Those of us who advocate for student survivors’ Title IX rights will tell you the question we get asked the most, bar none, is why schools have any business responding to rape reports, beyond perhaps placing a call to 911. That was, of course, the reaction of Darbi’s principal at Pennridge, too. The association between rape and the police is so strong that a survivor’s decision not to file a criminal report is often seen as evidence that they’re lying. In 2018, when Christine Blasey Ford accused then Supreme Court nominee Brett Kavanaugh of sexually assaulting her when the two were teenagers, many, including the president, cited the fact that she had not made a criminal complaint as evidence that her account was not trustworthy.
I get the instinct. As an undergrad, I applied to a summer job at a New York nonprofit that provides legal services to domestic violence victims. I don’t remember much about the interview, but one moment has stuck with me. The attorney I hoped would hire me spoke about the kinds of help they offer spouses fleeing domestic abuse. I naively commented, Of course, you tell them to report to the police. I was surprised by her answer: No. Sometimes, she explained, that is not the right choice. I did not get the job.
For me, the exchange illustrates how even those with the best intentions can misunderstand survivors’ needs and overstate the usefulness of the criminal legal system. By the time of my interview, I knew from my studies that sexual assault is the most underreported serious crime: only 23 percent of sexual assaults are reported to the police, compared to over 60 percent of batteries and robberies. And I had, by that point, experienced sexual harms myself, and had not once considered calling the police. Nevertheless, it seemed obvious to me that reporting was the right course for someone else. It took years of work with survivors for me to understand why they—why we—do not come forward in the ways everyone else tends to expect. I had viewed a victim’s choice not to seek police help as a mistake, if an understandable one. But I have learned that it is, instead, a decision based on a reasoned cost-benefit analysis about what good, and what harm, might come from the criminal legal system.
For the majority of survivors, criminal law is an incomplete and sometimes dangerous “solution” to rely on in the wake of violence. I’ve discussed some of the reasons already. Perhaps most importantly, there are plenty of remedies that police and prosecutors simply cannot provide, and not everyone wants to see their assailant in prison. Plus, much sexual harassment (for example, most verbal abuse) does not violate any criminal laws. And many victims prefer to turn to an institution they already know and trust.
But there’s also another fundamental mistake made by the people who instinctively assume that we should leave sexual harms to the criminal legal system: they assume, as I did during that ill-fated interview, that police and prosecutors serve sexual violence victims well. That common belief, though, could not be further from the truth. When survivors report, they often face skepticism, abuse, and even the risk of imprisonment, all for a minuscule shot at some imperfect vision of justice. To even try to cover all of the ways criminal law fails victims would take a book of its own (as the many existing books on the topic show). But I’d like to discuss, at least briefly, some of the most notable issues.
TO BEGIN WITH, victims who turn to the police in the wake of sexual assault encounter a system that is startlingly unlikely to convict reported assailants. Readers will remember that very few sexual assault reports lead to arrest (20 percent) or are referred to prosecutors (4 percent). Even fewer—only about 2 percent—result in felony convictions. Reported sexual assaults are about three times less likely to result in convictions than nonsexual assaults and batteries.
I find these numbers significant even though I don’t see convictions as a true and straightforward measure of justice, given the horrors of incarceration and its incompleteness as a remedy for victims. Regardless of my values, low conviction rates reflect the criminal system’s failures on its own terms. And if we are asking what criminal law can provide victims, these statistics demonstrate the unlikelihood that the system will be willing or able to make good on its promises.
So what’s driving these low rates of arrests, prosecutions, and convictions? It’s not, as many believe, that reports of sexual assault are far more likely to be false than reports of other crimes. Instead, dropped cases are largely the product of biases that permeate police stations, judges’ chambers, and jury boxes, and inform the decisions prosecutors make. Survivors hear those messages loud and clear.
Law enforcement skepticism of sexual assault reports is rooted in police acceptance of “rape myths”—common misconceptions that shape how society views victims. A 1997 study of police officers found that half adhered to victim-blaming ideologies and obsolete legal definitions. For example, one officer stated that “the ‘man in the bushes’ is a much bigger threat to the community than the date that got carried away,” even though the vast majority of perpetrators target people they know. Another pondered, “What if someone has had sex twenty or thirty times over a three-month period. Then one night they say ‘no.’ Should this be rape? I don’t think so.” A third officer explained, “Sometimes a guy can’t stop himself. He gets egged on by the girl. Rape must involve force—and that’s really rare.” And a fourth veered into fantasy territory: “Rape is just rough sex that a girl changed her mind about later on. Technically, rape is a sex act done by the use of force, but so many girls are into being forced, that you can’t tell the difference and you wouldn’t want to convict an innocent guy.” All of these statements are false as a matter of both ethics and law.
And while police views may have evolved in more recent years, research suggests those changes have been insufficient. In a 2010 study, less than half of surveyed officers said they were likely to believe a woman who said she was raped by her husband, even though marital rape is now illegal in all fifty states. (In light of these attitudes, it is perhaps not so surprising that police officers themselves commit sexual violence at alarmingly high rates.)
Police officers are particularly unlikely to believe survivors who deviate from our popular model of the “perfect victim”—generally, a white, heterosexual, cisgender, virginal, middle-class (or richer) woman, who was not drinking, using drugs, or selling sex, who did not know her assailant, and who fought to get away, ideally under the threat of some kind of weapon. Almost none of us are described by such a portrait. One “requirement” alone knocks three-quarters of survivors out of the running: the vast majority know their abuser. Yet many police officers still expect victims to fit the narrow mold.
The role these biases play in police decision-making isn’t subtle. For instance, a 2007 study found that 44 percent of officers felt they would likely not believe a report of rape from a sex worker. Survivors can feel this kind of skepticism. Almost half of the women in one study who had called the police about partner abuse felt that officers had discriminated against them. Most felt that this discrimination was due to “not being a ‘perfect’ victim” because of, among other things, their “income, reputation, disability, [or] sexual identity.”
Many police officers also endorse another common myth: that all victims are women and all perpetrators are men. In a 2010 study of several dozen detectives who dealt with sexual assault, none “had heard of female-on-male rape”—even though thousands of such assaults occur each year. And 34 percent of officers surveyed in another study published that same year did not believe the statement “any man can be raped.” Not unexpectedly, then, male victims are less likely than women to report intimate partner violence, especially to police.
In light of this widespread incredulity and ignorance, it should come as no surprise that police officers tend to overestimate the prevalence of false rape reports. For any crime, it’s hard to know exactly what percentage of reports are untrue. After all, people generally don’t tell you they’re lying. But all methodologically rigorous studies converge on rates between 2 and 8 percent of all rape reports, a range similar to that for other crimes. (I’ll get further into the weeds of this research in a later chapter.) Yet a 2014 study drawn from interviews with law enforcement officers found that more than 80 percent believed false rape reports are more common than that. Most startlingly, the majority of officers believed most rape reports were false. Who could blame survivors, then, for deciding not to report?
AND WHAT IF a survivor does make her way past police officers’ ingrained skepticism? Then she can expect a trial that may end up more about her than about the conduct of the defendant. As scholar Louis Trosch put it before he became a North Carolina judge, “Rape trials traditionally have stood alone among criminal proceedings as examinations not of the defendant’s actions, but of the victim’s conduct, lifestyle, and personal history.” During cross-examination, victims are asked, usually in open court, what they wore when they were abused, whether they had been drinking, why they did not fight back harder, and whether they “really wanted it.” Name a common rape myth, and it will almost inevitably emerge in any given sexual abuse trial.
Defense attorneys use these tactics because they work—and not only on untrained juries, but on judges, too. In 2014, a Dallas County judge explained why she gave a probation-only sentence to a man who confessed to sexually assaulting a fourteen-year-old: the girl was not a virgin, and “wasn’t the victim she claimed to be.” The year before, a Montana judge commented that a Latina girl raped by her teacher “seemed older than her chronological age,” a common stereotype associated with Black and Latina girls, and was “as much in control of the situation” as the adult. The young victim killed herself during the trial.
Ugly defense tactics are hard to reform away because they are, at least to an extent, inherent to our adversarial criminal system. Lawyers have a duty to advocate zealously on behalf of their clients. And since rape myths hold real sway with judges and juries, many defense attorneys believe they are ethically obligated to use them. (I think this is a tremendously difficult ethical question.) Adversarial confrontation may be a hallmark of our criminal justice system, but that’s cold comfort for victims who have to live through it. For many survivors considering whether to report, a trial that calls their credibility and moral fiber into question is simply too bleak a prospect.
The risks are compounded by victims’ lack of control within the criminal legal system, where decisions about whether and how to proceed are made by prosecutors and police rather than complainants. Take, for instance, the headline-making case against Jacob Walter Anderson, the president of a fraternity at Baylor University. In 2016, after he allegedly raped a woman at a frat party, a grand jury indicted Anderson on four counts of sexual assault. Armed with that indictment, McLennan County prosecutors could have brought him to trial. Instead, to widespread dismay, they entered into a deal under which Anderson pleaded guilty to a single lesser charge and would serve no time in prison.
In a letter to the victim and her family, prosecutor Hilary LaBorde later explained why she had agreed to the compromise. LaBorde, an experienced sex crimes prosecutor, told them she thought that a jury would likely acquit the fraternity president because of rape myths, citing the outcome of another case she had tried recently to justify her decision. There, she recounted, a jury acquitted a college student who had admitted to penetrating a woman too intoxicated to consent. Three male jurors in that case told LaBorde “they would not send anyone to prison for that.” And a female juror “said she didn’t think the defendant ‘looked like a rapist’”—as though a young white man could never rape anyone. A plea deal, LaBorde said, would ensure that Anderson faced at least some repercussions.
She may well have been right about that calculation. In the wake of a disappointing plea agreement, it’s easier to be mad at an identifiable prosecutor than a hypothetical jury. But an experienced attorney’s assessment of a case has to take account of how ordinary jurors and, in some cases, judges will respond to the allegations. No matter how strongly you disagree with their prejudices, they can pose real obstacles to conviction. Still, it’s notable that LaBorde initially didn’t even inform the victim about the plea deal, never mind consult with her about it: the survivor and her family first learned of the arrangement when it was reported in a local newspaper.
Ultimately, prosecutors’ decisions not to bring hard cases often come down to personal ambition. To put it simply, they don’t like to lose. Whether they are low-level prosecutors fresh out of law school or elected district attorneys aspiring to higher office, their careers often depend on maintaining a good track record, which means a high ratio of convictions to cases brought. (When then district attorney Kamala Harris was campaigning to be California’s attorney general, she touted her office’s high conviction rate as a key qualification.) For most purposes, a plea deal like the one that LaBorde secured counts as a win, while a report that never leads to charges doesn’t count at all and so doesn’t risk damaging the ratio. But risk aversion can end up a self-fulfilling prophecy. When the only assaults brought to trial are those that conform to popular notions of what a “real” rape is, those assumptions get solidified. We associate rape so strongly with criminal law that when criminal law turns its back on victims, we assume they were not victims at all.
THE SAME SKEPTICISM that leads police to do nothing in response to victim reports can sometimes lead to a much more drastic response: a decision to punish the survivor herself. The story of a woman named Kate, described in a report by Washington’s King County Coalition Against Domestic Violence, is a typical one. Kate’s boyfriend didn’t like it when she talked to her friends. One day after she did so he beat her as her children watched, hitting her face and back and throwing her into furniture. “I wanted to get free so I grabbed him by the throat, and left scratches on his neck. He let go of me,” she recounted. “I picked up the phone and dialed 911. He grabbed it and hung up. When the officers got there, he told them that I had been smoking marijuana, and that I had assaulted him. He showed [one of the officers] the scratches on his neck, and I was arrested.” One study found that 24 percent of surveyed women who had reported sexual assault or partner abuse were either arrested or threatened with arrest after calling the police. Social service providers who work with male domestic abusers report that men in treatment tell each other to “get to the phone first”: the police, they have concluded, are likely to believe whoever places the first call for help.
Victim arrests have become more common with the introduction of mandatory arrest laws—which, as the name suggests, require law enforcement to place someone under arrest when they respond to a domestic violence report. With these statutes, well-meaning legislators and advocates sought to address a very real problem: police showing up at a violent home, telling the abuser to take a walk around the block, and refusing to intervene in a “private” matter. But the unintended consequences of these laws have been devastating. A study in New York City concluded that mandatory arrest policies exacerbated two dangerous patterns: retaliatory arrests, where abusers call the police on their victims, and dual arrests, where police arrest the victim along with their abuser. In particular, when police cannot immediately identify who initiated the violence—most often because the victim caused some injuries to the attacker while acting in self-defense—they often arrest both parties. After all, no arrest is not an option.
Survivors who do not conform to the “perfect victim” mold are particularly likely to end up arrested. A 2008 study, for example, found that police responding to an intimate partner violence call were at least ten times more likely to arrest both partners in a queer couple than a straight couple. Because police are used to assuming that “the woman” is the victim and “the man” is the perpetrator, they often default to labeling violence in same-sex relationships as “mutual abuse” and arrest both parties. Another factor is that police often miss bruises and other injuries on dark skin. So, to them, an injured Black survivor may appear unscathed, while a white abuser—scratched up from the victim’s self-defense—may appear to be the real victim.
Even if police and prosecutors believe a victim’s initial report, she may still be jailed later if she refuses to testify or is unable to do so. In Harris County, Texas, a rape victim broke down on the stand when she was first called to testify against her assailant. The trial was delayed, and the woman was treated at a local hospital. When she checked out, she was greeted by an armed investigator from the prosecutor’s office, who placed her under arrest and brought her to the local jail. She was not charged with committing any crime. Rather, the court had granted the prosecutor’s request for what is known as an “attachment order” because they feared she would not appear to testify again. As a result, she was imprisoned for a month until the trial restarted. Certainly, a survivor’s willingness to testify against the defendant might make or break a case. From a prosecutor’s perspective, such testimony may be worth securing at great cost. But for a victim, incarceration is a terrible price to pay for reporting.
Immigration-related fears can also deter victims from filing criminal complaints, as the Trump era starkly illustrated. Domestic violence reports from Latino residents of many cities, including Houston, Los Angeles, San Diego, and Denver, dropped significantly from 2016 to 2017. ACLU researchers noted that 70 percent of prosecutors found sexual assault cases during that time “more difficult to prosecute as a result of an increase in fear of immigration consequences.” Those fears were hardly misguided, despite the availability of special visas (known as U and T visas) to protect undocumented survivors. Irvin Gonzalez Torres, an undocumented trans woman, sought a protective order in El Paso against her abusive ex-partner. She received the order, but before she could exit the courthouse, immigration officers arrested her for being in the country illegally. Likewise, a legal services lawyer in Florida “described a case in which a survivor of domestic violence had called the police, who then came and arrested everyone in the household and never investigated the allegation of domestic violence. The woman, although a victim of a crime, is now in immigration proceedings with no documentation that an investigation was ever conducted, and thus no ability to apply for a U visa.”
BEYOND THE HIGH likelihood of being brushed aside or mistreated by police and prosecutors, one of the most common reasons why sexual assault victims do not report to the police is fear of reprisal—by assailants, by family and friends, or the wider community. And once again, these fears are perfectly rational.
Fourteen-year-old Daisy Coleman and thirteen-year-old Paige Parkhurst were raped in 2012 while incapacitated in a popular football player’s basement in their small hometown of Maryville, Missouri. A video of Daisy’s assault was reportedly shared widely around her school. She went to the police, and one of the assailants was convicted in juvenile court after he confessed to raping Paige. But the conviction did nothing to protect Daisy from vicious harassment and bullying in her community, particularly on social media. “About 12 or 13 different girls came forward to make statements that something similar had happened to them,” Daisy’s mother, Melinda, told a reporter. “But one by one they fell away when they saw what was happening to Daisy. They were intimidated and I can’t blame them.” After prosecutors brought and then dropped charges against Daisy’s alleged rapist, the harassment intensified, culminating in the Colemans’ home burning down—the result of arson, Melinda believed. In August 2020, Daisy Coleman died by suicide. Melinda followed her four months after.
There are too many similar stories. Coleman’s case is often compared to that of Audrie Pott, a fifteen-year-old who was raped while unconscious in Saratoga, New York. She took her own life after classmates circulated photographs of her assault. Lizzy Seeberg, a freshman at Saint Mary’s College, told the police that she had been assaulted by a football player from nearby Notre Dame. One of the player’s teammates texted her: “Don’t do anything you would regret. Messing with Notre Dame football is a bad idea.” Seeberg killed herself ten days after the reported assault.
Because of cases like these, the DOJ’s National Crime Victimization Survey consistently finds that one of the most common reasons victims of sexual assault don’t contact police is fear of retaliation. A participant in another study explained she was afraid that by calling the cops, she would be “making the situation worse. They might arrest my abuser, and when he is out, he will hurt me like he has threatened.” Under the hashtag #WhyIDidntReport, Twitter users have shared their experiences; one recounted that “two of his fraternity brothers showed up at my dorm room the next day and threatened to kill me if I told.”
Those victimized in prison face particularly high odds of retaliation. (These victims do not “call the police”—that is not an option—but they report to an arm of the criminal-legal system that can deliver potential criminal consequences to their abusers, so I consider this part of the same general pattern.) A report by Human Rights Watch states that “virtually every prisoner we interviewed who had lodged a complaint of sexual misconduct faced retaliation by the accused officer, his colleagues, or even other prisoners. In some cases, they also faced punishment by correctional officials.” Some victims were written up themselves for engaging in sexual misconduct and suffered consequences that made it more difficult to get parole. And some were placed in solitary confinement after reporting—either under the guise of “protection” or explicitly as punishment.
FINALLY, SURVIVORS OFTEN do not report their abuse because they don’t want their assailant incarcerated, or fear that police will mistreat him. This dynamic can be difficult for outsiders to understand. Why would a victim protect her rapist? But the truth is that many do—especially those among the vast majority of survivors who know their abusers. Who among us has not continued to love someone, perhaps a family member or longtime friend, who has hurt us? Perhaps it is not so surprising, then, that in one study, nearly half of intimate partner violence survivors who did not call the police reported that they “were concerned that the police would be rude to the offender or that calling the police would have negative consequences for the offender’s life.”
It’s impossible to talk about victims’ concern for their abusers without also talking about gender. A 2006 survey of college students found that when the wrongdoer was a family member or friend, survivors were likely to identify not wanting their assailant to be prosecuted as a deterrent to reporting. In that study, women ranked concern for their assailant higher as a deterrent than men did. It’s hard not to assume that this impulse is rooted, at least in part, in the gendered expectation that good girls forgive—and that women must care for the men around them, even at the risk of their own health and safety.
The urge to protect an assailant may be especially strong when both parties are part of a group regularly targeted and abused by law enforcement, as Black people are. (There’s also a long, ugly history of white people making false allegations of sexual violence against Black men, which I’ll explore later.) Writing in Time about football player Ray Rice’s abuse of his then fiancée, prominent activist and author Feminista Jones reflected on the specific deterrents to reporting that Black domestic violence survivors face. “For Black women, a strong sense of cultural affinity and loyalty to community and race renders many of us silent, so our stories often go untold,” she wrote. “One of the biggest related impediments is our hesitation in trusting the police or the justice system. As Black people, we don’t always feel comfortable surrendering ‘our own’ to the treatment of a racially biased police state and as women, we don’t always feel safe calling police officers who may harm us instead of helping us.”
For decades, feminists have engaged in rich debate about whether and how criminal law should address sexual violence. Should we try to reform a system that regularly fails victims and puts them at tremendous risk of future abuses, or should we abandon it? If the criminal system occasionally helps some survivors, can that justify the harms it inflicts on other victims, not to mention the damage wrought by hyper-incarceration? What alternatives can we build? I have no perfect, complete answers to offer here. The one thing of which I am sure is that the criminal legal system does not deserve the public’s collective faith. It does not deserve the monopoly it has over our thinking about sexual violence—the unquestioned belief that rape is first and foremost a crime, that the solution will always come through law enforcement, that cops and courts will keep victims safe. To limit survivors’ avenues for support, justice, and healing to the criminal system alone would be to abandon them, utterly and completely.