By Julie McCaffrey
Opening Arguments
This is unfair. That’s the first thought I had sitting in the jury box when I was called for jury duty. This is unfair. The case was a case of sex abuse—which is one heck of an introduction to the judicial system—and the accused was charged with repeatedly sexually assaulting an eight-year-old girl over a period of two years.
As if the nature of the case wasn’t disturbing enough, the questions the defense was asking the potential jurors made my stomach turn. They asked questions regarding the eight-year-old’s credibility, whether she could be trusted, and lastly, if the treatment and manner of questioning of the survivor by the defense would influence our verdict.
This last question particularly puzzled me. What did they mean by treatment? Were they not going to treat her with empathy and respect? What did this mean? How were they going to question this eight-year-old girl, who already experienced more trauma in her short life than most?
This was my first exposure to the inner workings of America’s justice system, and it was safe to say that I was still naive regarding how it operated. I thought that the judicial system was the ultimate deliverer of justice, but after this first exposure to the judicial system—and the many other exposures I had through my court watch internship—I learned that true “justice” in the judicial system is rarer than I thought, particularly in cases of sexual assault.
So it seemed only fitting that for my independent research project at the Vanguard I should research exactly how sexual assault survivors are treated by the court system.
You may be thinking, “But the #MeToo movement helped hold perpetrators of sexual assault accountable, right? Courts now listen to women and treat them equitably, right?” Unfortunately, this could not be farther from the truth.
In 2021, Bill Cosby walked free after his sexual assault conviction was overturned, and Harvey Weinstein’s 2020 rape case conviction just got overturned this year. Statistics also paint a devastating picture of the lack of justice survivors receive.
According to the Rape, Abuse, and Incest National Network (RAINN), every 68 seconds, an American is sexually assaulted—and yet only 25 out of every 1,000 perpetrators will end up in prison for it. Additionally, only 310 out of 1,000 sexual assaults are reported to the police—which means more than two out of three go unreported.
And out of those who did not report, 15 percent of them said they didn’t report because they believed the police would not do anything to help. It’s the harrowing truth that sexual assault is still extremely, horribly, common, and survivors feel like the systems set up to give them justice simply aren’t giving them the support they need.
I’ve seen it time and time again with my friends, in the media, and through my experience court watching. The courts treat survivors of sexual assault so callously, instead of with the respect and empathy they deserve, and it’s infuriating to watch as a woman who may very well need their resources one day.
I wanted to conduct this project for several reasons.
First, I wanted to research this in hopes of illuminating the weaknesses of the justice system when it comes to trying sexual assault cases. Second, I wanted to reveal how much adversity survivors face when deciding to report and hold accountable perpetrators of sexual assault. Lastly, I wanted to give a new understanding of how unjust our justice system can be.
A note before I fully dive into the results of my research, which only touches a select few high-profile sexual assault cases, because these are the cases that had the most information published about them. I was able to access transcripts, motions, and some video recordings from these cases because of how high profile they are.
However, sexual assault cases are common throughout the judicial system, and many of them do not receive the media attention of these cases. I want to emphasize that there are many injustices that are carried out in the judicial system that go unnoticed, simply because these cases are not as well known.
Nature of Questioning
“Are you a scorned woman?” asked Senator Howell Heflin. This was one of the many problematic questions Professor Anita Hill had to answer during her testimony, and illustrates one of the most concerning aspects of the justice system—how survivors are questioned during trials.
The questions fielded by Professor Hill are infamous examples of such questions. In 1991, Anita Hill testified before the Senate that Justice Clarence Thomas, who was a Supreme Court nominee at that time, sexually harassed her when they worked together. Instead of being treated with respect and dignity, senators seemed to take liberties with their questioning and ask her prying, sensitive questions in an unapologetic manner.
It should also be noted that Professor Hill, a Black woman, was being questioned by all white, all male, members of the Senate committee. Senator Arlen Specter asked Professor Hill a slew of inappropriate questions that culminated in him questioning her credibility.
First, he completely dismissed the sensitivity of her allegations by saying that “you testified this morning that the most embarrassing question involved—this is not too bad—women’s large breasts. That is a word we use all the time. That was the most embarrassing aspect of what Judge Thomas had said to you.”
Not only did Senator Specter suggest that behavior as normal and appropriate in the workplace, but he also said the worst part of her sexual harassment wasn’t “too bad,” and completely ignored any discomfort that arose from that comment.
He then said that the allegations brought forth by Professor Hill are “mere allegations.” Lastly, Senator Specter said to Professor Hill, “You are not now drawing a conclusion that Judge Thomas sexually harassed you,” and when she responded in the affirmative, interrupted her and said that he didn’t understand.
Senator Specter’s manner of questioning Professor Hill was insensitive to the issue at hand, which was of a highly personal and sensitive nature. He seemed to not take this into account when phrasing his questions, and instead used callous language that diminished the severity of the allegations brought against Justice Thomas.
Professor Hill’s credibility was also frequently questioned. President Joe Biden, who was a senator at that time, remarked that “it is appropriate to ask Professor Hill anything any member wishes to ask her to plumb the depths of her credibility.”
Later, he asked her “can you tell the committee what was the most embarrassing of all the incidents that you have alleged.” This is irrelevant to what the committee should be investigating, which is whether Professor Hill was sexually harassed by Justice Thomas, not what the most embarrassing incident was.
Senator Specter also questioned Professor Hill’s credibility, and asked her, “How sure can you expect this committee to be on the accuracy of your statements?”
Senator Howell Heflin drilled Professor Hill about whether she had any ulterior motives to testifying. He stated he “had to determine what (her) motivation might be,” as if holding Justice Thomas accountable for his actions was not motivation enough for testifying.
He then asked her “do you have a martyr complex,” “are you a scorned woman,” and if she was “a zealot civil rights believer that progress will be turned back if Clarence Thomas goes on the court.” The senators’ manner of questioning Professor Hill was inappropriate as they dismissed the gravity and inappropriate nature of Justice Thomas’ comments towards her and accused her of having ulterior motives.
Another devastating example of the harmful treatment of sexual assault survivors is documented in Chanel Miller’s memoir, Know My Name. Chanel Miller was sexually assaulted on the campus of Stanford University by Brock Turner in 2015.
Her memoir contains a harrowing account of how she was questioned by the defense and treated by the judge during the trial. She describes being questioned by the defense as “stifling.” She writes that “[The defense] didn’t want to open up the emotional territory [the DA] did; he wanted to smother it, to erase my specific experience, abstract me into stereotypes of partying and blackouts, to ask technical questions that tied my shoelaces together, tripping me as he forced me to run.”
The defense also tried to pin the fault for the rape on Miller, by asking her questions regarding her drinking such as “and that was a decision you made, right?” and “you drank [the vodka] all down at once, right? Like chugging it.” Miller went on to detail in her memoir how she felt like she was on trial instead of Turner, her assailant, and she described how she developed trauma as a result of her treatment.
She explains how whenever she drank, she made sure to know the exact amount she consumed in case she was questioned about it. She was constantly planning how she would respond to the defense’s questions should she be sexually assaulted again. Miller also writes how her sexual history was alluded to in court, despite this being illegal.
The defense asked her if she had a boyfriend, if they were exclusive, and if she was sexually active. She writes the defense “spoke of my sexual life as if it was something I was hiding, as if exposing their knowledge gave Brock the right to do what he wanted.”
Survivors like Miller are frequently exposed to questions that pry into their sex life, in an effort to try to make the survivor seem promiscuous or like they were “asking for it.”
I had the privilege of interviewing Michelle Lamy, a partner at the law office of Lieff, Cabraser, Heimann, and Bernstein. During the interview, she said that the treatment of survivors by the defense is problematic, and constant prying into their consensual sexual lives is a common tactic to try to shame survivors out of court.
Lamy used the National Collegiate Athletic Association as an example of this. In a civil suit, the NCAA attempted to require plaintiffs to produce sexually explicit images and conversations involving themselves and any non-party romantic partners engaged in consensual, sexual acts.
This information is completely irrelevant to the case, which is to decide whether the NCAA failed to protect their athletes from sex abuse within one of their programs.
Lamy notes motions such as these are “designed to harass [survivors] out of court.” She also notes that the process of going to court for sexual assault or harassment is retraumatizing enough, but the efforts of the defense can make it even more painful.
While the defense does have a legal and ethical obligation to defend their client, it should be done so in a manner that is aimed at garnering enough evidence for the jury to return a reliable verdict, and not unnecessarily retraumatize the survivors for the defense’s gain.
Victim Blaming
“He was only nineteen!” “She hooked up with a freshman?” “Doesn’t that make her the predator?” “Bored suburban kids can’t keep it in their pants. Lame.” “Not trying to blame the victim but something is wrong if you drink yourself to unconsciousness…” “Why was she outside in a dress in the winter?”
These were all comments on articles detailing Brock Turner’s sexual assault on Chanel Miller. The one thing they all have in common? They don’t blame him for it. In fact, these comments place the responsibility for her rape squarely on Miller’s shoulders.
This is a phenomenon called victim blaming, which is incredibly common outside of the courtroom—especially in media and on social media—and, unfortunately, is prevalent in the courtroom as well.
If you are unfamiliar with victim blaming, it is pretty much exactly what it sounds like. Victim blaming is any response that either explicitly or implicitly states that the survivor of an assault or abuse is somehow to blame for what they experience. This shifts the blame and accountability away from the perpetrator—who is truly to blame here—to the survivor.
Common ways people victim blame is claiming they were “asking for it” if they went out in revealing clothing, asking them why they didn’t fight back, or suggesting they shouldn’t have drank that much.
In the previous section I brought up how Miller was questioned during her testimony, and the defense attorney attempted to victim blame her by implying her drinking choices that night led to her sexual assault.
![]("https://www.davisvanguard.org/wp-content/uploads/2021/07/</p)
Unfortunately, victim blaming is incredibly common in the courtroom, and particularly prevalent in one of Harvey Weinstein’s many sexual assault cases. During the cross examination of Jane Doe, an anonymous rape survivor, Weinstein’s defense asked her why she would let him into her hotel room when he showed up unexpectedly, or why she didn’t call for help when he forced his way through.
Additionally, when Doe said she stayed in the same hotel room she was raped in, the defense asked her incredulously, “You stayed in the very room where you say you were attacked and victimized?”
The defense continued to question her, specifically regarding her social media activity, as Doe posted numerous photos on social media accounts following the rape. He specifically questioned her asking why she would use the hashtag “amazing time” at an event days after her rape.
He stated, “She posts a photo of herself in underwear… She is literally drawing attention to herself in that spot.” He then continuously drilled her regarding why she had no medical records detailing check-ups after the rape, and suggested that Doe wasn’t even with Weinstein the night the rape occurred and was not in the hotel room.
According to the account, the fire alarm went off during the time of the rape, and when Jane Doe could not remember it, the defense said, “You don’t remember the fire alarm because you weren’t in your room, right?”
The treatment of Doe by the defense attempted to indicate to the jury that Doe was responsible for her assault and that the assault was less serious than what her testimony indicated.
In another case against Weinstein, the survivor’s legal team filed a motion for the survivor to remain anonymous to protect her from harmful media attention. The motion was denied. She was told that she is an adult who made the choice to pursue this action, and must accept the reality that litigation is often burdensome for the parties involved.
It is particularly disturbing that the survivor is attempting to use protections the justice system affords, such as remaining anonymous, to avoid negative attention from Weinstein and the media. The court’s decision sent the message that any negative attention the survivor received was her fault, as she was the one who decided to pursue legal action in the first place.
The issue of victim blaming is closely tied to the unfair nature of questioning, as illustrated by the Weinstein case. What’s notable about these questions is they all attempt to minimize the viciousness of the attack and place blame on the Doe.
The defense alluded to the fact that Doe did not fight back or call for help, as if she somehow “wanted it” since she didn’t fight back. Furthermore, the defense in this case frequently minimized the severity of the case by criticizing her social media use and actions after the rape.
While you may be thinking that the defense is just doing its job and trying to defend its client, I would like you to take a moment and think about how truly devastating this is for the survivor.
The survivor is doing something undoubtedly brave and vulnerable, in this instance, going against a man with immense wealth and power, and the defense is purposefully trying to make them doubt themselves or blame themselves for the harmful actions of others.
And unfortunately, it doesn’t just stop in the courtroom. The survivor has to face a cacophony of blame from complete strangers who feel safe hiding behind an electronic screen. The examples given by Chanel Miller in her memoir are just a few examples of the thousands of comments posted under news articles, social media posts, or Youtube videos that shifts the blame away from the perpetrator and onto the survivor.
The way sexual assault cases are reported on also is shown to paint the survivor in a negative light. According to a recent study conducted by Camille Aroustamian, news articles tend to show skepticism towards survivors and sensationalize the crimes through their reporting on the issue, which can lead to further emotional and mental distress for the survivor.
The issue of victim blaming is double sided. It’s horrible, but expected, in the courtroom, but is then amplified outside of it by the media and regular citizens.
Lack of Justice
There is a certain irony to our judicial system being called the “justice” system as it commonly fails to live up to its name in the cases of sexual assault. Between inadequate sentencing, overturned verdicts, and a lack of judicial protection, survivors are consistently seeing the justice system fail them.
In Chanel Miller’s case, her rapist only received six months in jail, three years of probation, and lifetime sex-offense registration—but he only served three months of his sentence. For reference, the maximum sentence he could receive for this crime was 14 years in prison.
In her memoir, Miller recalls that when deciding on the sentence, the judge considered Turner’s intoxication to have less moral culpability attached to his actions. The judge continued to explain that factors such as Turner’s lack of prior offenses, his youth, the lack of weapons used in the assault, and the fact Miller did not suffer monetary loss were key in his sentencing decision.
He referenced the “adverse collateral consequences on the defendant’s life resulting from the felony conviction” which would be severe. He referenced how Turner’s imprisonment would negatively affect his community, how the media attention had a negative impact on Turner, and his “genuine” remorse in his sentencing decision.
Then, despite Turner’s guilty verdict, the judge continued, Turner “will not be a danger to others,” and references Turner’s character evidence as reasoning for drastically decreasing his sentence. In this sentencing, the judge continuously chose to protect a found-guilty rapist from the full force of the law by consciously choosing to give him a reduced sentence.
In the sentencing, the judge failed to account the trauma Turner inflicted on Miller and the emotional toll it took on her. The judge seemingly made excuse after excuse to give Turner a lesser sentence. This instance is, perhaps, one of the most recognizable examples of the lack of justice survivors receive from the judicial system.
Regarding the lack of justice, Michelle Lamy notes, “It’s never the case that any amount [of injunctive relief or money] is enough for a survivor.” At least in civil cases, injunctive relief and money are the only forms of justice, which Lamy refers to as “rough justice” and remarks that it is never complete.
I will admit that I truly believe no amount of justice will ever be enough for sexual assault survivors, as any amount of money, injunctive relief, and prison time pales in comparison to the trauma they experienced. However, judicial officers must consistently try to meet the standard of justice sexual assault cases call for.
Not only do perpetrators of sexual assault get comparatively lighter punishments compared the full effect of the actual assault, sexual assault convictions can actually get overturned. Harvey Weinstein and Bill Cosby, two of the most notorious rapists taken down by the #MeToo movements, recently had their cases overturned.
Weinstein’s 2020 rape conviction got overturned by the New York Court of Appeals this year. The court found that the presiding trial judge allowed testimony against Weinstein based on allegations that weren’t part of the case.
He was acquitted on two serious charges—namely two counts of predatory sexual assault and first degree rape. Weinstein is still in prison resulting from his conviction in Los Angeles in 2022 of another rape.
Bill Cosby, on the other hand, was freed from prison in 2021 when his sex conviction was overturned. He walked free resulting from a procedural issue.
Lastly, some survivors pursue protections afforded by the justice system, but then are unjustly denied them by judicial officials. One example of this is the case of Jane Doe, who asked to remain anonymous during a sexual assault case against Weinstein. (Author’s Note: I should note that the document to which I referred to gather this information referred to her as “Jane Doe,” and even though the motion was denied, I do not wish to name her to respect her initial wishes).
Ultimately, Doe’s motion was denied. There are several factors to consider when deciding whether someone can continue through the judicial process under a pseudonym, one of which is whether the litigation involves highly sensitive and personal allegations. The judge found that while the allegations are definitely of a personal and sensitive nature, this factor is not “dispositive.”
The court stated, “allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym.” I would argue that sexual assault cases are some of the most sensitive and personal allegations that can be brought forth in court, and survivors should be afforded anonymity during their pursuit of justice.
Another factor considered is whether the identification of the survivors “poses a risk of retaliatory physical or mental harm to the [plaintiff] or even more critically, to innocent non-parties.” The plaintiff argued that this factor weighs in favor of the survivor continuing under a pseudonym, because having her traumatic experiences exposed to the public could lead to more trauma.
The plaintiff further refers to Weinstein’s history of harassing his accusers as reason for the survivor to remain anonymous, and explains that her mental health could be severely damaged by the release of her identity.
The courts held that the potential harm must be more than “mere embarrassment” or “social stigmatization,” and decided that her concerns about the possibility of trauma, public humiliation, or retaliation were not enough to grant her motion to proceed under a pseudonym.
In making this decision, the court completely ignored the trauma that would arise from the survivor’s name being released to the media and the public, and further withheld justice from the survivor.
Closing Arguments
My goal is not to depress my readers, but to try to illuminate just some of the obstacles sexual assault survivors face during their pursuit of justice. I wanted to write this to show what survivors go through, garner a better understanding of the obstacles they face, and foster empathy and respect for them.
When you hear people question why survivors didn’t report their assault to the police, or pursue legal action, I hope you understand that the process of testifying in a sexual assault trial is retraumatizing to survivors. This is especially damaging because the treatment of the survivors by the defense can often be incredibly prying, cruel, and place blame on the survivors for the actions of the perpetrators.
Additionally, the justice system can be unsympathetic and treat survivors with contempt, and judges frequently favor the perpetrator and disregard the trauma endured by the survivors. And at times, survivors endure all of this only for their perpetrators to be handed a sentence they do not deserve.
However, there are still a lot of effort needed to make the justice system fairer for survivors. One reason why some survivors may be apprehensive to report cases of sexual assault is the potential for defamation suits against them, but California Assembly Bill 993 aims to help mitigate the possibility of such a suit happening.
The bill fights to “expand protections for speech made by a survivor, without malice, about their own experience of sexual assault, harassment, or discrimination.” It would also make it more difficult for perpetrators to retaliate against survivors, and even help survivors financially in defamation lawsuits.
This bill aims to protect sexual harassment complaints and make them privileged and protected from civil defamation actions.
Brock Turner’s unjust sentencing also led to a revision of California’s rape laws. California Assembly Bill 2888 prohibited probation in cases of sexual assault, which essentially guarantees a prison sentence except for special circumstances. It also imposes a mandatory minimum three-year prison term, regardless of whether the survivor was conscious or not.
This bill was a direct response to Turner’s sentencing in an effort to ensure such a grave miscarriage of justice never occurred again. In addition, California Assembly Bill 701 expanded the definition of rape to include any non-consensual sexual assault to be considered rape for “purposes of the gravity of the offense and the support of survivors.”
However, there is still more that can be done to support survivors. In my interview with Michelle Lamy, she stated that another way the justice system can protect survivors is to pass legislation that bars discovery of unrelated items of a personal nature, such as consensual sexual photos, videos, and texts between the survivor and their partner.
Lamy also encourages survivors to continue coming forward, noting that while “the justice system is imperfect…if people are brave enough to come forward, we encourage them to do so.”
The justice system is still a tool, albeit an imperfect one, to raise the voices of survivors.
It is also used to hold perpetrators of sexual assault accountable and let them know their actions are not left unseen or unpunished, and sends the message that sexual assault is intolerable and inexcusable in all circumstances.
