There are many sexual assault misconceptions. Given all the news about sexual assaults in the last year, you would think that we all have a handle on the nature and extent of sexual assault. But in my experience hearing men and women talk about this topic, it seems that there is a lot of confusion. I have talked to women who have had sexual encounters that there are unsure about – was that assault? Sometimes the line seems blurry. By definition, sexual assault is considered any non-consensual sexual contact involving force or coercion on a person. If there is penetration, then it is rape. In a lot of situations, deciphering when sex becomes assault focuses on consent. Here are a few of the misconceptions that seem pretty common:
SEXUAL ASSAULT MISCONCEPTIONS, #1: CONSENT IS ALWAYS OBVIOUS
In order to consent, a person has to be mentally capable of giving consent. Alcohol and drugs – whether voluntarily consumed or administered unknowingly – obliterate consent. Children are, by law, incapable of consenting. Individuals with mental disabilities or mental illness may not be able to consent.
Other situations become non-consensual because of the relationship of the parties. Teachers and students, pastor and congregant, mental health provider and patient, are all examples of situations where the relationship is unequal in power and, therefore, sex is presumptively non-consensual. Even thirty years ago, lawyers were taught in ethics class not to have sex with their clients for this reason. This is a framework for evaluating whether sex is assault.
SEXUAL ASSAULT MISCONCEPTIONS, #2: REAL VICTIMS ALWAYS “FIGHT BACK”
I have met some people who assume that all victims fight back – yelling, physically fighting or another reaction that can be seen. But “freezing” is a legitimate biological reaction to danger. Research shows that about half of victims react by freezing whether than fighting back. This reaction also explains why many victims do not have visible evidence of assault such as bruises or scratches.
SEXUAL ASSAULT MISCONCEPTIONS, #3: FALSE CLAIMS OF SEXUAL ASSAULT ARE RAMPANT
I think many people, men in particular, have a hard time believing how much sexual assault actually occurs. Because of this, they believe that much of what they are now hearing about must not be true. When “me too” became a topic last fall, the vast majority of adult women had one or more events in their life that were “me too” events. Everything from college date rape, the handsy pastor dealing with the youth group, unwanted ass-grabbing on the dance floor, and all varieties of molestation and rape. Research shows that false claims are no more frequent when dealing with sexual assault than with other crimes. Multiple studies in many different geographic areas show a consistent rate of false reporting at between 6-8%.
SEXUAL ASSAULT MISCONCEPTIONS, #4: REAL CRIME VICTIMS REPORT TO THE POLICE
The vast majority of sexual assault victims do not report their assault to police. Many victims have emotional barriers that prevent them from reporting – shame, humiliation, confusion, and self-blame, among others – get in the way of taking the action necessary to report to the police. Many other victims are justifiably concerned about what happens if they do report. Our criminal justice system is constitutionally focused on protecting the accused. The rights of victims are rarely protected. So victims who have reported are often frustrated with the system and this frustration is heard by other victims. For an amusing take on this situation, watch Tracey Ullman.
SEXUAL ASSAULT MISCONCEPTIONS, #5: THE POLICE INVESTIGATE ALL REPORTS OF SEXUAL ASSAULT
This is the misconception that I am still struggling to understand. But I have seen it over and over in many different parts of our state. Even when a victim steps forward and reports the assault to police, it is often the case that the police do NOT investigate the assault. In one case, the police were “waiting for the [accused] to call us back” before they would complete their investigation. In several other cases, the police did not take the steps necessary to confiscate the perpetrator’s phone and investigate the photos and text messages that may have been evidence of the crime in a timely way. Sometimes the police do not call for a SANE (sexual assault nurse examiner) which is an exam that helps preserve evidence. The effect of the lack of an investigation, or an inadequate investigation, is that the District Attorney then chooses not to prosecute the crime and the perpetrator then has no consequences.
There are just a few of the more common misconceptions that people have about sexual assault. At Koller Trial Law, we understand these are misconceptions and we are used to dealing with them. If you or someone you love has been a victim of a sexual assault and you would like to understand your civil rights, please contact us.