April is Sexual Assault Awareness Month. I am writing this article in an effort to raise public awareness about this crime.
Sexual assault is a pervasive problem in our community. It is also a problem that our society tries to rectify by imposing significant penalties. Most of the felony sexual assaults perpetrated in Wisconsin are addressed by two sections of the criminal code. Sec. 940.225 criminalizes nonconsensual sexual contact perpetrated against adults and Sec. 948.02 penalizes sexual contact with children under 16 who are legally incapable of consenting to sex.
Each of these statutes break sex crimes down into “degrees” with the penalty imposed for each degree being dependent upon the amount of force used and the severity of any injury. Each degree that constitutes a felony may entail a lengthy prison sentence. For example, 3rd degree sexual assault, the lowest felony offense under Sec. 940.225, carries a maximum penalty of ten years in prison.
Notwithstanding the seriousness with which society views sexual assault, it is one of the most difficult crimes for law enforcement and the court system to deal with. The vast majority of sexual assaults are never reported and many that are reported go uncharged.
In this country, a person cannot be convicted of a crime unless guilt can be proven beyond a reasonable doubt. This rule applies, without exception, to all crimes. Even if all twelve members of a jury think a defendant probably committed the crime they are required to find the defendant not guilty. A guilty verdict must be unanimous. Even if only one member of a jury is unconvinced of the defendant’s guilt a conviction is not possible. Responsible prosecutors will not charge a case unless they believe guilt can be proved.
A variety of factors conspire to make convictions in sexual assault cases more difficult than in the run of the mill criminal case. A common misconception is that most sexual assaults involve a stranger forcing sex on a woman. The reality is that the vast majority of sexual assaults involve perpetrators and victims who are acquaintances. In fact, it is quite common for the victim to be related to the assailant.
Acquaintance rapes, in their turn, give rise to a host of other problems that increase the difficulties of the prosecutor. As an example, victims of a friend or relative are often reluctant to report the crime. This leads to the very common situation of a delayed report of anywhere from a few days after the assault to years. Delayed reporting plays into the defendant’s hands because he will invariably point to the delay as a reason to not believe the victim.
In addition, to be assaulted by someone you know, magnifies the traumatic effect of being victimized. Trauma often distorts memory. As a result, victims make piecemeal disclosures as time goes on and additional details come to them. This also creates an opportunity for a defendant to tell a jury that because the victim’s version of the incident varies from time to time, she must be lying.
Other dynamics are at work when the victim and defendant had a close relationship prior to the assault. The victim may have lingering feelings of loyalty toward the defendant which cause her to recant her story or even to testify on behalf of the defendant. The victim could well be under pressure from family or friends to drop the charges. The victim can also have a sense of acute embarrassment or even feelings of guilt that make it difficult to testify.
In acquaintance rapes there normally is no physical evidence to corroborate the victim’s statement. If there were injuries delayed reporting ensures that they will be healed by the time the police learn of the assault. For the same reason it is very rare that there will be DNA evidence. Even if there is DNA evidence it can be less than convincing because in acquaintance rapes the defendant can always say the victim consented to sex. Because there are usually only two witnesses to a sexual assault, the victim and the defendant, it becomes a case of one person’s word against another’s.
Police and prosecutors learn about these dynamics on the job. We strive to counter the negative effects of these factors by conducting thorough investigations and engaging expert witnesses to educate jurors about these problems. Nevertheless, the burden of proof combined with jurors’ unrealistic expectations of victim behavior and other evidence combine to make sexual assault charges a very tough sell.
If we are going to make progress in the fight against this serious wide spread societal problem the public must be aware of the true nature of sexual assault. You can help by keeping in mind the factors that make sexual assault such a tough nut to crack. When the subject comes up in conversation, be sure to point out the circumstances that militate against easy resolution of this issue. If you are aware of an unreported sexual assault encourage the victim to come forward. If you have the opportunity to sit on a jury, apply healthy skepticism to attempts to tear down the victim’s credibility.