Prosecuting rape

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).


  1. Very good post, thank you!

    I have thought about all of this for a while. I’m curious though: what made you think about it?

    A few thoughts this stirred in me: First, I know that it’s mostly women that get raped, but it’s not always the case, you particularly should know. But I’m fine with the use of she/her here, because it makes for a much more pleasant read, and represents the vast majority of cases.

    I’m not sure you realise that you used the word ‘survivor’ to talk about a rape victim. It is a strong word, but for some, most victims, I think it is pretty close to the truth, as a rape can feel like your dying inside.

    You’re very right when you say that in some countries there is no shield law. Indeed, in some countries, the woman who got raped is forced to marry her attacker to conform to ‘good society’s guidelines’. Or is the one considered worthy of punishment, because, obviously, she was asking for it!

    I totally agree with your view on having to be cross examined, in front of your attacker, seeing the grin on his face as you are forced to recount the details of the rape, as he sees, feels the power his actions had on you. I am wondering if it wouldn’t be possible to do these sorts of interrogations like they are done for minors sometimes, on tape, away from the alleged attacker. And then play the tape as evidence in court, for the jury to hear.
    I agree that the accused has a right to confront his accuser, but sometimes, it’s not adequate for the victims, and ends up with them refusing to bear witness, or report the crime. We need to make the law so that all victims feel safe enough to report the crime, so that they can then try to move on with their lives.
    Maybe there could be a time when the accused and his accuser are face to face, but I’m not sure it needs to be the whole time. Videos are pretty safe nowadays, and could probably be used so that victim and accused are not in the same room… that might help some victims feel safer…

    As for the fact that medical staff should be allowed to bear witness to the fact that they found such person in such state and found out this and that (skin under fingernails, bruises, and so on)… I think they already are allowed to do it, because it’s things that they witnessed themselves. They might not be allowed to talk about what the victim told them, but they are allowed to present medical evidence, I think.
    I agree that it might be good for a jury to be allowed to hear confidants. They can probably make out if a person is lying… I don’t know, there is cons as well… imagine someone is lying about being raped and calls three friends saying she was, how, and all the details. And let’s imagine she’s a good actress. The recount of the hearsay would give 3 or 4 people testifying that she was raped, all believing she was. And the jury would hear it 3 or 4 times instead of just one. Maybe that’s why this law exists… I’m not sure.

    I mean, this isn’t my area of expertise at all either, those are just my thoughts on the subject too, stirred by your post. But I like to think about those things. Makes me realise how lucky I am that I never was confronted with something like this in person.

  2. Police, medical personnel should be trained to handle rape victims, maybe there should be more awareness about how women should protect themselves, how to handle if they are unfortunately been raped, certain statement such as the way the victim dressed when she was raped shouldn’t be admissible in court!

  3. But what about the women who claim rape, but actually weren’t? What about the men who are falsely accused? Where is their shield? I’ll tell you. There isn’t one. And if they don’t have the funds for a good defense lawyer, they go to jail for something they didn’t do. And THAT is rape of the worst kind.

    1. Respectfully, no it’s not. That’s not rape. That’s false conviction. A tragedy, to be sure, but not rape, and certainly not “rape of the worst kind.”

      Our legal system needs to protect against false convictions, and it needs to do so better than it has done historically. But rape is when one person forcibly has non-consensual sex with another. Nothing else.

  4. Hmmm. Rape. Touchy subject. I don’t know the ins and outs of rape law. But I do know what it’s like to be raped. It’s weird typing that. I never have before. My case never made it to a courtroom. The reason why it never made it to a courtroom is because both of the men who raped me claimed the sex was consensual. Is that the right word? I never, not once, gave consent. Detectives looked into the case, and because I waited two days to report it, evidence was lost, and also the only witness that existed was too intoxicated to remember what she walked in on. There was also an issue with my under age drinking. It was a mess. The odds were stacked against me. But what I don’t understand is how I was not able to press charges. All because of a disagreement on consent and evidence. The detective I was working with said “it’s their word against yours and that’s all we have.”. He then told me how one of the guys family owns a country club and golf course and is an attorney here. I took it as “you don’t have a prayer if you try to fight this”. Which may be true but I would have tried anyway.
    Rape law. I don’t know. You have to get past the politics, and money first. That was my hurdle. But it would have been nice to see the inside of a court room and let my friends and family testify or vouch for my character, anything. Everyone, including the detectives and anyone involved with the case knew I wasn’t lying. Nomatter how bad the odds were, i should have been allowed to confront them. Something.
    Sorry for dumping this on your page. I’m still not sure if it’s a good idea to post this but I’m going to anyway.

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