Believing Survivors
May 2021
Note: This post uses RAINN’s definition of sexual assault, which is sexual contact or behavior that occurs without the explicit consent of the victim and includes rape, attempted rape, unwanted touching, and forcing a victim to perform sexual acts. RAINN uses the FBI’s definition of rape, defined as “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim” (“Sexual Assault”).
Because all rape is sexual assault but not all sexual assault is rape, this post will not use these terms interchangeably to avoid confusion. In this post, “sexual assault” includes the aforementioned acts but will exclude rape.
For sexual harassment, this post uses the definition from the U.S. Equal Employment Opportunity Commission. Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature (“Sexual Harassment”).
The #MeToo and #Time’sUp movements seemed to transform the treatment of sexual assault survivors overnight. For the first time, there was a public reckoning of the way powerful and influential people have been able to commit assault and harassment in plain sight because of their power and influence. Producer Harvey Weinstein, U.S. Senator Al Franken, and restaurateur John Besh are just some of the people successfully prosecuted or otherwise ousted from their positions after survivors came forward (Carlsen et al.). The survivors’ unity--and the network of other survivors who said, “Me, too”--created a media maelstrom too strong to ignore.
For some, the #MeToo and #Time’sUp movements obliterated an unspoken rule: rape, sexual assault, and harassment, especially by people in power, goes unpunished. The new rule is that we (society, the media, the justice system) #BelieveWomen--or for that matter, any survivor. For others, however, the unspoken rule persists. Rather than believe survivors, society maintains an impossibly high standard of evidence, dress, conduct, and sexual history in order to prosecute the perpetrator, remove someone from office, or fire the CEO. If these movements didn’t generate the culture change necessary to believe survivors, then what will?
Despite the progress of these movements, survivors of rape and sexual assault, more so than the victims of any other crime, face a unique level of scrutiny before they’re believed. Perhaps the best illustration of the hoops survivors jump through when they come forward is the difficulty of prosecuting even those sexual assault cases with eyewitnesses and physical evidence. In Chanel Miller’s 2019 memoir Know My Name, she chronicles the legal rigmarole of pressing charges and the lengthy and retraumatizing court proceedings. Miller is the sexual assault survivor from the high-profile Brock Turner case, a trial famous for its affluent defendant and a sentencing so short that voters recalled the presiding judge. Her victim impact statement, made famous by Buzzfeed, points out the special treatment Turner received as an “All American swimmer at a top university”: “The probation officer weighed the fact that he has surrendered a hard earned swimming scholarship. How fast Brock swims does not lessen the severity of what happened to me, and should not lessen the severity of his punishment” (Baker).
Miller faced a legal process lasting nearly a year and a half, and despite DNA evidence and two bystanders who served as eyewitnesses, her intoxication (and Turner’s) at the time of assault formed the crux of the defense’s argument. Strong cases--what we might even call the “perfect case”--have eyewitnesses, DNA evidence, and a victim who is willing to cooperate with the investigation and lengthy court proceedings. Though she had a strong case, Miller knew that any "imperfection" in her character or conduct could taint her case. She wrote about the trial and Turner, “He had given himself permission to enter me again, this time stuffing words into my mouth” (C. Miller 192). The defense, in other words, turned Miller’s unconsciousness and inability to express consent into a “yes”.
While it was the defense’s job to discredit Miller, alcohol consumption also played a key role in the administration of justice after the jury returned a guilty verdict. To the probation officer and Judge Aaron Persky, Miller didn’t consume enough alcohol to inhibit her ability to consent, but paradoxically, Turner consumed so much alcohol that there was “less moral culpability” for the assault. Even the media used alcohol to judge Turner’s culpability with The Washington Post writing, “But critics argued that the jury was harsh on Turner and treated an ambiguous and alcohol-fueled moment with black-and-white certainty” (M. Miller).
In this situation, alcohol disrupted an otherwise “perfect case,” but it’s only one of many factors used to discredit rape and sexual assault survivors. This phenomenon known as victim blaming is the way in which a survivor’s sexual history, relationship to the perpetrator, or even fear response are scrutinized. Victim blaming includes questions like, “How many partners have you had?” “Weren’t you in a relationship with the perpetrator?” and “Why didn’t you fight back?” When the criminal justice system, the media, or even our loved ones consider these questions, they at best bring up points that are only tangentially related to the case but at worst fail to consider the reason behind every assault: a survivor was assaulted because the perpetrator decided to commit assault.
The treatment of Miller by Judge Persky, the probation officer, and even the media is not an anomaly. Numerous studies show that victim blaming is far too common in other rape and sexual assault cases. In one study, researchers at the Harvard Kennedy School gave respondents details including survivors' and perpetrators’ race, a survivor’s sex and sexual history, a perpetrator’s socioeconomic status and relationship to the survivor, where the crime took place, and what clothing the victim wore. When respondents considered a rape that happened at a party, for example, they were, by six percentage points, less likely to report compared to other venues.They were 17.6 percentage points less likely to recommend a severe punishment for a rape that happened at a party (Pazzanese). Like Miller’s case, respondents considered a victim’s sex, sexual history, relationship to the perpetrator, and the venue of the rape--facts that, once again, aren’t legally relevant--when deciding a rapist’s culpability.
Because victim-blaming is prevalent in rape but not other violent crimes, rape consistently ranks as one of the most underreported crimes in the nation. According to the Bureau of Justice Statistics National Criminal Victimization Survey, approximately a third of rapes and sexual assaults were reported to police in 2019. A similar stigmatization around reporting or even disclosing rape exists at the local level, too. The Goldstream Group, for instance, provides a biannual evaluation on programs of the Interior Alaska Center for Non-Violent Living. For the prevention program, the Goldstream Group collected survey responses from a random sample to determine how people in the Fairbanks North Star Borough perceive rape and sexual assault. In 2020, 77.8 percent of respondents found it likely that, if someone disclosed an experience of sexual assault, others would blame the victim. What’s equally alarming is that 79.8 percent found it likely that others would deny or dismiss a victim’s allegations (Dickerson and Larson).
The evidence suggests that our culture doesn’t actually #Believe survivors, and though this has dire consequences for survivors, there are people who think that the #MeToo and #Time’sUp movements have created a moral panic. Thinkers across the political spectrum, including Christina Hoff Somers, Ross Douthat, and Judith Levine, are a few of many journalists and public intellectuals who question a) the accuracy of rape and sexual assault statistics and b) whether universities and the justice system can adequately protect the accused from false allegations. On campus sexual assault, Hoff Sommers describes a “kind of sexual McCarthyism where due process was suspended” and worries that the “fainting couchers” conflate sexual assault with “sex under the influence” or “jokes, satire, and offhand remarks” (Saul). To these thinkers, believing survivors comes at the expense of due process or distracts from the severity of “actual” rape cases.
There is, however, a conflation performed by these critics. They place their concerns over campus adjudication and definitions into the same group as their concerns over data and the veracity of a survivor; in other words, these disparate concerns all constitute our culture’s “moral panic” over rape. Whether or not any one person chooses to call an “offhand remark” assault, numerous sources verify that sexual violence is an epidemic. The CDC, NIH, academic studies, and decades of consistent survey results demonstrate that rape and attempted rape happen as frequently, if not more, than those “1 in 3” or “1 in 5” reports tell us.
As for due process in the criminal justice system, there’s no evidence to suggest that believing survivors comes at the expense of defendants. False reports are exceedingly rare (anywhere from 2-10 percent according to the National Sexual Violence Research Center), and the University of Michigan’s National Registry of Exonerations shows that false convictions for rape are nowhere near those of homicide. Yet, rape is the violent crime that has become the subject of our “moral panic” because of the extra scrutiny our culture places on its victims.
At the university level, critics do raise valid concerns over whether a panel of students and faculty is a fair means of adjudicating rape and sexual assault cases. With a new secretary of education, only time will tell whether the victim-centered Title IX regulations of the Obama administration were a blip in history or whether the Biden administration will reverse Education Secretary Betsy DeVos’s attempts to, in the words of the department, safeguard the rights of all students and due process (“U.S. Department of Education”). Again, concerns over Title IX processes do not change the epidemic proportions of sexual violence and the special scrutiny placed on these victims compared to victims of other violent crime. Addressing whether the same group of people who deliberate academic plagiarism should deliberate a violent crime is a separate concern from rape statistics or how our culture and our justice system should treat a survivor who comes forward.
When people plead to #Believe survivors, they’re not asking to treat those accused of rape differently than those accused of any other crime. They’re not asking that rape and sexual assault have, say, different standards of evidence or that the jury use a burden of proof other than beyond a reasonable doubt. In fact, academics and other experts ask to eliminate victim blaming in the criminal justice system so that survivors are treated the same as other victims. Examples of criminal justice reform include educating juries on the aftermath of rape and assault on survivors. Though the effects of trauma are well-documented, the defense can and often does mislead juries about the behavior of a survivor while providing testimony. Juries may not know, for instance, that trauma can cause a survivor to laugh at a time that’s deemed inappropriate.
Another change is addressing the financial and psychological needs of a survivor. A survivor is often the sole witness of rape or sexual assault, so a unique level of cooperation is required compared to victims of other crimes (“Victims of Sexual Assault”). For this reason, groups including the Illinois Criminal Justice Information Authority and U.S. Department of Justice argue for better-funded victims' services. Because survivors often pay for follow-up medical care resulting from their rape, counseling, and legal representation, and because survivors often deal with a years-long legal process with trial delays, lost wages, and retraumatization, rape ranks as the crime with the worst attrition (Hester and Lilley). According to Wellesley College, of the small percentage of rape cases that are reported, 19 percent lead to arrest and one percent lead to a guilty verdict through trial (“Concerning Rates of Attrition”).
Anecdotally, an interview with a local victims services advocate revealed that, of the 200 rape survivors she’s worked with, only two of them saw their assailant convicted. About half of these survivors dropped the case because the financial burden and the re-victimization of preparing for trial, having the hearing date delayed, preparing for trial again, and repeating that process ad infinitum were more horrific for the survivor than the prospect of the defendant walking free. Because there’s an undue burden on victims who cooperate, adequately-funded victims services could change the abysmal rates at which survivors choose to report their rape or sexual assault, reports result in charges, and cases are seen to their conclusion.
Eliminating victim-blaming looks similar at the cultural level; when a survivor comes forward, people can avoid fixating on dress, mannerisms, sexual history, and any other information that’s not legally relevant. They can also avoid misunderstanding a survivor’s response to trauma as evidence of a false accusation. Contrary to what the moral panic critics say, believing survivors costs us nothing, but not believing them costs us everything. Specifically, the cost is the epidemic rate of sexual violence that persists because of the special stigma attached to this crime. #Believing survivors is not a witch hunt, it’s not the elimination of due process, and it’s not a rewriting of the definition of rape and assault. Instead, believing survivors and ending the tendency to blame the victim will allow us to take sexual assault and rape as seriously as other crimes.
Chanel Miller is expected to lecture at the UAF campus in April 2022. To pick up a free copy of Know My Name, contact preventioncoordinator@iacnvl.org or 907-328-0521.
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