Why Society Goes Easy on Rapists

By Lili Loofbourow
Slate Magazine
May 30, 2019

http://www.bishop-accountability.org/AbuseTracker/Why%20Society%20Goes%20Easy%20on%20Rapists

I started compiling a list of sexual assailants who got no prison time almost by accident. Twitter makes it easy: You stumble across a case where a man in Anchorage, Alaska, spent no time behind bars for strangling to unconsciousness a woman he masturbated on. You tweet it. Then you read about the Texas doctor who went free after assaulting a patient while she was sedated. You note similarities. Then you read about the high school girl who reported her rape immediately, to no avail—police never even spoke to the alleged attackers. You tack one story like this onto the other, you thread them, and suddenly you have a string of anecdotes that, without much system or method, seems to describe an America disinclined to punish sexual assault. It’s a list that leaves most people who read it terribly angry, including me.

But—and this is maybe the surprising thing—that anger started bugging me. Not because anger isn’t warranted, but because my list a) inflames it and b) seems to imply that the solutions are simple and obvious when they aren’t. Worse still, there’s something almost involuntary about the response: It’s hard not to rage at this collection of facts I’ve strung together. Especially if they’re taken in conjunction with the ongoing evidence of our broken criminal justice system. It’s just so easy to make comparisons: A rapist got no jail time, but a homeless man was sentenced to three to six years for attempting to buy toothpaste and food with a counterfeit $20 bill. Sit back and watch the retweets flow.

The trouble with the anger that a thread like mine provokes—which is ostensibly just pointing out the ways we fail to punish rape—is that it twists all too easily into a call for more punishment. Lists have a rhetoric. They tend asymptotically toward specific arguments, and the implication of mine gave me pause. We know what lies down that road because we’ve tried it: Stricter sentencing guidelines, for instance, always hit minorities and disadvantaged people first and hardest. If anger is an engine, the risk is always that even with good intentions it will power bad outcomes—especially when that anger feels justified by facts. My list represents a set of perfectly true facts. But it gives the impression that those facts are all you need to know about how our society deals with sexual crimes. The thread isn’t properly contextualized. It’s just a string of rage-inducing anecdotes, a random compilation of upsetting incidents that came to my attention precisely because they were scandalous. On its own, in other words, the list isn’t proof of anything.

But when it comes to sexual assault, ditching emotion and sticking to facts isn’t as easy as it sounds, for the simple reason that feelings have already clouded what we can know. Sympathy and suspicion—for suspects and victims, respectively—factor powerfully into every aspect of how law enforcement deals with sexual crimes, fogging up the numbers or erasing them altogether. When you look for facts, what you find is that the few we have are woefully insufficient. Sexual assault is massively underreported, and even when victims come forward, convictions are rare. According to RAINN, only 5 out of every 1,000 rapes committed—that’s 0.5 percent—ends in a felony conviction. The Washington Post puts the figure at 7 out of 1,000, but pretty much everyone agrees it’s under 1 percent. We usually try to make sense of this painfully low number by noting that many rapes aren’t reported, which is true, but the crime is also notoriously under-investigated.

And when it is investigated, it’s pretty tough to prove—not because of the crime’s high proof threshold, but because of how little evidence about it we bother to collect. There is, for example, a national backlog of hundreds of thousands of untested rape kits. And behind that big number are stories that don’t get told: Rather than heal or wash or even change after being attacked, these women went straight to the hospital, where they had to undress, subject themselves to intrusive physical exams, and get interrogated. And then nothing happened. No one did anything with the evidence they offered at great personal cost. (Actually, that’s not true: According to a CNN investigation, 25 law enforcement agencies in 14 states were found to be destroying rape kits in cases that could still be prosecuted. “This was a routine process, they said, done to make space in evidence rooms.”)

But it’s not just rape kits; this lack of investigative vigor seems to permeate every aspect of the system. The Minneapolis Star Tribune’s review of more than a thousand cases in Minnesota found that:

In almost a quarter of the cases, records show, police never assigned an investigator.

In about one-third of them, the investigator never interviewed the victim.

In half the cases, police failed to interview potential witnesses.

Most of the cases—about 75 percent, including violent rapes by strangers—were never forwarded to prosecutors for criminal charges.

Overall, fewer than one in 10 reported sexual assaults produced a conviction, records show.

Even the rape statistics we actually have are likely much too low, because—given a major incentive to lower caseloads and no reporting standard—law enforcement has a history of improperly clearing sexual assaults. For decades, police departments abused the “unfounded” classification reserved for false or baseless rape claims (a practice that helped to undergird the myth of prevalent false-rape claims). A scandal in late-1990s Philadelphia provoked real reform there, but a recent investigation by ProPublica, Newsy, and Reveal found that many police departments still have unusually high rates of cases they designate “unfounded.” As an oft-cited 2010 meta-analysis put it, “[M]isclassification of cases by law enforcement agencies is routine. Cases in which the victim is unable or unwilling to cooperate, in which evidence is lacking, in which the victim makes inconsistent statements, or in which the victim was heavily intoxicated frequently get classified as ‘unfounded’ or ‘no-crimed.’ ” Law enforcement also has a history of destroying the evidence with investigations designated “incomplete” not because they had no merit but because officers failed to follow through. CNN’s review of one police department in Springfield, Missouri, found that in dozens of cases “detectives did not attempt to contact witnesses and known suspects, didn’t have rape kits tested or stopped working cases within days or weeks of being assigned to investigate.”

If rape kits aren’t tested, suspects aren’t interviewed, investigators aren’t assigned, victims are labeled uncooperative, and law enforcement frequently mislabels reports from the small percentage of victims who do come forward, then the numbers aren’t giving us anything like a true description of the problem. We’re effectively blind to its magnitude.

So what explains this documented disinclination to investigate sexual assault? Some of it is no doubt due to resource and budget constraints. But there’s also the inescapable fact that prosecutors and investigators and judges are human, and their thinking isn’t immune to the biases about sexual assault that pervade every level of our society.

That miasma of unexamined prejudice can produce truly bizarre results. In its multipart investigation of sexual assault cases over the last 10 years, the Star Tribune found that, provided they knew their victims, only about half of defendants convicted of felony sex assaults in Minnesota got any prison time at all. Judges were “twice as likely to reduce a sentence when the attacker knew the victim,” and in 227 separate cases reduced the recommended sentences of men convicted of felony sex assault such that they spent less than a year behind bars. (Minnesota has relatively flexible sentencing guidelines for felony rape; many judges seem to be supplying a downward adjustment at their own discretion.)

If we translate these outcomes into judicial rankings of a crime’s severity, judges are sending a pretty clear message: It’s not as bad to rape someone you know. It’s a pattern that might be explained by outdated ideas of sexual assault, like the notion that “stranger rape” is serious and worth punishing whereas other kinds might not really be rape at all. Our society has, after all, registered extraordinary skepticism when it comes to the idea that men might rape people they know: Spousal rape was legal until quite recently; Minnesota only just repealed a provision that shielded spouses from prosecution for raping their spouses. And the concept of “acquaintance rape,” shot through as it is with rumored “misunderstandings” and female “regret,” has led to judges making all sorts of bizarre pronouncements prior to granting convicted rapists mercy. (Sexual assault seemed to be a greater threat to society—and was more quickly believed and more severely punished—when black men were being routinely accused of raping white women. The crime might not carry quite the same stigma when powerful white men are accused.)

One clarifying outcome of trying to see through the anger is realizing that, as observers, we aren’t the only ones in the grip of strong emotions. What’s different inside the precincts and courtrooms where these cases are being decided—by ostensibly impartial interpreters of laws and norms—is that the private feelings and assumptions of arbiters and investigators might be even less understood than they are acknowledged. And they’re having significant effects.