Rape and the Law: A Timeline for Prosecution

Rape

With Angelina Jolie bringing sex crimes to the forefront of the news this week, the question of rape, the law and the timeline victims need to follow to increase the odds for successful prosecution of their attacker has been raised. UNICEF reports that at least 150 million young girls and 73 million boys are victims of sexual violence each year. The ratio of victims is even higher in war torn countries where attackers are almost never prosecuted.

In the U.S. it is estimated that 340,000 women are raped or sexually assaulted each year. In public schools around the nation, 83 percent of girls between the ages of 12 and 16 have experienced sexual harassment. Organizations like MenCanStopRape.org believe that men need to align with women to create a world of gender equality before the numbers for men’s violence against women will decrease. The organization focuses on teaching men to use their strength in a positive manner rather than a forceful one. This is the essence of Jolie’s message: if everyone does not join the fight against sexual violence, the numbers have no hope of decreasing.

The definition of sexual assault varies from state to state. In New York there are first, second and third degree sexual assaults. Each degree carries a different penalty for the crime, but all are felonies. A person is charged with rape in the first degree if they forcibly compel another to have sexual intercourse, if they have sex with someone who under 11 years old or with someone who is incapable of consent because they are physically helpless. This conviction is also applied when there is any sort of intercourse between a person who is under 13 years old. A person who assaults someone older would be charged with a class B felony. The penalty for a class B rapist is 5-25 years imprisonment. A convicted second degree rapist, a class D felon, faces 2-7 years of imprisonment. A third degree rapist, a class E felon, will receive a one-and-one-half to four-year prison sentence.

Although the law defines the degrees of rape and sexual assault differently in many states, the timeline of steps a victim can take to increase their odds for a successful prosecution of the crime are quite similar. The most important thing for any victim of sexual assault to do is to get to a hospital emergency room as soon as possible. It is best to keep on the clothes that were worn at the time of the assault, but if a victim must change clothes they should put that clothing into a paper bag (not plastic) and take it with them to the hospital. The victim should avoid bathing or showering, going to the bathroom or douching, to retain as much DNA evidence as possible. The more physical evidence that can be collected the greater the chance the attacker will be sentenced if legal action is pursued.

Many emergency rooms have what is called a SANE program. This is where registered nurses and nurse practitioners are trained as Sexual Assault Nurse Examiners (SANE). Not only do SANE nurses have experience with getting maximum forensic evidence collected through rape kits, they also provide the victim with information about sexually transmitted diseases (STD), pregnancy risks and emergency contraception options. These nurses also provide emotional support for victims who often find the long wait and the examination traumatic. SANE nurses are now being called more often as expert witnesses in court. Twenty-five percent of SANE programs are housed at community health clinics or rape crisis centers, while 75 percent of them are hospital-based. There are more than 280 SANE programs in existence.

Although forensic evidence can be collected for up to 96 hours after a sexual assault, many victims find these evidence collection procedures to be too invasive after the trauma they have suffered. Some states, such as Texas, allow a “non-report option” where victims can choose not to have the police involved. The victim can choose this and still have the forensic exam, which the state stores for two years in case the victim changes his or her mind and decides to prosecute. In Texas, when anyone under age 18 is raped, it is mandatory that the attack be reported to the police.

Virginia Assistant Commonwealth Attorney Jon R. Zug asserts that at least 80 percent of sexual assaults are not reported to the police, stating that “the public nature of rape trials is very invasive.” Still, he says going through the legal process can help victims heal. He says, “Sexual assault cases are difficult because, most of the time, there are only two witnesses and the burden of proof is difficult. Most of the time the defense will put forth the argument that the sex act was consensual.” Virginia mandates a cheek swab for every convicted felon and keeps this DNA on file to be compared against future crime scene evidence.

The startling statistics are that one in three American women will be sexually assaulted in her lifetime. Typical victims are women between the ages of 16 and 24, although rape can cross gender and age boundaries. The most common perpetrators are males between the ages of 25 and 44. These aggressors usually plan their assaults, and most often choose a victim of their same race. Often a victim knows their attacker, with 50 percent of attacks occurring in the victim’s home. Alcohol is involved in more than 30 percent of sexual assaults.

Although forensic evidence is vital, a sexual assault can be prosecuted without DNA evidence. A professor from the Loyola School of Law Laurie Levenson explains,“Some jurisdictions do not have access to DNA, particularly smaller cities. Plus there are rapes where no DNA evidence is left behind or is contaminated. It is often easier for the defense to raise ‘reasonable doubt’ in the jurors when the prosecutors do not have DNA. Jurors are often very suspicious of the victim’s credibility, which makes these cases even more difficult.”

The issue of consent is an area that is not always understood. Many date-rape victims harbor guilt because they have had sexual intimacy with their attackers in the past. Consent does not include coercion of any sort and consent is not fixed, meaning agreement to one sexual act does not mean all future acts have implied consent. A person must be conscious to give consent and phrases like “not yet” or “I’m not sure” mean “no.” Post-traumatic stress symptoms are common for victims of sexual assault and counseling, particularly with methods like eye movement desensitization and reprocessing (EMDR) that have proven effective with post-traumatic stress disorders, is recommended for recovery.

Although the laws about “what counts as rape” have increased in the last few decades, prosecution of the crime still requires as cohesive a timeline of evidencee as possible. The odds for success will always be higher if the crime is reported right away. Jolie’s entire purpose at this week’s Global Summit to End Sexual Violence in Conflict is to make the world safer for victims of sexual violence by bringing their attackers to justice.

By Jenny Hansen

Sources:

CNN (Angelina Jolie)
CNN (Violence Against Women)
MenCanStopRape.org
Sarah Lawrence College
SexLaws.org
University of Virginia School of Law
The Rape Crisis Center
NPR

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