Why A Rape Doesn't Get Prosecuted

When University of Iowa grad student Rebecca Epstein reported her rape, Asst. County Attorney Anne Lahey declined to prosecute. It's not completely clear why, but we'll consider a couple of possibilities.

Epstein says Lahey told her that the fact that she had bipolar disorder was a factor in the decision. To find out more about mental illness and sexual assault, I talked to Karla Miller, Executive Director of the Rape Victim Advocacy Program. She told me that county attorneys can be reluctant to prosecute rape cases in which the victim has mental illness, due to concerns that the jury won't see the victim as credible. If that's the case, she said that victims can be "revictimized" by defense attorneys who make their illness — and any other vulnerabilities they can think of — an issue in the trial. Miller explained that if an attorney felt such revictimization might occur, it could be a good decision not to prosecute, but that this decision was "case-dependent." She added that it was "absolutely not" fair that people with mental illnesses had a harder time getting justice.

Miller also noted, chillingly, that some rapists actually target people with mental illnesses or other disabilities, because they know victims with these conditions will have a harder time taking them to court. She also pointed me to data from Canada indicating that women with disabilities are "at least 150%" as likely as women without to be sexually abused, and 1.5-10 times as likely to suffer any form of abuse. Also, at least in Canada, only an estimated 20% of acts of sexual abuse against people with disabilities are ever reported to authorities. Given Epstein's story, it's easy to see why this might be true.

But Lahey and Detective Jenny Clarahan both say Epstein's bipolar disorder wasn't the reason the case didn't go forward. Epstein says Lahey told her that the fact that she stayed in her alleged assailant's apartment was also a factor — it's also possible that authorities construed her second sexual contact with the alleged rapist as consensual, and felt this would make a prior rape harder to prove. I talked to Nancy Schwartzman, Executive Director of The Line Campaign and director of the film The Line, who explained,

If a rape victim has "consensual", or coerced but non-violent sex following the rape it makes it harder to prosecute. When it comes to sex crimes or sexual behavior, the average person/jury member can't seem to comprehend nuance. If you are raped, you should diligently scream and struggle in just the right way, call the police, collapse in a ball, and never have sex again. If you deviate from this script or course of action, well, you didn't fight hard enough. You weren't actually raped. There are many reasons why a victim may have sex with her rapist again following a rape - possibly because she is not safe, and can't say no without escalating the situation into more violence. Possibly, because there's so much confusion that comes with an assault, she's trying to comprehend what just happened. The victim may be trying to talk herself out of it "Ok, did that really happen? Did I imagine it? How could something have snapped and changed so quickly? What did I do wrong? Maybe I can fix it or make it better." That's common, too.

Schwartzman had some suggestions for improving jurors' understanding of rape and helping victims get fair treatment:

If social workers and trauma psychologists were allowed to act as witnesses or experts on rape trials they could explain the complexities of PTSD and what are normal and common ways that victims respond to rape. They would explain how trauma effects memory, effects your freeze or flight response and seeps into the body. Instead we have juries who rely on CSI and SVU to dictate to them how rape "really" works, what victims and perpetrators look like, and how cases should play out in a court room.

Schwartzman and Miller both mentioned the need to shift the emphasis in rape cases off the victim and onto the perpetrator. Says Schwartzman,

[T]he other way to help victims get justice in rape cases is to scrutinize the past and present behavior of the perpetrator as closely as they do the victim. How did the perpetrator act before, during and after the attack? How has the perpetrator acted toward sexual partners in the past? How is the perpetrator's lack of remorse, obsessive apologizing, stalking, blaming, shaming behaviors common for someone who has committed a rape? [...] Time to shift the focus and the responsibility from victims, to those who commit acts of sexual violence, so we learn the behaviors and cease to tolerate them.

These are reforms worth considering, but they may come too late for Epstein. She told me that her alleged rapist had been disciplined by the University of Iowa's Dean of Students, and would not be permitted to register for classes for one year. He also withdrew from the university voluntarily and said his withdrawal would be permanent. Where the legal system is concerned, Epstein has retained a lawyer and says she's still working with Iowa Assistant Ombudsman Kyle White to get Lahey to reconsider. However, Lahey has final discretion. When I spoke with her about Epstein's story, she was firm: "that's not a pending case."

Lahey and Epstein have different memories of their conversation, and without a fuller statement from Lahey, it's hard to evaluate her decisions. The story as it stands tells us less about her judgment as an attorney than it does about the way rape cases work in America. A number of factors — mental illness and subsequent contact with the assailant among them — can make a jury unsympathetic to a victim, even though they don't change the fact that the victim was raped. And these factors can keep a case from going forward, even if the victim is ready and willing to testify. This is one reason many victims choose not to speak up — even if they report the crime and fight at every turn to be heard, all their painful efforts may come to nothing. One thing we can do to help victims is to listen to their stories, and to recognize that our preconceived ideas of what rape looks like don't encompass everyone's experience. Says Schwartzman, "There is no right way to survive a rape." There's also no right way to be or behave so that you'll never become a victim. But there is a right way to hear victims' stories — with an open mind, unclouded by judgment or stereotype. And this is something all of us can do.

Earlier: How A Rape Case Went Off The Rails, Part 1