- Online Edition
- Print Edition
- Donahue Lecture Series
Much has been made in the public forum of the relationship of sexual assault victims with local, state and federal law enforcement authorities. The reality of these relationships, however, is often messier and less monolithic than that portrayed in the popular media. The question of public prosecution, with all of its attendant responsibilities to a generalized public good, sometimes conflicts with an individual victims security, interests or desires. Further, society should be seen as having a larger mission than punishment when it comes to responses to victims of crimes, particularly those who are victims of sexual assaults. Seen in a larger and more complete light, victims of violent crimes, especially the young and the poor, are often faced with serious legal disabilities in employment, housing, physical, and economic security, education and other aspects of their lives that the law might touch. . . .
At the end of Katherine Hepburn’s closing argument on behalf of a woman charged with trying to kill her philandering husband in the 1949 film Adam’s Rib, Hepburn tells the jury about an ancient South American civilization in which the men, made weak and puny by years of subservience, are ruled by women. She offers this anthropological anecdote in order to move the jury to understand why a woman, whose ”natural” feminine constitution should render her incapable of murder, might turn to violence. Lest the jury not understand the point, she makes it plainer. “Every living being is capable of attack if sufficiently provoked,” she argues. “Assault lies dormant within us all. It requires only circumstance to set it in violent motion” . . . .
Sexual abuse is conduct steeped in secrecy. The abuser needs secrecy to continue perpetrating abuse and victims often desire secrecy to cover their fear and shame. This culture of secrecy has pervaded the conduct of sexually abusive priests for decades. When adult survivors did tell, they often turned to the church instead of law enforcement or child welfare, the secular agencies charged with investigating sex crimes against children. Adult survivors did not act as willing accomplices to the culture of secrecy surrounding abuse in the Catholic Church; many turned to the Church because the statute of limitations and other legal requirements made secular forums unavailable to them. Other survivors and parents acting on behalf of their children turned to the Church to ensure that the abuser was stopped and specifically to avoid judicial resolution of abuse allegations. The desire of victims to stop the abuse while avoiding confrontation with the abuser in the framework of a legal challenge is not unique to the victims of priest abuse. Many victims of sex crimes remain silent about abuse or turn to extrajudicial institutions like the Church, survivor groups, or counseling rather than to the courts. In the absence of extrajudicial resources, victims would be left to come to terms with the abuse alone. . . .
In the past few decades, the number of reported cases of child sexual abuse in the United States has increased at a rate of approximately 2300%. While unique evidentiary issues are present in numerous areas of the law, the growing number of child sexual abuse cases presents distinct problems to prosecutors. Unlike most criminal cases, physical evidence or eyewitnesses infrequently support child sexual abuse prosecutions, often leaving prosecutors with only a young child to convince a jury that the defendant committed a crime. These problems came to the forefront of public attention in the mid-1980s, when group sexual abuse cases involving large numbers of children forced the issue to become something of a national obsession.
As the prosecution of child sexual abuse cases became more prevalent, legislatures and courts around the country implemented various tools to counteract the difficulties child sexual abuse victims faced in the criminal system. In addition to developments such as closed-circuit testimony for child witnesses, the use of behavioral science expert testimony in child sexual abuse cases emerged as one of the leading subjects of debate and confusion among the judiciary. Such testimony most often involves a psychologist or social worker offering a profile of the behavior and characteristics frequently present in sexually abused children. The rationale behind such testimony is to offer a context in which the jury can understand the victim’s behavior, and also to correct any flawed beliefs average jurors may hold regarding the reaction and response of a typical child sexual abuse victim. . . .
In February 1998, the Italian Supreme Court issued a decision to overturn a rape conviction in part because the victim was wearing jeans. The Court’s opinion stated that it is difficult to remove jeans worn by another, and therefore the victim must have assisted with the partial removal of her jeans and could not have been raped by the defendant, Cristiano. The reaction to this decision was immediate and unanimous outrage. Alessandra Mussolini organized a protest; she and other female members of Italy’s Parliament wore jeans to work and held placards reading “Jeans: An Alibi for Rape. ” Kitty Calavita describes many newspaper reports, editorials, and letters to the editor in Italian media sources. Political leaders called the decision shameful, sick, and ”ridiculous.” Scholars have described the opinion as ”anachronistic” and have stated that the opinion consists of biases and stereotypes. . . .
The United States Supreme Court has never considered whether there is a First Amendment right for the press and public to attend civil child dependency proceedings. The Court has, however, determined their right to attend some criminal proceedings. For instance, the press and public have a right to attend the guilt and sentencing phases of adult criminal trials unless there is a compelling governmental interest in closing the trial, and the closing is narrowly tailored to effect that compelling state interest. The Court has held that other criminal proceedings—such as the grand jury proceedings, jury deliberations, in camera hearings, and appellate court conferences—are not presumptively open because they have historically been closed and openness lacks sufficient value to the public to overcome the governments interest in closure. Although the United States Supreme Court has never determined that there is a First Amendment right of access to civil proceedings like child dependency trials, it has indicated that protecting child abuse victims from the jurogenic psychological damage of testifying in public might be a sufficient compelling interest to support excluding the press and public from such a criminal trial, as long as the closure is narrowly tailored. . . .
This Article is about tribal issues and sexual assault, and it is directed not so much at ”beyond prosecution” as it is “beyond jurisdiction.” It focuses on an invisible legal challenge in addressing sexual violence. The focus is not on the federal or state system, but rather the ”third sovereign” in this nation, the tribal justice system. There are over 550 federally-recognized tribal governments in the United States, each with a separate and distinct judicial system. Tribal justice systems can have a tremendous impact on the survivors of sexual violence, particularly Native American survivors who reside in tribal communities.
This Article is designed with two audiences in mind. On one hand, it is to enlighten sexual assault scholars and practitioners about the importance of sovereignty in the analysis of rape law and reform. On the other hand, to persuade Indian law scholars and practitioners that the development of sexual assault jurisprudence is central to the struggle for sovereignty. Ultimately, this Article argues that it is impossible to separate theories of indigenous self-determination from theories on sexual assault jurisprudence. It is critical that a dual analysis be employed in both disciplines because sexual violence is so deeply imbedded in colonizing and genocidal policies. . . .
I begin this Article with a confession. In my thirty years of legal practice, I have never provided any civil legal services to a rape victim who was not also a victim of intimate partner violence. Although many of my clients have been sexually assaulted and physically abused, I have provided no services to the majority of these female rape victims. They are the women and girls who have been sexually assaulted by strangers or, more often, by acquaintances, friends, fellow students, and co-workers with whom they have never been in a substantial romantic relationship. These rape victims are my invisible clients.
Although I am old enough to have been involved in legal services and clinical law teaching during its early and (some would say) more activist years, I never questioned why victims of stranger-rape, or rape by casual acquaintances, were not among our clients. Nor did I consider including these victims when I developed my own civil legal services programs for survivors of domestic violence. Like many attorneys specializing in domestic violence, I defined my clientele using the phrase victims of domestic violence and sexual assault. In practice, I never sought to provide services to victims of nonintimate partner rape. . . .
Young women attending colleges and universities throughout the United States face a rate of sexual assault that is significantly higher than the general population. The United States Department of Justice (Department of Justice) found that for every one thousand female students, thirty-five sexual assaults occur every year, making it clear that rape is now an unfortunate yet prominent factor in the typical college experience. The widespread reluctance of academic institutions to deal with rape as a disciplinary and legal issue compounds the prevalence of sexual assault. The end result for victims is falling grades, prolonged school absence, and for many, eventual school drop out or failure. Simply put, sexual assault is a significant barrier to equal education for young women today. . . .
In the context of criminal procedure protections for rape victims, the title of this symposium, Beyond Prosecution: Sexual Assault Victims Rights in Theory and Practice, is merely aspirational. It is aspirational because rape victims have not acquired much in the way of procedural rights with respect to confidentiality protections in sexual assault cases. This is true despite thirty years of rape law reform. It is time to move beyond aspirations and provide for direct victim enforcement of privacy protections. State constitutional rights of victim privacy can be utilized as a foundation. On this foundation, enabling legislation should provide for direct victim enforcement of various confidentiality laws. In this essay, the current rape shield laws serve as the vehicle for examining why victim privacy protections in general should be accompanied by direct victim enforcement. Ultimately, rape victims’ procedural rights to participate in both trial level rape shield hearings and pretrial appellate court review of adverse rulings are portable to other laws protecting crime victims’ privacy. . . .