April is sexual assault awareness month, but sexual assault is in the news all the time. How much more awareness of the problem do we really need?
What we need is awareness of several proposed and recently enacted laws related to sexual assault that look good on the outside, but are dangerous because they permit the second-class treatment of victims in real world courts and on college campuses
We also need awareness of the fact that seemingly pro-victim advocacy groups support harmful laws, even though they undermine women’s equal access to justice.
Case in point: Jane Doe, Inc., a statewide organization of domestic and sexual violence advocacy groups, supported a 2014 law that gives parental rights to convicted rapists who impregnate their victims. Jane Doe says they did it to make sure judges consider the “best interests” of the child, but family courts are already required to consider “best interests.” The new law didn’t change that, but it did give judges new authority to treat convicted rapists with the same presumption of parental rights that applies to loving non-rapist fathers.
I recently asked Jane Doe to support an amendment that would forbid convicted rapists to assert parental rights (putting aside non-convicted rapists for now) but they stayed silent, as did the Women’s Bar Association.
Another disturbing new law – proposed though not yet enacted — will give rape victims a “right” not to testify in criminal cases. Some say this will help victims regain “control” over their lives, but research shows that allowing victims to choose not to testify leads to an increase in violence because it incentivizes perpetrators to threaten and further abuse victims to make them “drop the charges.”
One study found that 30 women in a California county died from domestic violence homicides in 1985, during a time when prosecutors had a policy of allowing victims to choose not to testify. The following year, prosecutors adopted a new policy requiring victims to testify, which remained in effect for many years. In 1994 only 7 women were killed from domestic violence. Researchers concluded that because no other policy changes were made during the study period, having a “no-drop” policy in place clearly saved women’s lives.
Prosecutors have ample discretion to drop charges. It is never the victim’s responsibility or prerogative because the prosecution of crime is solely the responsibility of the government. Victims in Bernie Madoff-type cases cannot “choose” not to testify. Why should rapists be allowed to evade justice by the enactment of a special law that lets only rape victims choose not to testify against them?
Rapists hardly need more ways to avoid prosecution. A 1992 study found that only 2% of rapists spend even one day behind bars, a number that remained virtually unchanged through 2012 when another study found the same results.
I asked Jane Doe if they support policies that require victims to testify, but they declined to say. I was hoping they might say something like, “rape victims are entitled to the full and equal protection of law, and the full and equal enforcement of law,” but they didn’t. Maybe I shouldn’t be surprised. After all, Jane Doe supported a law that added “transgender” to the list of hate crimes in Massachusetts, but left out plain old gender.
Another dangerous law, if enacted, will allow universities in Massachusetts to subject victims of sexual assault to second-class treatment on campus. Sponsored by Senator Michael Moore (D. Worcester), other students who suffer harm based on other protected class categories, such as race and national origin, will continue to enjoy “gold standard” equitableredress under civil rights laws. Only offenses “based on sex” will be subjected to worse legal protections.
More disturbing than the law itself is that “advocacy” groups like Jane Doe and the Victims’ Rights Law Center support the bill. Title IX has guaranteed women fully equitabletreatment on campus since 1972. Why would anyone want to weaken Title IX?
Women’s fundamental rights to safety and equality are not chits to be bargained away in the ugly game of Massachusetts lawmaking. Subversive laws are no less harmful because they’re supported by “advocacy” groups, or come with funding for new anti-rape programs, or are filled with patronizing buzzwords of verisimilitude.
Professor of sexual violence law