The Nebraska Supreme Court has ruled that a woman can be sent to jail for refusing to testify against a man she has accused of sexual assault. The ruling stems from a case where a woman claimed a 63-year-old Nebraska man sexually assaulted her between August 1992 and August 1994 when she was approximately 7 years old.
In April 2011, a lower level judge ordered the woman to testify or face 90 days in jail. The judge said the case hinged on her testimony, which outweighed any shame she might feel.
The Nebraska Supreme Court affirmed the lower court's decision last Friday but suggested that jailing the woman might not be the most prudent approach to address her reluctance to take the stand.
Victims' groups, such as the Rape, Abuse & Incest National Network (RAINN), said that forcing the woman to testify would make the criminal justice system even less attractive to rape victims who are already reluctant to report their assaults.
COTWA doesn't think this issue is as clear-cut as RAINN suggests. According to news reports, which may or may not be true, after the woman reported the alleged sexual assaults to the police, Nebraska State Patrol officers recorded a phone conversation between the woman and the man she accused where he admitted touching her inappropriately.
Everyone should be deeply disturbed that someone who might have sexually abused a little girl over the course of two years will not face justice, and might be free to sexually abuse other little girls, solely because the complainant finds her victimization shameful.
Society has adopted all manner of measures to lessen the ordeal of reporting rape. At every opportunity, society must strongly convey the message that there is nothing shameful about being a victim of rape. But when we invent special rules to excuse rape accusers from testifying due to the shame they might feel, we send exactly the opposite, and, COTWA thinks, the wrong message: we reinforce the regrettable notion that rape is a shameful crime, so shameful, in fact, that rape cannot be treated the way other crimes are treated.
Celebrated feminist Naomi Wolf has lobbied to ditch the anonymity afforded rape accusers, and her rationale seems equally apt to this situation: "Treating rape so differently serves only to maintain its mischaracterization as a 'different' kind of crime, loaded with cultural baggage and projections."
What evidence is there to support the conclusion that rape accusers are less willing to report their rapes if they know they might be prosecuted for later changing their minds about testifying? And if there is evidence to support this view, should that outweigh the interest of potentially saving innocent girls from being raped by a man who apparently admitted his misdeeds?
The community of the wrongly accused has its own important interest in this issue: it is almost impossible to undo the stigma of a rape claim once an allegation is made. The wrongly accused do not benefit from cases where rape charges are dropped solely because the alleged victim is ashamed. When society perceives that rapists escape justice, that perception only taints the community of the wrongly accused and makes the stigma of a rape accusation all the more difficult to remove.
If a woman decides not to testify because her claim is a lie, she should be prosecuted for making a false police report. If a woman decides not to testify because she is ashamed of her victimization, she exposes other innocent victims to her ordeal; she sets an unfortunate example for other rape victims who might follow her lead; and she taints the community of the wrongly accused. Whether she should be jailed for that refusal to testify is a very difficult issue, something that needs to be decided on a case-by-case basis.
While we don't think the issue is nearly as clear-cut as RAINN seems to think, we claim no monopoly on the truth, and we suggest that it would be healthy to air all sides of this issue.