Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

1.FOUNDATIONS

1.1.BACKGROUND INFORMATION ON DOMESTIC VIOLENCE & SEXUAL ASSAULT

The prosecution of domestic violence and sexual assault crimes have similar, troubling histories: in both, focus has been placed on the status of the victim rather than the actions of the perpetrator. The sexual history and social position of a rape victim was examined, rather than focusing on the conduct of the rapist. Society examined a domestic violence victim’s behavior as an excuse for why her spouse or partner was violent, rather than focusing on the offender’s criminal behavior. Society widely rationalized and tolerated violence, both sexual and domestic. Progress has occurred in the past three decades in identifying and punishing the perpetrators of domestic violence and sexual assault. However, many attitudinal and procedural obstacles to successful prosecution remain -- vestiges of these difficult legal histories.

1.1.1.A Brief History of Rape Law

The oldest written laws that make the act of rape a crime are from the Code of Hammurabi in the early seventeenth century B.C. The act was punished as a theft of property rather than a physical assault. A man who raped a virgin was slain; a man who raped a married woman was treated as an adulterer, and both he and his victim were drowned (though the husband of the rape victim was allowed to pull her from the river if he could bear to live with such a disgraced woman). The common law of the early Hebrews established a fine of 50 pieces of silver to be paid to the father of a virgin who was raped, and required the victim and rapist be married. A married Hebrew woman who was raped was also considered to be an adulteress and was killed. Later Talmudic readings were not so severe, but introduced strict resistance requirements as a condition precedent.
As the Middle Ages progressed, developments in rape laws were largely responses to the problem of bride capture -- whereby an abductor and rapist of a woman of high stature could claim the victim as wife and gain possession over her wealth. Men of property drew up statutes which did not nullify the claim of marriage by a rapist nor condemn the nature of the act, but only nullified the rapist’s claim to the victim’s property. In the earliest English common law, the punishment for rape consisted of penalties and compensations proportioned to the value set upon the life of a person by a fixed scale (the “wergeld”). A virgin commoner would receive 60 shillings for suffering a rape, a non-virgin commoner 30 shillings. The rape of a wealthy man’s wife entitled the husband to considerably more than the sum set for poorer husbands whose wives had been raped.
Before the twelfth century reign of King Henry II, when trial by jury replaced trial by combat or duel, a woman’s ability to achieve appropriate compensation for rape (and protection from it) was not only hampered by the wergeld, but also by her inability to fight. Thus, the advent of trial by jury was in itself a major advance for the rape victim, although from the start there were constrictive requirements for a rape complaint -- such as the display of bloody, torn garments.
A significant broadening of the law occurred in the thirteenth century: the concept of rape was expanded to include women other than men’s wives and daughters (e.g. justice for “matrons, nuns, widows and concubines”). In addition, punishment for the offender no longer depended upon the economic status of the victim. Most importantly, it was at this time that the state first expressed its own interest in prosecuting: if the rape victim did not sue within forty days, the right to prosecute automatically passed to the Crown. “This bold concept ... was a giant step for the law and for women. It meant that rape was no longer just a family misfortune and a threat to land and property, but an issue of public safety and state concern.” Brownmiller, Against Our Will 29 (Simon and Schuster 1975). However, requirements accompanied the expanded concept of rape -- such as proof of certain amounts of penetration, proof of ejaculation, age limitations for victim and rapist, and proof of resistance. These requirements are evidence of widespread fear that the claims and testimony of female victims should be treated with extraordinary caution, if not disbelief.
A longstanding fear of believing rape victims’ allegations is seen in the writings of major legal scholars of succeeding centuries. Blackstone, in the eighteenth century, pronounced that a delayed complaint was a false complaint. Hale’s nineteenth century maxim that “Rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, the reverse innocent” was universally quoted. Matthew Hale, 1History of the Pleas of the Crown 634 (R.H. Small 1847). Wigmore’s harsh evidentiary corroboration requirements carried the theme forward into the twentieth century.
At common law, rape was defined as “the carnal knowledge of a woman forcibly and against her will.” William Blackstone, 4 Commentaries 210. Since 1642, rape has been proscribed by statute in the Commonwealth of Massachusetts. See Commonwealth v. Burke, 105 Mass. 376, 380 (1870), citing the first rape statute codified at 2 Mass. Col. Rec. 21. But the concept of a rape victim as an untrustworthy witness impeded consistent prosecution of rape as a public wrong.
Before the 1960’s, the common law definition of rape generally used throughout the United States was ‘carnal knowledge of a woman not one’s wife by force or against her will.’ In 1962, the United State Model Penal Code (MPC) was established and updated the definition of rape. Under the MPC, “a man who has sexual intercourse with a female not his wife is guilty of rape if … he compels her to submit by force or threat of force or threat of imminent death, serious bodily injury, extreme pain, or kidnapping.” In addition to excluding rape within marriage, the MPC stated that rape by a voluntary social companion was a less serious offense than rape by a stranger, and treated the rape of men as a lesser felony than the rape of women.
The ‘sexual revolution’ of the 1960’s opened up increasingly public dialogues on human sexuality. The renaissance of the feminist movement in the 1960’s and 1970’s encouraged and empowered women to seek better treatment in courts. The victims’ rights movement began in the early 1970’s, when feminists opened the nation’s first rape-crisis centers; subsequently, prosecutors’ offices began to hire victims’ advocates, and a number of states amended their constitutions to protect victims’ rights.
The first rape crisis centers in Massachusetts were the Boston Area Rape Crisis Center (BARCC) and the Rape Crisis Center of Central Massachusetts. These centers, opened in 1973, were grassroots projects staffed and supported by volunteers. The centers’ volunteers developed new approaches to assisting survivors of sexual assault, most notably approaches employing an “empowerment model.” Empowerment models reveal the way a sexual assault robs a person of control over her body and power over her life, and stresses the need to re-empower survivors. To promote healing and recovery, the philosophy focuses on an individual’s inherent wisdom and knowledge. The counselors discovered that survivors of sexual assault have a particularly compelling need to be in control of their own lives, and are usually struggling with important, complex decisions. Accordingly, the rape crisis counselors work to help the survivors identify all of the options available to them and help decide which is best, in a non-judgmental way. The counselor acts as a sounding board.
Rape crisis center volunteers worked to influence and ally all people who come into contact with sexual assault victims – police, prosecutors, social workers, and medical personnel – to dispel common myths, to increase accountability, and to improve support services.
In 1982, federal block grants to states, including Massachusetts, helped fund greater numbers of rape crisis centers across the country, with the aim of creating an improved systemic response to the crime of rape. Starting in 1983, Massachusetts also distributed state funds to support rape crisis centers:
By 1987, sixteen rape crisis centers were funded by the Massachusetts Department of Public Health. An additional six opened between 1988 and 1999. Today, there are 18 comprehensive rape crisis center sites [through 19 contracts] funded in part by state and federal (PHHSBG and VAWA) funding through the Massachusetts Department of Public Health, each providing free services to rape and sexual assault survivors, as well as prevention education in their communities. Additional federal VAWA funding has supported some of the centers through the Massachusetts Executive Office of Public Safety since 1996.
Jane Doe, Inc., Taking Action Against Sexual Assault, A Call to Action in Massachusetts 14, (June 2001)(emphasis added).
Massachusetts’ rape crisis centers increased their presence and influence as well as their numbers:
In 1984, the Massachusetts Coalition of Rape Crisis Services (MCRCS) was founded for the purposes of building connections between developing rape crisis centers, sharing information about services, and developing political strength to mobilize toward legislative change. The MCRCS operated as an all-volunteer organization until 1995, when its first Executive Director was hired. At that time, The Massachusetts Coalition Against Sexual Assault (MCASA) was founded as a partner organization to house coalition building and statewide programming efforts. Later, in 1998, MCASA merged with the Massachusetts Coalition of Battered Women Service Groups to form Jane Doe Inc., The Massachusetts Coalition Against Sexual Assault and Domestic Violence.

Id. (emphasis added).
Because of the work of rape crisis centers, the work of other grass roots efforts within the emerging feminist and victims’ rights social movements, and the work of sensitive professionals within the medical and criminal justice communities, greater public attention focused on the lasting effects of violent crime, particularly rape. This attention revealed the mistreatment of rape victims in the court system, and revealed that rape does not only occur when a stranger attacks an adult woman and uses overwhelming force. State legislatures then responded to the public focus on these issues, and significant substantive rape law reform followed.
In the period of 1976-78 alone, over thirty-three states amended their rape statutes. Common substantive changes included the replacement of a single crime of rape with a series of graded offenses, the modification or revocation of corroboration and resistance requirements, and a redefinition of rape to include homosexual assaults, attacks upon male victims, acts of sexual penetration other than vaginal penetration, and sexual assaults with an object or finger. Threats, as well as overt force, were recognized as a means of overpowering victims. Taking advantage of incapacitated victims was recognized to be rape (including victims who were mentally ill or under the influence of drugs and alcohol). By 1980, more than forty states passed rape shield statutes to protect a victim from being forced to reveal and be judged by his or her past sexual conduct (Massachusetts’ statute, Mass. Gen. Laws ch. 233, § 21B, was first enacted in April 1977 and later amended in 1983). Enactment of the Massachusetts’ Rape Crisis Counselor Privilege in 1984, Mass. Gen. Laws ch. 233, § 20J, protected the privacy of conversations between sexual assault victims and rape crisis counselors.
Until recently, a woman could not lodge a complaint of rape against her husband. The spousal rape exemption implicitly classified marital rape as mere sex. A wife’s supposed consent to sex in marriage was seen as consent to be raped. “It would always be competent for a party indicted to show in defense of a charge of rape that the woman on whom it was charged to have been committed was his wife.” Commonwealth v. Fogerty, 74 Mass. 489, 491 (1857). Nebraska was the first state to abolish the marital rape exemption --- in 1976. In 1980 portions of the marital rape exemption were still included in the Model Penal Code: “The problem with abandoning the immunity in many such situations (of rape by force or threat) is that the law of rape, if applied to spouses, would thrust the prospect of criminal sanctions into the ongoing process of adjustment in the marital relationship.” Model Penal Code § 213.1 cmt.
In 1981, the Massachusetts Supreme Judicial Court affirmed a lower court’s decision to convict a husband for the rape of his wife, Commonwealth v. Chretien, 383 Mass. 123 (1981) and in 1991, the Massachusetts Legislature explicitly prohibited relationship-based exemptions for sexual crimes. By 1993, marital rape had become a crime in all 50 states.
By 1984, Congress had passed the Victims of Crime Act (VOCA), which used revenues from bail forfeitures and fines to subsidize state programs for crime victims. In 1986, VOCA established sexual assault as one of the priority funding areas. The Massachusetts Office for Victim Assistance (“MOVA”) distributes these funds, which are also used to fund services for victims and families of child sexual abuse and assault.

The Violence Against Women Act (VAWA) was passed by Congress in 1994, after four years of hearings and documentation demonstrated how violence against women affects interstate commerce and interferes with a woman’s ability to enjoy equal protection. The act was passed pursuant to Congressional authority under both the Commerce clause and the Fourteenth Amendment. VAWA was the first federal legislation specifically aimed at addressing crimes of violence against women. The landmark legislation made domestic violence a federal crime, and increased funding for victim services and coordinated community responses to gender-based crimes. (VAWA also implemented a civil rights remedy based on a civil right to be free from crimes of violence motivated by gender. However, the United States Supreme court recently held, in U.S. v Morrison, 529 U.S. 598, 120 S. Ct. 1740 (2000), that the civil rights remedy was unconstitutional. The five to four decision held that neither the Commerce Clause nor the Enforcement Clause of the 14^th Amendment provided Congress with the authority to enact such a provision.)
Three state agencies are responsible for administering VAWA funds in Massachusetts: the Executive Office of Public Safety/ Programs Division, the Department of Public Health, and the Department of Social Services. Advisory groups from each of these agencies convened and then subsequently founded Massachusetts’ Statewide Sexual Assault Prevention and Intervention Network (SSAPIN) in 1999.
Congress passed the Violence Against Women Act in 2000, and again in 2005, to continue the funding of victim services and coordinated community responses.
Four projects in Massachusetts in the 1980’s and 1990’s were particularly significant in improving sexual assault victim services: the development of the Massachusetts Sexual Assault Evidence Collection Kit, the development of a training manual for providing services to survivors of sexual assault, the development of SAIN Teams, and the creation and expansion of the Sexual Assault Nurse Examiner’s Program.

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  A multi-disciplinary ad hoc group, called the “Rape Working Group,” was formed in 1983 to analyze how to better enforce laws against rape and how to better serve victims of rape in Massachusetts. The group focused on the creation of a uniform kit to improve the collection and preservation of evidence from rape victims reporting to hospital emergency departments. The Massachusetts Sexual Assault Evidence Collection Kits were first produced in 1988 and have since been provided annually to all hospitals, free of charge, by the Executive Office of Public Safety, Programs Division.
  

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  The training manual on providing survivor services, entitled “Reclaiming Our Lives,” was a seminal work whose influence in improving services for sexual assault survivors remains widespread. The manual was written and distributed by the Massachusetts Coalition of Rape Crisis Services in 1986 and was funded by the Department of Public Health. A new manual, “Supporting Survivors of Sexual Assault,” was published by DPH and Jane Doe in 1996, and again in 2002.
  

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  The Sexual Assault Intervention Networks (SAIN Teams) are collaborative efforts by medical, forensic, criminal justice, and social services agencies to coordinate multidisciplinary investigations of and responses to allegations of child sexual assault. Scheduled team meetings improve the coordination of services, and compel representatives of all involved agencies to be present when a child is interviewed, in order to prevent multiple interviews for child victims and their families. SAIN Teams were first convened in the mid-1980’s; by 1995 SAIN teams were established state wide, with funding administered by the Department of Social Services.
  

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  In 1995 the Sexual Assault Nurse Examiner (SANE) Program was developed at the Department of Public Health, and its first sites opened in hospitals in Boston and Lawrence in the following year. The program’s primary goal is to improve the treatment of victims of sexual assault in emergency room settings through high quality, coordinated care provided by specially trained nurses. The nurses are trained to conduct examinations skillfully and sensitively, to carefully collect and preserve evidence pursuant to a standardized statewide protocol, and to present effective testimony in court. SANE is currently operating at 25 sites across the state.
  

As stated in a recent report by Jane Doe, Inc., the legislative, institutional, and cultural changes made over the past three decades reveal much progress in society’s understanding of the dynamics and implications of sexual assault:

As progress has been made in society’s understanding of rape and sexual assault, previously silenced populations of survivors have come forward: children, inmates, teens victimized by dating partners, immigrants, gay men, lesbians, transgender people, homeless people, heterosexual men, survivors of street violence and political violence. We now recognize rape and sexual assault as an integral component of domestic violence; as a hate crime perpetrated on targeted victims (both women and men); as a random act of violence; and as a tool of political and social oppression. The United Nations, in an historic declaration in 1993 proclaimed that rape violates the basic human rights that must be accorded to every citizen of the world.
Jane Doe, Inc., Taking Action Against Sexual Assault, A Call to Action in Massachusetts 16 (June 2001) (emphasis added).
However, the need for further systemic and legislative reform remains acute. Perceptions are still based on myths and other vestiges of the troubled history of rape law. For example, despite the fact that marital rape is now a crime in all 50 states, the public’s knowledge and/or acceptance of the doctrine is far from uniform. As of 1996, 33 of these states (not including Massachusetts) still allowed exemptions where physical force is not used.
The message given is that rape is sex, as consented to in marriage, unless it is accompanied by other forms of overt physical violence and injury. Yet, rape survivors and advocates can attest that rape, while always a crime of violence, may not be “violent” in a manner that can be demonstrated in court. Most rape is perpetrated by dates, significant others, acquaintances, or relatives. Coercion, past violence, and implicit threats of harm -- rather than actual “violent force” -- are often the weapons. Even when force is used, there is not necessarily physical evidence that can be presented in court. Many survivors choose not to fight back, choosing to avoid greater physical injury or death. They often are not believed unless they can point to bruises, weapons, and an appropriately “villainous” perpetrator. Laws such as the partial rape exemptions reinforce these norms, and discourage the reporting and prosecution of crimes.
Massachusetts Dept. of Public Health, Bureau of Family and Community Health, Supporting Sexual Assault Survivors: A Journey to Justice, Health and Healing 5 (1997) (emphasis added).

The fear that one will be injured or killed is equally as common among women who are raped by husbands and dates as among women who are raped by total strangers. D.G. Kilpatrick et. al., Criminal victimization: Lifetime prevalence, reporting to police, and psychological impact, in Crime and Delinquency 33:479-489 (1997). Yet, the Massachusetts Behavioral Risk Factor Surveillance System, a survey conducted by the Massachusetts Department of Health in 1997, revealed that ten percent of the adult Massachusetts residents surveyed believed that “it might be ok” to make a spouse have sex without his or her consent.