Rape, law, & evidence
August 8, 2008 4:24 PM   Subscribe

Rape and the legal system: I am confused about how the crime of rape is typically handled in the criminal justice system. Obviously rape is a horrible crime for the victim (male or female), but superficially, in my mind, it is a virtually unprovable crime because it happens between two adults in private in a manner that cannot easily be distinguished from consensual sex from the vantage point of third parties who are not witnesses.

Some possible evidence, for example, might be indications of force on the body (say bruises on the neck or arms), although even this becomes murky with the fact that many people consensually participate in and prefer "rough sex". Another kind of evidence might be unusual circumstances, say a married woman assaulted by a stranger at night in a public park. To a third-party non-witness this would seem suspiciously nonconsensual. But then again 1) many married people have sex with people who are not their spouses, 2) many people often have sex with strangers, and 3) many people often have sex in public places (hell, I've personally had sneaky night sex in the park!).

So one question is are these "suspicious signs" used as "evidence" in court cases, and can they really justifiably be used as "evidence" since they are all based on prejudices or folk or statistical notions about what is "normal" sexual behavior? (how can 'averages' or tendencies establish whether something happened or not anyway. No one is average)

If they are used as "evidence" it seems like laws the prohibit the use of sexual history of the victim may or may not be counter-productive. After all, the "plausibility" that the victim would have sex with strangers in the park, or have bruises from sex can't be weighted until we begin to establish the victim's past sexual behaviors and preferences relating to these kinds of sexuality.

So, from my superficial vantage point, adjudicating rape has a certain tragic insolubility, being largely, necessarily the word of the accuser against the word of the accused.

I do see in some manner how this could apply to other crimes: 'Oh, I have her TV and jewelry... she told me I could take them!'. And perhaps less comparably: 'What, I broke the window to get in?... She told me to do that if I couldn't find my key.'

So my questions are: What kinds of evidence go into court cases concerning rape? Is this evidence more or less objective than evidence used in other crimes, that might not have the same extreme privacy and variability of sexual transactions? And perhaps more chat-filtery, but still important, is the evidence used in deciding rape cases (and perhaps other kinds of crime too) really 'evidence' at all? Can we really establish "beyond a reasonable doubt" that a private transaction was nonconsensual, or is it just a crude matter of fudging our notions of "plausibility" to side with one side or the other based on larger political currents?
posted by fucker to Law & Government (15 answers total) 3 users marked this as a favorite
You're forgetting the role of the jury. Evidence in criminal trials does not have to be proved like a scientific experiment, it has to convince a jury. As (say) the OJ Simpson verdict demonstrated, it's never possible to prove any crime beyond the shadow of a doubt, but a prosecutor can try. Often, all the evidence is circumstantial and there are no eyewitnesses. In the most clearcut rapes, you have (a) DNA evidence that the accused had sex with the victim, and (b) the unequivocal statements of the victim that the act was not consensual, and (c) other evidence, like the circumstances of the act as you mention. If this convinces a jury, you have a conviction.
posted by beagle at 4:40 PM on August 8, 2008

I think the scenario you are imagining is not typical of most cases of rape. My understanding is that it's not usually a case of two people having sex in a bed and then there's a controversy about whether it was consensual, but more like someone is forced upon in much less romantic context and the alleged perpetrator denies it happened or denies that he is the perpetrator.
posted by winston at 4:53 PM on August 8, 2008

You're leaving out the possibility that contextual details will be entered into evidence that will convince a jury.

A woman claims rape. She has injuries consistent with rape. The accused male has injuries, too, consistent with a struggle. No witness has ever seen the two people together socially. The woman finds a witness after the fact but near the alleged location and soon after the alleged incident. Another witness recalls seeing the man in the area immediately before and after the time of the alleged event, and afterward, he is seen to have fresh injuries that seem to correspond to his now-healed defensive wounds. Torn clothes that correspond to the victim's are found at the scene. Character witnesses indicate the alleged suspect had a violent past, and was known to be drunk or high around the time of the event. Character witnesses indicate that the woman is not prone to spurious claims, rough sex or sex with strangers.

Obviously, these cases are rarely this cut and dried. But if you had all of this in front of you, and the suspect's only defense is, "Uhh, it was consensual," it just doesn't stand the test of reasonable people viewing all the evidence.
posted by Cool Papa Bell at 5:01 PM on August 8, 2008

One thing is, what possible incentive does the victim have to lie about being raped? So their say gets a bit more weight because of that. (Obviously, there are exceptions, but rape is hella under-reported.) I'm not suggesting other evidence shouldn't be required and sought out, because fair trials and all, but that is certainly a factor. Like, you cannot know for sure that someone didn't just consensually have rough sex, in a park, with a stranger, who was holding a knife, and then decide to go tell the police he raped her just because she feels embarrassed about it, but that is certainly not the most reasonable assumption.

As for bringing in a woman's sexual history: those laws are there to protect women from getting the "she's had sex with all these dudes, therefore she's a slut, therefore why wouldn't she want to have sex with this dude" treatment, and I'm unsure that opening those floodgates in case a woman maybe has some minority sexual preference is a good idea. Especially since that practice kind of implies that if you're into S&M, you can't be raped, because you have consented to rough sex in the past? I can see where you're coming from and I don't think that's what you are implying, but more that that's kind of the logical conclusion of allowing a woman's sexual history to be relevant to the hypothetical rape at hand.

Another is, what beagle said. Guilt doesn't have to be proven as absolutely true. The standard is beyond a reasonable doubt: so if there's a preponderance of the "suspicious signs" that you mentioned, the doubt about what happened becomes less and less reasonable. So, yeah, I guess it is crudely about notions of plausibility, but so are most crimes.
posted by SoftRain at 5:03 PM on August 8, 2008 [1 favorite]

There's a lot in your question, and others are doing a wonderful job as usual in answering your question so far as it pertains to rape. You might also watch Law & Order: SVU, which explores some of these issues, and isn't too bad at it.

But one premise you have is that rape is distinctive, at least in acquaintance cases, and it really isn't -- more a matter of degree. Obviously, there are other crimes of violence that depend on he said/she said, like crimes involving self-defense. Battery and kidnapping cases sometimes involve the issue of consent, as do theft and fraud cases.

In any event, I agree with the others that just because there is a contest of personal accounts, that doesn't mean there are no other indicia.
posted by Clyde Mnestra at 5:13 PM on August 8, 2008

Physical evidence: bits of the attacker's clothes on the victim's body; semen in the vagina or anus or mouth, all collected through swabs; scrapings from under the victim's fingernails if the victim scratched the assailant; leftover pubic hairs; leftover condoms; bruises, cuts, and other injuries.

Unfortunately, if victims delay calling the police, or shower or douche before seeking medical attention, this evidence can be lost.
posted by profwhat at 5:31 PM on August 8, 2008

the fact that many people consensually participate in and prefer "rough sex". Another kind of evidence might be unusual circumstances, say a married woman assaulted by a stranger at night in a public park. To a third-party non-witness this would seem suspiciously nonconsensual. But then again 1) many married people have sex with people who are not their spouses, 2) many people often have sex with strangers, and 3) many people often have sex in public places (hell, I've personally had sneaky night sex in the park!).

You're starting this question off with a lot of assumptions about the type, nature, and frequency of "many" people's sexual behaviors without any evidence to back it up.
posted by oneirodynia at 6:18 PM on August 8, 2008

It appears that you contemplate that legal evidence is similar to scientific evidence - but for the most part, evidence in court is simply the verbal answers given by witnesses on the stand. Granted, physical evidence may also play a part in a sexual assault trial, but is not required. Sometimes, there is corroboration for the version of events given by the victim (not infrequently by the accused), and depending on how quickly the allegation is reported, there may be medical evidence as well.

Thus, proving the rape occurred beyond a reasonable doubt is exactly what takes place anytime there is a conviction (in the common law system at least UK/US/Canada/Australia etc.). What I think you may be asking about is proof to certainty - which is never required, and practically impossible in most cases, let alone rape cases.

As for the "suspicious signs", it depends. Sometimes they are circumstantial evidence that supports one version or the other. Sometimes it is chaff. Part of the reason that sexual history is presumptively inadmissible has to do with some of the assumptions that you appear to be making yourself (along the lines of "She likes/has had rough sex in the past, thus, the fact that this was rough sex means it was more likely that she consented") Ummm, NO. If the victim says she didn't consent to the sexual activity in question, who cares what her peccadilloes are. That might be relevant is if the rough sex was with the accused, and part of the sexual activity was "feigned non-consent" in the past, and the accused is arguing a mistaken belief in consent (which is essentially what "safe words" are for, if I am not mistaken).

In any event, the factors you talk about can make sexual assaults difficult to prove, but they are by no means unique in that way, as mentioned by Clyde Mnestra.

posted by birdsquared at 6:40 PM on August 8, 2008 [1 favorite]

I've had the privilege of serving on juries, and while the trials I helped judge did not involve rape, they did involve serious issues hinging on individual testimony. In one case, a bouncer received death threats, and one of the things we jurors had to do was decide whether the bouncer felt fear, and if so, whether it was more than fleeting. In another case, the defendant was charged with domestic assault, and the victim had initially pressed charges and then retracted her statement.

Deciding who's telling the truth about a violent act is something lots of juries have to do.

Sitting on a jury has done more than any other experience I've had to clarify the meaning of "beyond a reasonable doubt". As we were reminded in the courtroom, the standard isn't "any doubt at all" - you can manufacture doubt about practically any situation. How do we know what the guy REALLY said to the bouncer? How do we know how this woman got so bruised? We can never be certain, but we imperfect humans have to do the best we can to determine which testimony is true.
posted by kristi at 7:23 PM on August 8, 2008 [1 favorite]

I am a lawyer. The "problem" you highlight here isn't peculiar to the crime of rape, and in fact rape isn't even the best example. Consider the difference between deliberate, premeditated murder (which might lead to a sentence of death or life without the possibility of parole) and lesser degrees of murder, such as negligent homicide (which might lead to a couple of years in the pokey). The proof of intent is all circumstantial, and there are cognitive scientists who would dispute whether some conscious state of intent even exists as more than an illusion of consciousness. It is impossible to assign reliable mathematical probabilities. Yet juries make this determination all the time.

These issues aren't limited to criminal law. I used to practice employment discrimination and sexual harassment law on the plaintiffs' side. There are all sorts of issues of intent there as well.

There's a whole law school class -- Evidence -- that gives a rather limited answer to your question. No way anyone here can sum it up for you. I'll just make an observation. We ask ordinary people to apply their common sense -- what you call "prejudices or folk or statistical notions" -- to avoid exactly the kind of moral logjam you seem to be in.

I used to practice appellate law, but if I were a trial lawyer representing a woman who was sexually harassed at work, I'd have you off the jury in a New York minute. If you ever want to avoid jury service, make a copy of your question and append it to the juror questionnaire.
posted by ferdydurke at 8:58 PM on August 8, 2008 [3 favorites]

adjudicating rape has a certain tragic insolubility, being largely, necessarily the word of the accuser against the word of the accused.

Welcome to the world of the criminal justice system. For hundreds of years guilt has been found based on juries and judges evaluating testimony and deciding which story to believe.

The testimony on both sides is evidence. The jury or judge decides what side to believe. This system has existed since ancient Athens.Its how we do things.
posted by Ironmouth at 9:23 PM on August 8, 2008 [1 favorite]

Movies you should see:

The Accused

Black Snake Moan

And a Whole Slew of other movies that hopefully show some of what determines a voluntary, consensual act from a coerced act.

Additional information:

All About Consent

posted by mynameismandab at 1:44 AM on August 9, 2008

One more thing: Rape is a Trauma, unlike consensual sexual activity. A person who comes forward with a rape accusation is likely to suffer other impairments in his/her daily functioning that would not normally take place with someone who was not violated. Whether the victim/survivor is in shock or is a flood of emotion, s/he is likely to display symptoms of trauma after the fact, whether in school, at work, with family and friends.

IANAL, but the after-effects of this trauma may be circumstantially admissible in court.
posted by mynameismandab at 1:51 AM on August 9, 2008

Also the Perp, usually male, is easier to defend if he is good enough looking, in the same age group, race, social class, etc.
posted by highgene at 2:42 AM on August 9, 2008

As ferdydurke said, rare is the case where one has a video tape of the perpetrator committing the act.

Getting and convicting the right person for the right crime is terribly difficult. I tend to agree that rape is probably no more or less susceptible to that than any other crime.

On the other hand, there is a subset of rape where the crime only exists depending on the perception of the victim. I'm sure it is exceedingly rare but it can happen- two people go out, get equally drunk and have consensual sex. Person A wakes up early the next morning, does not like what they see next to them, and leaves. Person B wakes up later, does not remember having sex or consenting to it, but clearly has had sex.

Whether that scenario is rape or a drunken hookup depends solely on the personality of Person A, their memory of the evening, the behavior of Person B and what the he or she does next. And the memories and perceptions of the people Persons A and B talk to later. If Person B is prone to drama and some other person C says "wow, Person A practically carried you out of the bar", it can quickly turn into a charge of rape when none occurred. This person will feel the psychological results of rape, because that is what they believe happened. But (in this scenario at least), there was no rape.

It's kind of scary- I know I'm of the opinion that for all crimes, I'd rather 100 people go free than have one innocent person get wrongly convicted. Sadly, in many cultures, people are so worried about "safety" that it trumps "justice".
posted by gjc at 7:30 AM on August 9, 2008

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