Copyright © K. E. Renner 2002. Presented at a symposium entitled "Redefining the Legal Issues of Sexual Assault and Abuse" sponsored by the Society for the Psychological Study of Social Issues (SPSSI), 2002 SPSSI Convention, Toronto, ON, CANADA, June 28-30, 2002. This paper may be freely reproduced and reprinted with full acknowledgment of the source. For more information see www.napasa.org.
Legal Disparities and Adult Sexual Assault
K. Edward Renner (1)
The empirical results, on which the presentations by Laura Park and myself are based, have been published in peer-review professional journals. The list of the publications and the text of the major papers are currently available on a web site provided through a SAGE Grant from SPSSI (www.napasa.org).
The research series is based on the analysis of the records of 1,050 court cases, 104 transcripts of sexual assault trials, and 2,500 cases handled by a sexual assault service. Briefly, our findings are that the criminal justice process officially "discounts" the severity of sexual assault and abuse cases, resulting in the unequal protection of the law for women and children. This violates the principles of fundamental justice. In short, the criminal justice process contributes to the very problem for which it is the sole legal recourse. This failure can, and should be, challenged through the appeal process, forcing the legal issues we are raising to the Supreme Courts of Canada and the US if necessary.
I will not review in detail here the empirical results which support our conclusions, as these are available from the web sites, and in published format, for detailed critical examination. Rather, I will describe the conclusions of this research and outline the legal issues of sexual assault and child sexual abuse which need to be re-defined. The remaining participants on this symposium will describe the legal basis and the social action strategies for doing so.
A Failure of Social Justice
The central legal issue is the fact that the courts confound the criterion for leniency with the defining social circumstances under which the sexual assault and sexual abuse of women and children occurs. As a result, the effects ripple through the entire criminal justice process resulting in failures to report, failures to arrest, failures to charge, failures to prosecute, failures to convict, and failures to sentence (Renner, Alksnis & Park, 1997). Specifically:
Over all types of cases, the courts are most lenient when three conditions are satisfied:
However, these are also the three social conditions which define the circumstances of the majority of adult sexual assault and child sexual abuse cases. In most instances: (1) The victim is know to the offender in a social or family context. (2) The victim chooses not to be physically harmed as well as sexually assaulted. (3) The accused is most often self-sufficient and does not look like the typical offender who commits economic crimes. As a result, only physically harmful assaults by strangers who are socially problematic are fully held to be legally blameworthy.
If two concepts have essentially the same definition, they are either hopeless confounded or the same thing - as are the criterion for leniency and circumstances of sexual assault. As a result, most cases of sexual assault and sexual abuse are treated leniently by definition. This is why we wrote in our research papers that the courts "discount" the severity of sexual assault and child sexual abuse. When "discounting" sets the legal standard, the police and prosecution follow suite because the typical case is not going to be seen as credible by the courts. Women and children respond by not reporting sexual offenses, and they are, in return, blamed by the entire criminal justice system for failure to make use of the system provided for their protection. Thus, blame for a fundamental failure of the legal process is shifted to the victim through a self-fulfilling prophecy initiated by the courts themselves. The ultimate protector is, in fact, an accomplice, and thus a co-perpetrator of sexual violence against women and children.
Technically, the "discounting" manifests itself as selectivity and disparity. Women and children are first selectively removed from the full protection of the law when their cases are not reported, founded or charged. Finally, for those cases charged, there is disparity in the degree to which there are convictions and severe sentences (Renner, Alksnis & Park, 1997).
These outcomes are a violation of the principles of fundamental justice. Thus, our first redefinition: The constitutional legal issue is NOT the possible encroachment on the civil liberties of the accused, but rather a correction of systemic bias in the criminal justice process which contradicts the fundamental requirement of equal protection of the law. (See also Alksnis. 2001; L'Heureux-Dubé, 2001).
A Failure of Procedural Justice
Once the constitutional issue has been redefined, from "rights of the accused" to one of "equity" in Canada and "equality before the law" in the US, it is possible to understand why the issue of sexual assault and abuse has persisted for so long despite many attempts at law reform in both countries. In part, the answer is that we have not examined the courtroom dynamics responsible for the selectivity and disparity which results from confounding the definition of sexual assault and abuse with the criterion for leniency. Thus the next research task was to clearly identify the evidentiary and procedural mechanisms responsible for these specific issues. Isolating the specific elements requiring law reform was the purpose of our detailed examination of court room transcripts.
As we have already heard from Laura Park, for children, this involves two elements: (1) children are falsely held responsible for their sexuality, but not as able to give responsible testimony, when in fact the exact opposite is true. And (2) children are asked questions which are beyond their developmental capacity, and their inability to answer questions they can not understand is use as evidence of their lack of credibility, when instead the threshold for credibility should be on the question, not the child (Park & Renner, 1998).
For cases of adult sexual assault there is a similar process. Sixteen categories of content (see overhead) forms the substance of all trials (Parriag & Renner, 1998). The same 16 categories are used by BOTH the prosecution and the defense in a complementary fashion. For example, if the clothing was torn, if the complaint was recent, or if there was physical harm, these "facts" will always be presented by the prosecution. However, if the opposite was the case - a lack of torn clothing, no recent complaint or no visible physical harm - these issues are always the core of the presentation by the defense. The 16 categories reflect just how pervasive are the concepts of relationship, harm and danger. Unique cases lose their distinctiveness in the courtroom; each is simply a predetermined script waiting to be played out.
In this manner, the legal process becomes the primary author of what constitutes a legitimate sexual assault, since, by definition, without a conviction there is no offender and no sexual assault. Through selectivity and disparity the courts actively deny the actual reality of women's experiences. What emerges through convictions as legitimate sexual assaults are misleading and mis-representations of reality.
The content of the trials is delivered through eight tactics (see overhead) which are themselves distortions of communication through illogical arguments (Parriag & Renner, 1998). Just as the developmental level of the child provides an absolute standard against which to judge the appropriateness of questions asked of children, the criterion of "reason" - for the process to be rational not irrational - provides a similar absolute standard against which to judge the appropriateness of questions asked of adults.
Perhaps the most insidious of these techniques is what we have called the use of "word pictures" and what Bavelas and Coats (2001) in Canada and Matoesian (1993) in the US has identified and described through discourse analysis. In cases of sexual assault, both the prosecution and defense use the language of consensual sex to "sanitize" language in the courtroom so that it bears little resemblance to the fact that the woman's testimony and experience are about an assault. For example, the defense will string together a chronology of events, ending with "...and that is when you performed oral sex! Correct?" The emphasis on the word "that" refers to the chronology, but the victim's simple answer of "yes" implies a consensual sexual activity of performing oral sex. Lost in the "sanitized" account for public consumption in the courtroom is her actual experience of "...that is when he lifted my head up by my hair and forced his penis into my mouth. He said suck my cock or I will scar your face." Unfortunately, the prosecution seldom creates a situation where the victim's account, as she experienced it, gets communicated in clear and unequivocal language.
This is a known distortion of communication. It is a standard method of propaganda, and an example of an informal logical fallacy. Yet, this form of argument is accepted by the courts as if it were reasonable, due to the pervasiveness of the concepts of relationship, harm and danger, when it is known by the standards for rational thinking to be irrational (Alksnis, 2001; Renner, 2002).
This is unfair, and it is also a violation of the principles of fundamental justice. Thus, our second re-definition: The procedural legal issue is NOT the right to a full defense by the accused, but rather a correction of systemic bias in the criminal justice process which contradicts the fundamental requirement of procedural fairness.
A Failure of Administrative Justice
Although the focus of this symposium is on the legal system, it is important to keep in mind that male sexual violence is primarily a "social problem" with legal aspects. As a result, any comprehensive approach to resolving the issue of male sexual violence must address psychological, social and political ramifications, and no simple "solution" is possible. Many simultaneous changes must occur across the entire spectrum of our daily lives.
Clearly, we can not expect law reform to end the social and psychological roots of male sexual violence. But, neither can we afford to wait for the social context to first change before addressing the legal issues which are compounding the problem. What we know to be true is that social justice is the core of our democracy and it is essential to the quality of our civic life (Renner 2001). "Discounting" by the courts, at the highest level of justice, helps to sustain the myths of relationship, harm and danger through disparity in verdicts and sentences, which, in turn, results in selectivity through under charging by the prosecution, under founding by the police, and under reporting by victims.
The combined effects of the unequal protection of the law and procedural unfairness, discriminates against women and children, and is an erosion of social justice administered by the ultimate agent of justice - the courts themselves. Thus our third redefinition: The administrative legal issue is NOT the requirement of the courts to uncritically follow common law and past legal precedent, but rather the necessity for the criminal justice process to be administered according to the highest standard of equity and fairness (L'Heureux-Dubé, 2001). The civic price is too high to settle for anything less.
Time for Reform
It is time for real legal reform. Reform does not need to wait on new legislation, since the problems are inherent in the criminal justice system itself and may be addressed directly by the system.
(1) The legal failure starts with confounding the criterion for leniency with the defining circumstances for child sexual abuse and sexual assault of adults. This discounting of the severity of sexual assault and abuse results in selectivity and disparity, and thus the unequal protection of the law for women and children. This is a redefinition of the central legal constitutional concept.
(2) The problem is perpetuated through evidentiary and procedural issues that violate fundamental standards for fairness and rationality. This is a redefinition of what are acceptable legal practices.
(3) The Criminal Justice System, with the central role played by the courts, is an instrument for the perpetration of male sexual violence. As an accomplice, the courts are open to legal appeal and/or civil suits. This is a redefinition of the administration of justice.
These three elements are open to direct legal challenge. They can, and should, be corrected through the appeal process, including to the Supreme Courts of Canada and the US if necessary. This is the primary mechanism for social change. It can be initiated by local community groups as we will hear from the other participants in this session.
References
Alksnis, C. 2001. Fundamental justice is the issue: Extending full equality of the law to women and children. Journal of Social Distress and the Homeless: 10, 69-86.
Bavelas, J., and Coates, L. 2001. Is it sex or assault? Erotic vs. violent language in sexual assault trial judgements. Journal of Social Distress and the Homeless: 10, 29-40.
L'Heureux-Dubé, C. 2001. Beyond the Myths: Equality, Impartiality and Justice. Journal of Social Distress and the Homeless: 10, 87-104.
Matoesian, G. 1993. Reproducing Rape: Domination through Talk in the Courtroom. Chicago: University of Chicago Press.
Park, L., and Renner, K. E. 1998. The failure to acknowledge differences in developmental capabilities leads to unjust outcomes for child witnesses in sexual abuse cases. Canadian Journal of Community Mental Health: 17, 5-19.
Parriag, A., and Renner, K. E. 1998. Do current criminal justice practices lead to unjust outcomes for adult victims of sexual assault? (References www.napasa.org).
Renner, K. E., Alksnis, C., and Park, L.1997. The standard of social justice as a research process. Canadian Psychology: 38, 91-102.
Renner, K. E. 2001. The civic price of sexual assault and sexual abuse. Journal of Social Distress and the Homeless: 10, 1-4.
Renner, K. E. Re-conceptualizing sexual assault: From an intractable social problem to a manageable
process of social change. In James Hodgson & Debra Kelley eds.,Sexual Violence: Policies, Practices,
and Challenges in the United States and Canada. Praeger: 2002, Pp 135-153.
Table 1: Web-Sites
The French Languages in Canada through:
www.carleton.ca/~erenner/nsap.html
(National Social Action Program)
A full Canadian and US version is available through a grant provided by SPSSI at:
www.napasa.org
(National Action Program Against Sexual Assault)
Table 2: Content Categorization Scheme
History
1. Previous Sexual History
2. Previous Non-Sexual History
3. Previous Relationship with the Accused
Psychological
4. Adjustment Before
5. Adjustment After
6. Feeling at the Time
Themes
7. Injury
8. Resistance
9. Removed or Torn Clothing
10. Violence/Intimidation
11. Place/Situation
12. Culpability/Character
13. Recency of Complaint
14. Initiation
15. Honest Misunderstanding
16. Communication of Consent
Table 3: Tactics of Social Influence
1. Word Pictures
2. Impeachment
3. Over-Generalization
4. Implied Fabrication
5. Tactics/Style
6. Credibility of Witness (Victim)
7. Credibility of Accused
8. Objections
1. K. Edward Renner, Evaluation Research, 14241 110th Terrace North, Largo, FL 33774, (727) 595-3857, erenner@kerenner.com or www.kerenner.com.