An American rape trial: how the adversarial system of the American court serves to privilege the framing of rape as consensual sex
Only one percent of rapes or attempted rapes that go to trial in theUnited States gain a conviction (Russel 1984). Researchers concur that
the language used in sexual assault adjudication routinely reframes sexual assault as consensual sexual contact (Coates, Bavelas, & Gibson 1994; Drew1992; Ehrlich and King 1993; Matoesian 1993), even as the so-called 'rapeshield laws' (1) attempt to prevent such re-abuse of victims on the
stand. How is this seeming contradiction maintained in the American criminalcourts? In an analysis of courtroom discourse, I demonstrate how
the adversarial structure, a defining framework in American courts, not
only virtually requires that the victim's credibility is called into
question, but also serves to privilege the reinterpretation of the crime of rape
as consensual sex.
The American criminal adversarial structure has been described as "adramatic contest aimed at shaping two mutually inconsistent interpretations of common data" (Goodpaster 1987: 120).
Through examination of the discourse from the cross-examination of a female
rape victim in a multiple-rape case, I demonstrate that the
cross-examining attorney uses contrastive markers and challenge questions to construct
an oppositional stance in relation to the witness. By frequently using
the contrastive markers 'but' and 'well' the attorney signals his
oppositional footing 'vis a vis' the victim. The attorney's questioning
strategies also compel the victim to concede seeming, though not always actual,contradictions in her own testimony. Such sequences between the attorneyand victim underscore their participation in a 'dramatic contest'.
These discursive features not only strategically structure the cross-examinationas an adversarial event, but also seem to impugn the witness's
credibility and the reliability of her testimony.
The defense attorney's use of these oppositional discourse strategies
alone have the potential to damage the victim's claims. But the
strategies do not operate on their own. As the research cited above has shown, interpretive strategies that subtly suggest that the victim
welcomed sexual advances are ubiquitous. In the case analyzed, the
defense attorney invokes schemas--expectations associated with situations, people,etc. (Tannen 1993)--which frame the victim 1) as one who stands
accused and rejects responsibility to tell the truth, and 2) as a sexual reprobate. These schemas contribute significantly to reframing the rape as consensual sex. I demonstrate that these subtle interpretive
devices gain prominence and plausibility because they are collocated
with challenges to the victim's credibility.
Through the use of discursive strategies which enact opposition, the
defense attorney creates an environment in which two opposing views are
unequally credible. Because the testimony of the victim is so frequently
considered the crux of the evidence offered in a rape case, these tacticscan do irreparable harm to the victim's charge of rape. Thus,
the structure of the system itself privileges the interpretation that
the events under examination were consensual, not criminal.
Footnotes
(1) Rule 412 of the Federal Rules of Evidence which precludes the use of character evidence to establish the sexual propensities of the victim
of a sexual offense (Rice 1990: 172).
References
Coates, Linda, Janet Beavin Bavelas & James Gibson. 1994. Anomalous
language in sexual assault trial judgement. Discourse and Society. 5(2)April:189-206.
Drew, Paul. 1992. Contested evidence in courtroom cross-examination: The case of a trial for rape. In Paul Drew and John Heritage (eds.). Talk
at work: Interaction in institutional settings. New York:Cambridge University Press. Pp. 470-520.
Ehrlich, Susan and Ruth King. 1993. Consensual Sex or Sexual Harassment:
Negotiating Meaning. Paper delivered at the Language-Gender Interface: Theories and Methods for Research and Teaching, Columbus, Ohio, July 1993.
Goodpaster, Gary. 1993. On the Theory of American Adversary Criminal Trial. The Journal of Criminal Law & Criminology. 78(1): 118-154.
Matoesian, Gregory M. 1993. Reproducing Rape: Domination through Talk in
the Courtroom. Chicago: The University of Chicago Press.
Rice, Paul R. 1990. Evidence: Common Law and Federal Rules of Evidence.
2nd Edition. Oakland, CA. Matthew Bender & Company.
Russel, D. 1984. Sexual Exploitation. Beverly Hills: Sage. Tannen, Deborah. 1993. Framing in Discourse. New York: Oxford University
Press.