This publication describes the mechanisms through which the "discounting" takes place in adult sexual assault cases.© Copyright 1998 Parriag & Renner. This is a pre-publication copy of paper intended for comments and feedback. For more information about this research series go to: http://www.napasa.org
This paper quantifies and catalogues the nature of the judicial process for sexual assault victims through an analysis of court records and the court transcripts of fifty-eight sexual assault cases. Both the content (i.e., the substance of the trial) and the legal processes through which this substance is introduced into sexual assault trials are analysed. Results show the extensive use of rape myths in the content of questions victims are asked in the courtroom, and in the use of tactics and strategies which are known means for distorting truth and inhibiting effective communication. The outcome of trials are affected by these tactics to the disadvantage of victims. Implications of the lack of social justice are discussed in terms of how sexual assault victims are re-victimized by the very process through which they must seek justice for the crime they have experienced.A victimization survey conducted by Statistics Canada (1993) found that approximately 94% of women who are sexually assaulted do not report the incident to the authorities. Of the 6% that are reported, only 40% result in charge being laid. Of those cases where charges are laid, two-thirds result in convictions, but only one-half of those who are convicted receive a jail term. The final 0.8% (.06 x .40 x .67 x .5 = .008) of assailants who receive a jail term represents an exceedingly small proportion of cases, given both the seriousness of the offense and the fact that in 85% of the cases the offender is known to the victim, and thus easily identifiable (Gregory & Lees, 1994; Yurchesyn, Keith, & Renner, 1992).
Few specifics are known about the 98% of cases which never come to trial.
What is known is based upon data from sexual assault services (Renner &
Wackett, 1987; Renner, Wackett, & Ganderton, 1988) and from victimization
surveys (DeKeseredy & Kelly, 1993; Solicitor General, 1983, 1984; Statistics
Canada, 1993). The large number of cases for which no legal recourse is
sought by the victim suggests a lack of confidence in the criminal justice
process (Kerstetter & Van-Winkle, 1990). The women who do not go to
court often do not do so because they expect to be further victimized by
the very process intended to protect them (Solicitor General, 1983, 1984;
Statistics Canada, 1993).
Evidence that the legal process revictimizes sexual assault victims
can be seen in the manner in which these women are depicted or "constructed"
through the trial process, in the "facts"considered pertinent to the case,
and in the manner in which this information is presented in the courtroom
(Lonsway & Fitzgerald, 1994). For example, the Crown directs victims
to portray themselves in the courtroom in a manner dictated by rape myths
about who is a credible victim (Konradi, 1997a, 1997b). As such, victims
are expected to cry on the stand, to appear traumatized rather than angry,
and to dress as though attending church (Konradi, 1997a). Portrayal compatible
with rape myths contributes to an invalidation of the actual experiences
of the victim, and in a loss of confidence and composure by the victim,
at a time when the victim would like to feel as self-possessed as possible
in order to testify properly (Konradi, 1997b).
Rape myths are not only utilized to influence victim demeanor, but are
further endorsed through the content of questions asked in the courtroom.
Courtroom questioning often focuses on the amount of alcohol consumed by
the victim before the assault, the absence of torn clothing, or the victim's
emotional state after an assault, rather than facts relevant to the sexual
assault (Gregory & Lees, 1994; Lonsway & Fitzgerald, 1994). This
peripheral information does nothing to indicate the occurrence of an assault
in reality, but serves to perpetuate rape myths and influence jurors as
to the verity of the victim's testimony and of the assault itself (Bell
& Loftus, 1989). Further, the focus on details found in rape mythology
tends to emphasize the "unreal" nature of the courtroom proceedings in
relation to the reality of sexual assault (Lonsway & Fitzgerald, 1994).
Revictimization is further seen in the presentation of the facts of the case. Rather than simply presenting the facts as they occurred, lawyers use strategies and tactics aimed at distorting the facts, intimidating the witness and swaying the jury (Gregory & Lees, 1996). Courtroom dynamics which focus on rape myths and which employ these legal tactics of distortion present a view of the assault that further harm victims, and serves as a deterrent for victims to use the judicial process in their search for justice (Matoesian, 1993; Renner, Alksnis & Park, 1997a).
This study focuses on the 2.4% of cases which appear before the court, the 1.6% who are found guilty, and the 0.8% who are sentenced to jail. This is a highly select group, and thus, not representative of all sexual assaults. Renner et al. (1997a) found three factors account for the failure to select cases into the system and for the relatively small numbers of offenders who are sent to jail: (1) the existence of a relationship between the victim and the accused, (2) the lack of visible physical harm to the victim, and (3) the perceived lack of dangerousness of the accused. It is ironic that these factors which are taken into account at the time of charging and sentencing are also the factors which are most likely to be present in the typical sexual assault. That is, almost all assailants have a relationship with their victim, attackers are seldom known as "violent offenders," and sexual assaults most often do not result in tangible evidence of physical violence. In practice, the very factors which characterize most sexual assaults also serve to discount how seriously they will be treated by the legal system (Renner et. al., 1997a, Renner & Park, 1997; Gregory & Lees, 1996).
Although atypical of sexual assaults in the general population, the cases in this sample are characteristic of those who go through the court process. These highly selective cases are important because the courts serve as the public display case for social justice. They provide the only official record, and as such are the referent point what is reported by the media. As such, they define the context from which future victims decide whether or not to report a sexual assault to the authorities and to enter the legal process. The purpose of this study is an analysis of the courtroom dynamics to catalogue the nature and the extent of social injustice in cases of sexual assault to better understand why so few cases enter the system, and the reforms that may be required.
As part of a larger research series, data from the court records was
collect for 1074 consecutive cases of sexual assault (n=354) and, for comparative
purposes, physical assaults (n= 513) and robberies (n=207). This information
has provided the basis for descriptive information about the nature of
sexual assault cases which reach the criminal justice system (Yurchesyn,
Keith & Renner, 1989; Renner et al., 1997a; Renner & Yurchesyn,
1994). From a random selection of the sexual assault cases, transcripts
were obtained for 116 witnesses, 58 each for child and adult victims. The
transcripts from the adult cases provided the material for the content
analysis of the courtroom dynamics presented in this paper.
This series of studies on the legal aspects of sexual assault cases
has resulted in the development and refinement of a manual for coding the
content and strategies that occur in sexual assault cases (Renner, Parriag
& Park, 1997b). The final version of this coding procedure was used
in the present study, which now contains 24 categories on which every transcript
was evaluated. These included 16 categories based on themes about sexual
assault and eight categories based on techniques or strategies used in
the courtroom. Each of these groupings are discussed below.
The 16 categories based on themes reflected societally accepted myths
and stereotypes about sexual assaults and were used by both the Crown and
the Defence (16 x 2 = 32 separate scores). These myths include: presence
of torn clothing, who removed the victim's clothing, physical signs of
injury, the victim's emotional state when reporting the assault, and whether
the victim experienced emotional problems following the assault. Additional
myths and social expectations which legitimize the status of victim include:
not initiating the encounter, no prior knowledge of the accused and resistance
to the sexual demands (see Table 1 for a complete list of the content items).
In any given case both the Crown and the Defence may use any or all of
the myths in a manner which is either advantageous or disadvantageous to
the victim, or the categories may be ignored. The content of the questions
were scored using a three-category nominal scale, e.g., in the category
of "torn clothing", 1=clothing was torn, 2=clothing was not torn, and 3=
no reference to torn clothing by the lawyer.
The eight categories based on techniques used in the courtroom are listed
in Table 2. These consist of 8 strategies that are engaged in by both the
Crown and the Defence to respectively strengthen and weaken the witness'
testimony (8 x 2 = 16 separate scores). For these categories, a simple
frequency count was made every time the strategy was used, indicating how
active each lawyer was, and the relative frequency with which witnesses
encountered each strategy.
The 24 categories were intended to be exhaustive but not mutually exclusive.
That is, all of the questions asked of the witness, and her responses,
can be placed into at least one category. However, there are instances
where the same string of questions and answers can be placed into more
than one category. This occurs because categories can focus on the content
of a question as well as on the techniques utilized to ask the question.
For example, a defense lawyer may elicit information falling into the "torn
clothing" category by using the strategy of a "negative tactic" such as
rapid-fire questions demanding an answer but without giving the witness
time to respond:
D: (rapidly) And then you took off your shirt,
D: (rapidly) And then you took off your bra, didn't you?.
D: (rapidly) And then you took off your panties, didn't you?
D: (raised voice) The answer is YES! Isn't it?
The classification system is used to identify these runs of questions,
or "scenarios" which fall into one or another of the 24 categories used
by both the Crown and Defense. Sometimes a scenario is as short as several
lines, while others may go on for several pages. Thus, the entire trial
can be separated into a series of mostly discreet, but sometimes over lapping
runs of questions.
The logical structure of the classification system was pilot tested
on 27 cases (Mallon & Renner, 1993). On the basis of this pilot test,
the written definitions for each of the categories were expanded and clarified.
The final version used in the present study consisted of a 27 page manual
of definitions with a 60 page Appendix of actual examples (Renner, et al.,
1997b). This manual was then used by new raters to re-score the original
27 cases and to score an additional 31 cases.
The material did not lend itself to usual evaluations of reliability.
Raters were asked to perform two concurrent tasks: first, to find and agree
on the existence of discrete scenarios from a continuous transcript filled
with potential scenarios, and second, to classify each scenario into one
of 24 categories. Rater could readily identify and agree on the category
for the scenarios which formed the core of the case. A series of rapid
fire questions was clearly a negative tactic. Similarly, a sequence that
ended with "Well did you lie then or are you living now?" was always classified
as impeachment, and "Did you scream?" was easily categorized as resistance.
However, problematic classification involved the filler questions which
served as transitions between scenarios, and misguided efforts that start
in one direction but went nowhere. Often, these were questions which seem
to buy time while the lawyer developed a strategy for the next important
series of questions. For example, a series of questions ending with "And,
about what time was that!" may have been an attempt at impeachment that
did not work, or a weak insinuation of lack of credibility. Thus, the most
difficult task for individual raters, from the standpoint of reliability,
was to establish a consistent and uniform threshold for including or excluding
these marginal examples. The items around which the Crown and the Defense
built the core of their case was generally striking and clear.
The reliability of the new raters using the revised manual was assessed
by having eight cases scored by two raters and by evaluating the degree
of convergence for both identifying scenarios and for categorizing them.
For these eight cases, each scored twice, there were 340 instances in which
both raters selected the same material. In 312 of those instances (92%)
the scenarios were assigned to the identical category. The difficulty of
establishing a consistent threshold for inclusion was evident by the identification
of 147 additional examples by one, but not both, of the raters. When these
unique examples were independently categorized by a third rater, there
was 96% agreement on the category designation. Thus, there is little difficulty
in naming a category, but some difficulty in bracketing material within
the free flow of testimony. It would appear that additional work remains
on setting clearer standards establishing for the threshold. We feel confident,
however, that the scoring accurately reflects the actual courtroom dynamics
in content, if not in an exact frequency count.
When accused individuals are charged, they must either plead guilty
or not guilty. If they plead not guilty, they have one of two defences:
either they did not do it (wrong person), or they had consent. Of the 58
cases examined, 26% were by a stranger who claimed they were not the offender.
This is over twice the rate of sexual assaults by strangers reported in
the victimization literature. Thus, when there is a previous relationship
between the accused and the victim, it is these cases that are "discounted"
by being selectively filtered out of the legal system (Gregory & Lees,
1994). This disproportional ratio in the transcripts is typical of the
larger statistical data base drawn from the court records (Renner et. al.,
Of initial interest was to provide a simple descriptive statistical
picture of the contents of these highly selected sexual assault cases;
while atypical of sexual assaults in the social world, they are representative
of what is presented to the courts. The second goal was to examine the
dynamics between the prosecution, defence and judge. The final goal was
to determine how these factors related to the outcome of the cases.
The Anatomy of a Sexual Assault Trial
The classification system created a set of 16 content categories which
both the Crown and the Defence make use of in each case. Breaking down
the questions into scenarios based on content allowed a description of
how frequently each category was used and to identify differences between
the Crown and the Defence. As is shown in Table 1, there are consistent
differences between what is brought out in the testimony depending on whether
it is the Crown or Defence who is asking the questions.
Some categories, such as "previous sexual history" seldom come up, because
this category was made explicitly irrelevant to sexual assault trials in
Canada in 1983. The category will, however, be used by the defence when
it can be worked into the testimony that the victim is "loose" with her
Some categories are used primarily, but not exclusively, by the Crown, such as "feelings at the time". The Crown will use evidence that the victim was emotionally upset at the time the offence was first reported as a way to show that she did not consent. The Defence, on the other hand, will use as evidence that the victim did not appear to be emotionally upset at the time to support the claim that there was consent. In a similar way for all the categories, the Crown emphasizes the material that supports the victim and the Defence the opposite. If the victim actively resisted her attacker the Crown brings this evidence forward; in contrast, if there is evidence that the victim did not resist, it is the Defence that brings out this evidence. In terms of the content of information that forms the substance of sexual assault trials, only a small number of features form the basis of any individual trial, with both the Crown and the Defence drawing from the same set of 16 features depending on whether they are advantageous or detrimental to the victim.
The content of the questions reflects only part of the dynamics in the
courtroom. In addition, there is the relationship between what the Crown
and the Defence do, with respect to the evidence brought forth by each
other. The large number of "no references" in Table 1 is not an accident,
nor is it random. Rather, the list of content categories form a pool of
material from which both lawyers actively draws or ignores. Seldom is there
actual conflict between the two lawyers. As an illustration, consider the
category of character.
Character. From the perspective of rape mythology, one of the most troublesome categories is character. Sex with a woman on her way to church is more likely to be seen as a sexual assault than sex with a woman who has been sexually active in the past, who frequents night spots, or who has been drinking. Although it is the forced sexual contact that is the crime, the relative virtue of the woman becomes a central issue. It is for this reason that we have used the term myths and stereotypes to describe the content categories. If the witness is of clearly good character the Crown will provide this evidence, but otherwise will ignore the issue. If the evidence of good character is clear, as is often the case, the Defence will most often ignore the issue (60% of the time in this data set). However, if there is evidence that the woman frequents late night spots, had more than several drinks, as is often the case (47%), the Defence will bring this up. The Crown, in turn, will most often ignore this issue (60%). This complementary pattern of interaction, as shown in Figure 1, means that the content of an actual trial is a foregone conclusion before it starts, much like a script waiting to be performed.
Other Content Categories. The same dynamics tended to apply to
all of the content categories. References to whether the victim's clothing
was damaged and who removed the article of clothing were made by both lawyers.
If the clothing was torn or removed by the accused, the Crown introduced
the testimony. If the clothing was not torn or removed by the victim, the
testimony was brought out by the Defence. The two lawyers tend to pick
and choose in a complementary fashion. Seldom is there conflict. Of the
potential 1,856 possible instances for courtroom confrontation shown in
Table 1, there was actual conflict only 8% of the time.
Contrary or Damaging Evidence. On one occasion the Crown introduced
potentially damaging testimony on "previous sexual history." Although this
may seem contradictory; in this instance the victim was a prostitute, and
the Crown attorney introduced this line of questioning during the victim's
initial testimony to inoculate against the Defence dropping a bomb shell
in the middle of cross examination, and to allow the victim to distinguish
between her personal and professional lives. In a similar manner, an examination
of Table 1 has instances where the Crown engages in a line of questioning
that is harmful to the victim, and the Defence helpful to the victim.
The Defence will often bring up what may be construed as damaging information
in an attempt to undermine or weaken the impact of a victim's claims of
injury, resistance, recency, or initiation. In doing so, the Defence's
strategy is often to show there was less injury or resistance, delayed
reporting, or some victim initiation of the contact. While these questions
may give the victim a second opportunity to re-state her story, they can
also damage her credibility. It must be remembered that because of the
highly selective nature of cases which reach the courtroom, the Crown only
chooses cases for which the most probable outcome is a guilty verdict.
Therefore, when an acquittal is unlikely, the Defence is also at work to
raise doubts as to the mitigating circumstances that can later be used
to argue for a light sentence. The Defence ignores this type of evidence
when the case is clear, such as medical testimony with clear photographs
of injury. In the absence of such evidence (i.e., the woman refused to
be photographed at the time of the assault), the Defence will often attempt
to minimize the degree of the evidence.
Table 2 summarizes the average number of times each of the tactics was
used by both the Crown and the Defence, and the percentage of cases in
which the tactic was present. The Crown and the Defence each concentrate
on the credibility of the victim. In most trials, the relative credibility
of the accused and the victim are important issues. The judge or jury will
need to decide whether to believe the accused or the victim. In the use
of tactics, the latitude given to the Crown is small in comparison to the
leeway given the Defense (Gregory & Lees, 1996). The Crown introduces
testimony first and is restricted to bringing forward the facts of the
case. The Defense then cross examines the witness, and may use a series
of aggressive strategies to challenge the testimony, often ones that defies
logic and common sense. In one case a woman testified she was forced to
the waterfront in the winter and was naked on her winter coat on the ground,
while the man who was fully clothed ordered her to perform oral sex. The
Defence gained an acquittal, in part by implying there was consent, with
the following line of questions:
D: Did you at that point say "I do not want to do this?".
W: I was too frightened, I...
D: Please answer the question! At that time, did you say "I do not want to do that."
Tactics used by the Defense. Lawyers often use "word pictures"
to convey an image that has surplus meaning that it is damaging to the
victim and favorable to the accused. When referring to the assault, the
Defense often uses phrases such as "made love" or "had sex with". These
words imply that a consensual act occurred, and the words are often unwittingly
adopted by the witness and the Crown, to subtly destroy the strength of
the victim's testimony. Seldom does a witness refer to her own sexual assault
as "rape" or "forced sex".
Lawyers are trained to use "impeachment" as a tool in their cross examination of a witness. Witnesses impeach themselves when they contradict their previous testimony. This is a primary strategy used by the Defense. A witness must tell her story at least three times for which there is an official record. First as a statement to the police, then at a preliminary hearing, and finally at the trial itself. The strategy of impeachment typically focuses on the ways a witness may contradict herself:
D: Are you sure that he moved his leg when you say he
took your panties off?
W: Well he would have to in order to get my panties off.
D: Do you remember giving testimony at the preliminary inquiry on December 12th, 1990?
D: Refers to pages 53-55 of transcript from preliminary inquiry. You were asked at thattime..."And he kept that, his leg over your leg in that forceful motion during the period of time that he took your panties off" and you answered, "Yes". Do you remember saying that?
W: Yes, well, that is true...
The lack of consistency is then used to imply that all of the victim's testimony is untrustworthy.
Defence lawyers also rely on "over generalizations" to destroy a victim's
testimony. Over generalizations are used in every day language, where words
like "always" and "never" are used instead of the more accurate "sometimes"
and "occasionally". However, when these words are used in the courtroom,
they are picked up by the Defence and used in the literal sense to cast
doubt on the accuracy of victims' testimony.
Another technique is "implied fabrication". The Defence will imply that
the victim had an ulterior motive in accusing someone of assaulting her,
such as providing an excuse to her parents for being out late or secretly
being attracted to the accused rather than to a boyfriend. In one instance
the Defense suggested that religion was the motivation for the fabrication
of rape; the Defense implied that because the victim was married and religious,
the only way to ease her conscience in the eyes of God was to claim that
the consensual sex act was actually a sexual assault. Again, this technique
is used to raise doubt about the validity of the testimony.
Finally, the Defence can use "negative tactics" such as screaming at
the witness, using a sarcastic tone of voice, or asking rapid questions
such that the witness does not have time to think. All of these techniques
serve the ultimate purpose of discrediting the witness, and making her
testimony appear weak and suspect in front of the judge or jury, rather
than simply eliciting testimony.
Tactics of the Crown. The Crown is limited to three roles, all of which it seems to have difficulty filling. First it must anticipate what the Defence will ask and to inoculate against these questions by asking them before the Defense has a chance to do so. While this might sound impossible, it should be remembered from Table 1 that most trials are highly predictable. There are a series of simple questions that can be asked, such as "Do you know for certain that 45 minutes had passed, or was this a rough estimate?" thus protecting the victim from being confronted with a contradiction later. Seldom, however, is there evidence of this kind of foresight. The second role is that of objections. The Crown is entitled to object to inappropriate lines of questions asked by the Defence. Again, this is seldom done despite aggressive practices by the Defense. As shown in Table 2, the Crown on average raised one objection per trial. Further, in half of the cases, the Crown never objected. Finally, in its third role, the Crown may choose to re-examine the witness when the Defence is finished and ask further questions on any issue brought up by the Defence. This is an opportunity to provide an antidote to damage that may have been done to the witness' testimony through the tactics used by the Defence, such as allowing the victim at the waterfront an opportunity to explain that she did objected to being forced to the waterfront and to undress in the winter, but at point of the request for oral sex she was negotiating her safety and lack of consent was no longer the issue. Again, this seldom happens; the Crown opted to redirect as an antidote less than 40% of the time.
The Role of the Judge
While technically in charge of the court process, of which both the
Crown and the Defence play a part, the judge seldom adopts an intrusive
role. In the 58 cases examined in the present study, the judge initiated
comments in 48 of the cases, often to ask the witness to speak louder or
to arrange a recess. In addition, the Judge was forced to make a judgement
about a procedural matter 54 time when the Crown raised an objection and
21 times for an objection raised by the Defence. This total of 75 objections
by both lawyer is an average of only 1.3 per case, with the a mode of zero
for both the Defense and Crown. In most cases there is very little actual
conflict between the two lawyers, and seldom any direct involvement by
the judge apart from procedural arrangement.
The Judge's role is most evident in the sentences given out and in the
reasons which are given for the verdicts and sentences. The statistical
data has shown that for the population from which these transcripts were
drawn that discount sentences are given on the basis of the existence of
a relationship, the lack of physical harm, and fact that the offender is
of a good reputation (Renner et al., 1997a). Most judges are circumspect
and brief; to the extent that reasons are given, they conform to the same
set of content categories which form the basis of the case.
In our study, 61% of those accused were found guilty, and 39% were found
not guilty. For those found guilty, 23% received a fine or suspended sentence,
23% one year or less, 25% one to two years, 25% two to five years in prison.
Only 2% received a sentence exceeding five years. (Sentencing data for
2% of the offenders were not available). One empirical objective was to
evaluate the effects of the themes and tactics used by the lawyers in these
cases on both the finding of guilt, and the severity of sentence of those
There was no evidence that the themes had any direct bearing on the
outcomes. Rather, the themes appear to be the script that lawyers use depending
on the circumstances of the particular case. In terms of outcomes, it is
the tactics used by the lawyers that have an impact. Of the eight tactics,
over generalization is seldom used and information about the credibility
of the accused is difficult to introduce when the victim is on the witness
stand, although this category is used when there is an opportunity. However,
because of restricted use and variance (most cases are zero), these two
variables are not typically a consideration in most cases and therefore,
did not show statistically significant effects, although they may come
into play in isolated cases.
When used by the Defence, the remaining six tactics are related to gaining a verdict of not guilty or a lighter sentence if the accused is found guilty. Thus, it is the aggressive use of tactics by the Defence, all of which are known means to distort communication, which has an impact on the outcome of the trial (see Table 3). In contrast, only the use of positive word pictures by the Crown, including such phrases as "assaulted by" (not "have sex with") and other clearly sympathetic and graphic terms of harm, danger, fear and injury with which to describe the victim's experience, affected outcome and sentencing. The occasional Crown will pick up on such phrases, repeating them, and asking the victim to amplify using non-directive interviewing techniques. Very often it is up to the victim to introduce these terms, by saying such things as "I was frightened for my life." This was the only effective technique used by the Crown to offset the strategies used by the Defence (see Table 3).
Of interest, use of the collective strategies by the Defence had a multiple
correlation of .64 (p=.002) with a verdict of not guilty and of
.54 (p=.071) with a light sentence. This may be contrasted with
the multiple correlation of charge level, degree of injury and violence
(often supported with medical testimony or records), active resistance,
and low culpability (e.g., the victim was not using alcohol or putting
herself in a dangerous place at unusual hours) of .39 (p=.24) for
an outcome of guilty and .53 (p=.055) for severity of sentence.
Thus, the defence tactics account for as much variance as the "facts" of
the case as reflected in the court records for the case.
Three theoretical issues are raised by the description of the content,
tactics and outcomes of sexual assault trials. Together they combine to
help explain why such a small proportion of women who are sexually assaulted
seek legal recourse.
Mythology and Reality
Perhaps most surprising is the extent to which the content of the trial
is dependent on rape mythology. The dialogue within the court is built
around a set of assumptions that bear little resemblance to the actual
nature of sexual assault. Instead, the circumstances of the case dictate
a script that will be played out. For instance, if torn, the panties will
be held up by the Crown: if not, by the Defence. For example:
D: Are these your panties?
D: Are they torn or damaged in any way?
D: Is this your bra?
D: Is it torn or damaged in any way?
Due to the myth that a real sexual assault includes injury, a victim
has little practical choice but to be injured, have torn clothing, physical
evidence of resistance, to go to the hospital to gain a medical record,
and to have pictures taken by the official police photographer in order
to win a sexual assault case. The reality of most sexual assaults is that
women often know the attacker, are not physically injured, and the perpetrator
is not considered a "dangerous" offender (Renner & Yurchesyn, 1994).
These three factors of "relationship," "harm," and "danger" are used to
systematically exclude cases from the criminal justice process and to excuse
those which do come to trial (Renner et al., 1997a). This is a fundamental
and systemic problem with the legal process itself which sustains the non-congruence
between the reality of women's experiences and the actual nature of the
Known Distortions of Communication
The second important issue is the non-congruence between the nature
of actual sexual assaults, and what takes place through the legal process;
it is a predictable sequence of events based on mechanisms known to be
effective as means for distorting communication. While the legal system
purports to find the "truth"of an event through the court process, the
themes and tactics identified in our research make clear that the actual
outcome is dictated by strategies which create an environment which is
harmful to women and which are not designed to accurately convey information,
but rather, are part of the "game"of a sexual assault trial. Further, these
courtroom strategies are not only not prohibited, but under current legal
doctrine are both legitimate and accepted as part of the judicial process
to ensure justice (Frank, 1950).
A Failure of Social Justice
The combined effect of sexual assault trials built around a set of themes
that bear little resemblance with the nature of women's actual experiences,
and of outcome dictated by known distortions of communication, is a failure
to achieve social justice. As a result, the few women who do go to court
have very little prospect for punishment of their assailants. The ultimate
consequences of an accurate and publicly recognized failure to achieve
social justice through the legal process are staggering. Those individuals
who seek legal recourse through the criminal justice process are disillusioned
by the fact that the trial is more a foregone conclusion than a fair process
through which appropriate punishment is meted out for a crime. As a further
consequence, the message is sent to the public that sexual assault is punished
in a far different manner than other crimes against a person (Renner et
al., 1997b), with the consequence that future victims simply avoid the
legal process (Gregory & Lees, 1996), further eroding the essential
foundation for a just society and a strong civic life.
As a start for change, there must be greater public awareness of the
clumsy miscarriage of social justice which takes place in our courtrooms.
Within the existing legal framework, the principal participants, including
the police, the prosecution, and judges, must become more aware of the
contradictions involved in perpetuating a system that contributes to problem
for which it is the intended recourse. First, the police and prosecution
have special responsibility to end the selectivity which takes places in
terms of the cases which reach the courts. Second, both prosecutors and
judges need to become less passive in accepting a court process in which
themes and tactics, with their foundations in myths and distortions of
truth, are used to negate the true nature of actual sexual assaults. And
third, judges in particular need to be held accountable for the considerable
disparity in verdicts and sentences in which the defining characteristics
of male sexual violence against women and children (i.e., the existence
of a relationship through family and social networks, the lack of physical
harm, and the social characteristics of a non-criminal background of the
offender) are used as the conditions for first excluding and then excusing
men from the full force of the legal sanctions.
Ultimately, the principal players in the justice system will need to
actively participate in a process of law reform and social change. The
technical procedures of the justice process must be adjusted to achieve
a greater measure of social justice. The technical process are simply the
means to achieve the ideal of justice. When there are clearly documented
failures in the actual outcome of the legal process, as there are in cases
of sexual assault, then it is the process which must be addressed. The
current legal doctrine has the opposite effect of sacrificing the ideal
to preserve the status quo of traditional technical procedures. These procedures
are based on the fundamental conceptual problem of confounding the defining
characteristics of male sexual violence with the excusing conditions. This
shortcoming is in the legal doctrine, and it can only be corrected by ending
the "unreal" nature of sexual assault trials which negate the actual experiences
of women and children.
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1. We have identified several backdoor
routes whereby the Defence has introduced past sexual history without interference
by the Crown or the Judge, the 1983 legislation notwithstanding. While
we recognized that this information is of interest to the reader, it will
also serve to further disadvantage victims if it is used more widely. It
is our intention to help to force a new round of National Law Reform on
the terms of reference provided by our research (Renner, 1997). Part of
the package is to recruit at the local level a specialized Crown attorneys
who are prepared to raise an immediate objection and to force a ruling
of law by the Judge when one of the backdoor techniques are used. Thus,
until the legal antidote is in the hands of the Crown, we are unwilling
to provide the Defence with the poison.
2. The chi squared analyses to evaluate
the differences between lawyers was computed by combining the 58 cases
in the original data for the prosecution and Defense into a single file
of 116 entries, 58 each for the Crown and for the Defense. This procedure
is described in Delucchi (1993).
Figure 1. Complementary pattern of questions
asked by the Prosecution and Defense in sexual assault trials illustrating
the lack of conflict between the two opposing lawyers.
|Variable Name||Positive to
|No Reference||Statistical Test and Probability Level|
|Prev Sexual History/Crown||0||1||57||X2
|Prev Sexual Hist/Defense||0||5||53|
|Prev Non-Sexual Hist/Crown||5||2||51||X2
|Prev Non-Sexual History/Defense||2||9||47|
|Prev Relate Accused/Crown||19||12||27||X2
|Prev Relate Accused/Defense||2||14||42|
|Psych Adj Before/Crown||0||1||57||X2
|Psych Adj Before/Defense||0||7||51|
|Feelings at Time/Crown||35||4||19||X2
|Feelings at Time/Defense||8||5||45|
|Clothing Torn, Removed/Crown||31||11||16||X2
|Clothing Torn, Removed/Defense||7||15||36|
|Consent Not Given/Crown||44||0||14||X2
|Consent Not Given/Defense||8||6||44|
|Strategies||Relation to Outcome||
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