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Post-assault treatment of sexual assault victims

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After a sexual assault or rape, victims are often subjected to scrutiny and, in some cases, mistreatment. Victims undergo medical examinations and are interviewed by police. During the criminal trial, victims suffer a loss of privacy and their credibility may be challenged. Victims may also become the target of slut-shaming, abuse, sexual slurs and cyberbullying.

Various laws operate to assist victims. During criminal proceedings, publication bans and rape shield laws protect victims from excessive public scrutiny. Laws may also prohibit defence lawyers from obtaining a victim's medical, psychiatric or therapeutic records. Statutory rape laws set the age of legal consent for sexual activity and prohibits perpetrators from alleging the victim consented to the activity. Victims in some jurisdictions can seek damages from police and institutions if warnings were not issued. Numerous victims' rights groups operate to improve the treatment of victims.

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Examination and investigation of victim

Main article: Rape investigation

Medical examination

Main article: Rape kit

Victims of sexual assault are often subjected to an invasive medical examination in order to collect and preserve evidence for future legal proceedings. The examination may include the collection of semen, blood, saliva and other bodily fluids by swabbing the victim's genitals, rectum, mouth and body surfaces.[1] Examiners may also collect fingernail scrapings and pluck head and pubic hairs.[2] If the facility has the means, and the victim consents, the examiner will also take photographs of genital injuries using a colposcope.[2] A 'rape kit' contains the items used by medical personnel for gathering and preserving physical evidence.

Untested 'rape kits'

Many "rape kits" are untested because they are never submitted to crime labs or because crime labs have insufficient resources to test all of the submitted kits. [2][3][4] In the United States, national surveys of law enforcement agencies suggest there may be upwards of 200,000 untested rape kits.[5]

Survivors' Bill of Rights Act of 2016

The Survivors' Bill of Rights Act of 2016 was enacted by the United States federal government on October 7, 2016.[6]

The Act gives victims the right:

  • to request the preservation of sexual assault evidence collection kit or its probative contents.
  • to have the sexual assault evidence collection kit preserved, without charge, for the duration of the maximum applicable statute of limitations or 20 years, whichever is shorter
  • to be informed of any result of a sexual assault evidence collection kit, including a DNA profile match, toxicology report, or other information collected as part of a medical forensic examination, if such disclosure would not impede or compromise an ongoing investigation [7]

Interview by police

As part of police investigations, victims are interviewed by police. The interview is usually recorded, a transcript may be prepared and the interview may be made available to the public. Discrepancies between the victim's statements to police and other evidence are grounds for the defence lawyer to impeach the credibility of the victim.

Access and review of victim's e-mails and other private documents

In investigations involving acquaintance or date rape, the electronic communications between the accused and the victim may be reviewed in order to determine if the victim consented to the sexual activity.[8]

In People v. Jovanovic, the New York appeals court determined that emails from the alleged victim should be included in evidence and that the rape shield law did not apply. The alleged victim had written about her sadomasochistic interests and experiences.

In Canada, a defense lawyer may be allowed to obtain copies of the victim's e-mails and other private documents using a legal procedure called a third-party records application.[9]

Confidentiality of victim's medical and therapeutic records

In Canada, pursuant to sections 278.1 to 278.91 of the Criminal Code defence counsel are not allowed to obtain a victim's medical, psychiatric or therapeutic records .[10] The prohibition was found to be constitutional by the Supreme Court of Canada even though it limited the accused ability to provide a full answer and defence; see R. v Mills.

Harassment by private investigators

An accused may hire a private investigator to investigate and harass a victim. For example, according to the complaint in the civil lawsuit against Penn State University, Nate Parker hired a private investigator to investigate and harass an 18-year old student. The student alleged she was raped by Parker and another student.[11][12][13] The harassment included exposing the victim's identity by posting enlarged photos of the victim around the university campus. The lawsuit against Penn State was settled for $17,500.[14] (Parker was found not guilty of the rape charges. The victim attempted to commit suicide 3 months after the assault [12] and committed suicide at age 30.)

See also: Nate Parker § 1999 rape charges

Perpetrator may obstruct investigation by threatening victim

In order to obstruct an investigation, a perpetrator may threaten victims and force them to lie to investigators. For example, Dr. Raj Sekhon forced one of his victims to send a letter to the College of Physicians and Surgeons of Ontario saying “Raj Sekhon never raped me or even gave me drugs!!”" [15] Sekhon pleaded no contest in a disciplinary proceeding related to allegations he sexually abused patients.

Institutions may attempt to cover up sexual abuse

Main article: Catholic Church sexual abuse cases

Payment of "hush" money in exchange for victim's silence

See also: Dennis Hastert § Hush-money scheme and indictment

Dennis Hastert allegedly promised to pay $5 million to his victim in exchange for agreeing not to discuss the sexual assaults.[16]

Campus sexual assault victims

See also: Campus sexual assault

Office of Civil Rights

Main article: Office for Civil Rights § Sexual violence investigations

In the United States, Title IX requires schools receiving federal funds to protect students from gender-based violence and harassment – including sexual assault.[17] The Office for Civil Rights investigates Title IX sexual violence complaints.

Campus Accountability and Safety Act

The Campus Accountability and Safety Act (CASA) is a United States bill to reform the sexual assault investigation process and protect victims. CASA includes a requirement that colleges and universities publish statistics relating to crime on their campuses.

Safe Campus Act

The Safe Campus Act is proposed U.S. legislation that would require schools to report allegations of sexual assault to law enforcement, but only if the victim consents. However, if the victim does not consent the statute prohibits schools from initiating their own internal disciplinary procedures.

The Hunting Ground documentary

The Hunting Ground is a critically acclaimed American documentary film about the incidence of sexual assault on college campuses in the United States. Its creators say college administrations are failing to respond adequately.

Publication bans, duty to warn and censorship

Publication of victim's name and publication bans

Main article: Publication ban

In the United States, laws prohibiting the publication of a victim's name have been found to be unconstitutional and struck down.[18] In Cox Broadcasting Corp. v. Cohn 420 U.S. 469 (1975), the U.S. Supreme Court ruled a Georgia statute that imposed civil liability on media for publishing a rape victim's name was unconstitutional. The Court stated: "the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection." Also see Florida Star v. B. J. F., 491 U.S. 524 (1989) and State of Florida v. Globe Communications Corp., 648 So.2d 110 (Fla. 1994).

In Canada, the Canadian Press generally does not publish the names of alleged sexual assault victims without their consent.[19] In addition, a court order may operate to prohibit publication. Pursuant to paragraph 486.4(1)(a) of the Criminal Code, the court may make an order "directing that any information that could identify the complainant or a witness" not be published, broadcast or transmitted for any sexual offences.[20] The victim has the option of waiving the publication ban.

Victim may be prohibited from discussing the assault

In cases where the accused is under 18 years of age, the court may impose a publication ban to protect the privacy of the offender.

17-year-old Savannah Dietrich was sexually assaulted by two teenagers. The court ordered Dietrich not to discuss the case and she was threatened to be found in contempt when she published the names of the perpetrators on social media.[21]

In Canada, the section 110 of the Youth Criminal Justice Act generally prohibits the publication of the name of the offender if the offender was under the age of 18 at the time of the offence.[22]

See also: Youth Criminal Justice Act § Privacy

Duty to warn the public

Main article: Duty to warn § Criminal Activity and Sexual Assault

The police, colleges and universities may be required to warn the public that a sexual assault has occurred. Women should be warned of the risk they face and have the opportunity to take any specific measures to protect themselves from future attacks.[23]

Victim lawsuits against police and institutions

Victims of sexual assault may sue for damages if warnings are not issued. In 1998, a sexual assault victim successfully sued the Toronto police for their failure to warn her that a serial rapist was active in her neighbourhood.[24] The complainant in the Nate Parker case sued Pennsylvania State University for violating her Title IX rights.[12]

See also: Title IX § Impact

Clery Act

In the United States, the Clery Act imposes fines on colleges and universities that fail to warn students of criminal activity on or near campuses. The law is named after Jeanne Clery, a 19-year-old Lehigh University student who was raped and murdered in her campus hall of residence in 1986. In relation to the Jerry Sandusky sexual abuse scandal, U.S. federal investigators are seeking to fine Penn State University $2.4 million for failing to warn of threats to the campus.[25]

See also: Murder of Laura Dickinson § Aftermath

Self-censorship because of ethnicity of the accused

Main article: Rotherham child sexual exploitation scandal § Reactions

Publication of information regarding sexual assaults may be suppressed because of fears of being thought racist.[26] A 2006 report regarding the child sexual assaults in Rotherham, England stated: "It is believed by a number of workers that one of the difficulties that prevent this issue [child sexual exploitation] being dealt with effectively is the ethnicity of the main perpetrators." [26][27]

In 2016, Mississauga Mayor Bonnie Crombie filed a hate-crime complaint regarding an article about sexual assaults of high school girls.[28][29]

Self-censorship because "women would become hysterical"

In 1998, the Toronto police did not issue warnings regarding a serial rapist "because women would become hysterical or panic" and "the rapist would flee and the investigation would be compromised." [30] The Toronto police were ultimately found liable for damages for failing to issue warnings.

Main article: Laws regarding rape

Statute of limitations

A statute of limitations may preclude a victim from pressing criminal charges. Limitations periods vary from jurisdiction to jurisdiction. For example, in Pennsylvania charges must be filed within 12 years of the assault.[31]

Statutory rape is sexual activity in which one of the individuals is below the age of consent. The age of consent is the age at which a young person is capable of consenting to sexual activity. [32] These laws were enacted to recognize the inherent power imbalance between adults and children and that children are incapable of giving true consent to sexual acts with adults. The laws protect children from undue influence, persuasion and manipulation.

In 2016, the Government of Turkey proposed legislation that would overturn a man conviction for child sex assault if they married their victim. [33]

Sexual history of victim and 'rape shield' laws

Main article: Rape shield laws

In Australia,[34] Canada and the United States, the prior sexual history of the victim is generally not admissible as evidence during a criminal proceeding. These laws are referred to as rape shield laws.

In Canada, the constitutionality of the rape shield law was challenged on the grounds that it hampers a defendant's ability to present a defence. The law was found to be constitutional by the Supreme Court of Canada: see R v Darrach.

In Canadian criminal proceedings, the Crown prosecutor does not act on behalf of the victim and is not the victim's lawyer.[35]

29. Who represents the victim during the trial? Should I get a lawyer to ensure that my rights are met during the trial?
Crown counsel is not and can never function as the victim’s lawyer. Although the Crown appears to be representing the interests of the victim, the Crown is the lawyer for the Queen and the government during the trial. In Canadian criminal cases, the harm is perceived to have been committed against the State. This is why cases are referred to as Regina v. Smith (or R. v. Smith), Regina being the Queen in Latin. The Crown is truly representing the society, of which you are a part.[36]

Separate trials if there are multiple victims of a single defendant

Sexual assault cases commonly involve multiple complainants. In these cases, the defence is likely to apply for separate trials for each offence.

The decision to have separate trials is discretionary and is exercised in order to prevent prejudice to the defendant. The threshold question for holding a joint trial is whether or not each complainant’s evidence will be admissible in respect of the charges involving the other complainants (that is, whether such evidence is ‘cross-admissible’). Decisions to hold separate trials or refuse to admit relevant tendency or propensity evidence about a defendant’s sexual behaviour can be seen as barriers to the successful prosecution of sex offences.[37]

The sexual assault charges against Jian Ghomeshi involved multiple complainants and were dealt with in two separate proceedings.[38] The second trial did not proceed after Ghomeshi agreed to issue an apology.[39]

Cross-examination of victim

A victim of sexual assault may be subjected to speculative allegations of wrongdoing during cross-examination. For example, in R. v. Sofyan Boalag[40] the defence lawyer asserted during the cross-examination that the victim was in fact asking for money in exchange for sex.[41] In that case, the accused was convicted of 13 criminal offences involving six victims including multiple sexual assaults at knife point.[40]

A victim's credibility may be impeached if she is unable to accurately recall minor details about the circumstances in which the assault took place. For example, in the trial of Jian Ghomeshi the credibility of one of the complainants was impeached because she was unable to accurately remember the make of Ghomeshi's car. In that case the Ontario Court of Justice stated:

In a case which turns entirely on the reliability of the evidence of the complainant, this otherwise, perhaps, innocuous error takes on greater significance. This was a central feature of her assessment of Mr. Ghomeshi as a "nice guy" and a safe date. Her description of his car was an important feature of her recollection of the first date. And yet we know that this memory is simply wrong. The impossibility of this memory makes one seriously question, what else might be honestly remembered by her and yet actually be equally wrong? This demonstrably false memory weighs in the balance against the general reliability of [the complainant's] evidence as a whole.[42]

Scrutiny of victim's alcohol consumption

A victim's alcohol consumption at the time of the assault may undermine the victim's ability to remember the assault and her ability to provide credible testimony. As noted by Justice Zuker of the Ontario Court of Justice:

[414] What makes someone a perfect target in the context of alcohol-facilitated sexual assaults may make that person a poor witness in any ensuing proceedings due to his or her inability to remember part or all of what happened.

[415] One of the more challenging (and ever-present) issues to evaluate in sexual assault is the question of consent. Sexual assaults may involve alcohol consumption by one or both parties. Frequently, parties to an incident will have limited or no memory of the events in question, and the court will be required to obtain and evaluate information provided by other witnesses or other corroborating evidence.[43]

Victim's criminal record

During cross-examination, a victim's criminal record may be noted in order to impeach their credibility . This tactic was used in the trial of Daniel Holtzclaw.[44]

Post-assault mistreatment and abuse

Inappropriate behaviour by medical personnel

Main article: Secondary victimization

The victim may be subject to inappropriate post-assault behaviour or language by medical personnel or other organizations.[45]

Slut-shaming

Slut-shaming is the practice of blaming the victim for rape and other forms of sexual assault. It rests on the idea that sexual assault is caused (either in part or in full) by the woman wearing revealing clothing or acting in a sexually provocative manner, before refusing consent to sex,[46] and thereby absolving the perpetrator of guilt.

The SlutWalk challenges the idea of explaining or excusing rape by referring to any aspect of a woman's appearance. The SlutWalk was created in response to comments by a Toronto Police officer who said: "I've been told I'm not supposed to say this – however, women should avoid dressing like sluts in order not to be victimized." [46][47]

Abusive comments and sexual slurs on television programs

On the U.S. television program The View, Joy Behar referred to Bill Clinton's sexual assault accusers as "tramps." Behar apologized for the sexual slur shortly afterwards.[48][49][50][51]

Cyberbullying

Main article: Suicide of Audrie Pott
Main article: Daisy Coleman
Main article: Suicide of Rehtaeh Parsons
Main article: Sexual assault of Savannah Dietrich
Main article: Steubenville High School rape case

Victims of sexual assault may be subjected to cyberbullying.

Audrie & Daisy documentary

The Netflix documentary Audrie & Daisy is about Audrie Pott and Daisy Coleman, two American high school students who were sexually assaulted by other students. At the time they were assaulted, Pott was 15 and Coleman was 14 years old. After the assaults, the victims and their families were subjected to abuse and cyberbullying. The documentary was released on September 23, 2016.[52]

Violence, intimidation and honor killings

Main article: Honor killings

In many cultures, rape victims are at very high risk of suffering additional violence or threats of violence after the rape. These acts may be perpetrated by the rapist or by friends and relatives of the rapist as a way of preventing the victims from reporting the rape, of punishing them for reporting it, or of forcing them to withdraw the complaint; or they may be perpetrated by the relatives of the victim as a punishment for "bringing shame" to the family. This is especially the case in cultures where female virginity is highly valued and considered mandatory before marriage; in extreme cases, rape victims are killed in honor killings.[53][54][55]

Forced marriage to rapist

Main article: Suicide of Amina Filali

In some places, girls and women who are raped are often forced by their families to marry their rapist. Because being the victim of rape and losing virginity carry extreme social stigma, and the victims are deemed to have their "reputation" tarnished, a marriage with the rapist is arranged. This is claimed to be in the advantage of both the victim—who does not remain unmarried and doesn't lose social status—and of the rapist, who avoids punishment.

In 2012, the suicide of a 16-year-old Moroccan girl—who, after having been forced by her family to marry her rapist at the suggestion of the prosecutor, and who subsequently endured abuse by the rapist after they married—sparked protests from activists against the law which allows the rapist to marry the victim in order to escape criminal sanctions, and against this social practice which is common in Morocco.[56]

Victims' rights

Main article: Victims' rights

Crime Victims' Rights Act

In the United States, the Crime Victims' Rights Act grants rights to victims including the right to be reasonably protected from the accused. Similarly, in Canada the Canadian Victims Bill of Rights provides rights to victims.[57]

Victims' rights groups

Rise is an NGO working to implement a bill of rights for sexual assault victims.

The Rape, Abuse & Incest National Network (RAINN) is an American group which carries out programs to prevent sexual assault, help victims, and to ensure that rapists are brought to justice.

The Victim Rights Law Center is an American non-profit organization that provides free legal services to victims of rape and sexual assault.

In the United States, the Office on Violence Against Women works to administer justice and strengthen services for victims of domestic violence, dating violence, sexual assault, and stalking.

In South Africa, People Opposing Women Abuse (POWA) is a women’s rights organisation that provides services and engages in advocacy to promote women’s rights and improve women’s quality of life.[58]

See also

References

  1. ^ Ort, Jennifer A. (September 2002). "The Sexual Assault Nurse Examiner". The American Journal of Nursing. 102 (9): 24GG. doi:10.1097/00000446-200209000-00026. JSTOR 3522934.
  2. ^ a b c Campbell, Rebecca; Feeney, Hannah; Fehler-Cabral, Giannina; Shaw, Jessica; Horsford, Sheena (December 23, 2015). "The National Problem of Untested Sexual Assault Kits (SAKs): Scope, Causes, and Future Directions for Research, Policy, and Practice". Trauma, Violence, & Abuse: 1–14. doi:10.1177/1524838015622436.
  3. ^ "Addressing the Rape Kit Backlog". Rape, Abuse & Incest National Network. RAINN. Retrieved 13 May 2016.
  4. ^ Campbell, R.; Feeney, H.; Pierce, S. J.; Sharma, D. B.; Fehler-Cabral, G. (March 27, 2016). "Tested at Last: How DNA Evidence in Untested Rape Kits Can Identify Offenders and Serial Sexual Assaults". Journal Of Interpersonal Violence. ISSN 1552-6518.
  5. ^ Campbell, Rebecca (March 27, 2016). "Tested at Last How DNA Evidence in Untested Rape Kits Can Identify Offenders and Serial Sexual Assaults". Journal of Interpersonal Violence. doi:10.1177/0886260516639585. Large numbers of untested SAKs have been found in cities throughout the United States, including New York City (~16,000), Los Angeles (~13,000), Memphis (~12,000), Detroit (~11,000), Houston (~6,000), Dallas (~4,000), and Cleveland (~4,000; see Campbell, Feeney, et al., 2015).
  6. ^ "H.R.5578 - Survivors' Bill of Rights Act of 2016". United States Congress. Retrieved 9 October 2016.
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  21. ^ Plait, Phil (2012-07-23). "Savannah Dietrich outs her rapists on Twitter and Facebook". Slate.com. Retrieved 2013-01-07.
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  23. ^ Justice Macfarland (July 3, 1998). "Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1998 CanLII 14826 (ON SC)". Ontario Court (General Division). Retrieved 18 October 2016. Ms. Doe brings a suit against the Metropolitan Toronto Police Force (hereafter referred to as MTPF) on two bases; firstly she suggests that the MTPF conducted a negligent investigation in relation to the balcony rapist and failed to warn women whom they knew to be potential targets of Callow of the fact that they were at risk. She says, as the result of such conduct, Callow was not apprehended as early as he might otherwise have been and she was denied the opportunity, had she known the risk she faced, to take any specific measures to protect herself from attack.
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  26. ^ a b Katie Hall (August 27, 2014). "Real or imagined: Racism 'fear' over Rotherham child abuse". BBC News Online. Retrieved 9 October 2016.
  27. ^ Alexis Jay OBE. "Independent Inquiry into Child Sexual Exploitation in Rotherham (1997 – 2013)". Rotherham Metropolitan Borough Council. p. 2. Retrieved 9 October 2016. By far the majority of perpetrators were described as 'Asian' by victims, yet throughout the entire period, councillors did not engage directly with the Pakistani-heritage community to discuss how best they could jointly address the issue. Some councillors seemed to think it was a one-off problem, which they hoped would go away. Several staff described their nervousness about identifying the ethnic origins of perpetrators for fear of being thought racist; others remembered clear direction from their managers not to do so.
  28. ^ San Grewal (October 9, 2016). "Mississauga mayor files hate-crime complaint after inflammatory article". Toronto Star. Retrieved 9 October 2016.
  29. ^ "Bonnie Crombie weighs legal options after local news site makes allegations against her, Muslim community". Canadian Broadcasting Corporation. Retrieved 10 October 2016.
  30. ^ Justice MacFarland (July 3, 1998). "Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 1998 CanLII 14826 (ON SC)". www.Canlii.org. Ontario Court (General Division). Retrieved 18 October 2016. Sergeant Cameron indicated, I find, that it was not the practice to issue warnings in such cases because women would become hysterical or panic (I do not see any real difference which word he used, the meaning is the same), the rapist would flee and the investigation would be compromised. Of course it was not true that it was not the policy of the MTPF to issue warnings in such cases because it had been done in the Dawson Davidson case -- just months earlier and in the very same division.
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  34. ^ Australian Government: ALRC: 20. Matters Outside the Uniform Evidence Acts - Rape shield laws
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  36. ^ "A Victim's Guide to the Canadian Criminal Justice System: Questions and Answers" (PDF). Canadian Resource Centre for Victims of Crime. Retrieved 19 September 2016.
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  38. ^ Mark Gollom (March 24, 2016). "Jian Ghomeshi found not guilty on choking and all sex assault charges". Canadian Broadcasting Corporation. Retrieved 29 October 2016.
  39. ^ "CBC apologizes to Kathryn Borel over handling of Jian Ghomeshi complaint". Canadian Broadcasting Corporation. May 11, 2016. Retrieved 29 October 2016.
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  46. ^ a b McCormack, Clare; Prostran, Nevena (2012). "Asking for it: a first-hand account from slutwalk". International Feminist Journal of Politics. 14 (3). Taylor and Francis: 410–414. doi:10.1080/14616742.2012.699777.
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  52. ^ Nosheen Iqbal (September 19, 2016). "Audrie and Daisy: an unflinching account of high-school sexual assault". The Guardian. Retrieved 19 September 2016.
  53. ^ "Rape victim threatened to withdraw case in UP". Zeenews.india.com. 2011-03-19. Retrieved 2013-02-03.
  54. ^ "Stigmatization of Rape & Honor Killings". WISE Muslim Women. 2002-01-31. Retrieved 2013-02-03.
  55. ^ Harter, Pascale (2011-06-14). "BBC News - Libya rape victims 'face honour killings'". BBC News. Retrieved 2013-02-03.
  56. ^ "BBC News — Morocco protest after raped Amina Filali kills herself". BBC News. 2012-03-15. Retrieved 2013-02-03.
  57. ^ "Canadian Victims Bill of Rights". Government of Canada. Retrieved 30 October 2016.
  58. ^ "People Opposing Women Abuse website". Retrieved 13 November 2016.
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