By LINDSEY CLARK
Over the past few years, the #MeToo movement on social media has shed a harsh light on the realities of sexual assault. Across many industries, women are speaking out against their attackers. These brave leaders inspire others who have experienced sexual assault to voice their traumatic experiences. Today, victims, the majority of whom are women, are more empowered than ever to disclose sexual assaults. However, despite these gains, society has not changed its fundamental approach to criminalizing sexual assault. Ideal punitive systems theoretically should uphold deterrence as the ultimate goal of punishment,[1] predicated on the understanding that prevention originates from the certainty of the punishment, not the severity.[2] The minuscule number of rapists who are actually punished demonstrates how our system fails to meet this ultimate standard.[3] Acknowledging this failure requires a fundamental review of how our theoretical treatment of sexual violence and our actual prosecution of the crime can precipitate a more just system.[4] Investigating these new approaches implies endeavoring beyond traditional legal boundaries and conventional understanding.
A quick survey of the statistics surrounding sexual assault cases reveals a clear, deep, destructive failure within the system. An estimated 77% of sexual assaults go unreported.[5] If the victim does report the crime, the criminal justice process mistreats and isolates them. Instead of criticizing the perpetrator, trials engage in a brutal form of victim blaming.[6] Sexual assault crimes draw low prosecution and conviction rates.[7] Digging deeper, these startling statistics emerge due to a widespread societal misunderstanding of sexual assault. For example, a study of high school students in Los Angeles finds that 56% of girls and 76% of boys believe that “forced sex was acceptable under at least some circumstances.”[8] Another study finds that a majority of men believe that “any woman could prevent rape if she really wanted to.”[9]
In response to this devastating societal ignorance and the resulting failures of the legal system, much academic literature contends that the traditional burden of proof on the prosecution could be too high. The prosecution must prove “beyond a reasonable doubt”[10] that the victim did not consent and that the perpetrator knew the victim did not consent. However, because of the public’s “weak moral prohibition”[11] of sexual assault outside of violent rape, perhaps the standard of “beyond reasonable doubt” becomes inhibitive.[12] We can observe how culture behaves in a punitive system with a lower burden of proof. The Title IX system does not involve criminal proceedings, so it requires a lower standard of proof.[13] Instead of “beyond a reasonable doubt,” Title IX cases demand a “preponderance of the evidence standard.”[14] This system bases convictions on a convincing probability, rather than virtual certainty. These microcosmic college environments can be extrapolated to examine how punishment works under different circumstances. Despite a lower standard of proof, Title IX remains largely inadequate at preventing victim blaming.[15] This indicates that removing the means of victim blaming in punishment systems does not terminate the motivation of victim blaming. Deterrence still requires shifting the blame from the victim to the perpetrator. This will only happen when punishments employ an appropriate “moral condemnation.”[16] Productive punishments properly align “the suffering [the] sanction imposes and the meaning it has for society.”[17] An ingrained societal shame about sex in general further connects shame to sexual assault punishments.[18] However, both the Title IX and criminal justice systems employ an ineffective form of shame to punish these crimes. We incessantly deny the realities of sexual assault trauma. Without the proper approach to shame, we cannot fully deter sexual violence.
The manner in which we punish sexual assault fundamentally fails because “the message of condemnation is [not] very clear.”[19] To effectively punish and deter sexual assault, the system must change to successfully manipulate shame. Given the majority of high school and college students who excuse at least some form of sexual assault,[20] social conceptions of sex and masculinity are prioritized over the law. Instead of blaming the victim, we must judge the perpetrator. Shame, used effectively, becomes a social deterrent and can ideally rectify this destructive social failure.[21] With this ideology, reformers suggest public sanctions “designed not only to punish but to teach and steer social influence.”[22] Deploying shame in a new way wholly changes the nature of punishment; as a result, many of these solutions appear too radical at first glance. For example, Katharine K. Baker, a professor of law in Chicago, directs shame in Title IX cases to isolate the perpetrator from the tight-knit college community while they still live in it. She offers a punishment that requires perpetrators to wear an armband indicating their crime and the social organizations to which they belong.[23] Though drastic, this type of punishment certainly harnesses social influence to prevent sexual assault. The perpetrator shames himself and his social group, publicly. The law here overpowers the social pressures that incentivize sexual assault. Shame, if properly distributed, “instill[s] aversions to the kinds of behavior that the law prohibits.”[24] This approach brings justice directly to the victim to properly deter the action. Re-evaluating the burden of proof in cases of sexual assault cases is necessary, but not sufficient to promoting the ultimate goal of the criminal justice system: deterrence. How we behave and what behavior we excuse matters. We are a part of society; we are the judges and the jury; we are the victims and the perpetrators. Consequently, we are responsible for preventing sexual assault.
[1] Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments 16 (2011).
[2] Ibid.
[3] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 596 (1996).
[4] T. McDonald & L. Kline, Perceptions of Appropriate Punishment for Committing Date Rape: Male College Students Recommend Lenient Punishments, 38 College Student Journal (2004).
[5] Perpetrators of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/perpetrators-sexual-violence.
[6] N. Westera, M. Kebbell, & B. Milne, Want a Better Criminal Justice Response to Rape? Improve Police Interviews With Complainants and Suspects, 22 Violence Against Women, 1748, 1748 (2016).
[7] Ibid.
[8] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.
[9] Supra note 4.
[10] “Chapter 40. Sex Offender Registration.”
[11] Supra note 8 at 694.
[12] A recent rape case in a court in Texas offers support to this end. On December 10, 2018, the prosecution offered the defendant a $400 plea deal instead of years in prison. The prosecutor told the victim, “Our jurors aren’t ready to blame rapists when there isn’t concrete proof of more than one victim.” Our courts of law render one person’s victimhood insufficient to bring them justice within the system. CBS Evening News, Twitter Post, December 10, 2018, 3:51 PM.
[13] It should be noted that Title IX regulations were recently amended. However, these changes do not affect the cited information.
[14] U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide (2015).
[15] This point references the recent controversial changes to the Title IX standards as well as the subsequent outcry from Georgetown students. A new organization called Georgetown Survivors is working to draw attention to the shortcomings of Georgetown’s Title IX program and the ways in which the advisory board engages in victim blaming. (see https://thehoya.com/survivor-viewpoints/)
[16] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 593 (1996).
[17] Ibid.
[18] Susan Brison, Aftermath: Violence and the Remaking of a Self 12 (2002).
[19] Supra note 16.
[20] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.
[21] Ibid. 706.
[22] Ibid. 696.
[23] Ibid. 698.
[24] Supra note 16 at 603.
