On a tense Friday last August, two teenagers shed tears in a Concord, New Hampshire courthouse. One was Owen Labrie, a 19-year-old graduate of St. Paul’s School. He had just escaped conviction under a felony rape charge. The second was his accuser, a girl of only 15. The jury decided that her attorneys had not proven that she was sexually assaulted beyond a reasonable doubt. Labrie walked away with penalties addressing the minor status of the accuser and none addressing nonconsensual sexual activity.
Labrie was considered innocent until proven guilty. This notion is at the core of the American justice system and for good reason. Our society finds a wrongful conviction so detestable that the improper freeing of criminals is preferable. Still, it is important to pay close attention to crimes like sexual assaults that are left largely unprosecutable in this system. With no easy solution to this problem, emphasis must be placed on survivor support mechanisms that don’t remove the rights of the accused.
It can be incredibly difficult to be sure an event happened when one did not actually witness it. So, juries must rely on physical evidence — security camera footage, DNA testing, and fingerprint analyses — as well as continuities in the stories of multiple witnesses. But sexual assault and abuse is highly unlikely to occur in public, so witnesses will not exist. In the case of Owen Labrie, the alleged rape occurred on the roof of a campus building, outside the view of others. This leaves survivors with very little possibility of evidentiary proof.
“Rape kits,” or sexual assault forensic exams, are one tool to salvage some evidentiary poof for victims. The kits are used to collect evidence of a perpetrator’s DNA on a survivor’s body, clothes, or other belongings. They can be performed by many healthcare professionals. Unfortunately, due to daily activities like bathing, washing clothing, and using the restroom, this evidence is only viable for an average of 72 hours. This leaves a survivor who may be traumatized or confused and may not have considered a criminal trial yet only three days to essentially reserve his or her right to prove that sexual contact occurred. One study showed that cases were significantly more likely to progress to a possible conviction when a rape kit was used.
Assuming that a survivor does have a sexual assault forensic exam taken, there is still no guarantee that it will be tested. A recent report found that over 70,000 rape kits have gone untested in the United States, becoming part of what is being referred to as the “backlog.” Because testing is not mandated by law, it is left to the sole discretion of the police force. Unfortunately, these tests are expensive ranging from $1,000 to $1,500 on average. For police departments with limited resources, these costly tests are often not a priority, as many cases never go to trial. This is a problem not only for survivors but also for the accused. While DNA evidence may help a survivor through the conviction of her rapist, it can also exonerate the wrongly accused in cases of assaults by strangers. The Innocence Project, a litigation group that works to exonerate the innocent with DNA evidence, has documented 334 cases of DNA leading to the release of a person convicted of a sex crime from prison. Since the discovery of a backlog, many cities have worked to eliminate it. Notably, Houston has analyzed 6,600 of its own backlogged kits, which have led to 850 DNA matches, 29 prosecutions, and six convictions.
As shown by these statistics, physical evidence is oftentimes not enough for a conviction. This is because rape kits can only conclude that sexual activity occurred, not that it was necessarily assault – unless there are clear signs of battery. A conviction of sexual assault requires a prosecutor to prove not only that the sexual activity occurred but also that it was unwanted. For example, Labrie’s accuser had a physical examination done the day after the event revealing the boy’s DNA on her underwear and abrasions consistent with penetration. Clearly, this evidence did not lead to a rape conviction. Proof that such activity was unwanted cannot be found in DNA, but must factor in mindset, body movement, and dialogue, all of which can only be testified to by the accuser and the accused.
Looking at the bleak prognosis for a sexual assault survivor lacking evidence, it is unsurprising that 68 percent of survivors never report the incident to the police. Further complicating the issue are relationships between survivors and the accused. It is estimated that up to 90 percent of college-aged survivors knew their rapist personally. In these cases, a rape kit might have less weight, as the sexual activity may be seen as consensual by a jury. This is supported by Jon R. Zug, a domestic violence attorney of Charlottesville, Virginia, who admits, “I’ve never won an acquaintance rape jury trial.” In light of this anecdote, the acquittal of Owen Labrie is unsurprising, as the two teens did know each other before the date in question.
Jury bias can also influence the outcome of these already complex cases. Zug noted that older women tended to side with the accused. It seems these adults tend to scrutinize young women harshly, paying particular attention to alcohol consumption. Still, there is no provision in US law that excuses rapists when a victim is intoxicated. It is unsurprising that 98 percent of accused rapists will never see a jail cell. Of course, this doesn’t mean that 98 percent of accusers are lying, or that those 98 percent were acquitted unfairly. But there seems to be something questionable with so many of these claims being dismissed as lies, indicating a much more problematic issue with how the justice system deals with such cases.
Still, Owen Labrie’s sentencing hints at a desire of the jury to punish the accused despite the lack of proof beyond a reasonable doubt. While most charges he faces, due to the age of his accuser, are misdemeanors, the jury did charge him with one felony. This charge was using a computer to lure a minor, since plans between the two were made using Facebook. His attorney pointed out the charge’s deviation from its clear intention: to prevent adults from luring children by disguising their identity over the internet. The jury used a law atypically in a manner similar to jury nullification – it is a choice made based more on morality than strict legality. Notably, the jury included nine men and only three women, unsurprising in light of Zug’s experience with jurors. The jury’s decision points to frustration with the criminal justice system as it stands, as they gave Labrie the only punishment possible without more imperial evidence, regardless of if it truly fit the case.
So what can a nation do with crimes where there simply is no evidence? Lowering the burden of proof in such delicate cases could be disastrous. While many college campuses use a lower standard of preponderance of the evidence — it’s more likely than not that the sexual assault occurred — they are private institutions that can only deprive the accused the privilege of a private education, not the right to liberty that this nation holds dear. Thus, there are only two things that really can be done. The first is to encourage the use and testing of rape kits. The more women that are aware of the service, the more likely they will be to seek it if necessary. And recent events in multiple cities have shown that the clearing of backlogs of untested kits can lead to the conviction of multiple rapists.
Second, support must be given to accusers without taking away the rights of the accused. Though a report is not enough to treat someone like a rapist, it is enough to treat someone like a rape survivor. Groups like the Rape Abuse and Incest National Network receive federal funds to disseminate information on support services for survivors. This non-profit work may be the best a country can do while sexual assault remains such a pervasive problem in our society, keeping the interests of all parties in mind. It is important that professionals conducting these rape-kit tests give survivors information on what their options are and what support services are available in their community (be that therapy, support groups, or legal services). Current national standards for training of Sexual Assault Medical Forensic Examiners briefly mention that a patient’s options should be explained to them, but don’t require that specific support services be offered.
Still, the trial system itself can heavily deter survivors from reporting. Labrie’s accuser noted feeling traumatized by the trial, especially the harsh cross-examination by Labrie’s attorney. She said she now understood why so few victims come forward. The Sixth Amendment right to face your accuser can force survivors to relive traumatic experiences as their assailant sits in the same room. Cross examinations can be incredibly emotionally trying, especially when they directly attack character. When Labrie’s accuser stated that she tries not to lie often, Labrie’s attorney retorted, “I guess you’re unsuccessful.” The girl broke down in tears multiple times. In order to encourage the report of such serious crimes, the court system could benefit from measures that have been taken by universities to ensure the two parties never have to be in the same room, using telephones if necessary. Of course, cross examinations will still be necessary, but judges can work to limit attorneys strictly to relevant, non-argumentative lines of questioning. In a system that presents severe difficulties to everyone involved, careful support for all parties while minding due-process is the best remedy available.