Deeply un-sexy post here….
For a number of reasons, I’ve been thinking about rape prosecutions lately.
(Stop here if you don’t want to read my thoughts on rape prosecutions.)
In the U.S., we have what are called “rape shield” laws – laws that constrain inquiry into an accuser’s past, or character, except inasmuch as is definitively and directly relevant to the accusation. These have gone a long way toward making it safer, less onerous, less terrifying, for a survivor of rape to testify against her attacker. (In the olden days, a woman might find her “character” assailed in such ways as, “Well, she’s a total slut,” followed by extensive and prurient questioning about her sexual predilections.) Here in the States, we seem to have grasped that, well, whether a woman is a total slut (or whore) has nothing to do with whether she was raped.
Anyone who’s ever had sex knows this: we know that consent is something that’s negotiated, obtained, not just once, but every fucking time. There may be some pre-negotiation of consent (“It’s ok for you to rape me any time!”), but generally, if there’s not a safe word, a way of communicating, instantly, clearly, that there is not consent, well, then there isn’t consent.
In many other countries, they don’t have rape shield laws.
And in every country, the mere fact of confronting, being in the same room with, a rapist can be traumatic, or worse, for a survivor of rape. Never mind the terror of cross-examination, of prosecution by one’s persecutor.
I never thought much about this issue previously – shame on me – but now that I am, I have a few thoughts, and I’m curious what those who’ve thought more about this stuff think.
1) I think hearsay should be admissible in rape prosecutions, if held to a very high standard: as I understand it, in criminal prosecutions, hearsay (when someone testifies as to what someone else said, not to establish the person’s credibility, but to communicate the content of the reported speech) is not admissible. Now, I ain’t no lawyer, and some lawyer can tell me I’ve got it wrong, but that’s my sense. Here in the States. But when it comes to rape, there are a host of good reasons a woman might not wish to appear in court, ranging from the most basic (she might be ashamed to have spoken aloud descriptions of the actions that are likely to be described in the most excruciatingly detailed ways during the trial) to the more obscure (perhaps she has an irrational fear that, notwithstanding the presence of tremendous security in court, her previous tormentor might somehow find a way to get her) to the horrifying (many tormentors actually can get at their victims psychologically, without laying a finger on them, just with looks, or words, or gestures). There should be a way for a woman to provide her testimony without confronting he who she’s accusing.
(I suppose there’s an objection to this, that it’s somehow not fair to the accused, that the right to confront one’s accuser is in some way important. But honestly, I say fuck it. I’m pretty fucking pro-defendant, but I’m not sure I understand the rationale behind this “right.” I think a jury can evaluate evidence, and can assess whether a defendant’s guilt is proven beyond a reasonable doubt without having to see a lawyer challenge an accuser. Just as an extreme case: imagine a woman is raped, and, moments later, calls a friend, in tears, and describes the event in harrowing detail. And then does the same to three more friends. Why is it that those four friends can’t testify as to what they heard, and let a jury decide whether that testimony is helpful to them in establishing the guilt of the accused?)
2) I think that rape shield laws don’t go far enough. As it is, in order to present evidence, a witness must submit to cross-examination. In a rape case, this can amount to a form of continued harassment, violation. Again, why not allow a witness to decline to be cross-examined, and allow a jury to weigh that refusal in its assessment of the weight it gives the witness’s testimony?
I would take things a step further. I think that there are certain instances – when a woman has turned up in an emergency room, say, with wounds that themselves constitute something like prima facie evidence of rape* – in which medical personnel should be essentially mandated reporters, mandated testifiers, providing evidence in a prosecution brought by the state, with the woman herself being free to opt out of participation entirely.
I don’t know. This isn’t my area of expertise at all, and I suspect that there are far smarter people than I who have thought far more than I about this subject.
How should rape law be reorganized so as to encourage those who are raped to feel safe pursuing justice? What are your thoughts?
* Yeah, yeah – I know, some of us kinksters engage in fully consensual sex that may leave such wounds. I have no problem with requiring an explicit, written contract in such circumstances (or maybe not requiring, but establishing the presumption that, in the absence of such a contract, non-consent is presumed).