Last week, the Nebraska Supreme Court upheld a decision that a woman from Kansas could be sent to jail if she refused to testify against the man she accused of sexual assault.
The 24-year-old woman initially filed charges in August 2012 against a 63-year-old Nebraska man for sexually assaulting her when she was 7 years old. Last year, however, she refused to testify in court because she felt it would bring further shame and humiliation to her family. In response, Lancaster County District Judge Paul Merritt threatened her with a contempt charge and ninety days of jail time, saying that the case hinged on her testimony.
Unfortunately, this case is not unique but part of growing trend of criminalizing rape survivors in order to guarantee their testimonies at trial.
In April, law enforcement officials in Sacramento, California, detained a 17-year-old girl for twice failing to appear in court against the man accused of raping her. Prosecutors argued that her testimony was crucial because the defendant, Fran William Rackley, was accused of sexually assaulting another victim and therefore posed a clear and present danger to the larger society.
For many victim rights advocates, the detention was seen as a violation of California Marsy’s Law, a state constitutional amendment that protects and expands the legal rights of victims. Thanks to the diligent efforts of her lawyer, Lisa Franco, and advocates, the judge ordered an ankle-monitoring bracelet as an alternative to more jail time after she already had been detained for more than a week.
In both cases, the judges recognized that threatening or detaining the victims might not be the best way to address the victim’s reluctance to take the stand. And yet, ultimately the rights of the victims were seen as secondary to public good.
Ironically, the fact that these two young women came forward in the first place is an anomaly. Sexual assault is one of the most underreported violent crimes in America. According to the Rape, Abuse and Incest National Network (RAINN), 54 percent of rapes/sexual assaults are not reported to the police, based on a statistical average of the past five years. Those rapists, of course, never spend a day in prison. Factoring in unreported rapes, only about 3 percent of rapists ever serve a day in jail.
Executive director and co-founder of the sexual and domestic violence prevention organization A Long Walk Home Scheherazade Tillet (full disclosure: my sister!) told me that “many survivors of sexual assault do not report their rapes because they know the process can be so humiliating and terrifying.”
She continued, “We see this especially in cases when the victims know their perpetrators, are young people, or when the defendant is a older and more powerful. It is a lot to ask of anyone to recover from this huge trauma and also go through the formal judicial process. It is really cruel to threaten them with jail, if they can’t do both.”
To criminalize those who initially do come forward only makes it harder, not easier, for future victims. Instead, prosecutors and judges should be trained by and work in tandem with victim advocates, rape crisis counselors and rape victims themselves to insure that testifying against one’s attacker does not produce more trauma and coercion.