OTI Online
Volume 7, 1987

Rape and Child Sex Abuse
by Elizabeth Holtzman

The pain and horror of sexual assault touches women of all ages, all colors, all classes, and all positions. Yet until recently, the criminal justice system, instead of viewing the women as victims of crime, treated them as though they were responsible for the crimes against them. The same problem existed with respect to child sex abuse victims, most of whom were girls.

Sexual attacks on women are rampant in 20th century America. The Federal Bureau of Investigation estimates that a woman is raped every six minutes and that one woman in 10 can expect to be raped in her lifetime. Nationwide, complaints of rape continue to go up steadily.

In the past, rape was a word rarely mentioned in polite society; it was something that happened to women who "asked for it" - in other words, nice women didn't get raped; rape was the victim's fault and the law reflected this view of women.

Imagine what it must have been like only 16 years ago for a woman who was raped. By law, her word alone could not convict the rapist; she would need witnesses or other corroboration. The law thus assumed that women always consented - because women secretly want to be raped. If the victim testified in court, she was subjected to humiliating cross-examination about her prior sexual activity. Here the law assumed that if a woman ever said yes to any man anytime in her life, then she would never say no again. She was in a sense "spoiled goods". A rape victim could also expect to encounter derision or skepticism from the police to whom she complained, the prosecutors handling her case and the judges at her trial. Because of all these obstacles - as well as the guilt and shame associated with rape, victims rarely came forward. As a result, prosecutions were extremely difficult.

It was only with the advent of the womens' movement in the late '60s and early 70s that the public perception of rape finally began to change. Women who were raped slowly began to be recognized as victims, not criminals, while the law and the criminal justice system itself started to reflect this new understanding.

In 1974, the corroboration requirement for adult rape victims was at last repealed in New York. While 1 was in Congress, I helped to pass a law which helped ensure the privacy of rape victims in federal courts. In 1982, New York abolished another offensive provision: the requirement that a woman had to fight back against the rapist (put up "earnest resistance") if there was to be a prosecution for rape. Even though police often counsel women not to fight back because doing so could endanger their lives, the "earnest resistance" requirement reflected the view that women basically want to be raped and the burden was placed on them to show they did not.

Unfortunately, in 1982, when the legislature eliminated this requirement it imposed a new special burden on women - a legal rape could not take place, no matter how much force was used, unless the victim could prove that she feared immediate death or serious and longlasting bodily injury. My office led the fight to remove this unrealistic and grossly unfair provision and we finally succeeded.

Police and prosecutors have also become more sensitive to the needs of rape victims. Nevertheless, a number of sex-based stereotypes still surround the crime of rape. It is not surprising that many women are still reluctant to report being raped. In 1984, the U.S. Census Bureau reported that fewer than 10 percent of rapes are ever reported.

Juries are also extremely affected by these negative stereotypes and degrading attitudes toward women. A study released last year found that juries were less likely to view as credible victims who had prior sexual experience, used birth control or met their assailants in bars. Judges, too. continue to reflect these offensive views, according to the New York State Task Force on Women in the Courts (which I had urged be created). For example, the Task Force which issued its report last year pointed to a New York State judge's comments about a rapist who broke into the woman's room wearing a stocking mask over his face and brutally raped her. The judge said: "I think it started without consent, but maybe they ended up enjoying themselves."

New York is not the only scene of judicial mistreatment of rape victims. In Wisconsin, a judge sentenced the rapist of a 16 year-old girl to probation because rape, he asserted, was a "normal reaction" to provocative clothing. The victim was wearing a bulky sweater and jeans.

The attitudes surrounding rape by strangers is bad enough; the attitudes about sexual violence towards women by husbands and lovers are even worse.

Today, women in 27 states in this country may be legally raped by their husbands. In more than half the United States marital rape is literally not a crime, no matter how brutal the assault. And it was only in the past 15 years that the 23 other states abolished exemptions for marital rape.

There are two basic premises underlying the exemption for marital rape. The first is that a wife not only has no sexual autonomy or bodily privacy with respect to her husband; but that he is entitled to use violence to enforce his right to have sexual relations with her at will.

The second premise is that a woman once married is the property of her husband. He cannot commit a crime by misusing his own property.

It is truly terrifying to think that any law in 1986 should embody the concept of a person as property, but laws in 27 states of this country currently do so.

In New York State, until December 1984, it was legal for a husband to rape his wife. My own office filed a friend of the court brief which argued that this law was unconstitutional. The highest court in the state finally agreed.

While many improvements have been made in the rape laws, significant improvements have also been made in the prosecution of child sex abuse cases. I am proud of the role my office played in drafting and obtaining enactment of these important changes. The corroboration requirement, which mandated that the testimony of a child sex crime victim be supported by other evidence in order to obtain a conviction, greatly hindered the prosecution of child molesters. My office led the fight that won the legislative repeal of the corroboration requirement. Another law drafted by my staff made New York the first State in the nation specifically to provide that young victims of sex crimes no longer have to endure the trauma of appearing in person before the grand jury. Instead, they will be able to provide essential testimony by videotape in a comfortable, non-threatening environment.

The new law also allows a judge to permit videotaped grand jury testimony to be used in lieu of live testimony of adults who have been raped or sexually abused. The law covers those sex crime victims who are likely to suffer very severe emotional or mental stress if required to testify in person, or victims of any crime who are physically ill or incapacitated. This change helps ensure that sex crime victims already traumatized by the crime itself are not further traumatized by the criminal justice system. Additionally, this law allows a victim to testify via closed circuit television during the trial.

My office has also written and lobbied successfully for the passage of a law which allows children to use anatomically correct dolls to explain the abuse which they endured.

It has been challenging and rewarding to help change the laws which govern sex crimes and to help eliminate the negative stereotypes about women and children on which they are based. While attitudes tend to shape the laws of our land, it is also true that our laws shape our attitudes and affect behavior. It is my hope that a criminal justice system free of sex-based stereotypes will help protect women against the epidemic of violence they confront.

Outspoken advocate on women's issues, Elizabeth Holtzman, District Attorney of Kings County. Brooklyn. NY. is the first woman District Attorney in NYC. From 1973 to 1981 she served in the U.S. House of Representatives - the youngest woman ever elected to Congress. Holtzman's life has been dedicated to changing the laws to the benefit of women and children on both the national and local levels.

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