Rape Victims Are A Class Of Persons Often Defined By Gender Medical Whistleblower J P

RAPE VICTIMS ARE A CLASS OF PERSONS
OFTEN DEFINED BY GENDER:
Compiled by Dr. Janet Louise Parker

Rape Victims are Class of Persons often defined by Gender

“I discovered long ago that among the most effective advocates
I have seen are the survivors, those who have channeled
their pain and anger into activism to achieve lasting reforms.”
Attorney General, Janet Reno,
August 15, 1996

Every two minutes, somewhere in America, someone is sexually
assaulted.1 2
One out of every six American women has been the victim of an
attempted or completed rape in her lifetime. 3 Only one in 50 women who have
been raped reports the crime to the police.4

Although both women and men may be victims of domestic violence, sexual
assault, and stalking, women are the victims of the vast majority of these crimes.
According to the Bureau of Justice Statistics, more than 85% of violent
victimizations by intimate partners between 1993 and 1998 were perpetrated
against women. Women are between 13 and 14 times more likely than men to be
raped or sexually assaulted; for instance, in 1994, 93% of sexual assaults were
perpetrated against women. Four of five stalking victims are women. Data on
male victimization do not show that males experience comparable victimizations
and injury levels, do not account for women who act in self defense, and do not
measure financial control, intimidation, and isolation used by perpetrators of
domestic violence against women.

The gender issue is foremost in sexual assault issues, and is usually background
in general victimization. The unique cultural bias and shaming that accompanies
rape cases needs its own focused opposition. The history of rape law is a history
of the law used as a tool to protect rapists, rather than the raped. The anti-rape
movement confronts, as it must, the cultural myths that uniquely exist in the
context of rape. Manipulation of these myths, along with humiliation and victim
blaming, are typical informal defenses to rape charges. Blaming victims in rape

Rape Victims‘ Privacy Rights
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cases may be an effective means to secure acquittal. In contrast, blaming a
robbery victim is typically ineffective because robbery is unaccompanied by the
same pernicious cultural myths. The nature of stigma and abuse in rape cases is
profound and unique, a criminal process that mistreats and excludes other types
of victims also inflicts secondary victimization.

In 2002, there were 247,730 victims of rape, attempted rape or sexual assault.5
One out of every six American women have been the victims of an attempted or
completed rape in their lifetime (14.8% completed rape; 2.8% attempted rape). A
total of 17.7 million women have been victims of these crimes.6 In 2002, one in
every eight rape victims were male.7 93% of juvenile sexual assault victims knew
their attacker; 34.2% were family members and 58.7% acquaintances. Only
seven percent of the perpetrators were strangers to the victim.8

One of the most startling aspects of sex crimes is how many go unreported. The
most common reasons given by victims for not reporting these crimes are the
belief that it is a private or personal matter and that they fear reprisal from the
assailant.

In 2001, only 39% of rapes and sexual assaults were reported to law
enforcement officials — about one in every three.9 [1999 NCVS]
Approximately 66% of rape victims know their assailant.10
Approximately 48% of victims are raped by a friend or acquaintance; 30%
by a stranger; 16% by an intimate; 2% by another relative; and in 4% of
cases the relationship is unknown.11
About four out of ten sexual assaults take place at the victim‘s own home.
More than half of all rape/sexual assault incidents were reported by
victims to have occurred within one mile of their home or at their home.12
In one study, 98% of males who raped boys reported that they were
heterosexual.13

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Rapists are more likely to be serial criminals than serial rapists. In one
study, 46% of rapists who were released from prison were rearrested
within 3 years of their release for another crime -- 18.6% for a violent
offense, 14.8% for a property offense, 11.2% for a drug offense and
20.5% for a public-order offense. 14
61% of rapes/sexual assaults are not reported to the police. Those rapists,
of course, never serve a day in prison.15

So, even in the 39% of attacks that are reported to police, there is only a 16.3%
chance the rapist will end up in prison. Factoring in unreported rapes, about 6%
of rapists—1 out of 16— will ever spend a day in jail. 15 out of 16 will walk free.16

Rapist are predators. Just like animal predators, they seek out the weakest
and/or most vulnerable prey. Rape is not about sex, it is an act of brutal violence.
Rape causes pain and suffering in the victim that may last a lifetime. It eats away
at the soul and destroys the quality of life. FBI estimates indicate that only 10
percent of rapes are reported. Of those reported, in less than 25 percent are the
rapists arrested. Of those arrested, only about 3 percent are charged. Of those
charged, no more than 35 percent are convicted. In other words, most rapists are
not caught.17 According to The National Coalition Against Sexual Assault false
rape reports only happen 2% of the time. That's a 98% chance that no matter
how strange it sounds to you the rape isn't being fabricated. Delayed reports also
are common, particularly in acquaintance rapes. The majority of mental health
professionals surveyed (84 %) agreed that contact with social service providers
re-traumatizes rape victims. 18

Some reasons why women do not report rape seem are the fear of:

1) Ridicule
2) Personal questions asked by police investigators
3) Humiliating medical examinations

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4) Publicity
5) Testifying in court
6) Fear that sexual past will come out in court
7) The victim has the burden to prove that the attack was forced, against her
will, and that she resisted the attack.
8) Justice system's inability to put the criminal away
9) Retaliation from assailant or his friends

These are real concerns that must be overcome before rapists may be brought to
justice. Rape statistics show that Rapists are on an ascending scale of violence
with each assault. More than 50% of all rapes occur in the home of the victim.
More than 93% of the time, the assailant and the victim are of the same race.

The mass media represents males in superior social and physical positions and
women as helpless and vulnerable. For example, in films, women are often
depicted not only as vulnerable victims, but as victims who, once raped,
degraded and dehumanized, come to accept this treatment and grow to love their
attackers.

Myths have a manifest purpose of legitimizing aberrant behavior, such as rape.
Studies have shown that women as well as men believe in many rape myths and
are aroused by rape depictions. For example, some men believe that women will
respond to sexual force even if they initially refuse sexual advances.‖

“All sexual assault is an act of aggression, regardless of the
gender or age of the victim or the assailant. Neither sexual desire
nor sexual deprivation is the primary motivating force behind
sexual assault. It is not about sexual gratification, but rather a
sexual aggressor using somebody else as a means of expressing
their own power and control”

Nicholas Groth, a clinical psychologist

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Another myth is that women can resist rape of the really want to. First of all, men
have been raised differently than women. They have been trained to be physical
and are usually stronger and faster than women. Likewise, women have been
traditionally raised to be passive, weaker, and submissive to men. Such
socialization enhances the possibility of a successful rape. In addition, the rapist
chooses the time and place for the crime, usually when the woman is in a
vulnerable situation.

Many people believe the myth that rapes are committed by strangers; however,
in fact, prior relationships are usually present in rape cases. About half of rapes
of adult women were committed by men who know their victims and data show
this may be as high as 80%.

Another myth is that women falsely cry rape. No doubt this has occurred, but it is
rare. Data shows that is more likely that women will not report a rape that
occurred. Statistics show that only 16% sought medical treatment and 40% of
rape victims were examined more than 24 hours after the rape. Of these rape
victims only 2/3rds told doctor they had been raped19

Delayed reporting to hospitals and/or police is much more likely in nonstranger
rape than stranger rape20 In the ―Victim Reporting Study‖ - Beth Israel Hospital
Rape Crisis Intervention Program in which 1000 rape victims were interviewed.
The statistics showed that in Stranger rape 90% of rape victims reported in less
than 24 hours. In nonstranger rape 90% reported after 1 week or more. So
reporting by victims of nonstranger rape is more delayed than reporting by
victims of stranger rape. 21

All women want to be raped is a myth that has been romanticized in the media.
Romance novels after start with a sexual attack where the women "melts into
passionate acceptance." While it is true that some women have rape fantasies,
these fantasies usually do not center on force or pain but on being "swept off

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one's feet" by a handsome stranger into a sexual liaison that one would not
ordinarily entertain.

It can't happen to me is delusional belief that many women hold. Accepting the
myth that rape victims are always young and attractive, leads many women to
believe they are unlikely victims since they are not desirable. Remember rape is
not a crime of sex; it is a crime of violence. Sexual attractiveness is not a trait
considered by rapists when they are stalking victims.

Becoming the victim of a crime leaves victims – and those around them – in a
state where they are not thinking as clearly as they usually do, and they may feel
overwhelmed. There is often financial loss and physical injury connected with
victimization, but the most devastating part for many victims is the emotional pain
caused by crime. It is difficult for many victims to understand that someone else
wanted to hurt them. The experience of becoming a crime victim can shatter a
person‘s life in a variety of ways.

Becoming the victim of a crime is a major life stress. The victim may feel very
uncomfortable (in a state of "crisis"). It may be difficult for her to easily restore a
sense of balance in life. She may not be able to think clearly about what has
happened, and her feelings about the crime may be very strong. It can take a
long time and a lot of work to get back to the point where she feels comfortable
again. Often rape victims are not be as trusting of other people, as before or
may be afraid to do the things she normally does, or go to the places she
normally goes. Victims may experience shock, disbelief, and/or denial. Many
victims will find it difficult to believe (or know) that they became the victim of a
crime, or they may pretend that it did not happen at all. This may last for only a
few moments or it may go on for months — even years. Victims often assume a
more "childlike" state, and may need to be taken care of by others, at least for a
little while. In drug-facilitated rapes, the additional deprivation of cognition during

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the assault, combined with anterograde amnesia afterwards, subjects the victim
to an extreme form of powerlessness which is profoundly traumatic.22

Crisis intervention and supportive counseling help victims move toward a new
balance more effectively, but it is not an easy process. It is very important that
the rape victim feel supported emotionally during this period.

A sexual assault can involve physical injuries or damage to the victim‘s body.
Some of these injuries are visible and some are not. It may not be possible to
see the physical injuries caused by a sexual assault or injuries that are covered
by clothing or an injury that happens inside the brain. Do not assume that a
person is not injured simply because the injury is not visible. As a result of the
crime, some victims may experience health-related problems such as
headaches, stomach aches, etc. A person who already has a disability may find
that the disability becomes more severe after the crime. Even when the physical
wounds caused by crime have healed, the victim may continue to experience
pain or discomfort for a period of time.

Unequal Treatment Based on Class "THE SECOND RAPE"

The disregard of victims' needs by providers can so closely mimic victims'
experiences at the hands of their assailants that secondary victimization is
23
sometimes called "the second rape" or "the second assault."
Because most victims of drug-facilitated rapes have no memory of the sexual
assault, people may mistakenly minimize the trauma. Victims feel,
powerlessness, and humiliated by not knowing what was done to them. 24

People may disbelieve the rape victim, ridicule her, abandon, blame, ostracize,
sabotage, threaten, betray her, or side with the rapist against her. These painful
and dangerous reactions can come from family, friends, and authorities as well
as from people associated with the rapist. Many people fault the rape victim for
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what she may have done before, during, or after. The most important thing for a
counselor/friend to do is believe the person when they tell you that they believe
they were drugged and raped.

Because most victims of drug-facilitated rapes have no memory of the sexual
assault, people may mistakenly minimize the trauma. Victims feel
powerlessness, and humiliated by not knowing what was done to them. 25
It fact, it's particularly devastating to rape victims when you're treated badly by
the very people you expected would help you. For many victims, witnesses and
their family members, the emotional injuries may be the most difficult and long-
lasting effects of being the victim of a crime. Many victims say the betrayal of
these experiences is so painful that it was worse than the rape itself. That's why,
in the literature on rape, this all too common abusive treatment of rape victims
has been given the name, "the second rape".

Social injuries are those caused by society.26 A social injury occurs when the
victim is treated insensitively, does not think anyone cares or is not able to get
the help she needs. Anyone can cause a social injury: a friend or family member,
a law enforcement officer, a prosecutor, a member of the clergy, or a counselor
or other service provider, who may not believe the victim who reports a crime,
may not help the victim, or may not treat the victim with dignity, compassion and
respect. If a victim is treated with dignity, compassion and respect, she may have
less difficulty dealing with these immediate and long-term crisis reactions. If she
is treated poorly, these reactions may be made worse. When such reactions are
worsened, the actions of others are called the "social injury." Some examples of
social injuries are as follows:

The law enforcement officer or a family member may not believe the victim
when she tries to report a crime. There is a tendency of the police to view

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complaints of rape as unfounded if they believe that the victim was
intoxicated at the time (Lopez, 1992). 27, 28, 29
For a crime victim with a disability, in particular, the social injury may
occur when the victim realizes that other people may not believe her
simply because of her disability.
The story about the crime may be reported in the newspaper, on the
television or radio, or may be a source of "gossip" in the community. This
can embarrass the victim, especially if the facts are reported incorrectly, if
personal information about the victim is given, or if the victim is made to
appear foolish.
Family, friends or even a clergy member may not be helpful or
understanding. They may "blame" the victim (not always on purpose) for
what happened or they may not want the victim to talk about it because it
could cause the family shame.
Doctors or nurses may not always identify physical injuries as being crime-
related.
Other sources of social injury include mental health professionals, social
service workers, victim service workers, schools or educators, victim
compensation systems, disability program workers, and employers.

Anyone who comes in contact with a victim can cause a social injury, through
lack of information, lack of awareness of victim trauma, or by treating the victim
without respect, dignity or compassion.

In addition to being terribly sexist and wrong, these all too common abuses of
rape victims are also very dangerous to the victim. These abusive reactions drive
rape victims into deepening isolation and despair. When these abuses gather
steam, they can turn the victim's whole social or family group against her. This
can easily or to the loss of the victim's connections to help. The disbelieving,
blaming, and ostracizing of rape victims is also dangerous to all women and girls.

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Driving rape victims into isolation and despair is one of the ways a male
dominated society supports the ongoing existence of rape.

Here are some of the reasons that alone or in combination that people mistreat
rape victims. Some people side with the rapist and mistreat the victim because:
We still live in a male dominated society in which men and their organizations
control most of the power. Rape itself is a crime of dominance. After a rape
occurs, the sexist, male views of rape frequently resurface with a vengeance.
These views easily gather steam, join forces with the authority of powerful male
dominated institutions, and if not dealt with, will almost always lead to the
protection of the rapist and an easy overwhelming of the victim.

In addition to the biases of sexism working against the victim, it's just plain easier
for people to side with the rapist. Remember, in most rapes the rapist and the
victim know each other. Once the victim makes the charge of rape, the people
around both the victim and the rapist are forced to take sides. It's almost always
easier to take the side of the rapist. If people believe the rapist, they can simply
abandon the victim to fend for herself. But if people believe the victim, they then
have to go up against the rapist and take action against him. Sadly, many people
just don't have the courage or strength of conviction to stand up to the rapist and
his powerful allies. The rapist has a criminal mentality and he is willing to lie,
manipulate, threaten, and bully others once the charge of rape is made. The
victim, on the other hand, is wounded and often too weak to defend herself. In
addition, she is not a criminal and as such she is not willing to bully or intimidate
others who don't support her. Once the rapist starts bullying, lying, and rallying
his buddies to his side, even the victims' supporters often become afraid and fall
silent in their defense of the victim.

Once the charge of rape is made all the old sexist stereotypes of rape begin to
surface. The old ideas about what is proper behavior for a female are so
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extremely limiting that people can always find a way to blame the victim. She was
out too late, acting too sexy, too innocent, too assertive, not assertive enough,
drank too much, too bitchy, too stupid, or too aloof. It simply does not matter
what the woman or girl was doing when she was raped. These old constrictions
on female behavior provide ample and convenient cover for those who want a
way out of having to stand up against a rape. Authorities too often don't take
rape seriously. When authorities don't take the rape seriously, people around the
victim get the message they don't have to take the rape seriously either. Once
authorities show they aren't taking the rape seriously, any support the victim has
been able to maintain generally begins to erode rapidly.

Taken alone or together, these continuing manifestations of sexism in society
make it so much easier for cowardly people to accuse the victim of lying rather
than to accuse a man of rape. Erosion of the rape victim's support usually
doesn't happen right away. In fact, initial reactions to rape victims are often good.
Authorities usually take an initial report. Friends of the victim usually start out by
accompanying and supporting the victim, and family members often initially show
great concern. It generally takes a little time for the perpetrator to start organizing
his own support and begin bullying, lying, and retaliating in a way that erodes the
victim's initial support. This lead time gives the victim and her advocates an
opportunity to prevent the buildup toward targeting the victim. The negative
reactions in the rape victim‘s vital relationships and social groups turn against the
victim and then it's much more difficult to correct them.

“Crime victims’ rights laws strive to give victims’ standing in the
criminal justice system, which is all about them,
but has traditionally been without them.”
State Senator William, Van Regenmorter,
Chairman of the Judiciary Committee,

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Many rape victims have a very difficult time deciding whether or not to report the
rape to police. In fact, in the United States less than one out of six rape victims
report the rape to police. And very few of these victims report the rape right
away. This is tragic because the criminal justice system has more power to help
rape victims than any other institution. The criminal justice system, and only the
criminal justice system, has the power and authority to do a criminal investigation
of her rape, and to arrest, convict, punish, and remove the rapist from society.
The criminal justice system is the only system that can intervene with force when
her safety is threatened. The criminal justice system is also the only system that
can put the criminal investigation findings and testimony on the public record.
That record of truth finding is essential for justice. And justice is essential to her
healing and to the healing of the community. Justice is also essential to stopping
future rapes. As a rape victim she has a right to have this immense criminal
justice system powers work for her.

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Drug Facilitated Sexual Assault Victims areTreated Disparately

The current law is wholly insufficient to address the problems of drug assisted
rape and the problems confronted by the victims of such a rape. Drug-facilitated
sexual assault is not a new phenomenon. Experienced law enforcement officers
and advocates know that alcohol is the most common drug used to facilitate
sexual assault. Alcohol has been used as a method to facilitate sexual assault for
years and remains the most widely used drug today.

Rape drugs make it relatively easy for rapists to gain control of their victims. The
surreptitious drugging of a victim is, in and of itself, a cruel and criminal violation
of the person. The rapist does not have to overcome any form of resistance. No
need for physical force or threats, the drugs they administer immobilize and
silence the victim. Some of these drugs produce Anterograde amnesia is a
condition in which events that occurred during the time the drug was in effect are
forgotten.30 Victims may not seek help until days after the assault, partly
because the drug impairs their memory and partly because of their inability to
recognize signs of sexual assault. Anterograde amnesia is a condition in which
events that occurred during the time the drug was in effect are forgotten.31

Drug-facilitated rape presents its victims and law enforcement personnel with an
additional set of challenges above and beyond those associated with other
sexual assaults. Often referred to as ―date-rape drugs,‖ Rohypnol, GHB, and
ketamine32 are used by rapists to render women unconscious, making them
unable to resist unwanted sexual advances. The American Prosecutors
Research Institute defines ―drug-facilitated rape‖ as: [s]exual assault facilitated by
the offender‘s use of an ‗anesthesia-type‘ drug which when administered to the
victim (stealthily or not) render[s] the victim ‗physically incapacitated or helpless,
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and thus incapable of giving or not giving consent. GHB may cause enhanced
sexual feelings by the victim. Victim may participate in reciprocal acts, as a result
of the drug, rather than free will. These victims may be either be conscious or
unconscious during their sexual assault and have anterograde amnesia upon
gaining normal consciousness, similar to the effects of a surgery patient coming
out of anesthesia.33

There is a widely held misconception about the effects of the drugs commonly
associated with drug assisted rape. Despite the prototypical construction, the
reality is that people who have ingested drugs such as Rohypnol and GHB rarely
lose consciousness. Rather, the amnesiac effects of the drugs prevent victims
from recollecting events thus creating a ‗memory void‘ that the brain rationalizes
as a period of unconsciousness. However, the victim will retain consciousness
whilst appearing to the observer to be inebriated but able to act under her own
volition (Dowd, Strong, Janicak and Negrusz, 2002)34. By eliminating the
possibility of consent, the prototypical construction focuses attention on the use
of drugs to obtain intercourse (from a victim who is presumed to be unconscious)
rather than on the use of drugs to obtain consent (from a victim whose state of
mind is affected by the drugs). It is this latter situation that is a more accurate
representation of the majority of cases of drug assisted rape. Drugs such as
Rohypnol and GHB lower anxiety, alertness and inhibition whilst inducing
euphoria, passivity and a sense of relaxation thus increasing the likelihood that
the victim will engage in intercourse, even if such behavior would usually be
uncharacteristic, leading them to be described as ‗a particularly formidable
weapon‘ in sexual assault cases (Weir, 2001, p. 80).35

In addition to this impact on the victim‘s thinking and behavior, these drugs
induce anterograde amnesia thus leaving the victim with only a hazy recollection
of events. When victims of drug-facilitated rapes cannot give a complete
narrative, they often encounter suspicion, disbelief, and/or frustration.36 Many
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aspects of a rape investigation are facilitated by a victim‘s ability to describe what
happened. The victim‘s narrative helps guide the medical/evidentiary
examination and the police investigation. Their inability to supply information that
could assist the investigation and/or prosecution compounds their sense of
helplessness.37 The amnesiac impact of these drugs has been described as
‗their most insidious effects‘ and clearly has a negative impact on the ability to
detect and prosecute perpetrators of drug assisted rape (Labianca, 1998). 38 It
would appear that Rohypnol and the like facilitate rape not because they render
the victim unconscious but because they lead to a disassociation between mind
and body that renders the victim receptive to sexual activity that she may well
have found unwelcome in other circumstances, whilst eroding her ability to
recollect events once the drugs have worn off. To onlookers the victim may
appear drunk or impaired and the rapist taking the victim to another place may
appear to onlookers as assisting an impaired person. While the victim is still
under the effects of the drug which may last 72 hours, the rapist has plenty of
time to create a plausible cover story.39 Some drugs stay for a couple of days,
but GHB, the most popular for obvious reasons, very quickly dissipates from the
system. There is no ―screening test‖ for GHB; it requires a confirmation test that
hospitals cannot do and crime labs only do upon specific request.

Discriminatory Treatment by the Justice System

Many rape victims still despair of obtaining justice, and for good reason. It is true
that police, prosecutors, and judges have a terrible record of dealing with the
crime of rape. But drug facilitated rapists are most commonly serial rapists. They
will commit this crime again. There are estimates that as many as 20% of all
rapes are facilitated with drugs.40

―Real rape‖ in the context of drink spiking, is often considered to be
demonstrated when a woman claims to have been sexually assaulted, and her
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allegation is supported by a positive toxicology test. Forensic evidence of a CNS
depressant as the weapon used to overcome resistance ultimately signals a lack
of consent.41 But a negative toxicology report often just means that we didn‘t get
the evidence taken soon enough, for a variety of reasons. This is still rape!

The most common abuse of criminal justice officials against rape victims is that
these officials frequently try to dump rape cases. It is well documented in many
sources that widespread dumping of rape cases goes on today in law
enforcement agencies around the country. Often law enforcement doesn‘t even
allow the sexual assault victims is the right to be accompanied at all times
throughout the criminal justice process by a victim advocate and by a support
person of the victim‘s choice. This is the best way to protect the rape victim from
abuse in the criminal justice system. The problem is that because of the trauma
of the rape, most rape victims feel very unsure of themselves. They often don't
trust their own judgment. Rape victims often find it difficult to admit they're being
mistreated by the people who are supposed to be helping them. And they find it
even more difficult to protest the abuse. Officials may respond to the rape victim
with disrespect, lack of concern for her safety, an accusatory tone, disbelief, lack
of interest, annoyance, intimidation, or even attempts to isolate her from her
support person. One of the most common and easiest ways that officials have
of dumping a rape case is to simply ignore her. The reason this works so well is
that rape victims find it very difficult to assert themselves and even more difficult
to push the police. Long delays in returning phone calls, unclear explanations
about what happens next, sloppy answers to the rape victims questions, or
disinterest in answering her questions is common. The official may be unwilling
to ask about the victims needs and accommodate them. Failure to be openly
concerned about the rape victim‘s need for privacy, support, safety, housing, etc.,
is much more than just a sign the officer is impolite. In order to successfully
pursue a rape case, officials must pay close attention to the needs of the victim.
Incomplete investigation is another very common way that officials dump rape
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cases. If officials don't gather all the evidence, then it's easy for them to tell the
rape victim, "We're very sorry, we'd like to help, but there's not enough evidence
to go forward with your case." If an official tells her there's not enough evidence,
or that her case is a 'he said, she said' case, or that the district attorney won't
file, or that the defense will attack the rape victim for this or that, it may very well
be that the official is just trying to get rid of her. Officials attempt to divert the rape
victim and to remove her case out of the criminal justice process. Rape is a
violent crime, and it's the job of police and prosecutors to investigate the case
thoroughly, to protect the rape victim‘s safety, and to do everything possible to
obtain justice for her and the community.

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“Very often a victim’s first view of the criminal justice system is
the law enforcement officer who responds to the scene of the crime.
It is critical that this officer be well trained and informed
about victims’ rights and services.
If this officer does not refer the victim to appropriate assistance
and compensation programs, that victim
may never receive the help needed to heal.”
Joe Brann, Director of Community Oriented
Policing Services Office,
U.S. Department of Justice

The police interview is the single most significant piece of evidence in a rape
case.42 Whenever the rape victim is interviewed, the official should: allow the
rape victim to be accompanied by an advocate. The support person should take
notes, tape record the interview, should ask the victim in detail about events
leading up to the rape, events during the rape, and events that followed the rape.
The official should listen carefully to all the rape victim‘s suggestions for leads to
evidence and witnesses in the case. When interviewing the rape victim, the
official should never interrogate the rape victim even if there are contradictions in
her story, should not try scare the victim out of reporting or testifying by telling
her how the defense team can attack her, should not attempt to isolate her from
her advocate and support persons, and should never in any way imply that she is
to blame for the rape. But hostile interrogations of rape victims are common.

During their initial contact with law enforcement officers, victims of crime should
receive verbal and written information about victims‘ rights and services. Law
enforcement personnel should be required to follow up with victims because
many individuals are unable to comprehend assistance and compensation
information in the immediate aftermath of being severely traumatized.

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“Police officers are gaining a renewed understanding of their role
as victim advocates. As victim advocates, police officers are an
integral part of community efforts to prevent crime,
reduce fear, and support victims.”
Chief (ret.) Drew Diamond, Senior Research Associate,
Police Executive, Research Forum

The drug facilitated sexual assault victim may remember little, if any, about the
sexual assault itself. The victim's account of the events may have many missing
parts. For drug facilitated assault victims, telling what they recall is difficult and
their uncertainty as to what occurred may cause them extreme anxiety. Often,
the perpetrator was a "trusted" acquaintance and the victim may feel the incident
was somehow her fault. 43

The Law Enforcement Officer should do careful witness interviews.
Although the victim statement is crucial to the investigation, persons who saw the
victim, or spoke to the victim, before, during and after the assault are critical
witnesses. Often, it is such witnesses who establish time frames, notice unusual
behavior, provide critical facts and can identify potential sources of information.44

The ingestion of drugs by the victim (either voluntarily or surreptitiously) is often
used against the victim by the criminal justice system. Her apparent association
with "risky" behavior lessens her credibility and increases her perceived
culpability while diminishing the suspect's. a victim's cooperation to go
"somewhere private" with the suspect is not an invitation to rape her and should
never be viewed by the criminal justice system as an indication of consent.
Secondly, investigators should keep in mind that many drugs like GHB and
Flunitrazepam sedate the victim and often cause confusion and disorientation.
Thus, while the victim may have appeared to voluntarily accompany the suspect,
the victim's actions may have been the result of "drug submission" or some other

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effect of the drug on the victim and her capabilities. Memory loss, dizziness,
confusion, drowsiness, slurred speech, impaired motor skills, impaired judgment,
reduced inhibition or a variety of other symptoms. The victim may also appear
intoxicated or "hung-over".

Today‘s drugs may at some point render a victim unconscious, but even worse,
at least initially, and, depending on which drug is used and/or the amount given,
the victim may appear to participate or may even appear to be the aggressor
early on in the attack. The beverages are typically alcoholic; however, the drugs
can be placed into any beverage. When the drug dissolves, it is primarily
colorless, odorless and in some cases tasteless. Take effect in 15-30 minutes,
may last less than an hour or up to 24 hours. The victim becomes helpless,
weak, and, perhaps, unconscious. Victims become so intoxicated that they can't
resist or escape the rapist or even call out for help. Waking up with little idea of
what has taken place, a sneaky suspicion (or obvious evidence) of sexual
activity, leaves one confused, dazed and hesitant to run to the police. This results
in a delay as the victim attempts to piece together her plight. By the time she
comprehends the situation; precious time has been lost in terms of collecting
evidence.

An additional challenge in investigating drug-facilitated sexual assault is the loss
of evidence due to the very nature of the drugs used. Many of these drugs
metabolize so quickly in the body that it becomes difficult to detect them in the
victim. Because most victims delay reporting, this compounds the challenge of
corroborating the use of a drug to facilitate the sexual assault.

The investigator must carefully deduce from the types of drugs used to facilitate
the sexual assault, the effects these drugs had on the victim, and an account of
the events surrounding the actions of everyone involved. The following is a list of
the types of evidence an investigator should process from the victim.
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The investigator may be the first to suspect the victim was drugged to facilitate a
sexual assault. As we have discussed, if the ingestion of a drug may have
occurred within the last 96 hours (4 days), the victim should be advised not to
urinate until a urine specimen can be collected.

The Drug as a Weapon

One legal approach to the problem of drug facilitated assault is to identify the
broad category of drug and alcohol facilitated sexual assault as rape achieved
with a weapon (that is, the drug).

A weapon is actively employed or used by a perpetrator to ensure submission.
Implicit within the ―Drugs as Weapons‖ metaphor is a concern with the victim‘s
capacity to consent.

GHB (gamma-hydroxybutyrate), a Schedule I drug under the Controlled
Substances Act, is a powerful central nervous system depressant that is used
illicitly, often for its euphoric and sedative effects but also for the commission of
drug-facilitated sexual assault. GHB trafficking and abuse have become a
particular concern to law enforcement and public health agencies because of
increasing availability of the drug in some areas, sharp increases in ED mentions
for GHB since the mid-1990s, and the use of GHB in the commission of drug-
facilitated sexual assault. Federal, state, and local law enforcement agencies in
every region of the country report that GHB appears to be the substance most
commonly used in drug-facilitated sexual assaults because of its powerful
sedative properties. Gamma HydroxyButyrate commonly referred to as a date
rape-drug, GHB was originally used as a substitute anabolic steroid for strength
training. GHB has been used in the commission of sexual assaults because it
renders the victim incapable of resisting, and may cause memory problems. GHB
costs approximately $10-$20 per dose and is frequently mixed with alcohol. As of

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January 2000, DEA documented 60 GHB-related deaths.45 When used to commit
sexual assault, the drug typically is mixed into victims' drinks--usually without
their knowledge--to mask the drug's salty taste. GHB is rapidly absorbed and
metabolized by the body. Detectable levels of GHB may remain in urine for
approximately 8 to 12 hours and in blood for 4 to 8 hours after ingestion. Routine
blood or urine testing do not screen for GHB; therefore, it is important to
specifically request a GHB screen as soon after the assault as possible.
Detectable levels of undigested GHB may be found in victim's vomit; vomiting is
a common effect of GHB use.

On February 18, 2000, the "Hillory J. Farias and Samantha Reid Date-Rape
Prohibition Act of 1999" (Public Law 106-172) was signed into law, legislating
GHB as a Schedule I controlled substance. GBL was also regulated under this
law as a List I controlled chemical. Illicit use of GHB analogs may now be
prosecuted as Schedule I substances under 21 U.S. Code § 813. GHB analogs
are treated as controlled substances under Federal law only if intended for
human consumption. According to 21 U.S.C. § 813, "a controlled substance
analog(ue) shall, to the extent intended for human consumption, be treated, for
the purposes of any Federal law as a controlled substance in Schedule I." Thus,
authorities can prosecute drug offenses involving GHB analogs in the same
manner as offenses involving GHB. (See 21 U.S.C. § 802(32) for the definition of
a controlled substance analog(ue).)46

Discrediting The Rape Victim And The Rape Shield Law

The United States has a shameful history in its treatment of rape victims in the
criminal judicial system. Especially perceptible in the courtroom, women's
allegations have been discredited under a legal philosophy that women are
disposed to fabricate charges of rape. As a consequence, rape victims became
the focus at trials where trial procedures endeavored to discount victims and

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communicate to juries that their stories were unworthy of belief. Even though the
United States Supreme Court and state supreme courts have recognized a
47
constitutionally protected right to privacy, rape victims' allegations continue to
be treated with mistrust by the courts as defendants are permitted to search
confidential counseling records in hopes of discrediting the victim. As a result,
many rape victims refused to report assaults to the authorities or to cooperate in
the criminal process for fear of re-victimization and degradation.48 People who
suspected abuse did not come forward for fear their identities would be revealed.

Defendants have successfully used access to counseling records as a
harassment technique, hoping to induce victims to drop charges. Prominently,
"over the past decade, it has become increasingly common for defense counsel
in criminal cases to seek access to personal, confidential, and even privileged
information of victims and witnesses, including records of therapeutic
counseling."

In fact, defendants routinely accessed victims' entire medical and psychological
histories, even records that predated the crime by as much as twenty or thirty
years. These records could indicate such highly personal and irrelevant matters
such as eating disorders, vaccines, mastectomies, genetic history, HIV status,
history of cancer and even painful childhood incidents. It was a successful
defense strategy to request as many personal records as possible, so that a
49
defendant could delay a trial for years, impelling victims to drop out of cases.
Rape Advocates forcefully demonstrated that the privilege protecting rape
victims' confidential communications had become ineffectual and victims were
forced to choose between prosecution and counseling. 50

Thus, although rape victims have been promised privacy in the information they
disclosed to counselors, this information has become routinely disclosed to
defendants under arguments that federal and state constitutional rights to a fair
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trial outweigh any evidentiary privileges afforded to victims. So unfortunately,
rape victims are often the casualties in these legal battles as their most painful
and personal thoughts are opened to the defense after promises of
confidentiality. As a consequence of this abuse of process many rape victims felt
forced to choose between seeking help and prosecuting their attacker. 51

In fact, the fear and harassment of disclosure led many victims to choose
between prosecution and counseling. Thus, rape remains one "of the most
underreported crimes in America." Victims feel alone and helpless and will not
request aid and support without assurances of confidentiality. Persons who
suspect abuse often will come forward if they fear their identities may be
revealed.

The Court of Pennsylvania was asked in Wilson, 602 A.2d at 1295-9852 to
determine the constitutionality of this absolute privilege for communications
between victims and sexual assault counselors. The court denied the defendant
access to the victim's counseling records, ruling that the government has a
compelling interest in assisting rape victims in the recovery process. In support
for its ruling, the court recognized that "[t]he inability of the crisis center to
achieve its goals is detrimental not only to the victim but also to society, whose
interest in the report and prosecution of sexual assault crimes is furthered by the
emotional and physical well-being of the victim." Pennsylvania concluded that
absolute privileges may be given effect by recognizing a compelling
governmental interest in assisting rape victims heal from the trauma caused by
sexual assault.53 In a subsequent decision, the court held that defendants could
not access victims' records until a judge had determined in camera that the
information was relevant. 54 55

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Moreover, the court concluded that a materiality standard was necessary to give
full effect to the important goals underlying the privilege:

The privilege clearly promotes two important interests.

1) It encourages victims of the brutal and degrading crime of rape to seek
professional assistance to alleviate the psychological scarring caused by
the crime, which may be more damaging than the physical invasion itself.

2) The privilege supports the reporting of rapes, which, occur in considerable
numbers, but frequently are not disclosed because the victim may feel
shame about the assault and may not be able to face the grueling nature
of the adversary process that occurs at trial.56

The United States Supreme Court attempted to settle this controversy in
Pennsylvania v. Ritchie 57 by balancing the respective rights of the defendant and
the victim. However, the United States Supreme Court's lead in resolving the
conflict has been tenuous as states have responded to the Ritchie decision in
disparate fashion. Unfortunately, many rape victims have seen the protections
provided by evidentiary privileges dwindle to ineffectual words. Rape victims are
often the casualties in these legal battles as their most painful and personal
thoughts are opened to the defense after promises of confidentiality.

Massachusetts's experiences illustrate the problems with granting defendants
easy access to victim's confidential counseling records under a lesser standard
than materiality. In 1991, the Supreme Judicial Court of Massachusetts held that
a defendant must be given full access to privileged counseling records.58
Furthermore, after the defendant's examination of the files, the trial judge must
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hold an in camera review to determine, under ordinary evidence rules, the
admissibility of the information the defendant wishes to admit at trial. 59 Since this
ruling, defendants began "routinely request[ing] rape crisis center counseling
records to search for evidence to impeach the victim's credibility." 60 Moreover,
defendants used access to counseling records as a harassment technique,
hoping to induce victims to drop charges.61

In some jurisdictions, when an absolute privilege is in question the court is
permitted to distinguish Ritchie and forbid disclosure of victims' counseling
records to defendants seeking to use the information at trial. As support for the
constitutionality of absolute privileges, many courts have relied on Justice
Powell's reasoning that the Confrontation Clause is not violated by an evidentiary
privilege if the defendant is given the opportunity to cross-examine the
witnesses.62

Currently, every state, as well as the District of Columbia, recognizes an
evidentiary privilege for patient communications with a therapist.63 Many states
including Kansas and Washington have enacted evidentiary privileges that forbid
disclosure of victims' counseling records under any circumstance. 64

The Confrontation Clause should not include the power to require the pretrial
disclosure of any and all information that might be useful in contradicting
unfavorable testimony. Currently, every state, as well as the District of Columbia,
recognizes an evidentiary privilege for patient communications with a therapist. 65

In fact, rape victims' most common response to rape is the belief that they are
somehow responsible for the attack.66 Therapists persuade rape victims to
disclose this fear in order to help them heal from the psychological effects of the
assault. 67 Because of the intimate and deep damage sexual assault inflicts on its
victims, "[e]ffective psychotherapy depends upon an atmosphere of confidence
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and trust in which the patient is willing to make a frank and complete disclosure
of facts, emotions, memories, and fears." 68 Thus, "the mere possibility of
disclosure may impede development of the confidential relationship necessary
for successful treatment." 69 In fact, because of the highly personal nature of rape
and surrounding social stigma, a sexual assault survivor is more likely than the
general population to be deterred from seeking counseling without assurances of
confidentiality.70

Rape crises centers exist to provide rape victims with effective counseling and
support services. Ironically, their very creation may act as a magnet for
defendants to access rape victims' counseling records. And, despite statutory
privileges protecting counseling records, rape victims continue to be treated with
distrust by the courts as their records are disclosed to defendants who in turn use
the materials to focus the trial on the victim. Moreover, the privileged materials
are often used to embarrass or harass the victim or even delay trial until victims
give up.71 One of the greatest hardships victims endure in the criminal justice
process is the delay of scheduled proceedings. Just as defendants have the right
to a speedy trial, so too should crime victims. Repeated continuances cause
serious hardships and trauma for victims as they review and relive their
victimization in preparation for trial, only to find the case has been postponed.
Delays are sometimes used as a defense tactic. As a case drags on, witnesses
move away, die, give up in frustration, or lose clear recollections of the facts. The
impact of continuances is particularly difficult for victims whose memories may
fade over time or whose health may deteriorate.

In the aftermath of victimization, victims may have many different needs. Victims
who report crime need information, assistance and protection when they choose
to participate in the criminal and juvenile justice process. Not only should victims
have the right to be heard or consulted in decisions that affect them, but they
should receive protection if they are witnesses and transportation to and from
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legal proceedings. Regardless of whether they report the crime, many victims
need emergency and ongoing services such as health care, shelter, lock
replacement, cash assistance, social and community services and support,
mental health counseling, victim compensation, child care services, referrals to
support groups, translators, and transportation.

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V
ICTIMS‘ RIGHTS
“When someone is a victim ,he or she should be at the center
of the criminal justice process, not on the
outside looking in”.
President William J. Clinton,
Rose Garden, June 25, 1996

RECOMMENDATION FROM THE FIELD #10
Victims of crime should receive assistance in exercising their participatory rights.
Advocates should be available to explain rights to victims, help them to exercise
those rights and, when necessary, serve as their representatives in court and
other key justice processes when victims are underage or incapacitated or if
representation is otherwise appropriate. One of the greatest barriers to victims
participating in justice proceedings is their not having the means to do so. Many
victims cannot afford to pay for parking, child care, or time off from work. Others
do not have the resources to cover transportation costs to courts, especially if the
trial or hearing is held outside their community.

In cases where there is good cause to believe that bodily fluids were exchanged,
victims should have the right to be tested and to have the accused or convicted
offender tested at appropriate times for the HIV virus and sexually transmitted
diseases. State statutes should require these tests to be conducted by specially
trained personnel who can advise victims of the reliability, limitations, and
significance of the test, as well as HIV treatment options. In addition, laws should
specify the agency that will pay for HIV testing and pre and posttest counseling,
as well as treatment for any victims who test positive.

Counseling is an essential part of responding to the risk of HIV transmission in a
crime. Victims may not understand the latency of the disease, and may not fully
appreciate the limited reliability of a negative test result. States frequently require

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counseling in conjunction with testing, but specifications vary widely from
jurisdiction to jurisdiction.

State and federal laws should allow, and criminal and juvenile justice agencies
should facilitate, community impact statements as a means for members of a
neighborhood or community that has been impacted by crime to have input into
sentencing. In many cases, neighborhoods and communities as well as
individuals are victims of crime. This is especially true in drug, gang, and
prostitution cases where criminal activity endangers and degrades entire
neighborhoods, affecting property values and quality of life issues.

Victims should have standing to enforce their rights, and sanctions should be
applied to criminal and juvenile justice professionals who deny victims their
fundamental rights. Although more than 27,000 state and federal laws have been
enacted to protect and enforce the interests, rights, and services for crime
victims, the consistent implementation and enforcement of these laws is an area
of great concern. Victims report that criminal and juvenile justice officials at times
disregard their statutory and constitutional rights, and that they have no legal
recourse when their rights are violated. States should enact provisions that give
victims measures to enforce their rights when they are disregarded. While limited
legal remedies such as court-ordered injunctions and writs of mandamus are
generally available to force criminal justice personnel to comply with the law,
states are beginning to pass laws that provide specific statutory remedies and
recourse for crime victims. A Maryland statute enables victims of violent crimes
to apply for ―leave to appeal‖ any final order that denies victims certain basic
rights72. Arizona law grants victims the right to challenge post conviction release
decisions resulting from hearings at which they were denied the opportunity to
receive notice, attend, or be heard. Arizona law allows victims to sue for money
damages any government entity responsible for the ―intentional, knowing or
grossly negligent violation‖ of the victims‘ rights73. It is critical that effective
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measures be available to remedy violations of victims‘ rights, including authority
for the government to obtain redress through applications for mandamus and
appeal. The need for this reform in federal proceedings is illustrated by the first
trial in the bombing of the Alfred P. Murrah Federal Building, in which the trial
court ruled that victims would not be allowed to attend the trial if they wished to
be heard at the sentencing stage. On review, the Tenth Circuit Court of Appeals
held that victims had no standing to assert their right to be present and that the
government could not enforce that right by appeal or by seeking a mandatory
order74. Victims of crime should have rights at administrative proceedings,
including the right to have a person of their choice accompany them to the
proceedings, the right to input regarding the sanction, and the right to notification
of the sanction.

Public Law 106–172 106th Congress FEB. 18, 2000

"Making GHB a Schedule I controlled substance appropriately reflects the
Congress' judgment that possession and distribution of GHB should be prohibited
and those violators should be subject to stringent criminal sanctions."

“Making GHB a Schedule I controlled substance appropriately reflects the
Congress' judgment that possession and distribution
of GHB should be prohibited and that violators should be
subject to stringent criminal sanctions."

President Clinton 2/18/2000

It is generally accepted by those working with rape victims and also those
working to enforce the Controlled Substances Act that we need to improve how
we handle drug facilitated sexual assaults. SB 1561 (The Samantha Reid Date-
Rape Drug Control Act of 1999) has merged into H.R. 2130 to be called The

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Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act of
2000. The ‗‗Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act
of 2000‘‘ or Public Law 106-172 of the 106th Congress was enacted by the
Senate and House of Representatives -. (21 USC 812 note, 21 USC 801 note)
to amend the Controlled Substances Act to direct the emergency scheduling of
gamma hydroxybutyric acid, to provide for a national awareness campaign, and
for other purposes.

In this act Section 2 findings stated that:

―Gamma hydroxybutyric
acid (also called G, Liquid X, Liquid Ecstasy,
Grievous Bodily Harm, Georgia Home Boy, Scoop) has become a significant
and growing problem in law enforcement. At least 20 States have scheduled
such drug in their drug laws and law enforcement officials have been
experiencing an increased presence of the drug in driving under the influence,
sexual assault, and overdose cases especially at night clubs and parties.”

In section 7 (a) The Secretary of Health and Human Services was to periodically
submit to Congress an Annual Report Regarding Date-Rape Drugs and also
institute a National Awareness Campaign. (21 USC 801 note).It is stated that
The Secretary, in consultation with the Attorney General, shall develop a plan for
carrying out a national campaign to educate individuals described in
subparagraph (B) on the following:

(i) The dangers of date-rape drugs.
(ii) The applicability of the Controlled Substances
Act to such drugs, including penalties under such Act.
(iii) Recognizing the symptoms that indicate an individual may be a victim of such
drugs, including symptoms with respect to sexual assault.
(iv) Appropriately responding when an individual has such symptoms.
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(B) Intended Population.— The individuals referred to in subparagraph (A) are
young adults, youths, law enforcement personnel, educators, school nurses,
counselors of rape victims, and emergency room personnel in hospitals.
PUBL172
In addition in section 8 there was established a special unit in The Drug
Enforcement Administration for assessment of abuse and trafficking of GHB and
other controlled substances and drugs which shall assess the abuse of and
trafficking in gamma hydroxybutyric acid, flunitrazepam, ketamine, other
controlled substances, and other so-called ‗‗designer drugs‘‘ whose use has been
associated with sexual assault. The DEA‘s particular duties included: (1)
examine the threat posed by the substances and drugs referred to in that
subsection on a national basis and regional basis; and (2) make
recommendations to the Attorney General regarding allocations and reallocations
of resources in order to address the threat. In addition the DEA is permitted to
reallocate the existing resources as appropriate and additional resources were
also designated by Congress. In addition the section SEC. 5. Controlled
Substances Analogues subparagraph (B) includes the designation of gamma
butyrolactone or ‗‗or controlled substance analogue‘‘ as a listed chemical and
adds under DEA control under (b) the distribution with the intent to commit a
crime of violence.

Making GHB Schedule 1 makes it a crime to possess, manufacture, or sell GHB
or its precursors, with up to 20 years jail time for it. It will be in the same drug
class as marijuana or heroin.75

H.R. 2130 Hillory J. Farias and Samantha Reid Date-Rape Drug Prohibition Act
of 1999 cleared congress and would have allowed the DEA to pursue crimes
related to GHB more vigorously. The act‘s designations for GHB and GB would
increase the penalties for unauthorized manufacturing or distribution of these

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substances and would tighten federal control over their use. As a result, the
federal government would be able to pursue cases that it otherwise would not be
able to prosecute. Because those prosecuted and convicted of offenses under
H.R. 2130 could be subject to criminal fines, the federal government might collect
additional fines if the legislation is enacted. Such fines are recorded in the budget
as governmental receipts (i.e., revenues) which are deposited in the Crime
Victims Fund and spent in subsequent years. Because any increase in direct
spending from the Crime Victims Fund would equal the fines collected (with a lag
of one year or more), the additional direct spending would be less than $500,000
annually.

Crime Victims Rights

“Even in states with a victims’ rights constitutional amendment,
the overall protection of victims is varied and uneven.
In addition, without federal constitutional protection, victims’ rights
are always subject to being automatically trumped by defendants’ rights.”
Robert E. Preston, Co-chair,
National Victims‘ Constitutional
Amendment Network

Since 1982, a substantial number of the 68 recommendations in the President‘s
Task Force on Victims of Crime Final Report have been enacted and
implemented due in a large part to the efforts of crime victims.76 These
accomplishments include the Victims of Crime Act in 1984, the landmark Crime
Act of 1994, the countless state statutes that strengthen victims‘ rights and hold
offenders accountable to their victims, and the 29 state victims‘ rights
constitutional amendments. Each year, hundreds of new victims‘ rights laws and
innovative practices are enacted and implemented across the country. Since
1990, after cases of stalking received national attention from the media and
victim advocacy groups, all 50 states and the District of Columbia modified their

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laws to criminalize stalking77 Some state legislatures also reacted swiftly to the
escalation of juvenile crime to record levels in the early 1990s by extending at
least some rights to victims of juvenile offenders. In 1992, for example, only five
states provided victims the right to be notified of a disposition hearing involving a
juvenile. By 1995, 25 states provided this right.78Despite this record of success,
however, victims are still being denied their right to participate in the justice
system. Many victims‘ rights laws are not being implemented, and most states
still have not enacted fundamental reforms such as consultation by prosecutors
with victims prior to plea agreements, victim input into important pretrial release
decisions such as the granting of bail, protection of victims from intimidation and
harm, and comprehensive rights for victims of juvenile offenders.

The right to protection from intimidation, harassment, and retaliation by offenders
and the accused is becoming a major focus of public and law enforcement
attention. Justice officials report an increase in the harassment and intimidation
of witnesses, making it increasingly difficult to obtain convictions because crime
victims and witnesses are afraid to testify.79 Legislatures have attempted to
address this problem by mandating ―no contact‖ orders as a condition of pretrial
or post trial release. In addition, victims‘ bills of rights generally require victims to
be notified at the outset of the judicial process about legal action they can take to
protect themselves from harassment and intimidation. Harassment or intimidation
of a victim or witness by a defendant or convicted offender should result in
automatic revocation of pretrial or supervised post trial release, and should be
considered an aggravating factor in sentencing. Such violations should be
charged and prosecuted under relevant anti-harassment, intimidation, and
stalking laws. Any punishment imposed for the separate crime of intimidation
should run consecutively after the sanction for the original crime. All protective
orders, including those issued as a condition of release, should be maintained in
a central, automated database that can be accessed by law enforcement and

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other justice officials throughout the country. Violations of protective orders
should be taken seriously, swiftly.80

Kansas Constitution Article 15 § 15

“The Victims of crime as defined by law, shall be entitled to certain basic rights,
including the right to be informed of and to be present at public hearings, as
defined by law, of the criminal justice process, and to be heard at sentencing or
at any other time deemed appropriate by the court, to the extent that these rights
do not interfere with the constitutional rights of the accused.”
Law 1992 ch 343 section 1 Nov 3, 1992

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Rape records were confidential under Kansas state law. See Kan. Stat. Ann. §§ 38-1507,
65-5602. KANSAS K.S.A. § 21-3525 (2005)

21-3525

Chapter 21.--CRIMES AND PUNISHMENTS
PART II.--PROHIBITED CONDUCT
Article 35.--SEX OFFENSES

21-3525. Evidence of complaining witness' previous sexual conduct in prosecutions
for sex offenses; motions; notice. (a) The provisions of this section shall apply only in a
prosecution for: (1) Rape, as defined by K.S.A. 21-3502, and amendments thereto; (2) indecent
liberties with a child, as defined in K.S.A. 21-3503, and amendments thereto; (3) aggravated
indecent liberties with a child, as defined in K.S.A. 21-3504, and amendments thereto; (4) criminal
sodomy, as defined in subsections (a)(2)and (a)(3) of K.S.A. 21-3505 and amendments thereto;
(5) aggravated criminal sodomy as defined by K.S.A. 21-3506, and amendments thereto; (6)
aggravated indecent solicitation of a child, as defined in K.S.A. 21-3511, and amendments
thereto; (7) sexual exploitation of a child as defined in K.S.A. 21-3516, and amendments thereto;
(8) aggravated sexual battery, as defined in K.S.A. 21-3518, and amendments thereto; (9) incest,
as defined in K.S.A. 21-3602, and amendments thereto; (10) aggravated incest, as defined in
K.S.A. 21-3603, and amendments thereto; (11) indecent solicitation of a child, as defined in
K.S.A. 21-3510 and amendments thereto; (12) aggravated assault, as defined in K.S.A. 21-3410,
and amendments thereto, with intent to commit any crime specified above; (13) sexual battery, as
defined in K.S.A. 21-3517, and amendments thereto; (14) unlawful voluntary sexual relations, as
defined in K.S.A. 21-3522, and amendments thereto; or (15) attempt, as defined in K.S.A. 21-
3301, and amendments thereto, or conspiracy, as defined in K.S.A. 21-3302, and amendments
thereto, to commit any crime specified above.

(b) Except as provided in subsection (c), in any prosecution to which this section applies,
evidence of the complaining witness' previous sexual conduct with any person including the
defendant shall not be admissible, and no reference shall be made thereto in any proceeding
before the court, except under the following conditions: The defendant shall make a written
motion to the court to admit evidence or testimony concerning the previous sexual conduct of the
complaining witness. The motion must be made at least seven days before the commencement
of the proceeding unless that requirement is waived by the court. The motion shall state the
nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit

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in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The
motion, affidavits and any supporting or responding documents of the motion shall not be made
available for examination without a written order of the court except that such motion, affidavits
and supporting and responding documents or testimony when requested shall be made available
to the defendant or the defendant's counsel and to the prosecutor. The defendant, defendant's
counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion,
affidavits and any supporting or responding documents of the motion. The court shall conduct a
hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence
proposed to be offered by the defendant regarding the previous sexual conduct of the
complaining witness is relevant and is not otherwise inadmissible as evidence, the court may
make an order stating what evidence may be introduced by the defendant and the nature of the
questions to be permitted. The defendant may then offer evidence and question witnesses in
accordance with the order of the court.

(c) In any prosecution for a crime designated in subsection (a), the prosecuting attorney may
introduce evidence concerning any previous sexual conduct of the complaining witness, and the
complaining witness may testify as to any such previous sexual conduct. If such evidence or
testimony is introduced, the defendant may cross-examine the witness who gives such testimony
and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony
introduced by the prosecutor or given by the complaining witness.

(d) As used in this section, "complaining witness" means the alleged victim of any crime
designated in subsection (a), the prosecution of which is subject to this section.

History: L. 1976, ch. 162, § 1; L. 1983, ch. 109, § 15; L. 1991, ch. 87, § 1; L. 1992, ch. 298,
§ 32; L. 1993, ch. 291, § 53; L. 2005, ch. 114, § 1; July 1.

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Rape Shield Laws

Wilson, 602 A.2d at 1295-98 (holding that government interests in assisting
recovery of rape victims outweigh defendant's constitutional rights).
667 N.E.2d 847, 852-854 (Mass. 1996) The court concluded that a materiality
standard was necessary to give full effect to the important goals underlying the
privilege.
S.C. Const. art I, § 24(B). The Constitution provides "the rights created in this
section may be subject to a writ of mandamus, to be issued by any justice of the
Supreme Court or Circuit Court Judge to require compliance" of government
officials.
Nev. Const. art I, § 8(4) (stating person may compel public officer or employee to
carry out any victim right).
Utah Code Ann. § 77-38-11(2)(a)(i) (2004) (declaring "victim may bring an action
for... a writ of mandamus").
Ariz. Rev. Stat. § 13-4437 (2004). The statute provides:
the victim has standing to seek an order or to bring a special action mandating
that the victim be afforded any right or challenge and order denying any rights
guaranteed to victims under the victims' bill of rights, article II, Sec. 2.1,
Constitution of Arizona, any implementing legislation or court rules.
Md. Code Ann., Crim. Proc. § 11-103(b) (2004). The statute provides: "[a] victim
of violent crime... may file an application for leave to appeal... from an
interlocutory or final order...."
Utah Code Ann. § 77-38-11(2)(a)(i). The Code provides that "the victim [may]
bring an action for declaratory relief or for a writ of mandamus defining or
enforcing the rights of victims and the obligations of government entities under
[the Rights of Crime Victims Act]."

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RAPE SHIELD STATUTES
As of June 28, 2006

ALABAMA ALA. CODE § 12-21-203 (2005)
ALASKA ALASKA STAT. § 12.45.045 (2006)
ARIZONA ARIZ. REV. STAT. § 13-1421 (2006)
ARKANSAS ARK. CODE. ANN. § 16-42-101 (2006)
CALIFORNIA CAL. EVID. CODE § 782 (2006)
CAL. EVID. CODE § 1103 (2006)
COLORADO COLO. REV. STAT. § 18-3-407 (2005)
CONNECTICUT CONN. GEN. STAT. § 54-86f (2006)
CONN. CODE OF EVIDENCE § 4-11 (2006)
DISTRICT OF COLUMBIA D.C. Code § 22-3021 (2006)
D.C. Code § 22-3022 (2006)
DELAWARE DEL. CODE. ANN. Tit. 11 § 3509 (2006)
FLORIDA FLA. STAT. § 794.022 (2005)
GEORGIA GA. CODE ANN. § 24-2-2 (2006)
GA. CODE ANN. § 24-2-3 (2006)
HAWAII HAW. REV. STAT. § 412 (2006)
IDAHO IDAHO CODE ANN. § 412 (2005)
ILLINOIS 725 ILL. COMP. STAT. 5/115-7 (2005)
INDIANA IND. CODE. ANN. § 412 (2006)
IND. CODE ANN. § 35-37-4-4 (2006)
IOWA Iowa R. Evid. 5.412 (2005)
KANSAS K.S.A. § 21-3525 (2005)
KENTUCKY Ky. R. Evid. 412. (2006)
LOUISIANA La. C.E. Art. 412 (2006)
MAINE Me. R. Evid. 412 (2005)
MARYLAND Md. Code Ann., CRIM. LAW § 3-319 (2006)
MASSACHUSSETTS MASS. ANN. LAWS ch. 233, § 21B (2006)
MICHIGAN Mich. Rules Evid. § 40
MICH. COMP. LAWS SERV. § 750.520j (2006)
MINNESOTA MINN. STAT. § 609.347 (2005)
MISSISSIPI MISS. CODE ANN. § 97-3-68 (2006)

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MISSOURI MO. REV. STAT. § 491.015 (2006)
MONTANA MONT. CODE ANN., § 45-5-511 (2005)
NEBRASKA NEB. REV. STAT. § 28-321 (2005)
NEVADA NEV. REV. STAT. ANN. § 50.090 (2006)
NEV. REV. STAT. ANN. § 48.069 (2006)
NEW HAMPSHIRE N.H. Rules Evid. 412 (2005)
N.H. REV. STAT. ANN. § 632-A:6 (2006)
NEW JERSEY N.J. Stat. § 2C:14-7 (2006)
NEW MEXICO N.M. Stat. Ann. § 30-9-16 (2006)
NEW YORK NY CLS CPL § 60.42 (2006)
NORTH CAROLINA N.C. Gen. Stat. § 8C-1, Rule 412 (2006)
NORTH DAKOTA N. D.R. Ev., Rule 412 (2005)
OHIO ORC Ann. 2907.02 (2006)
Ohio Evid. R. 404 (2006)
OKHLAHOMA 12 Okl. St. § 2412 (2005)
ORS § 40.210 ; 2006 OEC 412 (2006)
PENNSYLVANIA 18 Pa.C.S. § 3104 (2005)
RHODE ISLAND RI R. Evid. Art. IV, Rule 412 (2006)
R.I. Gen. Laws § 11-37-13 (2006)
TENNESSEE Tenn. Evid. Rule 412 (2005)
TEXAS Tex. Evid. R. 412 (2006)
UTAH URE Rule 412 (2006)
VIRGINIA Va. Code Ann. § 18.2-67.7 (2006)
WASHINGTON Rev. Code Wash. (ARCW) § 9A.44.020 (2006)
WEST VIRGINIA W. Va. Code § 61-8B-11 (2006)
WISCONSIN Wis. Stat. § 972.11 (2006)
WYOMING Wyo. Stat. § 6-2-312 (2006)

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1
RAINN calculation based on 2002 National Crime Victimization Survey (NCVS). Bureau of
Justice Statistics, U.S. Department of Justice
2
For more statistics and links to all primary sources, see RAINN‘s Statistics Archive. For
information and resources on sexual assault, rape and drug-facilitated sexual assault,
http://www.911rape.org/.For more information and statistics, visit the U.S. Department of Justice‘s
Bureau of Justice Statistics.
3
National Crime Victims Rights Resource Guide 2005 www.ojp.usdoj.gov/ovc/ncvrw/
2005/pdf/NCVRW2005resourceguide.pdf
http://www.rainn.org/statistics/index.html
4
National Crime Victims Rights Resource Guide 2005
www.ojp.usdoj.gov/ovc/ncvrw/ 2005/pdf/NCVRW2005resourceguide.pdf -
5
6
Prevalence, Incidence and Consequences of Violence Against Women Survey, National
Institute of Justice and Centers for Disease Control and Prevention, 1998
7
8
Sexual Assault of Young Children as Reported to Law Enforcement. Bureau of Justice
Statistics, U.S. Department of Justice, 2000
9
1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S.
Department of Justice.
10
2000 NCVS
11
2000 NCVS
12
Sex Offenses and Offenders. Bureau of Justice Statistics, U.S. Department of Justice,
February 1997:
13
Sexual Abuse of Boys, Journal of the American Medical Association, December 2, 1998
14
2002 Recidivism and Release Statistics 1994 For more statistics and links to all primary
sources, see RAINN‘s Statistics Archive
15
1999 National Crime Victimization Survey (NCVS). Bureau of Justice Statistics, U.S.
Department of Justice.
16
Probability statistics compiled by NCPA from US Department of Justice statistics. See
www.ncpa.org/studies/s229/s229.html
17
"Promoting. US Department of Justice. Office of Justice Programs. An Analysis of data on
Rape and Sexual Assault. Sex Offenses and Offenders‖ www.ojp.usdoj.gov/bjs/pub/pdf/soo.pdf
18
Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat
Survivors of Violence by Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago
Published: Violence and Victims, V. 14 (3), 1999
19
National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger and
NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the WA Coalition
of Sexual Assault Programs
20
National Judicial Education Program Sexual Violence: The Judge‘s Role in Stranger and
NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the WA Coalition
of Sexual Assault Programs
21
Excerpts from National Judicial Education Program Sexual Violence: The Judge‘s Role in
Stranger and NonStranger Sexual Assault Cases (April 2002, Second Edition) - Prepared by the
WA Coalition of Sexual Assault Programs
22
Drug-Facilitated Rape:. Looking for. the Missing Pieces. by Nora Fitzgerald and K. Jack Riley
www.ncjrs.gov/pdffiles1/jr000243c.pdf
23
Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat
Survivors of Violence Reviewed by Priscilla Schulz, LCSW from an article of the same title by:

43 of 49


Rebecca Campbell, and Sheela Raja, University of Illinois at Chicago, Published: Violence and
Victims, V. 14 (3), 1999
24
Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims: Insights from
Mental Health Professionals Who Treat Survivors of Violence‖ University of Illinois at Chicago,
Violence and Victims, V. 14 (3), 1999, National Violence Against Women Prevention Research
Center http://www.musc.edu/vawprevention/research/victimrape.shtml
25
Rebecca Campbell, and Sheela Raja, ―Secondary Victimization of Rape Victims: Insights from
Mental Health Professionals Who Treat Survivors of Violence‖ University of Illinois at Chicago,
Violence and Victims, V. 14 (3), 1999, National Violence Against Women Prevention Research
Center http://www.musc.edu/vawprevention/research/victimrape.shtml
26
The four injuries: How to get help after a victimization
http://www.trynova.org/victiminfo/victimizationhelp/fourinjuries.html
27
Lopez, P., 1992: ‗He Said…She Said…An Overview of Date Rape from Commission Through
Prosecution to Verdict‘ Journal of Consulting and Clinical Psychology vol. 13, pp. 275-302.
28
Joint Inspection Report, 2002: ‗Report on the Joint Inspection into the Investigation and
Prosecution of Cases involving Allegations of Rape‘ (London: HMCPSI) para. 6.8.
29
Sturman, P., 2000: ‗Report on Drug Assisted Sexual Assault‘ (London: British Home Office)
30
Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, PhD,
Journal, National Institute of Justice, Office of Justice Programs, U.S. Department of Justice,
Washington, DC: April 2000, http://www.ncjrs.org/pdffiles1/jr000243c.pdf
31
Drug-Facilitated Rape: Looking for the Missing Pieces, Nora Fitzgerald and K. Jack Riley, PhD,
Journal, National Institute of Justice, Office of Justice Programs, U.S. Department of Justice,
Washington, DC: April 2000, http://www.ncjrs.org/pdffiles1/jr000243c.pdf
32
American Prosecutors Research Institute, The Prosecution Of Rohypnol And Ghb Related
Sexual Assaults, Ch. 1, pp. 13 – 17 (1999) [hereinafter APRI] (describing twenty-one other drugs
used to facilitate sexual assault). I have chosen this focus because these three drugs have
garnered the most attention from the government, media, and medical field. Although I later argue
that this narrow focus should be avoided, I found it necessary to mirror these group‘s focus in
order to describe most accurately the overall response to the date rape drug crisis. It should be
clear from the outset of this paper, however, that my focus on Rohypnol, GHB, and ketamine in
no way suggests that these three drugs are the most prevalent or dangerous drugs related to
rape.
33
APRI, supra note 12, at Ch. 1, p. 5.
34
Dowd, S.M., Strong, M.J., Janicak, P.G. and Negrusz, A., 2002: ‗The Behavioural and
Cognitive Effects of Two Benzodiazepines Associated with Drug Facilitated Sexual Assault‘
Journal of Forensic Science vol. 47, pp. 1101-1107
35
Weir, E., 2001: ‗Drug Facilitated Date Rape‘ Canadian Medical Association Journal vol. 165
(1), p. 80
36
Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law
Enforcement, The National Center for Women and Policing, http://www.womenandpolicing.org/
Publication Date: May 2001
37
Successfully Investigating Acquaintance Sexual Assault : A National Training Manual for Law
Enforcement, The National Center for Women and Policing
http://www.womenandpolicing.org/
38
Labianca, D.A., 1998: ‗Rohypnol: a Profile of the Date Rape Drug‘ Journal of Chemical
Education vol. 75, pp. 719-722
39
Archambault, Joanne ―Dynamics of Sexual Assault‖ Training Director, Sexual Assault Training
and Investigations, SATI, Inc, SATI, Inc., Addy, WA 99101-0033, joanne@mysati.com
40
DEA Congressional Testimony October 10, 2002
Statement of Asa Hutchinson Administrator, Drug Enforcement Administration, Before the House
Judiciary Subcommittee on Crime, Terrorism, and Homeland Security,

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www.dea.gov/pubs/cngrtest/ct101002.html
41
―National Project on Drink Spiking: Investigating the nature and extent of drink spiking in
Australia‖ Commissioned by the Ministerial Council on Drug Strategy, Prepared by: Natalie
Taylor, Jeremy Prichard and Kate Charlton, Australian Institute of Criminology, November 2004,
http://www.aic.gov.au/publications/reports/2004-11-drinkspiking/2004-11-drinkspiking.pdf
42
43
44
Enforcement The National Center for Women and Policing
http://www.womenandpolicing.org/

45
DEA Congressional Testimony, Statement by: Richard A. Fiano, Chief of Operations Drug
Enforcement Administration, Before the: Caucus on International Narcotics Control Date: July 25,
2000

46
National Drug Intelligence Center, 319 Washington Street, 5th Floor, Johnstown, PA 15901
Tel. (814) 532-4601, FAX (814) 532-4690, E-mail NDIC.Contacts@usdoj.gov
National Drug Intelligence Center, 8201 Greensboro Drive, Suite 1001, McLean, VA 22102-3840
Tel. (703) 556-8970, FAX (703) 556-7807, Web Addresses: ADNET: http://ndicosa, DOJ:
http://www.usdoj.gov/ndic/ LEO: home.leo.gov/lesig/ndic/
47
[FN14]. Id. See also Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (quoting Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469, 491 (1975), as stating that privacy rights are "plainly rooted in the
traditions and significant concerns of our society"); Whalen v. Roe, 429 U.S. 589, 599-60 & n.23
(1977) (noting that prior opinions support including right to privacy on personal matters under
Fourteenth Amendment's Due Process Clause); Wolf v. Colorado, 338 U.S. 25, 27 (1949) ("This
Court has consistently asserted that the rights of privacy ... are to be regarded as of the very
essence of constitutional liberty."); F.E.R. v. Valdez, 58 F.3d 1530, 1535 (10th Cir. 1995)
(recognizing right of privacy in medical records); Daury v. Smith, 842 F.2d 9, 13 (1st Cir. 1988)
(recognizing "well-established" constitutional right of privacy that includes avoiding disclosure of
personal matters); Borucki v. Ryan, 827 F.2d 836, 839 (1st Cir. 1987) (noting that courts
recognize right of privacy under Fourteenth Amendment); Caesar v. Mountanos, 542 F.2d 1064,
1067-68 (9th Cir. 1976) (finding qualified constitutional right of privacy in counseling sessions with
psychotherapist); In re August, 1993 Regular Grand Jury, 854 F. Supp. 1375, 1378 (S.D. Ind.
1993) (recognizing constitutional right of privacy in psychotherapist records); Nat'l Transp. Safety
Bd. v. Hollywood Mem'l Hosp., 735 F. Supp. 423, 424 (S.D. Fla. 1990) (recognizing constitutional
right of privacy in medical and psychiatric records); Doe v. United States Civil Serv. Comm'n, 483
F. Supp. 539, 566-67 (S.D.N.Y. 1980) (finding constitutional right of privacy concerning disclosure
of personal matters); Hawaii Psychiatric Soc'y v. Ariyoshi, 481 F. Supp. 1028, 1039 (D. Haw.
1979) (recognizing constitutional right of privacy in Medicaid patient's mental health records);
McKenna v. Fargo, 451 F. Supp. 1355, 1380-81 (D.N.J. 1978) (finding constitutional right of
privacy concerning emotional and mental conditions); Lora v. Bd. of Educ., 74 F.R.D. 565, 571-74
(E.D.N.Y. 1977) (finding constitutional right of privacy in psychological information); Merriken v.
Cressman, 364 F. Supp. 913, 917-18 (E.D. Pa. 1973) (finding constitutional right of privacy in
information relating to family relationships and child rearing).
48
In re Pittsburgh Action Against Rape, 428 A.2d at 143 (Larsen, J., dissenting) ("Many victims
do not even bother to report a rape because they feel the process they must go through in order

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