Friday, March 25, 2016
For decades, reformers have sought to increase the number and success rate of rape prosecutions by amending evidentiary rules, substantive definitions of rape, and consent standards. Such efforts are simply doomed from conception because they are primarily designed to affect the stage of the criminal justice process that few cases ever reach: trials. Looking to substantial empirical and institutional evidence, this Article concludes that police across the United States act as aggressive gatekeepers who prevent rape complaints from progressing by fervently policing the culturally disputed concept of “rape.” The Article breathes life into these data by exploring eight recent cases, which are illustrative of the overall statistical landscape, where victims were disbelieved, even prosecuted for filing false complaints, but ultimately had their complaints validated through confessions and/or forensic evidence. These data and supporting narratives indicate that to have any real effect in decreasing sexual violence, solutions must focus on removing the numerous police-imposed gatekeeping obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. The belief that reforming trial rules would trickle-down to police decisions has proven to be unwarranted. As long as rape victims do not have consistent access to the criminal justice system due to failures of policing, tinkering with rules and statutes is at best futile, and possibly counterproductive.