The 68th Second: Part II
Three Decades After the Violence Against Women Act, Survivors Are Still Failed by the U.S. Justice System.
Trigger Warning: This article discusses sexual assault, rape, and trauma, which may be distressing for some readers.
Last week marked the 30th anniversary of the Violence Against Women Act (VAWA). So why does the U.S. Justice System continue to fail survivors? Let’s dive in with Part II of The 68th Second.
FACT CHECK: TRUE
Every 68 seconds: that’s how often someone is sexually assaulted in the United States.
How many people will have been assaulted by the time you finish reading this article? For more details, read PART I of the 68th Second before diving into PART II.
THE LIMBIC BRAIN AND UNDERSTANDING TRAUMA RESPONSES
Oftentimes, how assault survivors react during their assaults is later used against them in the courtroom. Imagine blaming the victim of a homicide for being murdered. Imagine the victim’s ghost in the courtroom being asked: What did you do when your murderer took out a knife? A gun? When he choked you? Imagine saying: what did you do that made the murderer murder you? How did you behave? What did you say? Were you drunk? What were you wearing? Why were you there? Did you ask him not to? Were you silent when he pulled the trigger?
When it comes to sexual assault, the legal system is fraught with biases and misconceptions regarding trauma and PTSD. Many legal professionals lack understanding of how trauma impacts behavior and memory, leading to unjust outcomes for survivors. For real change to occur, mandatory training on PTSD and trauma for judges, attorneys, and law enforcement officers is essential. These programs should cover the basics of trauma, its psychological effects, and how it influences behavior so that we stop blaming the victims and start holding the assailant accountable.
A few common questions survivors are asked are, “Why didn’t you leave?” “Why didn’t you fight back?” “Why didn’t you say ‘no’ until the assailant stopped?” These questions show a clear misunderstanding of how human beings are biological and neurologically wired to respond to traumatic events while they are experiencing them. The limbic system in the brain, which governs emotions and survival instincts, plays a crucial role in how individuals respond to traumatic events.
When faced with danger, the limbic system can trigger the fight, flight, freeze, or fawn responses. When the limbic system takes over, the rational part of the brain, the prefrontal cortex, is virtually inaccessible. Your body is trying to keep you alive at whatever cost and instinctual reactions aimed at survival take over (Harvard Health Publishing, 2020).
The four trauma responses are:
Fight: Confronting the threat aggressively.
Flight: Running away from the threat.
Freeze: Becoming immobile, unable to move or speak.
Fawn: Trying to placate the threat by being overly compliant or agreeable.
You might be thinking, “Fight is a trauma response. Why didn’t the survivor fight back?” Well, as human beings, we don’t have a choice when it comes to which trauma response our body thinks will keep us alive and physically unharmed. Our prefrontal cortex, the part of the brain responsible for rational thinking and decision-making, is often "offline" during a traumatic event as the limbic system takes over to manage the threat (Harvard Health Publishing, 2020).
For many people, flight, freeze, and fawn are instinctual reactions that our bodies believe will keep us safer than fight (National Institute of Mental Health, n.d.). And again, our rational brains are offline, making it difficult to make conscious choices during such intense situations (Briere & Scott, 2015). During sexual assault, many survivors experience the freeze response, where they become paralyzed and unable to vocalize their non-consent. This automatic reaction is often misunderstood and misinterpreted in legal contexts, leading to the discreditation of survivors.
NO, AN ‘O’ DOES NOT INDICATE CONSENT OR PLEASURE
There are persistent myths that physiological responses such as experiencing an orgasm or vaginal lubrication during sexual assault indicate consent or enjoyment. These myths are not only scientifically inaccurate but also harmful to survivors. Orgasms can occur involuntarily due to the body's physiological response to physical stimulation, even in situations of extreme distress, fear, or pain. An orgasm does not indicate consent or enjoyment (Journal of Sexual Medicine, 2013).
The autonomic nervous system, which controls involuntary bodily functions, can trigger an orgasm irrespective of the individual's emotional state. Furthermore, it is possible for individuals to orgasm as a result of pain, not enjoyment, which further discredits the notion that orgasm during an assault implies consent (American Journal of Public Health, 2012). As noted in an article by Teen Health Care, "An orgasm during assault is a physical response, not an indication of consent or pleasure" (Teen Health Care).
Similarly, vaginal lubrication is a natural physiological response aimed at protecting the body from injury. It occurs automatically to reduce the risk of tearing, ripping, or pain, irrespective of the individual's consent or emotional state (Women's Health Journal, 2014). The Biology of Sexual Response research outlines how lubrication is a biological response to prevent physical injury during unwanted sexual activity (International Journal of Gynecology & Obstetrics, 2015). Thus, the presence of vaginal lubrication should not be misconstrued as a sign of arousal or consent.
PROSECUTOR V. ANTO FURUNDZIJA: THE WEAPONIZATION OF TRAUMA SYMPTOMS IN COURT
The prevalence of Post-Traumatic Stress Disorder (PTSD) in assault survivors is significantly higher than the national prevalence of the disorder (Maercker et al., 2023). According to National Institute of Mental Health common PTSD symptoms include:
Intrusive memories:
Recurrent, unwanted distressing memories of the traumatic event
Reliving the traumatic event as if it were happening again (flashbacks)
Upsetting dreams or nightmares about the traumatic event
Severe emotional distress or physical reactions to something that reminds you of the traumatic event
Avoidance:
Trying to avoid thinking or talking about the traumatic event
Avoiding places, activities, or people that remind you of the traumatic event
Negative changes in thinking and mood:
Negative thoughts about yourself, other people, or the world
Hopelessness about the future
Memory problems, including not remembering important aspects of the traumatic event
Difficulty maintaining close relationships
Feeling detached from family and friends
Lack of interest in activities you once enjoyed
Difficulty experiencing positive emotions
Feeling emotionally numb
Changes in physical and emotional reactions:
Being easily startled or frightened
Always being on guard for danger (hypervigilance)
Self-destructive behavior, such as drinking too much or driving too fast
Trouble sleeping
Trouble concentrating
Irritability, angry outbursts, or aggressive behavior
Overwhelming guilt or shame
These symptoms are frequently weaponized in the courtroom to undermine survivors' credibility. In Legal Memories: Sexual Assault, Memory, and International Humanitarian Law by Kirsten Campbell, under the section, Acts of Testimony, Campbell examines how the memory of sexual assault is treated within international humanitarian law, particularly through the case of Prosecutor v. Anto Furundzija. This case serves as a poignant example of the hurdles and biases survivors face in seeking justice (Campbell 2007).
In 1995, Anto Furundzija, a commander of Croatian forces, was charged with violations of international humanitarian law, including torture and sexual assault. Witness A, a Muslim woman, was raped and sexually assaulted during interrogation by Furundzija's subordinate. Furundzija was present and complicit in the assault. The Furundzija case was significant as it was the first war crimes prosecution where rape and sexual assault were the central charges. Moreover, this landmark case established rape as a war crime under international humanitarian law, setting a precedent for future prosecutions (Campbell 2007).
The complexities of witness testimony, especially in the absence of corroborative evidence, are starkly highlighted in the case of Prosecutor v. Anto Furundzija (Campbell 2007). However, the case also underscores the urgent need for an ethical approach to legal memory that acknowledges the gendered hurdles survivors of sexual assault face. Legal practices often mirror underlying gender biases, affecting the credibility and reliability attributed to female witnesses (Campbell 2007). Let’s call this the Cassandra effect. Remember Cassandra? “The woman who told the truth but was not believed” (Solnit 2014). The Furundzija case starkly illustrates how female survivors' testimonies are scrutinized more closely.
The defense in the Furundzija case argued that Witness A's PTSD affected her memory's reliability, a tactic often seen in both international and domestic courts. This tactic shifts the focus from the perpetrator's actions to the survivor's mental health, thereby questioning the validity of their testimony (Campbell, 2007). This case reflects broader legal challenges where PTSD symptoms are used to discredit survivors' testimonies, when so often a survivor’s burden is not difficulty remembering, but in their inability to forget. This sentiment is echoed in the Prosecutor’s Closing Statement in the Furundzija case:
“Witness A has shown the proposition to be true that [for] many people who have been sexually assaulted and particularly violated, the problem is not remembering; the problem is forgetting” (Prosecutor v. Furundzija, 1998).
RETRAUMATIZATION AND THE DETERRENT EFFECT
The legal process can re-traumatize survivors, exacerbating their PTSD symptoms. The adversarial nature of the courtroom, combined with the defense using tactics that stir disbelief and discreditation of the victim, can lead to severe psychological distress. Not only does the legal system often weaponize the assault victim’s symptoms against them, but it often preys on one particular symptom: the victim’s shame. This creates a deterrent effect that ripples through society, causing many survivors to never report their assaults.
In fact, sexual violence remains vastly underreported with about 63% of sexual assaults unreported to the police (NSVRC, 2020). Globally, the United Nations (UN) estimates that less than 40% of women who experience violence seek help of any sort, and less than 10% seek help from law enforcement.
THE GENDER BIAS
Understanding the dynamics of gender bias, both explicit and implicit, is crucial in discussing how PTSD symptoms are weaponized against survivors of sexual assault in courtrooms. These biases shape the way victims and defendants are perceived, influencing everything from credibility assessments to sentencing decisions.
According to the United State Department of Justice (DOJ), “Too often and for too long, gender bias within the justice system has thwarted investigations, caused further harm to victims, and allowed perpetrators to evade accountability and continue to commit crimes.” The DOJ defines a bias as a tendency or prejudice toward or against individuals or groups, often based on stereotypes or assumptions (U.S. Department of Justice, 2022).
In the context of law enforcement's response to sexual assault and domestic violence, bias can influence officers' treatment of victims, lead to less protection for certain victims, and cause ineffective responses to the crimes committed against them. Bias can also manifest in the broader operations of law enforcement agencies, including policies, procedures, and resource allocation. For example, investigators handling sexual assault cases often have significantly larger caseloads compared to those handling cases like narcotics or burglary (Gender Bias in the Legal System, U.S. Department of Justice, 2022).
In legal cases, the intent of the perpetrator is a critical element that the prosecution must establish. However, unconscious biases can distort how both the victim’s and perpetrator's actions are interpreted. For instance, biases about how a 'real' victim should behave can lead to misjudgments about the victim's credibility and the defendant's intent. This is compounded by defense tactics that exploit these biases, using PTSD symptoms to undermine the victim's testimony. Recognizing and addressing these biases is essential for ensuring fairer legal outcomes and supporting survivors of sexual assault (Harvard Business School, 2003).
The Harvard Business School study, Heidi vs. Howard is a notable experiment illustrating gender bias (Harvard Business School, 2003). Researchers created a case study based on the real-life career of a woman named Heidi Roizen who was a successful venture capitalist and entrepreneur. In the case study, Heidi’s achievements, networking skills, and professional relationships were described and then given to two separate groups of students. One of the groups received the case with Heidi’s real name (Heidi Roizen) and the other group received the same case with the name Howard Roizen. The students were then asked to evaluate the competence, likability, and effectiveness of Heidi/Howard based on the same set of accomplishments and behaviors.
While both groups rated Heidi and Howard equally competent, Howard was perceived as more likable than Heidi and many students said they would have preferred to work for Howard (who was seen as a more appealing colleague and boss) than Heidi (who was seen as self-promotional and overly assertive) despite the details of the cases being completely identical, except for the differently gendered names. Howard was also viewed as more effective in his role due to positive interpersonal traits associated with his gender. Heidi, on the other hand, faced skepticism about her leadership style, attributed to gender biases (Harvard Business School, 2003).
Despite identical achievements and qualifications, women (like Heidi) are often perceived as less likable and more aggressive compared to men (like Howard). This bias can adversely impact women’s career advancement and workplace relationships, underscoring the need for addressing gender stereotypes and biases in professional settings. The skepticism associated with women is a common gender bias that plays out in many different contexts, including the courtroom, where it can be detrimental to a sexual assault survivor’s case, regardless of the facts.
Gender Bias in the courtroom often affects victim credibility, as Female victims often face skepticism and are subjected to scrutiny regarding their past sexual behavior, appearance, and demeanor. This bias can lead to questioning the victim's credibility and character. In the case of People v. William Taylor, Taylor was charged with sexually assaulting a female coworker. The defense attempted to discredit the victim by bringing up her mental health history, arguing that her PTSD made her an unreliable witness (People v. William Taylor, 1999).
Gender bias also affects how the defendant is perceived, especially in the sexual assault cases where a man assaults a woman (especially if he is a white man). (Race often brings another set of biases with it that affect cases and outcomes that this article does not explore.) As Solnit writes in “Cassandra Among The Creeps,”
“Not uncommonly, when a woman says something that impugns a man, particularly a powerful one (not a black one unless he’s just been nominated for the Supreme Court by a Republican president), or an institution, especially if it has to do with sex, the response will question not just the facts of her assertion but her capacity to speak and her right to do so. Generations of women have been told they are delusional, confused, manipulative, malicious, conspiratorial, congenitally dishonest, often all at once” (Solnit 2014).
For example, male defendants might receive more lenient judgments due to stereotypes portraying men as inherently reliable, trustworthy, and factual. A study conducted by researchers from the University of Indiana and the University of Texas found that television news viewers perceive white male anchors as more credible than their female or non-white counterparts. This study, titled "Race and Gender in Television News," was published in the "Journal of Broadcasting & Electronic Media" in 2014.
Male defendants might also receive more lenient judgments due to beliefs that their behavior is a result of "natural" sexual urges. In the case of Brock Turner, Turner (a Stanford University student) was convicted of sexually assaulting an unconscious woman, but he only received a six-month jail sentence–which widely criticized as lenient, reflecting biases that minimized the severity of his actions and the impact on the victim due to his status as a promising athlete (People v. Brock Turner, 2016). This leniency is not an isolated incident but a reflection of deep-rooted biases that continue to protect perpetrators, often at the expense of justice for victims.
Addressing these biases is critical if we hope to reform a justice system that continues to fail victims of sexual violence.
Subscribe for Part III of The 68th Second where we will delve into critical discussions on justice reform and the surprising thing the Vikings got right. These insights are crucial to understanding the full impact of sexual violence on survivors, what history can teach us about the modern epidemic of violence against women, and the actionable steps needed to transform the U.S. justice system—and change lives.
ACKNOWLEDGING VULNERABILITIES
While this article focuses primarily on the gender bias and the weaponization of PTSD symptoms in the courtroom to discredit female victims of assault, it is crucial to acknowledge that members of the transgender and LGBTQ community are especially vulnerable to assault and bias. Research indicates that transgender individuals, particularly transgender women of color, face significantly higher rates of sexual violence (Human Rights Campaign, 2021). Data from the Human Rights Campaign reveals that nearly half of transgender individuals will experience sexual assault in their lifetime, with transgender women of color facing even greater risks (Human Rights Campaign, 2021).
Racial disparities also exist, with African American women experiencing higher rates of sexual violence than their white counterparts. African American women often face multiple layers of discrimination, increasing their vulnerability to sexual assault and complicating their access to support and justice. For instance, African American women are statistically more likely to encounter sexual violence than white women, and systemic issues such as economic disparities and racial biases within the legal system further exacerbate these challenges, making it less likely for them to report and seek justice (RAINN, 2024).
It is also important to recognize that men are subjected to sexual assault, with approximately 1 in 6 men experiencing sexual violence at some point in their lives (1in6.org, 2021). Additionally, this article does not address the impacts of rape and assault on children, which is a critical and deeply concerning issue deserving of comprehensive attention and action.
Addressing the unique challenges faced by all survivors, regardless of gender or sexual orientation, is crucial in the pursuit of justice and equitable treatment within the legal system. Recognizing these biases is the first step towards change. However, beyond structural reforms, immediate support for survivors is equally important. If you or someone you know has been sexually assaulted, several resources are available to provide assistance and support.
IMMEDIATE HELP AND RESOURCES FOR SURVIVORS
If you or someone you know has been sexually assaulted, resources are available to provide support. Organizations like the Rape, Abuse & Incest National Network (RAINN) offer confidential assistance through the National Sexual Assault Hotline at 1-800-656-HOPE and their online chat service at rainn.org. If in immediate danger, contacting local law enforcement or emergency services is essential. To protect privacy, those in unsafe environments should clear their browser history after reading this article.
Sexual Assault Forensic Examiner (SAFE) programs offer essential support for survivors, providing comprehensive medical and forensic care, including evidence collection and treatment for injuries. These programs ensure that survivors receive compassionate care while preserving critical forensic evidence that can aid in prosecuting perpetrators. To find a SAFE program near you, visit the Department of Justice's Office on Violence Against Women website or contact local hospitals and crisis centers for referrals. SAFE programs are vital in supporting survivors and helping them navigate the legal system. Additionally, the state covers medical costs for these services.
SOURCES
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Campbell, K. (2007). Legal Memories: Sexual Assault, Memory, and International Humanitarian Law. Acts of Testimony.
Harvard Business School. (2003). Heidi Roizen Case Study: Gender Bias and Workplace Perception. Journal of Leadership & Organizational Studies.
Harvard Health Publishing. (2020). "Understanding Trauma and the Limbic Brain." Harvard Health Publishing.
Human Rights Campaign. (2021). "Sexual Assault and the LGBTQ+ Community." Human Rights Campaign.
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RAINN. (2024). "Statistics on Sexual Violence in the United States." RAINN.
Solnit, R. (2014). Cassandra Among the Creeps. Harper’s Magazine.
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1in6.org. (2021). "Statistics on Male Sexual Assault." 1in6.org.