Law in Contemporary Society

Rape and the Criminal Justice System: The problem of underreporting


Most rapes go unreported. There are no reliable statistics to back this up, because it is impossible to obtain reliable statistics on something that no one wants to admit happened. I can only back up my assertion with statistics drawn from personal experience: three female friends raped, zero police reports, zero prosecutions. Why is this? These were all educated, well-adjusted young women. They knew their rights, and they knew what happened was against the law. Yet not one of them even considered going to the police. The criminal justice system is the most powerful tool our society has at its disposal for combating rape; however, it is not meaningful if a large percentage of rapes are going unreported. We need to ask: why don’t women report rapes and sexual assaults?

Why Women Don't Report Gender Violence

Blaming the Victim

Women who are raped cannot escape the fact that they will be blamed for it; furthermore, many victims genuinely feel that they are partly to blame. Thanks to rape shield laws, women are generally not prosecuted along with (or instead of) their rapists anymore. That does not mean, though, that the woman will not be prosecuted by the media in a high profile case, or by friends, family and acquaintances when the case is not sensational enough for media attention. Rape is frequently a he-said she-said situation. A conviction rests on the woman’s credibility, and her credibility is undermined if she is seen as somehow contributing to the situation. Prosecutors know this, and prefer not to take cases where the woman has acted in a way that the media or the jury would see as making her culpable. Even if a woman can move past her own feelings of shame and guilt over the incident, she faces the uphill battle of convincing a prosecutor that the jury will find her credible and convincing.

Sexism is the Underlying Problem

Underlying this problem, and violence against women in general, are traditional views about gender roles and the general sexism that pervades our culture. In terms of sexual crimes, these ideas come into play in several different ways. The basic idea is that male sexuality is something that women must manage and control.[1] If a woman is raped, it is because she put herself in a situation where she could not maintain control. This theory of sexual relations comes into play most often in cases of acquaintance rape. Where a woman has had prior sexual relations with the offender, has been drinking, or engaged in sexual conduct before withdrawing consent, the judgement made by society, and often by the victim herself, is that she should have known better.

This also applies to violence against women in a broader sense. Women are held responsible for controlling male sexuality as part of their responsibility for maintaining the family unit. Women are the traditional guardians of the home, and the nuclear family that is integral to the societal structure. In cases of domestic violence, women are often too afraid to report assaults or leave the situation in which they are being assaulted. However, there is also a sense of shame or at least responsibility. Nancy Berns studied the characterization of domestic violence in women’s magazines, and found that the stories were framed as women solving a private problem. [2] Women are responsible for maintaining marriages and family units, the building blocks of a capitalist society. If something is amiss in the family, society is quick to blame the woman as the appointed guardian of the home. The woman also blames herself. This is the source of the shame and judgment associated with domestic violence, as well as the tendency to view this violence as a private affair.

Addressing the Problem

Education in the Long Term

The only way to change deeply ingrained societal beliefs is a gradual program of education at every level. Suffice to say that encouraging women to sign pledges “guarding” their virginity and “saving” themselves for marriage does nothing to eradicate the view of women as responsible for controlling and limiting sex. However, Michelle Fine has studied programs that encourage abstinence and those that engage with teen sexuality, and found that both tend to encourage this view.[3] A reconfiguring of sexual education so that it does not cast the gender roles in this way would be a strong step in the right direction.

Criminal Justice Reform in the Short Term

However, as long as these beliefs still exist, and women still feel open to judgment and criticism when they are the victims of violence, the criminal justice system needs to be more responsive to their needs. One way is to give judges more discretion to limit media access to courtroom proceedings and documents until the trial is over. Judges do have the ability to exclude people from the courtroom, but in rape cases it should be the norm unless justice demands otherwise. This is a contentious issue, but it would protect the victim’s privacy and limit the media’s ability to put the victims of gender violence on trial. There should also be more interaction between criminal justice and social services, in order to provide support to the victims of gender violence if they do decide to report the assaults, including access to shelters and health services. Programs attempting to create a community-based response to sexual violenceare a good sign that this is the direction in which the system is going. Finally, the punishment of offenders should have an educational component, to try to target the sexism that underlies gender violence.


Women fail to report gender-based violence because traditional ideas of gender roles and put them in the position of having to defend their allegations and their own behaviour. If women do not report the violence against them, then the reforms to rape and domestic violence law cannot help the people who need them the most. Measures to increase punishment for sex offenders disproportionately punish those offenders without addressing the problem of unreported gender violence. This is a problem that can only be solved through the gradual reform of attitudes towards gender violence. The issue is clearly bigger than the criminal justice system, but it has a role to play.

[1] Fine, M. and Carney, S. (2001) Women, Gender, and the Law : Toward a Feminist Rethinking of Responsibility. Unger, R. (Ed) Handbook of Psychology and Gender. NY: McMillan? Publishers, 388-409.

[2] Berns, Nancy. "My Problem and How I Solved It": Domestic Violence in Women's Magazines The Sociological Quarterly, Vol. 40, No. 1 (Winter, 1999), pp. 85-108

[3] Fine, M. and McClelland? , S. (2006) Sexuality education and desire: Still missing after all these years. Harvard Educational Review. Fall 2006, 76, 3, 297 – 338.


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r14 - 22 Jan 2009 - 00:43:53 - IanSullivan
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