1 Running head: BLAMING CHILDREN 1 BLAMING CHILDREN Blaming Children: How Rape

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Running head: BLAMING CHILDREN

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BLAMING CHILDREN

Blaming Children: How Rape Myths Manifest in Defense Attorneys’ Questions to Children Testifying about Child Sexual Abuse

Suzanne St. George, Emily Denne, Stacia N. Stolzenberg

Arizona State University

Assignment 4 for CRJ 302

Blaming Children: How Rape Myths Manifest in Defense Attorneys’ Questions to Children Testifying about Child Sexual Abuse

Since the 1980s, feminist scholars have asserted that rape myths hinder the successful adjudication of sexual assault cases (Burt, 1980; Estrich, 1987). Rape myths are “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women” (Lonsway & Fitzgerald, 1994, p.134). In the laboratory, researchers find a robust causal relationship between rape myths and negative attitudes toward hypothetical rape victims and positive attitudes toward hypothetical rape perpetrators (Suarez & Gadalla, 2010). There is also evidence that these attitudes influence police and prosecutors’ case decisions, as well as juries’ assessments of guilt (Dinos et al., 2015; Sleath & Bull, 2017; St. George & Spohn, 2018). Rape myths, therefore, influence how the criminal justice system responds to sexual assault reports and which cases receive justice.

Most studies on the relationship between rape myths and rape perceptions examine incidents involving adults. Some studies, however, show that respondents’ perceptions of child victims’ credibility and responsibility are influenced by rape myth factors, such as victim resistance and relationship to the perpetrator (Davies et al., 2013; Davies & Rogers, 2009; Rogers et al., 2010). Furthermore, myths about sexual violence among adults overlap substantially with misconceptions about child sexual abuse (CSA), and there is evidence that CSA misconceptions promote negative attitudes toward child victims in the same way that rape myths influence attitudes toward adult victims (Cromer & Goldsmith, 2010). What remains unclear, however, is to what extent criminal justice actors consider rape myths in their responses to CSA cases. Specifically, we wonder how rape myths may manifest in CSA trials.

As evidence suggests that rape myths influence how people perceive victims of sexual offenses even when victims are children, defense attorneys at CSA trials may be motivated to draw on rape myths to highlight children’s responsibility for the abuse or undermine children’s credibility. The purpose of the current proposal is to assess the following question: how do rape myths manifest in defense attorneys’ cross-examinations of children testifying about alleged CSA? In doing so, it will be important to determine how frequently rape myths appear in their questioning, and what these questions looked like. This investigation can contribute to an understanding of how rape myths may influence criminal justice responses to CSA.

Rape Myths and Child Sexual Abuse

Rape myths are widely shared “prejudicial, stereotyped or false beliefs about rape, rape victims, and rapists” whose cultural function is to deny or justify (male-perpetrated) violence against women (Burt, 1980, p. 217). Some myths deny the harm of rape (Lonsway & Fitzgerald, 1994). The “rape as fantasy” myth suggests that women, who are culturally prescribed to be passive, welcome sexual aggression because it is a means to sexual fulfilment (Edwards et al., 2011; Payne et al., 1999). Other myths blame victims for rape. The victim precipitation myth suggests that women provoke rape by wearing revealing clothing or acting provocatively (e.g., flirting), or that women can avoid rape by not engaging in behavior perceived as risky, like drinking, hitchhiking, or spending time alone with men (Edwards et al., 2011). According to rape mythology, risky and provocative behaviors that violate traditional feminine gender roles indicate sexual interest or intent (Edwards et al., 2011). Accordingly, “rape as fantasy” and victim precipitation myths frame rape as consensual or accidental. These incidents are distinguished from “real rape,” which involves strangers, no risky behavior, force, and physical resistance (Estrich, 1987). Finally, some myths deny the prevalence of rape by suggesting that false reports are common, or that women are untrustworthy. The “women cry rape” myth suggests that women often lie about being raped to cover up consensual but regrettable sexual activity, or for revenge against a dismissive lover (Payne et al., 1999). Similarly, the victim credibility myth suggests that women with “questionable moral character”—women who engaged in sex work, criminal activity, or drug use, as well as women with mental illness—are inherently untrustworthy or not credible. These myths suggest that reports of rape are often false and warrant suspicion (Lonsway & Fitzgerald, 1994; Payne et al., 1999; Edwards et al., 2011).

The rape myths described above center female victims who are sexually mature, physically strong enough to resist, capable of deceit, and legally able to consent—qualities distinct from children alleging CSA. Misconceptions about CSA, however, overlap with rape myths (Cromer & Goldsmith, 2010). For example, in both CSA and adult sex offenses, victims usually know the perpetrator, perpetrators use minimal or no force, and victims rarely physically resist or sustain severe injury (Basile & Smith, 2011; Giroux et al., 2018; Lawyer et al., 2010; Stolzenberg & Lyon, 2014a). Such dynamics contradict common beliefs that CSA is committed by strangers, perpetrators use threats and force, and children resist (Calvert & Munsie-Benson, 1999; Cromer & Goldsmith, 2010; Quas et al., 2005).

Unlike adult sexual violence, however, allegations of CSA often draw additional suspicion due to developmental considerations. Concern often surrounds children’s developmental susceptibility to suggestion (Lyon & Stolzenberg, 2015), yet researchers suggest that children’s allegations of CSA elicit more skepticism than is warranted (Everson & Boat, 1989). Although studies have revealed that false reports of CSA are rare (e.g., under 5%; Oates et al., 2000; Trocmé et al., 2003), concerns about coached allegations permeate media, legal, and scholarly discourse on CSA (Cromer & Goldsmith, 2010). The role of (fabricated) CSA allegations in child custody disputes, for example, has received frequent attention (Brown et al., 2001; Thoennes & Tjaden, 1990; Trocmé & Bala, 2005). Importantly, suspicion of CSA allegations may have the same function as the “women cry rape” myth, including exaggerated estimates of false reports (Everson et al., 1996) and hindering disclosure (Morrison et al., 2018).

Jury Perceptions in CSA Cases

Misconceptions about CSA are complicated by evidence that jurors often attribute adult characteristics and capacities to child victims, such as the ability to consent. Often, delayed reporting and the time it takes to process cases result in victims testifying about CSA many years after the abuse occurred (Connolly et al., 2015). Victims, therefore, may appear more physically and cognitively mature than they were during abuse and initial reports. This is problematic, as researchers find that current age informs jurors’ assessments of victims’ credibility more than age during alleged abuse (Connolly et al., 2010). Also, in many CSA cases, abuse progresses slowly as perpetrators groom their victims (Craven et al., 2006; Kaufman et al., 1998; McAlinden, 2006). Children may spend time alone, discuss sex, or watch pornography with perpetrators before penetrative acts occur – behaviors that in adult cases would be defined as risky, provocative, or indicative of consent.

Importantly, there is evidence that jurors often misunderstand children’s acquiescence to grooming behaviors and persistent contact with perpetrators after abuse initiates. For example, in their qualitative analysis of the questions jurors asked children testifying about alleged CSA in real trials, St. George and colleagues (2020) found that jurors commonly asked about (lack of) resistance and force. Their questions also revealed suspicion of allegations by children who delayed reporting or did not try to avoid the defendant once abuse began. The authors concluded that jurors were confused by the dynamics of abuse and disclosure. This confusion may contribute to assessments of victims’ credibility and defendants’ guilt in CSA trials. Stolzenberg and Lyon (2014b) found that jurors were less likely to acquit when the defendant was charged with force, but they were more likely to acquit when the child maintained contact with the defendant after the abuse occurred. As such, in cases involving repeated abuse by a known perpetrator and delayed reporting, jurors may misunderstand descriptions of grooming or lack of resistance as consent, particularly when victims present as mature.

Rape Myths and Attorneys’ Case Strategies

Based on the literature described above, it is plausible that defense attorneys would draw on rape myths to undermine victims’ credibility, even when victims are children. Given the conceptual overlap between rape myths and CSA misconceptions, as well as evidence that jurors misunderstand children’s maturity, ability to consent, and abuse dynamics, defense attorneys may use rape myths strategically in their questioning of children testifying about CSA at trial. For example, attorneys may ask about the victim’s lack of resistance or precipitative behavior to shift responsibility to the victim, or to imply the acts were consensual. Or they may highlight motives to lie, like custody disputes, to suggest the allegations were false or coached.

There is some evidence that attorneys employ rape myths strategically in cross-examinations of alleged sexual assault victims, though questions remain. In one study, Temkin and colleagues (2016) analyzed observation notes from eight rape trials conducted in the United Kingdom. They found that defense attorneys commonly used myths to portray alleged incidents as not “real rape;” to portray victims as morally flawed or not credible; and to interpret the evidence in ways that minimized harm or suggested consent. However, Temkin and colleagues (2016) examined trials of adult rape, so it remains unclear how rape myths associated with victim precipitation and victim credibility manifest in trials involving CSA.

In another study, Davies and colleagues (1997) assessed defense attorneys’ “case theories” in 26 CSA trials conducted in New Zealand. They found that attorneys highlighted ulterior motives for alleging CSA in 17 of the 26 examinations analyzed; they highlighted a lack of resistance in seven. However, the authors’ goal was to examine attorney strategies more broadly, without attending specifically to their use of rape myths (Davies et al., 1997). Similarly, although Powell and colleagues’ (2017) analysis of 18 jury trials of alleged CSA in the United States revealed prosecutors and defense attorneys alike drew on rape myths to construct narratives of children’s credibility, they described narrative themes across the trial as a whole. It remains unclear, therefore, how frequently attorneys ask about rape myths in their cross-examinations, which myths are most commonly referenced, and what questions referencing rape myths look like when alleged victims are children.

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