Can Victims of Sexual Trauma Get Justice in the Criminal Justice System? Can the Suspect?

by Sheri_Oz

Many convicted sex offenders claim their trial was unfair and that they were set up. Many victims of sexual crime claim perpetrators get off to easily or too lightly. Who is right?

We hear suspects found guilty of sexual crimes claim that society was out to get them. A Social worker, a disgruntled employee, an angry rejected lover - someone with a grudge or with something to prove was out to get him or her! And then the jury and judge did not see the truth behind the manipulations and found the innocent suspect guilty. Many sex offenders and those who believe in their innocence maintain that the cards are stacked against the sex crime suspect and there can be no hope of justice being served in court.

On the other hand, we hear people advising victims of sexual harassment, assault or rape not to file charges. The argument is that victims of rape are "raped" again on the witness stand by unscrupulous defense attorneys willing to pull any trick to get their clients off. Some people believe that victims of sexual crime cannot get justice in the court system.

Let us explore this issue in greater depth to understand the issues involved in a fair trial.

In Sexual Crime Trials, Does the Court Seeks the Truth?

The goals of the Court in all countries in which court cases are open, fair and follow procedural rules are to uncover the evidence upon which the suspect's guilt or innocence can be determined. The court is deemed to have no other vested interest than this.

The court should not be fixed on finding a particular alleged perpetrator guilty or innocent for any other reason than to satisfy the right of all parties for justice. For example, political vendettas are not to be paid back by biasing the outcome of a trial; the need for a prosecutor to put anyone away in a very public very heinous crime in order to bring a sense of safety back to the community or to promote his or her career advancement are not reason to pervert the rules of law.

Procedural rules and rules of evidence are the means by which the court is helped to stay focused on its primary concern: justice for the victim/society and a fair trial for the accused.

Is Justice Usually Achieved in Sex Assault, Abuse, Rape, Harassment Cases?

What do YOU think?

Why Does it Sometimes Seem That Justice IS NOT Being Served?

When Evidence is Not Legal Evidence

The goal of the prosecutor and the defense attorney is to collect enough evidence to present to the court that the prosecutor will apply to prove the suspect committed the crime and the defense lawyer will apply to prove that he or she did not.

It is possible that we have seen enough court-room dramas to understand that evidence collected illegally cannot be considered by the court when determining guilt or innocence. For example:

  • the search was conducted before a search warrant was obtained
  • the confession was elicited by torture or otherwise illegal means
  • the suspect was questioned without being informed of his or her right to legal representation
  • documents or other physical evidence were tampered with
  • witnesses were threatened or promised rewards for their testimony

Based on the Available Evidence, the Prosecutor May or May Not Press Charges

State attorneys will not recommend taking a case to court unless they believe they have enough evidence and are fairly confident of their ability to prove the suspect's guilt.

It is a waste of taxpayer's money and the court's time and resources to try cases that are based only on weak and unsubstantiated evidence.

Sometimes, with heavy hearts, the State Prosecution Office will let the suspect free, without trial, until such time as they will have been able to gather the evidence that will prove guilt. This means that in some cases, the state will delay prosecuting someone they know is guilty because they cannot prove it.

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What may seem to the lay person to be evidence may not be evidence at all.

Knowing the Truth Versus Proving the Truth

When I first began giving expert testimony in rape and sex abuse trials, I was shocked at the way things played out in court. Justice seemed the thing least on people's minds. Winning was apparently the most important aspect of the trial.

To my senses, unfamiliar with the legal world, it seemed more like a game of chess than a search for truth.

What bothered me most was that it seemed everyone in the room knew that the accused had raped the complainant. So the question was not if he had done it, but rather how to prove he had done it.

At that time I naively thought that just knowing it was true was enough. But, just like beauty, truth is sometimes in the eyes of the beholder.

Legally Admissible Evidence and Psychological Evidence

What is the psychological evidence that a complainant really was abused, harassed or raped?

The psychological evidence is in his or her symptoms, behaviors before and after the alleged traumatic event/s, the way he or she tells the story of what happened, the behavior of the accused, aspects of the life history of the accused that are relevant to risk of sexually offending, and more.

However, as I was called in to consult on more and more cases, I grew to realize that we may know that a particular complainant was, in fact, victim to a sexual assault. The person he or she accuses may also fit the profile for a sex offender. Yet that does not necessarily mean that this particular person committed the sexual offense for which he or she is being accused. Not every individual with a profile matching a potential offender actually commits an offense.

In short, there needs to be a clear connection between the evidence that is legally admissible in a court of law and the individual accused of the crime.

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The problem in getting a conviction is not necessarily because of lack of evidence but because of lack of motivation on the part of lawmakers to collect that evidence. Sometimes it is laziness, sometimes it is inability to conceive that the accused person could actually be a sex offender. Sometimes it is because they do not like something about the complainant. When this happens, it is a miscarriage of justice.

A Question of Motive

Sex crimes are not really about sex but about power and control. Therefore, the motive behind the commission of a sexual assault, molestation, harassment or ongoing abuse are connected to the need to feel strong, and perhaps even omnipotent, more than the need for sexual release.

Similarly, if the defense claims that the complainant is lying, there needs to be a motive for the false accusation. Divorcing spouses may accuse the former spouse of sexually abusing the child; in some cases there may be a motive of cutting the ex-spouse off from the child in order to have full control over the child's life and upbringing. Or, because the ex-spouse really is or was abusing the child! In order to determine it is a false accusation, the need for control and power on the part of the complaining parent needs to be shown to occur in other areas of life as well.

An angry employee may falsely accuse a boss of having sexually harassed him or her. The costs of making a false accusation must be compared with the benefits, as well as with the costs of not making any accusation at all. It needs to make sense.

False accusations do occur. Someone may claim that a sexual offense happened and it did not; someone may claim that one person committed the offense when it was really somebody else. Therefore, the court needs to consider the veracity of the alleged crime. Not only must the physical and circumstantial evidence support the theory of false accusation, but it also must fit the psychological and behavioral make-up of the accuser.

What is Admissible Evidence?

Evidence that is admissible in court must be relevant to the case before the court. Sexual history of an alleged rape victim has been determined not relevant to whether or not she agreed to have sex at the time in question. On the other hand, previous sex offenses by the accused may or or many not be relevant depending on the particular details of the case. The judge would decide on relevance.

Physical evidence, such as a weapon, semen, DNA, torn clothing, bruises, etc would be admissible in court. Some of these facts may prove that the accused was present and possibly even had sex with the complainant, but not necessarily that he or she raped him or her; facts may prove that a rape occurred but not necessarily by the suspect.

Witnesses to the crime would be admissible evidence if they are deemed to be telling the truth and under no inducement to lie or fabricate any part of their testimony.

The statements provided by the complainant and the accused during their forensic investigations would also be offered as evidence. Here consistencies and inconsistencies in their statements would be examined and possible hints to other explanations for what happened.

Putting the Wrong Person in Jail Helps No One

Survivors of sexual abuse, assault, harassment and rape deserve justice. They do not get justice if the wrong person is found guilty and his or her life and family are destroyed.

Many who were later found truly 'not guilty' or for whom the charges were dismissed before trial, cannot wipe themselves clean of the stain of the allegation. Forever more, people will wonder, "Did he or she really do it?"

My Experience in Israel with Lawyers and Courts of Law

In Israel, we do not have juries, but a panel of three judges sit on criminal cases. I have found that most of the players in the real court-room dramas are sincere and doing the best they can.

Prosecutors try to put away the bad guys and the defense lawyers do what they were hired to do - get the accused off or with the lightest possible sentence. Defense lawyers are not defendants of justice but of accused men and women, some of whom are truly guilty. As such, when I have been approached by defense lawyers asking if I would serve as an expert witness, most do not call me back when I tell them that I will only testify to what I see and I will not bend the truth of what I see even a smidgen.

When I have been brought into court as expert witness, I have found that the judges do want to understand the psychological elements at play and they weigh what I say up against traditional legal evidential rules. Given my clinical experience with survivors of sexual trauma, perpetrators, and their families, I have been able to point out to the court aspects of survivor and perpetrator behaviors to which they would not have paid any attention.

Lawyers and judges are people with their own individual histories, biases and beliefs. I wonder how many of them have, themselves, or someone close to them, experienced sexual trauma. I wonder how their own experiences with sexual trauma affects their decision making processes in court.

It is true that lawyers, whether for the defense or the prosecution, will work harder for people they like and may even be lazy when they do not like the individual on whose behalf they are supposed to be working.

I have seen judges find a defendant not guilty, and a head prosecutor not take a case to trial, just because they were not yet able to conceive that, on the one hand, a father could sexually abuse his son and, on the other hand, a mother could sexually abuse her children.

These happened many years ago and the courts today are more prepared to handle such cases. Just as they are more able to run calm and thoughtful trials of sexual harassment in the workplace (even involving famous suspects), cases of wife rape and acquaintance rape - issues that were not well handled in the past.

In Criminal Courts of Justice, justice does seem, sometimes, to be merely a coincidental outcome of trials rather than the goal. However, the rules of evidence and procedure are in place to make it more likely that this happy coincidence happens somewhat more than by a random flip of a coin.

Updated: 04/09/2014, Sheri_Oz
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Sheri_Oz on 10/22/2012

Thanks so much for your comments, Hollie. Glad you shared your experiences here. That seems like it was a fascinating workshop. Your example reminds me of the movie starring Jody Foster, "The Accused" where the bystanders were found guilty of encouraging rape when they did not commit the crime itself.

HollieT on 10/22/2012

Hi Sheri,

As I read each paragraph in your article, I was saying to myself, yeah, but, and then I'd scroll down and see that you had addressed the issues that were forefront of my mind. Biases and experiences, I find particularly pertinent when it comes to discussing offences of a sexual nature, or offences against women and children, of either gender. Whether evidence is presented before a jury a judge or both, we need as you suggest, to consider that each individual brings their personal experiences into the equation. Just because a juror does not have a criminal record does not necessarily mean that they are ideally placed to reach conclusions as to guilt or innocence. Their perception of events, regardless of the evidence, may be coloured by their own experience and attitudes about gender roles and sexual behaviour.

I noted Brenda's comments and remember attending a Magistrates workshop which was hosted by Greater Manchester Police (Cyber crime unit) they were presenting examples of the types of cases they were pursuing and bringing before the courts, which included indecent images of children on the internet, and discussing how they were gathering evidence, and tracking pedophiles. They talked about how they'd brought successful cases against those who were viewing these images (even though they'd not taken or posted the images on the internet, themselves) And more than one magistrate asked why the voyeurs were being prosecuted, after all, they didn' t take the photographs. Some seemed unable to comprehend how viewing these images, not only perpetuated the offences, but "normalised" this behaviour. Sorry my post is so long, your article is really interesting. I could go on forever! :)

Sheri_Oz on 10/10/2012

He's already in the system. Here's to hoping he just stays away from you and everyone else!

BrendaBarnes on 10/10/2012

Thanks for the advice Sheri. Knowing my own Order of Protection may keep other women safe eases my mind some. I will think on it some more.

Sheri_Oz on 10/10/2012

Thanks for sharing this with me and for your compliment. Sorry you had to experience this. Regarding this guy and Orders of Protection - if he does not obey the order to stay away, and you see him closer to you than he should be, you report this to the police. If it happens several times, then that is "stalking", something else that is against the law. If he is not a stalker, her will probably just go away. He already has a mark against him and if he does this again, your Order of Protection will be supportive evidence in any file another woman opens in the future. Keep the papers you got from the court. I don't know if you necessarily should go the route of charging him with assault. I could go on here, but maybe I should write up another article.

BrendaBarnes on 10/09/2012

I decided to read this article because a man very recently tried to sexually assault me. Two judges gave me an Order of Protection but we all know that is only worth what the man feels it is worth. I want to press assault charges but most people are saying I need to let it go. My best friend is concerned this man might come after me if I make him mad. I have been so confused as to what I should do. He put his hands on me and that is not acceptable. I do not know him personally, he mowed my lawn for the past two summers. I believe God intervened or that creep would have raped me. After reading this fine article, I feel I need to pursue charges to keep him from doing worse to another woman. Thank you so much Sheri. You are a blessing.

Sheri_Oz on 10/09/2012

The plea bargain itself is not at fault. If the victim was involved in the plea bargain and could veto the agreement, it could be a form of justice - saving the victim the added trauma of having to testify. Unfortunately, nobody asks the victim what he or she thinks.

katiem2 on 10/09/2012

It is the same, the plea bargaining aspect of the system is sickening. If criminals plea guilty they are often given a plea deal which means a lesser sentence or punishment.

Sheri_Oz on 10/08/2012

The same way the Church eventually dealt with its problem of pedophile priests. Difference, though, the priests had "witnesses/victims" who could speak up. It is still too hard to police the Internet, but I think there are probably people working on figuring out how - with the help of the best hackers, probably. It will have to be an international conjoint effort.

BrendaReeves on 10/08/2012

I guess I didn't delete it. It is truly horrifying. How do we even begin to deal with the problem?

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