What Men Dare Do! "O, what men dare do! What men may do! What men daily do, not knowing what they do!"

28May/112

Sexual Assault and the Law (Again) and the Media

I've written about what I perceive to be some of the problems of sexual assault and the law before, but I haven't talked a whole lot about the media.  Now we've got a trio of stories to discuss: the acquittal of two NYPD cops charged with sexual assault, the alleged sexual assault by Dominique Strass-Kahn, the Director of the IMF, and the news that my former Guhvahna, Arnold Schwarzenegger had an affair with a member of his household staff.

First, the acquittal.  As I'm sure some readers of my this blog, two police officers allegedly, while bringing a drunk woman back to her apartment, sexually assaulted her while she was incapacitated.  They were acquitted last Thursday.  I don't think I need to rehash the story, except to note a few things: there was videotaped surveillance of the officers returning to her apartment after leaving and there wasn't any DNA evidence.  I think those two facts speak to an interesting intersection of the difficulties of prosecuting a sexual assault case where the victim was drunk (in this to incapacitation) and what is called in legal circles the "CSI effect."  In a sentence, the CSI effect is the tendency of criminal juries to demand high-tech forensic evidence and analyses in prosecution criminal cases.  While the actual effects of the "CSI effect" are hotly debated within the legal and academic community, I wonder if this isn't anecdotal evidence of it.  Here we have a sexual assault victim who is unable to remember much of the encounter, which is obviously not uncommon in sexual assault cases where the victim has been drinking are/or using other substances.  We also have a perpetrator (according to the secretly taped phone call) using a condom, which if used effectively, would prevent the collection of semen samples using a SAFE kit (popularly called "rape kits").  So we have juries that are disinclined to believe circumstantial evidence such as the surveillance videos (even though as a legal matter, circumstantial evidence is equal to eyewitness evidence), no CSI type evidence, and a victim who in all likelihood does not remember everything.

Now scoot on over to the alleged assault by Dominique Strauss-Kahn of a maid in his hotel room in New York City.  Legally, I don't think this is as interesting a case, as it more closely conforms to traditional expectations of sexual assault: a man assaulting a woman, with DNA evidence.  No alcohol involved, which would lead to victim-blaming or a more clear "defense," such as in the NYC cop case.  Something that I should be added are the racial issues involved, which don't seem to have been brought up in US media as much: the victim is reportedly Guinean and obviously Mr. Strauss-Kahn is white.

I'd like to contrast this to the Schwarzenegger news we've heard and note again the ethnicities involved.  The woman with whom Mr. Schwarzenegger had an affair with was also of color and also a woman under his employ.  I bring this up because both these two men engaged in relationships with people with whom they had an unequal power relationship, and though Arnold's relationship has been reported as consensual, I think, as a general matter, that things become much more murky when it involves relationships between employers and employees.  But the coverage of Schwarzenegger's story is mostly centering on the affair, the divorce, the effect it would have had on politics, etc., etc., and not the sexual dynamics inherent in an unequal relationship like that.

I think crimes involving sex remain some of the most strangely covered events in our media.  If there's a mugging, you don't blame the victims for have the audacity to be mugged.  If there's a murder, you don't blame the victim for what they were wearing, doing, or where they were at night.  If there's a murder and it involves people of different races/ethnicities, you bet it will be discussed heavily in the popular media, but if there's a sexual assault, the likelihood is much less, such as in the case of Dominique Strauss-Kahn.  Is it because of our society's inability to accept sexuality and yet be fascinated by sex in the popular consciousness?  Is it our unwillingness to accept a lot of the racialized aspects of crime and sex crimes in general?  I don't know, but it's all food for thought.

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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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