How come sexual assault is one of hardest crime to prosecute vs every other crime?
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So I have a perspective on this. I was recently on a jury for a child sexual abuse trial. Now this was different because it was children so the question of consent was out the window, but the defense was “no I didn’t” and the only witnesses were the two victims, now teenagers. These were crimes that, by design, happened in private.
Now, of 12 jurors, every single one of us thought that this abuse actually happened. But on our first vote 3 of the 12 were unsure or leaning toward reasonable doubt. Because, in their view, the only evidence was the testimony of two people who were children at the time. Could they be lying? Could they be being manipulated? Have misunderstood what happened?
In the end we did convict, because we didn’t think it was reasonable that those two girls would come up with the story and stick with it through a tortuous process of hearings and a trial if it wasn’t actually true. But it took 2 days of debate to get everyone to that conclusion. If there had been any way at all to cast doubt on their story, it would have been tough to convict.
Speaking from experience, no one wants to believe you. No one wants to think children are assaulted, repeatedly, for years. Family are ashamed and protective. Law system handles it overly-delicately. And worst of all, some folks in charge are protecting themselves by making it difficult to prosecute. Coming out is the easiest part, and that’s saying a lot.
In addition to many other great answers — destruction of evidence.
If you’re raped, you likely want to get rid of any possible scent or dna or whatever of the perpetrator because you’ve just been violated. You’ll probably want to take a shower.
Go to the police and do a rape kit first. That’ll go a long way to providing evidence needed to prove the perpetrator guilty.
Speaking as someone who works in a county jail and works hand in hand with the courts……some jurisdictions are afraid to prosecute these crimes, and some will rush them. In the cases my county gets, I feel as if they are rushed and the victim doesn’t have enough time to process and overcome the situation, and is put in the spotlight when the trauma is still front and center in their mind. Victims aren’t given enough assistance to heal, which ends up making their testimony weaker. The taboo of sex in America also plays a big part, judges do not want to deal with it and seem to always take both sides before accepting charges.
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.
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
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.
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.
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.
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