court of law. However, the family of Ron Goldman took Simpson to civilian court after the criminal trial. They sued, and they won. Simpson was found “liable” for the deaths of Ron Goldman and Nicole Brown Simpson. “Liable” is not the same as guilty, of course, by legal standards, but the verdict was meaningful for the family of the victims, and provided some validation to the charges he was acquitted of. It’s worth noting also that “not guilty” doesn’t mean innocent, another conflation that people often try to make. “Not guilty” is more legal lingo that just means that a jury did not find the evidence compelling enough to prove the case beyond a reasonable doubt. It doesn’t mean the person is innocent. Just ask yourself who wants to date OJ Simpson these days?
The reason that the Goldmans were able to win in civilian court is because civil court standards dictate that allegations need to be proven by “a preponderance of the evidence”, rather than the “reasonable doubt” standard applied to criminal cases. This difference means that juries must find the evidence credible to a standard of 50.1%. Many people may have a better chance to receive some amount of justice from civilian courts, when the criminal courts are failing victims. Juries in civil cases also don’t have to be concerned with taking away a person’s freedom, so they may be more prepared to return a favorable verdict to the victim when there is less at stake.
Gretchen Carlson’s lawsuit against Roger Ailes is another good example of how the civilian courts can work better for victims than the criminal courts. While her situation was unique and most survivors will not have a high profile serial abuser to go after, the merits of her case were enough to force a powerful man out of his job, despite the fact that criminal charges were never brought.
It doesn’t matter that any given rapist may not have any money. I think that the power in civilian strategy would be in holding people accountable. Even if you never see a dime from the rapist, having the validation of a judge or a jury saying that they believe you and believe you are entitled to restitution from the person who assaulted you could be very healing for many survivors. I met many survivors who didn’t even necessarily want to see their attacker in jail (because of family or community ties), but they wanted something. Something that said they were believed, something that meant their attacker couldn't just get away with it. Even the Goldman family has had difficulty collecting from Simpson, but the fact that he still owes them money for his liability means that he still gets that asterisk next to his name and his reputation is ruined. When there is no criminal justice for victims, justice has to come in other ways.
There is also no reason why we should not be able to come up with alternative systems of justice besides just the criminal system. For example, more municipalities are offering drug courts to small drug cases involving addicts, where the focus is on rehabilitation instead of jail time. Why shouldn’t we have a similar system wherein if criminal proceedings have failed, victims are at least given the option to have some kind of a hearing where the case is heard by a judge and perhaps civilian penalties can be administered. Something like that would make a world of difference to survivors, who are NOT given the right of being heard in a court of law the way the accused is. One of the things that distressed me during my work as a victim advocate was that survivors had no say so in whether their case was dropped or not. They were expected to be “represented” by the state, but that didn’t mean they had a choice if the charges were dropped or not.
Of course, survivors will still face an array of complications and choices if they choose to go this route, which is why I think more institutions and agencies should take the lead in supporting victims. The problem of sexual assault in this country and around the world demands a response from society. We cannot continue to allow rape survivors to be victimized twice by their assailants and again by the (no) justice system. Rape survivors should be entitled to a day in court too, and if the criminal justice system cannot provide that, then we all should advocate for a system that gives that right to victims as well.