Guest Editors’ Introduction

Abstract

This special issue of Violence Against Women, “The Criminal Justice Response to Sexual Violence,” discusses the present capabilities of law enforcement and forensic science to provide victims of sexual assault with just outcomes and hold offenders accountable for their crimes. Since 2001, the United States Department of Justice (USDOJ), specifically the National Institute of Justice (NIJ), has supported a research portfolio of which a major focus is the production of information on sexual violence that directly informs and improves criminal justice practice and response. This recent increase in research has played a crucial role in documenting the high prevalence of sexual assault in the American society, as well as attempting to identify criminal justice approaches and program models that are most effective in responding to reports of sexual assault.

To further its program of research, NIJ held a sexual violence research workshop in 2008 that brought together researchers, service providers, and forensic experts to discuss emerging issues related to sexual violence and produced an expansive list of research priority recommendations. As a result of the workshop, the NIJ has focused its sexual violence research portfolio on three major areas: multidisciplinary responses, forensics, and criminal justice responses. In the fall of 2011, the Office on Violence Against Women, in conjunction with the National Institute of Justice and the Bureau of Justice Statistics, sponsored a research roundtable on the criminal justice response to sexual violence. This meeting furthered the discussion between researchers, practitioners, and federal agencies on the need for effective interventions to both combat and respond to sexual violence. Central themes at the roundtable included the need for longitudinal research on victim outcomes and a broader examination of attitudes toward sexual violence and its victims. Although the articles that follow are a product of the 2008 workshop, their practice, policy, and research implications have continued relevance for the field.

Sexual violence has been a part of human existence for many millennia. The breadth of sexual violence research has broadened greatly since sexual assault emerged as a topic of public discourse and feminist activism in the 1970s. Still, many unanswered questions remain regarding how the criminal justice system can better address the often conflicting needs of victims and law enforcement.

There is a growing sentiment among advocates that the criminal justice system is failing sexual assault victims to such a great extent that alternative response models must be explored, such as restorative justice and mediation approaches (Koss, 2010). In light of the low rate at which sexual assaults are reported to law enforcement, offenders are charged, and juries render guilty verdicts for these violent crimes, the search for alternatives to the criminal justice system is understandable. Concurrent movements to develop alternative approaches and innovate change within the traditional criminal justice system are both born of the motivation to enforce the law and ensure that victims’ needs are heard and addressed more effectively than they are currently. As will be discussed throughout this special edition, more research is needed to inform the continued development and refinement of a response model that accomplishes these goals.

The Cultural and Legal History of Sexual Assault

American society’s approach to sexual violence has been heavily influenced by the social justice conflicts that dominate human history, to include gender discrimination and racial discrimination, as well as issues of culture, class, and ideology. Therefore, a discussion of the criminal justice response to crimes of sexual violence cannot take place without recognizing the role sexual assault has played in society. Both the historic and social scientific literature discuss the inextricable link between sexual violence and society’s view of sexuality, class, gender roles, and social norms (Brownmiller, 1975; Carter, 1985; Cohen, 1993; McNamee, 2001). Our current legal view of sexual assault, and rape in particular, evolved over the course of centuries from an accepted courtship ritual to the violent criminal offense it is conceptualized as today. An examination of this legal evolution reveals that rape only became viewed as a crime against society when the raped woman was viewed as property stolen from her male guardian, be it her husband, father, or brother. Ancient Babylonian and Hebraic law held married women equally responsible for their rape with their perpetrators, whereas Biblical references to sexual assault readily demonstrate the cultural belief that women lie about rape to seek revenge or camouflage their own societally unacceptable sexual behavior (Brownmiller, 1975; McNamee, 2001). Greek mythology is rife with references to sexual assault and abduction, with the saga of Helen of Troy being a prime example, and Plato himself wrote of the extreme loss of honor suffered by the family of a woman or child who is sexually assaulted (Cohen, 1993; McNamee, 2001). The ancient Romans recognized rape as a crime, but only if it was perpetrated against a widow, a virgin, or a boy, and there were certain women of lower social classes who were regarded as unable to be raped (e.g., prostitutes, innkeepers, actresses). As a result, the severity of punishment levied against the perpetrator of a sexual assault was determined by the social standing of the victim.

The Medieval British authorities came down quite hard on a subject who raped a virgin, wherein not only did they execute the perpetrator but the law also mandated that “his horse and dog . . . [be] castrated, and his hawk (if he had one) would lose its beak, tail and claws” (McNamee, 2001, p. 5). After all of these gruesome punishments were meted out, the rapist’s lands were given to the rape victim. However, if the rape victim agreed to marry her rapist, his life would be spared (Carter, 1985). When Edward I issued the Statutes of Westminster at the end of the 13th century, this concept of “redemption through marriage” was eliminated and rape laws were applied to virgins and nonvirgins alike.

We can see the origins of modern Western sexual assault law in these statutes, as they established that the crown/government must take an active role in the prosecution of such offenses rather than solely rely on the victim or her family to lodge a suit against the offender. This established sexual assault as “a matter of public concern and safety rather than simply a family misfortune” for the first time in history. It also extended legal protections from rape to married women as well as virgins (McNamee, 2001, p. 6). Very little changed in English law between the 13th and 20th centuries. However, as Brownmiller (1975) writes in Against Our Will: Men, Women and Rape, Western legal scholars continued to emphasize the importance of a victim’s reputation and behavior in determining the validity of a claim of rape. The book also quotes William Blackstone as stating,

[If a woman] be of evil fame and stand unsupported by others, if she concealed the injury for any considerable time after she had the opportunity to complain, if the place where the act was alleged to be committed was where it was possible she might have been heard and she made no outcry, these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned. (p. 30)

Therefore, British law gives us not only insight into the evolution of rape from a familial issue to a crime against society at large but also the origins of the burden of rape investigation resting so heavily on the testimony, appearance, actions, and attitude of the victim reporting the assault. Many contend that this use of the characteristics of the sexual assault victim as a barometer to measure the truth or validity of the reported crime persists to this day.

American sexual assault statutes were primarily based on British common law and was guided by three principles: (a) statutory requirement that a victim present evidence to corroborate her account and evidence of earnest resistance to the attack; (b) rules of evidence that allow consideration of a victim’s sexual history to establish or impeach the credibility of the victim’s accusation; and (c) the exemption of a husband from charges of raping his wife (McNamee, 2001). Searles, Berger, and Neuman (1995) describe this approach as based on “the image of women as seductive and untrustworthy . . . combined with [the] socio-legal conceptions of women as property of males” (p. 224). In 1952, a law journal article claimed that “surely the simplest and perhaps most important, reason not to permit conviction for rape on the uncorroborated word of the prosecutrix is that the word is often false” (“Corroborating Charges,” 1967, p. 1138).

In addition to the historical and cultural baggage borne by sexual assault statutes, the legacy of slavery and racial oppression in America also influenced these statutes, with the law offering no protection to African American women from rape until the abolition of slavery (Wyatt, 1992). Even after African American women were brought under the formal protection of the law, the research literature indicates that this population did not receive equal protection in practice (Donovan & Williams, 2003). Many scholars posit that persistent stereotypical images of African American women caused the criminal justice system to inadequately respond to crimes of sexual violence perpetrated against women of color. These stereotypes resulted in African American women being less likely to report, less likely to be believed when they do report, and left with the conclusion that they are not as likely to receive a just resolution of their case (Weist et al., 2007).

American sexual assault law began to change in the 1970s and 1980s as a result of feminist reformers identifying the criminal justice system’s treatment of sexual assault as a highly visible example of the legal enforcement of male privilege. This social action movement identified three main elements in need of reform: the legal definition of sexual offenses; the evidentiary rules contained in sexual assault statutes; and the penalty structure for those convicted of such crimes. The first approach endeavored to expand the list of offenses that qualified as sexual assaults to include oral or anal sex, as well other forms of sexual contact between body parts. It also attempted to focus on the actions of the offender rather than the victim, include a gender-neutral definition of “rape,” and recognize the existence of marital rape (Searles et al., 1995). The movement also endeavored to change the rules of evidence that permitted the accused to use the victim’s sexual past as evidence against her claim of sexual assault, as well as the requirements for corroborative evidence such as “proof of earnest resistance” to the attack (Searles et al., 1995). Finally, the reformers of the 1970s and 1980s proposed that the existing penalty structure actually made it less likely that a jury would convict a defendant of sexual assault because they often viewed the available punishment as too severe and that the available penalties should be graduated according to the severity of the crime in question. Essentially, reformers believed that “the certainty of punishment has a stronger deterrent effect than severity of punishment” and that would-be perpetrators would continue to regard sexual assault as a low-risk and high-reward endeavor until the likelihood of receiving swift and sure punishment increased (Searles et al., 1995, p. 226).

Michigan was the first state to institute rape law reform in 1974, with other states following in the succeeding decades. These reforms generally shifted the legal focus to the actions of the perpetrator, altered the definition of sexual assault, eliminated the need for corroborative evidence in sexual assault cases, and established rape shield laws (McNamee, 2001). Currently, all 50 states and the District of Columbia have rape shield laws in place to limit the use of a victim’s prior sexual history as means to undermine the credibility of their testimony (Menkes, 2006). State statutes also recognize spousal rape as a crime, although specific sexual assault statutes and definitions vary among jurisdictions (National Center for Victims of Crime, 2000).

Public attention to and concern about crimes of sexual violence concurrently increased with these reforms, which resulted in new approaches to sexual assault prevention and responses by criminal justice, medical, and crime-prevention professionals. These approaches included Sexual Assault Response Team (SART)/Sexual Assault Nurse Examiner (SANE) Programs, specialized sexual assault prosecution units, and bystander intervention programs. In addition, important legal reforms were passed in the 1990s that required college campuses to publicly disclose their sexual assault statistics and prevention initiatives (Harrell et al., 2009). Finally, the federal government has focused considerable resources on addressing sexual assault prevention and response, as evidenced by the millions of dollars awarded by the U.S. Department of Justice and Centers for Disease Control and Prevention (CDC) in support of state and local programs and the U.S. military’s development of a comprehensive sexual assault prevention and response program within the past decade. In spite of these innovations and efforts, sexual assault continues to be a significant problem and perhaps one of the most underreported violent crimes in the American society.

Prevalence of Sexual Assault in the United States

The social scientific literature is not lacking in prevalence studies of sexual assault, although it is wanting for consistency in the resulting findings. Prevalence estimates for sexual assault vary dramatically among studies due to diverse methodologies and definitions used by the federal agencies and social scientists who collect these data. Studies using community samples of women yield prevalence rates ranging from 15% to 51% (Elliott, Mok, & Briere, 2004; Masho, Odor, & Adera, 2005; Randall & Haskell, 1995; Ullman, 1993), whereas studies that rely on college samples yield 21% to 42% prevalence rates (Combs-Lane & Smith, 2002; Easton, Summers, Tribble, Wallace, & Locke, 1997; Fisher, Cullen, & Turner, 2000; Gross, Winslett, Roberts, & Gohm, 2006; Kalof, 2000; Krebs, Lindquist, Warner, Fisher, & Martin, 2007; Nasta et al., 2005). Tjaden and Thoennes’ (2000) National Violence Against Women Survey found rape and attempted rape prevalence rates of 18% among women. Similarly, another study of a national sample of women also yielded the same prevalence rate 7 years later (Kilpatrick, Resnick, Ruggiero, Conoscenti, & McCauley, 2007). Despite varied findings, the literature clearly demonstrates that sexual assault is affecting a troubling proportion of the American society. New and ongoing data-collection efforts, such as the National Crime Victimization Survey and CDC’s National Intimate Partner and Sexual Violence Survey, will continue to provide timely population-based estimates of sexual assault prevalence.

Sexual Assault Reporting and the Criminal Justice System Response

Perhaps as troubling as the high prevalence of sexual assault is the fact that most victims will not subsequently notify criminal justice authorities of their victimization, with estimates ranging from only 12% to 20% of victims reporting to law enforcement depending on the population being studied (Kilpatrick et al., 2007; Lipari, Lancaster, & Jones, 2005; Tjaden & Thoennes, 2000). The literature has demonstrated that reporting is more likely among victims who did not know their perpetrator or when additional physical injuries were suffered that required medical attention (Campbell, Wasco, Ahrens, Sefl, & Barnes, 2001). The rate of reporting may have increased since the advent of rape law reform (Baumer, Felson, & Messner, 2003, Clay-Warner & Burt 2005), although this latter point is under debate by sexual assault researchers (see Lonsway & Archambault, this issue p.1).

As discussed previously, sexual assault carries a particular stigma in our society that dates back millennia. Research has amply demonstrated that the majority of sexual assault victims are reluctant to report to authorities, and their reasons for this reluctance vary. However, there are some prominent fears that may drive reports underground, such as fear of not being believed; fear of being blamed for the sexual assault; anxiety about being treated insensitively by authorities and, therefore, revictimized by the criminal justice system; and fear of others finding out about the sexual assault (Basile, 2005).

These fears are not unfounded, as research has uncovered some evidence of rape myth acceptance on the part of law enforcement, medical, and legal professionals (Edward & MacLeod, 1999) and has documented that victims may be more likely to encounter negative reactions when seeking support from these formal resources as opposed to informal resources (e.g., friends and family; Filipas & Ullman, 2001). Perhaps one of the most impactful barriers to sexual assault reporting is society’s commonly held assumption that most reports of sexual assault are false. The false reporting rate estimates offered by the research literature vary to almost comically disparate extremes, with studies of varying degrees of reliability and validity identifying false reporting rates ranging between 1.5% and 90% of reports studied (Rumney, 2006).

Lonsway, Archambault, and Lisak (2009) recently identified and examined the more rigorous studies of false reporting and claim that estimates for false reporting rates “begin to converge around 2-8[%]” (p. 2). In spite of the empirically validated likelihood that false reports constitute a minority of reports, mainstream media and the greater American public continue to perceive and portray the majority of rape reports and rape victims as immediately suspect. This suspicion of victims of sexual assault is often compounded by publicity surrounding assault cases involving high-profile or famous individuals that usually conclude in law enforcement not moving forward with the case or an outright acquittal of the accused (Lonsway et al., 2009).

This Issue

The first article in this special issue discusses the strengths and limitations of currently available data sources related to the crime of sexual violence, such as those examining the prevalence and incidence of sexual violence, data sources used in investigation, prosecution, conviction, incarceration of sexually violent offenders, and attrition statistics. Kimberly Lonsway and Joanne Archambault raise concerns about the collection, use, and interpretation of these data. Often taken together, despite varied definitions and measurement methods, these data provide only a partial view of sexual victimization and case outcomes. Although there may be no perfect way to measure sexually violent crime in addition to linking it to accurate investigation, prosecution, incarceration, and attrition statistics, the authors provide a candid overview of the misuse of these data as well as solutions in moving forward specifically as it relates to defining a “successful” outcome.

A prominent barrier to the reporting of statistical data is the prevalent lack of understanding of the nature of sexual violence as a phenomenon, including its high incidence rate, low reporting rate, intimate and private nature, and the dynamic of the type of perpetrator (e.g., known or stranger). As Lonsway and Archambault demonstrate, the media often uses the number of reported rapes and sexual assaults as the most valid measure when examining crime trajectories, and statistical information is often generalized without proper contextual information. Inaccurate representation of sexual violence data may reinforce the very myths that the criminal justice, advocacy, and research communities are attempting to overcome.

However, training and specialized experience have contributed greatly to criminal justice professionals’ ability to overcome long-held beliefs in common rape myths, constructively address the needs of sexual assault victims, and increase their effectiveness in investigating and adjudicating these cases. For example, Campbell (1995) found that officers with more experience with rape victims had more sympathetic beliefs about sexual assault, and those who felt positively about their specialized training exhibited fewer “victim blaming” tendencies. The research literature includes an array of studies that examine the victim, perpetrator, and incident elements that influence law enforcement decision making and practices in sexual assault cases with varying results. For instance, findings regarding the influence of victim–perpetrator relationship on investigative outcomes are inconsistent, with some studies finding that law enforcement was more likely to refer cases for prosecution when the victim and offender knew each other (Bouffard, 2000; DuMont & Myhr, 2000; McGregor, Marion, & Wiebe, 1999), but other examinations finding that suspects were more likely to be questioned by police when there was no previous relationship with the victim (Frazier & Haney, 1996).

In this special edition, Cassia Spohn and Katherine Tellis provide a synthesis of research relating to the criminal justice system’s response to sexual assault, victim decision making, and case processing of sexual assaults. Building on significant changes and reform of laws pertaining to sexual violence, their article examines whether such laws have improved responses for sexual assault victims as well as their engagement with the criminal justice system. Many of the changes discussed show legal attempts to move away from victim-blaming and corroboration approaches and toward more gender-neutral language to protect victims from existing rape myths such as those relating to prior sexual conduct.

However, Spohn and Tellis posit that the reporting rate of crimes of sexual violence is much lower compared with that of other violent crimes. Victims do not engage the criminal justice system for various reasons, such as fear of not being believed, fear of the suspect, and feelings of guilt and shame that have long been associated with the trauma of sexual violence. Their article challenges the reader to contemplate the impact of legal reform, and supports a critical and comprehensive shift in addressing this problem by claiming that sexual violence underreporting cannot be solely addressed via fluctuating law and policy. According to the authors, true change requires a dramatic cultural shift in the United States.

The advent of advanced forensic science practice and DNA technology has also focused more public attention on the importance of competent and comprehensive evidence collection in these cases, which is dependent on victim reporting and cooperation with the criminal justice system. Although forensic science is by no means a “silver bullet” that will solve or bolster the majority of sexual assault cases that involve a known perpetrator, it is still one of the most powerful tools currently at law enforcement’s disposal to improve investigative practice.

In their contribution to this special issue, Donald Johnson, Joseph Peterson, Ira Sommers, and Deborah Baskin provide a short history of the development and use of forensic science and outline various forensic techniques and their use in sexual assault case processing. The authors also provide data from an NIJ-funded study pertaining to forensic evidence examined in more than 600 rape cases and discuss the increasing role forensic science can play in sexual assault investigations. Although current methods are tremendous improvements over past forensic techniques, the authors caution that forensic science cannot negate several factors including the use of a victim’s body as a crime scene, delays in processing evidence resulting in severe backlogs, and the minimal impact such evidence may have in cases of acquaintance rape.

This special issue also describes the advent of the sexual assault kit in detail and its strong correlation to sexual assault case clearances. Sexual assault forensic evidence collection also instigated the development of Sexual Assault Nurse Examiner (SANE) programs and Sexual Assault Response Teams (SART), which are regarded by experts as the two most promising practices in criminal justice response to this class of crime. Rebecca Campbell, Debra Patterson, and Deborah Bybee discuss the evolution of multidisciplinary responses, specifically the SANE program and its positive impact on victim reporting and case outcomes. The authors describe the importance of, at minimum, employing a quasi-experimental design when assessing the impact of SANE programs in communities. Furthermore, having the ability to connect results with legal outcomes necessitates a longitudinal and possibly retrospective approach, given the trajectory of cases through the criminal justice system. The authors also present results from an NIJ-funded study that examines the likelihood of investigation and prosecution of cases after a SANE program was implemented. Furthermore, the article stresses the importance of the continued study of SANE programs as there is little research on these programs even though there are hundreds in existence. Programs can vary greatly based on their integration within response teams, length of existence, infrastructure, and relationships with relevant systems and community-based organizations, all of which are important to examine further.

Conclusion

The authors of the articles in this issue are providing a road map forward to ensure that the current system can one day fulfill its promise to provide equal justice under the law to the victims of one of the most heinous crimes one person can perpetrate against another, and we hope that this special issue initiates a new dialogue on this issue. There is wide agreement that sexual violence is not uncommon and that its negative effects on victims and communities warrant strident response from policy, law enforcement, and advocacy communities. To move the criminal justice system forward in this regard, practitioners, policy makers, and researchers must collaborate and identify the information and elements that are currently missing from our extant approaches. In addition, we must recognize that this area of research is not simply an academic exercise, as sexual assault renders great harm to individuals, families, and communities. Any failures in knowledge or action on the part of the criminal justice system to adequately respond to these offenses compounds the suffering of victims and increases the ultimate harm born by society for these violations of person and law. This special issue of Violence Against Women is dedicated to all sexual assault victims, whether they have sought resolution from our imperfect criminal justice system; from friends, family, faith communities; or from other informal sources of help, or have found healing from within themselves.

Catherine McNamee Bethany L. Backes National Institute of Justice, Washington, DC, USA

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