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4Nov/109

Sexual Assault and the Law

Sexual Assault & the Law

A very unfortunate fact that ends up coloring many a man's perception of sexual assaults is how the legal system deals with sexual assaults.  A man is most likely to hear about rape and sexual assault through the media, which frequently filters that through a lens of the law.  If you ask a man about examples that came to mind, he'd probably mention Kobe Bryant, the Duke lacrosse case, Ben Roethlisberger, or maybe Julian Assange.

First, we have to face some things: our legal system is not designed to discover the truth behind every alleged crime.  It is designed to take allegations of crimes that prosecutors believe they can prove in Court to a jury beyond a reasonable doubt.

Secondly, we have to deal with the matter of jury nullification.  Jury nullification is an act that occurs when a jury acquits a defendant of a crime for reason that are not sanctioned in the legislation that makes the act a crime, or when they believe that the law is simply incorrect as applied in this case.  Classic examples of American jury nullification are frequently racial in nature: in the antebellum North, juries frequently refused to acquit under the Fugitive Slave Act, and in the post-Reconstruction South, juries would frequently acquit a white man of murdering an African-American.

In sexual assault and rape cases, frequently you see jury nullification when a jury acquits for something contrary to what the law would demand.  For instance, the victim may be drunk and is raped, which is still criminal rape, but a jury might acquit, citing the alcohol usage.  There is nothing in the law, which permits a jury to acquit for such a reason.  Similarly, juries might acquit a rapist when the woman is in a situation in which she "should have known better" and the like.

Most sexual assault cases have fact patterns that are incredibly difficult to prove in Court, usually due to the fact that only two parties witnesses the crime: the perpetrator and the victim.  Similarly, many cases also have circumstances that juries are likely to use for jury nullification: the inebriation of one or both of the participants, their past sexual histories with each other and others, and the general circumstances such as time and place.

So when it comes down to it, and we hear about a case of sexual assault in the popular media, there's a lot at play when it comes down to the legal stuff.  To look at the Rothelisberger case where allegations were made by a student at Georgia College & State University, the victim, though not recanting her allegations, asked the District Attorney not to move forward with the case, citing the intrusion into her privacy.  There's a lot of factors at play -- the DA then decides not to prosecute the case, stating that he did not believe he could prove the case beyond a reasonable (which is absolutely the wrong standard by which you move forward on a case at that stage, but that's a whole different issue).  Now, the DA may have had a point: with a now-uncooperative victim/witness, the evidence may have been too scant to prove in front of a jury in this community.

But that doesn't mean that the sexual assault or rape didn't happen, and sadly, that's usually the take-home message when you just observe how these things are portrayed in the popular media.  And that's a radically wrong message to be sending to men.

As I talked a bit about in my post on talking to men about sexual assaults, men's experience with rape is from the media, and the media frequently portrays a rape that doesn't go forward as somehow "exonerating" the perpetrator.  I'll repeat as I said in that post, rape and sexual assault has no greater rate of false allegations than any other crime, and when you see allegations made against celebrities, that's a population that is not representative of the general population.  For the overwhelming majority of men, a woman has nothing to gain financially and a whole lot of privacy to lose and emotional and physical trauma to go through to make an allegation of rape or sexual assault.

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