Rape in the United States Legal System - Research Paper Example

? Rape in the United s Legal System Rape in the United s Legal System Introduction Rape is a complex crime that involves deep emotional issues that are sometimes difficult for the legal system to navigate in order to get satisfactory outcomes. Both the victim and the offender are embroiled in the complexities of the issue and this means that those authorities involved must make decisions that create the best example of justice under circumstances that are not idea for creating a courtroom that is seeking true justice. The victim will sometimes be put on trial for her behaviors or for the circumstances in which she was violated. If the rape occurred with a victim who is a minor justice can be even more difficult to prosecute. The following paper will examine the way in which rape is handled in the United States legal system. The issues that prevent justice and the problems of navigating the complex emotions in balance with a system that is designed to be based on logic come into conflict will be examined. Rape Rape is very difficult to define. The simple idea that rape is non-consensual sex is too simplistic to cover the term. Even if this is accepted as a definition the term non-consensual must be defined more clearly. According to Eriksson (2011) consent will either contain a subjective or performative element. The subjective element of consent is concerned with the mental state of the victim and is therefore considered psychological. The performative state of the victim is a demonstration through verbally expressing that there is not consent present for the act. Consent is considered where the victim is not a willing participant. How this is expressed is often a problem within the court system. Defining rape can be somewhat different than defining the problem of consent. From a legal perspective rape occurs when there is not consent, but from a social definition rape is a form of aggression, which can be used as a weapon. From a clinical perspective rape occurs when the perception of the victim is that they have been violated. Whether or not the system can use this perspective to create justice, it is the perception of the victim that will matter when treatment for the trauma is being conducted. Savino, Turvey, and Freeman (2011) write that rape means different things to different groups of people, each with their own goals, biases, and assumptions” (p. 29). Every state has different statutes that address the problem of rape and how it is defined within a particular state will have a big impact on how it can be legally addressed. An example of the difficulties of defining rape can be seen by a 2003 law in Illinois in which the victim has the right at any time to say no and from that point forward sex is considered rape. This would not fall in line with the definition of rape as purely aggressive act that is not sexual, but violent in nature (Savino, Turvey, and Freeman, 2011). Another problem with defining rape is that it is a societal problem. This means it is subject to the differences that are perceived about an act that is sometimes legal and sometimes not legal. Sex between a man and woman who are married was considered always consensual in most states for a very long time in history. In 33 of the United States there are definitions of how much force is needed to qualify a marital act as rape. (Smith, 2004). As well, sex between homosexual men was not often considered rape because there was a perception that men could not be raped. Although these types of rape have been reviewed and now fall under laws that consider a lack of consent reason for rape, the societal perception of these acts at one time left victims without an avenue towards justices (Travis, 2003). A recent development concerning rape is that it is the female that is the victim rather than the males who are in possession of the rights to her reproductive potential. Various societies around the world viewed women as the possessions of men, a problem that lasted into the beginning of the 20th century. From the Jewish codes that existed in the pre-historic periods the violation of rape was considered a property offense. Rape would destroy the property value of a female and lower her value in the ‘market’. Financial compensation was given in return for the use of the property and would also be assessed in relationship to how much damage was done to the reputation of the family (Iadicola & Shupe, 2013). Rape is also subject to socially accepted views on what is and is not sexual anatomy. As an example, one would not cry rape because someone stuck his or her finger in another’s ear. Travis (2003) defines rape as “any action on the part of one person to violate the sexual autonomy of another by penetration, no matter the extent of penetration, of the penis, finger, tongue, or foreign objet into the vagina, anus, or mouth of the other” (p. 116). The act that is done without the essential component of consent is then considered rape. On an international level, rape can have different meanings and different connotations depending on where penetration takes place. As an example, rape in the Czech Republic was only referring to vaginal penetration where anal or oral penetration would be prosecuted under blackmail laws. There was a time in Italy where premeditation had to be proven in order to prove the case of rape (Smith, 2004). The accusation of rape is hard on some men who do not understand or did not intend their act be rape. Some do not understand how social convention works in relationship to consent. In some cases there is an emotional line where having sex and being rape exists and this line is not always recognized. Date rape, a form of rape where the mans and woman know each other before the event, is sometimes a confused situation where the male might not understand where and how he crossed the line The social problem of being victimized is not always clear in relationship to law. Issues of the Body In discussing the issue of rape, there must be a discussion of the female body (as the most frequent victims). When the male body is raped, it is often considered re-envisioned as a female body, thus rape almost always concerns the female body despite the sex of the victim. An example of how the issue of rape occurs exists in prostitution. The prostitute sells her body as a means of income, but when she attempts to reclaim her body there is a belief that she has given up the right to control penetration. This also can be observed for women who have made themselves sexually alluring. The justice system for a very long time did not make the distinction between consent and accessibility. Even though a woman has made herself accessible no longer means that she has ‘asked for it’. In further discussing social meaning as it is applied to rape, it is clear that the concept of beauty must be examined. Kant suggested “Beauty is…the form of the purposiveness of an object so far as this is perceived in it without any representation of a purpose” (Csordas, 1994). The line that is often crossed is the difference in the word ‘form’ used by Kant. The purpose, or use, of female beauty is often sexualized, but Kant does not say that it is the purpose, only the form of the purpose and this means that using the female body is not permissible simply because it has the form of desired use (Csordas, 1994). The concept of the female as the submissive often suggests that use of her body is the privilege of the dominant sex, the male. However, as a society gender has been determined to have equal rights concerning control of the use of the body. Thus, the issue of rape is a violation of those rights. In determining individual rights as important in society, the violation of those rights becomes an outrage that must be addressed in a legal context. The importance of this consideration is that it must be understood that rape is a decision of human rights that has been afforded to individuals. This decision is different than most of the animal world where the procreative force is without concerned with consent. The idea of punishment for reproductive imperatives is not known in any other species other than human kind. Thus, the development of an ideology about the sanctity of the body has preceded the development of legal repercussions for the act of rape. Rape is now widely accepted as occurring when a person is incapacitated and unable to give consent, when there is not sufficient resistance to justify the charge that was often the requirement, and a focus on the offender for the type of coercion or force that is used. Previously, most of the focus was on the victim rather than on the actions of the offender (Iadicola & Shupe, 2013). Rape Statistics When discussing rape, the issue of sexual assault is closely attached. The Rape Abuse & Incest National Network (RAINN), which is the largest anti-sexual violence organization in the United States, reports that every two minutes someone is sexually assaulted in the United States. The victims are under the age of 18 44% of the time and under the age of 30 80% of the time. There are 207,754 victims of sexual assault each year (RAINN, 2013). The United States Department of Justice (2013) lists that “one in five rape o sexual assaults against females (20%) were committed by an intimate partner”. Between the genders, 91% of rape victims are female with 9% being male, but 99% of all rapists are male. One out of every six women experience rape or an attempted rape. However, there are no hard statistics about rape because rape is highly under reported. The Rape Trauma Care By the year 1976 the United States had 400 rape crisis centers that were focused on the victim and intended to transform the post-rape experience so that victims had advocacy in the legal and emotional processes. Activists had created action in which the victim experienced less victimization in the legal system. Rape crisis centers and rape law reform were in tandem as awareness and social definitions were changed to reflect the experiences of victims and ways in which to make the law work harder for the victim instead of against them (Bevacqua, 2012). Victim care has been organized with seven assumptions that now frame what should happen when someone reports that they are raped. The first is that there is a continuation of victimization that occurs through the experience of the hospital examination, having to detail to an investigator the experience, and through the problem of authorities questioning the extent to which they were originally victimized and if they are crying rape where rape did not occur. This occurs especially when there is an unequal power relationship and the person who is victimized knows their attacker (Hazelwood and Burgess, 2011). The second assumption is that rape is not as rare as what most people believe. This is important because the act of rape is socially created and perpetuated in many instances. The third assumption is that there are myths that surround the act of rape that influence how law enforcement acts concerning the allegation. The idea that victim are responsible for their circumstances is one of the stronger myths that cause problems within the legal system. As well, the idea that rape is defined through social categorizations of race, socio-economic, or lifestyle has caused many allegations to be dismissed. It is assumed that rape is a trauma and should be treated as one (Hazelwood & Burgess, 2008). One of the most important assumptions that have framed the experience of the victim post-rape in the period of investigation is that it should be approached from a multi-disciplinary perspective. Rape has a complexity that no one authority requires professionals and volunteers from a variety of areas to help with the condition of the victim after the rape. Both the victim and the caregivers need support in order to meet the needs that arise from such an experience. Finally, the seventh assumption is that victim caregivers will experience what is known as ‘compassion fatigue’ (Hazelwood & Burgess, 2008, p. 28). Rape care is intensive and can be exhausting. The frequency of hearing the same types of stories can mean that the clinician or law enforcement staff can lose the compassion that once they were able to create for the victims. These challenges must be addressed and met in order to continue to provide helpful services rather than victims becoming more victimized from the sense of disregard that can develop when burn out happens in personnel (Hazelwood & Burgess, 2008). Procedures After a case of rape is reported typically the first experience is to be taken to an emergency room where a rape kit is done. This will include pictures and fluid samples for the purposes of DNA comparisons and evidence of the event. A victim may have more injuries than those sustained during penetration if the violence of the act included other forms of torture. The biggest problem comes as the victim is asked to tell their story. The narrative of rape is not always clear. Victims can be confused on details and things can be presented out of chronological order. Trauma interrupts the capacity for a victim to give a clear account meaning that what the victim reports may have inaccuracies based on the problem of psychological trauma. Follow up medical treatment can include an AIDS test, a pregnancy test, and testing for a variety of sexually transmitted diseases. The outcome of these tests will determine what bodily issues will exist to further victimize the individual. The psychological process is intended for the victim to move from the state of victimization to a state of survivor (Hazelwood & Burgess, 2008). However, this journey does not always follow the same path as the legal journey. The legal journey is a path of investigation in which information and key facts are necessary to get to a point where prosecution is possible. Meanwhile, the victim is undergoing healing which may mean the return of memories or sometimes a period of repressing key facts. Those facts may be central to creating the narrative of the crime, but while the victim is undergoing a process of healing they may not be able to significantly contribute (Bevcqua, 2012). This conflict between the needs of the investigation and the needs of the victim creates a circumstance where justice may not be possible. The crime and victimization does not end as the legal system and psychological frameworks of recovery are in conflict. Challenges to the Investigation There are many challenges to the investigation of rape. The first has been discussed concerning the mental state of the victim. In addition, embarrassment and shame may mean that the victim does not want to go through the process of investigation and prosecution. Although the instinct is to say that it is necessary to prosecute the offender, which is not always the course that will help the victim. For years the victim has been put on trial by defense lawyers trying to change the status of consent. Through impeaching the testimony of the victim, the defender is advocating for the defendant, but this is a brutal and sometimes harmful experience for the victim. Although the laws have changed in most states to where there is anonymity for the victim and their past sexual history cannot be admitted into evidence, but the issue of consent is still affected by the way in which the defense can impeach the perception of the testimony of the victim. Because of the brutality of the experience it is almost impossible to get a conviction on the basis of victim testimony alone (Bennet, Hess, & Orthmann, 2007). Many times the result of calling the police and pressing charges of rape are that the prosecutor will not take the case to court. Because the prosecution of rape sometimes breaks down to a ‘he said, she said’ situation, taking the case to court is too much of a risk. The best-case scenario in this situation is that the offender will make a deal on the appearance that the case will go to court. This also means, however, that many offenders get away with their crime. There is not much that can be done under the current system in order to change how rape gets prosecuted. The problem of testimony and a lack of evidence will always plague how the prosecution choses to act on behalf of the victim. Without a better system for knowing how the act of rape is committed, there will continue to be poor rates of conviction for rape (Bennet, Hess, Orthmann, 2007). One of the ways in which rape has been addressed in organizations such as colleges and industries that are highly sexually charged (such as Girls Gone Wild caravans) is to have a form that is signed by women before they engage in sex. This is not very successful because the form is sometimes taken as blanket permission to do whatever is desired. In addition, a woman may sign the form but then change her mind, but under the legality of the signed form are then obligated to have sex and cannot then accuse a man of rape even if he behaves inappropriately. This type of scenario does not solve the problem and leads to more victimization rather than reducing risk for men (Bevacqua, 2012). Recommendations One of the first problems that concerns rape is that men are not taught from a societal perspective about the expectations that are placed upon them concerning sex. Boys learn about sex quite possibly from their parents, but then learn about sexuality and desire from other sources, most of them based in the media. They see men and women behaving in certain ways and believe that it is a true reflection of how sexual relations occur. This is usually a warped perception of the world. Women, on the other hand, learn how to be sexual from the media but do not always understand the message that is being received by men. In addition, men do not always understand that sexuality in women is not necessarily and invitation. Although these issues are not allowed in a courtroom, as well they should not be, the problem is deeply societal and should be addressed through education. Men and women will never improve their power relationships if they are not taught from an early age about how to respect one another. Appropriate sexual behavior should be taught, just as other behaviors are taught. The legal system should become more pliable in relationship to the psychological impact of rape. The development of a system that works with the victim for the best possible outcomes for their situation needs to be developed. This means addressing the problem of narrative, making it clear to everyone involved that the victim may not have a clear narrative, but that this does not mean that they do not have story to tell and an event to prosecute. What it means is that as a victim they have suffered trauma and signs of trauma should have an impact on the end result. The situation needs to be prosecuted in a way that helps the victim through the process rather than keeping them in conflict with the end result. Conclusion Rape is a difficult problem throughout the world. The process in the United States where the adversarial system is at work means that the victimization most often does not stop when the crime is over. It continues as the victim tries to tell their story, as the defense puts on their case, and the all too often unsatisfying legal resolution leaves them feeling as if they are not believed or not valued in society. When someone gets away with rape, they take from the victim their sense of personal power. Sometimes it is regained and other times enough of it is lost to affect the rest of their life. At this time it is through psychological help that is the best way in which to survive. The situation. There are good organizations available such as RAINN that can provide services for those who have gone through rape. The event is a crime and society has taken this painful problem that plagues so many women and made it prosecutable as a violent crime against a victim. The problem is that it is not always a clear crime. Short of filming everyone all the time, the problem of ‘he said, she said’ will always create tension when trying to find the truth. The problem of behaviors and how to be a good member of society seems to be the bets possible cure. References Bennett, W. W., Hess, K. M., & Orthmann, C. H. (2007). Criminal investigation. Belmont, CA: Wadsworth/Thomson Learning. Bevacqua, M. (2012). Rape on the public agenda: Feminism and the politics of sexual assault. Boston: Northeastern University Press. Csordas, T. J. (1994). Embodiment and experience: The existential ground of culture and self. Cambridge: Cambridge Univ. Press. Eriksson, M. (2011). Defining rape: Emerging obligations for states under international law. Leiden: Martinus Nijhoff Publishers. Hazelwood, R. R. & Burgess, A. W. (2008). Practical aspects of rape investigation: A multidisciplinary approach. Boca Raton, FL: CRC Press. Iadicola, P., & Shupe, A. D. (2013). Violence, inequality, and human freedom. Lanham, Md: Rowman & Littlefield Publishers. The Rape Abuse & Incest National Network (RAINN). (2013). Retrieved from www.rainn.org/statistics. Savino, J. O., Turvey, B. E., & Freeman, J. (2011). Rape investigation handbook. Burlington, MA: Academic Press. Smith, M. D. (2004). Encyclopedia of rape. Westport, CN: Greenwood Press. Travis, C. B. (2003). Evolution, gender, and rape. Cambridge, Mass: MIT Press. United States Department of Justice. (2013). Retrieved from http://www.ovw.usdoj.g Read More