Sexual Violence and the Law: An attorney's guide to preventing courtroom bias
Gender Bias
In a culture where gender is prevalent on every level of society, it is no less distinct in the courtroom where it can crush a woman's credibility, especially in sexual assault cases. It is especially important for attorneys in sexual assault cases to weed out courtroom bias before it has a chance to obstruct justice by blaming the victim.
Stereotypes
The first step in eliminating bias is recognizing common stereotypes, and challenging them as they make their inevitable courtroom appearance. According to a manual on understanding sexual violence published by the National Judicial Education Program to Promote Equality for Women and Men in the Courts, there are three main stereotypes about rape that place some amount of responsibility for the crime on the victim, rather than the perpetrator:
- The notion of victim precipitation in rape cases;
- The belief that women assume the risk of being raped when they engage in certain behaviors; and
- The idea that it is the woman's job to set and enforce limits on men's sexual behavior.
Voir Dire
"Empirical studies show that judges, jurors and the public know very little about rape, and what they believe about it is wrong. Studies consistently show that this general ignorance on the part of the public is brought into rape trials, where jurors harbor many biases which work against conviction."
-- Understanding Sexual Violence: The Judicial Response to Stranger and Non-stranger Rape and Sexual Assault, Unit IV, p. 7
Because the public is relatively uninformed when it comes to rape and sexual violence, potential jurors must be educated against stereotypes, myths, and biases. Due to the nature of rape cases, however, emotions and personal values make it difficult for jurors to abandon any previous biases they may have held. It is therefore essential, in the name of fairness and equality, for attorneys to conduct a thorough process of voir dire before beginning a trial.
The questions that should be asked in sexual assault voir dire tend to be of a personal and sensitive nature, and many jurors may not wish to answer them in public. In order to assure that the necessary information is obtained, it is often best to provide a written questionnaire.
Civil Suits
Fortunately, criminal law is not the only way to prosecute a perpetrator; for many survivors, civil action is part of the road to recovery and empowerment. In pursuing a civil lawsuit, survivors have the option to sue the perpetrator for past and future monetary damages, and trauma and emotional distress. Survivors also have the option to sue property owners and others who may factor into the circumstances surrounding the assault.
While the district attorney maintains control over a criminal prosecution, the survivor is the decision-maker in a civil prosecution. Also, the attorney-client privilege of confidentiality applies to civil suits, whereas the district attorney in a criminal case is required to present most conversations with the victim as evidence to the state.
For more information on survivor's legal rights, contact (866) 426-8724.
For additional information on a vitctim's rights please visit Victim Rights Law Center.