How the Legal System Fails Survivors

The justice system sets a standard that all accused persons are innocent until proven guilty. As survivors of violent crime, many of us know who harmed us. This knowledge can make it difficult for us to patiently go through the legal process and wait for others to discover what we already know to be true.

The process for getting a perpetrator legally held accountable can be long and exhausting. It can also feel disappointing, unfair, and retraumatizing for very real reasons. The foundations of each investigation and trial are presumed to be fair to both sides of an issue. But, how can fairness exist when real roadblocks are in place that seemingly benefit the accused?

Below are existing instances that can hinder a survivor’s ability to realize justice through the judicial system:

• Existing Laws are Outdated

  Violations involving advanced technology (social media or smart devices) or evolved societal norms aren’t always included, those that are included aren’t consistent across all states or territories.

• All Evidence isn’t Shown in Trials

  Defense counsel is able to request that some submitted evidence for trial (proving that the crime took place and the accused is guilty) can be omitted from trial by the judge (e.g. defendant has past allegations of SA from other victims and no charges were made by the DA or defendant satisfied requirements for a prior plea deal agreement).

• Benefit of the Doubt is Subjective

  Understanding of trial evidence and final jury decisioning is based upon each juror’s perspective and beliefs about both the accused and accuser; nothing requires them to vote either “guilty” or “not guilty”.

• Lawyers Aren’t Required to be Trained on Trauma

  Critical information such as trauma responses, chemical brain rewiring, and survival acts can be used as evidence to demonstrate to a jury that the victimized person was a willing participant in the assault.

• All Trial Evidence or Testimony isn’t Vetted for Accuracy

  Lawyers and their investigators will look into provided information, but thorough research doesn’t always take place, leaving the door open for critical evidence to be missed and a perpetrator to be found “not guilty”.

• Victim Blaming is Permitted in Trials

  Existing laws are based on two things: 1.the perpetrator’s understanding of the situation/relationship with the victim at the time of the alleged offense and 2. the perpetrator is an inherently good person who must’ve been encouraged, by the victim, to commit the alleged SA. Questioning of victims is based on what we must’ve done to encourage the defendant to commit the crime.

• Jurors Aren’t Fully Educated on the Subject Matter of Sexual Violence

  The socialization and personal beliefs of each juror are permitted in their decision making to determine a “guilty” or “not guilty” verdict. If a juror believes that intoxication is a means of giving consent, then they may vote “not guilty”.

• Prosecutors May Not Share All Information to Victims

  Withholding evidence from victims, in the name of “preserving testimony”, is believed to prevent the victim from having inconsistent testimony. The problem with this is that the victimized person may be able to provide additional evidence (that isn’t at the forefront of their mind) or (in)validate existing evidence to help get a conviction. But, the withholding of evidence takes away that chance.

If survivors are going to realize real justice we need involvement and change across multiple branches of government. For example, the judicial branch is the legislative branch that can ensure both juror and lawyer education on sexual violence before each trial. This involved process may help increase the accuracy of verdicts and also work in improved prevention of sex crimes. And, until we get change, survivors will continue to be failed by the system.