Loofbourow writes: "Our criminal justice system still doesn't take seriously one of the most heinous acts a person can commit."
Why Society Goes Easy on Rapists
By Lili Loofbourow, Slate
03 June 19
Our criminal justice system still doesn’t take seriously one of the most heinous acts a person can commit.
started compiling a list of sexual assailants who got no prison time almost by accident. Twitter makes it easy: You stumble across a case where a man in Anchorage, Alaska, spent no time behind bars for strangling to unconsciousness a woman he masturbated on. You tweet it. Then you read about the Texas doctor who went free after assaulting a patient while she was sedated. You note similarities. Then you read about the high school girl who reported her rape immediately, to no avail—police never even spoke to the alleged attackers. You tack one story like this onto the other, you thread them, and suddenly you have a string of anecdotes that, without much system or method, seems to describe an America disinclined to punish sexual assault. It’s a list that leaves most people who read it terribly angry, including me.
But—and this is maybe the surprising thing—that anger started bugging me. Not because anger isn’t warranted, but because my list a) inflames it and b) seems to imply that the solutions are simple and obvious when they aren’t. Worse still, there’s something almost involuntary about the response: It’s hard not to rage at this collection of facts I’ve strung together. Especially if they’re taken in conjunction with the ongoing evidence of our broken criminal justice system. It’s just so easy to make comparisons: A rapist got no jail time, but a homeless man was sentenced to three to six years for attempting to buy toothpaste and food with a counterfeit $20 bill. Sit back and watch the retweets flow.
The trouble with the anger that a thread like mine provokes—which is ostensibly just pointing out the ways we fail to punish rape—is that it twists all too easily into a call for more punishment. Lists have a rhetoric. They tend asymptotically toward specific arguments, and the implication of mine gave me pause. We know what lies down that road because we’ve tried it: Stricter sentencing guidelines, for instance, always hit minorities and disadvantaged people first and hardest. If anger is an engine, the risk is always that even with good intentions it will power bad outcomes—especially when that anger feels justified by facts. My list represents a set of perfectly true facts. But it gives the impression that those facts are all you need to know about how our society deals with sexual crimes. The thread isn’t properly contextualized. It’s just a string of rage-inducing anecdotes, a random compilation of upsetting incidents that came to my attention precisely because they were scandalous. On its own, in other words, the list isn’t proof of anything.
But when it comes to sexual assault, ditching emotion and sticking to facts isn’t as easy as it sounds, for the simple reason that feelings have already clouded what we can know. Sympathy and suspicion—for suspects and victims, respectively—factor powerfully into every aspect of how law enforcement deals with sexual crimes, fogging up the numbers or erasing them altogether. When you look for facts, what you find is that the few we have are woefully insufficient. Sexual assault is massively underreported, and even when victims come forward, convictions are rare. According to RAINN, only 5 out of every 1,000 rapes committed—that’s 0.5 percent—ends in a felony conviction. The Washington Post puts the figure at 7 out of 1,000, but pretty much everyone agrees it’s under 1 percent. We usually try to make sense of this painfully low number by noting that many rapes aren’t reported, which is true, but the crime is also notoriously under-investigated.
And when it is investigated, it’s pretty tough to prove—not because of the crime’s high proof threshold, but because of how little evidence about it we bother to collect. There is, for example, a national backlog of hundreds of thousands of untested rape kits. And behind that big number are stories that don’t get told: Rather than heal or wash or even change after being attacked, these women went straight to the hospital, where they had to undress, subject themselves to intrusive physical exams, and get interrogated. And then nothing happened. No one did anything with the evidence they offered at great personal cost. (Actually, that’s not true: According to a CNN investigation, 25 law enforcement agencies in 14 states were found to be destroying rape kits in cases that could still be prosecuted. “This was a routine process, they said, done to make space in evidence rooms.”)
But it’s not just rape kits; this lack of investigative vigor seems to permeate every aspect of the system. The Minneapolis Star Tribune’s review of more than a thousand cases in Minnesota found that:
In almost a quarter of the cases, records show, police never assigned an investigator.
In about one-third of them, the investigator never interviewed the victim.
In half the cases, police failed to interview potential witnesses.
Most of the cases—about 75 percent, including violent rapes by strangers—were never forwarded to prosecutors for criminal charges.
Overall, fewer than one in 10 reported sexual assaults produced a conviction, records show.
Even the rape statistics we actually have are likely much too low, because—given a major incentive to lower caseloads and no reporting standard—law enforcement has a history of improperly clearing sexual assaults. For decades, police departments abused the “unfounded” classification reserved for false or baseless rape claims (a practice that helped to undergird the myth of prevalent false-rape claims). A scandal in late-1990s Philadelphia provoked real reform there, but a recent investigation by ProPublica, Newsy, and Reveal found that many police departments still have unusually high rates of cases they designate “unfounded.” As an oft-cited 2010 meta-analysis put it, “[M]isclassification of cases by law enforcement agencies is routine. Cases in which the victim is unable or unwilling to cooperate, in which evidence is lacking, in which the victim makes inconsistent statements, or in which the victim was heavily intoxicated frequently get classified as ‘unfounded’ or ‘no-crimed.’ ” Law enforcement also has a history of destroying the evidence with investigations designated “incomplete” not because they had no merit but because officers failed to follow through. CNN’s review of one police department in Springfield, Missouri, found that in dozens of cases “detectives did not attempt to contact witnesses and known suspects, didn’t have rape kits tested or stopped working cases within days or weeks of being assigned to investigate.”
If rape kits aren’t tested, suspects aren’t interviewed, investigators aren’t assigned, victims are labeled uncooperative, and law enforcement frequently mislabels reports from the small percentage of victims who do come forward, then the numbers aren’t giving us anything like a true description of the problem. We’re effectively blind to its magnitude.
So what explains this documented disinclination to investigate sexual assault? Some of it is no doubt due to resource and budget constraints. But there’s also the inescapable fact that prosecutors and investigators and judges are human, and their thinking isn’t immune to the biases about sexual assault that pervade every level of our society.
That miasma of unexamined prejudice can produce truly bizarre results. In its multipart investigation of sexual assault cases over the last 10 years, the Star Tribune found that, provided they knew their victims, only about half of defendants convicted of felony sex assaults in Minnesota got any prison time at all. Judges were “twice as likely to reduce a sentence when the attacker knew the victim,” and in 227 separate cases reduced the recommended sentences of men convicted of felony sex assault such that they spent less than a year behind bars. (Minnesota has relatively flexible sentencing guidelines for felony rape; many judges seem to be supplying a downward adjustment at their own discretion.)
If we translate these outcomes into judicial rankings of a crime’s severity, judges are sending a pretty clear message: It’s not as bad to rape someone you know. It’s a pattern that might be explained by outdated ideas of sexual assault, like the notion that “stranger rape” is serious and worth punishing whereas other kinds might not really be rape at all. Our society has, after all, registered extraordinary skepticism when it comes to the idea that men might rape people they know: Spousal rape was legal until quite recently; Minnesota only just repealed a provision that shielded spouses from prosecution for raping their spouses. And the concept of “acquaintance rape,” shot through as it is with rumored “misunderstandings” and female “regret,” has led to judges making all sorts of bizarre pronouncements prior to granting convicted rapists mercy. (Sexual assault seemed to be a greater threat to society—and was more quickly believed and more severely punished—when black men were being routinely accused of raping white women. The crime might not carry quite the same stigma when powerful white men are accused.)
One clarifying outcome of trying to see through the anger is realizing that, as observers, we aren’t the only ones in the grip of strong emotions. What’s different inside the precincts and courtrooms where these cases are being decided—by ostensibly impartial interpreters of laws and norms—is that the private feelings and assumptions of arbiters and investigators might be even less understood than they are acknowledged. And they’re having significant effects.
***
I started my list with the case of the Anchorage man who masturbated on a woman after strangling her unconscious while telling her he was going to kill her. According to the detective’s notes, Justin Schneider said that he “needed her to believe she was going to die so that he could be sexually fulfilled.” He pleaded guilty in September to one felony assault charge—not the four felony counts and one misdemeanor that he was indicted for by a grand jury—in exchange for a sentence of two years, one suspended and one considered time served. No jail time. No apology. Some might call that an extraordinarily lenient outcome. The district attorney commented that the strangler-masturbator’s having lost his government job was already tantamount to a “life sentence.”
Then there’s the judge who, in sentencing a man convicted of raping his 14-year-old student, remarked that the young girl, who had since died by suicide, was “as much in control of the situation” as her teacher was and “older than her chronological age.” He gave the guy—back in court after violating a sweetheart deal in which all charges would’ve been dropped if, among other requirements, he’d completed a sex offender treatment program (he didn’t)—a mere 31 days. (The defendant was resentenced to 10 years in prison after public outcry.)
Then there’s Robert H. Richards IV, the du Pont heir, who was convicted of raping his 3-year-old daughter. The judge suspended his eight-year sentence because he might “not fare well” behind bars. He got no time in prison at all.
Last year, a Texas judge allowed a Baylor University student charged with sexual assault—his accuser said he’d repeatedly raped her until she’d lost consciousness—to plead no contest to “unlawful restraint” and avoid jail time altogether; Jacob Walter Anderson got a $400 fine, counseling, and probation. The district attorney accepted the plea without informing his accuser; she found out about it in the paper.
Stephen Dalton Baril, the grandson of a former Virginia governor, agreed in July to an Alford plea deal that reduced the charges of felony rape and sodomy. The judge sentenced him to five years of probation (no prison) and, according to news reports, approved the plea as a fair compromise, per the Associated Press, “in part because neither party was happy.” The implication seemed to be that the rapist and the raped ought to find a middle ground.
Then there’s Nicholas Shumaker, whom a jury convicted of the felony sexual assault of Emma Top in 2017. The recommended sentence was four years in a state prison with other violent offenders. The judge gave him one year in a county jail. He was out in nine months. “The professionals in this case generally agree there is no purpose served by Mr. Shumaker going to prison, that it will not change him in any positive way, that it will not help Ms. Top,” said the judge. Top herself told the Star Tribune she felt differently: “I felt like for what he had done, he basically got a slap on the wrist.”
In the time since I started writing this, Michael Wysolovski, a Georgia man who groomed and abducted an anorexic teenage girl and kept her in a dog cage for over a year, pleaded guilty to “interstate interference with custody” and child cruelty, defined as “excessive physical pain during sexual intercourse.” He was sentenced to “ten years with eight months to serve.” He’d been in a detention center for eight months and he’ll be on probation for the rest. No prison. Shane Piche, a 26-year-old bus driver who pleaded guilty to raping a 14-year-old student, was sentenced to 10 years probation and must register as a sex offender on the lowest tier. No prison.
The lack of accountability for sexual assault in this country can’t be explained just by retrograde judges, or relaxed district attorneys, or reluctant prosecutors, or understaffed departments who don’t assign investigators. It’s not just a lack of evidence or the agnosticism bred of he said–she saids. And it’s not just a plague of plea deals. It’s investigators pressuring victims to sign statements that they won’t cooperate in the investigations of their own rapes. It’s grand juries: Last year, the Washington Post’s Elizabeth Bruenig published a feature about a years-old rape case from her high school. A police officer described to Bruenig a separate incident in which a “victim was sent the photographs of her own rape, which she turned over to police.” The outcome? The grand jury did not indict. The main subject of the piece, Amber Wyatt, said that in high school she was raped by two boys and immediately reported it. And yet, “despite [one of the alleged perpetrators’] semen found in Wyatt’s body and the injuries she sustained, neither of the boys were questioned by police.”
As I said, this set of examples is far from a complete description of the problem, but so is the picture we get from the little data we have. When you add up all we don’t know and all we refuse to know, the issue might not be that the presumption of innocence (which matters!) lets certain kinds of men—mostly men society doesn’t deem inherently suspicious—off the hook. It’s that in all too many cases, there was never a hook to begin with.
***
What rankles about my list, I think, is that as cherry-picked and clumsy as it is, it tells a real story about how unevenly distributed sympathy produces disproportionate consequences. Now, sympathy’s not a bad thing; our institutions could use more of it. A system that prioritized rehabilitating people rather than locking them up would be vastly preferable to the one we have. But those locked up for drug offenses—and that includes 47 percent of men in federal prison—don’t seem to be getting the understanding and consideration that convicted rapists are. No one seems worried about whether nonwhite drug offenders would “fare well” in prison.
So why, in a system that otherwise tends to overpunish, are sexual assailants eliciting so much extra consideration?
For one thing, it’s simply the case that plenty of people think a lot of rapes weren’t rape at all. Surely, these skeptics think, given how “difficult” it is to know when sex is truly involuntary, some context is missing in rape cases. That skepticism is baked into the way many of us have been raised to think; on hearing rape, many an American—including those who work in criminal justice—believes that what one party calls a rape might actually be a misunderstanding, or a miscommunication, or an oversexualized society’s fault. And these ideas are so deeply rooted they can keep hold even when the assailant has been convicted. “Sex was in the air,” said a Manitoban judge who gave a two-year conditional sentence (no prison) to a man who in 2006 forced a woman to have sex in the woods; the judge called the assailant a “clumsy Don Juan.” An Idaho judge blamed “social media” for a 20-year-old man’s rape of a 14-year-old girl. Sympathy and understanding flow toward a certain kind of accused man, proof be damned: He’s just a regular person. It couldn’t have been as bad as actual rape.
Even when convicted, some rapists can experience leniency because of the “unjust” burden men face as the sexual aggressors in traditional courtship. If you believe men must exclusively initiate and pursue, mishaps and mistakes are bound to happen. Sure, there’s something intrinsically predatory and gross in this model of male-female relations, but the danger this predatory aspect poses to women isn’t really what troubles those who subscribe to this model. They see it as a risk to men. “I want you to tell your friends, your male friends, that they have to be far more gentle with women,” said a male Canadian judge after acquitting a man accused of raping a woman over a sink. “They have to be far more patient. … To protect themselves, they have to be very careful.” (That judge is now in danger of losing his job.)
The unstated corollary of this worldview is that some degree of sexual coercion is an inevitable side effect of the natural order, and maybe instead of blaming men for going too far sometimes, we ought to accept that stuff happens. “Some sex and pain sometimes go together … that’s not necessarily a bad thing,” said that same judge. To object to the pain is cheating, unsportsmanlike. Men have needs, sex is a team sport where people get hurt, and if players from only one of the teams ever seem to get injured, well, them’s the breaks. It goes without saying, I hope, that these distortions are deeply unfair to male victims of sexual assault. (And the idea of a female rapist runs so counter to our ideas of masculinity—the victim should consider himself lucky!—that perpetrators who are women receive lower sentences than even white men.)
The effect is a telling blind spot in our culture’s ability to process and respond to assault. And it has a price: It means we’re more likely to believe that women will invent accusations for money than we are to believe that (white, straight, cis) men abuse or attack people for fun.
The result is a criminal justice system that shows an unexamined bias toward accused sexual predators—particularly those from the dominant race and class—by protecting them in advance from punishments that (in practice) very rarely materialize. And this is a hypercorrection that occurs again and again even though false claims remain statistically minuscule, and even though less than 1 percent of rapes result in a conviction.
What remains true is the obvious fact this protective mélange of distorted rationalizations tries to skirt: Sexual assault is the infliction of humiliation and trauma and pain on another human being for pleasure—a pleasure derived more from domination and power than the sex itself. It is not affectionate excess. It is not human need. It is cruelty. But what both the data and my anecdotes reflect is a long-standing reluctance to admit that and treat rape as what it is: a serious danger to society. The Department of Justice’s Sex Offender Management Assessment and Planning Initiative summarized a 2004 study as saying that “sexual recidivism estimates for rapists, based on new charges or convictions, of 14 percent at five years, 21 percent at 10 years, and 24 percent at 15 years.” A 1997 study based on a smaller sample and older data puts the recidivism rate at 39 percent over a 25-year period after initial arrest. Those numbers are not small, and they also mostly depend on new arrests when—as we know—arrests for sexual assault are exceptionally rare to begin with.
Rape being one of the most essentially antisocial acts a person can commit, you’d think it’d be the kind of crime a system dedicated to communal safety would prioritize. But when Brock Turner was caught raping an unconscious woman behind a dumpster, Judge Aaron Persky famously said in 2016, “I think he will not be a danger to others.” Persky may be right. But that’s a bold prediction that willfully ignores the full measure of the danger Turner already was, particularly to the survivor of his attack, as well as the data suggesting there is reason to worry about re-offense. There is nothing wrong with hoping that a person will reform; reform and rehabilitation should be major considerations across all America’s courtrooms. What’s telling here is the ease with which Persky had already credited Turner with reforming. These opportunities for redemption aren’t afforded to everyone. Seriously addressing sexual assault means recognizing the scope—and persistence—of the problem.
Much has been written about how Turner’s privilege and position might have influenced Persky’s leniency. But Persky has also been intelligently defended on different grounds by those, like Sajid A. Khan, who argue that the “culture of mass incarceration has warped our psyches into thinking that lengthy jail or prison terms are always the answer to criminal behaviors like sexual assault.” This is a fair critique of the outrage that got Persky removed from his bench. If anger and sympathy are the free radicals in affective jurisprudence, rape cases flood us with both. The legal system treats rape in inflammatory ways that hurt the defendant—victim impact statements are controversial for this exact reason, as Slate’s Mark Joseph Stern has argued, calling this liberal hypocrisy—and dismissive in ways that hurt the survivor (glossing losing one’s job as the equivalent of a “life sentence”). Public opinion isn’t much better. We are magnificently bad at talking about rape (I include myself here), and that’s why I’m telling you about what’s wrong with my list.
***
The criminal justice system all too frequently produces tautological outcomes: It defines as threats those who are already seen as threats. It is gentler with those who are generally not. These outcomes aren’t rational or just; hurricanes of bias produce them, and the results, rightly examined, can make no sense. While there are circumstances that explain why a man in Montana who repeatedly raped his daughter got 60 days in jail, but a man in Fresno, California who repeatedly raped his daughter got 1,503 years in prison, the disparity seems hard to justify.
Thinking about all of this can tie you up in knots. The anger that my list generates at an unjust system isn’t actually wrong. But it’s insufficient. So is data-hunting in search of a “dispassionate” solution. There isn’t one. And the other half of this—the half that I haven’t even begun to address in this essay—is how marginally the survivors figure in these gales of legal sympathy and rage.
It’s hard to imagine a system that sees and serves both survivor and rapist. It’s like trying to spot both the duck and the rabbit at once. The solution to my list of convicted sexual offenders who get no jail time can’t be just to holler “lock them up!” As Michelle Alexander notes, justice must take into account the extent to which brute punishment fails. In Until We Reckon, Danielle Sered writes, “We have championed incarceration with full knowledge of its unquestionable brutality. And we have expanded it in the face of clear and rising evidence of its failure to produce the results it promises.”
Progress might mean thinking more capaciously about ways to include survivors and their needs, while also considering the humanity (and potential for reform) of their assailants. That sexual assault is not boyish enthusiasm run amok doesn’t mean that it’s irredeemable sociopathy. Dealing with it means sustaining both the gravity of the crime and the possibility of reform or repair. A mechanism for that would ideally allow survivors to meaningfully participate. Long prison sentences have not historically served that function. As prison abolitionist Ruth Wilson Gilmore says, “[B]ehaving in a violent and life-annihilating way is not a solution.” Neither, however, is pretending—as our system has—that a gigantic problem we’ve sort of refused to meaningfully measure doesn’t exist.
#MeToo is a correction, and a dynamic and angry one. It’s yanking some societal sympathy back from its longtime tacit beneficiaries. It is raging, rightly, at a system that seems bizarrely disinclined to address sexual assault. It’s making survivors visible and beginning to excavate and describe the extraordinary extent of the physical, psychological, economic, and professional damage. This is painful and slow and hard. Real repair will require recognizing that distorted, selective sympathies have already made our legal system what it is, and that those distortions afflict judges and prosecutors and investigators alike. It will require expanding that sympathy to groups who have historically not received it.
It would not mean losing the presumption of innocence. Nor would it necessarily mean more prison. In fact, a next step might recognize, as Sered writes, that “survivors’ need for safety—their own and others’—should not be automatically equated with an appetite for incarceration.” Rather than presume to act on behalf of survivors, the justice system might ask them what they need and what they want. What repair looks like to them. What restitution means.
There are glimmers of a future that might give survivors more agency. Some of that progress is at the procedural level: In response to the plague of sexual assaults that go uninvestigated or unprosecuted—for reasons the victims never find out—Utah’s House Judiciary Committee just voted to pass a bill that would authorize rape survivors to ask the state attorney general to review cases their local prosecutors had rejected. Some efforts are even more ambitious: Restorative Justice for Oakland Youth in California is one among many groups that’s been working to change the communal response to violence—by offering perpetrators an opportunity to make amends according to the victim’s needs rather than submitting to the legal system’s punishment by proxy. Some of that progress simply adjusts what we consider “common sense” to be: Confusion after an assault, for instance, is not evidence that the victimized person is lying.
Simplest of all, though: Our ideas about rape’s inherent indeterminacy—who knows what really happened?—need to change. Michigan prosecutor Kym Worthy was able to connect 833 suspects to multiple sex crimes by testing 10,000 backlogged rape kits. In Colorado, DNA testing helped investigators find a serial rapist—and prove that one of his victims, who was thought to have lied, didn’t. We can know so much more than we think about what happened to survivors; all it takes is the moral and political will to really look. And to act, humanely but decisively, on what we find. If we would test the damn rape kits, assign investigators to cases, learn how to interview victims, talk to the suspects, collect the evidence, stop destroying what little evidence we have, and figure out what should actually happen next, we might discover that things aren’t quite as unknowable as we once believed.
he comedy team Key and Peele had a running gag in which the always-calm President Barack Obama used an “anger translator” named Luther to interpret Obama’s calm language into appropriate outrage. For example, when Obama’s character would serenely express his wishes for the conduct of foreign allies, Luther would rant about their actions with profanity. 
