Gender-bias and the Challenges of Effectively Defining, Investigating and Prosecuting Sexual Assault
By Alessandra Carozza
The patriarchal nature of the American justice system has prevented the development of effective mechanisms for defining, investigating, and prosecuting sexual assault crimes. The inherent gender-bias affects the legal definitions and constructs of rape, how rape cases are investigated, and how prosecutors decide which cases to prosecute. Though the legal definition of rape has evolved beyond the property-based English common law definition, the current law still contains gender-bias elements and legal constructs that leave women and high-risk minority groups vulnerable. From the physical resistance requirements and non-gender neutral language contained in statues to the legal constructs that allow marital exemptions and mistake of age defenses, modern sexual assault law remains highly gender-biased.
Investigation by law enforcement remains unreliable, often exposing victims to a hostile system that focuses on the behavior and character of the victim instead of the alleged assault. Law enforcement case classification practices routinely misclassify or “under-classify” rape accusations in order to improve case closure rates for the department. Sexual assault units within police departments are often underfunded and undertrained, relying on community-based organizations to supplement critical victim services and even to provide training to law enforcement officers. Anecdotally, victims of sexual assault and community-based service providers point to law enforcement hostility and incredulity as one of the main factors contributing to severe underreporting by victims of sexual assault.
Prosecution practices are also gender-biased, often focusing on the character and behavior of the victim as a key factor in deciding which cases will be prosecuted. Vulnerable groups such as sex workers and members of the transgendered community are statistically less likely to have their cases accepted by a prosecutor based on traditional notions of sexuality and moral judgments about promiscuity. Despite new protection such as rape-shield laws, prosecutors remain less likely to pursue cases on behalf of victims who may be seen as engaging in high-risk behavior such as drinking or victims who have “undesirable” sexual histories.
Gender-neutral reforms are not uniform across the country. Gender-neutral statutory rape laws still have not been passed in all of the states. A minority of states retain language that either designates males as the aggressors, women as the victim, or both. In fact, the law did not recognize the rape of a male victim until 1994. Even among jurisdictions that use gender-neutral language to describe parties to the crime of rape, the sexual acts themselves as defined by the statute may preclude male victims. Many jurisdictions have statutes that define rape only as penile-vaginal penetration or penile penetration of another’s orifices. The underlying bias is that men cannot be raped and that the consequences of rape are more severe for women. Some commentators even attempted to justify the non-gender-neutral version of the Model Penal code by arguing that the potential injury from coercive intimacy is less for men and that it is difficult to believe that men suffer comparable injury as a result of rape.
This biased belief underpins rape proceedings even in jurisdiction that have fully adopted facially gender-neutral statutes as evidenced by the fact that even years after the adoption of gender-neutral language the number of reported and prosecuted cases involving male rape victims has only slightly increased. While societal stigma may account for much of the underreporting of male rape, anecdotal evidence from victims seem to indicate that male victims face an even more hostile judicial system predicated on the belief that men cannot be raped. Furthermore, advances in gender-neutral statutory language have not eliminated the exclusion of non-traditional gender groups from protection under the law. Rape as defined by penile-anal contact has still not been adopted by a minority of states, denying protection to homosexual men, while states that haven’t expanded the definition to include penetration by digits or foreign objects have left homosexual victims more vulnerable under the law. In cases of homosexual rape, many jurisdictions still treat homosexual sexual activity as more suspect than heterosexual activity, and nationally prosecution and conviction rates for homosexual rapes remain far lower than heterosexual rapes. Thus historical gender-norms and traditionally “acceptable” sexual behavior continue to be used as the measure of a victim’s virtue and subsequent credibility of a victim of sexual assault.
Next, the idea of female chastity or purity remains an unspoken factor of how sexual assault is investigated and prosecuted today. This reality is most evident in two areas: the shortcoming of rape shield laws and the treatment of sex workers who are victims of violent crime. Nearly one third of the states have adopted rape shield laws similar to the permissive laws of Texas. Under the Texas Evidence Rule 412, a defendant is not subject to any deadlines or time restrictions for introducing evidence of an accuser’s sexual history and the evidence’s probative value need only outweigh any potential prejudice against the accuser in order to be admitted into evidence. The justification offered for the more permissive model used in these states continues to be that the prior sexual conduct of an accuser is a legitimate tool for measuring the veracity of the sexual assault allegation being examined. The Texas model also allows a defendant to admit his accuser’s prior sexual history as a way of arguing lack of intent; a victim’s prior sexual conduct can be argued to mean that it was reasonable for the defendant to believe she consented. The admission of evidence of prior sexual history is, therefore, allowed based on the notion that a defendant may lack the requisite intent to commit sexual assault because his confusion around the victim’s lack of intent is justified by the victim’s prior sexual acts. If the past sexual conduct of a victim provided “reasonable belief” of consent, the evidence was admissible.
This idea is clearly a remnant of the antiquated notion that a woman with a sexual history is less moral and therefore it is less likely that she was raped. The use of past sexual history has essentially replaced the requirement for physical resistance as a tool to justify an assailant’s erroneous belief that a victim has consented. Whereas before if a victim did not physically fight off her attacker (and sustain injuries in the process of doing so) it could be presumed that she consented, today the sexual behavior of a victim opens the door for the presumption of consent based on acts she may have consented to in the past. In this way, the permissive rape shield law models fail at rebutting the very presumption they were designed to prevent: that a woman’s past “immoral” behavior or her “promiscuous” character may have constituted implied consent in the mind of her assailant.
The treatment of sex workers who report sexual assault is further evidence that gender-bias persists in the legal system. When a sex worker is sexually assaulted, most of the statutory protections afforded to victims dissolve, including the rape shield laws. Several states have statues that explicitly or implicitly allow for the introduction of the past sexual history of a victim if she is involved in the sex trade industry. As in the case of permissive rape shield law models, structuring statutes in this manner absolves the assailant of the burden of affirmatively obtaining consent based on the idea an assailant might reasonably have erred in assuming implied consent based on the victim’s occupation. This reasoning is predicated on a moral condemnation of sex workers and perpetuates the notion that sexually promiscuous (or not chaste) women are more likely to falsely accuse men of rape to cover up their immoral behavior.
Similarly, allegations of sexual assault by sex workers are far less likely to be investigated by law enforcement or prosecuted by state prosecutors. Due to the illicit nature of the sex trade industry, reliable statistics on sexual assault and sexual assault handling are difficult to ascertain. However, the estimates for sex workers that have been raped are as high as 83%. Despite the astronomical rate of victimization, sex workers are the least likely group of victims to have their assaults investigated by law enforcement or prosecuted by the state, and even the rare instances when the cases are prosecuted, sex worker victims are the least likely group to obtain a conviction against their assailant. Anecdotal evidence indicates that law enforcement officials consider sex workers highly unreliable complainants and actively discourage sex workers from reporting sexual assaults. Prosecutors are also unlikely to pursue an assault case involving a sex worker due to the belief that the complainant is unreliable and that a jury will not be sympathetic to someone working in the sex trade industry. Again, the reticence of the legal system in pursuing these cases can largely be attributed to the persisting gender-bias and stigmatization of female sexuality outside the confines of marriage.
Despite the advances in addressing sexual assault cases during the twenty-first century, the legal system continues to be plagued by gender-bias that creates significant obstacles for victims in achieving justice for a sexual assault.
The idea of traditional moral and social norms around sexuality may have been muted, but it persists in shaping how victims are treated by the legal system in pursuing sexual assault cases. The creation of gender-neutral language was a significant step in confronting gender-bias, but in application, the goal of gender-neutral laws has not been met. Victims of sexual assault are still treated differently from victims of other violent crimes when it comes to credibility and how services are rendered to them by actors in the legal system. Even progressive jurisdictions continue to struggle with manifestations of bias that created different classes of sexual assault victims, leaving many victims without adequate legal recourse to pursue justice. Non-traditional victim groups are particularly vulnerable as they face the over-all gender biased of the system. The effective legal treatment of sexual assault will require the elimination of these forms of gender-bias in our legal system, from the language used in constructing criminal statues to the practices of all investigative and judicial actors involved in the process.
 See, e.g., Ala. Code § 13A -6-61 defining rape in the first degree as sexual intercourse with a member of the opposite sex by forceful compulsion.
 Susan Caringella, Addressing Rape Reform in Law and Practice 43 (2009).
 Human Rights Watch, Capitol Offenses: Police Mishandling of Sexual Assault Cases in the District of Columbia, 47-54 (2013).
 See Juhu Thurkal & Melissa Ditmore, Urban Just. Ctr., Revolving Door: An Analysis of Street-Based Prostitution In New York City 15-16 (2003).
 Phil N.S. Rumney, In Defence of Gender Neutrality, 6 Seattle J. for Soc. Justice, 481, 486 (2007).
 Tara N. Richards and Catherine D. Marcum, Sexual Victimization: Then and Now 6 (2014).
 Id. at 483.
 Susan Estrich, Rape, 95 Yale L.J. 1087, 1150 (1986) (citing Model Penal Code § 213.1 cmt. at 338 (1980)).
 See Rumney, supra note 4, at 495.
 See id.at 503.
 See Tex. Evid. R. 412.
 See Thomas A. Mitchell, We’re Only Fooling Ourselves: A Critical Analysis of the Biases in the Legal System’s Treatment of Rape Victims, 18 Buff. J. Gender, L. & Soc. Pol’y, 74, 108 (2009).
 See id. at 111.
 See id. at 109.
 Michele Alexandre, “Girls Gone Wild” and Rape Law: Revising the Contractual Concept of Consent and Ensuring and Unbiased Application of “Reasonable Doubt” When the Victim is Non-Traditional, 17 Am. U. J. Gender Soc. Pol’y & L. 41 (2009)
 J Du Mont and MJ McGregor, Sexual Assault in the lives of Urban Sex Workers: A Descriptive and Comparative Analysis, 39 Women’s Health, 79, 96 (2004).
 Id. at 83.