Jailing rape victims who refuse to testify v. protecting personal agency

[Content note, as you might have guessed, for rape]

It’s not uncommon for rape victims to suffer at the hands of the justice system for reporting the crime committed against them. They’re interrogated about their clothing and behavior when they were raped, they’re accused of lying, and frequently they have to watch as the authorities half-ass the investigation and then throw up their hands and dismiss it as he-said, she-said.

The courts in New Orleans go even further, though, as rape victims, and other victims of violent crime, can be — and have been — jailed for refusing to testify against their rapist in court.

Says District Attorney Leon Cannizarro:

“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 years, and prevent him from raping or harming someone else, I’m going to do that,” he said. Though he didn’t explain how he’ll get the survivor to testify against the accused.


“Is it more important for this witness to be inconvenienced for a very short period of time or is it better for the community to get the violent offender off the streets and keep him off the streets,” Cannizzaro added.

At least six survivors of violent crime were arrested and held on a material witness warrant in New Orleans in 2016, one of whom was jailed in the same facility that held her rapist.

In Houston, a rape victim was jailed under a similar policy after she had a breakdown on the stand and ran out into traffic in an apparent attempt to take her own life. District Attorney Devon Anderson has said that “had [prosecutor Nick Socias] not asked the judge for help, ‘Jenny’ might well have killed herself, and the rapist may have raped again and again.” Because that’s the real thing to be concerned about if a girl kills herself: whether you can still get that conviction.

Forcing rape victims to testify against their will is a great way to deter other victims from reporting rape at all. They already have to deal with the stress of the investigation and the pressure of public judgment — now they’re looking at jail time. As much as a rape victim has been through, she doesn’t need more victimization, this time by the people who are supposed to be protecting her, both the court system and even other women (like here, and comments here and even here) judging her for protecting herself.

In defense of women’s agency

(But, I mean, seriously, should I have to?)

Listen, it would be great if every woman felt comfortable and were in a position to be able to take a hit for the sisterhood, whether it’s a basic matter of going to work without makeup or a bigger issue of testifying against a rapist even thought it’s emotionally wrenching. That would be great, and generally beneficial to other women. But no woman should be required to take the hit. If your work prospects will suffer if you don’t follow dictated beauty standards — makeup, straightened hair, skirts and heels — you shouldn’t be required to endanger your livelihood just for the sake of feminism.

More relevant to the case at hand: If a rape victim can stand up in front of a packed courtroom and face the man who raped her, relive her story — no matter how painful it might be — in detail, submit to accusations and attacks from the defense, and possibly expose herself to social, professional, and personal safety repercussions, that could accomplish big things in putting a criminal behind bars.

If she doesn’t want to do that, if she can’t do that, that’s her decision to make. If the state fails to convict her rapist without her testimony, that isn’t her fault. She isn’t responsible for her rapist going free. She isn’t responsible for her rapist raping again. Society’s job isn’t to judge her for not testifying — it’s to create an environment in which she feels supported enough and protected enough to take that risk, and if she still doesn’t, our job is to support her in that decision.

When a woman is experiencing oppression, whether she’s being compelled to perform traditional femininity or she’s working through the aftermath of rape, we don’t get to demand that she do more. Our job, as people not experiencing those oppressions, is to work with her and for her so that someday she and women like her won’t have to experience that. Our job is to take the hit, because we can. And our job is absolutely not to re-victimize her, further oppress her, and judge her for doing what she needs to do to get by.