The St. Paul’s School rape trial was sickening for so many reasons, but it was far from unusual. The treatment of the victim, the gender-skewed jury, and the paltry one-year jail sentence were all par for the course.
In fact, New Hampshire is better than elsewhere in the US, as it at least legally recognizes sex without consent as rape. In most states, rape is only legally considered a crime in the narrow section of assaults where the attacker uses physical force. This stance, which defies the unequivocal scientific evidence that humans freeze in response to danger, has allowed countless guilty men to escape rape convictions—including a father who had sex with his petrified 12-year-old daughter. In other words, rape is still legally condoned in parts of the United States.
The criminal justice system’s refusal to properly address rape most egregiously affects the one in seven American women who have been raped. But it also fails anyone who’s ever faced the risk of sexual assault. In America, as in most of the world, this primarily means women.
Below are some instances from the trial of former St. Paul’s School student Owen Labrie, and some from the wider criminal justice system, of courtroom behavior that should belong to a bygone area.
In the St. Paul’s trial, defense attorney JW Carney Jr. aggressively cross-examined the sobbing 16-year-old victim. The judge had to intervene to tell Carney that the victim didn’t have to respond “yes” or “no,” but could explain her answers. After questioning, the girl rushed from the courtroom in tears. A reporter asked Carney if he thought his harsh treatment of such a young witness might affect the jury. “It doesn’t matter the style of the lawyer,” Carney replied.
But it matters to the victim. She told the court on Oct. 29 that Carney’s cross-examination left her feeling “physically and verbally violated.”
Carney might like to pretend otherwise, but courtroom cross-examinations, where victims often are portrayed as liars who “cried rape” so they wouldn’t be shunned for having consensual sex (as Carney implied in this case) can cause serious trauma. The UK finally recognized this and introduced guidelines on how victims can be treated in court this year after two women committed suicide following rape trials. One woman, violinist Frances Andrade, had been abused by choirmaster Michael Brewer three decades earlier but told friends the trial was like being “raped all over again.” She was found dead a week after testifying.
Labrie’s jury, which found him not guilty of the most serious offense, was made up of nine men and three women. This is absurdly unbalanced in a trial of a highly gendered crime.
Although men are victims of rape (far more than is typically recognized), women make up between 85% and 91% of rape and sexual assault victims. Given the two genders have such statistically different experiences of sexual assault, common sense suggests that men and women—regardless of whether they have experienced rape or rape threats themselves—will tend to have different perspectives on the crime. No fair jury should be 75% composed of one gender.
This legal wording seems to have lost all meaning in rape cases. Out of every 100 rapes, only 32 are reported to the police (unfortunately this is unsurprising, given victims’ treatment from prosecutors such as Carney). But there is then a second, massive drop-off in the criminal process, as only 7% of rapes lead to an arrest—and just 2% of rapists spend time in prison.
Why are so few rapists brought to justice? Some argue that rape often is a he-said, she-said crime, and that lack of evidence makes it difficult to prosecute.
But the low number of arrests suggests that police are reluctant to even investigate, though plenty of potential evidence could be available: Signs of psychological trauma, hospital examinations, and testimony from friends and acquaintances who can report how each party behaved after the incident, should all help build a case.
Perhaps so few rapes lead to arrests because victims’ testimonies are undervalued. Though it’s always theoretically possible that a traumatized woman is lying or making a false accusation for attention, is this a reasonable assumption in so many cases?
In Labrie’s trial, the jury found him innocent of the felony of rape—meaning they thought he had sex with the victim (a misdemeanor, as she was 15 at the time), but that this was consensual. It’s conceivable that the victim was lying and Labrie telling the truth on this one point alone. But is it a reasonable doubt?
Ann Olivarius, a lawyer who coined the term “sexual harassment” in a landmark lawsuit against Yale in 1980, tells Quartz that many courtrooms seem to discount women’s testimonies:
“In court, a woman’s word on rape is not considered reliable. In some courts, they’re not applying a standard of ‘beyond reasonable doubt,’ but ‘to a certainty.’ The law doesn’t have that as a standard. The highest bar should be ‘beyond a reasonable doubt.’ But the benefit of doubt always goes to the men.”
In 34 states, a statute of limitations means that rape charges cannot be brought after a certain time has passed. Victims have just six years to report a sexual assault in New Hampshire; in California, it’s 10 years. For those who are too traumatized to make a report in the years after an attack, an arbitrary cutoff point for bringing a complaint can forever prevent them from seeing justice.
This absurd situation means that, for example, Bill Cosby cannot be brought to trial despite the many testimonies and evidence against him. On the other hand, in the UK, after TV personality Jimmy Savile was uncovered as one of the most prolific child abusers of all time, police launched Operation Yewtree to investigate cases of sexual abuse carried out by celebrities decades earlier. There was enough evidence to convict numerous high-profile figures, none of which would have been possible with a statute of limitations.
A dismissive attitude toward rape is all too common culturally (as this Boston Globe vox pop of responses to Labrie’s trial shows). But it’s terrifying to realize that the criminal justice system is no better.
The legal odds are stacked against rape victims, which means they’re stacked against the one gender with a far higher risk of being raped. In the eyes of the law, women in the United States are left vastly unprotected.