Rape and the Culture of the Courtroom

Andrew E. Taslitz

• Publisher: NYU Press
• Year: 1999
• Print ISBN: 9780814782309
• eBook ISBN: 9780814783429
• Topic: Law
• Subtopic: Gender & The Law
• Index: Law

Rape law reform has been a stunning failure. Defense lawyers persist in emphasizing victims' characters over defendants' behavior. Reform's goals of increasing rape report and conviction rates have generally not been achieved. In Rape and the Culture of the Courtroom, Andrew Taslitz locates the cause of rape reform failure in the language lawyers use, and the cultural stories upon which they draw to dominate rape victims in the courtroom.
Cultural stories about rape, Taslitz argues, such as the provocatively dressed woman "asking for it, " are at the root of many unconscious prejudices that determine jury views. He connects these stories with real-life examples, such as the Mike Tyson and Glen Ridge rape trials, to show how rape stereotypes are used by defense lawyers to gain acquittals for their clients.
Building on Deborah Tannen's pathbreaking research on the differences between male and female speech, Taslitz also demonstrates how word choice, tone, and other lawyers' linguistic tactics work to undermine the confidence and the credibility of the victim, weakening her voice during the trial. Taslitz provides politically realistic reform proposals, consistent with feminist theories of justice, which promise to improve both the adversary system in general and the way that the system handles rape cases.

Notes

NOTES TO THE INTRODUCTION

1. My apologies to the trial lawyers among my readers. I have deleted some objections and streamlined others to promote readability. I have also reconstructed this scene based on my memory of the events, unlike in later chapters, where I rely on actual trial transcripts.

2. See NATIONAL VICTIM CENTER AND THE CRIME VICTIMS RESEARCH AND TREATMENT CENTER, RAPE IN AMERICA: A REPORT TO THE NATION 1–16 (April 23, 1992) (survey and interview data on repeated rapes of the same victims, concluding that “39%, or an estimated 4.7 million women were raped more than once….”); Mary P. Koss, Hidden Rape: Sexual Aggression and Victimization in a National Sample of Students in Higher Education, in RAPE AND SOCIETY: READINGS ON THE PROBLEM OF SEXUAL ASSAULT 44 (Patricia Searles & Ronald J. Berger eds. 1995) (41 percent of rape victims in college-student survey expected a similar assault to happen again); DIANA E. H. RUSSELL, THE POLITICS OF RAPE: THE VICTIM’S PERSPECTIVE 44–51 (1974) (recounting similar repetitive rapes of a single particularly vulnerable victim over a two-week period).

3. See Andrew E. Taslitz, Myself Alone: Individualizing Justice Through Psychological Character Evidence, 52 MD. L. REV. 1, 76–83 (1993) (recounting the qualifications and procedures required for reliable clinical psychological judgment).

4. See PAUL C. GIANNELLI & EDWARD J. IMWINKELREID, SCIENTIFIC EVIDENCE 242–56 (1986) (most courts exclude polygraph (“lie-detector”) test results absent stipulation); PAUL EKMAN, TELLING LIES: CLUES TO DECEIT IN THE MARKETPLACE, POLITICS, AND MARRIAGE 279–98 (1992) (“Professional lie catchers—police, … judges, and government” often do no better than chance). Four members of the United States Supreme Court have also recently expressed concern about the polygraph’s reliability. See United States v. Scheffer, 118 S. Ct. 1261, 1263–66 (1998) (per se rule against admission of polygraph evidence in court martial proceedings did not violate accused’s constitutional right to present a defense).

5. For a recounting of the justice system’s brutal denial of rape victim autonomy and dignity, see LEE MADIGAN & NANCY C. GAMBLE, THE SECOND RAPE: SOCIETY’S CONTINUED BETRAYAL OF THE VICTIM (1989).

6. See generally L. CUTLER & STEVEN R. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW (1995). My experience as a prosecutor also revealed ready jury reliance on what I now realize were questionable eyewitness identifications.

7. For a summary of the literature on the justice system’s courtroom treatment of rape victims and the failure of ever-changing law reform in this area, see Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOM.’S ST. 387 (1996) [hereafter Patriarchal Stories]. But see David Bryden and Sonja Lengnick, Criminal Law: Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1377–81 (1997) (arguing that rape report rates have improved and jury bias somewhat declined, but probably because of some changes in attitudes rather than because of rape law reform, while conceding that “there is a great deal of anecdotal and social-scientific evidence of public (and jury) bias against norm-violating victims of acquaintance rape.”). For a discussion of the postincident behavior of rape victims, see JUDITH ROWLAND, THE ULTIMATE VIOLATION (1985). For an analysis of the degree of physical injury involved in rape, see NATIONAL RESEARCH COUNCIL, UNDERSTANDING VIOLENCE AGAINST WOMEN 75 (1996) (“[T]he data show that between one-half and two-thirds of rape victims sustain no physical injury ….”).

8. See COLLEEN A. WARD, ATTITUDES TOWARD RAPE: FEMINIST AND SOCIAL PSYCHOLOGICAL PERSPECTIVES 101–7 (1995) (surveying rape jury research).

9. Regarding feminist conceptions of the social function of rape and that function’s reflection in our treatment of victims, the pathbreaking work is SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE (1975). More recent works include STEPHEN J. SCHULHOFER, UNWANTED SEX: THE CULTURE OF INTIMIDATION AND THE FAILURE OF LAW 1–46 (1998); PEGGY REEVES SANDAY, A WOMAN SCORNED: ACQUAINTANCE RAPE ON TRIAL (1996); RUS ERVIN FUNK, STOPPING RAPE: A CHALLENGE FOR MEN (1993); and MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR (1989). On the status of early rape law and the failure of law reform efforts, see NANCY A. MATTHEWS, CONFRONTING RAPE: THE FEMINIST ANTIRAPE MOVEMENT AND THE STATE (1994); CASSIA SPOHN & JULIE HORNEY, RAPE LAW REFORM: A GRASSROOTS REVOLUTION AND ITS IMPACT (1992); SUE BESSMER, THE LAWS OF RAPE (1984); and Taslitz, supra note 7, at 389–93.

10. See Taslitz, supra note 7, at 387–439 (reviewing ways in which criminal justice actors evade rape law reform).

11. See e.g., Julie A. Wright, Using the Female Perspective in Prosecuting Rape Cases, 29 FED. PROSECUTOR 19 (1995) (noting many women “tend not to believe rape victims as a method of psychological self-protection. If women accept that such an intimate violation could happen to this woman, then they must in turn implicitly accept the fact that it could also happen to them.”); WARD, supra note 8, at 78–82 (noting that men are nevertheless more likely than women to hold reactionary attitudes toward rape).

12. ROGER C. SCHANK, TELL ME A STORY: A NEW LOOK AT REAL AND ARTIFICIAL MEMORY 8–16 (1990).

13. See, e.g., Nancy Pennington and Reid Hastie, The Story Model for Juror Decision Making, in INSIDE THE JUROR: THE PSYCHOLOGY OF JUROR DECISION-MAKING 195 (Reid Hastie ed. 1993); W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE (1981).

14. See SUSAN J. DOUGLAS, WHERE THE GIRLS ARE: GROWING UP FEMALE WITH THE MASS MEDIA 79–80, 202, 210–11, 236, 244, 294, 302–3 (1994).

15. See HELEN BENEDICT, VIRGIN OR VAMP: HOW THE PRESS COVERS SEX CRIMES 7–8 (1992).

16. GENESIS 39.

17. J. M. BARRIE, PETER PAN 30, 38, 66, 83 (1911); DOUGLAS, supra note 14, at 30 (defining “embonpoint”).

18. See, e.g., Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means, in RACE-ING JUSTICE, ENGENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 323–30 (Toni Morrison ed. 1992); Taslitz, supra note 7, at 459 n. 479 (reviewing empirical data on juror reactions to black rape complainants).

19. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 56–78 (1988).

20. See DEBORAH TANNEN, YOU JUST DON’T UNDERSTAND: WOMEN AND MEN IN CONVERSATION 24–48 (1990) (discussing differing linguistic worlds of men and women).

21. MARY CRAWFORD, TALKING DIFFERENCE: ON GENDER AND LANGUAGE (1995) (reviewing data on male-female language differences and articulating a “social constructionist” alternative to essentialist explanations of these differences).

22. See W. KIP VISCUSI ET AL., ECONOMICS, REGULATION, AND ANTITRUST 324 (2d ed. 1995) (defining “externalities”).

NOTES TO CHAPTER 1

1. DAN P. MCADAMS, THE STORIES WE LIVE BY: PERSONAL MYTHS AND THE MAKING OF THE SELF 17 (1993) (quoting Elie Wiesel).

2. For an interesting explanation of how storytelling shapes our memories and is intricately tied up with how we reason, see generally ROGER C. SCHANK, TELL ME A STORY: A NEW LOOK AT REAL AND ARTIFICIAL MEMORY (1990); WALTER R. FISHER, HUMAN COMMUNICATION AS NARRATION: TOWARD A PHILOSOPHY OF REASON, VALUE, AND ACTION 105–10 (1987). For analysis of the application of storytelling theory to jury trials, see RICHARD D. RIEKE & RANDALL K. STUTMAN, COMMUNICATION IN LEGAL ADVOCACY 94–102 (1990); SPECIAL COMMITTEE ON JURY COMPREHENSION, ABA SECTION OF LITIGATION, JURY COMPREHENSION IN COMPLEX CASES, App. 10, at 18–19 (Dec. 1989). Rieke and Stutman’s text includes a thorough explanation of the concepts of “narrative coherence” and “narrative fidelity” developed here. For an analysis of the psychological reasons that cultural tales grip our evidentiary imaginations so powerfully, see Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. CAL. REV. L. & WOM.’S ST. 387, 404–33 (1996).

3. The Ms. B example is a modification of one presented at Richard J. Bonnie and Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 VA. L. REV. 427, 477–79 (1980). I have used the Ms. B example before to illustrate...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Note to the Reader
• Introduction
• I Patriarchal Stories
• II Lawyers’ Language in the Courtroom
• III Feminist Evidence Law
• Conclusion
• Notes
• Index
• About the Author