Martha McSally was the first woman to fly combat missions for the United States Air Force after the prohibition on female combat pilots was lifted in 1991. She later sued the United States Department of Defense, challenging a policy that required servicewomen in Saudi Arabia to wear abaya (full-body coverings) when traveling off-base. In 2014, she was elected to the House of Representatives and is a currently a United States senator from Arizona.
Martha McSally is a powerful woman.
But when a superior Air Force officer raped her, “I was ashamed and confused. I thought I was strong but felt powerless,” McSally said. She blamed herself. And she chose not to report the assault.
The feelings McSally describes are common among victims of sexual violence. McSally is not alone in her decision not to report her victimization. In 2016, only about 23 percent of rapes were reported to law enforcement.
In my 25 years of representing survivors of gender-based violence as an attorney, I have met hundreds of women like McSally. The shame and powerlessness that these women feel are a direct result of antiquated notions about rape and sexual assault that were, until recently, embedded in the legal system.
Those ideas continue to affect how police, prosecutors and judges see victims of violence and how victims see themselves.
Reforming the law was a priority for the anti-rape movement of the 1970s and 80s.
The rape law of the time both implicitly and explicitly challenged the credibility of complainants. Many states gave jurors a cautionary jury instruction derived from 17th-century English jurist Sir Matthew Hale’s observation that rape “is an accusation easily to be made and hard to be proved.”
Prior to the rape law reform of the 1970s and 80s, the law in most states required rapes to be promptly reported. The failure to make a prompt report suggested that the event was fabricated.
Rape law in many jurisdictions precluded prosecution without corroboration of the victim’s testimony; a rape victim, on her own, could not be a credible witness. Many state laws also required that rape victims fight back against their attackers – resisting “to the utmost,” according to the law.
And defendants could introduce evidence about the accuser’s sexual history to undermine the claim that the sex was not consensual.
These laws have, for the most part, been repealed. But the skepticism of rape claims and rape victims underlying these laws continues to shape how the legal system responds to rape and sexual assault.
Official reports detail just how poorly many police departments and prosecutors understand and deal with rape.
A 2011 United States Department of Justice report describes how police in New Orleans, for example, asked a victim of sexual assault “if she screamed or resisted the perpetrator.” When she said she had not, the detective asked why not, and commented that “the victim ‘seemed very calm and unrattled.’” The implication, of course, is that a true victim would scream and fight; a calm and unrattled victim is not a credible victim.
In a 2016 report, a U.S. Department of Justice investigation of the Baltimore Police Department documents detectives’ skepticism of victims who delayed reporting and detectives’ suggestions that victims had done something to trigger assaults. Police and prosecutors openly ridiculed victims who they did not believe.
In one exchange, a prosecutor wrote, “[T]his case is crazy. … I am not excited about charging it. This victim seems like a conniving little whore. (pardon my language)”; the officer responded, “Lmao! I feel the same.”