Underinvestigated, Trivialized, Excused: On a US System That Treats Rape as Something Less Than a Crime

Is rape a crime? It’s a startling question. Most people would answer emphatically, “Of course it is.” They might even add, “What kind of a question is that?” This question, though, is a fair one to explore given how rape is treated in our country and around the world—underinvestigated, trivialized, and excused. Is anything else enacted as an international weapon of war and referred to for a sure laugh at a comedy club? Rape in the United States is a felony, in theory, but evidence of rape is largely ignored and victims are expected to prove their veracity. This reluctance from law enforcement to use its valuable resources does not seem to extend to other felonies—the kind where evidence is tested and witnesses interviewed, the kind DAs prosecute readily, the kind where arrest and conviction are more than a remote possibility. We are left with a central contradiction here: most people, when asked, will agree that rape is one of the most horrific violations that can happen to a human being, yet somehow society appears to stand aside while crimes of rape are minimized or dismissed, if they are reported at all, if they are investigated at all.

The crime of rape sizzles like a lightning strike. It pounces, flattens, and devastates its victims. A person stands whole, and in a moment of unexpected violence, that life, that body, is gone. If the eviscerated individual somehow rises, incredulous bystanders shout with relief, “They’re alive! They are a survivor!” not realizing the victim’s organs are incinerated, her brain runny scrambled egg.

And what of those internal scars? Does time allow regeneration? Can medical care fully repair the bodily damage the lightning bolt so violently imprinted? Since the injuries are largely unseen by others, how does the victim carry on? How are the scars attended to and softened rather than made hard and immovable?

To answer those questions, to really answer them and not turn away, we need to consider the role we play in dismissing the experiences of victims of sexual violence. This collusion by omission occurs, in large measure, to protect our own vulnerability. The challenge of confronting a power structure so entrenched that its full impact is unseen lies in the insidiousness of our need to look away. What we accept as a normal response to sexual violence is anything but. We must make space for each individual story, creating a larger mosaic of what has emerged as an all-too-common experience: the delegitimization of rape as a crime. Only then can we begin to change how rape is addressed in our society.

This is a difficult task I ask of you—to look at these violent crimes full-on and listen as I tell my story and what it implies about a collective disregard for victims of sex crimes. But I hope you will listen, and I hope you will consider engaging in a shared and urgent task: to both recognize and raise awareness about the many ways rape is treated differently from all other felonies and to demand change. Our collective efforts are needed in this essential task and the work cannot be done in isolation.

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The term “rape culture” was introduced by second-wave feminists in the mid-1970s to describe how pervasive and normative violence against women was in the United States. Twenty years later, the problems identified by the term not solved through naming it, the editors of Transforming a Rape Culture described it as “a complex set of beliefs that encourages male sexual aggression and supports violence against women. . . . [It] condones physical and emotional terrorism against women and presents . . . as the norm . . . that sexual violence is a fact of life . . . inevitable.” Today, the “me too” movement and a charged political environment continue the struggle to define rape culture, address its impact, and effect change. Rape culture is the subject of a number of books, essays, and inspiring speeches. What is it we continue to name over 50 years’ time that is so recalcitrant, its damage tolerated? Centuries ago, violent sexual crimes committed against women were considered crimes against their husbands—a harming of their property, a stain on their honor. In contexts where rape was perceived as affecting men by proxy, it was often addressed with more gravity than it is now.

The “me too” movement, which was founded by activist Tarana Burke and spurred the subsequent viral hashtag, ushered in a wave of news about sexual assault, harassment, and abuse of power. These stories were followed by weak apologies and promises to get help from the perpetrators but few repercussions. It is commonplace that men, famous or not, experience no consequences for these behaviors, whereas those alleging harm pay a much steeper price.

Just ask the 45th president of the United States.

In this book I present my story alongside research on the criminal justice system’s treatment of rape in the United States to argue for the importance of acknowledging and treating rape like the felony crime it is. I assert that rape does not hold status as a crime largely because the victims are overwhelmingly women, children, and persons from marginalized populations. One in six

US women and one in thirty-three men will experience rape or attempted rape in their lifetime. I generally use the feminine pronoun throughout this book to describe victims of sexual assault, but it is imperative I acknowledge that many people experience sexual assault who don’t identify as female. Twenty-one percent of transgender, genderqueer, and nonconforming college students have been sexually assaulted, compared to 18 percent of cis females and 4 percent of cis males. It also cannot go unmentioned that sexual violence disproportionately affects women of color.

Race and racism have shaped the US response to crimes of rape over the centuries. In this country, it was legally impossible for a white man to rape an enslaved black woman because the act was “not a crime.” In contrast, a black enslaved man accused of raping a white woman would be subject to death, including by lynching or castration, often before a trial took place. According to a study from the National Registry on Exonerations, “a black prisoner serving time for sexual assault is three-and-a-half times more likely to be innocent than a white sexual assault convict.” Our ugly history of systemic racism impacts every aspect of our society, and rape culture cannot be defined or analyzed without addressing the influence of racial bias. In the courts, racism affects whether a case ever makes it to trial, the likelihood of a conviction, the severity of the sentence, and whether a plea bargain is offered.

I am not advocating for more incarceration and longer prison sentences in a country that already has the highest incarceration rates in the world. But it is clear to me as a long-term survivor of rape that there is a striking disproportion between the severity of the crime’s lifelong consequences for survivors and the seriousness with which it is treated by society and, specifically, by the criminal justice system. It is this disparity I question.

Data from this current decade shows that close to 25 percent of all rapes were reported compared to over 60 percent of robberies and assault and battery crimes. The Rape and Incest National Network (RAINN)—using an amalgamation of federal data—estimates that 230 out of 1,000 rapes are reported. Of those, 46 lead to arrest, 9 to prosecution, and 5 to felony conviction. Only 4 percent of all reported rape cases ever see the inside of a courtroom, translating into 1 percent of every 1,000 rapes committed. About 2 percent of rapes reported and one half of one percent of every 1,000 rapes lead to conviction and/or incarceration. Recent data showed a spike in reported rapes—up to 40 percent in 2017 and then down again to 25 percent in 2018. A 2018 US News and World Report article speculates that victims may have felt more comfortable coming forward because of the “me too” movement and notes that it is too early to know whether changes in how cases are handled will also result. The article quotes Karen Weiss, a sociology professor, who asserts that the increase is likely attributable not to victims’ growing trust in the law enforcement system but to “a confidence in their ability to be heard.” Rape victims still are routinely discounted, and our pleas—first for the rapist to stop and then for law enforcement to help us seek justice—are largely ignored.

Studies estimate that between 2 and 8 percent of rape claims are deemed to be either false or baseless. But we must ask what that means, exactly. These determinations are most often made by the detectives to whom a rape has been reported. Many police departments use categories of “exceptionally cleared” and “unfounded” to dismiss rape allegations. “Exceptionally cleared” indicates that a case was investigated but cleared by certain standards—for example, because of an uncooperative witness or the death of the offender. But this category may also be used when district attorneys decide they cannot successfully prosecute or when officers don’t believe they have a strong case—before an investigation even moves forward. The term “unfounded” in rape cases is supposed to be used when officers find a case is false or baseless. This label is often applied before an investigation commences at all and makes law enforcement’s “solve rates” artificially higher than they actually are. In 2019 the city of Pittsburgh deemed almost a third of its rape cases unfounded.

In both Scottsdale, Arizona, and Oxnard, California, almost half of rapes reported between 2009 and 2014 were classified as unfounded. Additionally concerning is that victims risk being charged with a false report if their case is dismissed in such a way—yet another disincentive for victims to go to law enforcement. This classification system should give us all pause, as it stands in stark contrast to the data showing low rates of false reporting. Are there other crimes where the first question asked is whether the victim is being truthful, and where there is no ensuing investigation to determine if that presumption can be backed up with facts?

If you have ever had a rape kit done or tried to report a sexual assault formally, you understand it is no one’s idea of a good time. Describing in detail sexual humiliation and unimaginable violence is not something a human being would choose to do if they had any other option. And yet the fact that we even have the phrase “he said, she said” in our vernacular—as if it’s as likely as not that a woman would lie about sexual violation—is itself instructive about the status of this crime in our society.

Rape in this country is not treated as a crime of brutal violence but as a parlor game: his word against hers, regret sex, revenge against a scorned lover. Politicians in state and federal offices have been widely quoted saying such abhorrent statements as, “Rape is kinda like the weather. If it’s inevitable, relax and enjoy it,” “If a woman has [the right to an abortion], why shouldn’t a man be free to use his superior strength to force himself on a woman? At least the rapist’s pursuit of sexual freedom doesn’t [in most cases] result in anyone’s death,” and “You can do anything . . . grab ’em by the pussy.” These are merely a few examples in a long list of egregious comments delegitimizing rape as an act of violence. It’s a game of it didn’t happen or it’s not serious even if it did. The victim is painted as unstable or unreliable, wanting attention or money, hoping to destroy the rapist’s life, perhaps even part of a well-crafted political conspiracy to discredit the perpetrator. It might be laughable if it didn’t work so much of the time.

So how do rape victims “survive” in an environment when everywhere around us we can reasonably conclude that what we went through is largely a trivial matter?

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Twenty years after a violent home invasion and sexual assault so terrifying that I could barely function in the aftermath, the memories of violence and terror returned. While I recognized the assault occurred two decades in the past, my body and brain were not aligned, and I spent most days feeling as if there were still a knife at my throat. I anticipated its strike, my heart beating hard even when at rest. Fortunate to live in Boston, where some of the best trauma experts practice, I got help and came to understand that I was not alone, that my experience was far from unique. Unprocessed memories too overwhelming to feel at a moment of terror have to go somewhere. It is like a cancer that goes into remission—not disappearing but lying in wait for the most inopportune time to resurface.

After years of floundering in temp jobs and trying to hold on to hope that I would someday return to any semblance of a career, I found meaningful work in the public health field. Eventually, I earned my master’s degree at Harvard University and worked at a university as the director of health and wellness at a time when colleges’ responses to sexual assault survivors had become front-page news. Daily, I witnessed young people suffering both from their experiences with sexual violation as well as from the secondary pain of being disbelieved, shunned by friend groups, and unable to complete their studies. Most schools had inadequate remedies for survivors, and rarely were students accused of sexual misconduct held accountable. During this period, I read that Massachusetts had thousands of untested DNA samples in its state crime lab going back as far as the mid-1980s and wondered about my unsolved case. Then I read further that there were untested, abandoned rape kits in cities everywhere—hundreds of thousands of them.

Old memories flooded my body, and I got busy, very busy. I learned whatever I could about how rape evidence and rape complaints were treated around the country. I did so to feel better, to understand my case, and later to be a voice for victims who wondered and wonder still why they feel so alone and unseen.

As my wife once said to me on a day when my own intractable memories grabbed me hard, “You aren’t crazy; what happened to you is crazy.” I must believe change is possible, despite all the facts that could lead me to conclude otherwise. I must believe that, this time, a reckoning toward justice will occur. Otherwise, it is simply too crushing.

This is the reason I speak about my experience, the vast amount of untested rape evidence and uninvestigated rapes nationally, the flaws in our criminal justice system that perpetuate this state of affairs, and the mass acceptance of misogynistic laws, policies, and practices. The pervasive and constant nature of the impact of sexual violence on every aspect of my life is contrasted with the scant response from the law enforcement officials to whom the rape was reported. Many years later, when I had become an advocate at work and nationally for changing the way rape cases were addressed, I returned to the Boston Police Department to find out what happened with my case. What I found confirmed what I feared: that even with the availability of DNA technology and increased funding for rape investigations, the core of the problem related to my case remains largely unaddressed in the present day. Too many cases are dismissed with no investigations and victims left to feel that justice for them is out of reach.

My manifesto is not a rallying cry for victims to act but a rebuke of current norms and a plea for change and accountability from law enforcement, whose job is to investigate and prosecute sexual assault, and from legislators, who speak too often about rape as if it is something other than a devastating crime of violence requiring a serious response. We can no longer allow the indifference toward sexual assault that leaves victims unable to rely on seeking justice for the crime they endured. We must try to move the needle, but our flawed world doesn’t make it easy. Every voice that challenges these norms is essential and reminds us that there is still much work to be done. Change is not optional, since it affects the safety, rights, and dignity of human beings who are violated by a crime of violence and by society’s diminishment of the seriousness of that crime. Freedom is still a concept given only to a select few, and the right to our bodies and their sovereignty is not yet secured. I hope this story can help move us a little closer to that distant claiming of power—power that includes full legitimacy, respect, and equal treatment under the law, power that I believe is within our grasp.

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From Is Rape a Crime? by Michelle Bowdler. Used with the permission of Flatiron Books. Copyright © 2020 by Michelle Bowdler.