Police, Court, and University Responses to Acquaintance Rape
“Everybody knows that if you tell the truth, the system is supposed to work for the truth.”
— Maggie, who pressed charges against the man who raped her when she was 31
Two women, two acquaintance rapes, two prosecutions, two verdicts.
Maggie was raped in Alaska, Holly in Oregon, but their stories exemplify the nationwide difficulties of criminally prosecuting acquaintance-rape cases. According to Gary D. LaFree, a sociologist and criminology researcher at the University of New Mexico in Albuquerque, convictions are most likely to occur in cases that fit society’s stereotype of rape—an act committed by an armed stranger—and are less likely in cases in which the woman and her assailant know each other, especially if they were dating or had any prior sexual contact. Due to that bias, police and prosecutors are often reluctant to charge perpetrators in acquaintance-rape crimes, just as juries are often unwilling to convict. This bias is so strong on all levels of the legal system that some rape-crisis counselors now advise victims of acquaintance rape not to become involved in criminal proceedings at all.
Maggie’s Rape: Verdict — Not Guilty
Maggie had been living in Alaska for several months when she met Bruce at a bar. They talked for much of the evening and although Maggie was interested in him, she found him pushy in a way that made her uncomfortable. And he certainly was persistent: He got Maggie’s telephone number from one of the other women at the table and called several times. Maggie, who was 31 at the time, felt wary.
I hadn’t dated or done anything for ages, so there was some sort of flattery in his calling. He wanted to go to dinner, to do this and that. And yet I had this discomfort, so I kept saying, “No.”
Finally, they had a date. And another. On the third date, Maggie invited Bruce to spend the night. “That evening was sort of okay,” she says, but she still had mixed feelings about him. Then they didn’t see each other for several weeks. Maggie decided that she really didn’t want to sleep with Bruce again or go out with him anymore.
At the time, Maggie was living alone in a home she was house-sitting. Like many people in her town, she never locked the door. The night of her rape was no exception. When she walked out of the bathroom, wearing just a towel, she looked over the second-floor balcony and saw Bruce standing in the center hall.
He said, “I just want to talk to you.” I could tell he was drunk. He kept saying, “You’re the best woman I ever met.” And I said, “Get out of here.”
Before I had been ambivalent in that I was flattered by the attention and yet not liking his attitude. But after we went through that first [dating] phase . . . I felt real clear about where I was and I knew I was real clear with him.
When he wouldn’t leave, Maggie went back into the bathroom to put on some clothes, but when she emerged again Bruce was upstairs, in the bedroom. She again told him to leave. To usher him out, she started walking down the stairs.
He grabbed me and tried to pull me back into the bedroom. I sat down at the top of the stairs so he couldn’t pull me and he sort of threw himself over my back. . . . His whole chest went down on the back of my neck, there was a crunch, and I couldn’t lift it up after that for a while. He threw me down on the floor and we started fighting on the balcony.
We would fight and he would hurt me . . . he’d pin me down or hit me in the ribs.
The house was in an isolated spot, with a big cliff behind it. The nearest house was beyond the cliff. “I just felt like I’ve got to depend on myself to get out of this situation,” Maggie recalls.
That would be no easy task. Her opponent was six foot two, weighed over 215 pounds, and was powerfully built. As they fought, Maggie tried to force herself to gouge his eyes, but all she could imagine was his eyes dropping onto her. At another point, while he was pounding her head on a parquet floor, she imagined her skull splitting open. But her greatest fear was that he would throw her off the balcony.
I said, “I’m afraid you’re going to hurt me.” And he said, “I’m not going to kill you.”
He said he just wanted to go to bed with me. He was saying things like he was going to have sex with me one way or another and if that meant rape, that meant rape.
Twisting her arm painfully, Bruce steered Maggie into the bedroom. He ordered her to take her clothes off. When she refused, he pinned her on the bed and punched her in the face. He stripped her, hit her again, and then put his fist in her face and said, “If you try anything, I’ll punch your lights out.” At that point, Maggie was overcome with shock, fear, and pain. She had a feeling of leaving her body and floating off away from the attack.
Bruce penetrated her vaginally, then lost his erection several times before ejaculating. When he finally rolled off her, he made her promise not to call anyone after he left. Then he went downstairs, leaving her lying in bed, terrified.
I heard the door open and shut. I didn’t hear anything. I was just laying there, waiting for his car to start.
Then I heard a cigarette lighter. He had opened the door and shut it and was waiting inside to see if I would move. Then he called up, “I know you’re going to tell somebody. Come down here.”
He made her sit next to him on the couch as he rambled on about her reporting what had happened. He had been drinking and taking drugs so, as he talked, he would nod off, then quickly awaken. Maggie contemplated running out each time he nodded off, but she never knew if he was asleep enough to make it safe. She kept promising him that she would not tell anyone and begged him to leave. Finally, he did.
She sat still on the couch until she heard Bruce drive off. Then she got down below the level of the windows and scrambled to lock the door. She called her sister and brother-in-law. They summoned the police and a representative from a local women’s center.
From the beginning, the police thought Maggie had a good case. They took samples from her during a rape examination at the hospital and found specimens of her blood and rug fibers from the house on Bruce’s body and clothing after they arrested him. He had a history of aggressive behavior, dating back to his school years, including several encounters with police. Although his family was influential locally, the police seemed happy finally to be able to nail him. Bruce was charged with first-degree rape, assault, and trespass to commit a crime.
The problems with the case emerged almost immediately. There were the photographs taken of Maggie shortly after the rape. She hadn’t bruised that badly and what bruises she had didn’t show up very well in the photos, although she says, “I felt like sombody had run over me with a truck.”
The district attorney was an older man, not known for zeal in pursuing rape cases. He repeatedly reminded Maggie that “this is not your usual case of rape.” In questioning shortly after the rape, he asked her whether she had ever had an abortion and she said no. However, when she gave testimony at a later deposition, she admitted that she had had two. The district attorney, whose religion opposed abortion, was furious. In his office he said to her, “If you’d lie about this, what else is there that you’ve lied about?” With each passing week of the investigation, he seemed to become more unsympathetic to her.
Among the personal information Maggie did share with the district attorney was the fact that she maintained a journal, a result of her interest in homeopathic medicine and astrological cycles. In her journal—really a diary of her physical and mental health—she recorded when her periods occurred, when she had headaches or felt depressed, what the weather was, and other data, including her sexual activity.
The defense wanted to see the journal. At an evidentiary hearing, the judge went through the book and only permitted the chart pertaining to the time of the rape to be put in evidence. But the damage was done. The story soon leaked out in town about the alleged rape victim’s “sex diary.”
The pretrial ordeal dragged on. Samples of blood taken off Bruce’s body and clothes after his arrest had molded in the laboratory and could not be properly evaluated. His defense attorney filed a barrage of motions, including 45 in just one day. Meanwhile, Bruce harassed Maggie on the street, cursing at her, threatening to sue her, or simply following her in his car. A few days before the trial, the district attorney told Maggie of his plan for the prosecution: He wanted to use Bruce in a live demonstration with Maggie to show how he had choked her from behind. “I just started crying and said, ‘That man is never going to touch me again,’” she recalls. The prosecutor relented on the idea.
Finally, the trial began. Maggie testified for eight hours. In the middle of the trial, she was called to the district attorney’s office. He told her that cocaine metabolites had been found in the blood of a tampon that she had been wearing the night of the rape. (Bruce had pulled the tampon out before penetrating her.) Because Maggie had told the district attorney that she didn’t use drugs—and she didn’t—he again thought she was lying. He told her that he was thinking of withdrawing from the case. “It shook him up in terms of the confidence level he had in me which was pretty weak anyway,” Maggie says. In fact, as the police explained to her, the cocaine most likely came from Bruce’s hands.
Bruce’s lawyer didn’t have to prove that his client didn’t rape Maggie. All he had to do was create enough alternatives to cast doubt on the prosecution’s case. On the stand, the defense asked Maggie about her sexual life, noting that since many women don’t want sex after being raped, wasn’t it unusual that she had sex several weeks later as noted in her journal? Other questions were similarly framed to cast doubts about her story in the jury’s minds. There was the “sex diary” and questions about whether she preferred younger men (both Bruce and her current lover were younger). And because the police had told her to write down everything she could remember about the rape—she had filled 12 pages of notebook paper on both sides—the defense suggested she was pursuing the case only to write a book about it. They also questioned her about her previous job, working at a domestic violence shelter. “So I was crazy and I hated men, I was sexually weird, and I was writing a book,” Maggie says. “All these things were possibilities.”
The testimony lasted for three weeks. At one point, the chief police investigator was questioned about his “personal relationship” with the victim, questions that implied that he and Maggie were having an affair. They were not. Bruce, dressed every day in a three-piece suit, never testified in his own behalf.
The jury deliberated for a day and a half. Bruce was found not guilty of rape, not guilty of assault, but guilty on the trespass charge. However, since it was a charge of trespass to commit a crime—but the jury had found no crime—that finding was thrown out. He had beaten every charge. Again, Maggie felt like she had been hit by a truck. “I don’t know what I was expecting, but I had this whole belief system that the truth will prevail,” she says. “Everybody knows that if you tell the truth, the system is supposed to work for the truth.”
There was fallout from the trial. The district attorney was transferred to another jurisdiction. The judge was barred from hearing future sexual assault cases. Later, Maggie talked to the chief investigator for the police, who had questioned the jurors afterward to find out why they voted the way they did.
He told me they said, “We really think something happened, but we just didn’t know what.” They said they wanted more pictures, some real gory pictures, something concrete that said, “Wow! There couldn’t be any other explanation!” They didn’t deny they thought it had occurred, but they didn’t feel like the evidence was there.
Maggie stayed in town for another 15 months. Bruce continued to harass her. She finally decided to leave Alaska. Now, five years after the trial, she’s happily contemplating becoming a mother for the first time. But although she’s pleased that acquaintance-rape cases in her former town are being handled with more sensitivity by new personnel, she knows who paid the price for that advance.
“I felt like I was the fall guy,” she says, “just the sacrificial lamb.”
Holly’s Rape: Verdict — Guilty
Holly was sitting in a club with several female friends when an attractive, genial guy sat down for a chat, introducing himself as Ted. Holly, who was recently separated, was enjoying a rare night out; at 25, she had two young children, one of whom she was still breast-feeding. Her children so defined her reality at the time that when Ted asked what she did, she said, without hesitation, “I’m a mom.” Ted talked to all the women at the table and then asked Holly to dance.
Around midnight, Holly decided it was time to leave. Her roommate had gone home a short time before to relieve the baby-sitter. Ted said he needed to go too and would walk with her. At the door of the club, Holly paused to consider the heavy rain which had suddenly begun, then pulled her coat up over her head to make the cold, wet run to the far end of the parking lot where she had left her car. Ted, whose car was parked near the club entrance, offered to drive her to her car instead. Holly accepted.
Once inside the car, Ted and Holly sat and talked about Ted’s job with a local radio station and mutual friends they knew there. When he suggested that they get a bite to eat, Holly reiterated that she needed to get home and check on her children. Ted countered with the suggestion that they stop by Holly’s house, see that the kids were okay, and then go out, leaving her roommate to baby-sit. “I said, ‘Oh, I don’t know,’” Holly says, recalling that conversation. “I was so wishy-washy and so stupid.”
When they arrived at her home, Holly’s children were fine, but she decided that she really didn’t want to go out. It had been a long night and she was tired. Her car, however, was still back at the club and she needed Ted to drive her there to get it. Leaving her wallet on a table in her house, she grabbed just her keys. As they drove back to the club, Ted asked if she minded if he stopped at his house to let his dog out. Holly agreed wearily, but said they would have to hurry. When they got to the trailer where Ted lived, he invited her inside.
I wanted to go home. It had probably been five hours since I’d nursed the baby . . . but I thought, “Well, I’m not going to be a pig about this — let him let his damn dog out.”
It didn’t seem like a bad idea. We walked in and I’m sitting there and he let the dog out and the next thing I know he’s trying to kiss me. Well, even this seemed all right, and I kissed him a couple of times. Pretty soon he got really insistent and I started pushing back against his chest.
The trailer was tiny, containing only a bed, where Holly and Ted were sitting, and a few others pieces of furniture. As he intensified his aggression, Ted pushed Holly back onto the bed. Still, she didn’t think he’d be a real problem. She had had episodes throughout her dating experience where she had said, “No,” to persistent men and they had always complied with her wishes. This time, though, Ted didn’t.
He was holding me down and I was starting to get a little bit afraid . . . I said, “We can still be friends and give it another chance on another night,” even though I would never have gone out with him again. He looked at me and said, “I don’t care about being friends with you.” And now I’m starting to get a little scared.
I finally pushed up on his chest and said, “Look, if you don’t cool it, I’m going to scream, so just let me up.” All of a sudden, he pulled his arm up around my throat, pulled me off the bed, and held me against the bed, wrapping his arms around my neck . . . so my head was down and I couldn’t breathe. . . . I started to black out and go kind of limp.
Finally, I just started to lose consciousness and I guess he decided he better back off a little bit. I said to him, “I just want to see my babies again,” and he said, “You do what I tell you, just listen up and do what I tell you and you’ll see your kids again.” He was real cold and real angry.
Ted then forced Holly to perform oral sex on him, tightly twisting the double strand of beads she wore against her neck. He threatened her with anal sex and then had vaginal intercourse with her. When he discovered she was wearing a tampon, he merely pulled it out and tossed it on the floor. “I just remember closing my eyes and saying to myself, ‘I’m not even going to think about this whole thing happening,’ “Holly says. She cried throughout the rape. After it was over, she saw that Ted was covered with her menstrual blood. Fearful that he would become angry again at the sight of it, she consolingly told him, “It’s okay, it’s okay. It’s time for me to go home.” At this point, Ted started crying and lamented what he had done to her. “It’s okay,” Holly lied, “I know you’re a nice person.”
Ted finally took her back to her car. Holly drove home, her dress ripped and stained, with bruises on her neck, wrists, and legs. She woke her roommate and told her what happened. The next day, Holly called a help line and they put her in touch with a rape-crisis center. She went to a doctor. She did not want to prosecute but did file an anonymous report about the incident through the rape center. Such reports put the perpetrator’s name on file with police, but are not criminal complaints. For the next four weeks, Holly met several times with rape-crisis counselors. She tried to put her life back in order. Then, one day, one of the counselors telephoned her and said, “Are you sitting down? He’s done it again.”
Ted had sodomized a woman in another Oregon town. The woman had then jumped naked from his car, moving at 40 miles per hour, to escape. She lived, but was badly injured. As in Holly’s case, Ted had told the woman his name. The police search stretched into California, where Ted was found in a car full of pornographic magazines, watching teenage girls at a mall through binoculars. After his arrest, the state police came across Holly’s anonymous incident report and contacted the rape center which had filed it.
When she heard the news, Holly decided she had to report her rape officially. “It was the fact that he wasn’t stopping, that for all of his remorse that night, he turned around exactly four weeks later and did it again,” she says. Holly felt awful that another woman had been hurt, possibly because of her original decision not to go to the police.
Ted was charged in Holly’s case with first-degree rape and first-degree sodomy (for the oral sex). Holly never expected the case to go to trial; she thought Ted would plead guilty, but he didn’t. Unlike many victims, though, Holly had a “warm-up” session for her own trial when she was called to be a witness in the other woman’s case. “I think he was absolutely shocked to see me come in,” she says of Ted’s reaction to her appearance in a courtroom hundreds of miles from her hometown. “I got a taste for what it was going to be like,” she says. Then the real blow hit. After being charged with assault, kidnapping, sodomy, and attempted rape in the injured woman’s case, Ted was found not guilty of everything except assault. Holly was devastated.
That sent me right into a tailspin. I mean, shit, she’s got all this physical evidence ’cause she was hurt so badly and they didn’t find him guilty. And I thought, “We don’t have a snowball’s chance in hell down here,” and I was really worried about that.
The grand jury charged Ted with Holly’s rape in March. The case didn’t go to trial until late November. During the months of waiting, Holly endured periodic meetings at the district attorney’s office to rehash the case and conferences with the local victim support agency. She repeatedly had to take time off from a job she started just days after the rape; fortunately, her boss was understanding. When she heard radio reports about her case, she became terrified that her name would be publicized, but it wasn’t.
Finally, the trial came. “It was so much different than I expected,” Holly says. “I had seen only horrible courtroom dramas where the victim is put on the stand and they say, ‘How many men do you sleep with every night?’ They didn’t do that at all. There were very few personal questions.”
During initial questioning by police, Holly had felt “too humiliated” to tell them about having had her period and how Ted had pulled out her tampon and flung it aside. Before going to trial, though, she told that part of the story to the district attorney and that information worked in her favor during the trial. When the defense argued that the incident between Ted and Holly was simply consensual sex, the prosecution made a strong contention that a menstruating woman was not likely to engage in casual sex with a man she had just met.
Looking back, Holly says that waiting for the trial was more painful than actually being in court. Although she testified for “what seemed like an eternity,” the trial lasted only a day and a half. Holly was allowed in the courtroom only to give testimony and listen to closing arguments.
His defense was so goddamned lame. He said that, yes, we went to his house and, yes, he choked me. There was no way he could get out of that because I had physical evidence. He said, yes, we had sex but only because after he choked me, I calmed down and I became the seducer and seduced him.
It was so ludicrous. The only thing that came as a surprise, that I didn’t anticipate, was that they said they found nothing but blood on my dress — meaning no semen — and their explanation for that was that I had taken off my dress because I was totally in cooperation with him.
The jury was about half male and half female. They deliberated for only an hour. When they filed back into court, Holly was there, supported by her rape-crisis counselor.
I had prepared myself for it being a “not guilty,” . . . but all I wanted was it to be “guilty” so bad. The counselor had her arm around me and when they said, “Guilty” (on the rape charge), I didn’t even listen to the sodomy charge.
The counselor said, “Now, do you feel better?” and I just started crying and said, “No,” ’cause I really didn’t. It didn’t make me feel any better and that’s what a lot of people don’t realize. I think they thought I was going to be totally normal after this happened.
Although the jury found Ted guilty of rape, they found him not guilty of sodomy. Holly thinks that may be because she was so reluctant to give details about the forced oral sex she endured.
The following March, Holly went back into court for Ted’s sentencing.
Our side asked for seven years’ minimum. Then Ted decided to get real smart and stand up and say something in his behalf.
He would have been better off if he had shut up. He was sentenced to 20 years’ maximum, 10 years’ minimum — three more years than our side asked for.
At that point, I felt good.
Now, one year after sentencing, Holly sits in the living room of her home, surrounded by children’s toys, and assesses the changes in her life. Shortly after Ted began serving his sentence for raping her, she gave an interview about her case to the local newspaper. She even agreed to let them print her name.
If we stay silent on this shit, they are just going to keep it up. I’ve proven that. I was quiet, I let him go. I said, “He didn’t really mean to do it,” and I believed all of that stupid stuff he told me, when he said that he was sorry and he had never done it before and he would never do it again.
I feel good about it now. I don’t feel I’ve anything to hide.
Making a “Good” Case in Criminal Court
Why was Holly’s rapist convicted and Maggie’s set free? Both cases involved physical violence, restraint of the woman, and sexual intercourse committed against her will. Both cases also involved some mistakes by the victims—in Maggie’s case, it was leaving her door unlocked; in Holly’s, it was agreeing to go to Ted’s trailer.
Yet there was a difference between the two. Although both women knew their attackers, Holly had just met the man who raped her while Maggie had willingly gone on several dates with her attacker and had sex with him before. Because of the prior relationship she had with Bruce, both the district attorney and the jury found it hard to label Maggie’s experience “rape,” although it was.
Not too long ago, Holly’s case might not have ended in a conviction either, but rape laws have changed recently in ways that are allowing more acquaintance-rape cases to be prosecuted successfully. By the late 1970s and early 1980s, many states had revised their rape statutes to broaden the definition of rape to include many forms of sexual assault (not just vaginal intercourse) against both men and women, to restrict use of a woman’s sexual history as evidence for the defense, and to eliminate standards of resistance the victim needed to meet to “prove” she was forced to have sex. Moreover, some states have permitted the use of expert testimony stating that the victim suffered rape trauma syndrome as a way to prove that rape occurred. However, although there have been improvements in the law, there are still dramatically fewer convictions in acquaintance-rape cases than in stranger rapes. The reason lies in the concept of the “good” case.
In the prototypical “good” rape case, the victim—a virgin who lives at home with her parents—is grabbed from behind by a man she’s never seen before as she’s walking in broad daylight to visit her dying grandmother in the hospital. Her assailant has a knife, a gun, and brass knuckles. He breaks her jaw by punching her, so she can’t scream, and stabs her at least once before forcing her into the bushes and raping her. She fights back forcefully nonetheless, and the struggle attracts the attention of a male police officer, who arrives and pulls the man off of his victim. An official examination finds the man’s semen within the woman’s vagina and traces of her blood and skin on his body. The bruises on her face match the pattern on his brass knuckles.
Rapes are prosecuted according to how well they fit such a “good” case standard, so it’s no wonder that few acquaintance rapes come to trial. In an acquaintance rape, the woman involved is often voluntarily with the man who attacks her. He usually does not use a weapon and may not hit her; she usually doesn’t scream—out of fear, not out of physical inability—and she often has few severe marks or bruises afterward. The presence of semen in or on her body simply shows that the two had sex, not that it was forced. There is rarely a witness to the rape. Because she often doesn’t identify the assault as rape until days later, the woman may not report the incident promptly to police.
To Charge or Not
Decisions to classify rape complaints as “founded” (that is, valid and prosecutable) or “unfounded” (unprosecutable for some reason) often depend on factors that have nothing to do with whether the woman was forced to have sex against her will. More than anything else, those decisions have to do with whether the legal gatekeepers (first the police and then the district attorneys) find the victim acceptable and the circumstances of her rape sufficiently like a “good” case to be believed.
The number of rape cases labeled “unfounded” by police varies wildly from municipality to municipality (in one recent year, Detroit ruled that 1.3 percent of rape complaints were “unfounded,” while Chicago labeled 54.1 percent that way). The existence of “unfounded” cases sparks two interpretations: Some believe the numbers prove that women lie about rape; others say the figures show that police unfairly disbelieve rape victims.
The bulk of the cases labeled “unfounded” are date rapes and acquaintance rapes. A study reviewing police files in New York showed that 24 percent of acquaintance-rape complaints were deemed “unfounded” compared with only 5 percent of stranger rapes. Cases may be designated “unfounded” because the police, for good reasons or bad, may not believe the victim, because the assault may not have occurred within that jurisdiction, or because the victim may have changed her mind about pressing charges. In acquaintance rapes, it is especially likely that myths about rape and the continuing belief that women lie about rape to “punish” men for broken relationships or win attention for themselves greatly influence police decisions to declare some cases “unfounded.” Although better education about rape is changing these attitudes, old ideas still die hard.
In a study of 905 sexual assault complaints in a large midwestern city, researcher Gary LaFree found that extralegal determinants affected whether police charged a suspect with rape or not. Those factors which often resulted in the suspect’s not being charged frequently occur in instances of acquaintance rape, including:
◻ victim “misconduct”—e.g., hitchhiking, drinking, being alone at a bar, engaging in sex outside of marriage, or willingly entering the suspect’s car, house, or apartment
◻ victim delay in filing a report
◻ a prior relationship between a victim and suspect
◻ the absence of a weapon
While LaFree found that the best predictors of whether a suspect would be arrested were legal determinants—the victim’s ability to identify her attacker and her willingness to prosecute—extralegal factors had great influence on police decisions to arrest. For example, no arrests were made in any cases LaFree studied in which police found victim “misconduct,” such as going to the man’s apartment or drinking. “Interviews with police showed that police associate victim misconduct with carelessness or outright complicity in the incident,” LaFree says.
The study also showed that gang acquaintance rapes and acquaintance rapes involving teenagers were viewed by police as less serious than other types of rapes. LaFree found that “detectives were suspicious of sexual assaults involving more than one offender—particularly when these cases also involved more than one victim, when victims and offenders were acquainted prior to the incident, or when victims and offenders were young. Several detectives referred to cases with these characteristics as ‘party rapes,’ and suggested that such incidents deserved less serious attention than other complaints.”
Considering all of those attitudes, it’s not surprising that a recent study in Seattle showed that having a prior relationship with the assailant was the chief reason women cited for not reporting their rapes to police.
There are other factors contributing to the nonreporting of acquaintance rapes. Key among these is fear. Since many women live or work near their attackers, there’s real cause for concern, especially if they believe that the police might declare their case without merit, thus denying them the protection of having the assailant jailed. Even when police consider an acquaintance-rape case “good,” it is no guarantee of safety for the victim. In Philadelphia in 1987 a man raped a 20-year-old woman after she had refused to continue dating him, then shot and seriously wounded her when she reported the rape to the police. According to the victim’s relatives, the man had threatened just after the rape to shoot the woman if she reported him.
The Difficulties of Proving Acquaintance Rape
Most criminal complaints of rape are defended by one of four arguments: The identification of the suspect is wrong; the suspect had diminished responsibility due to mental incompetence; the victim consented to have sex with the suspect; or no sexual activity occurred. While defendants in stranger-rape cases tend to build their cases around the first defense (identification), in acquaintance-rape cases, where the suspect is known, the defense usually uses the third or fourth arguments—consent or “nothing happened.” Consent, as defined by one state criminal code (Minnesota’s) is “a voluntary uncoerced manifestation of a present agreement to perform a particular sexual act.” But how was that consent, or lack of it, expressed? The defense will often attempt to argue that consent was implied by the victim’s behavior, life-style, or lack of resistance.
From a police and prosecutorial perspective, a “good” case will hinge solely on identification of the suspect along with evidentiary proof of rape. Prosecuting against a claim of consent muddies the waters considerably, so many prosecutors are disinclined to take on acquaintance-rape incidents. That’s due in part to their own ignorance and prejudices about rape and rape victims and in part to their belief that jurors will hold the same antivictim views.
That belief is often correct. Several studies have shown that juries are reluctant to convict rapists if there is any hint of victim “misconduct.” In addition, juries are more likely to convict if the attacker used a weapon and much less likely if lesser force was employed. They are also inclined to acquit rape defendants who have good social standing—frequently the profiles of men accused in date rapes and acquaintance rapes.
Women jurors are often especially harsh on victims who have suffered acquaintance rape. The reason may have much to do with the female jurors’ need to dissociate themselves from the victim’s experience. “To live with the knowledge that not only are all women vulnerable to rape, but that frequently they are raped by men they know is difficult,” says researcher Pauline B. Bart. “If, however, women believe in fact that only bad women can be raped and only crazy men who are strangers are rapists, then they can feel safe.”
A 1985 study of 360 jurors in rape cases was conducted by the University of New Mexico’s Gary LaFree, Barbara F. Reskin of the University of Michigan, and Christy A. Visher of the National Research Council/National Academy of Sciences. It showed that in cases where the man claimed the woman had consented to sex or that no sexual activity had occurred, the jurors were more likely to believe the man if the woman had engaged in nonmarried sex, drank or took drugs, or had known the defendant even briefly before the attack. [The influence of prior acquaintance was profound on juries, the study found, even when that acquaintance was only that of a shopper (the victim) to a grocery clerk (the rapist), or a customer to a bank teller.] These considerations, the researchers noted, “may represent either a legitimate concern with a victim’s credibility or an illegitimate concern with her moral character.” In many cases, it is the latter.
Because of these juror biases, law-enforcement officials feel justified in pursuing only those rapes which most closely approximate “good” cases. But perpetuating that status quo is both bad ethics and bad law. “The fact that juries distinguish among rape cases based on prior relationship and force and resistance provides a powerful defense for the reliance on these factors by police and prosecutors,” says Susan Estrich, a professor at Harvard Law School, in her book Real Rape. “But it is not necessarily determinative, if the factors are unjustifiable in their own right: That juries may consider race and class is no excuse for prosecutors to discriminate.”
Juries are also sometimes reluctant to convict a man for an acquaintance rape—especially one involving little physical violence—because they consider it a “lesser” crime than a stranger rape. Some rape-victim advocates support the idea of creating another criminal classification for date rapes and acquaintance rapes, one that would encourage police to deem more cases “founded,” that would cause prosecutors to pursue those cases more vigorously and juries to convict more often. However, because such a classification would carry lower penalties than for stranger rape, it would also perpetuate the notion that acquaintance rapes aren’t serious crimes.
Another Path to Justice: Civil Court
In a Los Angeles park, a newly arrived young woman from Iowa meets a friendly part-time actor. They chat for a while and then he suggests that they go for a scenic ride through the Hollywood Hills. On the way, he insists on stopping at his house so he can change his shirt. Once inside the home, he locks the door, rapes the woman, and forces her to submit to oral sex.
Just another acquaintance-rape horror story? Yes, only this one has an unusual ending: Eight years after the rape, a jury awarded the woman $5 million in damages. In this case, the man was also tried and convicted in criminal court—although it took the victim nearly a year to convince prosecutors to file charges.
Taking acquaintance-rape complaints to civil court is a new approach that offers many victims a better way to fight back than they may find through criminal law channels. “When somebody’s caused harm in this way, money’s not going to make it all right,” says Robert K. Dawson, a Seattle lawyer who has won several lawsuits against acquaintance rapists, “. . . but civil suits can help the victim and they’re a deterrent to people.”
In criminal trials, there are usually three factors weighing against the acquaintance-rape victim: The defendant does not have to testify (and many don’t); the law demands a high burden of proof (higher than is possible to establish in many cases), and the decision to convict must be reached by a unanimous jury (many of whom are predisposed against the victim). In civil court, though, the man may be forced to testify, the burden of proof required is somewhat less (by a “preponderence of evidence” rather than “beyond a reasonable doubt”), and a decision in favor of the victim may be made with a less than unanimous jury. “It’s a fair fight,” Dawson says.
And it is a fight that more and more women are choosing to wage.
Dawson, for example, represented a woman who went to a party, drank heavily, and was gang-raped by four men. There was no criminal prosecution in the case. The civil case began three and a half years after the rape. Dawson argued that the rape had harmed the woman for the rest of her life. She had become quite fearful and could no longer go out at night. A jury awarded her $300,000 in damages.
To pursue a civil case, it is necessary to show that the victim suffered harm by the defendant’s action (the rape). As in criminal cases, good evidence (doctors’ reports, photographs of injuries, witnesses’ accounts) will buttress a claim, but they aren’t mandatory. All that’s really needed is the victim’s testimony.
Unlike criminal proceedings, the victim who chooses to file a lawsuit against her attacker is liable for the expenses of that undertaking. Such costs can range from a few thousand to many thousands of dollars, depending on the complexity of the case. As in many civil actions, most lawyers who handle such cases take them on a contingency basis. That means the lawyer advances the costs of the lawsuit plus attorney’s fees and gets paid only after an award is collected. Most contingency fees are one-third of the award amount. Defendants have 10 years to pay.
It should be noted that very few of these cases actually go to trial. The majority are settled out of court, with the victim and defendant agreeing to a settlement amount. Such agreements are reached when one or both parties wants to avoid the costs or risks of a trial as well as the possible publicity. In general, civil suits take much longer to come to trial than do criminal cases.
An interesting adjunct to suing the perpetrator is suing a third party who may have had some responsibility for the circumstances in which the rape occurred. These third parties, although not intentionally involved in the rape, may be shown to be liable because they should have anticipated it and taken steps to prevent it. Often, women choose to sue such third parties—businesses, universities, fraternities—to prevent a similar situation from occurring again. Moreover, these third parties often have greater financial resources than the defendant does, so the possibility of collecting the full amount awarded is better. For example, a jury in Indiana awarded $800,000 to a woman who sued her employer, a large car rental firm, after being raped by a fellow employee. A second employee, also raped by the same man, received a $300,000 out-of-court settlement. Recently, the 18-year-old woman who reported she was raped by four members of a fraternity at San Diego State sued the state, the university, the fraternity, and the sorority she had been pledging at the time for $2.5 million.
Third-party cases in acquaintance rapes are still a rarity, according to Ellen Godbey Carson, a Honolulu lawyer who has won several third-party lawsuits for her clients who have been raped and who tracks legal trends of such cases nationwide. Most cases still involve the third party’s responsibility to keep strangers off the premises. Acquaintance rapes, because they involve “the consent issue,” are less frequently litigated, Carson says.
But the fear of becoming a target in such a case has many organizations so worried that they are starting acquaintance-rape education programs. “We made it part of a total risk management program,” says Joe Langella, national alumni director for the Sigma Phi Epsilon fraternity. Langella describes the program as being “designed to instruct our chapters in ways to minimize liability lawsuits and the types of activity that would bring about a situation like that, such as date rape and acquaintance rape.” Although making fraternity men sensitive to acquaintance rape so as to minimize the potential for financial loss is certainly not the motivation most women would prefer, it’s better than no motivation at all.
Victims, however, aren’t the only ones turning to the civil courts. In a case filed in mid-1987, a fraternity member at the University of Michigan sued a female student whose complaint led to his arrest on rape charges following a frat party. “Nobody had ever heard of this tactic before,” says Julie Steiner, director of the university’s Sexual Assault Prevention and Awareness Center. Steiner and others who support the victim believe the lawsuit was meant to intimidate the woman into dropping criminal charges. The lawsuit, which claims that the woman libeled the man, has yet to be decided. But several months after it was filed, the male student was acquitted of the criminal charges. That acquittal sparked a spontaneous protest on campus, marked by a candlelight vigil involving more than 300 students and protests outside the fraternity house where the attack was alleged to have occurred.
Steiner speaks grimly about the influence such a lawsuit can have on rape victims. “It’s had a chilling effect,” she says. “Since the trial, the impact on our clients [raped women] has been incredible. For those who decided not to report their rapes, it’s convinced them all the more that their decision was correct. Even the police are upset because they know what an impact it’s going to have on reports.”
Seattle lawyer Dawson has had several female clients countersued for malicious prosecution after they filed civil claims against rapists, but all of those countersuits were dismissed. “There’s never been a successful malicious prosecution suit against a sexual assault victim in this state,” he says.
The Collegiate Alternative: University Judicial Boards
Donna, who was raped off campus by a fellow student, decided not to press criminal charges against the man who raped her. Instead she chose to take the case before the judicial board at her Illinois college.
Many schools and universities have such boards to enforce behavioral codes and mete out punishment to those who break the rules. These boards are perhaps the last vestige of the days when universities functioned in parental roles, although the membership of most boards usually includes students as well as faculty and staff. Concerned mainly with cases involving plagiarism, vandalism, and alcohol abuse, these boards are often ill prepared to handle the complexities of acquaintance rapes.
Indeed, not one of the women interviewed for this book who had taken her case before a university judicial board felt satisfied with the result. Although on Donna’s campus the behavioral code calls for suspension after a first rape offense and expulsion after a second, her attacker—who admitted to the board that he had forced Donna to have sex—received only probation and was required to write a paper on sexual assault. “I was given a copy of it,” Donna says, “and I think it was written out of a book. I think he really didn’t learn anything.” Angered by the college ruling, Donna then decided to press criminal charges, but the state prosecutor advised her that she had waited too long to make a “good” case.
Jocelyn, now a junior at a college in Michigan, was raped in the first semester of her sophomore year by another student who served as a tutor in one of her classes. “I pursued litigation through the college system, mostly out of a need to get the blame away from myself,” she says. “I figured that if I never tried to get him punished, I would never forgive myself. So I tried it the college’s way, which failed miserably. The statement (issued by the university judicial board) said things like ‘no evidence given’ because there were no witnesses and ‘the college should not interfere in the sexual activities of its students’—as if to say that if we insist upon sexual freedom, we must take all the consequences of what could happen.” In addition, the board’s statement apologized to the male student “for any trauma or inconvenience this has brought you.”
Despite that ruling, Jocelyn came back to campus after summer break. “I returned to school in part to prove how much power I have now,” she says, “and to continue to hold the college responsible for what I see as its grave injustice. If I had just disappeared from campus, they would be free to continue this; already they have had to strengthen services for women. Thank God.”
Sometimes university boards refuse even to hear a case. Beth met the man who would rape her at a campus fraternity house, then went with him to a nearby apartment where friends of his from the fraternity lived. Beth says she was drunk, but still able to refuse the man’s sexual advances. He ignored her refusal, held her down, and raped her. Beth was a freshman; the man who raped her had just graduated from the same New York school. “I reported the rape to the administration,” she says. “I wanted to press charges and keep him from coming back to campus while I was still here.” The university denied her request, contending that since the man had already graduated, there was nothing it could do. “I didn’t report it to the police because I was afraid I wouldn’t be believed,” Beth says. “Acquaintance rapes are very common at our college, but the administration is unwilling to believe it and many women are afraid to tell.”
University boards are also concerned with the public perception of their campuses. If an acquaintance-rape complaint should be investigated and the rapist punished by the university—thereby verifying that the attack occurred—such notoriety could hurt the school’s reputation (and enrollment). Judicial board members may try to impose a lesser charge that won’t carry the stigma for the university that a rape finding would.
Even highly publicized cases which result in criminal punishments may not be sufficient to persuade a university judicial board to take action. When a Syracuse University football player pleaded guilty in criminal court in July 1986 to sexual misconduct for forcing a first-year student to have intercourse against her will, he was sentenced to serve three years’ probation and perform community service. However, two weeks later, a college hearing board decided that the athlete had not violated any university regulations. He was permitted to remain in school, keep his scholarship, and continue to play football.
The victim left Syracuse three days after the rape and has since transferred to another school. In an interview with the Syracuse Post-Standard shortly after the university board’s decision, she said: “I went into the [college] hearing believing that its purpose was to see what punishment they were going to give him for being convicted of the crime he pleaded guilty to. It turned out that the panel judged my accusations against him and found him innocent of those accusations. I couldn’t believe it. By the way they ruled, they have called me a liar and have slandered my name.”
There are those who feel that university judicial boards are doing the best they can, given the circumstances. “Date and acquaintance rapes are the most difficult cases to handle in a disciplinary hearing just as they are in a court of law, for the same reasons,” says Thomas R. Dougan, director of student life at the University of Rhode Island. “It’s her word versus his word.” At his school, Dougan says, if the man is deemed a “clear and present danger,” he may be removed from the residence halls and suspended briefly pending a college investigation. Victims may also file reports of incidents without pressing charges.
Do college judicial boards serve a useful function in combating acquaintance rape? Dougan says that being brought before a hearing board has an effect on the accused male students.
“Do they take it seriously? You betcha,” he says. “Does it have an impact on them? No question.”
Then, after a thoughtful pause, he adds, “Will they ever do it again? I don’t know.”