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Rape Victims Are Class Of Persons Often Defined By Gender
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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, 1996
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. Data on male victimization do not show that males
experience comparable victimizations and injury levels, do not account for women who
act in self defense, and do not measure financial control, intimidation, and isolation used
by perpetrators of domestic violence against women.
The gender issue is foremost in sexual assault issues, and is usually background in
general victimization. The unique cultural bias and shaming that accompanies rape
cases needs its own focused opposition. The history of rape law is a history of the law
used as a tool to protect rapists, rather than the raped. The anti-rape movement
confronts, 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 typical
informal defenses to rape charges. Blaming victims in rape cases may be an effective
means to secure acquittal. In contrast, blaming a robbery victim is typically ineffective
because robbery is unaccompanied by the same pernicious cultural myths. The nature
of stigma and abuse in rape cases is profound and unique; a criminal process that
mistreats 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 out
of every six American women have been the victims of an attempted or completed rape
in their lifetime (14.8% completed rape; 2.8% attempted rape). A total of 17.7 million
women have been victims of these crimes.6 In 2002, one in every eight rape victims
were male.7 93% of juvenile sexual assault victims knew their attacker; 34.2% were
family members and 58.7% acquaintances. Only seven percent of the perpetrators were
strangers to the victim.8
Rape Victims Are Class Of Persons Often Defined By Gender
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One of the most startling aspects of sex crimes is how many go unreported. The most
common reasons given by victims for not reporting these crimes are the belief that it is a
private 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.
16
Rapists are predators. Just like animal predators, they seek out the weakest and/or
most vulnerable prey. Rape is not about sex, it is an act of brutal violence. Rape causes
pain and suffering in the victim that may last a lifetime. It eats away at the soul and
destroys the quality of life. FBI estimates indicate that only 10 percent of rapes are
reported. Of those reported, in less than 25 percent are the rapists arrested. Of those
arrested, only about 3 percent are charged. Of those charged, no more than 35 percent
are convicted. In other words, most rapists are not caught.17 According to The National
Coalition Against Sexual Assault false rape reports only happen 2% of the time. That's a
98% chance that no matter how strange it sounds to you the rape isn't being fabricated.
Delayed reports also are common, particularly in acquaintance rapes. The majority of
mental health professionals surveyed (84 %) agreed that contact with social service
providers re-traumatizes rape victims. 18
Rape Victims Are Class Of Persons Often Defined By Gender
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Some reasons why women do not report rape seem are the fear of:
1) Ridicule
2) Personal questions asked by police investigators
3) Humiliating medical examinations
4) Publicity
5) Testifying in court
6) Fear that sexual past will come out in court
7) The victim has the burden to prove that the attack was forced, against her will, and
that she resisted the attack.
8) Justice system's inability to put the criminal away
9) Retaliation from assailant or his friends
These are real concerns that must be overcome before rapists may be brought to
justice. Rape statistics show that Rapists are on an ascending scale of violence with
each assault. More than 50% of all rapes occur in the home of the victim. More than
93% 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 women
as helpless and vulnerable. For example, in films, women are often depicted not only as
vulnerable victims, but as victims who, once raped, degraded and dehumanized, come
to accept this treatment and grow to love their attackers.
Myths have a manifest purpose of legitimizing aberrant behavior, such as rape. Studies
have shown that women as well as men believe in many rape myths and are aroused
by rape depictions. For example, some men believe that women will respond to sexual
force 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 behind
sexual 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 psychologist
Another myth is that women can resist rape of the really want to. First of all, men have
been raised differently than women. They have been trained to be physical and are
usually stronger and faster than women. Likewise, women have been traditionally raised
to be passive, weaker, and submissive to men. Such socialization enhances the
Rape Victims Are Class Of Persons Often Defined By Gender
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possibility of a successful rape. In addition, the rapist chooses the time and place for the
crime, 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 women
were committed by men who know their victims and data show this may be as high as
80%.
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 were
examined more than 24 hours after the rape. Of these rape victims only 2/3rds told
doctor they had been raped.19
Delayed reporting to hospitals and/or police is much more likely in non-stranger rape
than stranger rape.20 In the ―Victim Reporting Study - Beth Israel Hospital Rape
Crisis Intervention Program in which 1000 rape victims were interviewed. The statistics
showed that in Stranger rape 90% of rape victims reported in less than 24 hours. In
non-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. 21
All 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 passionate
acceptance." While it is true that some women have rape fantasies, these fantasies
usually do not center on force or pain but on being "swept off one's feet" by a handsome
stranger into a sexual liaison that one would not ordinarily entertain.
It can't happen to me is delusional belief that many women hold. Accepting the myth
that rape victims are always young and attractive, leads many women to believe they
are unlikely victims since they are not desirable. Remember rape is not a crime of sex; it
is a crime of violence. Sexual attractiveness is not a trait considered by rapists when
they are stalking victims.
Becoming the victim of a crime leaves victims – and those around them – in a state
where they are not thinking as clearly as they usually do, and they may feel
overwhelmed. There is often financial loss and physical injury connected with
victimization, but the most devastating part for many victims is the emotional pain
caused by crime. It is difficult for many victims to understand that someone else wanted
to hurt them. The experience of becoming a crime victim can shatter a person‘s life in a
variety of ways.
Becoming the victim of a crime is a major life stress. The victim may feel very
uncomfortable (in a state of "crisis"). It may be difficult for her to easily restore a sense
of balance in life. She may not be able to think clearly about what has happened, and
her feelings about the crime may be very strong. It can take a long time and a lot of
work to get back to the point where she feels comfortable again. Often rape victims are
Rape Victims Are Class Of Persons Often Defined By Gender
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not be as trusting of other people, as before or may be afraid to do the things she
normally 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 they
became the victim of a crime, or they may pretend that it did not happen at all. This may
last for only a few moments or it may go on for months — even years. Victims often
assume a more "childlike" state, and may need to be taken care of by others, at least for
a little while. In drug-facilitated rapes, the additional deprivation of cognition during the
assault, combined with anterograde amnesia afterwards, subjects the victim to an
extreme form of powerlessness which is profoundly traumatic.22
Crisis intervention and supportive counseling help victims move toward a new balance
more effectively, but it is not an easy process. It is very important that the rape victim
feel supported emotionally during this period.
A sexual assault can involve physical injuries or damage to the victim‘s body. Some of
these injuries are visible and some are not. It may not be possible to see the physical
injuries caused by a sexual assault or injuries that are covered by clothing or an injury
that happens inside the brain. Do not assume that a person is not injured simply
because the injury is not visible. As a result of the crime, some victims may experience
health-related problems such as headaches, stomach aches, etc. A person who already
has a disability may find that the disability becomes more severe after the crime. Even
when the physical wounds caused by crime have healed, the victim may continue to
experience 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' experiences
at the hands of their assailants that secondary victimization is sometimes called "the
second rape" or "the second assault." 23
Because most victims of drug-facilitated rapes have no memory of the sexual assault,
people may mistakenly minimize the trauma. Victims feel, powerlessness, and
humiliated by not knowing what was done to them. 24
People may disbelieve the rape victim, ridicule her, abandon, blame, ostracize,
sabotage, threaten, betray her, or side with the rapist against her. These painful and
dangerous reactions can come from family, friends, and authorities as well as from
people associated with the rapist. Many people fault the rape victim for what she may
have done before, during, or after. The most important thing for a counselor/friend to do
is 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, and
humiliated by not knowing what was done to them. 25
Rape Victims Are Class Of Persons Often Defined By Gender
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It fact, it's particularly devastating to rape victims when you're treated badly by the very
people you expected would help you. For many victims, witnesses and their family
members, the emotional injuries may be the most difficult and long-lasting effects of
being the victim of a crime. Many victims say the betrayal of these experiences is so
painful that it was worse than the rape itself. That's why, in the literature on rape, this all
too common abusive treatment of rape victims has been given the name, "the second
rape".
Social injuries are those caused by society. 26 A social injury occurs when the victim is
treated insensitively, does not think anyone cares or is not able to get the help she
needs. Anyone can cause a social injury: a friend or family member, a law enforcement
officer, 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 not
treat 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 and
long-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.
Rape Victims Are Class Of Persons Often Defined By Gender
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• 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 rape
victims are also very dangerous to the victim. These abusive reactions drive rape
victims into deepening isolation and despair. When these abuses gather steam, they
can turn the victim's whole social or family group against her. This can easily or to the
loss of the victim's connections to help. The disbelieving, blaming, and ostracizing of
rape victims is also dangerous to all women and girls. Driving rape victims into
isolation and despair is one of the ways a male dominated society supports the ongoing
existence of rape.
Here are some of the reasons that alone or in combination that people mistreat rape
victims. Some people side with the rapist and mistreat the victim because: We still live
in a male dominated society in which men and their organizations control most of the
power. Rape itself is a crime of dominance. After a rape occurs, the sexist, male views
of rape frequently resurface with a vengeance. These views easily gather steam, join
forces 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 the
victim.
In addition to the biases of sexism working against the victim, it's just plain easier for
people to side with the rapist. Remember, in most rapes the rapist and the victim do
know each other. Once the victim makes the charge of rape, the people around both the
victim and the rapist are forced to take sides. It's almost always easier to take the side
of the rapist. If people believe the rapist, they can simply abandon the victim to fend for
herself. But if people believe the victim, they then have to go up against the rapist and
take action against him. Sadly, many people just don't have the courage or strength of
conviction to stand up to the rapist and his powerful allies. The rapist has a criminal
mentality and he is willing to lie, manipulate, threaten, and bully others once the charge
of rape is made. The victim, on the other hand, is wounded and often too weak to
defend herself. In addition, she is not a criminal and as such she is not willing to bully or
intimidate others who don't support her. Once the rapist starts bullying, lying, and
rallying his buddies to his side, even the victims' supporters often become afraid and fall
silent 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 that
people 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 was
raped. These old constrictions on female behavior provide ample and convenient cover
for those who want a way out of having to stand up against a rape. Authorities too often
don't take rape seriously. When authorities don't take the rape seriously, people around
the victim get the message they don't have to take the rape seriously either. Once
Rape Victims Are Class Of Persons Often Defined By Gender
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authorities show they aren't taking the rape seriously, any support the victim has been
able to maintain generally begins to erode rapidly.
Taken alone or together, these continuing manifestations of sexism in society make it so
much easier for cowardly people to accuse the victim of lying rather than to accuse a
man of rape. Erosion of the rape victim's support usually doesn't happen right away. In
fact, initial reactions to rape victims are often good. Authorities usually take an initial
report. Friends of the victim usually start out by accompanying and supporting the
victim, and family members often initially show great concern. It generally takes a little
time for the perpetrator to start organizing his own support and begin bullying, lying, and
retaliating in a way that erodes the victim's initial support. This lead time gives the victim
and her advocates an opportunity to prevent the buildup toward targeting the victim. The
negative reactions in the rape victim‘s vital relationships and social groups turn against
the victim and then it's 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 Committee
Many rape victims have a very difficult time deciding whether or not to report the rape to
police. In fact, in the United States less than one out of six rape victims report the rape
to police. And very few of these victims report the rape right away. This is tragic
because the criminal justice system has more power to help rape victims than any other
institution. The criminal justice system, and only the criminal justice system, has the
power 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 only
system that can intervene with force when her safety is threatened. The criminal justice
system is also the only system that can put the criminal investigation findings and
testimony on the public record. That record of truth finding is essential for justice. And
justice is essential to her healing and to the healing of the community. Justice is also
essential to stopping future rapes. As a rape victim she has a right to have this immense
criminal justice system powers work for her.
Drug Facilitated Sexual Assault Victims Are Treated Disparately
The current law is wholly insufficient to address the problems of drug assisted rape and
the problems confronted by the victims of such a rape. Drug-facilitated sexual assault is
not a new phenomenon. Experienced law enforcement officers and advocates know
that alcohol is the most common drug used to facilitate sexual assault. Alcohol has been
used as a method to facilitate sexual assault for years and remains the most widely
used drug today.
Rape Victims Are Class Of Persons Often Defined By Gender
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Rape drugs make it relatively easy for rapists to gain control of their victims. The
surreptitious drugging of a victim is, in and of itself, a cruel and criminal violation of the
person. The rapist does not have to overcome any form of resistance. There is no need
for 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 that
occurred during the time the drug was in effect are forgotten.30 Victims may not seek
help until days after the assault, partly because the drug impairs their memory and
partly because of their inability to recognize signs of sexual assault. Anterograde
amnesia is a condition in which events that occurred during the time the drug was in
effect are forgotten.31
Drug-facilitated rape presents its victims and law enforcement personnel with an
additional set of challenges above and beyond those associated with other sexual
assaults. Often referred to as ―date-rape drugs, Rohypnol, GHB, and ketamine 32 are
used by rapists to render women unconscious, making them unable to resist unwanted
sexual advances. The American Prosecutors Research Institute defines ―drug-
facilitated rape as: sexual assault facilitated by the offender‘s use of an anesthesia-type
drug which when administered to the victim (stealthily or not) renders the victim
physically incapacitated or helpless, and thus incapable of giving or not giving consent.
GHB may cause enhanced sexual feelings by the victim. Victim may participate in
reciprocal acts, as a result of the drug, rather than free will. These victims may be either
be conscious or unconscious during their sexual assault and have anterograde amnesia
upon gaining normal consciousness, similar to the effects of a surgery patient coming
out of anesthesia.33
There is a widely held misconception about the effects of the drugs commonly
associated with drug assisted rape. Despite the prototypical construction, the reality is
that people who have ingested drugs such as Rohypnol and GHB rarely lose
consciousness. Rather, the amnesiac effects of the drugs prevent victims from
recollecting events thus creating a memory void that the brain rationalizes as a period of
unconsciousness. However, the victim will retain consciousness whilst appearing to the
observer to be inebriated but able to act under her own volition (Dowd, Strong, Janicak
and Negrusz, 2002)34. By eliminating the possibility of consent, the prototypical
construction focuses attention on the use of drugs to obtain intercourse (from a victim
who 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 that
is a more accurate representation of the majority of cases of drug assisted rape. Drugs
such as Rohypnol and GHB lower anxiety, alertness and inhibition whilst inducing
euphoria, passivity and a sense of relaxation thus increasing the likelihood that the
victim will engage in intercourse, even if such behavior would usually be
uncharacteristic, leading them to be described as a particularly formidable weapon in
sexual assault cases (Weir, 2001, p. 80).35
In addition to this impact on the victim‘s thinking and behavior, these drugs induce
anterograde 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
Rape Victims Are Class Of Persons Often Defined By Gender
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encounter suspicion, disbelief, and/or frustration.36 Many aspects of a rape
investigation are facilitated by a victim‘s ability to describe what happened. The victim‘s
narrative helps guide the medical/evidentiary examination and the police investigation.
Their inability to supply information that could assist the investigation and/or prosecution
compounds their sense of helplessness.37 The amnesiac impact of these drugs has
been described as their most insidious effects‘ and clearly has a negative impact on the
ability to detect and prosecute perpetrators of drug assisted rape (Labianca, 1998). 38 It
would appear that Rohypnol and the like facilitate rape not because they render the
victim unconscious but because they lead to a disassociation between mind and body
that renders the victim receptive to sexual activity that she may well have found
unwelcome in other circumstances, whilst eroding her ability to recollect events once
the drugs have worn off. To onlookers the victim may appear drunk or impaired and the
rapist taking the victim to another place may appear to onlookers as assisting an
impaired person. While the victim is still under the effects of the drug which may last 72
hours, the rapist has plenty of time to create a plausible cover story.39 Some drugs stay
for a couple of days, but GHB, the most popular for obvious reasons, very quickly
dissipates from the system. There is no screening test for GHB; it requires a
confirmation test that hospitals cannot do and crime labs only do upon specific request.
Discriminatory Treatment by the Justice System
Many rape victims still despair of obtaining justice, and for good reason. It is true that
police, 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 crime
again. There are estimates that as many as 20% of all rapes are facilitated with
drugs.40
Real rape in the context of drink spiking, is often considered to be demonstrated when a
woman claims to have been sexually assaulted, and her allegation is supported by a
positive toxicology test. Forensic evidence of a CNS depressant as the weapon used to
overcome resistance ultimately signals a lack of consent.41 But a negative toxicology
report often just means that we didn‘t get the evidence taken soon enough, for a variety
of reasons. This is still rape!
The most common abuse of criminal justice officials against rape victims is that these
officials frequently try to dump rape cases. It is well documented in many sources that
widespread dumping of rape cases goes on today in law enforcement agencies around
the country. Often law enforcement doesn‘t even allow the sexual assault victims is the
right to be accompanied at all times throughout the criminal justice process by a victim
advocate and by a support person of the victim‘s choice. This is the best way to protect
the rape victim from abuse in the criminal justice system. The problem is that because
of the trauma of the rape, most rape victims feel very unsure of themselves. They often
don't trust their own judgment. Rape victims often find it difficult to admit they're being
mistreated by the people who are supposed to be helping them. And they find it even
more difficult to protest the abuse. Officials may respond to the rape victim with
disrespect, lack of concern for her safety, an accusatory tone, disbelief, lack of interest,
Rape Victims Are Class Of Persons Often Defined By Gender
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annoyance, intimidation, or even attempts to isolate her from her support person. One
of the most common and easiest ways that officials have of dumping a rape case is to
simply ignore her. The reason this works so well is that rape victims find it very difficult
to assert themselves and even more difficult to push the police. Long delays in returning
phone calls, unclear explanations about what happens next, sloppy answers to the rape
victims questions, or disinterest in answering her questions is common. The official may
be unwilling to ask about the victims needs and accommodate them. Failure to be
openly 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 pursue
a rape case, officials must pay close attention to the needs of the victim. Incomplete
investigation is another very common way that officials dump rape cases. If officials
don't gather all the evidence, then it's easy for them to tell the rape victim, "We're very
sorry, we'd like to help, but there's not enough evidence to go forward with your case." If
an official tells her there's not enough evidence, or that her case is a 'he said, she said'
case, or that the district attorney won't file, or that the defense will attack the rape victim
for this or that, it may very well be that the official is just trying to get rid of her. Officials
attempt to divert the rape victim and to remove her case out of the criminal justice
process. Rape is a violent crime, and it's the job of police and prosecutors to investigate
the case thoroughly, to protect the rape victim‘s safety, and to do everything possible to
obtain 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 Justice
The police interview is the single most significant piece of evidence in a rape case.42
Whenever a rape victim is interviewed, the official should: allow the rape victim to be
accompanied by an advocate. The support person should take notes, tape record the
interview, should ask the victim in detail about events leading up to the rape, events
during the rape, and events that followed the rape. The official should listen carefully to
all the rape victim‘s suggestions for leads to evidence and witnesses in the case. When
interviewing the rape victim, the official should never interrogate the rape victim even if
there are contradictions in her story, should not try scare the victim out of reporting or
testifying by telling her how the defense team can attack her, should not attempt to
isolate her from her advocate and support persons, and should never in any way imply
that she is to blame for the rape. But hostile interrogations of rape victims are common.
Rape Victims Are Class Of Persons Often Defined By Gender
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During their initial contact with law enforcement officers, victims of crime should receive
verbal and written information about victims’ rights and services. Law enforcement
personnel should be required to follow up with victims because many individuals are
unable to comprehend assistance and compensation information in the immediate
aftermath 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 Forum
The drug facilitated sexual assault victim may remember little, if any, about the sexual
assault itself. The victim's account of the events may have many missing parts. For drug
facilitated assault victims, telling what they recall is difficult and their uncertainty as to
what occurred may cause them extreme anxiety. Often, the perpetrator was a "trusted"
acquaintance and the victim may feel the incident was somehow her fault. 43
The Law Enforcement Officer should do careful witness interviews. Although the victim
statement is crucial to the investigation, persons who saw the victim, or spoke to the
victim, before, during and after the assault are critical witnesses. Often, it is such
witnesses who establish time frames, notice unusual behavior, provide critical facts and
can identify potential sources of information.44
The ingestion of drugs by the victim (either voluntarily or surreptitiously) is often used
against the victim by the criminal justice system. Her apparent association with "risky"
behavior lessens her credibility and increases her perceived culpability while
diminishing the suspect's. a victim's cooperation to go "somewhere private" with the
suspect is not an invitation to rape her and should never be viewed by the criminal
justice system as an indication of consent. Secondly, investigators should keep in mind
that many drugs like GHB and Flunitrazepam sedate the victim and often cause
confusion and disorientation. Thus, while the victim may have appeared to voluntarily
accompany the suspect, the victim's actions may have been the result of "drug
submission" or some other effect of the drug on the victim and her capabilities. Memory
loss, dizziness, confusion, drowsiness, slurred speech, impaired motor skills, impaired
judgment, reduced inhibition or a variety of other symptoms. The victim may also
appear intoxicated or "hung-over".
Today‘s drugs may at some point render a victim unconscious, but even worse, at least
initially, and, depending on which drug is used and/or the amount given, the victim may
appear to participate or may even appear to be the aggressor early on in the attack. The
beverages 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
Rape Victims Are Class Of Persons Often Defined By Gender
13
becomes helpless, weak, and, perhaps, unconscious. Victims become so intoxicated
that they can't resist or escape the rapist or even call out for help. Waking up with little
idea of what has taken place, a sneaky suspicion (or obvious evidence) of sexual
activity, leaves one confused, dazed and hesitant to run to the police. This results in a
delay as the victim attempts to piece together her plight. By the time she comprehends
the situation; precious time has been lost in terms of collecting evidence.
An additional challenge in investigating drug-facilitated sexual assault is the loss of
evidence due to the very nature of the drugs used. Many of these drugs metabolize so
quickly in the body that it becomes difficult to detect them in the victim. Because most
victims delay reporting, this compounds the challenge of corroborating the use of a drug
to facilitate the sexual assault.
The investigator must carefully deduce from the types of drugs used to facilitate the
sexual assault, the effects these drugs had on the victim, and an account of the events
surrounding the actions of everyone involved. The following is a list of the types of
evidence an investigator should process from the victim.
The investigator may be the first to suspect the victim was drugged to facilitate a sexual
assault. As we have discussed, if the ingestion of a drug may have occurred within the
last 96 hours (4 days), the victim should be advised not to urinate until a urine specimen
can be collected.
The Drug as a Weapon
One legal approach to the problem of drug facilitated assault is to identify the broad
category 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. Implicit
within the ―Drugs as Weapons metaphor is a concern with the victim‘s capacity to
consent.
GHB (gamma-hydroxybutyrate), a Schedule I drug under the Controlled Substances
Act, is a powerful central nervous system depressant that is used illicitly, often for its
euphoric and sedative effects but also for the commission of drug-facilitated sexual
assault. GHB trafficking and abuse have become a particular concern to law
enforcement and public health agencies because of increasing availability of the drug in
some areas, sharp increases in mentions for GHB since the mid-1990s, and the use of
GHB in the commission of drug-facilitated sexual assault. Federal, state, and local law
enforcement agencies in every region of the country report that GHB appears to be the
substance most commonly used in drug-facilitated sexual assaults because of its
powerful sedative properties. Gamma HydroxyButyrate commonly referred to as a date
rape-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
Rape Victims Are Class Of Persons Often Defined By Gender
14
incapable 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 commit
sexual assault, the drug typically is mixed into victims' drinks--usually without their
knowledge--to mask the drug's salty taste. GHB is rapidly absorbed and metabolized by
the body. Detectable levels of GHB may remain in urine for approximately 8 to 12 hours
and in blood for 4 to 8 hours after ingestion. Routine blood or urine testing do not screen
for GHB; therefore, it is important to specifically request a GHB screen as soon after the
assault as possible. Detectable levels of undigested GHB may be found in victim's
vomit; vomiting is a common effect of GHB use.
On February 18, 2000, the "Hillory J. Farias and Samantha Reid Date-Rape Prohibition
Act of 1999" (Public Law 106-172) was signed into law, legislating GHB as a Schedule I
controlled substance. GBL was also regulated under this law as a List I controlled
chemical. Illicit use of GHB analogs may now be prosecuted as Schedule I substances
under 21 U.S. Code § 813. GHB analogs are treated as controlled substances under
Federal law only if intended for human consumption. According to 21 U.S.C. § 813, "a
controlled substance analogue shall, to the extent intended for human consumption, be
treated, 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 same
manner as offenses involving GHB. (See 21 U.S.C. § 802(32) for the definition of a
controlled substance analogue.) 46
Discrediting The Rape Victim And The Rape Shield Law
The United States has a shameful history in its treatment of rape victims in the criminal
judicial system. Especially perceptible in the courtroom, women's allegations have been
discredited under a legal philosophy that women are disposed to fabricate charges of
rape. As a consequence, rape victims became the focus at trials where trial procedures
endeavored to discount victims and communicate to juries that their stories were
unworthy of belief. Even though the United States Supreme Court and state supreme
courts have recognized a constitutionally protected right to privacy, 47 rape victims'
allegations continue to be treated with mistrust by the courts as defendants are
permitted 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 to
cooperate in the criminal process for fear of re-victimization and degradation.48 People
who suspected abuse did not come forward for fear their identities would be revealed.
Defendants have successfully used access to counseling records as a harassment
technique, hoping to induce victims to drop charges. Prominently, "over the past
decade, it has become increasingly common for defense counsel in criminal cases to
seek access to personal, confidential, and even privileged information of victims and
witnesses, including records of therapeutic counseling."
Rape Victims Are Class Of Persons Often Defined By Gender
15
In fact, defendants routinely accessed victims' entire medical and psychological
histories, 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 eating
disorders, vaccines, mastectomies, genetic history, HIV status, history of cancer and
even painful childhood incidents. It was a successful defense strategy to request as
many 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 that
the privilege protecting rape victims' confidential communications had become
ineffectual and victims were forced to choose between prosecution and counseling. 50
Thus, although rape victims have been promised privacy in the information they
disclosed to counselors, this information has become routinely disclosed to defendants
under arguments that federal and state constitutional rights to a fair trial outweigh any
evidentiary privileges afforded to victims. So unfortunately, rape victims are often the
casualties in these legal battles as their most painful and personal thoughts are opened
to the defense after promises of confidentiality. As a consequence of this abuse of
process many rape victims felt forced to choose between seeking help and prosecuting
their attacker. 51
In fact, the fear and harassment of disclosure led many victims to choose between
prosecution and counseling. Thus, rape remains one "of the most underreported crimes
in America." Victims feel alone and helpless and will not request aid and support without
assurances of confidentiality. Persons who suspect abuse often will come forward if
they fear their identities may be revealed.
The Court of Pennsylvania was asked in Wilson, 602 A.2d at 1295-98 52 to determine
the constitutionality of this absolute privilege for communications between victims and
sexual assault counselors. The court denied the defendant access to the victim's
counseling records, ruling that the government has a compelling interest in assisting
rape 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 victim
but also to society, whose interest in the report and prosecution of sexual assault crimes
is furthered by the emotional and physical well-being of the victim." Pennsylvania
concluded that absolute privileges may be given effect by recognizing a compelling
governmental interest in assisting rape victims heal from the trauma caused by sexual
assault. 53 In a subsequent decision, the court held that defendants could not access
victims' records until a judge had determined in camera that the information was
relevant. 54, 55
Moreover, the court concluded that a materiality standard was necessary to give full
effect 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 professional
assistance to alleviate the psychological scarring caused by the crime, which may be
more damaging than the physical invasion itself.
Rape Victims Are Class Of Persons Often Defined By Gender
16
2) 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 assault
and may not be able to face the grueling nature of the adversary process that occurs at
trial.56
The United States Supreme Court attempted to settle this controversy in Pennsylvania
v. Ritchie 57 by balancing the respective rights of the defendant and the victim.
However, the United States Supreme Court's lead in resolving the conflict has been
tenuous as states have responded to the Ritchie decision in disparate fashion.
Unfortunately, many rape victims have seen the protections provided by evidentiary
privileges dwindle to ineffectual words. Rape victims are often the casualties in these
legal battles as their most painful and personal thoughts are opened to the defense after
promises of confidentiality.
Massachusetts's experiences illustrate the problems with granting defendants easy
access to victim's confidential counseling records under a lesser standard than
materiality. In 1991, the Supreme Judicial Court of Massachusetts held that a defendant
must be given full access to privileged counseling records.58 Furthermore, after the
defendant's examination of the files, the trial judge must hold an in camera review to
determine, under ordinary evidence rules, the admissibility of the information the
defendant wishes to admit at trial. 59 Since this ruling, defendants began "routinely
requesting rape crisis center counseling records to search for evidence to impeach the
victim's credibility."60 Moreover, defendants used access to counseling records as a
harassment technique, hoping to induce victims to drop charges. 61
In some jurisdictions, when an absolute privilege is in question the court is permitted to
distinguish Ritchie and forbid disclosure of victims' counseling records to defendants
seeking to use the information at trial. As support for the constitutionality of absolute
privileges, many courts have relied on Justice Powell's reasoning that the Confrontation
Clause is not violated by an evidentiary privilege if the defendant is given the
opportunity to cross-examine the witnesses.62
Currently, every state, as well as the District of Columbia, recognizes an evidentiary
privilege for patient communications with a therapist.63 Many states, including Kansas
and Washington, have enacted evidentiary privileges that forbid disclosure of victims'
counseling records under any circumstance. 64
The Confrontation Clause should not include the power to require the pretrial disclosure
of any and all information that might be useful in contradicting unfavorable testimony.
Currently, every state, as well as the District of Columbia, recognizes an evidentiary
privilege for patient communications with a therapist. 65
In fact, rape victims' most common response to rape is the belief that they are somehow
responsible for the attack.66 Therapists persuade rape victims to disclose this fear in
order to help them heal from the psychological effects of the assault. 67 Because of the
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17
intimate and deep damage sexual assault inflicts on its victims, "effective psychotherapy
depends upon an atmosphere of confidence and trust in which the patient is willing to
make a frank and complete disclosure of facts, emotions, memories, and fears." 68
Thus, "the mere possibility of disclosure may impede development of the confidential
relationship necessary for successful treatment." 69 In fact, because of the highly
personal nature of rape and surrounding social stigma, a sexual assault survivor is more
likely than the general population to be deterred from seeking counseling without
assurances of confidentiality.70
Rape crises centers exist to provide rape victims with effective counseling and support
services. Ironically, their very creation may act as a magnet for defendants to access
rape victims' counseling records. And, despite statutory privileges protecting counseling
records, rape victims continue to be treated with distrust by the courts as their records
are 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 or
even delay trial until victims give up.71 One of the greatest hardships victims endure in
the criminal justice process, is the delay of scheduled proceedings. Just as defendants
have the right to a speedy trial, so too should crime victims. Repeated continuances
cause serious hardships and trauma for victims as they review and relive their
victimization in preparation for trial, only to find the case has been postponed. Delays
are 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 of
continuances is particularly difficult for victims whose memories may fade over time or
whose health may deteriorate.
In the aftermath of victimization, victims may have many different needs. Victims who
report crime need information, assistance and protection when they choose to
participate in the criminal and juvenile justice process. Not only should victims have the
right to be heard or consulted in decisions that affect them, but they should receive
protection if they are witnesses and transportation to and from legal proceedings.
Regardless of whether they report the crime, many victims need emergency and
ongoing services such as health care, shelter, lock replacement, cash assistance, social
and 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
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18
RECOMMENDATION FROM THE FIELD #10
Victims of crime should receive assistance in exercising their participatory rights.
Advocates should be available to explain rights to victims, help them to exercise those
rights and, when necessary, serve as their representatives in court and other key justice
processes when victims are underage or incapacitated or if representation is otherwise
appropriate. One of the greatest barriers to victims participating in justice proceedings is
their not having the means to do so. Many victims cannot afford to pay for parking, child
care, or time off from work. Others do not have the resources to cover transportation
costs 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, victims
should have the right to be tested and to have the accused or convicted offender tested
at appropriate times for the HIV virus and sexually transmitted diseases. State statutes
should require these tests to be conducted by specially trained personnel who can
advise victims of the reliability, limitations, and significance of the test, as well as HIV
treatment options. In addition, laws should specify the agency that will pay for HIV
testing, pre and posttest counseling, as well as treatment for any victims who test
positive.
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 the
limited reliability of a negative test result. States frequently counseling in conjunction
with testing, but specifications vary widely from jurisdiction to jurisdiction.
State and federal laws should allow, and criminal and juvenile justice agencies should
facilitate, community impact statements as a means for members of a neighborhood or
community that has been impacted by crime to have input into sentencing. In many
cases, neighborhoods and communities as well as individuals are victims of crime. This
is especially true in drug, gang, and prostitution cases where criminal activity endangers
and degrades entire neighborhoods, affecting property values and quality of life issues.
Victims should have standing to enforce their rights, and sanctions should be applied to
criminal and juvenile justice professionals who deny victims their fundamental rights.
Although more than 27,000 state and federal laws have been enacted to protect and
enforce the interests, rights, and services for crime victims, the consistent
implementation and enforcement of these laws is an area of great concern. Victims
report that criminal and juvenile justice officials at times disregard their statutory and
constitutional 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 when
they are disregarded. While limited legal remedies such as court-ordered injunctions
and writs of mandamus are generally available to force criminal justice personnel to
comply with the law, states are beginning to pass laws that provide specific statutory
remedies and recourse for crime victims. A Maryland statute enables victims of violent
crimes to apply for leave to appeal any final order that denies victims certain basic
rights.72 Arizona law grants victims the right to challenge post conviction release
Rape Victims Are Class Of Persons Often Defined By Gender
19
decisions resulting from hearings at which they were denied the opportunity to receive
notice, attend, or be heard. Arizona law allows victims to sue for money damages any
government entity responsible for the intentional, knowing or grossly negligent violation
of the victims’ rights.73 It is critical that effective measures be available to remedy
violations of victims‘ rights, including authority for the government to obtain redress
through applications for mandamus and appeal. The need for this reform in federal
proceedings is illustrated by the first trial in the bombing of the Alfred P. Murrah Federal
Building, in which the trial court ruled that victims would not be allowed to attend the trial
if they wished to be heard at the sentencing stage. On review, the Tenth Circuit Court of
Appeals held that victims had no standing to assert their right to be present and that the
government could not enforce that right by appeal or by seeking a mandatory order. 74
Victims of crime should have rights at administrative proceedings, including the right to
have a person of their choice accompany them to the proceedings, the right to input
regarding 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 Congress'
judgment that possession and distribution of GHB should be prohibited and those
violators 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 2/18/2000
It is generally accepted by those working with rape victims and also those working to
enforce the Controlled Substances Act that we need to improve how we handle drug
facilitated sexual assaults. SB 1561 (The Samantha Reid Date-Rape Drug Control Act
of 1999) has merged into H.R. 2130 to be called The Hillory J. Farias and Samantha
Reid Date-Rape Drug Prohibition Act of 2000. The Hillory J. Farias and Samantha
Reid Date-Rape Drug Prohibition Act of 2000 or Public Law 106-172 of the 106th
Congress was enacted by the Senate and House of Representatives - (21 USC 812
note, 21 USC 801 note) to amend the Controlled Substances Act to direct the
emergency scheduling of gamma hydroxybutyric acid, to provide for a national
awareness campaign, and for other purposes.
Rape Victims Are Class Of Persons Often Defined By Gender
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In 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 submit
to Congress an Annual Report Regarding Date-Rape Drugs and also institute a National
Awareness Campaign. (21 USC 801 note). It is stated that The Secretary, in
consultation with the Attorney General, shall develop a plan for carrying out a national
campaign to educate individuals described in subparagraph (B) on the following:
(i) The dangers of date-rape drugs.
(ii) The applicability of the Controlled Substances
Act 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 young
adults, youths, law enforcement personnel, educators, school nurses, counselors of
rape victims, and emergency room personnel in hospitals.
PUBL172
In addition in section 8 there was established a special unit in The Drug Enforcement
Administration for assessment of abuse and trafficking of GHB and other controlled
substances and drugs which shall assess the abuse of and trafficking in gamma
hydroxybutyric acid, flunitrazepam, ketamine, other controlled substances, and other so-
called designer drugs whose use has been associated with sexual assault. The DEA‘s
particular duties included: (1) examine the threat posed by the substances and drugs
referred to in that subsection on a national basis and regional basis; and (2) make
recommendations to the Attorney General regarding allocations and reallocations of
resources in order to address the threat. In addition the DEA is permitted to reallocate
the existing resources as appropriate and additional resources were also designated by
Congress. In addition, the section SEC. 5 Controlled Substances Analogues
subparagraph (B) includes the designation of gamma butyrolactone or controlled
substance analogue as a listed chemical and adds DEA control under (b) the
distribution with the intent to commit a crime of violence.
Making GHB Schedule 1 makes it a crime to possess, manufacture, or sell GHB or its
precursors, with up to 20 years jail time for it. It will be in the same drug class as
marijuana or heroin.75
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21
H.R. 2130 Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999
cleared congress and would have allowed the DEA to pursue crimes related to GHB
more vigorously. The act‘s designations for GHB and GB would increase the penalties
for unauthorized manufacturing or distribution of these substances and would tighten
federal control over their use. As a result, the federal government would be able to
pursue cases that it otherwise would not be able to prosecute. Because those
prosecuted and convicted of offenses under H.R. 2130 could be subject to criminal
fines, 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) which
are deposited in the Crime Victims Fund and spent in subsequent years. Because any
increase 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 Network
Since 1982, a substantial number of the 68 recommendations in the President‘s Task
Force on Victims of Crime Final Report have been enacted and implemented due in a
large part to the efforts of crime victims.76 These accomplishments include the Victims
of Crime Act in 1984, the landmark Crime Act of 1994, the countless state statutes that
strengthen victims’ rights and hold offenders accountable to their victims, and the 29
state 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 victim
advocacy groups, all 50 states and the District of Columbia modified their laws to
criminalize stalking.77 Some state legislatures also reacted swiftly to the escalation of
juvenile crime to record levels in the early 1990s by extending at least some rights to
victims of juvenile offenders. In 1992, for example, only five states provided victims the
right to be notified of a disposition hearing involving a juvenile. By 1995, 25 states
provided this right.78 In spite of this record of success; however, victims are still being
denied their right to participate in the justice system. Many victims‘ rights laws are not
being implemented, and most states still have not enacted fundamental reforms such as
consultation by prosecutors with victims prior to plea agreements, victim input into
important pretrial release decisions such as the granting of bail, protection of victims
from intimidation and harm, and comprehensive rights for victims of juvenile offenders.
Rape Victims Are Class Of Persons Often Defined By Gender
22
The right to protection from intimidation, harassment, and retaliation by offenders and
the accused is becoming a major focus of public and law enforcement attention. Justice
officials report an increase in the harassment and intimidation of witnesses, making it
increasingly difficult to obtain convictions because crime victims and witnesses are
afraid to testify.79 Legislatures have attempted to address this problem by mandating
no contact orders as a condition of pretrial or post trial release. In addition, victims’ bills
of rights generally require victims to be notified at the outset of the judicial process
about legal action they can take to protect themselves from harassment and
intimidation. Harassment or intimidation of a victim or witness by a defendant or
convicted offender should result in automatic revocation of pretrial or supervised post
trial release, and should be considered an aggravating factor in sentencing. Such
violations should be charged and prosecuted under relevant anti-harassment,
intimidation, and stalking laws. Any punishment imposed for the separate crime of
intimidation should run consecutively after the sanction for the original crime. All
protective orders, including those issued as a condition of release, should be
maintained in a central, automated database that can be accessed by law enforcement
and other justice officials throughout the country. Violations of protective orders should
be 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 time
deemed 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)
21-3525
Chapter 21.--CRIMES AND PUNISHMENTS
PART II.--PROHIBITED CONDUCT
Article 35.--SEX OFFENSES
21-3525. Evidence of complaining witness' previous sexual conduct in
prosecutions for sex offenses; motions; notice.
(a) The provisions of this section shall apply only in a prosecution for: (1) Rape, as
defined 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 indecent
liberties 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 and
amendments 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
Rape Victims Are Class Of Persons Often Defined By Gender
23
K.S.A. 21-3511, and amendments thereto; (7) sexual exploitation of a child as defined in
K.S.A. 21-3516, and amendments thereto; (8) aggravated sexual battery, as defined in
K.S.A. 21-3518, and amendments thereto; (9) incest, as defined in K.S.A. 21-3602, and
amendments thereto; (10) aggravated incest, as defined in K.S.A. 21-3603, and
amendments thereto; (11) indecent solicitation of a child, as defined in K.S.A. 21-3510
and amendments thereto; (12) aggravated assault, as defined in K.S.A. 21-3410, and
amendments thereto, with intent to commit any crime specified above; (13) sexual
battery, as defined in K.S.A. 21-3517, and amendments thereto; (14) unlawful voluntary
sexual 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, as
defined in K.S.A. 21-3302, and amendments thereto, to commit any crime specified
above.
(b) Except as provided in subsection (c), in any prosecution to which this section
applies, evidence of the complaining witness' previous sexual conduct with any person
including the defendant shall not be admissible, and no reference shall be made thereto
in any proceeding before the court, except under the following conditions: The
defendant shall make a written motion to the court to admit evidence or testimony
concerning the previous sexual conduct of the complaining witness. The motion must be
made at least seven days before the commencement of the proceeding unless that
requirement is waived by the court. The motion shall state the nature of such evidence
or testimony and its relevancy and shall be accompanied by an affidavit in which an
offer of proof of the previous sexual conduct of the complaining witness is stated. The
motion, affidavits and any supporting or responding documents of the motion shall not
be made available for examination without a written order of the court except that such
motion, affidavits and supporting and responding documents or testimony when
requested shall be made available to the defendant or the defendant's counsel and to
the prosecutor. The defendant, defendant's counsel and prosecutor shall be prohibited
from disclosing any matters relating to the motion, affidavits and any supporting or
responding documents of the motion. The court shall conduct a hearing on the motion in
camera. At the conclusion of the hearing, if the court finds that evidence proposed to be
offered by the defendant regarding the previous sexual conduct of the complaining
witness is relevant and is not otherwise inadmissible as evidence, the court may make
an order stating what evidence may be introduced by the defendant and the nature of
the questions to be permitted. The defendant may then offer evidence and question
witnesses in accordance with the order of the court.
(c) In any prosecution for a crime designated in subsection (a), the prosecuting attorney
may introduce evidence concerning any previous sexual conduct of the complaining
witness, and the complaining witness may testify as to any such previous sexual
conduct. If such evidence or testimony is introduced, the defendant may cross-examine
the witness who gives such testimony and offer relevant evidence limited specifically to
the rebuttal of such evidence or testimony introduced by the prosecutor or given by the
complaining witness.
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24
(d) As used in this section, "complaining witness" means the alleged victim of any crime
designated 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 Laws
Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery of
rape victims outweigh defendant's constitutional rights). 667 N.E.2d 847, 852-854
(Mass. 1996) The court concluded that a materiality standard was necessary to give full
effect to the important goals underlying the privilege.
S.C. Const. art I, § 24(B). The Constitution provides "the rights created in this section
may be subject to a writ of mandamus, to be issued by any justice of the Supreme Court
or 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 victim
right). Utah Code Ann. § 77-38-11(2)(a)(i) (2004) (declaring "victim may bring an action
for... a writ of mandamus"). Ariz. Rev. Stat. § 13-4437 (2004). The statute provides: the
victim has standing to seek an order or to bring a special action mandating that the
victim be afforded any right or challenge and order denying any rights guaranteed to
victims under the victims' bill of rights, article II, Sec. 2.1, Constitution of Arizona, any
implementing 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 to
appeal... from an interlocutory or final order...." Utah Code Ann. § 77-38-11(2)(a)(i). The
Code provides that "the victim [may] bring an action for declaratory relief or for a writ of
mandamus defining or enforcing the rights of victims and the obligations of government
entities under the Rights of Crime Victims Act."
Rape Victims Are Class Of Persons Often Defined By Gender
25
RAPE SHIELD STATUTES
As of June 28, 2006
ALABAMA 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. § 40
MICH. 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)
Rape Victims Are Class Of Persons Often Defined By Gender
26
OHIO 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)
Rape Victims Are Class Of Persons Often Defined By Gender
27
References:
1 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS).
Bureau of Justice Statistics, U.S. Department of Justice
2 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 sexual
assault, 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.pdf
http://www.rainn.org/statistics/index.html
4 National Crime Victims Rights Resource Guide 2005
www.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 Justice
6 Prevalence, Incidence and Consequences of Violence Against Women Survey,
National Institute of Justice and Centers for Disease Control and Prevention, 1998
7 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS).
Bureau of Justice Statistics, U.S. Department of Justice
8 Sexual Assault of Young Children as Reported to Law Enforcement. Bureau of
Justice Statistics, U.S. Department of Justice, 2000
9 1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S.
Department of Justice.
10 2000 NCVS
11 2000 NCVS
12 Sex Offenses and Offenders. Bureau of Justice Statistics, U.S. Department of
Justice, February 1997:
13 Sexual Abuse of Boys, Journal of the American Medical Association, December 2,
1998
14 2002 Recidivism and Release Statistics 1994 For more statistics and links to all
primary sources, see RAINN‘s Statistics Archive
15 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.html
17 "Promoting US Department of Justice Office of Justice Programs An Analysis of data
on Rape and Sexual Assault. Sex Offenses and Offenders
www.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf
18 Secondary Victimization of Rape Victims: Insights from Mental Health Professionals
Who Treat Survivors of Violence by Rebecca Campbell, and Sheela Raja, University of
Illinois at Chicago Published: Violence and Victims, V. 14 (3), 1999
19 National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger
and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the
WA Coalition of Sexual Assault Programs
Rape Victims Are Class Of Persons Often Defined By Gender
28
20 National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger
and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the
WA Coalition of Sexual Assault Programs
21 Excerpts from National Judicial Education Program Sexual Violence: The Judge‘s
Role in Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) -
Prepared by the WA Coalition of Sexual Assault Programs
22 Drug-Facilitated Rape: Looking for the Missing Pieces by Nora Fitzgerald and K.
Jack Riley www.ncjrs.gov/pdffiles1/jr000243c.pdf
23 Secondary Victimization of Rape Victims: Insights from Mental Health Professionals
Who Treat Survivors of Violence Reviewed by Priscilla Schulz, LCSW from an article of
the same title by: Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago,
Published: Violence and Victims, V. 14 (3), 1999
24 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims:
Insights from Mental Health Professionals Who Treat Survivors of Violence‖ University
of Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence Against
Women Prevention Research Center
http://www.musc.edu/vawprevention/research/victimrape.shtml
25 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims:
Insights from Mental Health Professionals Who Treat Survivors of Violence‖ University
of Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence Against
Women Prevention Research Center
http://www.musc.edu/vawprevention/research/victimrape.shtml
26 The four injuries: How to get help after a victimization
http://www.trynova.org/victiminfo/victimizationhelp/fourinjuries.html
27 Lopez, P., 1992: ‗He Said…She Said…An Overview of Date Rape from
Commission Through Prosecution to Verdict Journal of Consulting and Clinical
Psychology vol. 13, pp. 275-302.
28 Joint Inspection Report, 2002: ‗Report on the Joint Inspection into the Investigation
and Prosecution of Cases involving Allegations of Rape (London: HMCPSI) para. 6.8.
29 Sturman, P., 2000: ‗Report on Drug Assisted Sexual Assault (London: British Home
Office)
30 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack
Riley, 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.pdf
31 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack
Riley, 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.pdf
32 American Prosecutors Research Institute, The Prosecution Of Rohypnol And Ghb
Related Sexual Assaults, Ch. 1, pp. 13 – 17 (1999) [hereinafter APRI] (describing
twenty-one other drugs used to facilitate sexual assault). I have chosen this focus
because these three drugs have garnered the most attention from the government,
media, and medical field. Although I later argue that this narrow focus should be
avoided, I found it necessary to mirror these group‘s focus in order to describe most
accurately the overall response to the date rape drug crisis. It should be clear from the
Rape Victims Are Class Of Persons Often Defined By Gender
29
outset of this paper, however, that my focus on Rohypnol, GHB, and ketamine in no
way suggests that these three drugs are the most prevalent or dangerous drugs related
to 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 Behavioural
and Cognitive Effects of Two Benzodiazepines Associated with Drug Facilitated Sexual
Assault Journal of Forensic Science vol. 47, pp. 1101-1107
35 Weir, E., 2001: ‗Drug Facilitated Date Rape Canadian Medical Association Journal
vol. 165 (1), p. 80
36 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual
for Law Enforcement, The National Center for Women and Policing,
http://www.womenandpolicing.org/
Publication Date: May 2001
37 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual
for Law Enforcement, The National Center for Women and Policing
http://www.womenandpolicing.org/
Publication Date: May 2001
38 Labianca, D.A., 1998: ‗Rohypnol: a Profile of the Date Rape Drug Journal of
Chemical Education vol. 75, pp. 719-722
39 Archambault, Joanne ―Dynamics of Sexual Assault Training Director, Sexual
Assault Training and Investigations, SATI, Inc, SATI, Inc., Addy, WA 99101-0033,
joanne@mysati.com
40 DEA Congressional Testimony October 10, 2002
Statement of Asa Hutchinson Administrator, Drug Enforcement Administration, Before
the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,
www.dea.gov/pubs/cngrtest/ct101002.html
41 National Project on Drink Spiking: Investigating the nature and extent of drink spiking
in 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.pdf
42 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual
for Law Enforcement, The National Center for Women and Policing,
http://www.womenandpolicing.org/
Publication Date: May 2001
43 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual
for Law Enforcement, The National Center for Women and Policing,
http://www.womenandpolicing.org/ Publication Date: May 2001
44 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual
for Law Enforcement The National Center for Women and Policing
http://www.womenandpolicing.org/ Publication Date: May 2001
45 DEA Congressional Testimony, Statement by: Richard A. Fiano, Chief of Operations
Drug Enforcement Administration, Before the: Caucus on International Narcotics Control
Date: July 25, 2000
46 National Drug Intelligence Center, 319 Washington Street, 5th Floor, Johnstown, PA
15901
Rape Victims Are Class Of Persons Often Defined By Gender
30
Tel. (814) 532-4601, FAX (814) 532-4690, E-mail NDIC.Contacts@usdoj.gov
National Drug Intelligence Center, 8201 Greensboro Drive, Suite 1001, McLean, VA
22102-3840
Tel. (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 Cox
Broadcasting 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 to
privacy on personal matters under Fourteenth Amendment's Due Process Clause); Wolf
v. Colorado, 338 U.S. 25, 27 (1949) ("This Court has consistently asserted that the
rights 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 in
medical records); Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988) (recognizing "well-
established" constitutional right of privacy that includes avoiding disclosure of personal
matters); Borucki v. Ryan, 827 F.2d 836, 839 (1st Cir. 1987) (noting that courts
recognize right of privacy under Fourteenth Amendment); Caesar v. Mountanos, 542
F.2d 1064, 1067-68 (9th Cir. 1976) (finding qualified constitutional right of privacy in
counseling sessions with psychotherapist); In re August, 1993 Regular Grand Jury, 854
F. Supp. 1375, 1378 (S.D. Ind. 1993) (recognizing constitutional right of privacy in
psychotherapist records); Nat'l Transp. Safety Bd. v. Hollywood Mem'l Hosp., 735 F.
Supp. 423, 424 (S.D. Fla. 1990) (recognizing constitutional right of privacy in medical
and psychiatric records); Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539,
566-67 (S.D.N.Y. 1980) (finding constitutional right of privacy concerning disclosure of
personal matters); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1039 (D.
Haw. 1979) (recognizing constitutional right of privacy in Medicaid patient's mental
health records); McKenna v. Fargo, 451 F. Supp. 1355, 1380-81 (D.N.J. 1978) (finding
constitutional 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 in
psychological information); Merriken v. Cressman, 364 F. Supp. 913, 917-18 (E.D. Pa.
1973) (finding constitutional right of privacy in information relating to family relationships
and child rearing).
48 In re Pittsburgh Action Against Rape, 428 A.2d at 143 (Larsen, J., dissenting) ("Many
victims do not even bother to report a rape because they feel the process they must go
through 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 never
take.");
Sedelle Katz & Mary Ann Mazur, M.D., Understanding the Rape Victim: A Synthesis of
Research Findings 203 (1979) (explaining that participation in criminal process "may be
more 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 United
States);
Wendy Murphy, Gender Bias in the Criminal Justice System, 20 Harv. Women's L.J.,
Spring 1997, at 14, 16-18 [hereinafter Murphy, Gender Bias] (relating incidence in
Rape Victims Are Class Of Persons Often Defined By Gender
31
Massachusetts where victims dropped charges to protect confidentiality of medical
records);
Wendy J. Murphy, Minimizing the Likelihood of Discovery of Victims' Counseling
Records and Other Personal Information in Criminal Cases: Massachusetts Gives a
Nod to a Constitutional Right to Confidentiality, 32 New Eng. L. Rev. 983, 986- 87 &
n.24 (1998) [hereinafter Murphy, Minimizing Discovery] (noting Massachusetts rape
victims felt forced to choose between prosecution and counseling);
Anna Y. Joo, Note, Broadening the Scope of Counselor-Patient Privilege to Protect the
Privacy 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 legal
action as a tradeoff for receiving effective counseling treatment");
Rorie Sherman, Rape Victims' Records Vulnerable: Massachusetts Prosecutors,
Therapists See a Chilling Effect, Nat'l L.J., Dec. 28, 1992, at 1 (reporting decline of rape
victims 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 assault
to police because of fear of participation in criminal justice system).
49 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape Crisis
Counselor 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 [the
case], access to counseling records was granted to defense counsel simply for the
asking."). One scholar noted that some Massachusetts courts required victims to reveal
whether 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 to
Rape Victims, 5 J.L. & Health 101, 137 (1990/1991)
51 Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of
Battered Women, 29 Fam. L.Q. 273, 295 (1995) (asserting that battered women will not
reveal abuse to counselors without assurances of confidentiality because abusers
routinely threaten their victim's lives if they disclose).
52 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery
of rape victims outweigh defendant's constitutional rights).
53 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery
of rape victims outweigh defendant's constitutional rights).
54 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502
A.2d 148 (Pa. 1985), aff'd in part and rev'd in part, 480 U.S. 39 (1987). And Ritchie, 480
U.S. at 45.
55 Black's Law Dictionary defines "in camera" as "[i]n chambers, in private." Black's Law
Dictionary 760 (6th ed. 1990). In an in camera inspection, "a trial judge may inspect a
document which counsel wishes to use at trial in his chambers before ruling on its
admissibility or its use ....".
56 667 N.E.2d 847 (Mass. 1996) 852-855
57 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502
A.2d 148 (Pa. 1985), aff'd in part and rev'd in part, 480 U.S. 39 (1987).
58 Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002-03 (Mass. 1991). One year
later, the Supreme Judicial Court of Massachusetts explicitly abolished the requirement
Rape Victims Are Class Of Persons Often Defined By Gender
32
that 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 1002-03
60 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape Crisis
Counselor 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 [the
case], access to counseling records was granted to defense counsel simply for the
asking."). One scholar noted that some Massachusetts courts required victims to reveal
whether 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 requests
and does not violate defendant's constitutional rights to cross-examination); People v.
Foggy, 521 N.E.2d 86, 90-92 (Ill. 1988) (distinguishing Ritchie, upholding
constitutionality of absolute privilege for rape crisis counseling records, and denying
defendant in camera review of victim's counseling records); People v. Stanaway, 521
N.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 under
absolute privilege for sexual assault counselors' records does not violate Confrontation
Clause).
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 (West
1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West
1999); 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; 42
Pa. 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 §§ 19-13-6
to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; Utah
R. 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
Rape Victims Are Class Of Persons Often Defined By Gender
33
Jaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege for
communications with psychotherapists and social workers).
64 See, e.g., 735 III. Comp. Stat. Ann. 5/8-802.1 (West Supp. 2000) (providing absolute
privilege between rape crisis counselors and victims); Mass. Ann. Laws ch. 233, § 20(J)
(Law. Co-op. 2000) (prohibiting disclosure of confidential communications between rape
crisis 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 communications
between 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 (West
1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West
1999); 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; 42
Pa. 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 §§ 19-13-6
to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; Utah
R. 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
Jaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege for
communications with psychotherapists and social workers).
66 Sherman, supra note 7, at 27. Because rapists tend to prey on people they know, the
young, and/or women who are easily victimized, the tendency to self-blame is
intensified. Nat'l Victim Center & Crime Victims Treatment Center, Med. U. of South
Carolina, Rape in America 2, 4-5 (1992) (reporting that 80% of rapes were committed
by someone known or related to victim, 39% of victims have been raped more than
once, 32.3% of rapes occurred when victim was between ages 11 and 17, and 29.3% of
rapes occurred before victim was age 11). See also Women With Disabilities, Leaf
Lines, Summer 1992, at 5 ("The more disabled you are, the more likely you are to be
assaulted.").
67 Rule 504--Psychotherapist-Patient Privilege, Advisory Committee's Note, 56 F.R.D.
183, 242 (1972) ("[The therapist's] capacity to help his patients is completely dependent
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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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

  • 1. Rape Victims Are Class Of Persons Often Defined By Gender 1 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, 1996 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. Data on male victimization do not show that males experience comparable victimizations and injury levels, do not account for women who act in self defense, and do not measure financial control, intimidation, and isolation used by perpetrators of domestic violence against women. The gender issue is foremost in sexual assault issues, and is usually background in general victimization. The unique cultural bias and shaming that accompanies rape cases needs its own focused opposition. The history of rape law is a history of the law used as a tool to protect rapists, rather than the raped. The anti-rape movement confronts, 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 typical informal defenses to rape charges. Blaming victims in rape cases may be an effective means to secure acquittal. In contrast, blaming a robbery victim is typically ineffective because robbery is unaccompanied by the same pernicious cultural myths. The nature of stigma and abuse in rape cases is profound and unique; a criminal process that mistreats 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 out of every six American women have been the victims of an attempted or completed rape in their lifetime (14.8% completed rape; 2.8% attempted rape). A total of 17.7 million women have been victims of these crimes.6 In 2002, one in every eight rape victims were male.7 93% of juvenile sexual assault victims knew their attacker; 34.2% were family members and 58.7% acquaintances. Only seven percent of the perpetrators were strangers to the victim.8
  • 2. Rape Victims Are Class Of Persons Often Defined By Gender 2 One of the most startling aspects of sex crimes is how many go unreported. The most common reasons given by victims for not reporting these crimes are the belief that it is a private 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. 16 Rapists are predators. Just like animal predators, they seek out the weakest and/or most vulnerable prey. Rape is not about sex, it is an act of brutal violence. Rape causes pain and suffering in the victim that may last a lifetime. It eats away at the soul and destroys the quality of life. FBI estimates indicate that only 10 percent of rapes are reported. Of those reported, in less than 25 percent are the rapists arrested. Of those arrested, only about 3 percent are charged. Of those charged, no more than 35 percent are convicted. In other words, most rapists are not caught.17 According to The National Coalition Against Sexual Assault false rape reports only happen 2% of the time. That's a 98% chance that no matter how strange it sounds to you the rape isn't being fabricated. Delayed reports also are common, particularly in acquaintance rapes. The majority of mental health professionals surveyed (84 %) agreed that contact with social service providers re-traumatizes rape victims. 18
  • 3. Rape Victims Are Class Of Persons Often Defined By Gender 3 Some reasons why women do not report rape seem are the fear of: 1) Ridicule 2) Personal questions asked by police investigators 3) Humiliating medical examinations 4) Publicity 5) Testifying in court 6) Fear that sexual past will come out in court 7) The victim has the burden to prove that the attack was forced, against her will, and that she resisted the attack. 8) Justice system's inability to put the criminal away 9) Retaliation from assailant or his friends These are real concerns that must be overcome before rapists may be brought to justice. Rape statistics show that Rapists are on an ascending scale of violence with each assault. More than 50% of all rapes occur in the home of the victim. More than 93% 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 women as helpless and vulnerable. For example, in films, women are often depicted not only as vulnerable victims, but as victims who, once raped, degraded and dehumanized, come to accept this treatment and grow to love their attackers. Myths have a manifest purpose of legitimizing aberrant behavior, such as rape. Studies have shown that women as well as men believe in many rape myths and are aroused by rape depictions. For example, some men believe that women will respond to sexual force 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 behind sexual 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 psychologist Another myth is that women can resist rape of the really want to. First of all, men have been raised differently than women. They have been trained to be physical and are usually stronger and faster than women. Likewise, women have been traditionally raised to be passive, weaker, and submissive to men. Such socialization enhances the
  • 4. Rape Victims Are Class Of Persons Often Defined By Gender 4 possibility of a successful rape. In addition, the rapist chooses the time and place for the crime, 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 women were committed by men who know their victims and data show this may be as high as 80%. 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 were examined more than 24 hours after the rape. Of these rape victims only 2/3rds told doctor they had been raped.19 Delayed reporting to hospitals and/or police is much more likely in non-stranger rape than stranger rape.20 In the ―Victim Reporting Study - Beth Israel Hospital Rape Crisis Intervention Program in which 1000 rape victims were interviewed. The statistics showed that in Stranger rape 90% of rape victims reported in less than 24 hours. In non-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. 21 All 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 passionate acceptance." While it is true that some women have rape fantasies, these fantasies usually do not center on force or pain but on being "swept off one's feet" by a handsome stranger into a sexual liaison that one would not ordinarily entertain. It can't happen to me is delusional belief that many women hold. Accepting the myth that rape victims are always young and attractive, leads many women to believe they are unlikely victims since they are not desirable. Remember rape is not a crime of sex; it is a crime of violence. Sexual attractiveness is not a trait considered by rapists when they are stalking victims. Becoming the victim of a crime leaves victims – and those around them – in a state where they are not thinking as clearly as they usually do, and they may feel overwhelmed. There is often financial loss and physical injury connected with victimization, but the most devastating part for many victims is the emotional pain caused by crime. It is difficult for many victims to understand that someone else wanted to hurt them. The experience of becoming a crime victim can shatter a person‘s life in a variety of ways. Becoming the victim of a crime is a major life stress. The victim may feel very uncomfortable (in a state of "crisis"). It may be difficult for her to easily restore a sense of balance in life. She may not be able to think clearly about what has happened, and her feelings about the crime may be very strong. It can take a long time and a lot of work to get back to the point where she feels comfortable again. Often rape victims are
  • 5. Rape Victims Are Class Of Persons Often Defined By Gender 5 not be as trusting of other people, as before or may be afraid to do the things she normally 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 they became the victim of a crime, or they may pretend that it did not happen at all. This may last for only a few moments or it may go on for months — even years. Victims often assume a more "childlike" state, and may need to be taken care of by others, at least for a little while. In drug-facilitated rapes, the additional deprivation of cognition during the assault, combined with anterograde amnesia afterwards, subjects the victim to an extreme form of powerlessness which is profoundly traumatic.22 Crisis intervention and supportive counseling help victims move toward a new balance more effectively, but it is not an easy process. It is very important that the rape victim feel supported emotionally during this period. A sexual assault can involve physical injuries or damage to the victim‘s body. Some of these injuries are visible and some are not. It may not be possible to see the physical injuries caused by a sexual assault or injuries that are covered by clothing or an injury that happens inside the brain. Do not assume that a person is not injured simply because the injury is not visible. As a result of the crime, some victims may experience health-related problems such as headaches, stomach aches, etc. A person who already has a disability may find that the disability becomes more severe after the crime. Even when the physical wounds caused by crime have healed, the victim may continue to experience 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' experiences at the hands of their assailants that secondary victimization is sometimes called "the second rape" or "the second assault." 23 Because most victims of drug-facilitated rapes have no memory of the sexual assault, people may mistakenly minimize the trauma. Victims feel, powerlessness, and humiliated by not knowing what was done to them. 24 People may disbelieve the rape victim, ridicule her, abandon, blame, ostracize, sabotage, threaten, betray her, or side with the rapist against her. These painful and dangerous reactions can come from family, friends, and authorities as well as from people associated with the rapist. Many people fault the rape victim for what she may have done before, during, or after. The most important thing for a counselor/friend to do is 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, and humiliated by not knowing what was done to them. 25
  • 6. Rape Victims Are Class Of Persons Often Defined By Gender 6 It fact, it's particularly devastating to rape victims when you're treated badly by the very people you expected would help you. For many victims, witnesses and their family members, the emotional injuries may be the most difficult and long-lasting effects of being the victim of a crime. Many victims say the betrayal of these experiences is so painful that it was worse than the rape itself. That's why, in the literature on rape, this all too common abusive treatment of rape victims has been given the name, "the second rape". Social injuries are those caused by society. 26 A social injury occurs when the victim is treated insensitively, does not think anyone cares or is not able to get the help she needs. Anyone can cause a social injury: a friend or family member, a law enforcement officer, 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 not treat 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 and long-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.
  • 7. Rape Victims Are Class Of Persons Often Defined By Gender 7 • 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 rape victims are also very dangerous to the victim. These abusive reactions drive rape victims into deepening isolation and despair. When these abuses gather steam, they can turn the victim's whole social or family group against her. This can easily or to the loss of the victim's connections to help. The disbelieving, blaming, and ostracizing of rape victims is also dangerous to all women and girls. Driving rape victims into isolation and despair is one of the ways a male dominated society supports the ongoing existence of rape. Here are some of the reasons that alone or in combination that people mistreat rape victims. Some people side with the rapist and mistreat the victim because: We still live in a male dominated society in which men and their organizations control most of the power. Rape itself is a crime of dominance. After a rape occurs, the sexist, male views of rape frequently resurface with a vengeance. These views easily gather steam, join forces 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 the victim. In addition to the biases of sexism working against the victim, it's just plain easier for people to side with the rapist. Remember, in most rapes the rapist and the victim do know each other. Once the victim makes the charge of rape, the people around both the victim and the rapist are forced to take sides. It's almost always easier to take the side of the rapist. If people believe the rapist, they can simply abandon the victim to fend for herself. But if people believe the victim, they then have to go up against the rapist and take action against him. Sadly, many people just don't have the courage or strength of conviction to stand up to the rapist and his powerful allies. The rapist has a criminal mentality and he is willing to lie, manipulate, threaten, and bully others once the charge of rape is made. The victim, on the other hand, is wounded and often too weak to defend herself. In addition, she is not a criminal and as such she is not willing to bully or intimidate others who don't support her. Once the rapist starts bullying, lying, and rallying his buddies to his side, even the victims' supporters often become afraid and fall silent 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 that people 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 was raped. These old constrictions on female behavior provide ample and convenient cover for those who want a way out of having to stand up against a rape. Authorities too often don't take rape seriously. When authorities don't take the rape seriously, people around the victim get the message they don't have to take the rape seriously either. Once
  • 8. Rape Victims Are Class Of Persons Often Defined By Gender 8 authorities show they aren't taking the rape seriously, any support the victim has been able to maintain generally begins to erode rapidly. Taken alone or together, these continuing manifestations of sexism in society make it so much easier for cowardly people to accuse the victim of lying rather than to accuse a man of rape. Erosion of the rape victim's support usually doesn't happen right away. In fact, initial reactions to rape victims are often good. Authorities usually take an initial report. Friends of the victim usually start out by accompanying and supporting the victim, and family members often initially show great concern. It generally takes a little time for the perpetrator to start organizing his own support and begin bullying, lying, and retaliating in a way that erodes the victim's initial support. This lead time gives the victim and her advocates an opportunity to prevent the buildup toward targeting the victim. The negative reactions in the rape victim‘s vital relationships and social groups turn against the victim and then it's 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 Committee Many rape victims have a very difficult time deciding whether or not to report the rape to police. In fact, in the United States less than one out of six rape victims report the rape to police. And very few of these victims report the rape right away. This is tragic because the criminal justice system has more power to help rape victims than any other institution. The criminal justice system, and only the criminal justice system, has the power 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 only system that can intervene with force when her safety is threatened. The criminal justice system is also the only system that can put the criminal investigation findings and testimony on the public record. That record of truth finding is essential for justice. And justice is essential to her healing and to the healing of the community. Justice is also essential to stopping future rapes. As a rape victim she has a right to have this immense criminal justice system powers work for her. Drug Facilitated Sexual Assault Victims Are Treated Disparately The current law is wholly insufficient to address the problems of drug assisted rape and the problems confronted by the victims of such a rape. Drug-facilitated sexual assault is not a new phenomenon. Experienced law enforcement officers and advocates know that alcohol is the most common drug used to facilitate sexual assault. Alcohol has been used as a method to facilitate sexual assault for years and remains the most widely used drug today.
  • 9. Rape Victims Are Class Of Persons Often Defined By Gender 9 Rape drugs make it relatively easy for rapists to gain control of their victims. The surreptitious drugging of a victim is, in and of itself, a cruel and criminal violation of the person. The rapist does not have to overcome any form of resistance. There is no need for 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 that occurred during the time the drug was in effect are forgotten.30 Victims may not seek help until days after the assault, partly because the drug impairs their memory and partly because of their inability to recognize signs of sexual assault. Anterograde amnesia is a condition in which events that occurred during the time the drug was in effect are forgotten.31 Drug-facilitated rape presents its victims and law enforcement personnel with an additional set of challenges above and beyond those associated with other sexual assaults. Often referred to as ―date-rape drugs, Rohypnol, GHB, and ketamine 32 are used by rapists to render women unconscious, making them unable to resist unwanted sexual advances. The American Prosecutors Research Institute defines ―drug- facilitated rape as: sexual assault facilitated by the offender‘s use of an anesthesia-type drug which when administered to the victim (stealthily or not) renders the victim physically incapacitated or helpless, and thus incapable of giving or not giving consent. GHB may cause enhanced sexual feelings by the victim. Victim may participate in reciprocal acts, as a result of the drug, rather than free will. These victims may be either be conscious or unconscious during their sexual assault and have anterograde amnesia upon gaining normal consciousness, similar to the effects of a surgery patient coming out of anesthesia.33 There is a widely held misconception about the effects of the drugs commonly associated with drug assisted rape. Despite the prototypical construction, the reality is that people who have ingested drugs such as Rohypnol and GHB rarely lose consciousness. Rather, the amnesiac effects of the drugs prevent victims from recollecting events thus creating a memory void that the brain rationalizes as a period of unconsciousness. However, the victim will retain consciousness whilst appearing to the observer to be inebriated but able to act under her own volition (Dowd, Strong, Janicak and Negrusz, 2002)34. By eliminating the possibility of consent, the prototypical construction focuses attention on the use of drugs to obtain intercourse (from a victim who 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 that is a more accurate representation of the majority of cases of drug assisted rape. Drugs such as Rohypnol and GHB lower anxiety, alertness and inhibition whilst inducing euphoria, passivity and a sense of relaxation thus increasing the likelihood that the victim will engage in intercourse, even if such behavior would usually be uncharacteristic, leading them to be described as a particularly formidable weapon in sexual assault cases (Weir, 2001, p. 80).35 In addition to this impact on the victim‘s thinking and behavior, these drugs induce anterograde 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
  • 10. Rape Victims Are Class Of Persons Often Defined By Gender 10 encounter suspicion, disbelief, and/or frustration.36 Many aspects of a rape investigation are facilitated by a victim‘s ability to describe what happened. The victim‘s narrative helps guide the medical/evidentiary examination and the police investigation. Their inability to supply information that could assist the investigation and/or prosecution compounds their sense of helplessness.37 The amnesiac impact of these drugs has been described as their most insidious effects‘ and clearly has a negative impact on the ability to detect and prosecute perpetrators of drug assisted rape (Labianca, 1998). 38 It would appear that Rohypnol and the like facilitate rape not because they render the victim unconscious but because they lead to a disassociation between mind and body that renders the victim receptive to sexual activity that she may well have found unwelcome in other circumstances, whilst eroding her ability to recollect events once the drugs have worn off. To onlookers the victim may appear drunk or impaired and the rapist taking the victim to another place may appear to onlookers as assisting an impaired person. While the victim is still under the effects of the drug which may last 72 hours, the rapist has plenty of time to create a plausible cover story.39 Some drugs stay for a couple of days, but GHB, the most popular for obvious reasons, very quickly dissipates from the system. There is no screening test for GHB; it requires a confirmation test that hospitals cannot do and crime labs only do upon specific request. Discriminatory Treatment by the Justice System Many rape victims still despair of obtaining justice, and for good reason. It is true that police, 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 crime again. There are estimates that as many as 20% of all rapes are facilitated with drugs.40 Real rape in the context of drink spiking, is often considered to be demonstrated when a woman claims to have been sexually assaulted, and her allegation is supported by a positive toxicology test. Forensic evidence of a CNS depressant as the weapon used to overcome resistance ultimately signals a lack of consent.41 But a negative toxicology report often just means that we didn‘t get the evidence taken soon enough, for a variety of reasons. This is still rape! The most common abuse of criminal justice officials against rape victims is that these officials frequently try to dump rape cases. It is well documented in many sources that widespread dumping of rape cases goes on today in law enforcement agencies around the country. Often law enforcement doesn‘t even allow the sexual assault victims is the right to be accompanied at all times throughout the criminal justice process by a victim advocate and by a support person of the victim‘s choice. This is the best way to protect the rape victim from abuse in the criminal justice system. The problem is that because of the trauma of the rape, most rape victims feel very unsure of themselves. They often don't trust their own judgment. Rape victims often find it difficult to admit they're being mistreated by the people who are supposed to be helping them. And they find it even more difficult to protest the abuse. Officials may respond to the rape victim with disrespect, lack of concern for her safety, an accusatory tone, disbelief, lack of interest,
  • 11. Rape Victims Are Class Of Persons Often Defined By Gender 11 annoyance, intimidation, or even attempts to isolate her from her support person. One of the most common and easiest ways that officials have of dumping a rape case is to simply ignore her. The reason this works so well is that rape victims find it very difficult to assert themselves and even more difficult to push the police. Long delays in returning phone calls, unclear explanations about what happens next, sloppy answers to the rape victims questions, or disinterest in answering her questions is common. The official may be unwilling to ask about the victims needs and accommodate them. Failure to be openly 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 pursue a rape case, officials must pay close attention to the needs of the victim. Incomplete investigation is another very common way that officials dump rape cases. If officials don't gather all the evidence, then it's easy for them to tell the rape victim, "We're very sorry, we'd like to help, but there's not enough evidence to go forward with your case." If an official tells her there's not enough evidence, or that her case is a 'he said, she said' case, or that the district attorney won't file, or that the defense will attack the rape victim for this or that, it may very well be that the official is just trying to get rid of her. Officials attempt to divert the rape victim and to remove her case out of the criminal justice process. Rape is a violent crime, and it's the job of police and prosecutors to investigate the case thoroughly, to protect the rape victim‘s safety, and to do everything possible to obtain 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 Justice The police interview is the single most significant piece of evidence in a rape case.42 Whenever a rape victim is interviewed, the official should: allow the rape victim to be accompanied by an advocate. The support person should take notes, tape record the interview, should ask the victim in detail about events leading up to the rape, events during the rape, and events that followed the rape. The official should listen carefully to all the rape victim‘s suggestions for leads to evidence and witnesses in the case. When interviewing the rape victim, the official should never interrogate the rape victim even if there are contradictions in her story, should not try scare the victim out of reporting or testifying by telling her how the defense team can attack her, should not attempt to isolate her from her advocate and support persons, and should never in any way imply that she is to blame for the rape. But hostile interrogations of rape victims are common.
  • 12. Rape Victims Are Class Of Persons Often Defined By Gender 12 During their initial contact with law enforcement officers, victims of crime should receive verbal and written information about victims’ rights and services. Law enforcement personnel should be required to follow up with victims because many individuals are unable to comprehend assistance and compensation information in the immediate aftermath 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 Forum The drug facilitated sexual assault victim may remember little, if any, about the sexual assault itself. The victim's account of the events may have many missing parts. For drug facilitated assault victims, telling what they recall is difficult and their uncertainty as to what occurred may cause them extreme anxiety. Often, the perpetrator was a "trusted" acquaintance and the victim may feel the incident was somehow her fault. 43 The Law Enforcement Officer should do careful witness interviews. Although the victim statement is crucial to the investigation, persons who saw the victim, or spoke to the victim, before, during and after the assault are critical witnesses. Often, it is such witnesses who establish time frames, notice unusual behavior, provide critical facts and can identify potential sources of information.44 The ingestion of drugs by the victim (either voluntarily or surreptitiously) is often used against the victim by the criminal justice system. Her apparent association with "risky" behavior lessens her credibility and increases her perceived culpability while diminishing the suspect's. a victim's cooperation to go "somewhere private" with the suspect is not an invitation to rape her and should never be viewed by the criminal justice system as an indication of consent. Secondly, investigators should keep in mind that many drugs like GHB and Flunitrazepam sedate the victim and often cause confusion and disorientation. Thus, while the victim may have appeared to voluntarily accompany the suspect, the victim's actions may have been the result of "drug submission" or some other effect of the drug on the victim and her capabilities. Memory loss, dizziness, confusion, drowsiness, slurred speech, impaired motor skills, impaired judgment, reduced inhibition or a variety of other symptoms. The victim may also appear intoxicated or "hung-over". Today‘s drugs may at some point render a victim unconscious, but even worse, at least initially, and, depending on which drug is used and/or the amount given, the victim may appear to participate or may even appear to be the aggressor early on in the attack. The beverages 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
  • 13. Rape Victims Are Class Of Persons Often Defined By Gender 13 becomes helpless, weak, and, perhaps, unconscious. Victims become so intoxicated that they can't resist or escape the rapist or even call out for help. Waking up with little idea of what has taken place, a sneaky suspicion (or obvious evidence) of sexual activity, leaves one confused, dazed and hesitant to run to the police. This results in a delay as the victim attempts to piece together her plight. By the time she comprehends the situation; precious time has been lost in terms of collecting evidence. An additional challenge in investigating drug-facilitated sexual assault is the loss of evidence due to the very nature of the drugs used. Many of these drugs metabolize so quickly in the body that it becomes difficult to detect them in the victim. Because most victims delay reporting, this compounds the challenge of corroborating the use of a drug to facilitate the sexual assault. The investigator must carefully deduce from the types of drugs used to facilitate the sexual assault, the effects these drugs had on the victim, and an account of the events surrounding the actions of everyone involved. The following is a list of the types of evidence an investigator should process from the victim. The investigator may be the first to suspect the victim was drugged to facilitate a sexual assault. As we have discussed, if the ingestion of a drug may have occurred within the last 96 hours (4 days), the victim should be advised not to urinate until a urine specimen can be collected. The Drug as a Weapon One legal approach to the problem of drug facilitated assault is to identify the broad category 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. Implicit within the ―Drugs as Weapons metaphor is a concern with the victim‘s capacity to consent. GHB (gamma-hydroxybutyrate), a Schedule I drug under the Controlled Substances Act, is a powerful central nervous system depressant that is used illicitly, often for its euphoric and sedative effects but also for the commission of drug-facilitated sexual assault. GHB trafficking and abuse have become a particular concern to law enforcement and public health agencies because of increasing availability of the drug in some areas, sharp increases in mentions for GHB since the mid-1990s, and the use of GHB in the commission of drug-facilitated sexual assault. Federal, state, and local law enforcement agencies in every region of the country report that GHB appears to be the substance most commonly used in drug-facilitated sexual assaults because of its powerful sedative properties. Gamma HydroxyButyrate commonly referred to as a date rape-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
  • 14. Rape Victims Are Class Of Persons Often Defined By Gender 14 incapable 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 commit sexual assault, the drug typically is mixed into victims' drinks--usually without their knowledge--to mask the drug's salty taste. GHB is rapidly absorbed and metabolized by the body. Detectable levels of GHB may remain in urine for approximately 8 to 12 hours and in blood for 4 to 8 hours after ingestion. Routine blood or urine testing do not screen for GHB; therefore, it is important to specifically request a GHB screen as soon after the assault as possible. Detectable levels of undigested GHB may be found in victim's vomit; vomiting is a common effect of GHB use. On February 18, 2000, the "Hillory J. Farias and Samantha Reid Date-Rape Prohibition Act of 1999" (Public Law 106-172) was signed into law, legislating GHB as a Schedule I controlled substance. GBL was also regulated under this law as a List I controlled chemical. Illicit use of GHB analogs may now be prosecuted as Schedule I substances under 21 U.S. Code § 813. GHB analogs are treated as controlled substances under Federal law only if intended for human consumption. According to 21 U.S.C. § 813, "a controlled substance analogue shall, to the extent intended for human consumption, be treated, 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 same manner as offenses involving GHB. (See 21 U.S.C. § 802(32) for the definition of a controlled substance analogue.) 46 Discrediting The Rape Victim And The Rape Shield Law The United States has a shameful history in its treatment of rape victims in the criminal judicial system. Especially perceptible in the courtroom, women's allegations have been discredited under a legal philosophy that women are disposed to fabricate charges of rape. As a consequence, rape victims became the focus at trials where trial procedures endeavored to discount victims and communicate to juries that their stories were unworthy of belief. Even though the United States Supreme Court and state supreme courts have recognized a constitutionally protected right to privacy, 47 rape victims' allegations continue to be treated with mistrust by the courts as defendants are permitted 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 to cooperate in the criminal process for fear of re-victimization and degradation.48 People who suspected abuse did not come forward for fear their identities would be revealed. Defendants have successfully used access to counseling records as a harassment technique, hoping to induce victims to drop charges. Prominently, "over the past decade, it has become increasingly common for defense counsel in criminal cases to seek access to personal, confidential, and even privileged information of victims and witnesses, including records of therapeutic counseling."
  • 15. Rape Victims Are Class Of Persons Often Defined By Gender 15 In fact, defendants routinely accessed victims' entire medical and psychological histories, 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 eating disorders, vaccines, mastectomies, genetic history, HIV status, history of cancer and even painful childhood incidents. It was a successful defense strategy to request as many 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 that the privilege protecting rape victims' confidential communications had become ineffectual and victims were forced to choose between prosecution and counseling. 50 Thus, although rape victims have been promised privacy in the information they disclosed to counselors, this information has become routinely disclosed to defendants under arguments that federal and state constitutional rights to a fair trial outweigh any evidentiary privileges afforded to victims. So unfortunately, rape victims are often the casualties in these legal battles as their most painful and personal thoughts are opened to the defense after promises of confidentiality. As a consequence of this abuse of process many rape victims felt forced to choose between seeking help and prosecuting their attacker. 51 In fact, the fear and harassment of disclosure led many victims to choose between prosecution and counseling. Thus, rape remains one "of the most underreported crimes in America." Victims feel alone and helpless and will not request aid and support without assurances of confidentiality. Persons who suspect abuse often will come forward if they fear their identities may be revealed. The Court of Pennsylvania was asked in Wilson, 602 A.2d at 1295-98 52 to determine the constitutionality of this absolute privilege for communications between victims and sexual assault counselors. The court denied the defendant access to the victim's counseling records, ruling that the government has a compelling interest in assisting rape 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 victim but also to society, whose interest in the report and prosecution of sexual assault crimes is furthered by the emotional and physical well-being of the victim." Pennsylvania concluded that absolute privileges may be given effect by recognizing a compelling governmental interest in assisting rape victims heal from the trauma caused by sexual assault. 53 In a subsequent decision, the court held that defendants could not access victims' records until a judge had determined in camera that the information was relevant. 54, 55 Moreover, the court concluded that a materiality standard was necessary to give full effect 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 professional assistance to alleviate the psychological scarring caused by the crime, which may be more damaging than the physical invasion itself.
  • 16. Rape Victims Are Class Of Persons Often Defined By Gender 16 2) 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 assault and may not be able to face the grueling nature of the adversary process that occurs at trial.56 The United States Supreme Court attempted to settle this controversy in Pennsylvania v. Ritchie 57 by balancing the respective rights of the defendant and the victim. However, the United States Supreme Court's lead in resolving the conflict has been tenuous as states have responded to the Ritchie decision in disparate fashion. Unfortunately, many rape victims have seen the protections provided by evidentiary privileges dwindle to ineffectual words. Rape victims are often the casualties in these legal battles as their most painful and personal thoughts are opened to the defense after promises of confidentiality. Massachusetts's experiences illustrate the problems with granting defendants easy access to victim's confidential counseling records under a lesser standard than materiality. In 1991, the Supreme Judicial Court of Massachusetts held that a defendant must be given full access to privileged counseling records.58 Furthermore, after the defendant's examination of the files, the trial judge must hold an in camera review to determine, under ordinary evidence rules, the admissibility of the information the defendant wishes to admit at trial. 59 Since this ruling, defendants began "routinely requesting rape crisis center counseling records to search for evidence to impeach the victim's credibility."60 Moreover, defendants used access to counseling records as a harassment technique, hoping to induce victims to drop charges. 61 In some jurisdictions, when an absolute privilege is in question the court is permitted to distinguish Ritchie and forbid disclosure of victims' counseling records to defendants seeking to use the information at trial. As support for the constitutionality of absolute privileges, many courts have relied on Justice Powell's reasoning that the Confrontation Clause is not violated by an evidentiary privilege if the defendant is given the opportunity to cross-examine the witnesses.62 Currently, every state, as well as the District of Columbia, recognizes an evidentiary privilege for patient communications with a therapist.63 Many states, including Kansas and Washington, have enacted evidentiary privileges that forbid disclosure of victims' counseling records under any circumstance. 64 The Confrontation Clause should not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Currently, every state, as well as the District of Columbia, recognizes an evidentiary privilege for patient communications with a therapist. 65 In fact, rape victims' most common response to rape is the belief that they are somehow responsible for the attack.66 Therapists persuade rape victims to disclose this fear in order to help them heal from the psychological effects of the assault. 67 Because of the
  • 17. Rape Victims Are Class Of Persons Often Defined By Gender 17 intimate and deep damage sexual assault inflicts on its victims, "effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." 68 Thus, "the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment." 69 In fact, because of the highly personal nature of rape and surrounding social stigma, a sexual assault survivor is more likely than the general population to be deterred from seeking counseling without assurances of confidentiality.70 Rape crises centers exist to provide rape victims with effective counseling and support services. Ironically, their very creation may act as a magnet for defendants to access rape victims' counseling records. And, despite statutory privileges protecting counseling records, rape victims continue to be treated with distrust by the courts as their records are 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 or even delay trial until victims give up.71 One of the greatest hardships victims endure in the criminal justice process, is the delay of scheduled proceedings. Just as defendants have the right to a speedy trial, so too should crime victims. Repeated continuances cause serious hardships and trauma for victims as they review and relive their victimization in preparation for trial, only to find the case has been postponed. Delays are 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 of continuances is particularly difficult for victims whose memories may fade over time or whose health may deteriorate. In the aftermath of victimization, victims may have many different needs. Victims who report crime need information, assistance and protection when they choose to participate in the criminal and juvenile justice process. Not only should victims have the right to be heard or consulted in decisions that affect them, but they should receive protection if they are witnesses and transportation to and from legal proceedings. Regardless of whether they report the crime, many victims need emergency and ongoing services such as health care, shelter, lock replacement, cash assistance, social and 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
  • 18. Rape Victims Are Class Of Persons Often Defined By Gender 18 RECOMMENDATION FROM THE FIELD #10 Victims of crime should receive assistance in exercising their participatory rights. Advocates should be available to explain rights to victims, help them to exercise those rights and, when necessary, serve as their representatives in court and other key justice processes when victims are underage or incapacitated or if representation is otherwise appropriate. One of the greatest barriers to victims participating in justice proceedings is their not having the means to do so. Many victims cannot afford to pay for parking, child care, or time off from work. Others do not have the resources to cover transportation costs 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, victims should have the right to be tested and to have the accused or convicted offender tested at appropriate times for the HIV virus and sexually transmitted diseases. State statutes should require these tests to be conducted by specially trained personnel who can advise victims of the reliability, limitations, and significance of the test, as well as HIV treatment options. In addition, laws should specify the agency that will pay for HIV testing, pre and posttest counseling, as well as treatment for any victims who test positive. 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 the limited reliability of a negative test result. States frequently counseling in conjunction with testing, but specifications vary widely from jurisdiction to jurisdiction. State and federal laws should allow, and criminal and juvenile justice agencies should facilitate, community impact statements as a means for members of a neighborhood or community that has been impacted by crime to have input into sentencing. In many cases, neighborhoods and communities as well as individuals are victims of crime. This is especially true in drug, gang, and prostitution cases where criminal activity endangers and degrades entire neighborhoods, affecting property values and quality of life issues. Victims should have standing to enforce their rights, and sanctions should be applied to criminal and juvenile justice professionals who deny victims their fundamental rights. Although more than 27,000 state and federal laws have been enacted to protect and enforce the interests, rights, and services for crime victims, the consistent implementation and enforcement of these laws is an area of great concern. Victims report that criminal and juvenile justice officials at times disregard their statutory and constitutional 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 when they are disregarded. While limited legal remedies such as court-ordered injunctions and writs of mandamus are generally available to force criminal justice personnel to comply with the law, states are beginning to pass laws that provide specific statutory remedies and recourse for crime victims. A Maryland statute enables victims of violent crimes to apply for leave to appeal any final order that denies victims certain basic rights.72 Arizona law grants victims the right to challenge post conviction release
  • 19. Rape Victims Are Class Of Persons Often Defined By Gender 19 decisions resulting from hearings at which they were denied the opportunity to receive notice, attend, or be heard. Arizona law allows victims to sue for money damages any government entity responsible for the intentional, knowing or grossly negligent violation of the victims’ rights.73 It is critical that effective measures be available to remedy violations of victims‘ rights, including authority for the government to obtain redress through applications for mandamus and appeal. The need for this reform in federal proceedings is illustrated by the first trial in the bombing of the Alfred P. Murrah Federal Building, in which the trial court ruled that victims would not be allowed to attend the trial if they wished to be heard at the sentencing stage. On review, the Tenth Circuit Court of Appeals held that victims had no standing to assert their right to be present and that the government could not enforce that right by appeal or by seeking a mandatory order. 74 Victims of crime should have rights at administrative proceedings, including the right to have a person of their choice accompany them to the proceedings, the right to input regarding 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 Congress' judgment that possession and distribution of GHB should be prohibited and those violators 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 2/18/2000 It is generally accepted by those working with rape victims and also those working to enforce the Controlled Substances Act that we need to improve how we handle drug facilitated sexual assaults. SB 1561 (The Samantha Reid Date-Rape Drug Control Act of 1999) has merged into H.R. 2130 to be called The Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000. The Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 2000 or Public Law 106-172 of the 106th Congress was enacted by the Senate and House of Representatives - (21 USC 812 note, 21 USC 801 note) to amend the Controlled Substances Act to direct the emergency scheduling of gamma hydroxybutyric acid, to provide for a national awareness campaign, and for other purposes.
  • 20. Rape Victims Are Class Of Persons Often Defined By Gender 20 In 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 submit to Congress an Annual Report Regarding Date-Rape Drugs and also institute a National Awareness Campaign. (21 USC 801 note). It is stated that The Secretary, in consultation with the Attorney General, shall develop a plan for carrying out a national campaign to educate individuals described in subparagraph (B) on the following: (i) The dangers of date-rape drugs. (ii) The applicability of the Controlled Substances Act 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 young adults, youths, law enforcement personnel, educators, school nurses, counselors of rape victims, and emergency room personnel in hospitals. PUBL172 In addition in section 8 there was established a special unit in The Drug Enforcement Administration for assessment of abuse and trafficking of GHB and other controlled substances and drugs which shall assess the abuse of and trafficking in gamma hydroxybutyric acid, flunitrazepam, ketamine, other controlled substances, and other so- called designer drugs whose use has been associated with sexual assault. The DEA‘s particular duties included: (1) examine the threat posed by the substances and drugs referred to in that subsection on a national basis and regional basis; and (2) make recommendations to the Attorney General regarding allocations and reallocations of resources in order to address the threat. In addition the DEA is permitted to reallocate the existing resources as appropriate and additional resources were also designated by Congress. In addition, the section SEC. 5 Controlled Substances Analogues subparagraph (B) includes the designation of gamma butyrolactone or controlled substance analogue as a listed chemical and adds DEA control under (b) the distribution with the intent to commit a crime of violence. Making GHB Schedule 1 makes it a crime to possess, manufacture, or sell GHB or its precursors, with up to 20 years jail time for it. It will be in the same drug class as marijuana or heroin.75
  • 21. Rape Victims Are Class Of Persons Often Defined By Gender 21 H.R. 2130 Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of 1999 cleared congress and would have allowed the DEA to pursue crimes related to GHB more vigorously. The act‘s designations for GHB and GB would increase the penalties for unauthorized manufacturing or distribution of these substances and would tighten federal control over their use. As a result, the federal government would be able to pursue cases that it otherwise would not be able to prosecute. Because those prosecuted and convicted of offenses under H.R. 2130 could be subject to criminal fines, 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) which are deposited in the Crime Victims Fund and spent in subsequent years. Because any increase 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 Network Since 1982, a substantial number of the 68 recommendations in the President‘s Task Force on Victims of Crime Final Report have been enacted and implemented due in a large part to the efforts of crime victims.76 These accomplishments include the Victims of Crime Act in 1984, the landmark Crime Act of 1994, the countless state statutes that strengthen victims’ rights and hold offenders accountable to their victims, and the 29 state 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 victim advocacy groups, all 50 states and the District of Columbia modified their laws to criminalize stalking.77 Some state legislatures also reacted swiftly to the escalation of juvenile crime to record levels in the early 1990s by extending at least some rights to victims of juvenile offenders. In 1992, for example, only five states provided victims the right to be notified of a disposition hearing involving a juvenile. By 1995, 25 states provided this right.78 In spite of this record of success; however, victims are still being denied their right to participate in the justice system. Many victims‘ rights laws are not being implemented, and most states still have not enacted fundamental reforms such as consultation by prosecutors with victims prior to plea agreements, victim input into important pretrial release decisions such as the granting of bail, protection of victims from intimidation and harm, and comprehensive rights for victims of juvenile offenders.
  • 22. Rape Victims Are Class Of Persons Often Defined By Gender 22 The right to protection from intimidation, harassment, and retaliation by offenders and the accused is becoming a major focus of public and law enforcement attention. Justice officials report an increase in the harassment and intimidation of witnesses, making it increasingly difficult to obtain convictions because crime victims and witnesses are afraid to testify.79 Legislatures have attempted to address this problem by mandating no contact orders as a condition of pretrial or post trial release. In addition, victims’ bills of rights generally require victims to be notified at the outset of the judicial process about legal action they can take to protect themselves from harassment and intimidation. Harassment or intimidation of a victim or witness by a defendant or convicted offender should result in automatic revocation of pretrial or supervised post trial release, and should be considered an aggravating factor in sentencing. Such violations should be charged and prosecuted under relevant anti-harassment, intimidation, and stalking laws. Any punishment imposed for the separate crime of intimidation should run consecutively after the sanction for the original crime. All protective orders, including those issued as a condition of release, should be maintained in a central, automated database that can be accessed by law enforcement and other justice officials throughout the country. Violations of protective orders should be 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 time deemed 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) 21-3525 Chapter 21.--CRIMES AND PUNISHMENTS PART II.--PROHIBITED CONDUCT Article 35.--SEX OFFENSES 21-3525. Evidence of complaining witness' previous sexual conduct in prosecutions for sex offenses; motions; notice. (a) The provisions of this section shall apply only in a prosecution for: (1) Rape, as defined 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 indecent liberties 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 and amendments 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
  • 23. Rape Victims Are Class Of Persons Often Defined By Gender 23 K.S.A. 21-3511, and amendments thereto; (7) sexual exploitation of a child as defined in K.S.A. 21-3516, and amendments thereto; (8) aggravated sexual battery, as defined in K.S.A. 21-3518, and amendments thereto; (9) incest, as defined in K.S.A. 21-3602, and amendments thereto; (10) aggravated incest, as defined in K.S.A. 21-3603, and amendments thereto; (11) indecent solicitation of a child, as defined in K.S.A. 21-3510 and amendments thereto; (12) aggravated assault, as defined in K.S.A. 21-3410, and amendments thereto, with intent to commit any crime specified above; (13) sexual battery, as defined in K.S.A. 21-3517, and amendments thereto; (14) unlawful voluntary sexual 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, as defined in K.S.A. 21-3302, and amendments thereto, to commit any crime specified above. (b) Except as provided in subsection (c), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the proceeding unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The motion, affidavits and any supporting or responding documents of the motion shall not be made available for examination without a written order of the court except that such motion, affidavits and supporting and responding documents or testimony when requested shall be made available to the defendant or the defendant's counsel and to the prosecutor. The defendant, defendant's counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of the motion. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court. (c) In any prosecution for a crime designated in subsection (a), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.
  • 24. Rape Victims Are Class Of Persons Often Defined By Gender 24 (d) As used in this section, "complaining witness" means the alleged victim of any crime designated 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 Laws Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery of rape victims outweigh defendant's constitutional rights). 667 N.E.2d 847, 852-854 (Mass. 1996) The court concluded that a materiality standard was necessary to give full effect to the important goals underlying the privilege. S.C. Const. art I, § 24(B). The Constitution provides "the rights created in this section may be subject to a writ of mandamus, to be issued by any justice of the Supreme Court or 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 victim right). Utah Code Ann. § 77-38-11(2)(a)(i) (2004) (declaring "victim may bring an action for... a writ of mandamus"). Ariz. Rev. Stat. § 13-4437 (2004). The statute provides: the victim has standing to seek an order or to bring a special action mandating that the victim be afforded any right or challenge and order denying any rights guaranteed to victims under the victims' bill of rights, article II, Sec. 2.1, Constitution of Arizona, any implementing 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 to appeal... from an interlocutory or final order...." Utah Code Ann. § 77-38-11(2)(a)(i). The Code provides that "the victim [may] bring an action for declaratory relief or for a writ of mandamus defining or enforcing the rights of victims and the obligations of government entities under the Rights of Crime Victims Act."
  • 25. Rape Victims Are Class Of Persons Often Defined By Gender 25 RAPE SHIELD STATUTES As of June 28, 2006 ALABAMA 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. § 40 MICH. 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)
  • 26. Rape Victims Are Class Of Persons Often Defined By Gender 26 OHIO 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)
  • 27. Rape Victims Are Class Of Persons Often Defined By Gender 27 References: 1 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S. Department of Justice 2 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 sexual assault, 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.pdf http://www.rainn.org/statistics/index.html 4 National Crime Victims Rights Resource Guide 2005 www.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 Justice 6 Prevalence, Incidence and Consequences of Violence Against Women Survey, National Institute of Justice and Centers for Disease Control and Prevention, 1998 7 RAINN calculation based on 2002 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S. Department of Justice 8 Sexual Assault of Young Children as Reported to Law Enforcement. Bureau of Justice Statistics, U.S. Department of Justice, 2000 9 1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S. Department of Justice. 10 2000 NCVS 11 2000 NCVS 12 Sex Offenses and Offenders. Bureau of Justice Statistics, U.S. Department of Justice, February 1997: 13 Sexual Abuse of Boys, Journal of the American Medical Association, December 2, 1998 14 2002 Recidivism and Release Statistics 1994 For more statistics and links to all primary sources, see RAINN‘s Statistics Archive 15 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.html 17 "Promoting US Department of Justice Office of Justice Programs An Analysis of data on Rape and Sexual Assault. Sex Offenses and Offenders www.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf 18 Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat Survivors of Violence by Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago Published: Violence and Victims, V. 14 (3), 1999 19 National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the WA Coalition of Sexual Assault Programs
  • 28. Rape Victims Are Class Of Persons Often Defined By Gender 28 20 National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the WA Coalition of Sexual Assault Programs 21 Excerpts from National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the WA Coalition of Sexual Assault Programs 22 Drug-Facilitated Rape: Looking for the Missing Pieces by Nora Fitzgerald and K. Jack Riley www.ncjrs.gov/pdffiles1/jr000243c.pdf 23 Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat Survivors of Violence Reviewed by Priscilla Schulz, LCSW from an article of the same title by: Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago, Published: Violence and Victims, V. 14 (3), 1999 24 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat Survivors of Violence‖ University of Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence Against Women Prevention Research Center http://www.musc.edu/vawprevention/research/victimrape.shtml 25 Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat Survivors of Violence‖ University of Illinois at Chicago, Violence and Victims, V. 14 (3), 1999, National Violence Against Women Prevention Research Center http://www.musc.edu/vawprevention/research/victimrape.shtml 26 The four injuries: How to get help after a victimization http://www.trynova.org/victiminfo/victimizationhelp/fourinjuries.html 27 Lopez, P., 1992: ‗He Said…She Said…An Overview of Date Rape from Commission Through Prosecution to Verdict Journal of Consulting and Clinical Psychology vol. 13, pp. 275-302. 28 Joint Inspection Report, 2002: ‗Report on the Joint Inspection into the Investigation and Prosecution of Cases involving Allegations of Rape (London: HMCPSI) para. 6.8. 29 Sturman, P., 2000: ‗Report on Drug Assisted Sexual Assault (London: British Home Office) 30 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, 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.pdf 31 Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, 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.pdf 32 American Prosecutors Research Institute, The Prosecution Of Rohypnol And Ghb Related Sexual Assaults, Ch. 1, pp. 13 – 17 (1999) [hereinafter APRI] (describing twenty-one other drugs used to facilitate sexual assault). I have chosen this focus because these three drugs have garnered the most attention from the government, media, and medical field. Although I later argue that this narrow focus should be avoided, I found it necessary to mirror these group‘s focus in order to describe most accurately the overall response to the date rape drug crisis. It should be clear from the
  • 29. Rape Victims Are Class Of Persons Often Defined By Gender 29 outset of this paper, however, that my focus on Rohypnol, GHB, and ketamine in no way suggests that these three drugs are the most prevalent or dangerous drugs related to 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 Behavioural and Cognitive Effects of Two Benzodiazepines Associated with Drug Facilitated Sexual Assault Journal of Forensic Science vol. 47, pp. 1101-1107 35 Weir, E., 2001: ‗Drug Facilitated Date Rape Canadian Medical Association Journal vol. 165 (1), p. 80 36 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law Enforcement, The National Center for Women and Policing, http://www.womenandpolicing.org/ Publication Date: May 2001 37 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law Enforcement, The National Center for Women and Policing http://www.womenandpolicing.org/ Publication Date: May 2001 38 Labianca, D.A., 1998: ‗Rohypnol: a Profile of the Date Rape Drug Journal of Chemical Education vol. 75, pp. 719-722 39 Archambault, Joanne ―Dynamics of Sexual Assault Training Director, Sexual Assault Training and Investigations, SATI, Inc, SATI, Inc., Addy, WA 99101-0033, joanne@mysati.com 40 DEA Congressional Testimony October 10, 2002 Statement of Asa Hutchinson Administrator, Drug Enforcement Administration, Before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, www.dea.gov/pubs/cngrtest/ct101002.html 41 National Project on Drink Spiking: Investigating the nature and extent of drink spiking in 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.pdf 42 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law Enforcement, The National Center for Women and Policing, http://www.womenandpolicing.org/ Publication Date: May 2001 43 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law Enforcement, The National Center for Women and Policing, http://www.womenandpolicing.org/ Publication Date: May 2001 44 Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law Enforcement The National Center for Women and Policing http://www.womenandpolicing.org/ Publication Date: May 2001 45 DEA Congressional Testimony, Statement by: Richard A. Fiano, Chief of Operations Drug Enforcement Administration, Before the: Caucus on International Narcotics Control Date: July 25, 2000 46 National Drug Intelligence Center, 319 Washington Street, 5th Floor, Johnstown, PA 15901
  • 30. Rape Victims Are Class Of Persons Often Defined By Gender 30 Tel. (814) 532-4601, FAX (814) 532-4690, E-mail NDIC.Contacts@usdoj.gov National Drug Intelligence Center, 8201 Greensboro Drive, Suite 1001, McLean, VA 22102-3840 Tel. (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 Cox Broadcasting 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 to privacy on personal matters under Fourteenth Amendment's Due Process Clause); Wolf v. Colorado, 338 U.S. 25, 27 (1949) ("This Court has consistently asserted that the rights 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 in medical records); Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988) (recognizing "well- established" constitutional right of privacy that includes avoiding disclosure of personal matters); Borucki v. Ryan, 827 F.2d 836, 839 (1st Cir. 1987) (noting that courts recognize right of privacy under Fourteenth Amendment); Caesar v. Mountanos, 542 F.2d 1064, 1067-68 (9th Cir. 1976) (finding qualified constitutional right of privacy in counseling sessions with psychotherapist); In re August, 1993 Regular Grand Jury, 854 F. Supp. 1375, 1378 (S.D. Ind. 1993) (recognizing constitutional right of privacy in psychotherapist records); Nat'l Transp. Safety Bd. v. Hollywood Mem'l Hosp., 735 F. Supp. 423, 424 (S.D. Fla. 1990) (recognizing constitutional right of privacy in medical and psychiatric records); Doe v. United States Civil Serv. Comm'n, 483 F. Supp. 539, 566-67 (S.D.N.Y. 1980) (finding constitutional right of privacy concerning disclosure of personal matters); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1039 (D. Haw. 1979) (recognizing constitutional right of privacy in Medicaid patient's mental health records); McKenna v. Fargo, 451 F. Supp. 1355, 1380-81 (D.N.J. 1978) (finding constitutional 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 in psychological information); Merriken v. Cressman, 364 F. Supp. 913, 917-18 (E.D. Pa. 1973) (finding constitutional right of privacy in information relating to family relationships and child rearing). 48 In re Pittsburgh Action Against Rape, 428 A.2d at 143 (Larsen, J., dissenting) ("Many victims do not even bother to report a rape because they feel the process they must go through 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 never take."); Sedelle Katz & Mary Ann Mazur, M.D., Understanding the Rape Victim: A Synthesis of Research Findings 203 (1979) (explaining that participation in criminal process "may be more 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 United States); Wendy Murphy, Gender Bias in the Criminal Justice System, 20 Harv. Women's L.J., Spring 1997, at 14, 16-18 [hereinafter Murphy, Gender Bias] (relating incidence in
  • 31. Rape Victims Are Class Of Persons Often Defined By Gender 31 Massachusetts where victims dropped charges to protect confidentiality of medical records); Wendy J. Murphy, Minimizing the Likelihood of Discovery of Victims' Counseling Records and Other Personal Information in Criminal Cases: Massachusetts Gives a Nod to a Constitutional Right to Confidentiality, 32 New Eng. L. Rev. 983, 986- 87 & n.24 (1998) [hereinafter Murphy, Minimizing Discovery] (noting Massachusetts rape victims felt forced to choose between prosecution and counseling); Anna Y. Joo, Note, Broadening the Scope of Counselor-Patient Privilege to Protect the Privacy 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 legal action as a tradeoff for receiving effective counseling treatment"); Rorie Sherman, Rape Victims' Records Vulnerable: Massachusetts Prosecutors, Therapists See a Chilling Effect, Nat'l L.J., Dec. 28, 1992, at 1 (reporting decline of rape victims 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 assault to police because of fear of participation in criminal justice system). 49 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape Crisis Counselor 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 [the case], access to counseling records was granted to defense counsel simply for the asking."). One scholar noted that some Massachusetts courts required victims to reveal whether 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 to Rape Victims, 5 J.L. & Health 101, 137 (1990/1991) 51 Joan Zorza, Recognizing and Protecting the Privacy and Confidentiality Needs of Battered Women, 29 Fam. L.Q. 273, 295 (1995) (asserting that battered women will not reveal abuse to counselors without assurances of confidentiality because abusers routinely threaten their victim's lives if they disclose). 52 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery of rape victims outweigh defendant's constitutional rights). 53 Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting recovery of rape victims outweigh defendant's constitutional rights). 54 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502 A.2d 148 (Pa. 1985), aff'd in part and rev'd in part, 480 U.S. 39 (1987). And Ritchie, 480 U.S. at 45. 55 Black's Law Dictionary defines "in camera" as "[i]n chambers, in private." Black's Law Dictionary 760 (6th ed. 1990). In an in camera inspection, "a trial judge may inspect a document which counsel wishes to use at trial in his chambers before ruling on its admissibility or its use ....". 56 667 N.E.2d 847 (Mass. 1996) 852-855 57 Commonwealth v. Ritchie, 472 A.2d 220, 225 (Pa. Super. 1984), remanded by 502 A.2d 148 (Pa. 1985), aff'd in part and rev'd in part, 480 U.S. 39 (1987). 58 Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002-03 (Mass. 1991). One year later, the Supreme Judicial Court of Massachusetts explicitly abolished the requirement
  • 32. Rape Victims Are Class Of Persons Often Defined By Gender 32 that 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 1002-03 60 Rachel M. Capoccia, Note, Piercing the Veil of Tears: The Admission of Rape Crisis Counselor 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 [the case], access to counseling records was granted to defense counsel simply for the asking."). One scholar noted that some Massachusetts courts required victims to reveal whether 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 requests and does not violate defendant's constitutional rights to cross-examination); People v. Foggy, 521 N.E.2d 86, 90-92 (Ill. 1988) (distinguishing Ritchie, upholding constitutionality of absolute privilege for rape crisis counseling records, and denying defendant in camera review of victim's counseling records); People v. Stanaway, 521 N.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 under absolute privilege for sexual assault counselors' records does not violate Confrontation Clause). 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 (West 1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West 1999); 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; 42 Pa. 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 §§ 19-13-6 to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; Utah R. 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
  • 33. Rape Victims Are Class Of Persons Often Defined By Gender 33 Jaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege for communications with psychotherapists and social workers). 64 See, e.g., 735 III. Comp. Stat. Ann. 5/8-802.1 (West Supp. 2000) (providing absolute privilege between rape crisis counselors and victims); Mass. Ann. Laws ch. 233, § 20(J) (Law. Co-op. 2000) (prohibiting disclosure of confidential communications between rape crisis 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 communications between 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 (West 1998); Ind. Code Ann. § 25-33-1-17 (Michie 1999); Iowa Code Ann. § 622.10 (West 1999); 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; 42 Pa. 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 §§ 19-13-6 to -11 (Michie 1995); Tenn. Code Ann. § 24-1-207 (2000); Tex. R. Evid. 509, 510; Utah R. 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 Jaffee v. Redmond, 518 U.S. 1, 12, 15 (1996) (recognizing federal privilege for communications with psychotherapists and social workers). 66 Sherman, supra note 7, at 27. Because rapists tend to prey on people they know, the young, and/or women who are easily victimized, the tendency to self-blame is intensified. Nat'l Victim Center & Crime Victims Treatment Center, Med. U. of South Carolina, Rape in America 2, 4-5 (1992) (reporting that 80% of rapes were committed by someone known or related to victim, 39% of victims have been raped more than once, 32.3% of rapes occurred when victim was between ages 11 and 17, and 29.3% of rapes occurred before victim was age 11). See also Women With Disabilities, Leaf Lines, Summer 1992, at 5 ("The more disabled you are, the more likely you are to be assaulted."). 67 Rule 504--Psychotherapist-Patient Privilege, Advisory Committee's Note, 56 F.R.D. 183, 242 (1972) ("[The therapist's] capacity to help his patients is completely dependent