The Impact of Bias and Myths in the Criminal Justice System’s Treatment of Rape- The persistence of myths and biases about rape and sexual assault that are inconsistent with the true dynamics of sex crimes influence how police, prosecutors, judges, and juries enforce and interpret laws. Prosecutors and law enforcement who are influenced by outdated laws and the myths that surround rape and sexual assault may approach these crimes differently from the way they approach other crimes. Police detectives may interrogate victims as if they are the suspects, and subject them to unreliable and humiliating polygraph exams and arrests or threats of arrest for alleged false reporting. They may doubt and re-victimize victims by closely scrutinizing their lives in search of evidence to charge the victim, without even investigating the rape allegations.46 Studies show that about one half of rape victims report being re-victimized by police.
One study that interviewed police officers as well as victims found a correlation between victim and police reports of how victims were treated; similar percentages of victims and police, for example, reported questioning by police about sexual history. This treatment may lead to recantations made solely to avoid participating in the criminal justice system. It may also lead to cases that are inadequately investigated and that cannot be prosecuted. A recent study shows that the manner in which detectives interview complainants has an effect on the extent to which the complainant discloses what happened and potentially on the outcome of a criminal prosecution. Complainants whose cases were prosecuted described detectives as consoling, questioning them at a gentle pace, and giving them an overall feeling of being believed. Complainants whose cases were not prosecuted describe rapid and forceful questioning and victim blaming, communicating implicitly or explicitly their disbelief.
To the extent that a negative experience with a detective results in an inadequate victim statement, it may impact whether a case is prosecuted and whether prosecution ultimately results in a conviction. An emerging body of research finds that police treatment is also a critical element in both advancing and impeding victim recovery. Given police power and authority and the extreme vulnerability of and trauma experienced by rape and sexual assault victims, the way the police treat the victim will either be an empowering first step toward her safety and healing or a devastating betrayal of trust, a second trauma. Two independent studies of rape victims’ experiences in the police reporting processes—in England and New Zealand—reported strikingly similar findings and conclusions.
Both studies found a strong polarity in victims’ experiences, with many feeling either well treated or profoundly mistreated by police. Both found that when police demonstrate respect and concern for the victim and belief in her recitation of events, it has a powerfully positive impact: women who felt well treated were empowered by their police interactions. Conversely, both studies found that when police lack empathy, challenge a victim’s credibility, or judge her behavior, they re‐traumatize her. Women who felt ill‐ treated by police were devastated by their interactions. Criminal justice professionals and other participants in the judicial process are not immune from bias in their handling of rape and sexual assault. In the past few decades, researchers, state task forces, and judicial organizations have studied and made findings about gender bias in the court system.
They have found evidence of judges, court officers, prosecutors, and juries who displayed stereotypical views, insensitivity to, and ignorance about sex crime victims, and disbelieved and blamed victims, most frequently when the victim knew the perpetrator—a circumstance that is true of the vast majority of sex crimes. Researchers have found that jurors have inaccurate understandings of rape victim behavior that influence their decisions. Many judges and jurors expect proof of resistance and injury to overcome a consent defense, even when the law requires neither resistance nor corroboration.60 Victims are viewed as more credible if weapons are used or victims are injured, even though these factors are not present in most rapes. As a result of these biases, jurors often fail to convict intimate partner rapists. Confronting judges and juries with the same biases held by police, prosecutors face a daunting task in achieving convictions.
Rape cases can be difficult to prove and alcohol and drug‐facilitated rapes may involve impaired memory and observation as well as biases against intoxicated victims. Rather than try to overcome the misconceptions and challenges, prosecutors often decide not to prosecute. The mishandling of rape and other sex crimes puts victims at a unique disadvantage in the criminal justice system, decreasing the rate of reporting rape and other sex crimes and increasing the rate of claims withdrawn by victims. Further, distrust of police and interrogation of victims of rape and other sex crimes create seemingly uncooperative victims, feed the misperception that uncooperative victims are lying, and discourage future victims from reporting to police.
Allowing Bias and Myths to Infect the Justice System Leads to More Rapes- When the criminal justice system refuses to respond adequately to a complaint of rape because myths lead them to disbelieve victims, victims do not report, rapists are not caught, arrested, or prosecuted, and perpetrators are likely to re-offend. Research shows that not only do an alarmingly high number of perpetrators of rape re-offend, but also that repeat offenders commit the vast majority of rapes.68 In their 2002 study, David Lisak and Paul H. Miller found that 120 rapists were responsible for 1,225 separate acts of interpersonal violence, including rape, battery, and child physical and sexual abuse, and that repeat rapists averaged 5.8 rapes each.69 Police mishandling of rape complaints has allowed serial rapists like those in Lisak and Miller’s research to perpetrate again and again without detection.