How come sexual assault is one of hardest crime to prosecute vs every other crime?
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1. No witnesses, hard to prove. Perps know this as well
2. Because of culture, the victim often blames themselves or are super embarrassed to come forward, indeed it’s almost like a drug theft in that because of the social dynamics of a situation it’s usually not even in the victims interest to come forward. Imagine if your societal script demanded you kill yourself if you were raped. You’d probably e like no siree I wasn’t raped, at least if you didn’t want to die.
2a. That is an extreme example, I think in western culture in the USA we have bad cultural scripts that also make it not in the victims interest. Half the USA still has strong purity culture for women, (and toxic masculinity for men) but even in places where it doesn’t exist strongly there is still an assumption that rape always causes mental illness and then you have all these stigmas and assumptions about mental illness. So why would you want that? Just convince yourself it was not rape or give up on the 10 percent chance the rapist gets caught by not reporting.
2b that’s if your believed, if you have an unconventional rape or get unlucky, or get raped by a social superior you still won’t be believed. The MeToo movement has really made it so millionaire actresses with huge twitter followings are safe from billionaire CEO’s, but I’m not sure it’s done much otherwise. Probably helped middle class office environments in some ways and made them more sterile and boring in other ways.
3 American police kinda suck unless one of their own was criminalized so don’t hold your breath for a good investigation.
There’s a reason why attackers often tell their victims that “no one will believe you” and that “everyone will hate them and think differently if you tell.” That’s why we have grown humans thinking an article of clothing can and/or is an invitation.
They’re hard to prove. Sure, you could prove that sex happened but then you’d have to prove that it was unwanted. Without any record of consent/non-consent (a text, voice recording, video) you have to prove that the perp had sex with the victim against their wishes.
It’s so hard to prosecute because the burden of proof lies with the victim. In every court in the world where rape and sexual assault is illegal this is the case. The victim must prove the crime happened rather than the accused proving it didn’t.
There’s rarely any evidence. This is partially because the victim typically isn’t ready to press charges until a while after, sometimes years later. At that point, the biological evidence is gone. Your best bet is the perpetrator having bragged to people via text message or having taken photos, but even that could be gone.
Another aspect is the actual process of testifying as a victim of something traumatic. Your rapist is in the room, and you have this lawyer trying to discredit you in every way possible. Few victims can handle that, and even those who do it might not to a good job because of that.
Finally, in my experience, the police just don’t seem to care about it very much, perhaps because they know it will rarely result in prosecution. From what I’ve seen, they never took his phone or read his texts and never even talked to him. It just seems like they should have done more, but maybe an accusation isn’t enough evidence for a subpoena? Regardless, we didn’t see much of an investigation.
Victims often stop cooperating with the police and prosecutors. They don’t want to go to court, they don’t want to have to face the person who raped/assaulted them, they don’t want to have to relive the incident in excruciating detail, they dont want to be humiliated on the stand by the perp’s defense lawyer. They want to heal, they want to put the incident in the past, they want to move on with their lives. In the case of “date rape”, they are often seen out with the perp, talking, smiling, laughing, having a good time, which is all used against them when it comes to the trial. Alcohol, sometimes large amounts, is often consumed by both parties, leading to doubt as to what actually happened, even in the victim’s mind. Victims often feel guilty themselves, like they did something to encourage the perp or lead them on. Also, police and prosecutors are often men, and many men are afraid of being falsely accused of rape and sadly it colors their perspective in the case. There is also the issue of cometence, as sexual assault cases require a lot of experiance and training to investigate and prosecute correctly, but often the first contact is a street level cop with just a couple of years experience and little sexual assault training. Physical evidence is often minimal, and often lost as victims feel unclean or dirty after the assault and clean themselves up, washing away what evidence there was. It can also be several days before the victim can even bring themselves to tell anyone what happened. So DNA is lost and bruises or injuries have healed and one is left with a “he said, she said” case. All of these things are completely understandable, even normal actions and reactions on the part of the victim. But in a system in which a defendent is presumed completely innocent until convincely proved otherwise, all these things and more are huge roadblocks.
The legal system puts the burden of proof on the accusing party for all crimes. This means that any crime without witnesses that cannot be proven strictly through evidence is difficult to get a conviction on.
This is compounded by a higher than average number of baseless accusations in this particular subject.
Making matters worse the entire definition is legally subjective and doesn’t mesh well with what many people would consider normal behavior as a legal criteria.
One of the more common definitions goes as follows:
sexual assault refers to sexual contact or behavior that occurs without explicit consent of the victim
Courts have also established that either party can revoke consent at any time.
This leaves a number of significant gaps where there is massive potential for the kind of reasonable doubt that results in an acquittal.
For nonviolent cases you have a judgement call if the action even happened, then if it was sexual in nature then if a reasonable person would have thought consent was given.
Going in order, and using extreme examples on purpose for clarity:
Did the event happen can be if it happened at all, but it can also be if it happened the way it was reported and if the accused intended the result. If you reach back behind you to hand something to a female coworker and end up smacking them in the chest HR or a jury gets to decide if that was accidental or on purpose. Barring an established pattern of behavior they are usually going to err on the side of accidental.
Next if it is sexual: this always comes down to intent. If you are standing at a crosswalk waiting for traffic to clear and someone starts to step past you most people are going to stick an arm out. The way most folks do that is diagonally with the palm towards who they are trying to stop. Unless they see your arm and stop you are going to touch something you probably shouldn’t under normal circumstances and they are the ones that walked into you so 99% of the time no issues & everybody goes on with their day, the problem arrises when either the person being stopped overreacts or someone who actually is a creep uses this pretext to grab a feel repeatedly. Both do happen.
Arguably the worst part to make a determination on is the consent.
Legally neither party can absolutely consent when drinking or otherwise intoxicated, but 80-90% of us do drink or get high at least once and 39-57% of those manage to have some sex afterwards.
Right out of the gate almost 1/3 or more of the population has possibly committed sexual assault at least technically.
The next issue is the duration of consent. It isn’t eternal, but there are practical limits to how short it can be considered to be valid as well. The least graphic example would be sleeping in a shared bed. 62% or more of us will do this during our lives and a significant portion of those people will at some point end up having contact that could be considered sexual in various ways without explicitly discussing it first. Does waking up as the little spoon in the morning mean you were sexually assaulted? The law leaves this to the jury as well.
Finally, what constitutes consent. Not all consent is verbal and some demographics strongly prefer it NOT be verbal for various reasons. ‘stop talking or go home’ levels of preference at times. I have never seen statistics on exactly how many, but it is not uncommon.
The vast majority of the population sees situations where all of these things are permissable if not desirable.
None of this is presented as an excuse to truly malevolent behavior. Deliberately doing such a thing knowing that consent is absent is bad, but less then 30% of the population even agrees on the ground rules so it is effectively impossible to have a legal framework here that has solid boundaries. It has to be looked at situation by situation and that makes ‘beyond a reasonable doubt’ much harder to achieve.
Victim: they raped me
Accused: it was consentual
Prove that. Semen is expected in consentual sex, most sexual assaults are people that know each other so have a ‘relationship’ already.
E.g. My rapist was a very close friend. We had previously had a sexual relationship, we had gone out drinking and I had invited him back to mine. He had a girlfriend so I didn’t want to fuck. He did it anyway.
He was so drunk he didn’t even remember really.
How do I prove I said no? I can’t. Even if I took it to court they would argue all of the above and if he said he thought it was consentual then what?
Turned out his then gf had a rape kink so at that time his behaviour was normalised to him.
The victim needs to do a rape test within 48 hours to get evidence. Usually that’s the last thing on there mind during that horrendous time.
If they have no marks, it’s a random attack and no witnesses. It’s hard to find evidence.
Also lots of victims are shameful and don’t want everyone to know and to re-live it . They have to testify in front of the perpetrator and their family etc
I know of 3 people who served on 3 separate juries for sexual assault *all* had that one juror who thought the victim was “asking for it” and consented through….body language? Social proximity? What they wore?
The other jurors spent the majority of their time working on that stereotyped logic of the hold out juror. I think that’s why prosecutors are hesitant to bring SA cases to trial. Jurors are the untrained group in the court room who bring in their own prejudices and prior socializations.
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