Dismantling Victim Credibility in the Child Sexual Assault Trial

By Amber Joy Powell, Heather R. Hlavka, and Sameena Mulla

Two male attorneys cross-examined 12-year-old Jacob for several hours. They repeatedly questioned him about the lack of visible bruises on his body from the two male defendants Jacob testified sexually assaulted him. While 7-year-old Jessica was accused of “poor hygiene” and 15-year-old Sofia appeared puzzled on the stand as a male attorney accused her of fabricating sexual assault by a family friend because she wanted to rebel against her strict parents. Another male defense attorney told a jury that 15-year-old Tasha “[didn’t] look like a common sexual assault child victim” because she did not cry on the witness stand, nor exhibit the visible signs of distress expected of a teenage victim following sexual assault.

The criminal justice system’s suspicion of sexual assault victims is not new. Decades of feminist scholarship and activism have disputed cultural rape myths that suggest “real” victims are attacked by strangers, do not engage in alcohol use, do not dress in ‘promiscuous’ ways, display intense emotional and physical trauma, and immediately report the assault to law enforcement officials. These myths not only contradict many victims’ experiences, but they also subject them to “revictimization” by police, forensic nurses, attorneys, judges, and jurors. And while feminist exploration of these cultural rape myths has provided critical insight to our understanding of the gendered dimensions of sexual violence, we know little about children’s experiences of revictimization in the criminal justice system. Children are uniquely situated within the context of the courtroom because their claims are made further suspicious due to their age. Our ethnographic work employed an intersectional analysis to show how attorneys invoked common cultural narratives about gender, race, class, and sexuality to construct legal narratives about the credibility of black and latinx children and youth during the sexual assault trial. 

Jurors Only 2013- Hlavka
Photo taken by Heather Hlavka in 2013 from the fieldsite upon which the article is based. 

From May 2013 to April 2015, we observed several child sexual assault jury trials. Using our observations, transcripts, and court records, we noted how defense attorneys and prosecution utilized rape myths to either dismantle or establish children as credible witnesses. Our findings illustrate three key, often overlapping themes in attorneys’ narratives of credibility: invisible wounds, rebellious adolescents, and dysfunctional families. Attorneys used these themes to argue that the lack of physical and emotional wounds were evidence that sexual assault could not have occurred. Physical bruises and visible emotional responses, such as the ones that Jacob and Tasha failed to produce, were described by defense attorneys as “common sense” and “human nature.” Despite their legal status as minors, attorneys accused teenagers of rebellious, often sexualized behavior in order to distance them from common notions of childhood innocence and depict them as “more adult.” It was not uncommon to hear stereotypes like “teenagers lie” and are “not so innocent.” Defense attorneys argued that teenagers were driven to fabricate allegations of assault by their sexual fantasies, crushes, or personal vendettas against defendants. Black and latinx victims encountered additional vulnerabilities, as they were more susceptible to common racialized tropes of “bad girls”  and “jezebels.”

And yet, children were not alone in their scrutiny on the witness stand. Attorneys also discredited their families, and their mothers in particular. Attorneys often emphasized intrafamilial strife, working and living conditions, unwed and “unfit” mothers, and substance abuse to portray the family as dysfunctional. Children’s mothers were especially vulnerable to accusations of lying, in part because of their often complicated sexual history with the defendant. And youth were implicated and embedded within these familial stories.

Our work applies an intersectional analysis in order to center the process of courtroom testimonial violence and inequalities rather than to focus on the trial outcome alone. It is clear that non-normative images of victims and disadvantaged social status create vulnerabilities in the court and sustain particular cultural stories of doubt that burden youth of color as they are uniquely subjected to assumptions about sexual deviance and lack of innocence. These narratives situate structural inequalities in ways that coalesce to justify the dismissal of black and latinx youth claims of victimization.

Amber Joy Powell is a PhD student in the Department of Sociology at the University of Minnesota. Her current research interests include crime, punishment, law, and the intersections of race and gender. Her work focuses on institutional responses to sexual violence.

 

Heather R. Hlavka is associate professor of Criminology and Law Studies in the Department of Social and Cultural Sciences at Marquette University. Her research joins socio-legal studies and social control to focus on sexual violence.

 

Sameena Mulla is associate professor of Anthropology in the Department of Social and Cultural Sciences at Marquette University. Her research is at the intersection of legal and medical anthropology, and focuses

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