The following by SMU Associate Law Professor Jessica Dixon Weaver first appeared in the June 22, 2017, edition of Garnet News. She is an expert in family law and children and the law.
July 5, 2017
By Jessica Dixon Weaver
Once one or two victims come forward, the gate opens and the flooding begins. In both the Bill Cosby and Jerry Sandusky sexual assault cases, young adult women and children came forward after decades to report being sexually assaulted by a man who held a certain power in their lives, whom they trusted.
Our legal system is mostly designed to deal with crimes shortly after they have occurred. However, the laws in most states do not match up with the reality of victims’ experiences.
While police reports of sexual assault have significantly increased since the 1970s, the majority of rape victims who know their attacker do not report these attacks.
When victims wait, the chances that the perpetrator will be convicted significantly decreases. What does this teach us about how our legal system deals with reporting sexual assault?
I recently presented a working paper at the World Congress of Family Law and Children’s Rights annual conference, where I noted that the U.S. child protection system has a screening gap between the sexual assault, the investigation, the treatment of the child victim, and the prosecution of the perpetrator. To close this divide, there should be a comprehensive public health system approach to addressing child sexual assault and rape of women. Each state needs a coordinated way to bring health and educational systems together with the legal system to do two things. First, more professionals who regularly interact with children, caregivers and women need to ask appropriate questions about whether anyone is violating their body. Second, law enforcement, along with health care providers and school systems, need to develop a checks and balance process for full investigation and prosecution of perpetrators.
Let’s start with the first suggestion:
Sexual assault screenings should be a routine part of educational, legal, social work, medical and mental health systems that regularly interact with women and children.
Studies show that most American health care provider organizations recommend clinicians screening female patients for sexual violence. If asked consistently, children and women might reveal what has happened to them. While there are mandatory reporters who are required to contact state authorities whenever there is a suspicion of child abuse, some of the professionals do not report it for a variety of factors. Implementing multiple screens across disciplines might be repetitive, but, hopefully, it would create a society where asking about sexual abuse becomes part of the health plan for women.
Ensuring that private doctors and schools comply with the screening is critical. The only way this could happen is if the screening were a mandate of a federal law. The appropriate law that could be amended to include comprehensive screening is the Child Abuse Prevention and Treatment Act (CAPTA), which provides for mandatory reporting, the appointment of attorneys for abused children, and periodic assessment of the problem of child abuse and neglect.
The second suggestion comes from looking at the details of the Cosby and Sandusky cases. At some point, in both cases, decades before the criminal trial, one or more people reviewed the facts that a victim reported and decided not to do anything about it. Based on media reports, all of these people were men. The professionals tasked with helping the victims seem to turn a blind eye to pursuing the real evidence set before them. This is not just a celebrity issue — other cases of serial rapists where victims come forward years later appear to have the same thing in common.
It is vital to look at the environment society has created that prevents the victim from reporting.
There is still tremendous gender and racial bias for women or children who do report the crime.
The Department of Justice issued a guidance document for law enforcement agencies to utilize eight principles to ensure better compliance with laws that prohibit discrimination based on gender, such as the 14th Amendment to the U.S. Constitution, the Safe Streets Act, and the Violence Against Women Reauthorization Act 0f 2013. However, the principles will only work when individuals put them into action. Accountability is key.
We could take a page out of the child welfare system’s use of child advocacy centers. These centers (CACs) provide one place for child abuse victims to be interviewed and treated by a group of professionals including doctors, law enforcement, social workers, mental health providers, state prosecutors, and victim advocates. The great thing about CACs is that the professionals operate as a team, and provide a check and balance on each other’s decision-making about the reported abuse. The teams are usually diverse, made up of both women and men of various ages and cultures. What would happen if diverse teams of professionals handled all sexual assaults? It is likely that much of the gender and racial bias would be confronted and, hopefully, result in law agencies being motivated to complete thorough investigations and prosecute perpetrators earlier before there can be more victims. Why is reporting child sexual abuse so important?
Because the chances that these same children will be sexually assaulted later in life are considerable; four studies from 1986 to 2005 show that 63 percent of women who suffered sexual abuse by a family member also reported a rape or attempted rape after the age of 14.
In addition, a study has also shown that a majority of undetected rapists have repeatedly raped adults (5.8 times) and also sexually assaulted children. Catching perpetrators of child sex abuse would likely decrease the number of rapes and victims. Perhaps the most important reason is that being sexually abused as a child can have long-term, significant health effects. Disturbingly, these effects are seen as women age and enter nursing home facilities.
If we want the situation to change, there are complex solutions that require systemic change. Admittedly, the above solutions would require serious financial investment and either a central federal or state data system in order to be efficient and effective. Given the large number of people permanently affected by the crimes of Sandusky and the alleged acts of Cosby, the measures we implement today could amplify victims’ voices so that a generation of children and women can be spared their pain.