"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.