Rape and the Culture of the Courtroom

Rape and the Culture of the Courtroom is both a provocative analysis of why rape prosecutions remain so difficult, despite the rape reform laws of the 1980s, and a blueprint for change. Andrew Taslitz, a law professor and former prosecutor in juvenile sexual assault cases, argues that rape trials are a "sham" that silence rape victims and exclude women as a group from civil society. To make his point, he reviews social science research with a particular focus on linguistics. Through linguistic analyses of actual cases, he shows how cultural narratives about rape are recreated in the courtroom. Although a defense attorney cannot ask about a victim's sexual background, for example, he may use subtle innuendos, proxies, or other linguistic devices that cue jurors to place the victim into the category of "slut" or "scorned woman" which, in turn, equates with "liar." Taslitz' linguistic analysis jives with my experiences in court. When I've been retained as an expert for the government (prosecution) in rape cases in which the defense was consent, I've been amazed at how rarely jurors convict even when the evidence is pretty solid and the woman has no plausible reason to lie. Taslitz emphasizes that even jurors who are consciously pro-feminist may fall prey to appeals to subconscious cultural scripts about virtuous womanhood. Taslitz provocatively argues that the treatment of women in rape trials violates the 14th Amendment (Equal Protection Clause) of the U.S. Constitution because rape victims are retraumatized and women as a class are subordinated and excluded from meaningful participation in public life. He proposes several legislative reforms, including: (1) allowing rape victims to present their stories in an uninterrupted narrative, (2) using "intermediaries" rather than defense attorneys to question the victims, and (3) having linguistic experts explain to jurors the effects of subconscious biases on decision-making. To me, these changes seem unlikely to occur. But it is an intriguing argument, coherently and accessibly presented. No matter who you are, if you read the book, you are guaranteed to learn something.