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Rape in the Criminal Justice System David P Journal of Criminal Law and Criminology Volume 87 Article 3 Issue 4 Summer Summer 1997 Rape in the Criminal Justice System David P. Bryden Sonja Lengnick Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation David P. Bryden, Sonja Lengnick, Rape in the Criminal Justice System, 87 J. Crim. L. & Criminology 1194 (1996-1997) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/97/8704-1194 THE JouRNAL OF CRiMINAL LAw & CRIMINOLOGY Vol. 87, No. 4 Copyright © 1997 by Northwestern University, School of Law Printed in U.S.A. RAPE IN THE CRIMINAL JUSTICE SYSTEM DAVID P. BRYDEN* & SONJA LENGNICK** TABLE OF CONTENTS I. Introduction ............................................ 1195 II. From Report to Verdict ................................. 1201 A. Attrition Statistics and the Equivalent Crimes Fallacy .............................................. 1208 1. Attrition in Rape Case Processing ............... 1210 2. Rape v. Other Major Crimes .................... 1212 3. Focusing on Acquaintance Rape ................ 1214 B. Reporting .......................................... 1218 C. The Police Founding Decision ...................... 1230 D. The Decision to Prosecute .......................... 1246 E. The Jury ............................................ 1254 1. Kalven and Zeisel's Classic Jury Study ........... 1255 2. Other Research on Victims and Situational Variables ....................................... 1263 a. The Defendant's Characteristics ............ 1274 b. Jurors' Characteristics ....................... 1278 c. The Evidence ............................... 1282 3. Effects of Rape Law Reforms on Conviction Rates ........................................... 1283 III. Leniency in Acquaintance Rape Cases: Three Pervasive Issues ................................................... 1294 A. Introduction ........................................ 1294 * Gray, Plant, Mooty, Mooty & Bennett Professor of Law, University of Minnesota. All rights reserved, David Bryden. ** Member of the Illinois bar. We are very grateful to Vivian Berger, Linda Fairstein, Mary Louise Fellows, Richard Frase, Patricia Frazier, Julie Homey, Mary Koss, David Lyk- ken, Roger G. Park, Barbara Reskin, Marian Saksena, Stephen Schulhofer, Emily Sherwin, Michael Tonry, and Frank Zimring for suggestions or encouragement based on an earlier version of this article. Of course, they are not responsible for any remaining errors, and they do not necessarily endorse all of our conclusions. Diligent research assistance or cite- checking was provided by Robert Ballieu, Staci Bartsch, Jason Hannan, Kristen Ludgate, David Marcus, Erick Ottoson, Robin Preble, David Shamla, Rebecca Simpson, Andrew Wronski, and Susie Zamzow. We are also indebted to Mary Jane Luedtke for typing serv- ices above and beyond the call of duty. 1194 1997] RAPE 1195 B. False Rape Reports ................................. 1295 1. The Argument from Rationality ................. 1298 2. The Argument From Underreporting ..... ..... .1303 3. The Argument from Unfounding Rates ......... 1303 4. Other Empirical Research ...................... 1308 C. The Burden of Proof ............................... 1315 D. Victim Behavior as Ambiprobative Evidence ........ 1328 1. Contributory Negligence........................ 1333 2. Alcohol and Drugs ............................. 1347 3. Promiscuity and Prostitution .................... 1351 4. Hitchhiking .................................... 1365 5. Delinquency and Delinquent Peers ..... ....... 1366 6. Mental Problems, Runaways, and Truants ....... 1367 7. Prior Intimacy with the Defendant .............. 1369 8. Summ ary ....................................... 1373 IV. Conclusion ................................ ............ 1377 I. INTRODUCTION Modem rape scholarship has been informed by a number of em- pirical premises concerning the operation of the criminal justice sys- tem in rape cases. The most fundamental of these premises is that the justice system discriminates, at every stage, against rape victims.' The details of this charge can be briefly summarized. To begin, the case attrition rate in rape cases is shockingly high, and very few rapists are convicted of the crime.2 Victims often do not report the rape, largely because they fear overbearing, hostile police,3 and-should a trial en- sue-vicious attacks on their character.4 Although false reports of rape are no more common than of other crimes,5 justice system offi- cials are highly skeptical of women who claim to have been raped by I See, e.g., SusAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975); SusAN ESrRICH, REAL RAPE (1987). Brownmiller and Estrich, in particular, have had a ma- jor influence on subsequent discussions about rape and rape law. See also Vivian Berger, Man's Tria Woman's Tribulation:Rape Cases in the Courtroom, 77 COLUM. L. REV. 1. (1977); Gerald D. Robin, ForcibleRape: Institutionalized Sexism in the CriminalJustice System, 23 CRIME & DEtUNQ. 136 (1977). 2 See infra notes 102-13 and accompanying text (discussing high attrition rates in rape case processing). 3 See infra notes 187-88, 226-50 and accompanying text. 4 See, e.g., LYNDA LyrLE HOLMSTROM & ANN WOLBERT BURGESS, THE VICrIM OF RAPE: INsTrrTImONAL REAarIONs 56 (1978). Despite the passage of rape shield laws, evidence of a complainant's sexual habits is still admissible in some cases, either because the law was badly-drafted, or because the evidence is relevant for a legitimate purpose such as sug- gesting a motive for a false accusation or providing a context for the defendant's consent defense. See generally Harriett R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposalfor the Second Decade, 70 MINN. L. REv. 763, 812-905 (1986). 5 See infra note 616 and accompanying text. 1196 BRYDEN & LENGNICK [Vol. 87 acquaintances. 6 If the rape victim's conduct prior to the crime vio- lated traditional sex-role norms, police commonly disbelieve her re- port or blame her for the rape.7 Thus, officials deny justice to women who have engaged in nonmarital sex,8 or other "improper" activities such as heavy drinking or hitchhiking. 9 None of these sex-role-norm violations is relevant to whether the woman was raped, 10 but the norms are enforced because they serve to keep women in their place'1 and because the men who control the justice system are irrationally 12 obsessed with the danger of false rape accusations. Afraid that losing cases will look bad on their records, prosecu- tors are excessively reluctant to prosecute acquaintance rapists. 13 When they do prosecute, the system puts the victim rather than the defendant on trial.14 Juries, motivated by the same biases as other participants in the system, 15 often blame the victim and acquit the rapist.16 Most rape scholars believe that, in large measure, these travesties ofjustice have been due to rules of law, fashioned by male judges over the centuries, that promote victim blaming.17 Among the foremost such rules were the requirements that the victim resist her attacker 8 6 See, e.g., EsTRICH, supra note 1, at 27-56. See generally infra notes 132-38, 154-56 and accompanying text. 7 See, e.g., Alan C. Acock & Nancy K. Ireland, Attribution of Blame in Rape Cases: The Impact ofNorm Violation, Gender and Sex Role Attitude, 19 SEX ROLES 179, 187 (1983);Judith S. Bridges, Perceptions of Date and StrangerRape: A Difference in Sex Role Expectations and Rape- Supportive Beliefs, 24 SEX ROLES 291, 304-05 (1991). 8 See, e.g., RIcHAm A. POSNER, SEX AND REASON 388 (1992). 9 See, e.g., HOLMSTROM & BURGESS, supra note 4, at 39-43 (unfounding of rape reports correlated with victim's drinking or hitchhiking). See generally infra notes 863-83, 952-53 and accompanying text. 10 See, e.g., BROWNMILLER, supra note 1, at 353-55; Berger, supra note 1, at 55-56. See also infra note 594. " See, e.g., BROWNMILLER, supra note 1, at 11-30; ESTRICH, supra note 1, at 5-6, 23-25, 62- 69. 12 See, e.g., ESTRICH, supra note 1, at 5-6, 42-56. See generally infra notes 603-719 and accompanying text (discussing false rape reports). 13 See, e.g., LINDA A. FAiRSTEIN, SEXUAL VIOLENCE: OUR WAR AGAINST RAPE 151-52 (1993); ALICE VACHSS, SEX CRIMES 140-43 (1993); Lisa Frohmann, DiscreditingVictims'Alega- tions of Sexual Assault: ProsecutorialAccounts of Case Rejections, 38 Soc. PROBS. 213, 217-24 (1991). 14 See, e.g., LEE MADIGAN & NANCY C. GAMBLE, THE SECOND RAPE (1991); JOYCE E. WIL- LIAMS & KAREN A. HOLMES, THE SECOND ASSAULT (1981); Berger, supra note 1. 15 See infra notes 516-28 and accompanying text_ 16 See infra text accompanying notes 400-07 (describing juror leniency in aggravated versus non-aggravated sexual assault cases). 17 See, e.g., BROWNMILLER, supra note 1, at 19-24. For an overview of the resistance re- quirement at common law, see ESTRICH, supra note 1, at 29-41. 18 In recent decades, the resistance requirement has been eroded by reforms. Where they existed, requirements that the victim resist continuously and to the utmost have been universally repealed; most states have gone further, eliminating all requirements of physi- 1997] RAPE 1197 and that her testimony be corroborated by other evidence.'
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