When good laws have bad outcomes: Sexual assault policies “on the books” and “on the ground”

by Rose Corrigan

I first began thinking about legal responses to rape when I was working at Women Organized Against Rape, Philadelphia’s rape crisis center. In 1994, while I was working at the agency, New Jersey passed Megan’s Law in response to the horrific rape and murder of young Megan Kanka by a neighbor who had a history of convictions for sex offenses. Though I was glad that legislators were taking sexual assault seriously, I was skeptical that such laws would either prevent perpetrators or aid victims of sexual violence.

At that time Philadelphia’s specialized Sex Crimes Unit had a long history of disregarding and downgrading sexual assault reports, with detectives often reflecting contempt for and disbelief of women who reported rape: one detective jokingly referred to the assignment as the “Lying Bitches Unit.” Nor were health care professionals inherently more sympathetic. One of the hospitals that treated sexual assault victims routinely engaged in disrespectful and dehumanizing behavior toward victims. Such practices seemed to continue regardless of laws on the books or how much education or outreach our agency staff conducted.

I suspected that even though initiatives like Megan’s Law were intended to help alleviate sexual violence, the outcomes of such laws would probably be very different when such laws had to be translated into practice, reflecting what law and society scholars call the difference between “law on the books” and “law in action.” My research on Megan’s Law eventually grew into a larger project to explore the ways that communities respond to rape in order to better understand how and why public policies on sexual violence often have unintended consequences.

In order to get a good cross-section of practice and policies around the country, I interviewed more than 150 advocates working at over 100 rape care programs in six states across the US. I first asked advocates how individuals reporting rape were treated by local medical and legal institutions, and then how new policies in three areas—sexual assault nurse examiner programs, emergency contraception for rape victims in hospital emergency rooms, and “sexual predator” laws—affected individuals and institutions in their communities. This research culminated in my recent book, Up Against a Wall: Rape Reform and the Failure of Success.

Corrigan_blogimage_april 2014The study produced some sobering findings. Many communities still do not have systems in place to offer compassionate and competent care, investigation, or prosecution of rape. In those areas, low reporting rates are not solely the fault of victims who feel shame or self-blame, but may also indicate that systems personnel discourage reporting through poor treatment, improper questioning, and corrosive skepticism about sexual assault. These pre-existing problems mean that new laws often have unanticipated, and sometimes very negative, consequences.

For example, sexual assault nurse examiner programs which are intended to aid in investigation and prosecution of assaults can also introduce legally irrelevant evidence about the victim, such as personal medical information, sexual history, and past use of drugs and/or alcohol, into the legal record. The forensic exam may therefore actually discourage investigation and prosecution if police or prosecutors believe that such information reflects negatively on the victim.

I also examined the impact of sexual predator laws such as Megan’s Law. These laws are described as a tool to help individuals and communities protect themselves from assaults by sex offenders. Such laws, however, play out against cultural stereotypes about victims and assailants.

The very severe penalties associated with a sex offense conviction, including registration, community notification, and enhanced sentences, means that many prosecutors, judges, and juries are unwilling to convict an individual they believe is not a “real” sexual predator, who is assumed to be a male stranger who violently assaults a (usually white) child unrelated to him. When assailants are fathers and brothers, football players or female teachers, and when victims are immigrants, or seen as “low class,” or are males, police and prosecutors often find reasons not to charge cases as seriously as the law allows. Additionally, advocates I interviewed talked about how these laws had made victims less willing to report assaults. When a victim is connected to an assailant through ties of love or blood or friendship, s/he may not want the perpetrator to go to jail for twenty years. Increasing penalties often has the perverse effect of driving down reporting and convictions for sex offenses.

Such troubling outcomes reflect the ways that laws about sexual violence intersect with cultural attitudes and deeply-held beliefs about gender and rape, producing outcomes that are not always anticipated or intended by policymakers. But even if they do not achieve their intended goals, such efforts do have important effects. Ultimately I argue that understanding sexual assault policies is a way of understanding the power—and the limits—of legal change to shape cultural beliefs and institutional practices.

Rose Corrigan is associate professor of Politics and Law at Drexel University. Her recent book, Up Against a Wall: Rape Reform and the Failure of Success, was reviewed in the April 2014 issue of Gender & Society. To read the review, click here.


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