SEXUAL ASSAULT: THE SECOND VICTIMIZATION
Cassie C. Spencer
(From: WOMEN, THE COURTS, AND EQUALITY Edited by LAURA L. CRITES &WINIFRED HEPPERLE 1987)
Women live in an environment of violence. It occurs in the form of "street hassling" and noxious male comments about a woman's body; it occurs with exhibitionism; it occurs with wife battering, incest, and rape (Leidig, 1981 ). Even though numerous studies have indicated an underreporting of these violent acts, the available numbers regarding their occurrence are staggering. In a randomly selected sample of 930 women, 44% reported at least one experience of completed or attempted rape (Russell, 1984). Based on data from the same survey, it was estimated that there is at least a 46% chance that a woman will become a victim of rape or attempted rape sometime during her life (Russell, 1984). Rape statistics have been rising since 1933 (except for a brief interlude during the 1940s ), and the rate of increase for incidents of rape is greater than other crimes of violence (Bowker, 1978, 1981 ).
Children are also vulnerable. In fact, Russell's research indicated that 38% of the women respondents had at least one experience of incestuous and/or extrafamilial sexual abuse before they reached the age of 18 (1984). Judith Herman (1981) cites numerous other surveys and personal accounts that indicate sexual abuse to be a problem of potentially monumental proportions (Kinsey et al., 1953; Landis, 1956; Gagnon, 1965; Finkelhor, 1979; Maisch, 1972; Lukianowicz, 1972; Meiselman, 1978; Justice and Justice, 1979; Angelou, 1970; Butler, 1978; Brady, 1979).
These percentages are frightening, but the impact becomes even more alarming when compared with the low numbers of these crimes that are reported. Russell's survey (1984) found that only 9.5% of rape cases, 6%
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of extrafamilial child sexual abuse cases, and 2% of incestuous child sexual abuse cases are made known to police. It has been speculated that one of the reasons for this underreporting may be the treatment these victims receive within the legal system (Karmen, 1982; Robin, 1977). For instance, a rape victim's past sexual relationships historically have been fair game for defense attorneys to reveal in the courtroom as proof that the woman's testimony was questionable and that in reality she consented to the violent act. Many cases of child sexual abuse have been dismissed because children were not "competent" to testify, or they had been badgered and confused on the witness stand until the jury no longer perceived them as credible. Young girls also have been charged in court with being exceptionally seductive, thereby diminishing the adult males , responsibility for having sexually molested them.
However, the women's movement has raised the public consciousness and, as a result, there has been a recent trend in many states to make changes in legislation and courtroom procedures to address these issues.
: Forty states now have "rape shield " laws that bar evidence of a woman's sexual history from the court proceedings ( Oakland Tribune, 1985). In an effort to curb child sexual abuse, 47 states have introduced or passed legislation that alters traditional legal procedures, including the allowance of videotaped testimony and the abolishment of requirements to prove children "competent" to testify ( Wall Street Journal, 1985).
But will these efforts make a difference in decreasing the second victimization that occurs in the courtroom? This chapter will address this question by reviewing the attitudes regarding women, children, and sexual assault, studies of legislative reform, and their impact in the judicial arena.
Myths and stereotypes about women have persisted since the beginning of time. Two in particular seem to dominate cases of rape: woman as "virtue" and woman as the "lying temptress."
The misogynist image of the woman as the "lying temptress" in Western culture can be traced to the story of Adam and Eve in the Garden of Eden (Tong, 1984). Eve seduced Adam, destroyed his innocence, and was punished by having to bear children in pain. Augustine, the Bishop of Hippo, expanded upon this story and concluded that woman's one role in life was procreation, that pleasure in
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sex was sinful, and that the hope for woman was in resurrection where her body then will be minus reproductive organs (Tong, 1984). Echoing these "teachings," religious leaders through the ages "claimed that because of her sexual being and reproductive function, woman was less rational and less spiritual than man; that is, less able to distinguish between truth and falsity" (Tong, 1984).
This image of the woman as a liar has tainted rape laws and produced stringent rules of evidence and requirements for proof (Tong, 1984; Robin, 1977). It also has influenced the minds of jurors. A woman perceived as "virtuous" on the witness stand can have more hope that the rapist will be convicted. Barbara F. Reskin, a professor of sociology at the University of Michigan, conducted an investigation of jurors' attitudes and discovered they were more likely to treat a case of rape as serious if the woman appeared "chaste" ( Oakland Tribune, 1985). However, if a woman is perceived as the "seductress," chances of a conviction are slim. Existing data shows that conviction rates for rape are lower than for other felonies (Bulkley, 1981; Lloyd, 1981). It would appear that jury attitudes more often favor the defendant and not the victim (Tong, 1984; Robin, 1977; Brownmiller, 1975; Bailey and Rothblatt, 1985).
Rape is the only crime where the victim must prove nonconsent. This requirement also is grounded in the myth that women lie and make false reports. This attitude was most explicitly expressed by the cautionary instructions given to jurors that were based on words of Sir Matthew Hale, Lord Justice of the King's Bench, in the seventeenth century. He said that a rape accusation is "easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent. " Although these instructions have been abolished in most states, the beliefs still are perpetuated by the fear that men will be wrongly condemned and become victims of women's unjust accusations. In actuality, the data indicate that false reports of sexual assault are no more frequent than false reports of other crimes (Buckley, 1981; Lloyd, 1981).
Other dogmatic presumptions that have convicted women of "consenting" to the rape have been the Freudian theory regarding women, namely, that they are masochistic by nature, so they welcome rape to satisfy their self-destructive needs; that women in general have personality problems, are hysterical, and thus have no credibility; and that previous sexual relationships (particularly if they are viewed as nontraditional) are tantamount to nymphomania. In essence, women are lying
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when they cry "rape." These beliefs are summed up in the quote from a judge, "No woman can be raped against her will" (Marsh et al., 1982: 62).
The child victim of sexual abuse fares no better. She also is accused of "seducing" the perpetrator. An example is found in a quote from the popular book, Lolita, when the protagonist proclaims, "I had thought that months, perhaps years, would elapse before I dared to reveal myself to Dolores Haze, but by six she was wide awake, and by six fifteen we were technically lovers. I am going to tell you something very strange; it was she who seduced me" (Nabokov, 1966: 122-123). In addition, children, even more than women, are feared as liars, the meaning of which is softened with the argument that children are prone to fantasize, are easily persuaded and misled, and, therefore, cannot be credible witnesses.
All of the above attitudes represent the underlying problem of blaming the victim for the sexual assault (Leidig, 1981). It is important to understand why this occurs, because the basis for this phenomenon affects the effectiveness of legislative and courtroom procedural reforms.
BLAMING THE VICTIM
There are several reasons why rape victims may be blamed for contributing to or causing their own victimization. First is the influence of the "just world hypothesis " that affects our reaction to all victims. This hypothesis stems from our need to live in a world that we see as predictable. Thus we want to believe that fairness forbids that nasty things happens to nice people. The victim either wasn't nice or the victim precipitated the nastiness (see Kushner, 1981).
Another reason is that the sexual victimization of women is often seen in the courtroom through the male perspective. " A woman's behavior is not portrayed from a woman's point of view but from an understanding of women's behavior from a man's point of view" (Stanko, 1985: 92). Because of different socialization of men and women, visiting a man's apartment, accepting a ride home from a party, going out for drinks and dinner with a man, when viewed through the male lens, may be seen as a woman's invitation to sexual relations. "Women 's sexuality is seen as underscoring women's relationships to men; any 'occasional' release of male aggression towards women and
[begin page:]58 their sexuality can be portrayed as 'natural' behavior" (Stanko, 1985: 92).
Comments from judges underscore the influence of the male perspective on their view of rape victims. Examples include the Connecticut judge who dismissed charges against a man involved in a gang rape because of temporary impotence with the comment, "You can't blame someone for trying. This man tried and failed" (Ladies Home Journal, 1983: 145).
Finally, it is argued that blaming the rape victim permits the continuation of a social structure that controls and subordinates women (Leidig, 1981; Klein, 1981; Karmen, 1982; Marsh et al., 1982).
Sexual harassment, wife-beating, and rape are all crimes in which male offenders try to exert control over female victims. But victim-blaming (has the effect of) depoliticizing and personalizing acts that are inherently connected to the distribution of power and legitimacy of authority, and thereby obscures the sources and consequences of crimes against women [Karmen, 1982: 193].
In other words, rather than strive for attitudinal changes that would effectively stop the violence or threats of violence against women and children, and ensure economical, political, and psychological equality, blame is placed on the victim, and the sexual assault is either dismissed as never happening or as the victim having caused it. The woman/ child is lying, the woman/child seduced the perpetrator, or the woman is promiscuous and, therefore, must have consented.
The focus of rape reform law varies from state to state but, in general, has addressed these issues: redefining rape, establishing "degree" of rape, changing resistance and consent standards, barring evidence of previous sexual history, implementing tougher penalties, rewriting language so that it is "neuter," and deleting requirements for corroborating evidence. Many of these changes have taken place only within the past decade after years of archaic statutes.
It is no coincidence that this ameliorative mood followed on the heels of the women's liberation movement. Presumably, with these revisions, women have gained more power to obtain justice for their victimization. But have they? And if so, to what extent? The authors of the study of Michigan's rape reform laws imply that legislative changes are not
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enough and state that "criminal justice"-in particular the judicial process-is a system in which the behavior of participants is influenced more by informal norms and expectations than by external forces" (Marsh et al., 1982: 5). For example, in 22 states, rapists now can be sentenced with life imprisonment, and, in Mississippi, rape is punishable by death ( Oakland Tribune, 1984). Yet one study clearly revealed that the willingness to prosecute and sentence a rapist is still determined by judgments of a woman's character:
While some of the public attitude data support a "get tough " law-and- order approach to rape, judgements on specific rape situations suggest that this view applies only to "real rapes " and that there is a strong public defensiveness against innocent men being trapped in rape charges by vindictive or disreputable women [Williams and Holmes, 1981: 177].
A "real rape" has been distinguished from a nonrape for police officers by classifications of "unprecipitated " (good) and "precipitated " (bad) rapes (Tong, 1984). The "good" rape has all the elements prosecutors like to take into court: strong evidence of nonconsent such as victim injuries, the presence of a weapon, breaking and entering, and stranger- on-stranger rape. The "bad " rape is the acquaintance rape, the rape with no evidence of resistance, the rape of a prostitute. These distinctions reflect the societal and legal expectations for women to be chaste aud resist an attack to the utmost to "defend her treasure" (Brownmiller, 1975: 433). The fact seems to remain that substantive change is still dependent on public attitudes and society's distribution of power. This theory will be explored in more depth by examining the impact of major reforms that have focused on legal requirements that seem to have originated from the myths of women as liars and seductresses.
In the past, strict corroboration rules made it nearly impossible to obtain a conviction. For example, in New York, 2415 rape complaints eventually led to only 18 convictions. For this reason, most states now have either abandoned or modified the requirements (Tong, 1984; Robin, 1977). Yet eliminating the corroboration rule is one thing; obtaining convictions without it is another.
When a jury has only the word of the complainant against the defendant that a rape even occurred, the jury will experience considerable discomfort. That is, in a judicial system that systematically favors defendants, juries are going to have difficulty with uncorroborated rape cases [Tong, 1984: 105].
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In fact, Bailey and Rothblatt ( 1985) cite numerous court decisions requiring corroborative evidence for conviction (State v. Fisher [1973] 190 Neb742, 212 NW2d 568; United States v. Wiley, 492 F2d 547 [D.C. Cir. 10/12/73]; People v. Tucker, 363 NYS2d 180 [NY 1975]; People v. Rodriguez (1978) 58 III App3d 775, 16 III Dec. 187, 374 NE2d 1063; State v. Phillips [1979, Mo App] 585 SW2d 517; People v. Raker[1979] 75 III App3d 975, 31 III Dec. 650, 394 NE2d 852).
NONCONSENT AND SEXUAL HISTORY AS EVIDENCE
Regardless of statutes that have dropped the resistance requirement as proof of nonconsent and curtailed the allowance of sexual history as evidence, the basic question still rests on whether the sexual act occurred between two consenting adults. Interpretation of "nonconsent" in the initial rape laws meant the victim had to resist to the utmost in order to prove she did not want the sexual encounter .
In a leading decision on the meaning of "utmost resistance", the Wisconsin Supreme Court said the phrase requires "the most vehement exercise of every physical means or faculty within the woman's power to resist the penetration of her person, and this must be shown to persist until the offense is consummated," and it overturned the rapist's conviction in that case because the victim, facing a larger and stronger combatant, had simply tried to escape. The court ruled that "resistance is opposing force to force, not retreating from force" [Robin, 1977].
In some cases, these resistances resulted in death. "Rape has been the 1 only violent crime requiring proof of resistance by the victim " (Marsh et al., 1982: 21). Mary Ann Largen, policy analyst for the Center for Women Policy Studies in Washington, has been interviewing numerous judges and lawyers on the need for rape law reform. According to her research, the majority of states still retain the consent issue as a major element in the revised laws, although it has been modified to become the "relative resistive standard" (Largen, 1985). This means the woman no longer has to fight until the point of death or serious injury to prove nonconsent, but she still has to show some resistance whether it be screaming, bruising, or the like. For example, "one defense attorney recounted a case under the new law in which he requested the judge to instruct the jury that consent was implied because the victim did not scream when she was attacked. The judge granted the request " (Marsh et al., 1982: 59).
Ms. Largen analyzed three rape reform models. In Florida, force and
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consent continue to be key elements for the defense. In Georgia, as in most southern states, resistance is still required, and "reform " statutes reflect the old law mentality. In other words, a woman cannot do anything, or neglect to do anything, that would be construed as "asking
for it. " Michigan exemplified the most innovative change by turning the element of proof from the prosecution to the defendant. Rather than
victim resistance, "the statute regards evidence of coercion used by the actor, not of the victim's unwillingness, as tantamount to non-consent"
(Marsh et al., 1982: 23).
Court decisions regarding this issue range from the Indiana Supreme Court statement that "there is no requirement that a woman scream or physically resist when by such an act she may very well anger or frustrate her assailant and thereby endanger her life further" (Bailey and Rothblatt, 1985; Spaulding v. State [1978, Ind] 373 NE2d 165), to the overturned conviction of rape in a Hawaii Appellate Court because the
element of resistance required by statute was not established beyond a reasonable doubt (Bailey and Rothblatt, 1985; State v. Lama [1981, i Hawaii App] 624 P2d 1374).
In yet another case, a Manhattan judge ruled that "conquest by con job" was seduction and not rape (e.g., the man used deception and impersonation rather than physical force; the woman did not actively resist or struggle). The judge’s concluding statement in the decision: “Bachelors and other men on the make, fear not. It is still not illegal to feed a girl a line” (Robin, 1977)..
.One of the tactics used to prove victim consent was, and often still is, an in-depth examination by the defense of the woman's previous sexual life-style. The argument, validated by jurors' verdicts of "not guilty"for the defendant, is that if the woman is perceived as "promiscuous" or labeled a prostitute, she automatically is suspect and guilty of consent (Tong, 1984). The passage of "rape shield laws" would appear, on the surface, to eliminate this information from court proceedings. However , as with all laws, there are exceptions. In People v. Mandel ([1978, 2d Dept] 61 App. Div. 563,403 NYS 2d 63), the court acknowledged the statute making past sexual conduct inadmissible in sex offense cases. However, it referenced the exception to this legislation that such evidence may be admissible if it is relevant. Thus evidence that the complainant had engaged in sexual intercourse with men other than the defendants should have been allowed.
Other exceptions include a complainant's reputation for unchastity (McElveen v. State [1982, Fla AppDl] 415 So 2d 746); previous sexual
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conduct and actions similar to those displayed with the defendant (Winfield v. Commonwealth [1983, 225 Va 211, 301 SE2d 15]); complainant's prior sexual acts with men other than the defendant when the physical condition of the complainant is relied upon as corroboration evidence (State v. Murphy [1976] 134 Vt 106, 353 A2d 346); and prior consent by the complainant to sexual intercourse with the defendant (United States v. Kasto [1978, CA8SD] 584 F2d 268, cert. den. 440 UX 930, 59L Ed2d 486, 995 Ct. 1267).
Additional reasons for the admission of previous sexual conduct have been when the woman had a psychiatric history, a criminal record, a history of making rape reports, or a history of prostitution. With these allowances, there seems to be no recognition that regardless of previous sexual history and behaviors, even one experience can be rape if the woman does not want the sexual encounter .
Much of the admission of sexual history is based upon the judge's discretion; he can order an "in camera " hearing to determine the appropriateness of including this information in the trial proceedings. The following quote from a judge (who vowed he always ruled out such evidence) silences a victim's chances for justice as effectively as the pounding of a gavel: "What does sex past have to do with a case unless she's a prostitute? Or if she's out hitch-hiking with a short skirt and no bra, she asked for it and I'll admit [ that evidence]. That isn't past sexual history information and therefore it's not restricted " (Marsh et al. , 1982: 61).
The authors of the Michigan study of rape law reform state that "the occasional but continuing improper use of sexual history evidence would seem to reflect biases that are pervasive despite the legislative attempt to hamper judicial discretion" (Marsh et al., 1982: 61). Judges' attitudes do influence their decisions. One study of 38 Philadelphia judges who try rape cases revealed that their personal attitude toward the victim would affect their interpretation of the evidence (Bohmer , 1974).
Despite Michigan's rape shield law, which did reduce the importance of sexual history, three-fourths of the defense attorneys said they sought this information, and many were able to introduce it as evidence (Marsh et al., 1982). Once it is revealed, even if omitted from consideration by a sustained objection from the prosecution, the damage to the victim is done. A study into jurors' decisions regarding rape found that behaviors most likely to prejudice the jury against the rape victim included perceived promiscuity, keeping late hours, going alone into bars, use of
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birth control pills, giving birth to an illegitimate child, or having the same address as a boyfriend ( Oakland Tribune, 1984).
One breakthrough for women in proving nonconsent has been the recognition by the American Psychological Association in 1980 of the "rape trauma syndrome" as a legitimate disorder. One of the first studies of this syndrome was published in 1977 by Ann Wolbert Burgess and Lynda Lytle Holmstrom, who described the manifestations in two phases. The first is the acute phase of tremendous disorganization. The woman exhibits a wide range of emotions from shock to fear, anxiety, and anger. Primary feelings are fear of violence and death. Another reaction is to blame herself for the rape. She also experiences somatic reactions such as gastrointestinal pains, actual physical trauma like bruising and soreness, and skeletal muscle tension. The second phase is a more long-term process. Part of it involves reorganizing her life with motor activity such as changing residence or telephone number .
Nightmares are present as are numerous phobias resulting from the trauma (e.g., fear of being alone, sexual fears, fear of people behind them). With this recognition and legitimacy, it is argued that a display of these symptoms in a woman who reports rape should be admitted as evidence that sexual victimization has occurred.
Use of this diagnosis in the courtroom as proof of nonconsent has been controversial. It has been upheld in Kansas, Montana, and Arizona and denied in Minnesota, Missouri, and Oregon ( Oakland Tribune, 1985). Arguments for its use emphasize that it is a real psychological occurrence to rape victims and thus assists the credibility of the woman. Opponents contend that the symptoms are common, and could be related to other stresses besides rape. Yet the hope is that once allowed as testimony, the conviction rate will increase. As it stands now, jurors still appear reluctant to condemn the male victim as a rapistIunless the woman puts up a horrendous fight and her trauma is very ; physical and very visible. Judges also continue to be influenced by the i presence or absence of physical injuries. One judge stated that unless there was extensive physical trauma, a hostile vagina will not admit a penis (Robin, 1977).
The traditional definition of rape is "illicit carnal knowledge of a female by force and against her will (Black, 1968, emphasis added). This implies that in a legal marriage, no rape can occur because the offender is not "illicit. " The source of this comes from a statement by Sir Matthew
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Hale that a husband cannot be guilty of rape because of the consent and contract between a husband and wife and the consequent "wifely duty" to engage in sex when the husband so desires and demands (Tong, 1984). The reasons devised to support this edict have been that it prevents wives from making false complaints; rape laws are designed to protect women from evil strangers, not husbands; if women can charge husbands with rape, it will prevent their reconciliation; there would be insurmountable proof problems; and the state should not intervene in the sanctity of marriage (Tong, 1984; Morris, 1981).
Changes are being made, but it is a tedious process. In 43 states, women cannot charge their husbands with rape (Morris, 1981). Some decisions support the marital exemption rule (People v. Kubasiak [1980] 98 Mich. App529, 296 NW2d 298); others reject it. In State v. Smith ([1981] 85 NJ 193,426 A2d 38), a man can be convicted of the rape of a woman despite legal marriage where the act was accompanied by violence and the couple had been living separately, though not legally separated, for six years (Bailey and Rothblatt, 1985).
As a rule, however, states are beginning to question the rightness of the marital exception rule. "Many authorities are increasingly convinced that what makes rape wrong is not that it takes place outside the marital chamber, but simply that it is a blatant instance of nonconsensual sexual intercourse" (Tong, 1984: 960).
In summary, though it has not proven to be a panacea, rape reform legislation is nonetheless essential for the ultimate goal of justice. The study of Michigan's reform laws (Marsh et al., 1982) did show an increase in convictions and a lessening of the victim's trauma. However , it indicated also ( as did the other studies cited) that the woman's character and credibility still remain the central focus. Depending on each state's legislation, judges still can and are admitting sexual history as evidence. The burden of proof regarding consent still lies with the victim. Old attitudes remain to influence jurors' and judges' decisions. Woman are still at risk for "date rape" and "acquaintance rape," and beliefs persist that rape is easily charged and needs to be rigorously investigated to protect males from false accusations. It seems clear that other strategies aside from revised statutes are critically important. "If rape emanates from our social system and its race and sex-based inequality, the problem will not be substantially alleviated without radical social change, and ultimately a more egalitarian social system must be the goal of the anti-rape movement" (Williams and Holmes, 1981: 171).
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Recently, public outcry against child sexual abuse has escalated to unprecedented proportions. This rage has been channeled into two primary avenues to confront and end the atrocity: development and implementation of numerous prevention programs and legislative reform. Prevention programs seem to be beneficial in that they arm the child with both knowledge of potential dangers and limited measures to escape harm. It must be noted, however, that no study to date has measured the effectiveness of these efforts nor the possible damage to a child who says "no" to a perpetrator who is physically abusive as well. Additionally, the question must be asked as to why the responsibility for prevention of a violent act against children has been placed on the child? Why has not the focus instead been on stopping the perpetrator before the act can be initiated? It must be noted that 97% of the perpetrators of child sexual assault are men and 75% of the victims are girls (Rogers and Thomas, 1984). Again, the answer seems to lie in the maintenance of men's power over women and children. To stop the perpetrator effectively, as with rape, social equality is essential. "Real changes will only occur when 'primary prevention' is instituted-e.g. the reduction or elimination of sexism" (Leidig, 1981: 205).
Legislative reform in child sexual assault has assumed two primary objectives: increase the chances for conviction as well as the penalties for the crime and reduce the legal traumatization to the child. The first objective includes such revisions as incorporating tougher penalties and reporting requirements, abolishing age requirements as a qualification to be a competent witness, and abolishing requirements for corroborative evidence. The second objective is addressed by allowing videotaped testimony and providing exceptions to the hearsay rule. Many of these changes have been a step in the right direction, but a more in-depth look reveals that the overt goals are tainted and slowed by the attitudes and power control discussed at the beginning of this chapter.
Perpetrators of child sexual abuse, in the majority of states, can be prosecuted under both the criminal child sex offense statutes and incest statutes. The primary difference between the two is that many states limit the act of incest only to sexual intercourse; thus to prosecute sexual assault such as fondling or fellatio, charges also must be filed under the
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criminal child sexual offense provisions. Both are often invoked for purposes of plea-bargaining. Moreover, most incest statutes do not mention victim age requirements, while criminal child sex offense statutes limit the victim's age to anywhere from 11 to 17 (Kocen and Bulkley, 1981 ). There has been growing debate whether or not to repeal incest laws (Bulkley, 1981). Some arguments in favor of repeal are that the incest laws are redundant, provide lower penalties, and create more difficult proof problems (Wulken and Bulkley, 1981). Opponents argue that the incest statutes provide protection for some age groups (predominantly those 16 to 18) that are not included in many criminal statutes. While both sides have some validity, it would seem that what is needed is a statute that covers all the concerns ( e.g. , age definition of child sexual abuse, penalties, and so on). However, in outlining some problems that seem especially reflective of attitudinal bias, the following discussion will focus on the criminal child sex offense statutes.
Some of the major trends in the revision of laws include clearly defining sexual acts (as opposed to just labeling it "carnal knowledge'), instituting levels of penalties based on the age of the victim, and protecting children from family members as well as strangers (Kocen and Bulkley, 1981). These are improvements over previous legislation, and age-old attitudes are fading. But they are still present. For example, although adolescents. now are provided some protection where they were not before, the analysis revealed that 34 states reduce the penalty for child sexual abuse as the victim grows older. In some states, maximum penalties were only 1 to 1.5 years for victimization of an adolescent. This seems to reflect the attitude that women "ask for it. " As the girl child approaches womanhood, it could be deduced that there is a corollary increase in the belief that "she wanted it. " Consequently, the perpetrator is not as guilty and should not be punished as harshly.
A major reform has been the trend to eliminate the requirement of corroborative evidence in child sexual abuse cases. As discussed in Child Sexual Abuse and the Law (Bulkley, 1981 ), corroboration is a necessity either because it is required by statute or is needed to dispel myths surrounding child sexual victimization, or both. These myths consist of the fears that complainants frequently make false reports, that the judge or jury will automatically be sympathetic toward the woman or child and prejudiced against the accused, and that children are susceptible to overt or covert influences and prone to fantasize.
The findings of this report regarding the legal requirements for corroboration are as follows. Three jurisdictions mandate corroborative
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evidence for prosecution in all cases of child sexual assault. Three states require it for only some offenses ( e.g., statutory rape in Georgia and sexual assault against adolescents in Mississippi and Ohio ). In Texas, corroborative evidence must be introduced if the crime is reported six months after the event. Idaho requires corroboration when the "complainant's reputation for veracity and chastity has been im peached, " and Illinois requires it if the child's testimony is not clear and convincing. None of the other states requires corroboration, but in 11 states, it is judicially mandated if the child's testimony is inherently improbable or has been impeached.
Thus approximately 30 states do not require corroborative evidence for prosecution of child sexual abuse cases. The conclusion of the Bulkley report was that "the corroboration rule as a legal requirement is a rule whose time has passed" (Lloyd, 1981: 114). In practice, however, because of ingrained attitudes regarding children in general and their credibility in particular, chances of conviction may be slim if not impossible without it. In fact, the second most cited reason for not prosecuting intrafamily offenders was a lack of corroborative evidence; the first was incompetency of the child witness (Wulken and Bulkley, 1983: 3). A recent example of this was uncovered in the Report on Scott County Investigations (Humphrey, 1985), where a county attorney dismissed charges against 21 citizens accused of child sexual abuse. Although there was "no doubt that a number of children in Scott County were victims of sexual abuse"(Humphrey, 1985: 17), one of the compelling reasons for the dismissals was the lack of corroborative evidence, particularly as it was in conjunction with impeached credibility of the children.
Even if corroborative evidence is sought, it is elusive. Eyewitness testimony is usually nonexistent. Medical evidence is often scarce either because the sexual abuse took the form of something other than intercourse or the report was delayed for days, months, or sometimes years due to the psychological dynamics surrounding its occurrence. Behavioral indicators may have the most promise for use as corroborative evidence; however, the defense can, and often does, introduce doubt in the minds of judges and jurors. For instance, psychosomatic complaints are attributed to other stresses aside from sexual abuse. Play or behavior that includes sexual components inappropriate to the child's development level is termed "seductive" and "promiscuous." Suggestions to use expert testimony linking a child's testimony and other evidence to the "child sexual abuse syndrome" encounters due
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process problems relating to its use in criminal prosecution. The end result seems to be the child's word against the defendant's. In this type of battle, in most cases, the child will lose.
Twenty-three states now have abolished requirements that children be shown competent in order to testify ( USA Today, 1985). Nevertheless, even though the belief persists of their incompetency, recent research has introduced convincing evidence to repudiate this position. Gail S. Goodman and Vicki Helgeson (1986) report the following findings. Although children recalled less than adults, what they did recall was just as accurate. In fact, adults tended to make more errors than children. One of the biggest hesitancies in admitting children's testimony has been the firm conviction that children are open to suggestive comments and, therefore, will easily go along with statements that are untrue. But in Goodman's research, when leading questions were asked about the central event as opposed to peripheral events, children were as resistive to being misled as adults.
Time and again, though, children's competency and credibility are challenged. Part of this stems from a protective or defensive strategy to deny that the sexual molestation occurred. If it did not occur, the perpetrator cannot be held responsible.
This persistent belief that the child may be an incompetent witness may be perpetuated by legal tactics that are used with children. Goodman and Helgeson state that "while children can be accurate witnesses if handled properly, the adversary system is often harsh in its dealings with children" ( 1986). The harshness is evident in a variety of practices. One is repetitive interviews of the child regarding the molestation. It is argued that the numerous actors involved ( e.g., police, social workers, doctors, district attorneys) need this information firsthand for effective prosecution. Yet, requiring the child to repeat the events again and again borders on abusiveness and might confuse the child. Consequently, there is a trend to reduce the number of interviews for the child, but one study revealed that only one-third of the jurisdictions have procedures for joint interviews (Wulken and Bulkley, 1983).
Other traumas are encountered when the child must testify in court. As with any case involving adults, the defense has the right to cross- examine the child. The major goal of this procedure is to discredit the witness. Attorneys may attempt to confuse the child by the use of double negatives, "big" words, and difficult sentence constructions. ...A defense
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attorney's accusatory manner may intimidate the child. Furthermore, the attorney may undermine the child's confidence by asking about peripheral detail or about the specific order of events that occurred many months or years ago [Goodman and Helgeson, 1985].
The cross-examination can sometimes last for days. In the well- publicized McMartin Pre-school case in California, one child was cross- examined by seven different attorneys for 16 days ( Oakland Tribune, 1985c).
Many child advocates have passed or have attempted to pass legislation to prevent this type of psychological harm to the child victim. Some of these changes have been to replace the child's physical presence in the courtroom with a videotaped testimony; to take the child's testimony outside the presence of the jury or public ( one-third of the jurisdictions have procedures for this); or to be lenient in granting hearsay exceptions. For example, while hearsay exceptions have been allowed for some time (such as the "excited utterance" rule), many jurisdictions also are considering a "residual"exception (Goodman and Helgeson, 1986). With this, a judge may consider any statement by a child to be credible, no matter the time that has elapsed, and may permit an adult to testify about the child's utterance rather than requiring the child to testify. Some believe that this hearsay exception is one of the most effective changes that can be made in protecting children from the courtroom trauma (Steinhauser, 1986).
While these changes are innovative and have the child's best interests at heart, they may not withstand the legal tests of court decisions. Many critics of these legislative revisions claim that they violate the Fourteenth Amendment right to due process, the Sixth Amendment right to confront a witness, and the First Amendment right for the public to attend criminal trials. In the situation regarding the use of a videotaped deposition, it would seem that the defendant's Sixth Amendment rights would not be jeopardized. According to the U.S. Supreme Court decision in California v. Green (399 U.S. 149 [1970]), three principles underlying the right to confrontation were identified: the need to subject the witness to the oath, the usefulness of cross-examination in sorting out the truth, and the need for the jury to observe the witness' demeanor in order for the jury to evaluate his or her veracity (Bulkley, 1981). All of these principles seemingly would be upheld through the videotaped deposition. This can be arranged one of two ways. In the first, the child would be examined and cross-examined with the defendant being
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physically present. The intention of this tactic is to prevent the child from testifying in a stressful and overwhelming courtroom environment. In the second method, the child is examined and cross-examined, but the defendant would not be within the child's sight. Instead, the defendant would view the proceedings behind a two-way mirror or on a monitor and be able to halt the testimony with a buzzer in order to
I confer with counsel. The additional advantage to this would eliminate the necessity for the child to face the perpetrator. Problems arise with both these strategies, however. Many courts are not yet equipped to tape testimony with the use of two-way mirrors or monitors. In addition, the ability of a jury to encounter the child face-to-face may be extremely valuable for eliciting sympathy and thus hopefully a conviction
(Steinhauser, 1986). Finally, if courts were to begin using two-way mirrors for this process, this practice may not hold up to constitutional challenge. Based on an appellate decision in United States v. Benfield (593 F2d 815 [8th Cir., 1979]), the right to confrontation may require a face-to-face meeting. In this case, a kidnap victim was extremely traumatized and subsequently hospitalized on a psychiatric ward as a result of the crime. Her testimony was videotaped, but the defendant was forced to observe behind a two-way mirror. The appellate court held that the defendant's right to confrontation had been violated. " A videotaped deposition supplies an environment substantially compar-
able to atrial, but where the defendant was not permitted to be an active 1 participant in the video deposition, this procedural substitute is constitutionally infirm " (Melton, 1981: 189).
T o diminish some of the stress that occurs from repeating embarrassing or traumatic events in front of a large audience of strangers, some legislation has been passed to limit the number of persons present in trials involving a child witness. However, two constitutional issues come into play: the right of the defendant to a public trial and the right
of the public to know about criminal trials. There have been several rulings regarding these rights and the constitutionality of closed trials during testimony of child sex offense victims (State ex. reI. Oregonian Publishing Co. v. Diez, Or., 613 F. 2d 23 [1980]; R.L.R. v. State,487 F.2d 27 [Alaska 1971]; Richmond Newspapers, Inc., v. Virginia,448 U.S., 100 S. Ct. 2814,2840[1980]; Gannettv. DePasquale,443 U.S. 368, 388 n. 19 [1979]; State v. Sinclair, No.21375 [S. Ct. S.C. Jan. 13,1981]; and Globe Newspaper Co. v. Superior Court, 1OlS. Ct. 259 [1980]). The general conclusion of these rulings is that "while these issues are 0 .1certam y not settled, there seems to be ample reason to doubt the
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constitutionality of attempts to alter standard criminal procedure in order to protect child victims " (Melton, 1981: 194).
In summary, there have been numerous attempts to protect children from traumatic courtroom events that stem from a system designed primarily for adults. Some have been successful while most have had little or no impact. Statutes have been revised to eliminate the age requirement for competency, but children are still deemed suspect. Most jurisdictions do not require corroborative evidence but, without it, chances for a conviction are slim to nonexistent. Use of a videotaped deposition is constitutionally questioned and, in most cases, would still not prevent the child from having to face the perpetrator when testifying against him. Although some judges may be successful in clearing the courtroom when the child testifies, this action is subject to appellate challenge. The one bright light is the hearsay exception; perhaps the child will never have to take the witness stand. In most cases, however, this will only be done if there is sound corroborative evidence (e.g., medical indications of physical assault) to support the hearsay testimony. Yet, as indicated earlier, this type of corroborative evidence, particularly in intrafamilial sexual abuse cases, is usually scarce.
What can be done then to lessen the emotional shock and wounds children may experience in the legal arena? Some suggestions have focused on increased power for the judge. In other words, it may be beneficial to give judges specific statutory authority to protect children from abusive and intimidating tactics, limit the length of cross- examination, allow frequent rests, permit a supportive adult nearby, and allocate money to remodel courtrooms to make them less intimidating (Girdner, 1985). If these changes are enacted, the question remains as to their constitutionality. And if they are ruled constitutional, the question must be asked will judges utilize them and adhere to their intent? It is hoped that the answer will be yes.