How come sexual assault is one of hardest crime to prosecute vs every other crime?
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#1 and primarily– a lack of consent is difficult to prove. It’s easy to define, but defining it isn’t the matter here– it’s proving that it happened. Sexual activity can be proved, but the matter of consent is almost always one person’s words against another. Most crimes have a tendency to leave behind some kind of evidence, but many forms of sexual assault do not.
Beyond that, there are more factors. In no particular order:
-Unfortunately, it’s very easy to falsely accuse people of this crime, and it does happen often enough to be noted. It’s difficult to falsely accuse someone of beating you up, because law enforcement would expect to see evidence of physical assault. But it’s easy to accuse someone of sexual assault, especially if you actually did have sexual contact, because a complete lack of evidence is normal. So even though most accusations are probably true, there are enough false ones that the judicial system has to take seriously the possibility that the accusations are made up. Especially because of the consequences.
-It’s related to the evidence concern, but in a lot of cases it’s difficult for the victim to realize that they are the victim of the crime. Or to accept that truth. Many victims were too young to understand, or maybe intoxicated/drugged and don’t clearly remember what actually happened, or maybe there are circumstances that make the victim feel like it was a gray area (which it usually isn’t). So beyond the more obvious bravery required to come forward, sometimes victims don’t feel that it’s cut and dried. Also, the reputation for difficulty prosecuting makes itself even worse, as the victim may understand that it’s not likely to even be prosecuted if they don’t have evidence. They may feel like it’s a waste of their time.
-In the case of children, in some cases, it’s (arguably) better for the child to not draw excess attention to the incident. Especially with younger children who don’t fully understand the depth of what happened to them. Forcing them into the legal process and forcing them to bathe in the event may result in a bigger scar. This puts law enforcement, the judicial system, and psychologists at odds with each other– each has their own admirable goal and they are not always in sync. Is it objectively better to risk making a child’s trauma worse in order to prevent the possibility of others’ trauma? A difficult question to answer. If a plea deal can be had, it’s often the best compromise possible between everyone’s proper goals, which is one reason why sexual assault cases often plea way way down. Avoid making it worse for the victim, while still getting a shred of justice, and most importantly getting the guilt on record to act as a deterrent– it’s unfortunate that the perpetrator gets off easily in these cases, but hopefully a large % of them realize that they won’t get away with it a second time, and that’s something.
Most crimes are crimes no matter the circumstances, but with sex it’s only a crime if 1 party doesn’t consent. Like, in a murder trial, the defendant can’t just say the victim asked to be murdered, that’s still a crime, and pretty much no one asks to be murdered. But with sexual assault the defendant can say the other person said they wanted to do it, and now you have to prove they didn’t, which is nearly impossible. That’s why you really only see successful prosecution when the question of consent is removed (if the victim was a minor, drugs were involved, the attacker was in a position of authority over the victim, etc.)
Add to the above: DAs don’t prosecute it because it’s hard to win. Even when there is massive evidence, they choose other cases and decline to prosecute in SA cases because if they lose it’s a loss for them, and they want a winning record to show how effective they are.
Source: sheriff’s office sexual assault investigator, last week, re an active case
Former prosecutor here – child molestation cases were the hardest ones to win. It was often the word of the child vs the offender with little corroborating evidence. The child often would not testify or did so poorly, while the predator was a polished and well presenting adult.
The key is locking in other evidence and allowing the child to testify remotely. The jury can see the child but the child is off site and appearing via video. They can only see the attorney asking questions.
Two cases really stick with me through the years. In one, a woman was jogging in a state park. A man was playing with his kids at a nearby splash pad. He saw her, hid along the trail, and ambushed and raped her. She was pregnant, miscarried, caught an incurable STD, and her fiancée broke up with her afterwards. The offender was convicted, but she later killed herself.
The second was a man who vaginally raped his five year old daughter. She caved on the stand, despite testifying remotely, and would only cry. Fortunately, the offender called someone immediately after his arrest and said “go to my house and get the bloody panties out of the washer…get rid of them”. The line was recorded. I played that for the jury and it still took them three days of deliberation to convict him. He received 2 life sentences plus 100 years and will never be a free man again.
Another widespread problem is the turnover of prosecutors. States often pay prosecutors on par with state troopers, despite the attorneys having 7 years of education and $200k plus in student loan debt. As a result, the good ones leave for greener pastures because private law firms will pay top dollar for jury trial experience. I did this after 6 years with the State, and my salary tripled over night.
It’s down to the fact that the only defining characteristic differentiating “rape” and “rough sex” is consent. Consent leaves no physical evidence, and most people aren’t raping others in public.
This means most rape cases are “He said, she said” cases, with little to no way of telling whether this was a crime, or someone trying to get back at someone else. Not to mention that whatever few pieces of evidence could exist are typically quick to expire.
When courts are given a choice between letting a rapist walk, and ruining an innocent person’s life, they choose the latter. This makes rape an incredibly difficult thing to prove outside of certain circumstances
It involves sex which everybody does all the time. So, basically the ‘criminal’ version of the act is identical to the ‘non-criminal’ version of the act (minus the consent of one party) which takes place a gazillion times every day. Also, the non-criminal version of the act is not just fun, but it is one of the most important forces driving the evolution and continuation of human beings.
It usually takes place between two people in private, with no witnesses.
It usually comes down to a disagreement on whether it happened or not, so as a judge or a jury, there is no way to know which of the parties to believe and it is very difficult to put someone in jail or otherwise punished for something that cannot be proven with any degree of certainty.
It is usually between two people that know each other. And people that know each other are also the ones that have sex with each other. It is much easier to convict the very rare ‘stranger who jumps out of the bushes’ and assaults someone.
It’s hard to prove. Hard to get evidence that’ll hold up in court. There’s so much gray area.
Consent is the variable. Consent is often not explicitly communicated; nor is much else, actually. Much of the communication in sexual encounters is body language. Not opining on whether that should be the case, that just is the case most of the time.
Also, consent is not a one-time contractual agreement that fits nicely into a legal framework. It’s a continuous act. Consent is upheld until it is withdrawn. A person could withdraw their consent mid-coitus, and then what? Is the other person to blame for keeping going if that is not communicated? What if it’s communicated but not very clearly?
Furthermore, a person could consent to one type of sexual act, but not another. How is that boundary defined? Can one honestly expect the majority of people to actually do this, to know how to do this, when most people’s communication skills around intimacy are already so poor? I do a bit of this at age 29 with prospective partners, but I have a lot of experience… What about eighteen year olds hooking up at a party?
Finally, most sexual encounters happen in private. Nobody’s recording anything, there are no witnesses, so it’s he said she said. #MeToo asks to “believe women,” which is great for the public because often times people wrongly default to disbelieving women’s stories. However, a court of law can’t just “believe” someone without evidence.
So anecdotal evidence from individual testimonies is often the best thing the court has to go on. And it’s just not enough. Similar testimonies from different people of repeat offenses can make a more compelling case, but even then, it’s all anecdotal.
This becomes especially problematic with high profile cases. For any random man, it’s ridiculous to think that 6 women from his past would team up to make up sexual assault stories to frame him. But for a public official with shady opponents who have multimillion dollar budgets, or for a celebrity… it’s actually quite reasonable to think there could be a conspiracy.
So… I don’t think we’re going to have a world where people record their sex acts in case they need legal protection. I don’t think we’ll have “consent forms” or something you can tap on your phone to say you’re okay with fucking missionary but not doggystyle and no oral. I could see dating apps doing something like that for hookups, but I think that would be a huge, dystopian overreach into people’s private lives and frankly they probably wouldn’t want to take on the liability anyway.
I do think we should continue to normalize asking for consent, reaffirming consent, communicating about boundaries and expectations. That’s not a legal solution, but I think it will go a LONG WAY.
Generally, it’s the burden of proof. I live in the UK, in the UK the criminal burden of proof is reasonable doubt. So if a reasonable person could doubt the assault occurred when considering the evidence, then they need to acquit.
Generally, by the nature of the crime, there’s often little evidence. Usually these things happen in private, and often involve substance use (usually alcohol). Its very difficult to prove something beyond doubt when it’s one person’s word against that of another.
Looking at rape specifically, you’d need to prove that penetrative sex occurred, and that there was no consentat that time. That two things that can be difficult to prove, because often there’s no actual evidence one way or another. Mix in substance use and time between the event and the case, and there’s plenty of room for doubt.
But it’s also important to remember that not guilty isn’t the same as innocent; rarely does a case prove someone innocent. (But this is also why false allegations can be so damaging)
Because you don’t just have to prove that an action occurred (i.e. the two parties had sex or one party touched another party breasts) but also have to prove that the other party did not consent.
Sex and sexual contact are normal parts of society. Its not like robbery where you can simply prove that one party has a stolen watch from a stranger or assault where you simply have to prove that one party hit the other party. You have to prove that the action occurred and the alleged victim did not consent to it.
A common defense will be the defendant claiming that it was consensual. Unless it was recorded or witnessed by a third party, it can be difficult to prove beyond a reasonable doubt which version of events is accurate. Sure, in cases of a home invasion where theres a front door that’s been kicked in, lack of consent can be reasonably inferred. It’s more challenging to prove when two parties go out on a date and go back to one of their places and the next morning one party is saying they had consensual sex that was rough because that’s what the other party said they liked and the other party is claiming they said no and it was rape. If there’s no recording of the sexual act and no independent witness to corroborate one person’s account, its hard to prove who is telling the truth.
And remember that our judicial systems checks and balances are designed to keep innocent people out of jail, not to put guilty people in jail. Which is why in order to get a criminal conviction, you have to unanimously convince a jury of your peers beyond a reasonable doubt that the accused is guilty. If even one out of the twelve jurors isn’t convinced that it happened the way you claim it happened, you get q mistrial.
Lets ELI5 this shit:
Me and you are in the house playing monopoly. I take your Blue buildings from you. You didn’t want to give me these buildings. You go and tell mom that I stole from you. I tell her that I didn’t steal, you gave them to me.
We know that the transaction happened (I got the Blue Buildings), but we don’t know if you gave me the buildings or I took them.
Because Mom (the court) only gives out punishments if she is 99.9% sure a crime actually happened, she won’t give me a punishment, even though it is likely you aren’t lying.
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