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Beyond Legislation: Genuine Change in the Interaction between Victims of Sexual Crimes and the Criminal Law System

Published online by Cambridge University Press:  28 September 2015

Tzili Paz-Wolk
Tzili Paz-Wolk*
Affiliation:
PhD, Hebrew University of Jerusalem, Israel; independent researcher.
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Abstract

This article examines the changes in the encounter between sexual assault victims and representatives of the law enforcement and judicial systems in Israel as perceived by workers and volunteers in the sexual assault crisis centres. After more than four decades of action in legal contexts – from spurring changes in legislation, through the training of professionals within the legal system, up to escorting victims – it is still hard to find studies that describe any change beyond legislation and procedures in the forms that this encounter assumes in Israel and in the world.

For the purpose of the study, this interaction was separated from the other aspects of the procedure, observed in depth and, with the interviewees' help, broken down into its relevant components. Data gathered and processed using quantitative and qualitative methods show that, according to the impression of the critical and experienced interviewees, representatives of the legal system truly endeavoured during the first decade of the second millennium to provide victims with better conditions than in the past, encouraging them to speak out in criminal proceedings.

As a possible background for the changes in the interpersonal encounter, the article suggests focusing on two mutually related processes, historical but also ongoing. The first is a change in the modes of thought and action in the crisis centres that dealt with this matter and promoted specific changes in the interpersonal encounter. The second process is reflected in the way in which legislators chose to intervene in the interpersonal encounters through four sections in the Rights of Victims of Crime Law. These processes influenced one another and still largely accompany the developments in this sphere, teaching important lessons about change in systems that are not easily amenable to change.

Keywords

sexual assaultvictim rights actcriminal justice systeminstitutional change
Type
Articles
Information
Israel Law Review , Volume 48 , Issue 3 , November 2015 , pp. 357 - 385
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2015 

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References

1 The most specific reference is found in the Rights of Victims of Crime Law, 2001, and clearly attests to a special attitude that, ‘justifiably’ or ‘unjustifiably’, discriminates in the victim's favour: see Gross, Emanuel, ‘The Victim's Constitutional Rights: A Comparative Study’ (2002) 17 Bar-Ilan Law Studies 419Google Scholar (in Hebrew); Pugach, Danah, ‘The Victims' Revolution – The Day After: Towards a Model that Recognizes Personal Punishment Considerations?’ (2004) 4 Kiryat Hamishpat 229Google Scholar (in Hebrew). A special attitude is also conveyed in the exclusion of these victims from criminal law as, for example, in some of the non-criminal contexts of the Sexual Harassment Law (Kamir, Orit, ‘Israel's Sexual Harassment Law after Its First Decade: An Assessment of Its Achievements and Failings’ (2008) 9 Law and Business 9Google Scholar (in Hebrew)) as well as in the Civil Service Ordinances that copied verbatim some of the new norms that the law had anchored (David Bar-Ophir, The Rights of Victims of Crime Law in the Case Law (Perlstein-Ginosar 2007)).

2 Susan Brownmiller, Against Our Will (Bantam Books 1975); MacKinnon, Catherine A, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence’ (1983) 8 Signs: Journal of Women in Culture and Society 635Google Scholar; Hadar Dancig-Rosenberg, ‘Sexual Assault Victims: Empowerment or Re-Victimization? The Need for a Therapeutic Jurisprudence Model’ in Natti Ronel, K Jaishankar and Moshe Bensimon (eds), Trends and Issues in Victimology (Cambridge Scholars 2008) 150, 159; Andrew E Taslitz, Rape and the Culture of the Courtroom (NYU Press 1999) 99.

3 This information relies on the interviews conducted for the purpose of this study, presented below, where all the units' directors at the sexual assault crisis centres attested that they receive many requests for training courses and also initiate some themselves.

4 Rights of Victims of Crime Law, 2001 (Israel), s 14.

5 Some of the escorts may be lawyers, but being a lawyer is neither a condition nor an advantage in ensuring participation in the training courses offered by the crisis centres.

6 Campbell, Rebecca, ‘Rape Survivors' Experiences with the Legal and Medical Systems: Do Rape Victim Advocates Make a Difference?’ (2006) 12 Violence Against Women 30Google Scholar. Most interviewees thought that the escort's presence encourages the parties to abide by the formal and informal rules of the encounter, because the information may reach further agencies – from the escort, to the unit's director at the crisis centre, and back to the care of a more senior level within the law enforcement and judicial systems. This is a frequent event: the escort returns to the crisis centre and objects to behaviour that is insensitive or against the rules.

7 Martha R Burt, ‘Rape Myths and Acquaintance Rape’ in Andrea Parrot and Laurie Bechhofer (eds), Acquaintance Rape (John Wiley 1991) 26; Carol Smart, Feminism and the Power of Law (Routledge 1989); Scheppele, Kim Lane, ‘Just the Facts, Ma'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth’ (1992) 37 New York Law School Law Review 123Google Scholar; Rimalt, Noya, ‘Stereotyping Women, Individualizing Harassment: The Dignitary Paradigm of Sexual Harassment Law between the Limits of Feminism’ (2008) 19 Yale Journal of Law and Feminism 391Google Scholar.

8 Muehlenhard, Charlene L and Kimes, Leigh Ann, ‘The Social Construction of Violence: The Case of Sexual and Domestic Violence’ (1999) 3 Personality and Social Psychology Review 234Google Scholar; Baker, Katharine K, ‘Gender and Emotion in Criminal Law’ (2005) 28 Harvard Journal of Law and Gender 447Google Scholar.

9 Rosemarie Tong, Women, Sex and the Law (Rowman and Littlefield 1984); Susan Estrich, Real Rape (Harvard University Press 1987); Fiona E Raitt, ‘Gender Bias in the Hearsay Rule’ in Mary Childs and Louise Ellison (eds), Feminist Perspectives on Evidence (Cavendish 2000) 59.

10 Mont, Janice Du and Myhr, Terri L, ‘So Few Convictions: The Role of Client-Related Characteristics in the Legal Processing of Sexual Assaults’ (2000) 6 Violence Against Women 1109Google Scholar; Jordan, Jan, ‘Will Any Woman Do? Police, Gender and Rape Victims’ (2002) 25 Policing: An International Journal of Police Strategies & Management 319Google Scholar.

11 Carol Gilligan, In a Different Voice: Psychological Theory and Women's Development (Harvard University Press 1993); Torrey, Morrison, ‘When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions’ (1991) 24 University of California Davis Law Review 1013Google Scholar; Mack, Kathy, ‘Continuing Barriers to Women's Credibility: A Feminist Perspective on the Proof Process’ (1993) 4(2) Criminal Law Forum 327Google Scholar.

12 Esther Eillam, Rape Survivors, Rape Crimes and the Authorities (The Jerusalem Institute for Israel Studies Research Series No 58, 1994) (in Hebrew).

13 Negbi, Irit and Berenblum, Tamar, ‘A Critical Feminist View of the Impact of Legislative Reforms in Rape Law’ (2011) 16 HaMishpat Law Review 209Google Scholar (in Hebrew); Ajzenstadt, Mimi and Steinberg, Odeda, ‘Never Mind the Law: Legal Discourse and Rape Reform in Israel (2001) 16 Affilia 337Google Scholar. One exception was an MA thesis which described, possibly for the first time, satisfaction with the professionals' conduct: Na'ama Tamari Lapid, ‘A Lesson in Voice Development: Experiences of Sexual Assault Survivors in the Legal Process’, MA thesis, Hebrew University of Jerusalem, 2008 (in Hebrew). Although her sample was small, 10 out of 11 of the victims who were interviewed supported her conclusion about the therapeutic value of the proceedings, which increases with the growing opportunity to speak out. Only one victim described her participation in the criminal proceedings in terms of a ‘second assault’.

14 Almost all the studies following up legal reforms throughout the world focus on quantitative variables, and they are the source of the conclusion that these reforms fail. Quantitative variables, however, can reflect only part of the reforms' goals, such as the percentages of reported crimes and the number of convictions: Goldberg-Ambrose, Carole, ‘Unfinished Business in Rape Law Reform’ (1992) 48 Journal of Social Issues 173Google Scholar; Scott Clark and Dorothy Hepworth, ‘Effects of Reform Legislation on the Processing of Sexual Assault Cases’ in Julian V Roberts and Renate M Mohr (eds), Confronting Sexual Assault: A Decade of Legal and Social Changes (University of Toronto Press 1994) 113; Clay-Warner, Jody and Burt, Callie Harbin, ‘Rape Reporting after Reforms: Have Times Really Changed?’ (2005) 11 Violence Against Women 150CrossRefGoogle ScholarPubMed.

15 Bilsky, Liora, ‘The Violence of Silence: The Legal Procedure between Allocation and Voice’ (2000) 23 Iyuney Mishpat [Tel Aviv University Law Review] 421Google Scholar (in Hebrew).

16 Lynda Lytle Holmstrom and Ann Wolbert Burgess, The Victim of Rape: Institutional Reactions (John Wiley & Sons 1978); Warren Young, Rape Study: A Discussion of Law and Practice, vol. 1 (Department of Justice and Institute of Criminology 1983); Kate J Gilmore, June Maree Baker and Lise V Pittman, To Report or Not to Report: A Study of Victim/Survivors of Sexual Assault and Their Experience of Making an Initial Report to the Police (Centre against Sexual Assault 1993); Martin, Patricia Yancey and Powell, Marlene R, ‘Accounting for the “Second Assault”: Legal Organizations' Framing of Rape Victims’ (1994) 19 Law and Society Inquiry 853Google Scholar. A deep analysis of the organisational routine in the law enforcement system showed that professionals resort to offensive practices even when they do not mean to and that they view these practices as a professional need, and at times even as imperative, even though this is not how these practices are described in the rules or the laws regulating the organisation's activity: Patricia Yancey Martin, Rape Work: Victims, Gender and Emotions in Organization and Community Context (Routledge 2005).

17 Endorsement of this approach might prevent the location of positive processes of change, leading to studies that recurrently describe failures and risk missing successes: Neil Gilbert, ‘Advocacy Research and Social Policy’ (1997) 22 Crime and Justice 101.

18 Rebecca Campbell, ‘What Really Happened? A Validation Study of Rape Survivors' Help-Seeking Experiences with the Legal and Medical Systems’ (2005) 20 Violence and Victims 55; Gregory M Matoesian, ‘Language, Law and Society: Policy Implications of the Kennedy Smith Rape Trial’ (1995) 29 Law and Society Review 669.

19 Zipora Hauptman, ‘Rape: The Consent Concept and the Law of Evidence’ in Frances Raday, Carmel Shalev and Michal Liban-Kooby (eds), Women's Status in Israeli Law and Society (Schocken 1995) 189 (in Hebrew).

20 Kamir (n 1).

21 Uri Yanay and Tali Gal, ‘Lobbying for Rights’ in Shlomo Giora Shoham, Paul Knepper and Martin Kett (eds), International Handbook of Victimology (CRC Press 2010) 373, 382–84.

22 All crisis centres in Israel have a coordinator in charge of dealing with criminal proceedings, at times as part of a broader role and mostly as an independent position. In two of the centres, two people are in charge of this area and they split between them the contact with the various organisations in the system. The expansion of this trend is clearly gaining momentum. On the understanding of the role of these coordinators, Ajzenstadt and Mundlak claim that all change processes that come ‘from above’, through legislation, require for their success the action of mediating agents between the system and the individuals or the groups intended to benefit from the change. This mediation, between different languages, regulations, values, world views and so forth, is an important part of the coordinators' work and is discussed below in greater detail: Mimi Ajzenstadt and Guy Mundlak, ‘Empowerment on Trial’, in Mimi Ajzenstadt and Guy Mundlak (eds), Empowerment on Trial (Nevo 2008) 9.

23 Irving E Seidman, Interviewing as Qualitative Research: A Guide for Researchers in Education and the Social Sciences (Teachers College Press 1991); Steinar Kvale, InterViews: An Introduction to Qualitative Research Interviewing (Sage 1996).

24 Landau notes that a victimised identity leads to the restriction of other identities. Victims tend to overestimate or underestimate their injury and their suffering and, therefore, are not necessarily the best source for judging the treatment they have received: Simcha F Landau, ‘The Social Perception of Victimization: An Outline for the Definition of the Dimensions of Victimology’ in Meir Hovav, Leslie Sebba and Menachem Amir (eds), Trends in Criminology: Theory, Policy and Practice – Essays in Honor of Menachem Horowitz for his 80th Birthday (Sacher Institute for Legislative Research and Comparative Law and Institute of Criminology, Faculty of Law, The Hebrew University 2003) 797 (in Hebrew).

25 Campbell (n 18).

26 The analysis in this study relied on a combination of two central approaches in qualitative research: Asher Shkedi, ‘Narratives-based Theory: Structuring Theory in Qualitative Research’ in Lea Kacen and Michal Krumer-Nevo (eds), Qualitative Data Analysis (Ben-Gurion University Press 2010) 436 (in Hebrew); Joseph A Maxwell, Qualitative Research Design: An Interactive Approach (2nd edn, Sage 2005).

27 Similar though different themes emerged in studies all over the world: see, eg, Wolf, Marsha E and others, ‘Barriers to Seeking Police Help for Intimate Partner Violence’ (2003) 18 Journal of Family Violence 121Google Scholar; Jordan, Jan, ‘Worlds Apart? Women, Rape and the Police Reporting Process’ (2001) 41 British Journal of Criminology 679Google Scholar; Campbell, Rebecca and Raja, Sheela, ‘The Sexual Assault and Secondary Victimization of Female Veterans: Help-Seeking Experiences with Military and Civilian Social Systems’ (2005) 29 Psychology of Women Quarterly 97CrossRefGoogle Scholar.

28 An approach combining quantitative and qualitative methodologies has become dominant in the last two decades, which overcomes their respective weaknesses and increases the credibility of the study. On this matter, see Morgan, David L, ‘Paradigms Lost and Pragmatism Regained: Methodological Implications of Combining Qualitative and Quantitative Methods’ (2007) 1 Journal of Mixed Methods Research 48Google Scholar; Bracha Alpert, ‘Integrating Quantitative Analyses in Qualitative Studies’ in Kacen and Krumer-Nevo (n 26) 333.

29 Merav Dadya and Ido Darviyan, ‘The Victim in the Legal Proceedings’ in Zviya Seligman and Zahava Solomon (eds), Critical and Clinical Perspective on Incest (2004) 498 (in Hebrew).

30 ibid 508, 510.

31 This finding has also emerged in previous studies: see, eg, Uri Yanay ‘The Introduction of the “Victim Impact Statement” in the Israeli Courts of Law’ in Hovav, Sebba and Amir (n 24) 235.

32 Dadya and Darviyan (n 29) 508.

33 A familiar problem emerges when the changes sought are too extreme for the system to contain, and the coalition supporting them is not sufficiently broad to implement them within the context of the legal activity: Berger, Ronald J, Searles, Patricia and Neuman, Lawrence W, ‘The Dimensions of Rape Reform Legislation’ (1988) 22 Law and Society Review 329Google Scholar. Of the thousands of crisis centres established in recent decades, only those that showed flexibility and adaptability appear to have survived: Rebecca Campbell and Patricia Yancey Martin, ‘Services for Sexual Assault Survivors: The Role of Rape Crisis Centres’ in Claire M Renzetti, Jeffrey L Edelson and Raquel Kennedy Bergen (eds), Sourcebook on Violence Against Women (Sage 2001) 227.

34 Rights of Victims of Crimes Law, 2001 (Israel), s 1.

35 ibid s 3.

36 ibid ss 14, 15.

37 ibid s 14a.

38 ibid s 13.

39 In all the reforms dealing with the rights of victims of crime, legislators were rightfully concerned also with the rights of suspects and defendants in criminal proceedings. All reforms point to attempts to refrain from violating these rights and from granting crime victims any rights that could do so: Landau, Simha F and Freeman-Longo, Robert E, ‘Classifying Victims: A Proposed Multidimensional Victimological Typology’ (1990) 1 International Review of Victimology 267Google Scholar. Given the diverse interests present at the time of instituting reforms as well as the sincere concern for the rights of suspects and defendants, speaking out in the sense presented in this work was often less significant a goal to legislators, even though it played a part at the declarative level: Yanay and Gal (n 21); Sebba, Leslie, ‘Victims' Rights and Legal Strategies: Israel as a Case Study’ (2000) 11 Criminal Law Forum 47Google Scholar.

40 Criminal Procedure Revision (Examination of Witnesses) Law, 1957 (Israel), s 2.

41 Rights of Victims of Crimes Law, 2001 (Israel), s 13.

42 ibid ss 14, 15.

43 Since 1988, the State Attorney has been publishing directives that are periodically updated concerning assistance for crime victims and prosecution witnesses in criminal proceedings (Directive 14.7) as well as concerning the management of the criminal proceedings in a sexual abuse offence or in another offence against a minor within the family (Directive 14.1). These directives do not deal at all with the proper way of conducting the interpersonal encounters between the State Attorney's representatives and the victims. The only directives relevant to the current discussion deal with the prosecutor's obligation to intervene when the privacy or dignity of victims serving as witnesses is at risk.

44 The victim's characteristics and the degree of trust that she evokes have always been a central consideration in the decision on whether to press charges against the suspect, not only in cases where legal evidence is lacking but also in legally strong cases: Jeffrey W Spears and Cassia C Spohn, ‘The Effect of Evidence Factors and Victim Characteristics on Prosecutors' Charging Decisions in Sexual Assault Cases' (1997) 14 Justice Quarterly 501.

45 Progress in the proceedings entails further focusing on their legal aspect at the expense of others, such as the victim's feelings or the broader context of the relationship, which is sometimes extremely relevant to her but legally redundant. Whereas general legal and other questions are raised at the police station and the story opens up, the questions at the prosecutor's office focus mainly on matters touching on the charges, if submitted, while other issues melt away: Konradi, Amanda and Burger, Tina, ‘Having the Last Word: An Examination of Rape Survivors' Participation in Sentencing’ (2000) 6 Violence Against Women 353Google Scholar.

46 It may be appropriate to note at this point that the escort's role does not include any involvement in the investigation proceedings or in legal aspects of the encounter. Her role is limited to providing the victim with general information before and after the encounter, giving psychological support throughout the entire process, and creating a bridge between her and the professionals when any misunderstandings emerge; for extensive details, see Dadya and Darviyan (n 29) 509.

47 Dadya and Darviyan (n 29) 499.

48 Judith Lewis Herman, Trauma and Recovery (Basic Books 1992).

49 An example of reliving an experience may be the officer's insistence on leaving the door open during the encounter, in a way that fails to respect borders and privacy and resembles the circumstances of the crime. Another example is that of exposing the victim to the public spread of private information, so that allowing other professionals to enter the room leads her to relive the experience.

50 Lewis Herman (n 48).

51 The focus on questions and on ways of asking them is a recurring issue in many studies: eg, Finkelson, Laura and Oswalt, Robert, ‘College Date Rape: Incidence and Reporting’ (1995) 77 Psychological Reports 526Google Scholar; Vernon R Wiehe and Ann L Richards, Intimate Betrayal: Understanding and Responding to the Trauma of Acquaintance Rape (Sage 1995); Bonnie S Fisher and others, ‘Reporting Sexual Victimization to the Police and Others: Results from a National-Level Study of College Women’ (2003) 30 Criminal Justice and Behavior 6.

52 Dancig-Rosenberg (n 2) 162.

53 Lynne Goodstein and Faith Lutze, ‘Rape and Criminal Justice System Responses’ in Imogene L Moyer (ed), The Changing Roles of Women in the Criminal Justice System: Offenders, Victims, and Professionals (2nd edn, Waveland Press 1992) 153; Joycelyn M Pollock, ‘Gender, Justice, and Social Control: A Historical Perspective’ in Alida V Merlo and Joycelyn M Pollock (eds), Women, Law, and Social Control (Allyn and Bacon 1995) 3.

54 Jordan (n 10).

55 For further discussion of the problems involved in gaining a sense of gender aspects in the court, see Tzili Paz-Wolk, ‘Voices from the Black Box: Changes in the Interpersonal Encounter between Sexual Assault Victims and Representatives of the Criminal Justice System’, PhD dissertation, Hebrew University of Jerusalem, 2012 (in Hebrew).

56 Eillam (n 12). Throughout Eillam's book, the description emphasises the contempt shown to the victims and the many ways of expressing mistrust in their story.

57 Note that ‘the right to speak out is not equivalent to the right to be heard’. In other words, moves that promote speaking out do not necessarily promote the power to be heard so that, barring an efficient enforcement mechanism, not too many hopes should be pinned on them. Legal moves of this kind, which accord rights to weakened groups, sometimes freeze power structures and hierarchical relationships, perpetuating the status quo: Ajzenstadt and Mundlak (n 22) 23.

58 Paz-Wolk (n 55) 146–49.