Law Reform Efforts: Rape and sexual assault in United States of America

Submitted by hHogan on Sun, 2012-05-06 21:41
Revised by hHogan on Fri, 2013-10-18 18:29

The feminist movement in the United States has brought about several significant reforms to the manner in which rape is defined and prosecuted in the United States.  Beginning in the 1970s, the feminist anti-rape movement successfully advocated for rape shield laws and laws abolishing marital rape, as well as Title IX which, among other things, requires a school to address sexual harassment complaints.  More recently, women’s advocates successfully lobbied for the Violence Against Women Act, a federal law passed in 1994.

Rape Shield Laws           

At the prompting of the feminist movement, states began adopting rape shield laws in the United States beginning in the 1970s.  Rape shield laws limit the admissibility of a rape survivor’s sexual history during the accused rapist’s court trial.  Put another way, rape shield laws hinder the accused rapist’s ability to put the survivor and her sexual history on trial.  By limiting the admissibility of rape survivors’ sexual history, rape shield laws are intended to reduce or eliminate bias against the rape survivor for being sexually active.  Rape shield laws also encourage rape survivors to come forward by removing a survivor’s fear that her sexual history will be at issue in the trial. 

Michigan passed the first rape shield law in 1974, and within twenty years, every state had passed its own rape shield law.1  A rape shield law also exists under federal law: Federal Rule of Evidence 412.   Federal Rule of Evidence 412 prohibits admissibility of evidence offered to prove that a victim engaged in sexual activity prior to the rape, as well as evidence offered to prove a victim’s sexual predisposition.  There are, however, exceptions to this general prohibition, specifically

  • evidence of specific instances of a victim’s sexual behavior can be offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
  • evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct can be offered by the defendant to prove consent or may also be offered by the prosecutor;
  • evidence can be offered if its exclusion would violate the defendant’s constitutional rights; 
  • in a non-criminal case (e.g. a civil lawsuit involving sexual assault), the court can admit evidence of a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party; or
  • in a non-criminal case, the court may admit evidence of a victim’s reputation if the victim has placed it in controversy.2 

Marital Rape

Spousal rape was not criminalized in the United States until recent decades.  The traditional definition of rape in the United States was most commonly along the lines of “intercourse with a female not his wife without her consent.”3  The movement to redefine rape to include spousal rape began in the 1970s, with Nebraska as the first state to criminalize marital rape in 1976.4  A prominent leader in the anti-spousal rape movement was Laura X, who founded the National Clearinghouse on Marital and Date Rape in Berkeley, California in 1978.5  Laura X led the campaign in California in 1979 to make marital rape a crime, and worked with campaigns in forty-five other states.   

Approximately fifteen years later – as of July 1993 – spousal rape had become a crime in all fifty states.  Bergen, et al.  Marital Rape: New Research and Directions, VAWNet.org States outlawed marital rape by (i) making no distinction between marital rape and other forms of rape; (ii) expressly removing marriage as a defense to a charge of rape; or (iii) defining spousal rape as a separate crime.6

Though marital rape is illegal in every state, many states treat it differently, or less severely, than other forms of rape.7  For example, some states have imposed a less severe penalty for marital rape, imposed extra reporting requirements like a shorter deadline for reporting the rape, make it harder to prove marital rape by requiring a showing of force or threats rather than a lack of consent, or do not criminalize the rape if the wife is unable to consent due to, for example, a disability.8 

Title IX

Title IX is a federal law that protects students from gender discrimination in a school’s academic, educational, extracurricular, athletics and other programs.  Under Title IX, schools are required to address sexual harassment (including harassment in the form of rape, sexual assault, and sexual battery).  As a threshold matter, a school must have procedures in place to address sexual harassment, and train certain types of employees.  Once aware of sexual harassment, a school is obliged to take “immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.”  These requirements are discussed in further detail below.  United States Department of Education, Office for Civil Rights, Dear Colleague Letter, April 4, 2011 (“2011 Guidance”) at pp. 4, 8, 12.9 . 

Harassment Grievance Procedures

A school must have a process for handling sexual harassment complaints.  These procedures should specify how to file a complaint and what will happen after making the complaint.  For example, grievance procedures should explain the timeframes for major stages, including the school’s investigation, the decision on the complaint, and any appeal. 

Substantively, the procedures must provide for “prompt and equitable resolution of complaints.”   With respect to the “prompt” requirement, a typical investigation is expected to last approximately 60 days (which may vary depending on the complexity and severity of the complaint).  Regarding the “equitable” requirement, the procedures must provide an adequate, reliable and impartial investigation.  Examples of procedures that are not adequate, reliable and impartial include:

  • Procedures that are difficult to understand or confusing, (e.g., those with different complaint processes through various school departments with no coordination);
  • Policies that provide for separate procedures when the harassed student is a student-athlete;
  • Policies that require proof by “clear and convincing evidence” (i.e. highly probable or reasonably certain that sexual harassment took place), instead of “preponderance of the evidence” standard (i.e. more likely than not that sexual harassment took place);
  • Policies that put the burden on the complainant to prove that she has been sexually harassed, instead of requiring the school to investigate;
  • Policies that address the harassment by having the complainant “work out” the problem directly with the alleged perpetrator.

2011 Guidance, supra, at pp. 8-9, 11-12; Sonoma State University, OCR Case No. 09-93-2131; Georgetown University, OCR Case No. 11-03-2017; Erskine College, OCR Case No. 04-04-2016.

Training

Title IX also requires schools to educate the school community about the grievance procedures and sexual harassment.  Schools must train certain types of employees, and should also provide preventative education to the broader school community.  2011 Guidance, supra, at pp. 4, 8-9.

Responsive Action

A school has a duty to act when it becomes aware of possible sexual harassment.  This duty includes a prompt and impartial investigation and a prompt hearing to determine whether sexual harassment occurred.

An investigation begins as the result of a complaint from the victim (called the complainant), or from a third party.  Before beginning any investigation, the school must explain the grievance procedures to the complainant and obtain her consent to investigate.  When a school has not obtained consent because, for example, the report came from a third party, the school still has a duty to respond.  In such a situation, the must determine the reasonable response given the circumstances.

Additionally, the school determine whether the school should notify law enforcement, and whether it has a legal obligation under state and local laws to do so.   The school must also inform the victim of her right to contact law enforcement on her own, and must not dissuade her from doing so. 

Importantly, criminal proceedings do not relieve a school of its Title IX obligation to investigate.  A school’s investigation may coincide with criminal proceedings; however, schools cannot adopt a “wait and see” approach during pending criminal proceedings.  A school may only briefly suspend its investigation (e.g. ten days) to avoid interfering with a law enforcement investigation. 

While investigating, a school must take interim measures to protect the complainant.  This obligation includes making the complainant aware of counseling, health, and other resources, as well as procedures for reporting any retaliation from the alleged perpetrator or the alleged perpetrator’s associates.  The school should also counsel the complainant regarding her options for avoiding contact with the alleged perpetrator, including adjustments to academic or living accommodations.

A school’s investigation typically progresses to a disciplinary hearing.  In advance of and during the hearing, both the accused perpetrator and the complainant are entitled to certain rights.  For example, in order for a hearing to be equitable, the complainant and the alleged harasser have the same opportunity to present witnesses and other evidence; similar and timely access to information; the ability to seek assistance from lawyers if the other side has the right; and decision makers free from conflicts of interest.

Following the hearing, the complainant must be informed of the school’s determination.  Notice of the outcome must be in writing, and preferably given at the same time as notice to the alleged harasser.  If a school determines that sexual harassment occurred, it must then take immediate corrective action to remedy the effects of the harassment on the victim and the broader campus community.   Corrective action may involve disciplinary action, resources and assistance to the complainant, and/or changes to the school’s services for the broader student community.”

Schools may also provide a process for appealing the outcome.  If a school does have such a process, the complainant must have the same opportunity as the alleged perpetrator to appeal the decision.  2011 Guidance, supra, at pp. 4-15, 13, 15-17.

Violence Against Women Act

Following advocacy and support from a number of feminist organizations, battered women’s advocates, sexual assault survivor’s advocates, and law enforcement agencies, the United States federal government enacted the Violence Against Women Act (VAWA) in 1994.10  The law is intended to improve investigation and prosecution of rape, domestic violence, and other violent crimes against women.  VAWA, for example, provides federal grant funding for organizations, including rape crisis centers and legal aid groups, that work to end violence against women.  

The law, as originally passed, included a provision that allowed victims of gender-based violence to sue their attackers in civil court, even when no criminal charges were filed   The United States Supreme Court ruled that provision of the Violence Against Women Act unconstitutional.11  In the Morrison case, Virginia Tech University student Christy Brzonkala sued after being raped by two of the school’s football players.  Though one of the players admitted to having sexual contact with Ms. Brzonkala despite her telling him “no,” the university, after several hearings, ultimately did not punish the players for sexual assault (and instead punished one for “using abusive language”).  Nor were any criminal charges brought against the players.  Ms. Brzonkala subsequently filed suit against her attackers and the university under the Violence Against Women Act, and the case made its way to the United States Supreme Court.  The Supreme Court, in a 5-4 decision, ruled that the provision of the Violence Against Women Act allowing victims to bring civil lawsuits was unconstitutional due to limits on the ability of the federal government to enact laws addressing issues that should be handled by state and local law, as well as the ability of anti-discrimination laws to reach private individuals’ conduct.