Having Her Day in Court: The Complexities of Prosecuting Rape

Imagine that a man is walking to his car from work after dark one evening. He reaches his car and begins fishing in his pocket for his keys when all of a sudden, he is hit from behind. He falls to the ground and is kicked repeatedly. Through the fury of pain he feels in his stomach, back, and head, he sees a robber bend over to grab the laptop bag he dropped when he was initially attacked. The robber reaches down, grabs the man’s wallet, and then takes off, leaving his victim writhing on the ground.


Now imagine the victim, months later, has his day in court. A suspect has been captured and charged, and the victim takes the stand to recount the crime. He describes the attack and tells the jury what was taken. The attacker’s lawyer approaches to take his turn asking questions. “What were you doing out alone at that time of night? Why were you carrying your expensive laptop? Why not just leave it at the office? What was your wallet doing in your back pocket where it could be easily seen or stolen? Everyone knows you’re supposed to keep that kind of thing covered up. Don’t you think you were asking for it?”


If all crimes were investigated and prosecuted as rape is, it’s likely that our society would rise up in protest. Yet every two minutes in the United States, a person is sexually assaulted, and 15 out of 16 perpetrators walk free.1 Former New York Assistant District Attorney Linda Fairstein wrote in her book, Sexual Violence: Our War Against Rape: “Rape remains the only crime in which the victims — most often women, but frequently men and children — are stigmatized by others for their victimization and blamed for their participation in an act committed by forcible compulsion.”2




Historically, the crime of rape has been inconsistently prosecuted. Linda Fairstein wrote, “In no other category of crime does the victim approach the criminal justice system with lower expectations of a successful resolution than in the area of sex offenses. Centuries of inequities in the rape laws were responsible for the miniscule number of prosecutions nationwide, until the major legislative changes that occurred in the 1960s and 1970s.”3 In fact, it wasn’t even until 1993 that the last U.S. state, North Carolina, added marital rape (rape committed by a spouse) to its criminal code.4 The first state to do so was South Dakota in 1975.


Definitions of rape vary, often by degrees, but definitions are important and govern the state’s ability to successfully prosecute rape. The FBI is currently reconsidering its definition of rape, originally adopted in 1930, which now reads rape is “the carnal knowledge of a female, forcibly and against her will.”5 This definition omits the rape of a man or male child. “Forcibly” is problematic because some interpretations would exclude rapes that occur while the victim is intoxicated or otherwise impaired and may even exclude some cases of date rape. Some interpretations of this definition, furthermore, omit cases that do not involve penile-vaginal penetration.




Oftentimes, victims of rape fear reporting the crime. According to the Rape, Abuse, and Incest National Network (RAINN), about 60 percent of rapes go unreported.6 Reporting rape can be an intense and invasive process, and understandably, victims can be reluctant to undergo such an examination immediately following the attack. Survivor Debbie Smith said, “The only thing I wanted to do was to take a shower. I wanted to try to wash everything away. I wasn’t interested in reporting evidence.”7


Another element that contributes to underreporting is that two-thirds of all rapes are committed by someone known to the victim.8 Fairstein wrote, “In my experience, the most misunderstood area of criminality is what we call acquaintance or date rape. Except its victims, most people tend to distinguish it from sexual assault by strangers — thus the label ‘date rape’ — with the implication that it is different from, and therefore less serious than, ‘real rape.’ It is real rape.” Because the crime is committed by someone the victim knows, she may fear retribution by the perpetrator or be concerned about the reaction of her family, friends, or colleagues, many of whom may also know the perpetrator. A victim may be hesitant in this situation because she may be protective of the existing relationships and social networks that would be affected by the crime. Fairstein added that this kind of assault “is every bit as traumatic as an attack by a stranger. Yet rarely is the support offered to survivors, even by family and friends, the equivalent of that in other rapes.”9


Rape victims are made vulnerable by the attack and often are worried that authorities won’t believe their account of the incident. Fairstein described this feeling: “While some of that reluctance is attributable to the victims’ fear of reprisal by the assailant or embarrassment because of society’s attitudes, victims most often cite their lack of confidence in the system — police and prosecutorial agencies — as the reason for their decision not to report.”10 During the initial investigation and even during the trial, rape cases are framed as he said/she said arguments, rather than as crimes. Because so many incidents of rape are approached this way, women may be reluctant to report for fear that they will not be believed, or that their character and lifestyle will come under public scrutiny. In the 1970s, rape shield laws were enacted to prevent the sexual history of the victim from entering into evidence in criminal cases.11 Some shield laws prevent questioning or evidence about how the victim was dressed, but others allow judges to admit evidence that would otherwise be barred by law if the judge feels it is pertinent to the trial.


While the shield laws prevent a victim’s sexual history from being aired during the trial, and could thus possibly encourage victims to report rape, they do nothing to prevent pretrial publicity. According to the National Center for Victims of Crime, the lack of regulation on pretrial publicity means “many victims are still likely to be deterred from reporting the offense.”12 Bringing a victim’s past sexual history into the discussion, whether in previous consensual acts with the perpetrator, in previous relationships, or sex work, does not shed light on the events that happened during the assault. While shield laws help to protect victims in the courts, they cannot help in a culture that blames the victims of sexual assault.


Additionally, both true and false rape accusations are often portrayed and seen as crimes in themselves. Emily Brandt, founder of Take Back the News, an 8-year project examining media portrayal of sexual assaults, writes “Many news articles that report a rape focus on the actions of the victim or include irrelevant details that lead the reader to infer that a rape did not actually occur.”13 Brandt points to headlines like “Fla. Teens Accused of Gang Rape Attack” from Newsday July 7, 2007: “This makes it seem that the crime is the accusation of gang rape, rather than the gang rape itself.” In other instances, Brandt cites other media misrepresentations: “[describing] the details of the crime in a pseudo-pornographic or titillating manner…An insinuation that the victim is lying, often made by the defense attorney or the perpetrator, that is not countered by the victim or an advocate for the victim…[providing] greater coverage to cases in which the accuser’s credibility is questionable, which both discourages other victims from coming forward and hurts the accused if they are in fact innocent… [highlighting] instances in which someone has been wrongly convicted and imprisoned for rape. In those cases, they neglect to address whether the accuser was lying about being raped or if the wrong person was captured by police. As a result, these articles imply innocent men are very likely to be accused of rape and women often lie about rape.”14 Negative portrayals of rape victims in the media discourage women from reporting.


Another situation that may prevent a victim from reporting a rape is a fear of law enforcement. In cases where a woman is involved in illegal activity (drug use, prostitution, etc.) she may not report a rape for fear that she will be detained. The same fear can affect women new to the American legal system. Recently, Massachusetts state representative Ryan Fattman stirred up controversy with his remarks about crimes against immigrant women. The Worcester Telegram-Gazette wrote, “Mr. Fattman dismissed concerns of some law enforcement officials — cited by the governor — who said using local police to enforce immigration laws could discourage reporting of crime by victims who are illegal immigrants. Asked if he would be concerned that a woman without legal immigration status was raped and beaten as she walked down the street might be afraid to report the crime to police, Mr. Fattman said he was not worried about those implications. ‘My thought is that if someone is here illegally, they should be afraid to come forward,’ Mr. Fattman said. ‘If you do it the right way, you don’t have to be concerned about these things,’ he said, referring to obtaining legal immigration status.”15 Such statements create a climate of fear for victims who feel unprotected or even endangered by law enforcement. Two weeks later, the Telegram-Gazette reported that Fattman rescinded his comment: “Mr. Fattman, who advocates deportation of all illegal immigrants, revised his comments in a press statement issued today. ‘Victims of any crime should always feel safe to come forward to both law enforcement officials and other support networks for help, regardless of their gender, ethnicity, sexual orientation, immigration status, or any other factor,’ Mr. Fattman said.”16




Despite the overwhelming pressures women face to keep silent following an attack, some women do report being raped. Those who do may undergo a physically painful and intensely emotional examination called a “rape kit” in order to provide evidence against their attackers. The process for collecting a rape kit involves several steps.17 The examination will likely be performed by a medical provider such as a nurse or doctor. A victim has the right to request a female doctor. Though the same doctor or nurse may also be examining the victim as a patient in order to treat injuries incurred during the attack, the rape kit portion of the exam is not a medical examination. It is a forensic exam to collect evidence, in the same way police would inspect a crime scene for DNA, fingerprints, etc.


During the exam, the medical provider will take swabs from the entire body. She or he will also scrape underneath the victim’s fingernails, inspect clothing for loose hairs or fluids, and conduct a blue light search for bodily fluids on the victim’s body. The medical provider or a law enforcement officer may also photograph visible injuries. The victim’s clothing, including underwear, may also be examined and tested for DNA evidence. While it may seem counterintuitive for a victim to undergo such an ordeal following a rape, the evidence collection is important to identifying and prosecuting the attacker.


A Florida woman was raped by a stranger in her home and then compelled by her attacker to jump into the pool in her backyard in order to eliminate all possible evidence. In a moment of quick thinking, she managed to gather some of her attacker’s semen in her hand and slipped into the pool with her hands above the water, as if to show deference to the attacker. The rapist ran off and the victim was able to retain enough DNA evidence in her hand to share with the police once they arrived on the scene.


While this story and others like it offer victims hope that they can implicate their attackers by reporting their rapes, victims’ wit and courage are not enough to address systemic hindrances to prosecution. RAINN says that of the 40 percent of rapes that are reported, there’s only a 50.8 percent chance that the suspect will be arrested.18 If an arrest is made, there is an 80 percent chance of prosecution. If prosecuted, there’s only a 58 percent chance of conviction. If there is a felony conviction, there is a 69 percent chance the convict will serve jail time. All of this amounts to a 16 percent chance that a rapist will be imprisoned in the 40 percent of rapes that are reported.


One of the reasons rapes are rarely prosecuted to conviction is that evidence collected during rape investigations goes unused. Human Rights Watch reports that hundreds of thousands of rape kits have been stored and remain untested across the U.S. This backlog plagues many localities around the country — most notably, Los

Angeles County had 12,669 untested kits on the shelves. In an interview with ABC News, a Wayne County prosecutor said, “This is not a backlog. This is worse than a backlog, because a backlog presumes you’re working on it.”19


The FBI has a national databank called CODIS (Combined DNA Indexing System) that records DNA collected during felony investigations of violent crime. CODIS was developed to support federal, state, and local law enforcement in their work identifying and prosecuting offenders. Gail Abarbanel, founder and director of the Rape Treatment Center of Santa Monica Hospital Medical Center said, “We feel a tremendous sense of frustration because we finally have a tool to solve rape cases and to protect the public from more sexual assaults, and it’s not being used.”20 Charlie Beck, police chief in Los Angeles, added, “Criminalists are very expensive. There’s not very many of them. They are what is required to test rape kits… Sometime back in the distant past, there was a fingerprint backlog… As things change, we have to adapt. If we haven’t been quick enough to adapt, then, you know, shame on us.”21


A major concern of groups working to end the backlog is that without testing the evidence in these rape cases, rapists could be walking around free, able to attack again — even multiple times — without fear of conviction. Linda Fairstein said, “While it is rare to see the same victim twice throughout the twenty-year period of time, it is a well-documented fact that sex offenders are the most recidivist of criminals and more frequently repeat their violent acts than any other category of criminal.”22 Psychologist David Lisak, a researcher at the University of Massachusetts Boston, has studied serial rapists in prisons and on college campuses, and his findings echoed Fairstein’s experience. An NPR story highlighted his work: “What Lisak found was that students who commit rape on a college campus are pretty much like those rapists in prison. In both groups, many are serial rapists. On college campuses, repeat predators account for nine out of every 10 rapes.”23


While rape kit evidence is crucial to identifying these serial attackers, it is an expensive undertaking for local law enforcement. “‘Our property room is very full — very, very full,’ said Lt. Eno U. Fite of the special investigations unit at the Dallas Police Department. Lieutenant Fite estimated that 17,000 to 21,000 rape kits filled the room. At least half were collected before 1996, from what are now considered cold cases, she said. Of those, only about 25 percent would fit the department’s criteria for DNA testing… Of the estimated 7,000 to 9,000 rape kits collected from 1996 to 2010, about 40 percent have been or will be submitted for DNA testing. It takes about a year to get the results of a full DNA test, which costs $750 to $1,000 a test.”24


In a compound act of injustice, rape kit costs may be passed on to the victim in some cases. Sarah Tofte, a lead researcher in the Human Rights Watch study of the national rape kit backlog, wrote, “I heard in January from a disabled woman in North Dakota who was brutally raped by an acquaintance. While this woman was recovering from surgery required to repair her internal organs after the rape, she received a bill from her hospital for the cost of her rape kit, a forensic exam to collect DNA and other evidence from the body of the victim. She was eventually able to get her state’s victim compensation board to pay the hospital, but in the meantime, she kept receiving notices from the hospital’s bill collector. ‘I could not believe this was happening to me, after all this,’ she told me. ‘It got resolved, thank God, but not before I started to worry that my inability to come up with the money to pay the hospital would jeopardize my case. They tell me it wouldn’t have, but it was so much worry that I didn’t need.’”25


Tofte said the problem wasn’t limited to one state’s bureaucratic mix-up: “A local TV station reported that some rape victims in Texas had been billed for the cost of their rape kit — which, depending on the state and the hospital, can reach $2,000. Last year, a newspaper reported that rape victims in North Carolina were asked to bill their insurance for the rape kit cost, and if they refused or did not have insurance, they were sent the bill.”26 An informal call by FFL staff to several health insurance companies revealed that many health plans cover the cost of rape evidence collection kits as part of the benefits for their insured. This payment system essentially passes the bill on to those victimized by rape. This is not the case for other crimes (robbery, murder, etc.) where DNA evidence is considered part of the criminal investigation. In those crimes, the state — not the victim — pays for the evidence collection.


In 2009, a federal regulation mandated that states receiving funds from the Violence Against Women Act pay for “Jane Doe” kits. These kits allowed women who were unsure if they wanted to file a police report against their attacker to still provide evidence during a rape kit examination without providing their names or issuing a formal report. “Sometimes the issue of actually having to make a report to police can be a barrier to victims, and this will allow that barrier to cease, to allow the victim to think about it before deciding whether to talk to police,” said Carey Goryl, executive director of the International Association of Forensic Nurses.27 Policies like these empower rape victims who are still in shock.




Feminists have worked for decades at the local, state, and federal level to ensure more protections for women. Together, we have brought about tougher rape laws and more consistent prosecution of sexual assault. Yet despite these gains, there is more work left to be done. Prosecutor Linda Fairstein summed up the way forward: “As we struggle to put in place the essential services — medical, counseling, and legal — the other critical need to which attention must be devoted is the education of the public. Every archaic stereotype and myth about rape must be exploded, from the moronic platitudes that blame the victims for their plight, to the misconceptions that rape is an impulsive expression of lust rather than deliberate violence, to the equally pernicious falsehood that we cannot win these cases in the courtroom.”28 For every person uninformed about rape, Fairstein saw a potential juror: someone with the potential to be educated and rightly judge the facts, but also someone who, in his or her ignorance, may instead judge the victim. Feminists must press for changes at every level to make sure that when a rape victim gets her day in court, she has a truly just system to protect her.



1. RAINN “Reporting Rates.” http://rainn.org/get-information/statistics/reporting-rates. Accessed on 26 July 2011.


2. Fairstein, Linda. Sexual Violence: Our War Against Rape. New York: William and Morrow and Company. 1993. 13.


3. Ibid. 67.


4. Barden, J.C. “Marital Rape: Drive for Tougher Laws is Pressed.” The New York Times. 13 May 1987. http://www.nytimes.com/1987/05/13/us/marital-rape-drive-for-tougher-laws-is-pressed.html


5. Uniform Crime Reporting Handbook, updated 2004, pp 19-20. https://ucr.fbi.gov/additional-ucr-publications/ucr_handbook.pdf/view. Good, Erica. “Support for Move to Broaden Definition of Rape.” The New York Times. 20 October 2011. http://www.nytimes.com/2011/10/21/us/support-for-move-to-broadendefinition-of-rape.html.


6. RAINN, “Reporting Rates.” Ibid.


7. Feminist Majority. “TEST rape evidence! No More Excuses 1” Uploaded 3 May 2011. http://youtu.be/3DRybjsweu0.


8. RAINN. “The Offenders.” http://rainn.org/get-information/statistics/sexual-assault-offenders Accessed on 26 July 2011.


9. Fairstein. 130.


10. Ibid. 270.


11. The National Center for Victims of Crime. “FAQ: Rape Shield Laws.” Accessed 7-18-2011.


12. Ibid.


13. Washington Coalition of Sexual Assault Programs. “Take Back the News.” Connections Vol. XII: Spring 2010. 9. http://www.wcsap.org/sites/www.wcsap.org/files/uploads/documents/MediaSavvyYouthSpring2010.pdf


14. Ibid.


15. Monahan, John. “Immigrant Checks Urged.” Worcester Telegram-Gazette. Posted 8 June 2011. http://www.telegram.com/article/20110608/NEWS/106089913/-1/NEWS07


16. Monahan, John. “Rep. Fattman further clarifies crime victim remark.” Worcester Telegram-Gazette. Posted 21 June 2011. http://www.telegram.com/article/20110621/NEWS/110629940/0/NEWS07


17. Feminist Majority Foundation. “No More Excuses 1.”


18. RAINN. “Reporting Rates.”


19. Feminist Majority. “No More Excuses 1.”


20. Feminist Majority. “TEST rape evidence! No More Excuses 2” Uploaded 3 May 2011. http://youtu.be/KLhFaimJblw


21. Ibid.


22. Fairstein. 26.


23. Shapiro, Joseph. “Myths that make it hard to stop campus rape.” Morning Edition. 4 March 2010. http://www.npr.org/templates/story/story.php?storyId=124272157


24. Grissom, Brandi. “Thousands of Rape Kits Sit Untested for Decades, but Change Would Be Costly.” The New York Times. 27 January 2011. http://www.nytimes.com/2011/01/28/us/28ttkits.html


25. Tofte, Sarah. “Making Rape Victims Pay.” Human Rights Watch. 13 May 2009. http://www.hrw.org/en/news/2009/05/13/making-rape-victims-pay


26. Ibid.


27. Associated Press. “‘Jane Doe’ Rape Kits Going Nationwide.” Fox News. 13 May 2008. http://www.foxnews.com/story/0,2933,355485,00.html


28. Fairstein. 273.