Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald

Independent Student Newspaper Since 1969

The Badger Herald


Sexual assault survivors deserve an effective justice system

Many survivors don’t feel confident pursuing legal justice, and here’s why
Marissa Haegele

When allegations of sexual misconduct against Hollywood producer Harvey Weinstein broke Oct. 5, so did a movement of public accusations against other high-profile men.

Over the past month, more than 20 other men in high powered positions have been accused of sexual misconduct, including head of news at NPR Michael Oreskes, editorial director of Vox Media Lockhart Steele, E! News correspondent Ken Baker and comedian Louis C.K. Many of these men have been accused by multiple people.

The influx of reports has empowered many people to share their stories with the media, write articles, report to new outlets and share on their own personal social media accounts. This kind of publicity is powerful — it highlights the extent of the issue and holds perpetrators accountable for their actions.


But why have these reports all been to media outlets, as opposed to the police?

According to the Rape, Assault, and Incest National Network out of every 1000 rapes, 994 perpetrators will walk free.

Contrast this to assault and battery crimes, where more than twice as many crimes are reported, and nearly six times as many perpetrators will be incarcerated.

It’s no wonder survivors are now sharing their stories with the media — it is so difficult to find legal justice that they must resort to justice in the public eye. Amber Amour, who documented the aftermath of her assault on her own social media, said, “Me telling my story was my own form of justice.”

Our justice system is failing survivors and protecting their attackers, and here’s how.

Dr. Kimberly Lonsway, an expert on sexual assault, and Sergeant Joanne Archambault of the San Diego Police Department, published an article highlighting the reasons why perpetrators of sexual violence rarely face legal prosecution. They argue that there is a misconception about a stereotypical “real rape” and assaults that look different than that image are much less likely to be prosecuted.

This stereotype looks like this: The assault is a violent attack committed by a stranger against a young, attractive, sober, white woman, who immediately reports the assault and recalls the assault with 100 percent accuracy. This stereotype is perpetuated by the media and our inability to re-examine our assumptions about survivors of sexual violence. The impact of this stereotype is that in cases where the attack does not match this story — which is most cases — the survivor is less likely to be believed, the police are less likely to properly investigate the crime and prosecutors are less likely to pursue a conviction.

If you’re shocked by #MeToo, you’re actively contributing to the problem

One example of this is in the way that police investigations are conducted, and type of evidence that investigators look for. Because of this misconception of how rape is “supposed” to look, investigations often focus on what is called “identification evidence,” i.e., which will help identify the assailant (fingerprints, biological evidence, footprints, etc.).

But, more than 70 percent of assaults are committed by someone known to the survivor. In these situations identification evidence is often not effective because the defendant will frequently use a “consent defense.” In other words, they will claim that the sexual act took place, but was consensual.

In these cases, it is necessary to obtain alternate forms of evidence that demonstrate, force, threat, fear or other evidence of lack of consent. These can include evidence of victim intoxication, interviews with the first person to whom the survivor disclosed their account of the incident or evidence from the crime scene to support a struggle. When this evidence is not collected or utilized the case is unlikely to end in a conviction because it will end up being a “he said, she said” situation.

In 2012, Florida State University quarterback Jameis Winston was accused of sexual assault, but due to the publicity and popularity of the assailant, the state did not want to pursue an investigation, and consequently mishandled the investigation and the evidence so the case would not move forward.

In New York, laws about sexual harassment in the workplace refer to the intention of the offender: “A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose forcibly touches the sexual or other intimate parts of another person…” Because of this provision, one reason that Harvey Weinstein was not prosecuted in New York was because his lawyer was able to argue the reason he touched a model’s breasts was because he was trying to determine if she had breast implants.

Many of our laws even retain vestiges of a culture when rape was a crime against property. In 2013, Ezekiel Gilbert paid an escort $150 in exchange for sex. When she refused sex, Gilbert shot her in the neck — immediately paralyzing her. Seven months later, she died. Gilbert was acquitted in court after his lawyer argued that the use of deadly force was legal due to a provision in Texas law that allows the use of deadly force to “retrieve stolen property at night.”

It’s on us to change the way we talk about sexual assault

Our justice system needs to do a better job of protecting survivors and prosecuting assailants. The Bureau of Justice estimates that at least 60 percent of of assaults go unreported. According to the National Violence Against Women Survey, of those who chose to not report, 25 percent said they made that decision because they either felt the police would not be able to help, would not believe them or blame them.

When survivors feel the only way they can get justice for themselves is to post their stories on Twitter, it should be clear that we have a problem in our justice system. We need to dispel our criminal justice system of laws that allow defendants to refer to women as property. We need to establish a culture in which we recognize that there is not a “recipe for rape” and that sexual violence looks different in different cases. We need to encourage law enforcement to recognize the same, and conduct full and complete investigation appropriate to the type of crime. Most of all, we need to shift our focus from protecting offenders to supporting survivors.

Cait Gibbons ([email protected]) is a sophomore studying mathematics.

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