Court Sanctioned Mediation in Cases of Acquaintance Rape: a Beneficial Alternative to Traditional Prosecution

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Court Sanctioned Mediation in Cases of Acquaintance Rape: a Beneficial Alternative to Traditional Prosecution Court Sanctioned Mediation in Cases of Acquaintance Rape: A Beneficial Alternative to Traditional Prosecution KERRY M. HODAK* I. INTRODUCTION Short of homicide, [rape] is the "ultimate violation of self "1 Unfortunately, rape is an issue that still pervades American society.2 In the United States, a person is sexually assaulted every two minutes.3 Rape leaves a woman with short-term and long-term psychological harm. 4 Although the problem of rape is prevalent, the criminal justice system is not equipped to manage the problem effectively. Even in the rare case that a rape is reported, prosecution is rarely successful. 5 Incorporating mediation into * B.A. Wittenberg University, 1999; J.D. Candidate, The Ohio State University Mortiz College of Law, 2004. I would like to thank my family for all their support and encouragement. My sincere appreciation to the JDR staff members and editors for their helpful comments. Any errors are my own. 1 Florida Star v. B.J.F. 491 U.S. 524, 542 (1989) (White, J., dissenting) (disagreeing with the plurality that the names of rape victims could be released in the media if the government did so erroneously) (citing Coker v. Georgia, 433 U.S. 584, 597 (1977) (White, J.) (ruling that the death penalty in rape cases violates the Eighth Amendment)). 2 GREGORY M. MATOESIAN, REPRODUCING RAPE: DOMINATION THROUGH TALK IN THE COURTROOM 5 (1993) ("Rape is a widely prevalent and highly systematic aspect of American social life-a social fact."). While acknowledging that males are victims of rape, this Note will focus on women because over ninety percent of rape victims are women. Callie Marie Rennison, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, BUREAU OF JUSTICE STATISTICS: SELECTED FINDINGS, Aug. 2002, at 1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/rsarpOO.pdf (last visited Jan. 26, 2004) (stating that ninety-four percent of completed rape victims were women and ninety-one percent of attempted rape victims were women). 3 Christina Stephens, Justice of the Accused, but not the Rape Victim, THE REVEILLE, Nov. 28, 2001 (via University Wire) (citing the Rape and Incest National Network). 4 See PAT GILMARTIN, RAPE, INCEST, AND CHILD SEXUAL ABUSE: CONSEQUENCES AND RECOVERY 157-270 (1994) (discussing the consequences of suffering from rape and the issues involved in treating the victim); see also United States v. Morrison, 529 U.S. 598, 628-37 (2000) (discussing the impact of rape on women). 5 Oftentimes a jury will not convict because of the "he said, she said" problem of evidence in acquaintance rapes. See Deborah Gartzke Goolsby, Note, Using Mediation in Cases of Simple Rape, 47 WASH. & LEE L. REv. 1183, 1192 (1990) ("In this circumstance, a jury generally will acquit or, if allowed to do so, convict the defendant of 1089 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 19:3 20041 the criminal justice system for cases of rape will lead to more victims reporting the crime and more perpetrators being brought to justice and receiving rehabilitative care. Society addresses rape through the criminal justice system, and society's approach to rape in this context has evolved over time. For example, defining rape as a component of sexual assault was an important development in the process. 6 However, the current system of justice is not effectively dealing with the issues of rape and does not enable women to reap the benefits of the criminal justice system.7 This Note proposes that victim-offender mediation is a reasonable alternative to the traditional approach to criminal prosecution 8 in certain types of rape cases. Part IIof this Note will explore the issues of rape, detailing the statistics associated with rape in the United States and the way in which rape has been defined including the traditional legal definition. Additionally, Part II will explain the evolution of the law regarding rape and its implications for victims. Part I of this Note explains restorative justice and one of its most common applications, victim-offender mediation. Following the explanation of restorative justice and the operation of victim-offender mediation, Part IV will explain how cases of acquaintance rape are best handled through a a lesser charge than rape. In fact, one study revealed a jury conviction rate for simple rape [acquaintance rape] of only three out of forty-two cases."). 6 STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 104-05 (1998) (explaining issues involved in the terminology of rape). The question immediately arises whether a criminal offense for violating sexual autonomy should be called "rape," "sexual assault," or something else entirely. Usually the judgment about how to name our offense categories is of little practical interest. In property crimes the labels used are neither uniform nor important. In sexual crimes, however, the labeling decision may be very important. A persistent pitfall of rape reform has been the tenacity of common culture and its influence over the interpretation of ambitious reforms. Rape reformers have paid close attention to labels but have disagreed sharply over the best approach. Id. at 104 (citations omitted). For purposes of this Note, rape and sexual assault will be considered synonymous. 7 See infra Part II. 8 Mediation may be used in addition to tradition criminal prosecution, in lieu of criminal prosecution, or in conjunction with criminal prosecution. Mediation in conjunction with prosecution is operationalized as mediation between the victim and prosecutor with the defendant and his attorney. Mediation is rarely used in rape cases in the ways proposed by this Note. See Tom Witosky, Pierce Deal: Positive Step for Victims?, DES MOINES REGISTER, Nov. 11, 2002, at 5A ("'Mediation is used in some criminal cases but not very often, and I know of no case in which it was used in a sexual- assault case in this way,' said Andrea Charlow, a mediation expert at the Drake University Law School."). 1090 RAPE MEDIATION process of mediation based on the theory of restorative justice. In the first instance that mediation is proposed, the victim and the offender would mediate a plea bargain with the aid of the prosecutor and defense attorney. In the second instance, mediation is an alternative that entirely replaces a criminal trial process. Part IV answers challenges leveled at restorative justice in the context of using restorative justice methods in cases of rape. Mediation in the cases of acquaintance rape will empower victims and address the needs of the offenders. II. RAPE AND SEXUAL ASSAULT TODAY Since the 1940s, the instances of rape have substantially increased. 9 To understand the issue of rape and the ways in which this Note recommends that the criminal justice system evolve to properly address the issue of acquaintance rape, it is important to understand the prevalence of the problem and how the justice system currently handles the situation. Most rapes go unreported, and those that are reported are unsuccessfully managed 10 by the justice system. A. The Statistics and Definitions The statistics regarding rape illustrate the need to effectively deal with the problem as a society. The Rape Abuse & Incest National Network (RAINN) reported that one out of every six women in the United States has been a victim of rape or attempted rape.1 Based on the 2000 National Crime Victimization Survey conducted by the Department of Justice, RAINN reported that there were 261,000 victims of rape, attempted rape, and sexual 9 GILMARTIN, supra note 4, at 23-25 (1994). According to official crime statistics from the FBI, rapes increased from 5.2 per 100,000 persons in 1940 to 41.2 per 100,000 persons in 1990. Id. Based on surveys and other data showing the substantial underreporting of rape, Gilmartin concludes that "the calculated rate of rape is at least double that of the FBI UCR." Id. at 50. From 2001 to 2002, the number of reported rapes increased by four percent while total violent crime decreased by 0.2 percent. UNIFORM CRIME REPORTS (Jan.-Dec. 2002), available at http://www.fbi.gov/ucr/cius_02/02 prelimannual.pdf (last visited Jan. 26, 2004). 10 See infta PartII.A-C. 11 RAINN Statistics, Women are victims ... , available at http://www.rainn.org/ statistics.html#womenarevictims (last visited Jan. 26, 2004); Sally F. Goldfarb, Violence Against Women and the Persistence of Privacy, 61 OHIO ST. L.J. 1, 12 (2000) ("More than half of these women were assaulted before the age of eighteen. Almost 900,000 attempted and completed rapes are perpetrated against adult women each year.") (citing statistics from the Surgeon General). 1091 OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 19:3 2004] assault in 2000.12 In sixty-two percent of the rape cases, an individual she knew, such as a friend or an acquaintance, assaulted the victim. 13 Of all types of rape, the majority went unreported. 14 The implications for women are far- reaching and detrimental to their future. 15 12 RAINN Statistics, Dept of Justice Study Shows Rape Down, available at http://www.rainn.org/stat.html (last visited Jan. 26, 2004). 13 Id. 14 Id. ("Forty-eight percent of victims said that they reported the crime to police, up dramatically from last year's 28%. However, the BJS [Bureau of Justice Statistics] researchers cautioned that this subsample was too small to be reliable."). In a study from 1992-2000 conducted by the Federal Bureau of Investigation, the results indicated that only 36% of rapes and 34% of attempted rapes are reported. Rennison, supra note 2, at 1; see also GARY LAFREE, RAPE AND CRIMINAL JUSTICE: THE SOCIAL CONSTRUCTION OF SEXUAL ASSAULT 63-65 (1989) (indicating that women typically will not contact police regarding sexual assault without outside influences encouraging them to do so); Judith E.
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