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R A P E V I C T I M S A R E A C L A S S O F P E R S O N S O F T E N D E F I N E D B Y G E N D E R Revised

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Every two minutes, somewhere in America, someone is sexually assaulted. 1, 2 One out of every six American women has been the victim of an attempted or completed rape in her lifetime. 3 Only one in 50 ...

Every two minutes, somewhere in America, someone is sexually assaulted. 1, 2 One out of every six American women has been the victim of an attempted or completed rape in her lifetime. 3 Only one in 50 women who have been raped reports the crime to the police.4

Although both women and men may be victims of domestic violence, sexual assault, and stalking, women are the victims of the vast majority of these crimes. According to the Bureau of Justice Statistics, more than 85% of violent victimizations by intimate partners between 1993 and 1998 were perpetrated against women. Women are between 13 and 14 times more likely than men to be raped or sexually assaulted; for instance, in 1994, 93% of sexual assaults were perpetrated against women. Four of five stalking victims are women.

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R A P E V I C T I M S A R E A C L A S S O F P E R S O N S O F T E N D E F I N E D B Y G E N D E R Revised Document Transcript

  • 1. Rape Victims Are Class Of Persons Often Defined By Gender RAPE VICTIMS ARE A CLASS OF PERSONS OFTEN DEFINED BY GENDER: Compiled by Dr. Janet Louise Parker “I discovered long ago that among the most effective advocates I have seen are the survivors, those who have channeled their pain and anger into activism to achieve lasting reforms.” Attorney General, Janet Reno, August 15, 1996Every two minutes, somewhere in America, someone is sexually assaulted. 1, 2One out of every six American women has been the victim of an attempted orcompleted rape in her lifetime. 3 Only one in 50 women who have been raped reportsthe crime to the police.4Although both women and men may be victims of domestic violence, sexual assault,and stalking, women are the victims of the vast majority of these crimes. According tothe Bureau of Justice Statistics, more than 85% of violent victimizations by intimatepartners between 1993 and 1998 were perpetrated against women. Women arebetween 13 and 14 times more likely than men to be raped or sexually assaulted; forinstance, in 1994, 93% of sexual assaults were perpetrated against women. Four of fivestalking victims are women. Data on male victimization do not show that malesexperience comparable victimizations and injury levels, do not account for women whoact in self defense, and do not measure financial control, intimidation, and isolation usedby perpetrators of domestic violence against women.The gender issue is foremost in sexual assault issues, and is usually background ingeneral victimization. The unique cultural bias and shaming that accompanies rapecases needs its own focused opposition. The history of rape law is a history of the lawused as a tool to protect rapists, rather than the raped. The anti-rape movementconfronts, as it must, the cultural myths that uniquely exist in the context of rape.Manipulation of these myths, along with humiliation and victim blaming, are typicalinformal defenses to rape charges. Blaming victims in rape cases may be an effectivemeans to secure acquittal. In contrast, blaming a robbery victim is typically ineffectivebecause robbery is unaccompanied by the same pernicious cultural myths. The natureof stigma and abuse in rape cases is profound and unique; a criminal process thatmistreats and excludes other types of victims also inflicts secondary victimization.In 2002, there were 247,730 victims of rape, attempted rape or sexual assault.5 One outof every six American women have been the victims of an attempted or completed rapein their lifetime (14.8% completed rape; 2.8% attempted rape). A total of 17.7 millionwomen have been victims of these crimes.6 In 2002, one in every eight rape victimswere male.7 93% of juvenile sexual assault victims knew their attacker; 34.2% werefamily members and 58.7% acquaintances. Only seven percent of the perpetrators werestrangers to the victim.8 1
  • 2. Rape Victims Are Class Of Persons Often Defined By GenderOne of the most startling aspects of sex crimes is how many go unreported. The mostcommon reasons given by victims for not reporting these crimes are the belief that it is aprivate or personal matter and that they fear reprisal from the assailant. • In 2001, only 39% of rapes and sexual assaults were reported to law enforcement officials — about one in every three.9 [1999 NCVS] • Approximately 66% of rape victims know their assailant.10 • Approximately 48% of victims are raped by a friend or acquaintance; 30% by a stranger; 16% by an intimate; 2% by another relative; and in 4% of cases the relationship is unknown.11 • About four out of ten sexual assaults take place at the victim‘s own home. More than half of all rape/sexual assault incidents were reported by victims to have occurred within one mile of their home or at their home.12 • In one study, 98% of males who raped boys reported that they were heterosexual.13 • Rapists are more likely to be serial criminals than serial rapists. In one study, 46% of rapists who were released from prison were rearrested within 3 years of their release for another crime -- 18.6% for a violent offense, 14.8% for a property offense, 11.2% for a drug offense and 20.5% for a public-order offense. 14 • 61% of rapes/sexual assaults are not reported to the police. Those rapists, of course, never serve a day in prison.15 • So, even in the 39% of attacks that are reported to police, there is only a 16.3% chance the rapist will end up in prison. Factoring in unreported rapes, about 6% of rapists—1 out of 16— will ever spend a day in jail. 15 out of 16 will walk free. 16Rapists are predators. Just like animal predators, they seek out the weakest and/ormost vulnerable prey. Rape is not about sex, it is an act of brutal violence. Rape causespain and suffering in the victim that may last a lifetime. It eats away at the soul anddestroys the quality of life. FBI estimates indicate that only 10 percent of rapes arereported. Of those reported, in less than 25 percent are the rapists arrested. Of thosearrested, only about 3 percent are charged. Of those charged, no more than 35 percentare convicted. In other words, most rapists are not caught.17 According to The NationalCoalition Against Sexual Assault false rape reports only happen 2% of the time. Thats a98% chance that no matter how strange it sounds to you the rape isnt being fabricated.Delayed reports also are common, particularly in acquaintance rapes. The majority ofmental health professionals surveyed (84 %) agreed that contact with social serviceproviders re-traumatizes rape victims. 18 2
  • 3. Rape Victims Are Class Of Persons Often Defined By GenderSome reasons why women do not report rape seem are the fear of:1) Ridicule2) Personal questions asked by police investigators3) Humiliating medical examinations4) Publicity5) Testifying in court6) Fear that sexual past will come out in court7) The victim has the burden to prove that the attack was forced, against her will, andthat she resisted the attack.8) Justice systems inability to put the criminal away9) Retaliation from assailant or his friendsThese are real concerns that must be overcome before rapists may be brought tojustice. Rape statistics show that Rapists are on an ascending scale of violence witheach assault. More than 50% of all rapes occur in the home of the victim. More than93% of the time, the assailant and the victim are of the same race.The mass media represents males in superior social and physical positions and womenas helpless and vulnerable. For example, in films, women are often depicted not only asvulnerable victims, but as victims who, once raped, degraded and dehumanized, cometo accept this treatment and grow to love their attackers.Myths have a manifest purpose of legitimizing aberrant behavior, such as rape. Studieshave shown that women as well as men believe in many rape myths and are arousedby rape depictions. For example, some men believe that women will respond to sexualforce even if they initially refuse sexual advances. “All sexual assault is an act of aggression, regardless of the gender or age of the victim or the assailant. Neither sexual desire nor sexual deprivation is the primary motivating force behindsexual assault. It is not about sexual gratification, but rather a sexual aggressor using somebody else as a means of expressing their own power and control” Nicholas Groth, a clinical psychologistAnother myth is that women can resist rape of the really want to. First of all, men havebeen raised differently than women. They have been trained to be physical and areusually stronger and faster than women. Likewise, women have been traditionally raisedto be passive, weaker, and submissive to men. Such socialization enhances the 3
  • 4. Rape Victims Are Class Of Persons Often Defined By Genderpossibility of a successful rape. In addition, the rapist chooses the time and place for thecrime, usually when the woman is in a vulnerable situation.Many people believe the myth that rapes are committed by strangers; however, in fact,prior relationships are usually present in rape cases. About half of rapes of adult womenwere committed by men who know their victims and data show this may be as high as80%.Another myth is that women falsely cry rape. No doubt this has occurred, but it is rare,data shows that is more likely that women will not report a rape that has occurred.Statistics show that only 16% sought medical treatment and 40% of rape victims wereexamined more than 24 hours after the rape. Of these rape victims only 2/3rds tolddoctor they had been raped.19Delayed reporting to hospitals and/or police is much more likely in non-stranger rapethan stranger rape.20 In the ―Victim Reporting Study - Beth Israel Hospital RapeCrisis Intervention Program in which 1000 rape victims were interviewed. The statisticsshowed that in Stranger rape 90% of rape victims reported in less than 24 hours. Innon-stranger rape 90% reported after 1 week or more. So reporting by victims of non-stranger rape is more delayed than reporting by victims of stranger rape. 21All women want to be raped is a myth that has been romanticized in the media.Romance novels often portray a sexual attack where the woman "melts into passionateacceptance." While it is true that some women have rape fantasies, these fantasiesusually do not center on force or pain but on being "swept off ones feet" by a handsomestranger into a sexual liaison that one would not ordinarily entertain.It cant happen to me is delusional belief that many women hold. Accepting the myththat rape victims are always young and attractive, leads many women to believe theyare unlikely victims since they are not desirable. Remember rape is not a crime of sex; itis a crime of violence. Sexual attractiveness is not a trait considered by rapists whenthey are stalking victims.Becoming the victim of a crime leaves victims – and those around them – in a statewhere they are not thinking as clearly as they usually do, and they may feeloverwhelmed. There is often financial loss and physical injury connected withvictimization, but the most devastating part for many victims is the emotional paincaused by crime. It is difficult for many victims to understand that someone else wantedto hurt them. The experience of becoming a crime victim can shatter a person‘s life in avariety of ways.Becoming the victim of a crime is a major life stress. The victim may feel veryuncomfortable (in a state of "crisis"). It may be difficult for her to easily restore a senseof balance in life. She may not be able to think clearly about what has happened, andher feelings about the crime may be very strong. It can take a long time and a lot ofwork to get back to the point where she feels comfortable again. Often rape victims are 4
  • 5. Rape Victims Are Class Of Persons Often Defined By Gendernot be as trusting of other people, as before or may be afraid to do the things shenormally does, or go to the places she normally goes. Victims may experience shock,disbelief, and/or denial. Many victims will find it difficult to believe (or know) that theybecame the victim of a crime, or they may pretend that it did not happen at all. This maylast for only a few moments or it may go on for months — even years. Victims oftenassume a more "childlike" state, and may need to be taken care of by others, at least fora little while. In drug-facilitated rapes, the additional deprivation of cognition during theassault, combined with anterograde amnesia afterwards, subjects the victim to anextreme form of powerlessness which is profoundly traumatic.22Crisis intervention and supportive counseling help victims move toward a new balancemore effectively, but it is not an easy process. It is very important that the rape victimfeel supported emotionally during this period.A sexual assault can involve physical injuries or damage to the victim‘s body. Some ofthese injuries are visible and some are not. It may not be possible to see the physicalinjuries caused by a sexual assault or injuries that are covered by clothing or an injurythat happens inside the brain. Do not assume that a person is not injured simplybecause the injury is not visible. As a result of the crime, some victims may experiencehealth-related problems such as headaches, stomach aches, etc. A person who alreadyhas a disability may find that the disability becomes more severe after the crime. Evenwhen the physical wounds caused by crime have healed, the victim may continue toexperience pain or discomfort for a period of time.Unequal Treatment Based on Class "THE SECOND RAPE"The disregard of victims needs by providers can so closely mimic victims experiencesat the hands of their assailants that secondary victimization is sometimes called "thesecond rape" or "the second assault." 23Because most victims of drug-facilitated rapes have no memory of the sexual assault,people may mistakenly minimize the trauma. Victims feel, powerlessness, andhumiliated by not knowing what was done to them. 24People may disbelieve the rape victim, ridicule her, abandon, blame, ostracize,sabotage, threaten, betray her, or side with the rapist against her. These painful anddangerous reactions can come from family, friends, and authorities as well as frompeople associated with the rapist. Many people fault the rape victim for what she mayhave done before, during, or after. The most important thing for a counselor/friend to dois believe the person when they tell you that they believe they were drugged and raped.Because most victims of drug-facilitated rapes have no memory of the sexual assault,people may mistakenly minimize the trauma. Victims feel powerlessness, andhumiliated by not knowing what was done to them. 25 5
  • 6. Rape Victims Are Class Of Persons Often Defined By GenderIt fact, its particularly devastating to rape victims when youre treated badly by the verypeople you expected would help you. For many victims, witnesses and their familymembers, the emotional injuries may be the most difficult and long-lasting effects ofbeing the victim of a crime. Many victims say the betrayal of these experiences is sopainful that it was worse than the rape itself. Thats why, in the literature on rape, this alltoo common abusive treatment of rape victims has been given the name, "the secondrape".Social injuries are those caused by society. 26 A social injury occurs when the victim istreated insensitively, does not think anyone cares or is not able to get the help sheneeds. Anyone can cause a social injury: a friend or family member, a law enforcementofficer, a prosecutor, a member of the clergy, or a counselor or other service provider,who may not believe the victim who reports a crime, may not help the victim, or may nottreat the victim with dignity, compassion and respect. If a victim is treated with dignity,compassion and respect, she may have less difficulty dealing with these immediate andlong-term crisis reactions. If she is treated poorly, these reactions may be made worse.When such reactions are worsened, the actions of others are called the "social injury."Some examples of social injuries are as follows: • The law enforcement officer or a family member may not believe the victim when she tries to report a crime. There is a tendency of the police to view complaints of rape as unfounded if they believe that the victim was intoxicated at the time (Lopez, 1992). 27, 28, 29 • For a crime victim with a disability, in particular, the social injury may occur when the victim realizes that other people may not believe her simply because of her disability. • The story about the crime may be reported in the newspaper, on the television or radio, or may be a source of "gossip" in the community. This can embarrass the victim, especially if the facts are reported incorrectly, if personal information about the victim is given, or if the victim is made to appear foolish. • Family, friends or even a clergy member may not be helpful or understanding. They may "blame" the victim (not always on purpose) for what happened or they may not want the victim to talk about it because it could cause the family shame. • Doctors or nurses may not always identify physical injuries as being crime- related. • Other sources of social injury include mental health professionals, social service workers, victim service workers, schools or educators, victim compensation systems, disability program workers, and employers. 6
  • 7. Rape Victims Are Class Of Persons Often Defined By Gender • Anyone who comes in contact with a victim can cause a social injury, through lack of information, lack of awareness of victim trauma, or by treating the victim without respect, dignity or compassion.In addition to being terribly sexist and wrong, these all too common abuses of rapevictims are also very dangerous to the victim. These abusive reactions drive rapevictims into deepening isolation and despair. When these abuses gather steam, theycan turn the victims whole social or family group against her. This can easily or to theloss of the victims connections to help. The disbelieving, blaming, and ostracizing ofrape victims is also dangerous to all women and girls. Driving rape victims intoisolation and despair is one of the ways a male dominated society supports the ongoingexistence of rape.Here are some of the reasons that alone or in combination that people mistreat rapevictims. Some people side with the rapist and mistreat the victim because: We still livein a male dominated society in which men and their organizations control most of thepower. Rape itself is a crime of dominance. After a rape occurs, the sexist, male viewsof rape frequently resurface with a vengeance. These views easily gather steam, joinforces with the authority of powerful male dominated institutions, and if not dealt with,will almost always lead to the protection of the rapist and an easy overwhelming of thevictim.In addition to the biases of sexism working against the victim, its just plain easier forpeople to side with the rapist. Remember, in most rapes the rapist and the victim doknow each other. Once the victim makes the charge of rape, the people around both thevictim and the rapist are forced to take sides. Its almost always easier to take the sideof the rapist. If people believe the rapist, they can simply abandon the victim to fend forherself. But if people believe the victim, they then have to go up against the rapist andtake action against him. Sadly, many people just dont have the courage or strength ofconviction to stand up to the rapist and his powerful allies. The rapist has a criminalmentality and he is willing to lie, manipulate, threaten, and bully others once the chargeof rape is made. The victim, on the other hand, is wounded and often too weak todefend herself. In addition, she is not a criminal and as such she is not willing to bully orintimidate others who dont support her. Once the rapist starts bullying, lying, andrallying his buddies to his side, even the victims supporters often become afraid and fallsilent in their defense of the victim.Once the charge of rape is made all the old sexist stereotypes of rape begin to surface.The old ideas about what is proper behavior for a female are so extremely limiting thatpeople can always find a way to blame the victim. She was out too late, acting too sexy,too innocent, too assertive, not assertive enough, drank too much, too bitchy, too stupid,or too aloof. It simply does not matter what the woman or girl was doing when she wasraped. These old constrictions on female behavior provide ample and convenient coverfor those who want a way out of having to stand up against a rape. Authorities too oftendont take rape seriously. When authorities dont take the rape seriously, people aroundthe victim get the message they dont have to take the rape seriously either. Once 7
  • 8. Rape Victims Are Class Of Persons Often Defined By Genderauthorities show they arent taking the rape seriously, any support the victim has beenable to maintain generally begins to erode rapidly.Taken alone or together, these continuing manifestations of sexism in society make it somuch easier for cowardly people to accuse the victim of lying rather than to accuse aman of rape. Erosion of the rape victims support usually doesnt happen right away. Infact, initial reactions to rape victims are often good. Authorities usually take an initialreport. Friends of the victim usually start out by accompanying and supporting thevictim, and family members often initially show great concern. It generally takes a littletime for the perpetrator to start organizing his own support and begin bullying, lying, andretaliating in a way that erodes the victims initial support. This lead time gives the victimand her advocates an opportunity to prevent the buildup toward targeting the victim. Thenegative reactions in the rape victim‘s vital relationships and social groups turn againstthe victim and then its much more difficult to correct them. “Crime victims’ rights laws strive to give victims’ standing in the criminal justice system, which is all about them, but has traditionally been without them.” State Senator William Van Regenmorter, Chairman of the Judiciary CommitteeMany rape victims have a very difficult time deciding whether or not to report the rape topolice. In fact, in the United States less than one out of six rape victims report the rapeto police. And very few of these victims report the rape right away. This is tragicbecause the criminal justice system has more power to help rape victims than any otherinstitution. The criminal justice system, and only the criminal justice system, has thepower and authority to do a criminal investigation of her rape, and to arrest, convict,punish, and remove the rapist from society. The criminal justice system is the onlysystem that can intervene with force when her safety is threatened. The criminal justicesystem is also the only system that can put the criminal investigation findings andtestimony on the public record. That record of truth finding is essential for justice. Andjustice is essential to her healing and to the healing of the community. Justice is alsoessential to stopping future rapes. As a rape victim she has a right to have this immensecriminal justice system powers work for her.Drug Facilitated Sexual Assault Victims Are Treated DisparatelyThe current law is wholly insufficient to address the problems of drug assisted rape andthe problems confronted by the victims of such a rape. Drug-facilitated sexual assault isnot a new phenomenon. Experienced law enforcement officers and advocates knowthat alcohol is the most common drug used to facilitate sexual assault. Alcohol has beenused as a method to facilitate sexual assault for years and remains the most widelyused drug today. 8
  • 9. Rape Victims Are Class Of Persons Often Defined By GenderRape drugs make it relatively easy for rapists to gain control of their victims. Thesurreptitious drugging of a victim is, in and of itself, a cruel and criminal violation of theperson. The rapist does not have to overcome any form of resistance. There is no needfor physical force or threats, the drugs they administer immobilize and silence the victim.Some of these drugs produce Anterograde amnesia is a condition in which events thatoccurred during the time the drug was in effect are forgotten.30 Victims may not seekhelp until days after the assault, partly because the drug impairs their memory andpartly because of their inability to recognize signs of sexual assault. Anterogradeamnesia is a condition in which events that occurred during the time the drug was ineffect are forgotten.31Drug-facilitated rape presents its victims and law enforcement personnel with anadditional set of challenges above and beyond those associated with other sexualassaults. Often referred to as ―date-rape drugs, Rohypnol, GHB, and ketamine 32 areused by rapists to render women unconscious, making them unable to resist unwantedsexual advances. The American Prosecutors Research Institute defines ―drug-facilitated rape as: sexual assault facilitated by the offender‘s use of an anesthesia-typedrug which when administered to the victim (stealthily or not) renders the victimphysically incapacitated or helpless, and thus incapable of giving or not giving consent.GHB may cause enhanced sexual feelings by the victim. Victim may participate inreciprocal acts, as a result of the drug, rather than free will. These victims may be eitherbe conscious or unconscious during their sexual assault and have anterograde amnesiaupon gaining normal consciousness, similar to the effects of a surgery patient comingout of anesthesia.33There is a widely held misconception about the effects of the drugs commonlyassociated with drug assisted rape. Despite the prototypical construction, the reality isthat people who have ingested drugs such as Rohypnol and GHB rarely loseconsciousness. Rather, the amnesiac effects of the drugs prevent victims fromrecollecting events thus creating a memory void that the brain rationalizes as a period ofunconsciousness. However, the victim will retain consciousness whilst appearing to theobserver to be inebriated but able to act under her own volition (Dowd, Strong, Janicakand Negrusz, 2002)34. By eliminating the possibility of consent, the prototypicalconstruction focuses attention on the use of drugs to obtain intercourse (from a victimwho is presumed to be unconscious) rather than on the use of drugs to obtain consent(from a victim whose state of mind is affected by the drugs). It is this latter situation thatis a more accurate representation of the majority of cases of drug assisted rape. Drugssuch as Rohypnol and GHB lower anxiety, alertness and inhibition whilst inducingeuphoria, passivity and a sense of relaxation thus increasing the likelihood that thevictim will engage in intercourse, even if such behavior would usually beuncharacteristic, leading them to be described as a particularly formidable weapon insexual assault cases (Weir, 2001, p. 80).35In addition to this impact on the victim‘s thinking and behavior, these drugs induceanterograde amnesia thus leaving the victim with only a hazy recollection of events.When victims of drug-facilitated rapes cannot give a complete narrative, they often 9
  • 10. Rape Victims Are Class Of Persons Often Defined By Genderencounter suspicion, disbelief, and/or frustration.36 Many aspects of a rapeinvestigation are facilitated by a victim‘s ability to describe what happened. The victim‘snarrative helps guide the medical/evidentiary examination and the police investigation.Their inability to supply information that could assist the investigation and/or prosecutioncompounds their sense of helplessness.37 The amnesiac impact of these drugs hasbeen described as their most insidious effects‘ and clearly has a negative impact on theability to detect and prosecute perpetrators of drug assisted rape (Labianca, 1998). 38 Itwould appear that Rohypnol and the like facilitate rape not because they render thevictim unconscious but because they lead to a disassociation between mind and bodythat renders the victim receptive to sexual activity that she may well have foundunwelcome in other circumstances, whilst eroding her ability to recollect events oncethe drugs have worn off. To onlookers the victim may appear drunk or impaired and therapist taking the victim to another place may appear to onlookers as assisting animpaired person. While the victim is still under the effects of the drug which may last 72hours, the rapist has plenty of time to create a plausible cover story.39 Some drugs stayfor a couple of days, but GHB, the most popular for obvious reasons, very quicklydissipates from the system. There is no screening test for GHB; it requires aconfirmation test that hospitals cannot do and crime labs only do upon specific request.Discriminatory Treatment by the Justice SystemMany rape victims still despair of obtaining justice, and for good reason. It is true thatpolice, prosecutors, and judges have a terrible record of dealing with the crime of rape.But drug facilitated rapists are most commonly serial rapists. They will commit this crimeagain. There are estimates that as many as 20% of all rapes are facilitated withdrugs.40Real rape in the context of drink spiking, is often considered to be demonstrated when awoman claims to have been sexually assaulted, and her allegation is supported by apositive toxicology test. Forensic evidence of a CNS depressant as the weapon used toovercome resistance ultimately signals a lack of consent.41 But a negative toxicologyreport often just means that we didn‘t get the evidence taken soon enough, for a varietyof reasons. This is still rape!The most common abuse of criminal justice officials against rape victims is that theseofficials frequently try to dump rape cases. It is well documented in many sources thatwidespread dumping of rape cases goes on today in law enforcement agencies aroundthe country. Often law enforcement doesn‘t even allow the sexual assault victims is theright to be accompanied at all times throughout the criminal justice process by a victimadvocate and by a support person of the victim‘s choice. This is the best way to protectthe rape victim from abuse in the criminal justice system. The problem is that becauseof the trauma of the rape, most rape victims feel very unsure of themselves. They oftendont trust their own judgment. Rape victims often find it difficult to admit theyre beingmistreated by the people who are supposed to be helping them. And they find it evenmore difficult to protest the abuse. Officials may respond to the rape victim withdisrespect, lack of concern for her safety, an accusatory tone, disbelief, lack of interest, 10
  • 11. Rape Victims Are Class Of Persons Often Defined By Genderannoyance, intimidation, or even attempts to isolate her from her support person. Oneof the most common and easiest ways that officials have of dumping a rape case is tosimply ignore her. The reason this works so well is that rape victims find it very difficultto assert themselves and even more difficult to push the police. Long delays in returningphone calls, unclear explanations about what happens next, sloppy answers to the rapevictims questions, or disinterest in answering her questions is common. The official maybe unwilling to ask about the victims needs and accommodate them. Failure to beopenly concerned about the rape victim‘s need for privacy, support, safety, housing,etc., is much more than just a sign the officer is impolite. In order to successfully pursuea rape case, officials must pay close attention to the needs of the victim. Incompleteinvestigation is another very common way that officials dump rape cases. If officialsdont gather all the evidence, then its easy for them to tell the rape victim, "Were verysorry, wed like to help, but theres not enough evidence to go forward with your case." Ifan official tells her theres not enough evidence, or that her case is a he said, she saidcase, or that the district attorney wont file, or that the defense will attack the rape victimfor this or that, it may very well be that the official is just trying to get rid of her. Officialsattempt to divert the rape victim and to remove her case out of the criminal justiceprocess. Rape is a violent crime, and its the job of police and prosecutors to investigatethe case thoroughly, to protect the rape victim‘s safety, and to do everything possible toobtain justice for her and the community. “Very often a victim’s first view of the criminal justice system is the law enforcement officer who responds to the scene of the crime. It is critical that this officer be well trained and informed about victims’ rights and services. If this officer does not refer the victim to appropriate assistance and compensation programs, that victim may never receive the help needed to heal.” Joe Brann, Director of Community Oriented Policing Services Office, U.S. Department of JusticeThe police interview is the single most significant piece of evidence in a rape case.42Whenever a rape victim is interviewed, the official should: allow the rape victim to beaccompanied by an advocate. The support person should take notes, tape record theinterview, should ask the victim in detail about events leading up to the rape, eventsduring the rape, and events that followed the rape. The official should listen carefully toall the rape victim‘s suggestions for leads to evidence and witnesses in the case. Wheninterviewing the rape victim, the official should never interrogate the rape victim even ifthere are contradictions in her story, should not try scare the victim out of reporting ortestifying by telling her how the defense team can attack her, should not attempt toisolate her from her advocate and support persons, and should never in any way implythat she is to blame for the rape. But hostile interrogations of rape victims are common. 11
  • 12. Rape Victims Are Class Of Persons Often Defined By GenderDuring their initial contact with law enforcement officers, victims of crime should receiveverbal and written information about victims’ rights and services. Law enforcementpersonnel should be required to follow up with victims because many individuals areunable to comprehend assistance and compensation information in the immediateaftermath of being severely traumatized. “Police officers are gaining a renewed understanding of their role as victim advocates. As victim advocates, police officers are an integral part of community efforts to prevent crime, reduce fear, and support victims.” Chief (ret.) Drew Diamond, Senior Research Associate, Police Executive, Research ForumThe drug facilitated sexual assault victim may remember little, if any, about the sexualassault itself. The victims account of the events may have many missing parts. For drugfacilitated assault victims, telling what they recall is difficult and their uncertainty as towhat occurred may cause them extreme anxiety. Often, the perpetrator was a "trusted"acquaintance and the victim may feel the incident was somehow her fault. 43The Law Enforcement Officer should do careful witness interviews. Although the victimstatement is crucial to the investigation, persons who saw the victim, or spoke to thevictim, before, during and after the assault are critical witnesses. Often, it is suchwitnesses who establish time frames, notice unusual behavior, provide critical facts andcan identify potential sources of information.44The ingestion of drugs by the victim (either voluntarily or surreptitiously) is often usedagainst the victim by the criminal justice system. Her apparent association with "risky"behavior lessens her credibility and increases her perceived culpability whilediminishing the suspects. a victims cooperation to go "somewhere private" with thesuspect is not an invitation to rape her and should never be viewed by the criminaljustice system as an indication of consent. Secondly, investigators should keep in mindthat many drugs like GHB and Flunitrazepam sedate the victim and often causeconfusion and disorientation. Thus, while the victim may have appeared to voluntarilyaccompany the suspect, the victims actions may have been the result of "drugsubmission" or some other effect of the drug on the victim and her capabilities. Memoryloss, dizziness, confusion, drowsiness, slurred speech, impaired motor skills, impairedjudgment, reduced inhibition or a variety of other symptoms. The victim may alsoappear intoxicated or "hung-over".Today‘s drugs may at some point render a victim unconscious, but even worse, at leastinitially, and, depending on which drug is used and/or the amount given, the victim mayappear to participate or may even appear to be the aggressor early on in the attack. Thebeverages are typically alcoholic; however, the drugs can be placed into any beverage.When the drug dissolves, it is primarily colorless, odorless and in some cases tasteless.Take effect in 15-30 minutes, may last less than an hour or up to 24 hours. The victim 12
  • 13. Rape Victims Are Class Of Persons Often Defined By Genderbecomes helpless, weak, and, perhaps, unconscious. Victims become so intoxicatedthat they cant resist or escape the rapist or even call out for help. Waking up with littleidea of what has taken place, a sneaky suspicion (or obvious evidence) of sexualactivity, leaves one confused, dazed and hesitant to run to the police. This results in adelay as the victim attempts to piece together her plight. By the time she comprehendsthe situation; precious time has been lost in terms of collecting evidence.An additional challenge in investigating drug-facilitated sexual assault is the loss ofevidence due to the very nature of the drugs used. Many of these drugs metabolize soquickly in the body that it becomes difficult to detect them in the victim. Because mostvictims delay reporting, this compounds the challenge of corroborating the use of a drugto facilitate the sexual assault.The investigator must carefully deduce from the types of drugs used to facilitate thesexual assault, the effects these drugs had on the victim, and an account of the eventssurrounding the actions of everyone involved. The following is a list of the types ofevidence an investigator should process from the victim.The investigator may be the first to suspect the victim was drugged to facilitate a sexualassault. As we have discussed, if the ingestion of a drug may have occurred within thelast 96 hours (4 days), the victim should be advised not to urinate until a urine specimencan be collected.The Drug as a WeaponOne legal approach to the problem of drug facilitated assault is to identify the broadcategory of drug and alcohol facilitated sexual assault as rape achieved with a weapon(that is, the drug).A weapon is actively employed or used by a perpetrator to ensure submission. Implicitwithin the ―Drugs as Weapons metaphor is a concern with the victim‘s capacity toconsent.GHB (gamma-hydroxybutyrate), a Schedule I drug under the Controlled SubstancesAct, is a powerful central nervous system depressant that is used illicitly, often for itseuphoric and sedative effects but also for the commission of drug-facilitated sexualassault. GHB trafficking and abuse have become a particular concern to lawenforcement and public health agencies because of increasing availability of the drug insome areas, sharp increases in mentions for GHB since the mid-1990s, and the use ofGHB in the commission of drug-facilitated sexual assault. Federal, state, and local lawenforcement agencies in every region of the country report that GHB appears to be thesubstance most commonly used in drug-facilitated sexual assaults because of itspowerful sedative properties. Gamma HydroxyButyrate commonly referred to as a daterape-drug, GHB was originally used as a substitute anabolic steroid for strength training.GHB has been used in the commission of sexual assaults because it renders the victim 13
  • 14. Rape Victims Are Class Of Persons Often Defined By Genderincapable of resisting, and may cause memory problems. GHB costs approximately$10-$20 per dose and is frequently mixed with alcohol.In January 2000, DEA documented 60 GHB-related deaths.45 When used to commitsexual assault, the drug typically is mixed into victims drinks--usually without theirknowledge--to mask the drugs salty taste. GHB is rapidly absorbed and metabolized bythe body. Detectable levels of GHB may remain in urine for approximately 8 to 12 hoursand in blood for 4 to 8 hours after ingestion. Routine blood or urine testing do not screenfor GHB; therefore, it is important to specifically request a GHB screen as soon after theassault as possible. Detectable levels of undigested GHB may be found in victimsvomit; vomiting is a common effect of GHB use.On February 18, 2000, the "Hillory J. Farias and Samantha Reid Date-Rape ProhibitionAct of 1999" (Public Law 106-172) was signed into law, legislating GHB as a Schedule Icontrolled substance. GBL was also regulated under this law as a List I controlledchemical. Illicit use of GHB analogs may now be prosecuted as Schedule I substancesunder 21 U.S. Code § 813. GHB analogs are treated as controlled substances underFederal law only if intended for human consumption. According to 21 U.S.C. § 813, "acontrolled substance analogue shall, to the extent intended for human consumption, betreated, for the purposes of any Federal law as a controlled substance in Schedule I."Thus, authorities can prosecute drug offenses involving GHB analogs in the samemanner as offenses involving GHB. (See 21 U.S.C. § 802(32) for the definition of acontrolled substance analogue.) 46Discrediting The Rape Victim And The Rape Shield LawThe United States has a shameful history in its treatment of rape victims in the criminaljudicial system. Especially perceptible in the courtroom, womens allegations have beendiscredited under a legal philosophy that women are disposed to fabricate charges ofrape. As a consequence, rape victims became the focus at trials where trial proceduresendeavored to discount victims and communicate to juries that their stories wereunworthy of belief. Even though the United States Supreme Court and state supremecourts have recognized a constitutionally protected right to privacy, 47 rape victimsallegations continue to be treated with mistrust by the courts as defendants arepermitted to search confidential counseling records in hopes of discrediting the victim.As a result, many rape victims refused to report assaults to the authorities or tocooperate in the criminal process for fear of re-victimization and degradation.48 Peoplewho suspected abuse did not come forward for fear their identities would be revealed.Defendants have successfully used access to counseling records as a harassmenttechnique, hoping to induce victims to drop charges. Prominently, "over the pastdecade, it has become increasingly common for defense counsel in criminal cases toseek access to personal, confidential, and even privileged information of victims andwitnesses, including records of therapeutic counseling." 14
  • 15. Rape Victims Are Class Of Persons Often Defined By GenderIn fact, defendants routinely accessed victims entire medical and psychologicalhistories, even records that predated the crime by as much as twenty or thirty years.These records could indicate such highly personal and irrelevant matters such as eatingdisorders, vaccines, mastectomies, genetic history, HIV status, history of cancer andeven painful childhood incidents. It was a successful defense strategy to request asmany personal records as possible, so that a defendant could delay a trial for years,impelling victims to drop out of cases. 49 Rape Advocates forcefully demonstrated thatthe privilege protecting rape victims confidential communications had becomeineffectual and victims were forced to choose between prosecution and counseling. 50Thus, although rape victims have been promised privacy in the information theydisclosed to counselors, this information has become routinely disclosed to defendantsunder arguments that federal and state constitutional rights to a fair trial outweigh anyevidentiary privileges afforded to victims. So unfortunately, rape victims are often thecasualties in these legal battles as their most painful and personal thoughts are openedto the defense after promises of confidentiality. As a consequence of this abuse ofprocess many rape victims felt forced to choose between seeking help and prosecutingtheir attacker. 51In fact, the fear and harassment of disclosure led many victims to choose betweenprosecution and counseling. Thus, rape remains one "of the most underreported crimesin America." Victims feel alone and helpless and will not request aid and support withoutassurances of confidentiality. Persons who suspect abuse often will come forward ifthey fear their identities may be revealed.The Court of Pennsylvania was asked in Wilson, 602 A.2d at 1295-98 52 to determinethe constitutionality of this absolute privilege for communications between victims andsexual assault counselors. The court denied the defendant access to the victimscounseling records, ruling that the government has a compelling interest in assistingrape victims in the recovery process. In support for its ruling, the court recognized that"the inability of the crisis center to achieve its goals is detrimental not only to the victimbut also to society, whose interest in the report and prosecution of sexual assault crimesis furthered by the emotional and physical well-being of the victim." Pennsylvaniaconcluded that absolute privileges may be given effect by recognizing a compellinggovernmental interest in assisting rape victims heal from the trauma caused by sexualassault. 53 In a subsequent decision, the court held that defendants could not accessvictims records until a judge had determined in camera that the information wasrelevant. 54, 55Moreover, the court concluded that a materiality standard was necessary to give fulleffect to the important goals underlying the privilege:The privilege clearly promotes two important interests.1) It encourages victims of the brutal and degrading crime of rape to seek professionalassistance to alleviate the psychological scarring caused by the crime, which may bemore damaging than the physical invasion itself. 15
  • 16. Rape Victims Are Class Of Persons Often Defined By Gender2) The privilege supports the reporting of rapes, which, occur in considerable numbers,but frequently are not disclosed because the victim may feel shame about the assaultand may not be able to face the grueling nature of the adversary process that occurs attrial.56The United States Supreme Court attempted to settle this controversy in Pennsylvaniav. Ritchie 57 by balancing the respective rights of the defendant and the victim.However, the United States Supreme Courts lead in resolving the conflict has beentenuous as states have responded to the Ritchie decision in disparate fashion.Unfortunately, many rape victims have seen the protections provided by evidentiaryprivileges dwindle to ineffectual words. Rape victims are often the casualties in theselegal battles as their most painful and personal thoughts are opened to the defense afterpromises of confidentiality.Massachusettss experiences illustrate the problems with granting defendants easyaccess to victims confidential counseling records under a lesser standard thanmateriality. In 1991, the Supreme Judicial Court of Massachusetts held that a defendantmust be given full access to privileged counseling records.58 Furthermore, after thedefendants examination of the files, the trial judge must hold an in camera review todetermine, under ordinary evidence rules, the admissibility of the information thedefendant wishes to admit at trial. 59 Since this ruling, defendants began "routinelyrequesting rape crisis center counseling records to search for evidence to impeach thevictims credibility."60 Moreover, defendants used access to counseling records as aharassment technique, hoping to induce victims to drop charges. 61In some jurisdictions, when an absolute privilege is in question the court is permitted todistinguish Ritchie and forbid disclosure of victims counseling records to defendantsseeking to use the information at trial. As support for the constitutionality of absoluteprivileges, many courts have relied on Justice Powells reasoning that the ConfrontationClause is not violated by an evidentiary privilege if the defendant is given theopportunity to cross-examine the witnesses.62Currently, every state, as well as the District of Columbia, recognizes an evidentiaryprivilege for patient communications with a therapist.63 Many states, including Kansasand Washington, have enacted evidentiary privileges that forbid disclosure of victimscounseling records under any circumstance. 64The Confrontation Clause should not include the power to require the pretrial disclosureof any and all information that might be useful in contradicting unfavorable testimony.Currently, every state, as well as the District of Columbia, recognizes an evidentiaryprivilege for patient communications with a therapist. 65In fact, rape victims most common response to rape is the belief that they are somehowresponsible for the attack.66 Therapists persuade rape victims to disclose this fear inorder to help them heal from the psychological effects of the assault. 67 Because of the 16
  • 17. Rape Victims Are Class Of Persons Often Defined By Genderintimate and deep damage sexual assault inflicts on its victims, "effective psychotherapydepends upon an atmosphere of confidence and trust in which the patient is willing tomake a frank and complete disclosure of facts, emotions, memories, and fears." 68Thus, "the mere possibility of disclosure may impede development of the confidentialrelationship necessary for successful treatment." 69 In fact, because of the highlypersonal nature of rape and surrounding social stigma, a sexual assault survivor is morelikely than the general population to be deterred from seeking counseling withoutassurances of confidentiality.70Rape crises centers exist to provide rape victims with effective counseling and supportservices. Ironically, their very creation may act as a magnet for defendants to accessrape victims counseling records. And, despite statutory privileges protecting counselingrecords, rape victims continue to be treated with distrust by the courts as their recordsare disclosed to defendants who in turn use the materials to focus the trial on the victim.Moreover, the privileged materials are often used to embarrass or harass the victim oreven delay trial until victims give up.71 One of the greatest hardships victims endure inthe criminal justice process, is the delay of scheduled proceedings. Just as defendantshave the right to a speedy trial, so too should crime victims. Repeated continuancescause serious hardships and trauma for victims as they review and relive theirvictimization in preparation for trial, only to find the case has been postponed. Delaysare sometimes used as a defense tactic. As a case drags on, witnesses move away,die, give up in frustration, or lose clear recollections of the facts. The impact ofcontinuances is particularly difficult for victims whose memories may fade over time orwhose health may deteriorate.In the aftermath of victimization, victims may have many different needs. Victims whoreport crime need information, assistance and protection when they choose toparticipate in the criminal and juvenile justice process. Not only should victims have theright to be heard or consulted in decisions that affect them, but they should receiveprotection if they are witnesses and transportation to and from legal proceedings.Regardless of whether they report the crime, many victims need emergency andongoing services such as health care, shelter, lock replacement, cash assistance, socialand community services and support, mental health counseling, victim compensation,child care services, referrals to support groups, translators, and transportation.VICTIMS’ RIGHTS “When someone is a victim, he or she should be at the center of the criminal justice process, not on the outside looking in”. President William J. Clinton, Rose Garden, June 25, 1996 17
  • 18. Rape Victims Are Class Of Persons Often Defined By GenderRECOMMENDATION FROM THE FIELD #10Victims of crime should receive assistance in exercising their participatory rights.Advocates should be available to explain rights to victims, help them to exercise thoserights and, when necessary, serve as their representatives in court and other key justiceprocesses when victims are underage or incapacitated or if representation is otherwiseappropriate. One of the greatest barriers to victims participating in justice proceedings istheir not having the means to do so. Many victims cannot afford to pay for parking, childcare, or time off from work. Others do not have the resources to cover transportationcosts to courts, especially if the trial or hearing is held outside their community.In cases where there is good cause to believe that bodily fluids were exchanged, victimsshould have the right to be tested and to have the accused or convicted offender testedat appropriate times for the HIV virus and sexually transmitted diseases. State statutesshould require these tests to be conducted by specially trained personnel who canadvise victims of the reliability, limitations, and significance of the test, as well as HIVtreatment options. In addition, laws should specify the agency that will pay for HIVtesting, pre and posttest counseling, as well as treatment for any victims who testpositive.Counseling is an essential part of responding to the risk of HIV transmission in a crime.Victims may not understand the latency of the disease, and may not fully appreciate thelimited reliability of a negative test result. States frequently counseling in conjunctionwith testing, but specifications vary widely from jurisdiction to jurisdiction.State and federal laws should allow, and criminal and juvenile justice agencies shouldfacilitate, community impact statements as a means for members of a neighborhood orcommunity that has been impacted by crime to have input into sentencing. In manycases, neighborhoods and communities as well as individuals are victims of crime. Thisis especially true in drug, gang, and prostitution cases where criminal activity endangersand degrades entire neighborhoods, affecting property values and quality of life issues.Victims should have standing to enforce their rights, and sanctions should be applied tocriminal and juvenile justice professionals who deny victims their fundamental rights.Although more than 27,000 state and federal laws have been enacted to protect andenforce the interests, rights, and services for crime victims, the consistentimplementation and enforcement of these laws is an area of great concern. Victimsreport that criminal and juvenile justice officials at times disregard their statutory andconstitutional rights, and that they have no legal recourse when their rights are violated.States should enact provisions that give victims measures to enforce their rights whenthey are disregarded. While limited legal remedies such as court-ordered injunctionsand writs of mandamus are generally available to force criminal justice personnel tocomply with the law, states are beginning to pass laws that provide specific statutoryremedies and recourse for crime victims. A Maryland statute enables victims of violentcrimes to apply for leave to appeal any final order that denies victims certain basicrights.72 Arizona law grants victims the right to challenge post conviction release 18
  • 19. Rape Victims Are Class Of Persons Often Defined By Genderdecisions resulting from hearings at which they were denied the opportunity to receivenotice, attend, or be heard. Arizona law allows victims to sue for money damages anygovernment entity responsible for the intentional, knowing or grossly negligent violationof the victims’ rights.73 It is critical that effective measures be available to remedyviolations of victims‘ rights, including authority for the government to obtain redressthrough applications for mandamus and appeal. The need for this reform in federalproceedings is illustrated by the first trial in the bombing of the Alfred P. Murrah FederalBuilding, in which the trial court ruled that victims would not be allowed to attend the trialif they wished to be heard at the sentencing stage. On review, the Tenth Circuit Court ofAppeals held that victims had no standing to assert their right to be present and that thegovernment could not enforce that right by appeal or by seeking a mandatory order. 74Victims of crime should have rights at administrative proceedings, including the right tohave a person of their choice accompany them to the proceedings, the right to inputregarding the sanction, and the right to notification of the sanction.Public Law 106–172 106th Congress FEB. 18, 2000"Making GHB a Schedule I controlled substance appropriately reflects the Congressjudgment that possession and distribution of GHB should be prohibited and thoseviolators should be subject to stringent criminal sanctions."“Making GHB a Schedule I controlled substance appropriately reflects the Congress judgment that possession and distribution of GHB should be prohibited and that violators should be subject to stringent criminal sanctions." President Clinton 2/18/2000It is generally accepted by those working with rape victims and also those working toenforce the Controlled Substances Act that we need to improve how we handle drugfacilitated sexual assaults. SB 1561 (The Samantha Reid Date-Rape Drug Control Actof 1999) has merged into H.R. 2130 to be called The Hillory J. Farias and SamanthaReid Date-Rape Drug Prohibition Act of 2000. The Hillory J. Farias and SamanthaReid Date-Rape Drug Prohibition Act of 2000 or Public Law 106-172 of the 106thCongress was enacted by the Senate and House of Representatives - (21 USC 812note, 21 USC 801 note) to amend the Controlled Substances Act to direct theemergency scheduling of gamma hydroxybutyric acid, to provide for a nationalawareness campaign, and for other purposes. 19
  • 20. Rape Victims Are Class Of Persons Often Defined By GenderIn this act Section 2 findings stated that: Gamma hydroxybutyric acid (also called G, Liquid X, Liquid Ecstasy, Grievous Bodily Harm, Georgia Home Boy, Scoop) has become a significant and growing problem in law enforcement. At least 20 States have scheduled such drug in their drug laws and law enforcement officials have been experiencing an increased presence of the drug in driving under the influence, sexual assault, and overdose cases especially at night clubs and parties.”In section 7 (a) The Secretary of Health and Human Services was to periodically submitto Congress an Annual Report Regarding Date-Rape Drugs and also institute a NationalAwareness Campaign. (21 USC 801 note). It is stated that The Secretary, inconsultation with the Attorney General, shall develop a plan for carrying out a nationalcampaign to educate individuals described in subparagraph (B) on the following:(i) The dangers of date-rape drugs.(ii) The applicability of the Controlled SubstancesAct to such drugs, including penalties under such Act.(iii) Recognizing the symptoms that indicate an individual may be a victim of such drugs,including symptoms with respect to sexual assault.(iv) Appropriately responding when an individual has such symptoms.(B) Intended Population.— The individuals referred to in subparagraph (A) are youngadults, youths, law enforcement personnel, educators, school nurses, counselors ofrape victims, and emergency room personnel in hospitals.PUBL172In addition in section 8 there was established a special unit in The Drug EnforcementAdministration for assessment of abuse and trafficking of GHB and other controlledsubstances and drugs which shall assess the abuse of and trafficking in gammahydroxybutyric acid, flunitrazepam, ketamine, other controlled substances, and other so-called designer drugs whose use has been associated with sexual assault. The DEA‘sparticular duties included: (1) examine the threat posed by the substances and drugsreferred to in that subsection on a national basis and regional basis; and (2) makerecommendations to the Attorney General regarding allocations and reallocations ofresources in order to address the threat. In addition the DEA is permitted to reallocatethe existing resources as appropriate and additional resources were also designated byCongress. In addition, the section SEC. 5 Controlled Substances Analoguessubparagraph (B) includes the designation of gamma butyrolactone or controlledsubstance analogue as a listed chemical and adds DEA control under (b) thedistribution with the intent to commit a crime of violence.Making GHB Schedule 1 makes it a crime to possess, manufacture, or sell GHB or itsprecursors, with up to 20 years jail time for it. It will be in the same drug class asmarijuana or heroin.75 20
  • 21. Rape Victims Are Class Of Persons Often Defined By GenderH.R. 2130 Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999cleared congress and would have allowed the DEA to pursue crimes related to GHBmore vigorously. The act‘s designations for GHB and GB would increase the penaltiesfor unauthorized manufacturing or distribution of these substances and would tightenfederal control over their use. As a result, the federal government would be able topursue cases that it otherwise would not be able to prosecute. Because thoseprosecuted and convicted of offenses under H.R. 2130 could be subject to criminalfines, the federal government might collect additional fines if the legislation is enacted.Such fines are recorded in the budget as governmental receipts (i.e., revenues) whichare deposited in the Crime Victims Fund and spent in subsequent years. Because anyincrease in direct spending from the Crime Victims Fund would equal the fines collected(with a lag of one year or more), the additional direct spending would be less than$500,000 annually.Crime Victims Rights “Even in states with a victims’ rights constitutional amendment, the overall protection of victims is varied and uneven. In addition, without federal constitutional protection, victims’ rights are always subject to being automatically trumped by defendants’ rights.” Robert E. Preston, Co-chair, National Victims’ Constitutional Amendment NetworkSince 1982, a substantial number of the 68 recommendations in the President‘s TaskForce on Victims of Crime Final Report have been enacted and implemented due in alarge part to the efforts of crime victims.76 These accomplishments include the Victimsof Crime Act in 1984, the landmark Crime Act of 1994, the countless state statutes thatstrengthen victims’ rights and hold offenders accountable to their victims, and the 29state victims’ rights constitutional amendments. Each year, hundreds of new victims’rights laws and innovative practices are enacted and implemented across the country.Since 1990, after cases of stalking received national attention from the media and victimadvocacy groups, all 50 states and the District of Columbia modified their laws tocriminalize stalking.77 Some state legislatures also reacted swiftly to the escalation ofjuvenile crime to record levels in the early 1990s by extending at least some rights tovictims of juvenile offenders. In 1992, for example, only five states provided victims theright to be notified of a disposition hearing involving a juvenile. By 1995, 25 statesprovided this right.78 In spite of this record of success; however, victims are still beingdenied their right to participate in the justice system. Many victims‘ rights laws are notbeing implemented, and most states still have not enacted fundamental reforms such asconsultation by prosecutors with victims prior to plea agreements, victim input intoimportant pretrial release decisions such as the granting of bail, protection of victimsfrom intimidation and harm, and comprehensive rights for victims of juvenile offenders. 21
  • 22. Rape Victims Are Class Of Persons Often Defined By GenderThe right to protection from intimidation, harassment, and retaliation by offenders andthe accused is becoming a major focus of public and law enforcement attention. Justiceofficials report an increase in the harassment and intimidation of witnesses, making itincreasingly difficult to obtain convictions because crime victims and witnesses areafraid to testify.79 Legislatures have attempted to address this problem by mandatingno contact orders as a condition of pretrial or post trial release. In addition, victims’ billsof rights generally require victims to be notified at the outset of the judicial processabout legal action they can take to protect themselves from harassment andintimidation. Harassment or intimidation of a victim or witness by a defendant orconvicted offender should result in automatic revocation of pretrial or supervised posttrial release, and should be considered an aggravating factor in sentencing. Suchviolations should be charged and prosecuted under relevant anti-harassment,intimidation, and stalking laws. Any punishment imposed for the separate crime ofintimidation should run consecutively after the sanction for the original crime. Allprotective orders, including those issued as a condition of release, should bemaintained in a central, automated database that can be accessed by law enforcementand other justice officials throughout the country. Violations of protective orders shouldbe taken seriously, swiftly.80 Kansas Constitution Article 15 § 15 “The Victims of crime as defined by law, shall be entitled to certain basic rights,including the right to be informed of and to be present at public hearings, as defined by law, of the criminal justice process, and to be heard at sentencing or at any other timedeemed appropriate by the court, to the extent that these rights do not interfere with the constitutional rights of the accused.” Law 1992 ch 343 section 1 Nov 3, 1992 Rape records were confidential under Kansas state law. See Kan. Stat. Ann. §§ 38-1507, 65-5602. KANSAS K.S.A. § 21-3525 (2005)21-3525Chapter 21.--CRIMES AND PUNISHMENTSPART II.--PROHIBITED CONDUCTArticle 35.--SEX OFFENSES21-3525. Evidence of complaining witness previous sexual conduct inprosecutions for sex offenses; motions; notice.(a) The provisions of this section shall apply only in a prosecution for: (1) Rape, asdefined by K.S.A. 21-3502, and amendments thereto; (2) indecent liberties with a child,as defined in K.S.A. 21-3503, and amendments thereto; (3) aggravated indecentliberties with a child, as defined in K.S.A. 21-3504, and amendments thereto; (4)criminal sodomy, as defined in subsections (a)(2)and (a)(3) of K.S.A. 21-3505 andamendments thereto; (5) aggravated criminal sodomy as defined by K.S.A. 21-3506,and amendments thereto; (6) aggravated indecent solicitation of a child, as defined in 22
  • 23. Rape Victims Are Class Of Persons Often Defined By GenderK.S.A. 21-3511, and amendments thereto; (7) sexual exploitation of a child as defined inK.S.A. 21-3516, and amendments thereto; (8) aggravated sexual battery, as defined inK.S.A. 21-3518, and amendments thereto; (9) incest, as defined in K.S.A. 21-3602, andamendments thereto; (10) aggravated incest, as defined in K.S.A. 21-3603, andamendments thereto; (11) indecent solicitation of a child, as defined in K.S.A. 21-3510and amendments thereto; (12) aggravated assault, as defined in K.S.A. 21-3410, andamendments thereto, with intent to commit any crime specified above; (13) sexualbattery, as defined in K.S.A. 21-3517, and amendments thereto; (14) unlawful voluntarysexual relations, as defined in K.S.A. 21-3522, and amendments thereto; or (15)attempt, as defined in K.S.A. 21-3301, and amendments thereto, or conspiracy, asdefined in K.S.A. 21-3302, and amendments thereto, to commit any crime specifiedabove.(b) Except as provided in subsection (c), in any prosecution to which this sectionapplies, evidence of the complaining witness previous sexual conduct with any personincluding the defendant shall not be admissible, and no reference shall be made theretoin any proceeding before the court, except under the following conditions: Thedefendant shall make a written motion to the court to admit evidence or testimonyconcerning the previous sexual conduct of the complaining witness. The motion must bemade at least seven days before the commencement of the proceeding unless thatrequirement is waived by the court. The motion shall state the nature of such evidenceor testimony and its relevancy and shall be accompanied by an affidavit in which anoffer of proof of the previous sexual conduct of the complaining witness is stated. Themotion, affidavits and any supporting or responding documents of the motion shall notbe made available for examination without a written order of the court except that suchmotion, affidavits and supporting and responding documents or testimony whenrequested shall be made available to the defendant or the defendants counsel and tothe prosecutor. The defendant, defendants counsel and prosecutor shall be prohibitedfrom disclosing any matters relating to the motion, affidavits and any supporting orresponding documents of the motion. The court shall conduct a hearing on the motion incamera. At the conclusion of the hearing, if the court finds that evidence proposed to beoffered by the defendant regarding the previous sexual conduct of the complainingwitness is relevant and is not otherwise inadmissible as evidence, the court may makean order stating what evidence may be introduced by the defendant and the nature ofthe questions to be permitted. The defendant may then offer evidence and questionwitnesses in accordance with the order of the court.(c) In any prosecution for a crime designated in subsection (a), the prosecuting attorneymay introduce evidence concerning any previous sexual conduct of the complainingwitness, and the complaining witness may testify as to any such previous sexualconduct. If such evidence or testimony is introduced, the defendant may cross-examinethe witness who gives such testimony and offer relevant evidence limited specifically tothe rebuttal of such evidence or testimony introduced by the prosecutor or given by thecomplaining witness. 23
  • 24. Rape Victims Are Class Of Persons Often Defined By Gender(d) As used in this section, "complaining witness" means the alleged victim of any crimedesignated in subsection (a), the prosecution of which is subject to this section.History: L. 1976, ch. 162, § 1; L. 1983, ch. 109, § 15; L. 1991, ch. 87, § 1; L. 1992, ch.298, § 32; L. 1993, ch. 291, § 53; L. 2005, ch. 114, § 1; July 1.Rape Shield LawsWilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery ofrape victims outweigh defendants constitutional rights). 667 N.E.2d 847, 852-854(Mass. 1996) The court concluded that a materiality standard was necessary to give fulleffect to the important goals underlying the privilege.S.C. Const. art I, § 24(B). The Constitution provides "the rights created in this sectionmay be subject to a writ of mandamus, to be issued by any justice of the Supreme Courtor Circuit Court Judge to require compliance" of government officials. Nev. Const. art I,§ 8(4) (stating person may compel public officer or employee to carry out any victimright). Utah Code Ann. § 77-38-11(2)(a)(i) (2004) (declaring "victim may bring an actionfor... a writ of mandamus"). Ariz. Rev. Stat. § 13-4437 (2004). The statute provides: thevictim has standing to seek an order or to bring a special action mandating that thevictim be afforded any right or challenge and order denying any rights guaranteed tovictims under the victims bill of rights, article II, Sec. 2.1, Constitution of Arizona, anyimplementing legislation or court rules. Md. Code Ann., Crim. Proc. § 11-103(b) (2004).The statute provides: "a victim of violent crime... may file an application for leave toappeal... from an interlocutory or final order...." Utah Code Ann. § 77-38-11(2)(a)(i). TheCode provides that "the victim [may] bring an action for declaratory relief or for a writ ofmandamus defining or enforcing the rights of victims and the obligations of governmententities under the Rights of Crime Victims Act." 24
  • 25. Rape Victims Are Class Of Persons Often Defined By Gender RAPE SHIELD STATUTES As of June 28, 2006ALABAMA ALA. CODE § 12-21-203 (2005)ALASKA ALASKA STAT. § 12.45.045 (2006)ARIZONA ARIZ. REV. STAT. § 13-1421 (2006)ARKANSAS ARK. CODE. ANN. § 16-42-101 (2006)CALIFORNIA CAL. EVID. CODE § 782 (2006)CAL. EVID. CODE § 1103 (2006)COLORADO COLO. REV. STAT. § 18-3-407 (2005)CONNECTICUT CONN. GEN. STAT. § 54-86f (2006)CONN. CODE OF EVIDENCE § 4-11 (2006)DISTRICT OF COLUMBIA D.C. Code § 22-3021 (2006)D.C. Code § 22-3022 (2006)DELAWARE DEL. CODE. ANN. Tit. 11 § 3509 (2006)FLORIDA FLA. STAT. § 794.022 (2005)GEORGIA GA. CODE ANN. § 24-2-2 (2006)GA. CODE ANN. § 24-2-3 (2006)HAWAII HAW. REV. STAT. § 412 (2006)IDAHO IDAHO CODE ANN. § 412 (2005)ILLINOIS 725 ILL. COMP. STAT. 5/115-7 (2005)INDIANA IND. CODE. ANN. § 412 (2006)IND. CODE ANN. § 35-37-4-4 (2006)IOWA Iowa R. Evid. 5.412 (2005)KANSAS K.S.A. § 21-3525 (2005)KENTUCKY Ky. R. Evid. 412. (2006)LOUISIANA La. C.E. Art. 412 (2006)MAINE Me. R. Evid. 412 (2005)MARYLAND Md. Code Ann., CRIM. LAW § 3-319 (2006)MASSACHUSSETTS MASS. ANN. LAWS ch. 233, § 21B (2006)MICHIGAN Mich. Rules Evid. § 40MICH. COMP. LAWS SERV. § 750.520j (2006)MINNESOTA MINN. STAT. § 609.347 (2005)MISSISSIPI MISS. CODE ANN. § 97-3-68 (2006)MISSOURI MO. REV. STAT. § 491.015 (2006)MONTANA MONT. CODE ANN., § 45-5-511 (2005)NEBRASKA NEB. REV. STAT. § 28-321 (2005)NEVADA NEV. REV. STAT. ANN. § 50.090 (2006)NEV. REV. STAT. ANN. § 48.069 (2006)NEW HAMPSHIRE N.H. Rules Evid. 412 (2005)N.H. REV. STAT. ANN. § 632-A:6 (2006)NEW JERSEY N.J. Stat. § 2C:14-7 (2006)NEW MEXICO N.M. Stat. Ann. § 30-9-16 (2006)NEW YORK NY CLS CPL § 60.42 (2006)NORTH CAROLINA N.C. Gen. Stat. § 8C-1, Rule 412 (2006)NORTH DAKOTA N. D.R. Ev., Rule 412 (2005) 25
  • 26. Rape Victims Are Class Of Persons Often Defined By GenderOHIO ORC Ann. 2907.02 (2006)Ohio Evid. R. 404 (2006)OKHLAHOMA 12 Okl. St. § 2412 (2005)ORS § 40.210 ; 2006 OEC 412 (2006)PENNSYLVANIA 18 Pa.C.S. § 3104 (2005)RHODE ISLAND RI R. Evid. Art. IV, Rule 412 (2006)R.I. Gen. Laws § 11-37-13 (2006)TENNESSEE Tenn. Evid. Rule 412 (2005)TEXAS Tex. Evid. R. 412 (2006)UTAH URE Rule 412 (2006)VIRGINIA Va. Code Ann. § 18.2-67.7 (2006)WASHINGTON Rev. Code Wash. (ARCW) § 9A.44.020 (2006)WEST VIRGINIA W. Va. Code § 61-8B-11 (2006)WISCONSIN Wis. Stat. § 972.11 (2006)WYOMING Wyo. Stat. § 6-2-312 (2006) 26
  • 27. Rape Victims Are Class Of Persons Often Defined By GenderReferences:1 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS).Bureau of Justice Statistics, U.S. Department of Justice2 For more statistics and links to all primary sources, see RAINN‘s Statistics Archive.For information and resources on sexual assault, rape and drug-facilitated sexualassault, http://www.911rape.org/.For more information and statistics, visit the U.S.Department of Justice‘s Bureau of Justice Statistics.3 National Crime Victims Rights Resource Guide 2005 www.ojp.usdoj.gov/ovc/ncvrw/2005/pdf/NCVRW2005resourceguide.pdfhttp://www.rainn.org/statistics/index.html4 National Crime Victims Rights Resource Guide 2005www.ojp.usdoj.gov/ovc/ncvrw/ 2005/pdf/NCVRW2005resourceguide.pdf -5 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS).Bureau of Justice Statistics, U.S. Department of Justice6 Prevalence, Incidence and Consequences of Violence Against Women Survey,National Institute of Justice and Centers for Disease Control and Prevention, 19987 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS).Bureau of Justice Statistics, U.S. Department of Justice8 Sexual Assault of Young Children as Reported to Law Enforcement. Bureau ofJustice Statistics, U.S. Department of Justice, 20009 1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S.Department of Justice.10 2000 NCVS11 2000 NCVS12 Sex Offenses and Offenders. Bureau of Justice Statistics, U.S. Department ofJustice, February 1997:13 Sexual Abuse of Boys, Journal of the American Medical Association, December 2,199814 2002 Recidivism and Release Statistics 1994 For more statistics and links to allprimary sources, see RAINN‘s Statistics Archive15 1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S.Department of Justice.16 Probability statistics compiled by NCPA from US Department of Justice statistics.See www.ncpa.org/studies/s229/s229.html17 "Promoting US Department of Justice Office of Justice Programs An Analysis of dataon Rape and Sexual Assault. Sex Offenses and Offenderswww.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf18 Secondary Victimization of Rape Victims: Insights from Mental Health ProfessionalsWho Treat Survivors of Violence by Rebecca Campbell, and Sheela Raja, University ofIllinois at Chicago Published: Violence and Victims, V. 14 (3), 199919 National Judicial Education Program Sexual Violence: The Judge‘s Role in Strangerand NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by theWA Coalition of Sexual Assault Programs 27
  • 28. Rape Victims Are Class Of Persons Often Defined By Gender20 National Judicial Education Program Sexual Violence: The Judge‘s Role in Strangerand NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by theWA Coalition of Sexual Assault Programs21 Excerpts from National Judicial Education Program Sexual Violence: The Judge‘sRole in Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) -Prepared by the WA Coalition of Sexual Assault Programs22 Drug-Facilitated Rape: Looking for the Missing Pieces by Nora Fitzgerald and K.Jack Riley www.ncjrs.gov/pdffiles1/jr000243c.pdf23 Secondary Victimization of Rape Victims: Insights from Mental Health ProfessionalsWho Treat Survivors of Violence Reviewed by Priscilla Schulz, LCSW from an article ofthe same title by: Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago,Published: Violence and Victims, V. 14 (3), 199924 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims:Insights from Mental Health Professionals Who Treat Survivors of Violence‖ Universityof Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence AgainstWomen Prevention Research Centerhttp://www.musc.edu/vawprevention/research/victimrape.shtml25 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims:Insights from Mental Health Professionals Who Treat Survivors of Violence‖ Universityof Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence AgainstWomen Prevention Research Centerhttp://www.musc.edu/vawprevention/research/victimrape.shtml26 The four injuries: How to get help after a victimizationhttp://www.trynova.org/victiminfo/victimizationhelp/fourinjuries.html27 Lopez, P., 1992: ‗He Said…She Said…An Overview of Date Rape fromCommission Through Prosecution to Verdict Journal of Consulting and ClinicalPsychology vol. 13, pp. 275-302.28 Joint Inspection Report, 2002: ‗Report on the Joint Inspection into the Investigationand Prosecution of Cases involving Allegations of Rape (London: HMCPSI) para. 6.8.29 Sturman, P., 2000: ‗Report on Drug Assisted Sexual Assault (London: British HomeOffice)30 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. JackRiley, PhD, Journal, National Institute of Justice, Office of Justice Programs, U.S.Department of Justice, Washington, DC: April 2000,http://www.ncjrs.org/pdffiles1/jr000243c.pdf31 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. JackRiley, PhD, Journal, National Institute of Justice, Office of Justice Programs, U.S.Department of Justice, Washington, DC: April 2000,http://www.ncjrs.org/pdffiles1/jr000243c.pdf32 American Prosecutors Research Institute, The Prosecution Of Rohypnol And GhbRelated Sexual Assaults, Ch. 1, pp. 13 – 17 (1999) [hereinafter APRI] (describingtwenty-one other drugs used to facilitate sexual assault). I have chosen this focusbecause these three drugs have garnered the most attention from the government,media, and medical field. Although I later argue that this narrow focus should beavoided, I found it necessary to mirror these group‘s focus in order to describe mostaccurately the overall response to the date rape drug crisis. It should be clear from the 28
  • 29. Rape Victims Are Class Of Persons Often Defined By Genderoutset of this paper, however, that my focus on Rohypnol, GHB, and ketamine in noway suggests that these three drugs are the most prevalent or dangerous drugs relatedto rape.33 APRI, supra note 12, at Ch. 1, p. 5.34 Dowd, S.M., Strong, M.J., Janicak, P.G. and Negrusz, A., 2002: ‗The Behaviouraland Cognitive Effects of Two Benzodiazepines Associated with Drug Facilitated SexualAssault Journal of Forensic Science vol. 47, pp. 1101-110735 Weir, E., 2001: ‗Drug Facilitated Date Rape Canadian Medical Association Journalvol. 165 (1), p. 8036 Successfully Investigating Acquaintance Sexual Assault: A National Training Manualfor Law Enforcement, The National Center for Women and Policing,http://www.womenandpolicing.org/Publication Date: May 200137 Successfully Investigating Acquaintance Sexual Assault: A National Training Manualfor Law Enforcement, The National Center for Women and Policinghttp://www.womenandpolicing.org/Publication Date: May 200138 Labianca, D.A., 1998: ‗Rohypnol: a Profile of the Date Rape Drug Journal ofChemical Education vol. 75, pp. 719-72239 Archambault, Joanne ―Dynamics of Sexual Assault Training Director, SexualAssault Training and Investigations, SATI, Inc, SATI, Inc., Addy, WA 99101-0033,joanne@mysati.com40 DEA Congressional Testimony October 10, 2002Statement of Asa Hutchinson Administrator, Drug Enforcement Administration, Beforethe House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,www.dea.gov/pubs/cngrtest/ct101002.html41 National Project on Drink Spiking: Investigating the nature and extent of drink spikingin Australia Commissioned by the Ministerial Council on Drug Strategy, Prepared by:Natalie Taylor, Jeremy Prichard and Kate Charlton, Australian Institute of Criminology,November 2004, http://www.aic.gov.au/publications/reports/2004-11-drinkspiking/2004-11-drinkspiking.pdf42 Successfully Investigating Acquaintance Sexual Assault: A National Training Manualfor Law Enforcement, The National Center for Women and Policing,http://www.womenandpolicing.org/Publication Date: May 200143 Successfully Investigating Acquaintance Sexual Assault: A National Training Manualfor Law Enforcement, The National Center for Women and Policing,http://www.womenandpolicing.org/ Publication Date: May 200144 Successfully Investigating Acquaintance Sexual Assault: A National Training Manualfor Law Enforcement The National Center for Women and Policinghttp://www.womenandpolicing.org/ Publication Date: May 200145 DEA Congressional Testimony, Statement by: Richard A. Fiano, Chief of OperationsDrug Enforcement Administration, Before the: Caucus on International Narcotics ControlDate: July 25, 200046 National Drug Intelligence Center, 319 Washington Street, 5th Floor, Johnstown, PA15901 29
  • 30. Rape Victims Are Class Of Persons Often Defined By GenderTel. (814) 532-4601, FAX (814) 532-4690, E-mail NDIC.Contacts@usdoj.govNational Drug Intelligence Center, 8201 Greensboro Drive, Suite 1001, McLean, VA22102-3840Tel. (703) 556-8970, FAX (703) 556-7807, Web Addresses: ADNET: http://ndicosa,DOJ: http://www.usdoj.gov/ndic/ LEO: home.leo.gov/lesig/ndic/47 [FN14]. Id. See also Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (quoting CoxBroadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975), as stating that privacy rights are"plainly rooted in the traditions and significant concerns of our society"); Whalen v. Roe,429 U.S. 589, 599-60 & n.23 (1977) (noting that prior opinions support including right toprivacy on personal matters under Fourteenth Amendments Due Process Clause); Wolfv. Colorado, 338 U.S. 25, 27 (1949) ("This Court has consistently asserted that therights of privacy ... are to be regarded as of the very essence of constitutional liberty.");F.E.R. v. Valdez, 58 F.3d 1530, 1535 (10th Cir. 1995) (recognizing right of privacy inmedical records); Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988) (recognizing "well-established" constitutional right of privacy that includes avoiding disclosure of personalmatters); Borucki v. Ryan, 827 F.2d 836, 839 (1st Cir. 1987) (noting that courtsrecognize right of privacy under Fourteenth Amendment); Caesar v. Mountanos, 542F.2d 1064, 1067-68 (9th Cir. 1976) (finding qualified constitutional right of privacy incounseling sessions with psychotherapist); In re August, 1993 Regular Grand Jury, 854F. Supp. 1375, 1378 (S.D. Ind. 1993) (recognizing constitutional right of privacy inpsychotherapist records); Natl Transp. Safety Bd. v. Hollywood Meml Hosp., 735 F.Supp. 423, 424 (S.D. Fla. 1990) (recognizing constitutional right of privacy in medicaland psychiatric records); Doe v. United States Civil Serv. Commn, 483 F. Supp. 539,566-67 (S.D.N.Y. 1980) (finding constitutional right of privacy concerning disclosure ofpersonal matters); Hawaii Psychiatric Socy v. Ariyoshi, 481 F. Supp. 1028, 1039 (D.Haw. 1979) (recognizing constitutional right of privacy in Medicaid patients mentalhealth records); McKenna v. Fargo, 451 F. Supp. 1355, 1380-81 (D.N.J. 1978) (findingconstitutional right of privacy concerning emotional and mental conditions); Lora v. Bd.of Educ., 74 F.R.D. 565, 571-74 (E.D.N.Y. 1977) (finding constitutional right of privacy inpsychological information); Merriken v. Cressman, 364 F. Supp. 913, 917-18 (E.D. Pa.1973) (finding constitutional right of privacy in information relating to family relationshipsand child rearing).48 In re Pittsburgh Action Against Rape, 428 A.2d at 143 (Larsen, J., dissenting) ("Manyvictims do not even bother to report a rape because they feel the process they must gothrough in order to obtain a conviction may be as offensive as the crime."); Estrich,supra note 1, at 15 ("Deciding to report a simple rape is a step most victims nevertake.");Sedelle Katz & Mary Ann Mazur, M.D., Understanding the Rape Victim: A Synthesis ofResearch Findings 203 (1979) (explaining that participation in criminal process "may bemore traumatic than the rape itself");Deborah W. Denno et al., Men, Women and Rape, 63 Fordham L. Rev. 125, 134-37(1994) (panel discussion) (discussing rape as most underreported crime in UnitedStates);Wendy Murphy, Gender Bias in the Criminal Justice System, 20 Harv. Womens L.J.,Spring 1997, at 14, 16-18 [hereinafter Murphy, Gender Bias] (relating incidence in 30
  • 31. Rape Victims Are Class Of Persons Often Defined By GenderMassachusetts where victims dropped charges to protect confidentiality of medicalrecords);Wendy J. Murphy, Minimizing the Likelihood of Discovery of Victims CounselingRecords and Other Personal Information in Criminal Cases: Massachusetts Gives aNod to a Constitutional Right to Confidentiality, 32 New Eng. L. Rev. 983, 986- 87 &n.24 (1998) [hereinafter Murphy, Minimizing Discovery] (noting Massachusetts rapevictims felt forced to choose between prosecution and counseling);Anna Y. Joo, Note, Broadening the Scope of Counselor-Patient Privilege to Protect thePrivacy of the Sexual Assault Survivor, 32 Harv. J. on Legis. 255, 284 (1995)(discussing that "[i]t was likely that sexual assault survivors viewed foregoing legalaction as a tradeoff for receiving effective counseling treatment");Rorie Sherman, Rape Victims Records Vulnerable: Massachusetts Prosecutors,Therapists See a Chilling Effect, Natl L.J., Dec. 28, 1992, at 1 (reporting decline of rapevictims reporting assaults);Interview with Amy Alleman, Former Volunteer Rape Crisis Counselor, in Salt Lake City,Utah (Jan. 19, 2001) (stating vast majority of rape victims in Utah do not report assaultto police because of fear of participation in criminal justice system).49 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape CrisisCounselor Records in Acquaintance Rape Trials, 68 S. Cal. L. Rev. 1335, 1364 (1995).See also Murphy, Minimizing Disclosure, supra note 7, at 986 ("In the aftermath of [thecase], access to counseling records was granted to defense counsel simply for theasking."). One scholar noted that some Massachusetts courts required victims to revealwhether they have ever received counseling, thereby triggering mandatory disclosure.Murphy, Gender Bias, supra note 7, at 18.50 Bridget M. McCafferty, Note, The Existing Confidentiality Privileges as Applied toRape Victims, 5 J.L. & Health 101, 137 (1990/1991)51 Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs ofBattered Women, 29 Fam. L.Q. 273, 295 (1995) (asserting that battered women will notreveal abuse to counselors without assurances of confidentiality because abusersroutinely threaten their victims lives if they disclose).52 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recoveryof rape victims outweigh defendants constitutional rights).53 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recoveryof rape victims outweigh defendants constitutional rights).54 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502A.2d 148 (Pa. 1985), affd in part and revd in part, 480 U.S. 39 (1987). And Ritchie, 480U.S. at 45.55 Blacks Law Dictionary defines "in camera" as "[i]n chambers, in private." Blacks LawDictionary 760 (6th ed. 1990). In an in camera inspection, "a trial judge may inspect adocument which counsel wishes to use at trial in his chambers before ruling on itsadmissibility or its use ....".56 667 N.E.2d 847 (Mass. 1996) 852-85557 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502A.2d 148 (Pa. 1985), affd in part and revd in part, 480 U.S. 39 (1987).58 Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002-03 (Mass. 1991). One yearlater, the Supreme Judicial Court of Massachusetts explicitly abolished the requirement 31
  • 32. Rape Victims Are Class Of Persons Often Defined By Genderthat the defendant show need before receiving access to privileged materials.Commonwealth v. Figueroa, 595 N.E.2d 779, 785 (Mass. 1992)59 Stockhammer, 570 N.E.2d at 1002-0360 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape CrisisCounselor Records in Acquaintance Rape Trials, 68 S. Cal. L. Rev. 1335, 1364 (1995).See also Murphy, Minimizing Disclosure, supra note 7, at 986 ("In the aftermath of [thecase], access to counseling records was granted to defense counsel simply for theasking."). One scholar noted that some Massachusetts courts required victims to revealwhether they have ever received counseling, thereby triggering mandatory disclosure.Murphy, Gender Bias, supra note 7, at 18.61 Murphy, Gender Bias, supra note 7, at 15-18 (decrying the "victory by intimidation"technique author witnessed that was used to impel victims to drop criminal charges).62 See, e.g., People v. Dist. Court, 719 P.2d 722, 727 n.3 (Colo. 1986) (en banc)(holding absolute privilege for rape counselor records precludes all discovery requestsand does not violate defendants constitutional rights to cross-examination); People v.Foggy, 521 N.E.2d 86, 90-92 (Ill. 1988) (distinguishing Ritchie, upholdingconstitutionality of absolute privilege for rape crisis counseling records, and denyingdefendant in camera review of victims counseling records); People v. Stanaway, 521N.W.2d 557, 575-77 (Mich. 1994) (finding absolute privilege constitutional);Commonwealth v. Wilson, 602 A.2d 1290, 1296-97 (Pa. 1992), cert. denied, 504 U.S.977 (1992) (distinguishing Ritchie and holding denial of access to documents underabsolute privilege for sexual assault counselors records does not violate ConfrontationClause).63 Ala. Code § 34-26-2 (1977); Alaska R. Evid. 504; Ariz. Rev. Stat. Ann. § 32-2085(West 1992 & Supp. 2000); Ark. R. Evid. 501; Cal. Evid. Code §§ 1010, 1012, 1014(West 1995); Colo. Rev. Stat. § 13-90- 107(g) (2000); Conn. Gen. Stat. Ann. § 52-146c(West 1995 & Supp. 2000); Del. R. Evid. 503; D.C. Code Ann. § 14-307 (1995); Fla.Stat. Ann. § 90.503 (West 1999 & Supp. 2000); Ga. Code Ann. § 24-9-21 (1995); Haw.R. Evid. 504, 504.1, 505.5; Idaho R. Evid. 503; 225 Ill. Comp. Stat. Ann. 15/5 (West1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West1999); Kan. Stat. Ann. § 74-5323 (1992); Ky. R. Evid. 507; La. Code Evid. Ann. art. 510(West 1995 & Supp. 2001); Me. R. Evid. 503; Md. Code Ann., Cts. & Jud. Proc. § 9-109(1998 & Supp. 2000); Mass. Ann. Laws ch. 233, § 20B (Law. Co-op. 2000); Mich. Stat.Ann. § 14.15.18237 (Michie 1999); Minn. Stat. Ann. § 595.02 (West 2000); Miss. R.Evid. 503; Mo. Ann. Stat. § 491.060 (West 1996 & Supp. 2001); Mont. Code Ann. § 26-1-807 (2000); Neb. Rev. Stat. Ann. § 27-504 (Michie 1995); Nev. Rev. Stat. Ann. 49.215(Michie 1996); N.H. R. Evid. 503; N.J. Stat. Ann. § 45:14B-28 (West 1995 & Supp.2000); N.M. R. Evid. 11-504; N.Y. C.P.L.R. 4507 (McKinney 1992); N.C. Gen. Stat. § 8-53.3 (1999); N.D. R. Evid. 503; Ohio Rev. Code Ann. § 2317.02 (Anderson 1998 &Supp. 1999); Okla. Stat. Ann. tit. 12, § 2503 (West 1993); Or. R. Evid. 504, 504.1; 42Pa. Cons. Stat. Ann. § 5944 (West 2000); R.I. Gen. Laws §§ 5-37.3-3 to .3- 4 (1999);S.C. Code Ann. § 19-11-95 (Law. Co-op. Supp. 2000); S.D. Codified Laws §§ 19-13-6to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; UtahR. Evid. 506; Vt. R. Evid. 503; Va. Code Ann. § 8.01-400.2 (Michie 2000); Wash. Rev.Code Ann. § 18.83.110 (West 1999); W. Va. Code Ann. § 27-3-1 (Michie 1992); Wis.Stat. Ann. § 905-04 (West 2000); Wyo. Stat. Ann. § 33-27-123 (Michie 1999). See also 32
  • 33. Rape Victims Are Class Of Persons Often Defined By GenderJaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege forcommunications with psychotherapists and social workers).64 See, e.g., 735 III. Comp. Stat. Ann. 5/8-802.1 (West Supp. 2000) (providing absoluteprivilege between rape crisis counselors and victims); Mass. Ann. Laws ch. 233, § 20(J)(Law. Co-op. 2000) (prohibiting disclosure of confidential communications between rapecrisis counselor and rape victim); N.Y. C.P.L.R. 4510(b) (McKinney Supp. 2001)(providing absolute privilege for certified rape crisis counselors and rape victims); N.Y.Crim. Proc. Law § 60.76 (McKinney Supp. 2001) (same); Utah Code Ann. §§ 78-3c-3 to-4 (1996 & Supp. 2001) (providing absolute evidentiary privilege for communicationsbetween sexual assault counselor and victim).65 Ala. Code § 34-26-2 (1977); Alaska R. Evid. 504; Ariz. Rev. Stat. Ann. § 32-2085(West 1992 & Supp. 2000); Ark. R. Evid. 501; Cal. Evid. Code §§ 1010, 1012, 1014(West 1995); Colo. Rev. Stat. § 13-90- 107(g) (2000); Conn. Gen. Stat. Ann. § 52-146c(West 1995 & Supp. 2000); Del. R. Evid. 503; D.C. Code Ann. § 14-307 (1995); Fla.Stat. Ann. § 90.503 (West 1999 & Supp. 2000); Ga. Code Ann. § 24-9-21 (1995); Haw.R. Evid. 504, 504.1, 505.5; Idaho R. Evid. 503; 225 Ill. Comp. Stat. Ann. 15/5 (West1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West1999); Kan. Stat. Ann. § 74-5323 (1992); Ky. R. Evid. 507; La. Code Evid. Ann. art. 510(West 1995 & Supp. 2001); Me. R. Evid. 503; Md. Code Ann., Cts. & Jud. Proc. § 9-109(1998 & Supp. 2000); Mass. Ann. Laws ch. 233, § 20B (Law. Co-op. 2000); Mich. Stat.Ann. § 14.15.18237 (Michie 1999); Minn. Stat. Ann. § 595.02 (West 2000); Miss. R.Evid. 503; Mo. Ann. Stat. § 491.060 (West 1996 & Supp. 2001); Mont. Code Ann. § 26-1-807 (2000); Neb. Rev. Stat. Ann. § 27-504 (Michie 1995); Nev. Rev. Stat. Ann. 49.215(Michie 1996); N.H. R. Evid. 503; N.J. Stat. Ann. § 45:14B-28 (West 1995 & Supp.2000); N.M. R. Evid. 11-504; N.Y. C.P.L.R. 4507 (McKinney 1992); N.C. Gen. Stat. § 8-53.3 (1999); N.D. R. Evid. 503; Ohio Rev. Code Ann. § 2317.02 (Anderson 1998 &Supp. 1999); Okla. Stat. Ann. tit. 12, § 2503 (West 1993); Or. R. Evid. 504, 504.1; 42Pa. Cons. Stat. Ann. § 5944 (West 2000); R.I. Gen. Laws §§ 5-37.3-3 to .3- 4 (1999);S.C. Code Ann. § 19-11-95 (Law. Co-op. Supp. 2000); S.D. Codified Laws §§ 19-13-6to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; UtahR. Evid. 506; Vt. R. Evid. 503; Va. Code Ann. § 8.01-400.2 (Michie 2000); Wash. Rev.Code Ann. § 18.83.110 (West 1999); W. Va. Code Ann. § 27-3-1 (Michie 1992); Wis.Stat. Ann. § 905-04 (West 2000); Wyo. Stat. Ann. § 33-27-123 (Michie 1999). See alsoJaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege forcommunications with psychotherapists and social workers).66 Sherman, supra note 7, at 27. Because rapists tend to prey on people they know, theyoung, and/or women who are easily victimized, the tendency to self-blame isintensified. Natl Victim Center & Crime Victims Treatment Center, Med. U. of SouthCarolina, Rape in America 2, 4-5 (1992) (reporting that 80% of rapes were committedby someone known or related to victim, 39% of victims have been raped more thanonce, 32.3% of rapes occurred when victim was between ages 11 and 17, and 29.3% ofrapes occurred before victim was age 11). See also Women With Disabilities, LeafLines, Summer 1992, at 5 ("The more disabled you are, the more likely you are to beassaulted.").67 Rule 504--Psychotherapist-Patient Privilege, Advisory Committees Note, 56 F.R.D.183, 242 (1972) ("[The therapists] capacity to help his patients is completely dependent 33
  • 34. Rape Victims Are Class Of Persons Often Defined By Genderupon their willingness and ability to talk freely."). See also Joo, supra note 7, at 283n.177 ("Frequently a traumatized victim will say things like I feel guilty or I think maybeI asked for it, or I want to get back at him, and those things a defense attorney couldhave a field day with.").68 Jaffee v. Redmond, 518 U.S. 1, 10 (1996)69 Jaffee v. Redmond, 518 U.S. 1, 10 (1996)"If the privilege were rejected, confidentialconversations between psychotherapists and their patients would surely be chilled ...."Id. at 11-12. The Jaffee Court also declared that an evidentiary privilege will not harmthe "truth-seeking function," because without a privilege, it is unlikely that the evidencewill ever "come into being." Id. at 12. Scholars have asserted that courts lose littleinformation due to privileges. Knapp & Vandecreek, supra note 195, at 11.70 Maxine H. Neuhauser, The Privilege of Confidentiality and Rape Crisis Counselors, 8Womens Rts. L. Rep. 185, 195 (Summer 1985); Stouder, supra note 92, at 1146 ("Theneed for confidentiality is illustrated by the increase in the number of anonymous calls to[Pittsburgh Action Against Rape ("PAAR")] and the number of women seeking to havetheir files destroyed after the lower courts decision in In re PAAR").71 Murphy, Gender Bias, supra note 7, at 17-18 (1997) (noting incidents where victimsdropped out of cases, including incident where defendant delayed trial three yearsbefore victim dropped out of case). See also Joo, supra note 7, at 282 n.169, 283 n.177(1995) (noting that counseling records contain all of victims previous medical andpsychiatric records, thereby giving defendants material "to have a field day with").72 MD. CODE ANN.Art. 27, § 776 (1993).73 ARIZ. REV. STAT.ANN. § 13-4437 (West 1991).74 United States v. McVeigh, 106 F.3d 325 (1997)75 To follow the bills progress from its inception to present, please log on tohttp://www.senate.gov/ and type in HR2130. The Hillory J. Farias and Samantha ReidDate-Rape Drug Prohibition Act of 2000 (HR 2130) in a nutshell: Related links: TheSamantha Reid Foundation76 NCJ 170600 New Directions from the Field: Victims’ Rights and Services for the 21stCentury77 Violence Against Women Grants Office, Domestic Violence and Stalking: TheSecond Annual Report to Congress,Washington,D.C.: U.S. Department of Justice,Office of Justice Programs,Violence Against Women Grants Office, July 1997 :1578 Szymanski, L., Rights of Victims of Juvenile Crimes Statutes Analysis, 1993 Update,National Center for Juvenile Justice, 1994:1-9. See also National Victim Center, 1996Victims’ Rights Sourcebook, § 13 (discussions of victims‘ rights at the juvenile level).See generally, Beatty, D., S. Howley, and D. Kilpatric79 Duggan, P., Reward Program Targets Witnesses to D.C. Homicides,WashingtonPost, March 23, 1994.80 NCJ 170600 New Directions from the Field: Victims’ Rights and Services for the 21stCentury 34