American society has long been plagued by an often ignored epidemic. It’s a violent epidemic that victimizes nearly eight times as many Americans as HIV every single year, yet it’s not a pathogen. It’s something that we publicly condemn, but at best, it’s a vicious crime that tragically only enters our collective consciousness when a particular case catches the media’s attention.
That epidemic is sexual assault, more specifically, rape. Rape is the monster that for many of us lurks outside of our peripheral vision, in the shadows which many of us dare not examine. The reality is that according to the Rape, Abuse and Incest National Network (RAINN), which draws its statistical figures from the Department of Justice’s National Crime Victimization Survey, some 320,000 Americans over the age of 12 are raped or sexually assaulted each and every year. That’s a newly victimized American every 98 seconds.
More startling yet, is that according to the Maryland Coalition Against Sexual Assault, only 36 to 55 percent of all sexual assaults are reported to law enforcement. According to RAINN, only nine percent of rapists are prosecuted, only five percent lead to a felony conviction, and only three percent of rapists ever spend a day in prison. The reality is that in the United States, a rape survivor is over four times more likely to attempt suicide than his or her attacker is to spend a day in prison.
The astoundingly low reporting rate for rape is incredibly concerning, and indicates both the heinousness of the crime and the current inadequacies of the criminal justice system’s attempts to combat the epidemic. The National Institute of Justice and various non-profit organizations dedicated to addressing the issue have detailed numerous factors that may influence a survivor’s decision to refrain from reporting the crime to law enforcement. Several of these factors appear to implicate flaws within the American criminal justice system as reasons to avoid filing a police report. Such factors include: a belief that police would not or could not do anything to help, fear of the justice system, fear of a lack of evidence, fear of not being believed, and a fear of reprisal.
A fairly recent New York Times Magazine article entitled, “To Catch a Rapist”, highlighted the many adversities even well-organized special victims units face, as well as the glaring failures of others. Special victims units themselves are often critically low on resources, both in terms of budgets and personnel. It’s not at all uncommon for these necessary units to be pillaged in the face of political and community pressure to combat what can be termed as “more visible” crimes such as narcotics and gang activity. In many jurisdictions, there’s an overwhelming backlog of rape kits that go untested. Worse yet, in some units managerial oversight is virtually non-existent, which allows for the inconsistent exercise of officer discretion when proceeding with an investigation. Even the criminal terminology used from jurisdiction to jurisdiction varies greatly, creating an often confusing, and perhaps intimidating, legal environment.
Moreover, rape is commonly identified as amongst the most difficult crimes to effectively investigate and prosecute. Delayed reporting is not uncommon, and many hospitals impose a 72 to 120-hour window for conducting a forensic medical exam, all of which can yield little in the way of physical evidence. As such, it takes extensive training, experience, resources, commitment, and creativity to reliably and successfully investigate reported rapes. Unfortunately, such attributes have proven difficult for many municipalities to adequately assemble, which has led to the establishment of a less than coherent nationwide system, that despite many individuals’ best efforts, has statistically proven incapable of effectively combating rape.
So we as Americans must ask ourselves whether or not there’s a better way to proactively address this issue. The affirmative answer to that question rests in fully utilizing existing government assets, those already poised to comprehensively tackle the criminal justice-related elements of rape. The answer lies in placing rape within the jurisdiction of the federal government.
The pathway to transferring the investigation and prosecution of rape and attempted rape lies in designating rape as a hate crime. While there are multiple dueling theories as to the sociological, psychological, and even biological motivations of rape, the very physiological and methodical nature of the crime, represented by startling statistical disparities between gender-categorized victim populations (with current data indicating approximately 90 percent of adult rape victims are female), suggests that rape is a gender-based crime. To that end, existing federal law designates that any crime which causes or attempts to cause bodily harm to an individual(s) “because of the actual or perceived…gender, sexual orientation, or gender identity” constitutes the commission of a hate crime, which falls squarely within the jurisdiction of the federal government.
Such a reclassification would allow completed and attempted rapes to be investigated by the FBI, prosecuted by United States Attorneys, with trials held in federal courts. This organizational realignment would require budgetary and personnel expansions for the aforementioned federal institutions and their support organizations in order to support the increased caseload. For example the FBI, which would investigate reported rapes, would have to establish a sex crimes division, and increase its total personnel to fully staff and support such an entity throughout its 56 field offices and a contingent of its some 400 resident agencies when deemed necessary based on geographic realities. The 93 U.S. Attorneys Offices, which would prosecute rape cases, would require the acquisition of additional Assistant U.S. Attorneys. The federal judiciary itself would likely require an expansion of judges and support staff, which would include a possible increase of the U.S. Marshals Service, which serves all federal arrest warrants.
While this may seem ambitious, it allows survivors of completed or attempted rapes to utilize current emergency notification procedures, contacting 911 personnel who would dispatch local law enforcement for the immediate provision of assistance. However, from that point local law enforcement would be statutorily required to immediately contact the local FBI office, which would then dispatch special agents from the sex crimes division to the scene to take custody of the investigation (including handling victim interviews), utilizing local law enforcement assistance as necessary. The FBI would then refer the case to the appropriate U.S. Attorney’s Office for prosecution, upon receiving a grand jury indictment, the case would proceed to trial before a federal judge in the appropriate U.S. District Court.
Such a proposed system allows for the allocation of specialized federal investigative and prosecutorial resources possessing nationwide reach, increases the reliability and thoroughness of the rape-specific criminal justice process, thereby increasing public confidence in said system, perhaps even reducing victims’ fears of retaliation. The utilization of federal courts, with appointed judges, to hear rape cases may decrease the incidence of judicial bias that is often perceived to occur within elected local and state judiciaries. This system would allow the FBI to use its own advanced forensics resources to completely and efficiently analyze physical evidence, which would also reduce the possibility of chain of custody errors and oversights. In short, harnessing such a system for investigating and trying completed and attempted rape cases may very well increase both victim reporting rates and perpetrator incarceration rates, while also reducing false rape reports as well.
While the solution offered in this article focuses solely on a policy prescription that involves the American criminal justice system, it’s a concrete step in doubling our efforts to eradicate a crime so wicked that the International Criminal Court in The Hague classified it as a crime against humanity. Immediate action must be taken to counter a plague that has produced statistics which indicate that 1-in-6 women and 1-in-33 men have been the victim of a completed or attempted rape. Quite simply, it’s time to launch a dedicated systematic effort to eliminate a scourge that, either directly or indirectly, impacts all of us. To do so, it seems imperative that we harness the existing federal law enforcement and legal apparatus capable of providing a continuity and equality of criminal justice operations, a system every American can readily access.