Note: For a concise summary of the legal issues in adult sexual assault see
the SPSSI 2002 Symposium also on this web site.
In a just society, all people must have equal access to a fair and impartial legal system. Due to the way that sexual assault of women and children is treated by the legal system, this fundamental right of access to justice is denied to sexually assaulted women and children by the very legal doctrine intended to protect them.
This paper is directed to Prosecuting Attorneys and their colleagues. It is part of a larger series of papers aimed at challenging and correcting injustices in the legal system. Specifically, this paper is about challenging the legal doctrine and the courtroom procedures which abridges the rights of adult victims of sexual violence.
Unlike child witnesses, adult witnesses in sexual assault trials are not entitled to special legal protection. Although adults are not afforded special legal status, they, too, under the requirement of fundamental justice and equal protection provisions of the Constitution, are entitled to be protected from exploitation by the justice process.
Despite these equality provisions,
the legal doctrine violates the rights of sexually assaulted women in two
ways. First, it distorts the content of the trial so that it does not
reflect the reality of women's experiences with sexual aggression. A
set of "unreal" conditions are created under which sexual assault cases
are brought to trial, and through which the seriousness of male sexual
violence is "discounted." Second, the legal process allows acceptance
of unreasonable arguments as if they were reasonable. During the trial
process, the unreasonable is accepted as "reasonable" because of these
altered (i.e., "unreal") conditions. Thus, the legal doctrine is responsible
for the re-victimization of adult victims of sexual assault by creating
a set of legal conditions in which access to justice is abridged. The net
effect is a breach of fundamental justice. The legal issue is NOT that
the victim has rights relative to those of the accused. The legal issue
is that the court itself is the agent of harm to women victims of male
sexual violence; the legal issue IS one of fundamental justice, which
cannot be waived or abridged.
There are two parts to the denial of reality of women's actual experiences with sexual assault. The first is the discounting the seriousness of the assault, and the second is by "sanitizing" the nature of the assault. Both are based on the same social and psychological factors which distorts the selection process whereby only specific cases come to trial and the courtroom process for those which are selected to come to trial.
The legal issue begins with the fundamental problem of the legal doctrine confounding the excusing conditions with the defining conditions for male sexual violence. That is, the very characteristics of male sexual violence against women are used to argue that a particular assault was not severe. Specifically, the court is most lenient when there is a relationship between the accused and the victim, when there is a lack of visible physical harm, and when the accused is not considered dangerous because he does not have a criminal background. However, these three factors are also the defining characteristics of women's everyday relationships with the men who sexually assault them: There is almost always a previous relationship between the victim and the perpetrator, there is seldom visible physical harm, and the perpetrator is often part of the victims family and social network.
The net effect of confounding these two separate concepts, so that women's normative social relationship with men is the basis for excusing male sexual violence, is to compromise the rights of women by "discounting" the seriousness of sexual aggression against women. If only atypical cases are seen as serious, by definition all typical cases (i.e., the majority) are seen as not serious. This discounting takes place through the processes of selectivity and disparity.
The effects of selectivity are seen at two stages of the legal proceedings. At the stage of a woman reporting the assault to the police, selectivity operates in the polices decision of whether or not to file a charge. At the level of the Prosecutor, selectivity operates in that the Prosecutor decides whether or not to proceed to trial. When the existence of a relationship, lack of physical harm, and the fact that the accused is not seen as "criminally" dangerous, are used as the basis for selectivity to access to justice, fundamental rights are being denied. Because of the confounding of these two concepts by the legal process, typical victims of sexual assault are selected out of the legal process. For a typical case, it is unlikely that charges will be laid or that the Prosecutor will take the case to trial.
The recent Jane Doe case in Toronto is relevant here. In this case, a rape victim proved that, due to their acceptance of rape myths, the police failed to protect her from a serial rapist. As long as the police and the Prosecutors fail to recognize the ways that relationship, harm, and danger are used to unfairly select sexual assault cases, the police and the Prosecutors are exposing themselves to potential civil actions for failure to provide due and full protection of the law to women.
The second way that male sexual violence is discounted occurs through the process of disparity. When the already highly selected cases come to trial, the three factors of relationship, lack of harm, and lack of danger again manifest themselves. Our research has shown that these three factors result in lighter sentences. It is also very likely that they result in higher acquittal rates. This repetition of the confounding of the nature of women's typical situations with viewing the case as "non-serious" simply add to the disconnection between the nature of the legal recourse provided by the legal doctrine, and the reality of women's experiences with sexual assault.
The police and the Prosecutor have a legal obligation to protect women through the court process. The excuse that "it is hard to get a conviction in these cases" is no excuse, but rather a self-fulfilling prophecy that ensures the perpetuation of the problem. So prevalent is this discounting process that many women self-select out of the system by choosing not to report the offense. The responsibility for failure rests squarely on the shoulders of the courts and the existing legal doctrine which has given discounting official status by confounding the definition of not serious with the defining conditions for male sexual violence. In a just society, the legal process, and the courts in particular, cannot be an active agent for the abridgment of justice. The Prosecutor has a legal, social and civic obligation to ensure that the uniform application of justice is a reality, by presenting evidence and arguing cases in ways which will expose the confounding of these two separate concepts. Only when normal heterosexual situations are no longer seen as the excusing conditions for male sexual violence will the "unreality" of women's experience with the law start to be resolved.
The mechanisms that are responsible for discounting the seriousness of sexual assault are neither complicated nor difficult to correct. Once a trial starts, these three factors again make their presence felt by dictating the content of the trail itself, thus adding a further element to the unreality of the situation. The content of the trial quite frequently takes on a shape and form that does not reflect the woman's actual experiences. The Prosecutor plays a key role in this process by remaining far too passive, failing to challenge and correct the intrusions of the confounding effects of relationship, lack of physical harm, and lack of a criminal background into the judgment process.
As a simple example, a victim may testify that the accused put his penis in her mouth. On cross-examination, the Defense will ask the witness questions about when she "had oral sex with the accused." This will usually be in the form of an embedded factual question that has a "yes" or "no" answer, such as: "That would have been at approximately 10:00 o'clock that you had oral sex with the accused? Isn't that correct?" But the witness never testified that she had "oral sex," which is a consensual act implying a mutual relationship. She only testified that the accused put his penis in her mouth, which was most likely an understatement because the victim does not want to use embarrass herself by using "dirty" words in court which would more accurately convey her experience.
As an illustration, imagine the analogous situation in a robbery trial. "So it was about 10:00 when you gave your money to the accused? Isn't that correct?" It is clear in the case of this hypothetical robbery trial that the Defenses use of language obscures the victims actual experience of being robbed.
The Prosecutor must help the victim tell her story as she experienced it in order to ensure that sexual assault trials are actually about typical sexual assaults, (i.e., to ensure that typically women who are sexually assaulted have access to justice), This has at least three components:
The trial must be about what the woman
actually experienced. It cannot be about some "sanitized" version that
distorts the account in a way the woman herself would no longer recognizes
as her experience. This is an active role for the Prosecutor. It is one in which
the victim fully describes the details her assault in an appropriate language.
If the Defense objects and forces the Judge to deal with the confounding
identified in our research, this will give you a chance to make your point.
Request to argue the point in front of the bench or in the Judges chambers,
and be prepared to appeal if over-ruled. The evidence on which our analysis
is based is so strong that the Prosecutor need not be sensitive about offending
the Judge. The Judge is the one who needs to be careful so that you do
not appeal what will come to be seen as a mistaken. The power is on this
issue is on the side of the Prosecutor. Next, it includes frequent objections
to typical defense tactics that distort the victims story, and finally,
extensive re-direct examination on each and every distortion.
The myths and stereotypes about adult sexual assault which result in the failure of the courts and the legal doctrine to recognize women's actual experiences, also supports an even more subtle and insidious process. The belief that a "real" sexual assault involves a stranger who causes visible physical harm to his victim and who is obviously a dangerous man, ultimately results in the acceptance of illogical arguments as if they were in fact reasonable. The acceptance of these errors of logic and errors in reasoning result in a further procedural miscarriage of justice.
Errors of Logic
There are three types of errors of logic
that are found repeatedly in the cross examination of victims in sexual
assault cases. These errors are arguments based on false premises, formal
errors of deduction, and the use of informal logical fallacies. These errors
are largely unique to sexual assault. For example, the common, but false,
acceptance of the belief that there must be visible physical harm if a
sexual assault actually took place enables the Defense to make an illogical
argument, based on a false premise, which appears to be reasonable. For
example, the conclusion to the argument:
is false because the premise asserting that camels can fly is false. No one is mislead by this silly argument even though the argument is formally sound: That is, A is a B, All Bs are Cs, A is a C is a valid argument. Similarly, no one assumes that a person must be physically harmed in order to believe that a robbery took place. Yet the argument that the lack of physical harm is evidence that the sex was consensual is accepted, even though the premise is false. In fact, most women, like most robbery victims, choose not to be harmed and sexually assaulted or robbed.
The second common error of logic is related
to the structure of an argument rather than its content. Formal logical
arguments can be represented as propositions about how all, some, or none
of the elements belong or do not belong to a particular category. According
to the rules of logic, whenever the two premises each contain a negative,
the conclusion must necessarily be false, as is evident in the following
However, it is possible to present the
elements such an invalid argument in words that appears logically correct.
In sexual assault cases, this invalid argument might be expressed in the
The third error is the routine use of informal logical fallacies. One common example is an argument that attacks the character of the person, but does not address the merits of the case (formally known as argument ad hominem). In sexual assault cases, attacks are made of the character of the victim that do not address the merits of the case, but draw attention to other factors that may cause some observers to evaluate the woman negatively. In categorizing the content of sexual assault trials, we found many examples of attacks on the victim's character. Consider this example taken from a case involving an 18 year old woman:
Defense: On this particular night you were drinking at St. Mary's when you arrived. That was orange juice and ...?
Victim: Peach Schnapps.
Defense: And later on you were drinking Tia Maria and milk?
Defense: You were of course eighteen and you knew the drinking age in Nova Scotia was 19?
Victim: Yes I did.
Defense: And then you went out and you went dancing? And you said that your usual practice is to go up to people, go up to men, and ask them to dance?
It appears that the Defense is presenting
two fallacious arguments simultaneously. The first argument points to the
fact that this woman was actually too young to be in the bar legitimately:
These three types of logical errors need to be challenged. They only appear reasonable due to the popular acceptance of rape myths such as the myths about relationship, lack of harm and lack of dangerousness of the offender. If the misconceptions about rape are to be successfully challenged, then the false arguments which use them must be challenged. Formally objecting to the wide spread use of logical fallacies is one way the misconceptions on which they are based can be confronted. This is because these misconceptions are rarely stated explicitly. That is, the Defense wont come out and say to a victim-witness: "your clothes are not torn, therefore you weren't really assaulted." Instead, these misconceptions or "rape myths" are introduced by the Defense in the context of illogical arguments. The legal process, designed to discover the truth, should not accept anything less than the application of rules of reason. Failure to do so is a corruption of the legal process and a degradation of the integrity of the court, which the Judge and Prosecutor are responsible for upholding.
Errors of Reasoning
In the final analysis, either a judge or jury must evaluate the answers given by the witnesses in response to the questions asked by the Prosecutor and the Defense. These questions, as our previous research has shown, can be grouped together in the form of clusters of arguments about specific issues. The sequence of these individual scenarios are usually arranged to lead toward a conclusion of guilty or not guilty. Seldom, if ever, do they fit the format of formal deductive reasoning. Rather, they are woven together by the Prosecutor and the Defense in their closing statements into a statement about what is the logical conclusion to be reached. This is an inductive reasoning process in which the elements are the snippets of testimony made up of many specific, and often fallacious, arguments.
As an example of inductive reasoning, consider the rape myth surrounding torn and un-torn clothing. This distinction is based entirely on the myth that a sexually assaulted woman will actively resist having her clothing removed, to the point that the clothing is torn. Research has shown, however, that a sexual assault victim will usually submit to the assault rather than risk any further injury, often removing her own clothing on demand. Given this fact, it is actually more probable that a sexual assault victim will not have her clothing torn, than that she will have torn clothing.
As a further illustration of improper inductive reasoning in sexual assault cases, the argument is often made that if a woman spends time in a bar, and has social contact with a male that any ensuing sex must have been consensual. The defense lawyer asks questions about the chain of events leading up to the assault as though they were part of the victims master plan for consensual sex. Yet, at any night spot most men go there to meet women, just as women go there to meet men. Most women have something to drink, as do the men. Most men and women do not assume access to sex because of dancing and drinking. This inference treats an improbable event as if it were probable when the case reaches the courtroom.
Drinking and dancing are socially normative responses dictated by accepted social standards. They are the most probable outcomes of attendance at a night spot, and they are irrelevant to a conclusion regarding consensual sex. The practice of treating the improbable event of consensual sex as though it was the probable outcome of normative social behavior continues to build and enhance the existing rape mythology.
A Prosecutor could use his or her closing statement as an opportunity to explain how the common defense arguments are based on logical fallacies and false inductive reasoning. What is expected of women as normal social behavior (i.e., drinking, dancing, talking to men) cannot be used to infer consent to sex. This is illogical and unjust. While it may seem awkward at first to given such a lecture on proper inductive reasoning as part of the closing statement, it will call attention to the reasoning process, and it will make the Defense and the judge and jury self-conscious about these issues. Because rape myths get into the courtroom through (often unconscious) illogical arguments of the Defense, it is very important to call attention to the reasoning process. If this process of pointing out illogical arguments is repeated often enough, critical thinking about faulty reasoning will become part of a larger legal consciousness, and will help in the long run if not in the initial cases. Sooner or later, Judges will start to pick up the language in their instructions to juries or in their own statements and the necessary case law will start to accumulate. Most cases need a pre-emptive strike describing why some arguments are fallacious and how they may become part of an improper inductive reasoning.
The mechanisms by which the court and the
court process fails to fulfill the requirement of providing fundamental
procedural justice is the special responsibility of the Prosecutor and the Judge.
The Prosecutor is the accountable professional for aggressively insuring that
the court itself is not an agent of harm, and the Judge has the responsibility
to enforce these actions, or face the certainty of appeal. The duty to
protect the integrity of the justice process can not be stronger or clearer
than to ensure that decisions are based on reason and that reaching for
the ideal of justice is the outcome
In a large measure the position we are
suggesting will start to form a new category of case law. A definitive
line between what should be judged to be reasonable or unreasonable has
yet to be drawn. As a result, a considerable degree of legal debate will
be necessary to clarify what is required to protect women based on the
principles of fundamental justice to preserve and protect the integrity
of the justice process which must be based on the application of objective
reason to the highest standard. What is categorically true, however, is
that the Judge has considerable authority over the proceedings within a
trial, and that logic cannot be optional. The difficulty of the task is
no excuse for avoiding the iterative process necessary to define the guidelines
to uphold the fundamental principle that reason must prevail if justice
is to be served. This process must start with the Prosecutor who will
raise the issues and with Judges who will not permit the deliberations
in their courtrooms to be a verbal recapitulation of the sexual assault
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