By Sheilla Dingus
November 28, 2016
In Part I of this series, I explored the topic of domestic violence in sports and beyond. In Part II, I dive into the subject of sexual assault.
Rape, or sexual assault is a crime that invokes nearly unilateral outrage in society, but it is one of the most misunderstood and difficult offenses to successfully prosecute. Using forced vaginal, oral, or anal intercourse as a definition of rape, it is estimated to affect[1] one out of every five to six American women.
While I don’t believe professional athletes are more or less likely to commit offenses than the population at large, like many of society’s issues, when famous or respected athletes are accused of crimes, our culture is compelled to take a look. Sexual assault has recently been brought to our attention by way of the civil sexual assault trial of NBA star Derrick Rose, and in many ways this case reflects the numerous challenges not only the sports leagues, but society as a whole must come to grips with in regard to sexual assault.
If by chance you missed the headlines, the case in a nutshell boils down to allegations of gang rape against Rose and two of his friends by a woman who sued under the pseudonym, “Jane Doe.” The exceedingly contentious trial was characterized by scorched earth tactics from lawyers on both sides of the case who submitted 38,000 pages of court filings. After a week long jury trial Rose was found “not liable,” which by the way does not necessarily equate to a “not guilty” verdict. It simply means that the jurors did not find the preponderance of evidence sufficient for a ruling in favor of the plaintiff. While this case is a civil suit (criminal investigations are ongoing and an appeal has been filed) and most rape cases are handled through criminal proceedings, the primary issues brought forth in this case are very representative of the hurdles a prosecutor (and victim) face in obtaining a conviction.
The Derrick Rose case first came to public view when TMZ began reporting sensational stories such as “Derrick Rose Accuser Consented to Group Sex… Mad Over Sex Toy,” which not only depicted the accuser as a slutty party-girl, but also as “gold-digging” woman bent on getting rich at a professional athlete’s expense. While it’s a concern – because this sort of thing can and does happen in some cases concerning athletes and other celebrities – this story and others relied on the classic tactic of “slut-shaming” to place blame on the alleged victim, deflecting scrutiny from the accused.
Because of these vicious depictions, Doe felt compelled to present her side of the story to the press. The public began drawing lines in the sand weeks before the curtain ever rose on the courtroom drama that lay ahead. I observed as some Rose fans dug their heels in and decried that any woman who would dare accuse an accomplished athlete of rape was obviously after money. Other people had already convicted him, simply because he was a famous athlete. If it’s truth one’s seeking, the issues at hand become much more complex.
Myopic misconceptions
Rose’s standing as a basketball player should really have been irrelevant. While celebrities may have increased opportunity; and there does appear to be a segment of the sports, politics and entertainment dynasty that appears to overestimate its privilege in regard to women, this certainly doesn’t characterize all in these professions. A good analogy can be found with our canine companions. A little dog is just as likely to bite as a big one. It’s just that the big dogs tend to draw the most attention.
Unfortunately, rape is probably shrouded in more myth than celebrity.
One of the fallacies regarding rape is that it is primarily a crime committed by a sexual predator unknown to the victim, or a crazed psycho who stalks and attacks her in the manner dramatically depicted on the big screen. This scenario is actually the one least likely to occur when it comes to sexual assault. At least 80% (and possibly more) rapes are committed by an acquaintance; often a lover or former lover. But – unless the assault closely parallels the atypical scenario, the victim faces an uphill battle in seeing her attacker prosecuted for a number of reasons.
Unlike in the majority of domestic violence cases, where a call is made to 911 and an officer dispatched while the incident is taking place, rapes are almost always reported after the occurrence; sometimes hours, days, months or even years afterward. In addition to the obvious challenges regarding a lack of physical evidence, many jurors are suspicious of women who wait to report the crime, not comprehending that it doesn’t usually work the way it does on TV.
After a rape occurs, many victims need time to process and grasp what has happened to them. Remember – 80% of rapes are committed by someone the woman knows leaving her not only physically violated but betrayed and humiliated as well. Rape victims typically have strong feelings of shame and embarrassment and this is a common reason that many women do not report the crime to authorities right away, if at all. Unfortunately, physical evidence doesn’t last, and the longer she waits to come forward, the slimmer her chances become of seeing her attacker successfully prosecuted. The fact that accuser Jane Doe waited nearly two years to report the alleged rape by Derrick Rose and his friends appeared to be a major consideration in the jury’s evaluation of her accusations.
Contrary to popular belief, weapons are not involved in the majority of rape cases. In only seven percent of recorded cases is a gun involved, and about three percent a knife. Physical injuries are often not present in a sexual assault. While there may be injuries, the mere lack thereof should not sufficiently influence a jury that sex was consensual. A woman can be physically overpowered without overt bodily harm, and is often manipulated, threatened or bullied into submission. An attempt to avoid physical harm should not be mistaken for willing consent.
Stereotypes play a role.
Celebrities aren’t the only people who find themselves characterized by stereotypes. Societies – and by extension juries – tend to have preconceived ideas about victims of sexual crime as well.
Culture often gravitates toward demanding the perfect victim. Unfortunately most victims 
don’t measure up to what society expects of them. How can they? They are after all, real women and not characters in a fantasy novel. Stereotypes are one of the most common obstacles to successful rape prosecution. Often the accuser faces as much or more scrutiny than the accused. Juries tend to demand a Snow White. If a woman is single and sexually active, this is frequently manipulated and used to her disadvantage in a rape case. When a defense attorney is able to effectively convince a jury that a woman is promiscuous, there’s an excellent chance that the defendant will not be held accountable. We as a society – and potential jurors – need a reality check in this regard!
According to the National District Attorneys Association, one of the cruel ironies regarding rape is that aggressors often intentionally select victims they perceive as flawed. NDAA states, “The unfortunate reality of rape cases is that the flaws that make the victim a target for the offender also make the victim less credible in the jury’s eyes.” Just because she went out alone, or made some other questionable decision, doesn’t mean a woman is asking to be assaulted. The fact that she wore a revealing dress doesn’t indicate she wants to be raped.
Alcohol and/or drugs often come into play, and sometimes the question of consent is based on the level of alcohol or other drug consumption. This was a huge factor in Doe vs. Rose. In most states it is illegal to have intercourse with a woman if she is unconscious or otherwise unable to consent to sex. This, however is a gray area legally, because rarely will there be an officer nearby to administer a breathalyzer or blood test. Yet this gray area is a dilemma which juries must attempt to navigate based on testimony of the accuser and the accused as well as “experts” who may be called in. In Doe’s case, she claimed she was drunk and possibly drugged. Toxicologists agreed that she probably had not been drugged and came to different conclusions regarding how much her alcohol consumption affected her ability to consent to sex.
In a comprehensive paper on the subject of alcohol facilitated sexual assault, NDAA points out, that while intercourse with a person who is too intoxicated to consent always constitutes moral rape; it is only a crime if it meets the legal definition. Instead of thinking that a woman was too drunk to consent, juries often believe she consented because she was drunk. The prevalence of this mindset makes alcohol the weapon of choice for many offenders. The epidemic of alcohol facilitated sexual assaults on college campuses should give much credence to the reality of this modus operandi, yet juries often view the conduct of the defendant as more opportunistic than predatory, and this negates the criminal aspect of the case.
Because of the frequent absence of physical evidence and lack of third-party witnesses, a jury must often decide a rape case based on the issue of consent. based on testimony of the parties involved. Normally this hinges on the jury’s perceptions of the credibility of those parties.
When rape allegations depend on a victim’s ability to remember and give detailed testimony of the rape, and she is unable to do so, her credibility is frequently diminished in the eyes of the jury. This was quite evident in the Derrick Rose trial.
Doe claimed she only had fragmented recollections of what happened to her, in fact she said, “Waking up and not knowing is the scariest thing.” The three men involved each gave conflicting accounts of what transpired, yet they were found more credible because they were able to piece together a narrative that the jurors found more believable than Doe’s piecemeal memories. While blackouts are certainly not uncommon when a person is impaired by alcohol, they generally do not bolster much support for a victim who claims assault under these conditions. Occasionally juries, and society feel that a victim who engaged in risky behavior is not worthy of their sympathy or protection.
A final obstacle that lies in the path of rape prosecution is a matter that has nothing to do with legal standing or evidence, but has proven to be a factor in many cases. This potential hurdle is likability. Often when a jury has little physical evidence to weigh, the likability of the victim, or lack thereof plays a critical role in whether or not she is perceived as credible. This may have been a factor in the Doe vs. Rose verdict.
Prior to the trial many people expressed concerns that the predominately female jury would be somewhat biased toward the accuser. It seems the opposite may have happened. While the jury composition could have worked either way, it is often overlooked that many women tend to be hypercritical of other women.
In preparation for this article, I spoke with as many people as I could regarding their thoughts about sexual assault. While it was an informal, and not a scientific survey, I’ll have to admit I was very surprised with some of the responses. Most (but unfortunately not all) men I spoke with appeared sympathetic and even outraged as we delved into the subject. Many women, on the other hand were fairly dismissive of the seriousness of the crime. (These women represented approximately one-third of the women I spoke with.) While all women agreed sexual assault is “bad,” I was shocked at how many women tried to rationalize it as just “part of being a woman,” or justify it as “one of those things women just have to deal with.” Even more surprising, some of the women who felt this way admitted to having been victims of sexual assault themselves. All who were in this category said their rapist was someone they knew and they attributed this to “just the way men act.” A few of the women even became agitated with me when I pushed the notion that this kind of behavior is completely unacceptable!
I have no way of knowing if these attitudes permeated the Rose trial jury or not; nor do I know how many juries may have been tainted with similar opinions. I don’t have inside information regarding the Rose case; only legal documents and public information. And I firmly believe both parties are entitled to a fair trial. That said, as I stated in my first article on the subject, “Doe vs. Rose: Why I Had to Weigh In,” as a rape survivor I found much of what Doe had to say very compelling. Her thoughts and concerns closely mirrored the fears and apprehensions that I felt – the same trepidation that let me to remain silent for many years.
I also found it troubling that immediately after the trial had ended with a favorable ruling for Rose, a number of jurors smiled and laughed as they posed for pictures with the basketball star. In a Conduct Detrimental podcast interview, New York Post reporter Julia Marsh, who was present in the courtroom for the entire trial expressed that she felt the jury found him more credible. Their post-trial reactions might also lead one to perceive that they found him more “likable” as well.
In the third, and final installment of this series, I’ll attempt to tie everything together and offer some hopefully constructive remarks as to how the sports leagues may wish to evaluate domestic abuse and sexual assault accusations, and how we as a society need to progress as well.
[1] In this instance I define affect as women who have either been the victim of completed or attempted rape.
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Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
