The Corroboration Debate and the Word of a Rape Survivor
In Scotland, the corroboration requirement necessitates that there must be two separate sources of evidence before a case can proceed to trial. It means that a person accused of rape cannot be convicted on the word of one person alone with no supporting evidence.
It’s been debated again and again whether the requirement to corroborate the word of a rape complainant should be dropped in Scotland.
In the US, most jurisdictions have abolished the corroboration requirement, recognising that it is based on misogyny and rape myths. Nevertheless, cases are seldom prosecuted on the basis of witness or victim testimony alone, suggesting the word of the complainant is not enough. This can be illustrated by the Baylor College rape case in the media this week. In this case, the prosecution struck a plea deal with Anderson, the defendant who, at the time of the rape, was a fraternity president at Baylor College.
Anderson was accused of drugging, repeatedly raping and leaving the victim for dead.
He pled guilty to a lesser charge of unlawful restraint. He was given three years' probation, a $400 fine, and psychological and substance abuse treatment. He will not have to register as a sexual offender.
Why didn’t the prosecutor try him for rape?
First, the prosecution worried about the victim’s feelings if a jury rendered a not guilty verdict. The prosecutor said:
"…it would be worse to try Anderson and lose and have the entire matter wiped from his criminal history than to accept this plea offer. Not to mention the emotional damage [this victim] would have to deal with if she had to testify and then felt the jury thought she was a liar."
This reasoning reinforces the incorrect view that the verdict of a jury decides the truth of a matter. A ‘not guilty’ verdict indicates that the jury thought that the standard of evidence required to convict was not reached. We need to educate the public about this issue. We also need to stop blaming victims for failed prosecutions.
Second, Anderson was not charged with rape because the forensic evidence was complicated by the complainant being a virgin. Yes, you read the right. The prosecutor said:
“To speak frankly as to the injuries in [the] Anderson [case], the research suggests that victims with no sexual experience are more likely to be injured because a sexual encounter is their first. So medically speaking, [this victim's] innocence and lack of experience makes the medical evidence less helpful."
So much for the usefulness of corroborating evidence.
Third, the prosecutor compared the Anderson case to another high-profile rape case in which the complainant had genital injuries and the defendant’s DNA was found on her underwear. The jury issued a not guilty verdict in that case.
The fact that the defendant’s DNA was found in the complainant’s underwear didn’t matter--to the jury, it just proved the defendant was near the complainant.
The jurors in Morgan also felt that the defendant did not look like a rapist. Further, the defendant was alcohol-intoxicated at the time of the alleged offense; jurors felt that they could not send someone to prison under these circumstances. (Anderson also said he was alcohol-intoxicated.)
The Morgan case sealed the fate of the Anderson case.
What seems to matter more than anything else is whether we believe the complainant. (In our work, we found prosecution was more likely when the crime was severe and the defendant had a prior criminal record, even in stranger rape cases where there was physical evidence.) We have to do all that we can to improve how we obtain memory evidence from complainants during police and prosecutor interviews to improve the quality of investigations. Here is a prosecutor’s guide that I think is particularly exemplary with regard to building rape cases. It was written for circumstances in which the complainant was too intoxicated to consent, but the rigorous investigation principles that it outlines seem like they would also be effective in other types of rape cases. We also need to do a lot more work to figure out how to change hostile attitudes towards women and put an end to the rape myths and stereotypes that prevent us from achieving justice.
I also urge my colleagues keep doing jury research. I often wonder if perhaps the literature from the naughties and earlier may be outdated, particularly in light of recent survey results that suggest younger people may have more “progressive” attitudes towards consent. Past research suggests that extralegal factors (e.g., alcohol use on the part of the complainant, the complainant’s community reputation) negatively impact case processing. I think some of this old literature needs updating, particularly if prosecutors are being swayed by cases that stand out in their mind, which is an example of the power of availability bias to lead to judgement error.
Prosecutors should instead be swayed by systematic research evidence about biases that details the circumstances in which they are most likely to hold.