While there has certainly been progress, we still live in a culture that, at times, enforces victim blaming on sexual assault survivors. Perversely, at times, this victim blaming occurs even under the positive intentions of seeking justice for them. Case in point, a report recently released from the New Orleans court watchdog group, Court Watch NOLA, found that in 2016, six victims of crimes who refused to testify against their alleged assailants were incarcerated in an effort to get them to speak.
Last week, Orleans Parish District Attorney Leon Cannizzaro told WWL-TV that in order for justice to be served, there are times when a rape survivor should be jailed for not testifying, for a limited time, until they agree to testify against their assailant. "If I have to put a victim of a crime in jail for eight days, in order to keep the rapist off of the street, for a period of years and to prevent him from raping or harming someone else, I'm going to do that," Cannizzaro told anchors Karen Swensen and Thanh Thruong.
However, some legal experts do not agree with this strategy. Dean Masello, who served in Ohio for seven years as a trial attorney for victims of domestic violence and sexual assault, tells Bustle that even in recent years, victim blaming has acted as a force that deterred clients from coming forward.
"Initially, before there was the Rape Shield Law, sometimes judges would use past sexual experience to put a woman’s assault experience on trial," he explains. Rape shield laws are effectively meant to keep victims of rape from having their previous sexual history be presented as evidence against them during a trial. However, even today, "in general, there’s still this notion of 'you asked for it,'" he explains.
This attitude, he believes, is unfortunately unique to sexual and violent crimes against women. "In any other context it wouldn’t go this way, if someone had a BMW no one would say, 'They were asking for it by having a nice car,'" he says. "I think it’s still going to be a long time before we get to that place where it doesn’t affect women who want to come forward."
Masello says the trial process, which can sometimes take years, can be potentially intimidating and traumatizing for victims. "The process itself is frustrating and time consuming, and again, the victim has to relive the trauma over and over while testifying," says Masello. "If you decide that you’re having panic attacks every night and you just decide 'I’m not ready to do this''or you can’t face the offender in court, it makes sense. "
Masello believes the option for survivors to pull out of a case is crucial. "I always told them they could change their minds, they didn’t have to come forward if they didn’t want to," he says.
A senior legal counselor from the Victim's Rights Law Center, Colby Bruno, says the larger culture of victim blaming also directly affects how traumatic testifying in court can be for survivors. "When all their lives victims hear the narratives of victim-blaming, they begin to believe they are true, even before they are assaulted," Bruno tells Bustle over email. "So, after an assault happens, often the first thing a victim will think is 'it’s my fault.' That’s society at work. Those opinions are deeply ingrained in the minds of everyone across this country."
Bruno disagrees with the approach of threatening victims with jail time to get them to testify.
"Many survivors who choose to report and proceed through the criminal system often comment that the trial and the testimony and the judgment was more traumatizing than the actual rape itself, unless there is some procedural justice present (and those are the victims who actually choose to do so)," Bruno says. "If the more private victims or victims who are more emotionally fragile do not want to report and go through a lengthy process that is sure to retraumatize them, then they should not have to, and that should be their choice."