“Modest Reforms” for Rape Cases, and Why They’re A Bad Idea

Last week, a high-powered Florida trial attorney named Roy Black penned a piece in Salon.com in which he argued for “modest reforms” in how sexual assault cases are charged and tried. Black successfully defended William Kennedy Smith in 1991, when he was a little younger than I am now.  He has defended Rush Limbaugh, trans-national corporations and thousands of other entities in an over 40 year career.

He has my admiration for being a zealous advocate.  He’s dead wrong on the reforms he calls for.

He’s of course correct that we should protect those accused of rape. Safeguards of due process and a presumption of innocence are crucial to American justice, in sex assault cases as much as any other. Similarly, there is reasonableness and even some sympathy in his arguments regarding the media attention and rush to judgment some sexual assault accusations generate, particularly involving celebrities. But the rush to judgment is a two-way street.  As my friend and colleague Anne Munch notes, the “rush” is usually around the victim being a presumed a liar or slut.  Kobe Bryant is classic example of this.  Analysis of media coverage in the first 5 months following the charge against him is an astonishing example of a rush to judgment by people completely unfamiliar with the case or the victim.   Hundreds of people issued death threats against her for reporting in the first place.

Black’s other arguments are a tired recitation of rape mythology, particularly where he asserts, both with innuendo and flawed research, that accusations of sexual violence are commonly false (they are in fact no more common at most than false reports of any other crime) and easy to level at innocent men. These two baseless claims are what underpin the “modest reforms” he suggests.

At the outset, it’s important to note that Black and many defense attorneys probably want these myths to remain firmly embedded in the American psyche; hence his reliance on false allegation studies so deeply flawed they are critiqued even on Wikipedia, to which his essay links.  Also misleading are his use of statistics from the FBI; classification differences and unreliable input are behind the disparity noted between rape and other crimes tracked by that agency.

The more these myths continue to find purchase in what is essentially a national jury pool, the more easily acquittals are achieved. Defense attorneys must be focused on protecting their clients from criminal liability by all legal and ethical means. It’s not legally unethical to appeal to long-standing but patently untrue myths surrounding sexual violence. But perpetrating myths doesn’t make them any less false or damaging. Thus, every one of Black’s “reforms” would create not an acknowledgement of reality, but rather a return to a time where reality was cloaked in myth–  myth that protected perpetrators, silenced victims, and helped to further truncate and fracture lives already altered by sexual violence.

The idea that rape is an accusation “easily made but not easily defended,” for instance, never existed in reality, but only in the minds of men who could enforce this paranoid fantasy in courts of law.  In fact, most victims don’t report being sexually assaulted; it remains a chronically under-reported crime and a tiny percentage of victims ever see their rapists legally punished.  Those who dare to report, like the women who accused Kobe Bryant and Dominique Strauss-Kahn, have found their lives ripped apart and turned upside down.

Similarly, “Rape Shield” laws do not prevent cross-examination of a victim on conduct that is legitimately relevant. Several exceptions exist in every jurisdiction, including a catch-all, “in the interests of justice” one in some states allowing almost any type of questioning under certain circumstances. What appropriate Rape Shield laws do is prevent perversely placing the victim on trial for behavior, dress or reputation that don’t speak to whether she consented to a sex act, but that serve to demonize her in a way that makes legally vindicating her less compelling. It’s a nullification tactic: If the victim can be made to look like “she was asking for it,” or that she isn’t of sufficient moral character, then a jury is less likely to convict even if they believe a crime was perpetrated.

Hand in hand with this tactic is Black’s suggestion that intoxication on the part of the accused be viewed the same way as on the part of the victim.  Nonsense. Alcohol is a diversion, however unhealthy, for victims.  It is a weapon for perpetrators, commonly wielded to reduce resistance, cloud perception, impugn character, and negate suspicion by disguising the crime as a misunderstanding.  Perpetrators are not otherwise upstanding citizens possessed by “demon rum.” Alcohol facilitates rape. It does not cause rape.

Even more bizarre is the suggestion that corroboration and some showing of force or a threat be present before a case is filed. These two antiquated rules rested on the utterly inaccurate belief that “real” rape necessarily involves physical injury, the use of weapons, and intuitive reactions on the part of the victim. In fact, most men who rape use only the force necessary to accomplish the act, and do not use weapons or violence. Physical injury is rare. Victims display a wide range of emotional reactions, some of which don’t fit the expectations of people unfamiliar with sexual violence dynamics.

Allowing myths to prevent justice in sexual violence cases can affect more than the interests of the immediate victim. It also allows perpetrators to continue to offend. Recent and replicated research documents that most rapists are serial rapists, whether their MO is to attack strangers or victims they know. When myth-based legal tactics allow a perpetrator to escape justice, there is significant reason to believe he’ll strike again.

Inaccurate perceptions and myths also serve to re-victimize rape survivors in hideous ways. Valid victims have been jailed for filing false reports because authority figures wrongly believed they were lying. These mistakes have done more than unfairly punish victims; in some cases they have allowed rapists to strike again, even to the point of murder. My organization’s Start By Believing campaign in part addresses these miscarriages of justice in an effort to prevent them.

It is fair to ask what is gained for a truth-seeking system of justice by things like the “perp-walk” before cameras. Reforms in how we respond to the unblinking eye of the media cycle where high profile crime is concerned are worth considering. But these reforms should not be conflated with suggestions that seek not to level the playing field, but rather to tilt it further in favor of perpetrators who, in so many ways, elude justice enough already.

13 thoughts on ““Modest Reforms” for Rape Cases, and Why They’re A Bad Idea

  1. Andrew MacKie-Mason

    The main qualm I have with what you wrote is about alcohol. There are jurisdictions that make intoxication of the victim sufficient to demonstrate rape, on the theory that intoxicated individuals cannot properly consent. If the prosecution is relying on alcohol for their theory of the crime (they cannot otherwise demonstrate force or coercion or lack of consent) then they should also have to show that the perpetrator *was* aware of his actions, the state of the alleged victim, etc. Mens rea demands it: if alcohol prevents someone from consenting, it may very well prevent them from accurately recognizing a lack of consent.

    If two heavily intoxicated people have sex and one person regrets it, the other should not be called a rapist. (Statistics are largely irrelevant here. The fact that it rarely happens is no excuse for the law being written in a way that allows it.)

  2. jamie moss

    i am a rape victim and the reason why we do not report it, is because it is not use. there is barely any justice that the victim will get, we are dragged through the mud, disbelieved by folks, and no matter what u do to the perpertrator, the memory of what happens still flashes back more times more often then u could imagine. for 10 minutes of pleasure for them the victim suffers a lifetime. in relatiionships, self esteem, sometimes being mean just to keep people at a distance.
    the one who committs the crimes should have more severe punishments then what the court allows now. they will never pay the cost that the victim pays. the faces in my dreams will always be there. i push men away so they do not have to deal with what i go through still. and no law makers it never goes away. but honestly i wish all the law makers and congress would go through what the victim does and see if it is just punishment for them.
    the offenders have no rights. it does not matter if the female had been drinking or not. she is not coherant and i have seen drunk females and u can tell. but regardless she was not coherant bottom line. and most offenders know. but then no one should get drunk to the point they do not know what is going on.
    but bottom line let me know when the law makers r raped and then ask this question to them and see what the response would be. trust me the laws would b stronger and inforced even harder. but u have people commenting on something they have never went through. let me know when they do.

  3. Roger Canaff Post author

    Thanks, Andrew, for you comment. You’re correct that every jurisdiction to my knowledge allows for a sexual assault prosecution if the facts are that the defendant engaged in sexual conduct with a person unable to consent because of intoxication, whether voluntary or involuntary on her part.

    But you write: “if the prosecution is relying on alcohol for their theory of the crime (they cannot otherwise demonstrate force or coercion or lack of consent [my emphasis] then they should also have to show that the perpetrator *was* aware of his actions, the state of the alleged victim, etc.”

    I’m not sure what you’re getting at. If the theory of the case is that the defendant sexually penetrated or touched the victim when she was in a state of intoxication such that she simply could not consent (i.e., she was unconscious or semi-conscious and the defendant knew or should have known), then that’s all the evidence of a lack of consent we need. You seem to suggest that a “theory of alcohol” can exist even though non-consent isn’t proven. Not true. As long as the theory involving alcohol is that alcohol made the victim unable to consent (as if she were in a coma, for instance) then non-consent is demonstrated.

    Further, you’re relating the actions of the defendant and the victim in a way I don’t understand. First, no matter what the theory of the crime is (i.e., what actions the government will argue the defendant engaged in to achieve his purpose), the government does have to prove that the defendant was aware of his actions and the state of the victim– it’s only to what extent that differs. Remember, rape is a general intent crime. Something like “sexually touching the victim with the intent to humiliate or abuse her” is a specific intent crime. In addition to having the general intent to touch her sexually, he must also desire to do that for the additional purpose of humiliating or abusing her.

    For general intent crimes, mens rea is still required, but the state of mind that satisfies the mens rea is less than (and in some ways different from) what it is for specific intent crimes. You are correct that voluntary intoxication by the defendant cannot be a defense to a general intent crime. The reasoning is that a person knows or should know that voluntarily becoming intoxicated might make them more reckless, aggressive, etc. So for the conscious decision to imbibe at some sober point, one cannot duck consequences flowing from it. Therefore, if a drunk guy intends to sexually penetrate a woman whom he knows or should know either isn’t consenting or can’t consent, he is guilty of rape. I understand this might trouble you and others, but it is well settled law- choosing to get drunk might IN FACT make you unable to form various types of intentions. But by law, you are deemed to be responsible for them where general intent is concerned.

    Remember also, though- an affirmative defense exists when a defendant (drunk or not) incorrectly but honestly and reasonably believes that his victim is consenting or can consent. If his belief is sincere and a similarly situated reasonable person would have held it, then it negates mens rea and he’s not guilty. But here again, he’ll be held to a reasonable person standard- not a reasonable drunk person standard. If he chooses to drink and that choice clouds his ability to read signals or see and judge reactions, then that’s not going to relieve him from criminal responsibility.

    However, alcohol can negate the specific intent required for the additional “goal” or desired outcome that is a part of specific intent crimes. So go back to the specific intent crime example from above. Let’s say a man sexually gropes a woman because she is Hindu and he despises Hindus and seeks to humiliate her by groping her. He is guilty of groping her simply because he intended to touch someone sexually whom he knew or should have known didn’t want him to. But he is guilty of the “with the intent to abuse, humiliate or degrade” part because of what he wanted out of the groping in addition to “just” the touching. So, if he can show that he was so drunk that he could not form the intent to grope her in order to abuse her because her religion, then he can’t be found guilty of that aspect of the crime. He’ll have to be found guilty only of the lesser, general intent crime of sexual assault, or whatever that jurisdiction calls it.

    As a side point, I’d also add that, at some point of extreme intoxication, a man becomes physically unable to obtain and maintain an erection, particularly until ejaculation. That’s not just myth- I’ve gotten confirmation from doctors and nurses over the years who understand the vascular system and how alcohol affects sexual potency. It’s also not a strict legal guideline, but it can be argued through expert testimony (perhaps) if it seems relevant. So if a man’s story is “yeah, I penetrated her with my penis and eventually ejaculated, and I know now that she wasn’t into it but I was so out of my mind drunk at the time that I just couldn’t tell when it was happening” then I’m dubious. Again- it’s not a strict legal rule, but it can go into the calculus.

    I agree with you that, if two intoxicated people have sex and one person regrets it, the other should not be called a rapist. But I don’t see how the law allows for that except for what I noted above. Yeah- if a guy gets incredibly drunk on his own volition, then forms the intent at some later time to sexually penetrate a person who either isn’t consenting or can’t consent, then he’s guilty of rape and should be. He should not be guilty of a specific intent crime (such as raping her to humiliate, abuse or degrade her) if he is truly out of his mind intoxicated- that’s the law. But the voluntary decision to get intoxicated carries with it the risk of being found guilty of a general intent crime. I’m okay with that.

  4. Roger Canaff Post author

    Thank you, Jamie, for your comment, and I am sorry for what you experienced. I agree with you that, oftentimes, there is or appears to be no use in reporting a sexual offense. The deck really is stacked against justice for victims in almost every way. Thanks again for joining the conversation, and I hope that you continue to heal and feel better. All I can tell you that’s positive is this: The efforts of many great people in the movement and the courage of people like you to come out and express what they went through and how they feel about it really are changing things. It’s just a terribly slow process. Again- thanks for joining the conversation.

  5. Andrew MacKie-Mason

    Roger, I agree with most of what you say. However, my concern lies in this:

    Current law in many jurisdictions would allow there to be a level of intoxication that both individuals shared where one individual could say to another, “Do you want to have sex?” they could reply, “Yes,” and the first individual could be guilty of rape.

    If there are levels of intoxication (or all levels of intoxication) at which you’re still responsible for everything you do, even if you don’t know you’re doing it, then the same standard should be applied to affirmative consent: if someone gets drunk and then actively seeks out or affirmatively consents to sex, then they should be considered to have consented under the same theory that says that raping someone at the same level of intoxication is done with a guilty mind.

    By the way, the talk of erection and ejaculation under intoxication is a red herring. First of all, it differs by individual, so it would require individualized proof. But more relevantly, there isn’t a jurisdiction I’m aware of that requires penile penetration and ejaculation to support a rape charge.

  6. brendon

    Roger,

    The challenge with alcohol lies in determining at which point a person no longer has the mental capactity to consent. As you know we have a continuing problem in the military with many well intended but horribly misinformed sexaul assualt coordinators pushing the myth that any degree of intoxication (or even any alcohol consumption at all) renders a sexual encounter assualt or rape (this misinformation has led to several false allegations in my experience). Sadly the miltiary rape statue singularly fails to define what it means to be “substantially incapacitated.” Under the current statute two people with the same degree of intoxication could have sex and BOTH could be charged with a crime against the other (with each simultaneously being a victim and perpatrator). Part of this problem is the lack of consensus on how we define “capacity” to consent. I’ve encountered people how’ve argued that essentially any degree of intoxication necessarily degrades capacity and renders the intoxicated person incapable of giving meaningful consent. On the other hand the law (in the past at least) has ususally said that in order to be so drunk that you cannot legally consent you have to be either unconscious or so blitzed you are incapable of even being aware of the conduct you are engaging in.

    By way, I think the erection issue is a bit of red hearring for two reasons – one is that it conflates the ability to achieve and maintain an erection to mental capacity and I don’t think there is any evidence whatsoever that can be relied on to conclude that erection = capacity to consent (depending, of course, on who we define capacity to consent). The second reason is that it potentially creates one hell of a double standard – all men who have erections have the capacity to consent while all women are evaluated individually based on differnt criteria.

    Finally, I thought virutally all of Black’s suggestions were stupid — especially the whole keep the accused annonymous angle. There is the whole constitutional thing about public trials and free press that pretty much makes that suggestion a non-starter. I hate the perp walk, but other than prosecutors and cops deciding to give up the dispicable practice (which they’ll never do – its way too useful to them) I don’t see much that can be done about it.

  7. Andrew MacKie-Mason

    Brendon,

    Just one quibble: the constitutional guarantee of a public trial is generally considered a right of the defendant to protect against secret, unaccountable convictions. I don’t see why that would interfere with keeping the accused anonymous, so long as the accused consented.

    Of course, there are other problems with that proposal, but I don’t think the public trial guarantee is one of them.

  8. Roger Canaff Post author

    Andrew, I hope I didn’t overstate my “reliance” on the erection/ejaculation and alcohol thing. I wasn’t trying to do that. I specifically noted that it was a side point, meaning I more or less agree with you that it can be a ‘red herring’ under certain circumstances. But it can, under certain circumstances, be a part of making sense of a case.

    You are correct (to my knowledge) that no jurisdiction requires ejaculation to support a rape charge. But some jurisdictions do require penile penetration for a rape charge. Of course, in these states, other types of unlawful sexual penetration of the genital opening or anus are categorized as other felonies, but the word “rape” in some jurisdictions means penetration of the female genital opening by the penis. It’s really semantic- every jurisdiction punishes unlawful penetration of the sexual organs or anus as a felony, and usually a serious one. But jurisdictions like Virgina, where I practiced for seven years, criminalize rape only in the antiquated sense, meaning the penetration of the female genital opening by the penis.

    I agree that the level of intox in order to render a person impotent differs from person to person, and thus it is very difficult to “use” this medical phenomenon legally. But it’s not necessarily impossible. Again- I’m a lawyer, Andrew. I choose my words (generally) with care. I said it wasn’t a strict legal rule, but that it was something that can go into the calculus. I meant that it could go into the calculus of a prosecution theory and strategy- maybe. The example I gave with the lurid quote was particularly illustrative, but I doubt I would see it much in real life. Still, I used it to make a point. If a guy claims to have been in a totally, grossly inebriated state, but there is evidence that he was able to obtain and maintain an erection, I become dubious. I suspect that he was not as “out of his mind” as he claims. People throughout history have used voluntary intoxication as a justification for all manner of bad acts. Usually, it’s just a judgment call as to whether the justification is real. With the physical phenomenon of alcohol and potency, there is at least something to analyze. It’s far from perfect and hardly conclusive. But it’s something. That’s all I was trying to put across.

  9. Andrew MacKie-Mason

    Roger,

    That’s all well and good, but none of it is actually reflected in the law, to my knowledge. I pointed out that the various things would require individualized evidence because the fact that they are so means that the law needs to actually take them into account, rather than just assuming “ability to maintain erection = knowing what he was doing,” and thus not making the latter a necessary thing to prove.

  10. saskia

    America is a great country, but some american men, are really,,,, they have no respect for women at all.
    they have double standards to start with

    “”sluts are good to fuck but when it comes to marriage suddenly they want a “”clean””Innocent”” girl,

  11. Roger Canaff Post author

    Andrew, I always appreciate your comments, but I’m not sure if I’m following you here. Obviously, not every possible circumstance in life that could be legally relevant is “reflected” in the law. What is or is not admissible is a legal decision based on factual circumstances. Ability to maintain erection certainly doesn’t “equal” knowing what one is doing by any clear legal standard. There’s no way it could or would ever be that turn-key, and it shouldn’t be. But in terms of making sense of a case, even if not admissible, it might be valuable. That’s about as far as I’d go with it. But a medical phenomenon is still a medical phenomenon- I won’t make too much of it, but I won’t ignore it just because it’s not actually reflected in some legal rule. It doesn’t have to be- the issue is how you use the phenomenon in conjunction with a bunch of other facts. Maybe not at all. Maybe just to help you (the DA) make sense of it. Maybe in evidence. Depends.

  12. Roger Canaff Post author

    Brendon, you’re correct that “substantial Incapacity” in the military context is an as-yet undefined legal standard. I never blog about my official duties here and I can’t now, but I’ll acknowledge that SI is still an elusive concept for UCMJ practitioners. I would not agree, in a military context or a civilian one, that any amount of intoxication “automatically” negates consent. It cannot work that way. I actually have not encountered many people in professional life who hold that view (thankfully) but I do know they’re out there.

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