Georgia State University
Law Review

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Volume 20

Number 3

Spring 2004

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The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws

Andrea A. Curcio

Introduction

In some states, rape law reformers have successfully lobbied for strong statutory reforms to their state's rape laws.[1] In other states, political compromise has led to weaker and more ambiguous reforms than those proposed by rape law reform advocates.[2] In a few states, such as Georgia, advocates of rape law reform have been unsuccessful in convincing their state legislatures to revise state rape laws. Despite repeated attempts at statutory reform,[3] Georgia's definition of rape has not changed since 1861.[4] The only significant reforms to the Georgia rape law statutes include "a very weak rape shield law [enacted] in 1976, and [the] eliminat[ion of] the corroboration requirement in 1978."[5]

The passage of strong statutory reforms has been a symbolic victory for rape victims. However, even the most radical rape law reforms have not yet produced the desired effects.[6] In both states that have rewritten their rape statutes and states where reformers unsuccessfully lobbied for strong reforms, rape victims are still reluctant to report the crime.[7] Police still fail to investigate many reports or arrest alleged perpetrators.[8] Prosecutors fail to indict suspects, and conviction rates remain low, especially in acquaintance rape cases.[9]

To achieve the goals of failed statutory reform, victims' advocates, even in states that have passed major changes, need to deduce the next step of the reform process.[10] In states where significant rape law reforms repeatedly fail, rape law reform advocates should examine whether the energy devoted to statutory reform might temporarily be better spent elsewhere. This Article addresses how groups of reformers, both in states that have enacted reforms and in states that have not, can improve their handling and processing of sexual assault cases. This Article discusses how the Georgia Supreme Court Commission on Equality ("GSCCE" or "Commission") gathered prosecutors, criminal defense lawyers, victims' advocates, judges, and scholars from across the state to discuss problems with the justice system's processing of adult sexual violence cases. This Article also explains how this gathering led to meaningful suggestions that reformers and legislators can easily implement in Georgia or elsewhere.

Part I of this Article provides an overview of some of the problems facing the criminal justice system when dealing with victims of sexually violent crimes.[11] Part II discusses the major statutory reforms, as enacted in various states, designed to address some of these problems.[12] Part III examines empirical research indicating that the statutory reforms have, at best, been modestly successful in achieving the reformers' goals.[13] Part IV discusses some of the reasons postulated for this lack of success.[14] Part V explains the GSCCE roundtable discussion model used to examine how the justice system could better handle sexual violence cases.[15] Part VI discusses how the roundtable discussion model may be able to solve some of the shortcomings of statutory reform.[16] In conclusion, this Article suggests that all states could benefit by replicating the Georgia model of gathering all those involved in the processing of sexual assault cases to examine problems and devise solutions. The GSCCE's end result was a report entitled: Report of the Georgia Supreme Court Commission on Equality, the Georgia Justice System's Treatment of Adult Victims of Sexual Violence: Some Problems and Some Proposed Solutions ("Report"). This Report is reprinted in the Appendix.

I. Problems Faced by Victims and Prosecutors in Sexual Violence Cases

Reformers cite (1) the under-reporting of sexually violent crimes, (2) the lack of prosecution and convictions of reported rape cases, and (3) the judicial system's treatment of victims of sexually violent crimes as significant problems existing within the justice system.[17]

A. Under-Reporting

Under-reporting is not a problem unique to sexually violent criminal cases. The National Crime Victimization Survey ("NCVS") found that "[o]n average from 1992 through 2000, [only] 57% of robberies and 55% of aggravated assaults were reported to police."[18] However, under-reporting is much more prevalent with crimes of sexual violence. The same NCVS survey found that between 1992 and 2000, only "31% of rapes [or] sexual assaults were brought to the attention of the police."[19]

Among the more commonly cited reasons for a victim's reluctance to report a rape, especially an acquaintance rape, are (1) embarrassment of answering a stranger's questions about what happened; (2) self-blame--feeling that the rape was somehow the victim's fault; (3) fear of an assailant's retaliation; (4) desire to conceal the victim's own behavior before the rape, such as the use of drugs or alcohol; and (5) fear of the societal and official skepticism about the legitimacy of the complaint.[20]

B. The Attrition Rate

Another problem that advocates of rape law reform identify is the high attrition rate of reported cases. Law enforcement agents fail to indict many alleged perpetrators, and even if an indictment occurs, few cases result in convictions and incarcerations. This attrition rate is attributable to numerous factors including: (1) the failure of the police to pursue cases,[21] (2) the prosecutors' decisions not to seek indictments, and (3) the inability to achieve convictions.[22] A U.S. Senate Judiciary Committee report noted "that 98% of rape victims never see their attacker caught, tried and imprisoned.'"[23] The data also suggested a higher attrition rate in cases of acquaintance rape than in stranger rape, both in terms of the police's willingness to pursue the case[24] and the prosecutors' willingness to try the case.[25]

Another reason for the high attrition rate in rape cases is that victims often decide not to pursue criminal prosecution.[26] Studies indicate that this is also the main "reason for dismissals of all felonies except homicide."[27] What the empirical studies fail to reveal is whether rape victims and other felony victims have different reasons for refusing to press charges.[28] Many victims' advocates and scholars believe that the rape victims' unwillingness to prosecute cases is, at least in part, the result of poor treatment by the police and the prosecutors.[29] During interrogations, victims are often asked about "what [they] did, how [they] dressed, and why [they] did not resist more."[30] The tone and content of the police and prosecutors' questions can make a victim feel that she is blameworthy, that she was not really raped, or that she wanted or deserved it.[31] This kind of treatment may affect a victim's willingness to pursue criminal charges. Additionally, contact with the criminal justice system may serve as a reminder of the horror of the event, impeding recovery and making some victims unwilling to proceed.[32] This reaction is more likely in instances when courts repeatedly delay trials, as is common in felony cases.[33]

The victims' reluctance to prosecute is only one reason as to why many rapists are not tried or imprisoned. In many cases, especially those involving acquaintances or alcohol and drug abuse, police are unwilling to arrest alleged perpetrators, and "prosecutors are reluctant to charge and prosecute [the] cases . . . because of the lower rate of convictions."[34] Prosecutors note that persuading a jury to believe the victim in acquaintance rape cases is difficult. This is especially true if the victim and the accused engaged in consensual sex some time before the alleged attack or if the victim behaved in ways that violated societal norms: "being a prostitute, or promiscuous, or a truant or a runaway, frequenting singles bars, hitchhiking, using drugs, drinking heavily, or wearing sexy attire."[35] If prosecutors believe that obtaining a conviction will be difficult, either because of the lack of evidence or because the jury will not find the victim credible, they will often dismiss or plea bargain a case rather than lose at trial.[36]

C. Treatment by the Criminal Justice System

Many sexual assault victims feel mistreated by the criminal justice system.[37] For example, many victims find themselves forced to "reveal intimate, painful details [of their assault] to different prosecutors and different judges."[38] Prosecutors and other officials often subject them to embarrassing or gender-biased remarks.[39] Victims feel that the justice system's lack of respect is also demonstrated by the failure to communicate with them about the reasons for delays in hearings and in trials.[40] These experiences, combined with other factors that make a victim feel she is not believed, such as the fact that in some states prosecutors may require victims to take polygraphs before proceeding,[41] have led to the now-familiar understanding that in rape cases, it is often the victim who is on trial.

II. Reforms Enacted to Address the Problems

In response to these problems, many states enacted statutory changes. As explained in more detail below, the more prevalent reforms include: (1) amending the statutory definition of rape to include a series of gender neutral offenses and updating terminology from rape to sexual assault, sexual battery, or criminal sexual conduct;[42] (2) eliminating the corroboration requirement;[43] (3) eliminating or limiting the resistance requirement;[44] and (4) enacting rape shield laws that restrict the admissibility of evidence regarding the victim's past sexual behavior.[45] Other reforms include changing the statutory age of consent or the penalty structure and eliminating cautionary jury instructions, like those that stress the damage of a rape conviction to the defendant.[46] The drafters hoped these reforms would lead to a greater number of rape reports, arrests, convictions, and prison sentences.

A. Changes in the Definition of Rape

1. Breaking the Offense into Degrees and Changing Terminology

Many states have reformed their rape statutes by breaking the offense into degrees based upon factors such as: (1) the level of violence, (2) the amount of injury, (3) the victim's age, (4) the existence of accomplices, and (5) the victim's physical or mental incapacity.[47] Reformers intended to reduce obstacles prosecutors face when trying acquaintance rape cases.[48] Reformers hoped that a jury which may be unwilling to convict an acquaintance rapist of first degree rape or sexual assault might convict on a lesser degree of sexual assault, leading to more prosecutions and convictions in acquaintance rape cases.[49]

2. Replacing the Term "Rape"

Some states enacted new statutes that replaced the term "rape" with terms such as "sexual assault," "sexual battery," or "criminal sexual conduct."[50] The goal of these changes was to shift the focus from the sexual aspect to the violent aspect of the crime.[51] State legislators thought that changing the terminology was the only way to escape some of the pervasive prejudices and preconceptions about rape.[52]

B. Eliminating the Corroboration Requirement

Historically, to prevail in a rape case, the law required the prosecutor to produce evidence to "corroborate the victim's testimony, establishing some or all of the essential elements of the case—identity of the accused, penetration, and nonconsent."[53] The belief that women fabricate being raped either to explain away their own behavior "or to retaliate against an ex-lover or some other man" justified this requirement.[54] A corollary to this justification was the idea that rebutting a fabricated charge "would be more difficult . . . in rape cases than in other cases."[55] Without any empirical data to support either belief, states still chose to "prohibit[] conviction[s] for forcible rape [based upon] the uncorroborated testimony of the victim."[56] Because rape usually "takes place in private without witnesses," procuring corroborating evidence is often very difficult.[57] Reformers blamed this requirement for the low rate of rape convictions. Additionally, critics claimed that because judges and juries already tended to be skeptical of a rape victim, the corroboration requirement was unnecessary.[58] Furthermore, they argued that the corroboration rule, unique to rape cases, was sexually discriminatory.[59] As a result of these criticisms, most states eliminated the corroboration requirement.[60]

C. Changing the Resistance Requirement

At common law, the law required a prosecutor to prove that the defendant penetrated the victim "forcibly and against the victim's will."[61] The "by force" requirement came to mean that the victim, to demonstrate her lack of consent, must have physically resisted her attacker. Some states required the victim to "resist to the utmost."[62]

Police and rape crisis counselors argued that the resistance requirement placed victims in danger of more serious injury than would otherwise occur during a sexual assault.[63] Women's advocates and scholars noted that the resistance requirement was unique to rape victims--no other victims of violent crimes had to prove "resist[ance] to the utmost."[64] Critics also noted that a lack of bruises, scratches, or other indicia of resistance lessened the chance of prosecutions and convictions in rape cases.[65] As a result of these criticisms, many states changed the resistance requirements. Some eliminated victim resistance as an element of the crime.[66] Some replaced the "resist[ance] to the utmost" standard with a "reasonable resistance" requirement.[67] Reformers hoped these changes would increase arrests, prosecutions, and convictions in the cases where a victim did not physically resist.[68]

D. Enacting Rape Shield Laws

Rape shield statutes represent another major avenue of reform. At common law, courts deemed evidence of a victim's previous sexual conduct relevant on two issues: consent and credibility.[69] Historically, courts admitted evidence of the victim's previous sexual conduct with any partner because "an unchaste woman would be more likely to consent to intercourse than a woman without premarital or extramarital sexual experiences."[70] Likewise, many thought that an unchaste woman was more likely to lie because "promiscuity imports dishonesty."[71] The evidentiary leeway given to defense attorneys to explore a victim's sexual history led many victims to feel like they were the party on trial.[72] A coalition of women's groups and law enforcement agencies sought to reform these evidentiary laws. They believed that allowing the victim's sexual history into evidence (1) discouraged victims from pressing charges, (2) caused juror misuse of the information, and (3) increased acquittal rates.[73] Additionally, members of the women's movement sharply criticized the rationale that a woman's chastity provided any probative value on consent or credibility.[74]

In response to these critiques, Congress, and virtually every state, enacted rape shield statutes designed to eliminate the automatic admissibility of evidence of a victim's sexual history.[75] Fear that the statutes would infringe on defendants' Sixth Amendment Confrontation Clause rights made rape shield laws extremely controversial.[76] The tension between a desire to protect rape victims and a need to preserve the rights of criminal defendants has led to a wide variety of rape shield laws. At one end, there are very restrictive laws that prohibit the introduction of sexual conduct evidence subject to certain specific exceptions deemed critical to presenting a defense.[77] These laws essentially give trial judges no discretion to admit the evidence. At the opposite end of the spectrum are statutes that give judges wide discretion to admit sexual conduct evidence simply upon a showing of relevance.[78] The federal provision, which was also adopted by some states, falls in the middle. It generally prohibits sexual conduct evidence but allows the judge discretion to admit evidence if constitutionally required to or if the evidence is relevant and admissible in the interest of justice.[79] The laws usually specify the procedures for admitting this evidence, most requiring an in camera proceeding to determine admissibility.[80] Reformers hoped that enacting rape shield laws would encourage victims to report rapes and to cooperate in prosecutions.[81] Additionally, the reformers hoped that restricting or eliminating the admissibility of a victim's sexual history would prevent juror misuse of this evidence and result in higher conviction rates.[82]

E. Educating Law Enforcement Officers, Prosecutors, and Judges

Another aspect of rape reform involves educating police, prosecutors, and judges about rape myth stereotypes and appropriate ways to respond to victims.[83] In many jurisdictions, police and prosecutors now have formal training sessions designed to educate them about rape myths and the need "to take . . . more seriously the testimony of [acquaintance rape victims], especially those whose sexual choices and conduct have traditionally been taken to be provocative, improper, or immoral."[84]

Judges also receive training. For example, in addition to on-going continuing education programs, the National Judicial Education Program developed a self-directed video curriculum entitled Understanding Sexual Violence: The Judge's Role in Stranger and Nonstranger Rape and Sexual Assault.[85] It provides "empirical information about how different victims react during and after the assault."[86] The video also contains information about "Rape-Related Post-Traumatic Stress Disorder, sex offenders and sex offender treatment and sentencing, and jurors' attitudes toward rape."[87] The video presents information in terms of its implications for judges during the pre-trial and trial process, including jury selection, assessment of force and consent, evidentiary issues, pleas, and sentencing.[88] This curriculum is just one example of a continuing effort to educate the judiciary about rape and sexual assault issues.[89]

In addition to the efforts discussed above, reformers have made other changes to improve the treatment of sexual violence victims. These include (1) the establishment of rape counseling centers, (2) "re-imbursement [programs] for victims' medical expenses,"[90] and (3) special training for nurses on gathering evidence and working with victims.[91]

III. Impact of Reforms: Empirical Evidence

Legislators enacted these reforms with many goals in mind. One goal was to improve the treatment of victims within the criminal justice system.[92] Another goal included eradicating sexist laws and dismantling the myths surrounding rape victims, such as the belief that women ask for or want to be raped, or that women often falsely accuse men of rape.[93] However, the reformers' main hope was that the changes would lead to a better reporting and an increased number of successful prosecutions of rape cases.[94] These hopes have yet to materialize. Empirical research indicates that the reforms have had, at most, a very limited impact on the number of reports, investigations, arrests, indictments, trials, and convictions.

Professors Cassia Spohn and Julie Horney examined the impact of rape reform laws in three jurisdictions with strong reforms: Detroit, Chicago, and Philadelphia; compared to three jurisdictions with weak reforms: Houston, Atlanta, and the District of Columbia.[95] Spohn and Horney examined the impact of rape law reform on: "(1) the reporting of rapes to the police, (2) the indictment of rape cases by prosecutors, and (3) the conviction of offenders."[96] To control for "history threat," they chose jurisdictions that enacted the reforms at different times, postulating that "[i]f national attention to rape issues led to changes in the processing of rape cases, these changes should appear at approximately the same time in each jurisdiction. [Whereas, i]f . . . the rape law reforms themselves led to changes . . . , then . . . those changes [would be] staggered" depending upon when states implemented the legal reforms.[97] The authors "collect[ed] monthly data from 1970 through 1984."[98] This time span allowed them to study the different periods when legislatures enacted reforms and to look at post-reform periods to determine if any change was short lived.[99] They obtained data from the FBI's Uniform Crime Reports and from the official court records of indicted cases.[100] The "data file include[d] both forcible rape cases and other sexual assaults that [were] not specifically assaults on children."[101] Each month, Spohn and Horney analyzed: "the number of reports of forcible rape; the percentage indicted (indictments divided by reports); the percentage convicted (convictions divided by indictments); the percentage convicted on the original charge (convictions for rape divided by indictments); and the percentage incarcerated (incarcerations divided by convictions)."[102]  

The Spohn and Horney study found that only Detroit's statutory reforms positively impacted the number of cases reported, investigated, and indicted.[103] Michigan, a state with very strong reforms, experienced measurable increases in the number of complaints police investigated, the number of arrests made, and the number of indictments sought and obtained.[104] The percentage of convictions in Michigan did not increase, but the increase in indictments led to an increase in overall convictions.[105] Spohn and Horney attributed the increase in indictments to the prosecutors' belief that the new statute more clearly defines rape "and provides clear guidelines for prosecutors to follow in screening rape cases. It carefully defines the elements of each offense, specifies the circumstances that constitute coercion, and lists the situations in which no showing of force is required."[106] Other jurisdictions, such as Houston, displayed negative effects.[107] Thus, the Spohn and Horney study showed, at best, limited changes occurring after the enactment of rape reform laws.[108] In only one of the three jurisdictions with strong reforms, and in none of the jurisdictions with weak reforms, did the changes result in any impact on reports, arrests, and indictments.[109] The Spohn and Horney study's mixed results appear in other empirical studies.

Early empirical studies on the impact of the statutory reforms found that changing the law had virtually no impact on rape reports, police investigations, arrests, indictments, or convictions.[110] Later studies have shown that the reforms may have had a small impact on (1) a victim's willingness to report the attack and (2) the police's willingness to investigate the crime and arrest the alleged perpetrators.[111] A nationwide empirical study by Stacy Futter and Walter R. Mebane, Jr. compared the number of reports investigated and arrests made after legislatures enacted reforms with previous numbers.[112] They found that significant reforms, such as "defining sex crimes in terms of a single continuum, subjecting spouses and cohabitants to prosecution, limiting the admissibility at trial of the victim's past sexual history with the defendant . . . [or others], and denying a mistake of incapacity defense," increased the probability that police would investigate a rape and make an arrest.[113] A study by Ronet Bachman and Raymond Paternoster found that rape victims were slightly more likely to report their victimizations after legislatures enacted reforms.[114] A later Michigan study by Spohn and Horney found "that more cases of rape by unarmed acquaintances [were] 'getting into the system' in the post-reform period," although conviction rates in these cases did not change after reform enactment.[115] Finally, the Bachman and Paternoster study found that in the post-reform era, which they describe as the years from 1987 to 1992,[116] "rape offenders were more likely to be [imprisoned]."[117] They also found a slight increase in the number of imprisoned acquaintance rapists but no correlation between the increase in imprisonment and any particular rape law reform.[118]

In summation, the studies show that the impact of rape law reform has not met expectations. No study has shown a marked increase in prosecutions or convictions; however, some studies have shown incremental increases in victim reporting, investigations, charging, arrests, and indictments. These studies also indicate slight increases in the number of acquaintance rape cases entering into the system.

IV. Why the Reforms Have Failed

In the Spohn and Horney study discussed above, the authors interviewed judges, prosecutors, and public defenders in all six jurisdictions to determine the impact of the reforms on how lawyers and judges evaluated rape cases.[119] They concluded "that . . . rape law reforms have had little impact on the way criminal justice officials evaluate rape cases."[120] Spohn and Horney concluded that "the reforms failed to produce substantial instrumental change in part because they failed to alter officials' evaluations of rape cases and rape victims."[121] They found that a victim's resistance and the availability of corroborating evidence still "had a substantial effect on officials' judgments of the likelihood of conviction in spite of the elimination of . . . [these] requirements in most . . . jurisdictions."[122] Many of the prosecutors they interviewed believed that juries were "unlikely to convict in the absence of these factors."[123] Other scholars have noted that eliminating or lowering the resistance requirement has not been a meaningful change because resistance is still an issue in determining consent.[124]

Spohn and Horney also found that the definitional changes (replacing the single crime of rape with a series of gender neutral offenses) did not lead to an increase in convictions through plea bargaining or through avoiding jury nullification.[125] They postulated "that the reforms' implicit focus on the seriousness of the crime . . . may have created an unwillingness to plea bargain."[126] They also found that prosecutors often did not present instructions on lesser included charges for fear of juror confusion.[127] They noted that many criminal justice officials in jurisdictions that changed "the name of the crime from rape to sexual assault, criminal sexual conduct, or sexual battery" felt that the name changes confused jurors and, as one official stated, "‘sugarcoated' the offense."[128]

Spohn and Horney also identified a number of reasons why rape shield laws did not have the anticipated effect of increasing reports, arrests, prosecutions, and convictions.[129] First, a number of the enacted laws were weak and had "little potential to effect changes in case outcomes."[130] Second, "even the stronger laws [had] the potential to affect only [a limited number] of cases,"--"[those] in which the victim and defendant are acquainted, the defendant claims the victim consented, and the defendant insists upon a trial."[131] Finally, "the substantive and procedural restrictions . . . in the shield laws have been weakened through implementation."[132]

In summation, Spohn and Horney believed that a change in legal rules alone is insufficient to change decision-makers' behavior, which in turn has helped to keep the reforms from creating widespread change in reports, arrests, indictments, and prosecutions.[133] Spohn and Horney concluded that their findings "suggest that the reforms failed to produce substantial instrumental change[s] in part because they failed to alter officials' evaluations of rape cases and rape victims."[134] They also believed that factors such as "stable courtroom work groups"--those groups where the same judge, prosecutor, and public defender work together for long periods of time and develop a strong working relationship--thwart reformers' goals.[135] In these work groups, members may informally agree to circumvent the reforms by ignoring the "time-consuming procedures mandated by the rape shield laws or . . . continu[ing] to prosecute only cases in which the victim's story can be corroborated."[136] They noted that the reforms' inability to sufficiently constrain officials' discretion and failure to provide adequate incentives for changing behaviors exacerbated these problems.[137]

Other researchers have proffered different explanations for the reforms' failures. One argument is that even the "reformed" law fails to adequately define consent. Stephen Schulhofer argues that, despite the reforms, in almost all states "intercourse is not a crime, even in the face of a woman's clearly expressed objections, unless the assailant threatened to use 'force.' And the force must be something beyond the acts involved in intercourse, something that 'compels' the woman to submit."[138] Schulhofer believes that society should strive to achieve a new normative view of rape—that a victim is entitled to bodily integrity and that "sexual autonomy [i]s a basic entitlement worth protecting in its own right."[139] He argues that protecting sexual autonomy requires "a recognition that sexual intimacy must always be preceded by the affirmative, freely given permission of both parties."[140] He believes that the societal adoption of this definition of consent is one of the keys to increasing the number of successful rape prosecutions.

Susan Estrich is among those scholars who argue that the reforms failed because they did not eliminate the need to prove force and resistance.[141] Estrich argues that rape law should define consent as "no means no" and eliminate the requirement causing a victim to prove force or resistance.[142] She argues that the law should consider whether the victim consented under extortion or "misrepresentations of material fact."[143] Furthermore, she advocates the application of a negligence standard in analyzing a man's belief that consent existed, thereby eliminating mistake as a defense.[144]

Another explanation for the failure of the reforms is that the realities facing prosecutors remain the same despite changes in the law. Prosecutors continue to face juries that believe the rape myths. These myths include: (1) strangers commit most rapes;[145] (2) real victims have serious physical injuries;[146] (3) lack of violent resistance equates to consent;[147] (4) in real rape, a woman immediately calls the police;[148] (5) the way a victim dresses, the amount of alcohol or drugs she uses, or any "foolish" acts, such as going with a man into his apartment, show she is blameworthy;[149] and (6) finally, women frequently lie about being raped.[150] Empirical evidence indicates that this is not just a theoretical argument. In Georgia, a 1998 survey asked people if they believed women lie about being raped.[151] Almost half (48%) of the respondents to the survey answered affirmatively.[152]

As discussed above, many possible reasons exist to explain why rape law reformers' goals of increased reports, indictments, prosecutions, and convictions have not been fully realized. The question then becomes: Is there another way to tackle this problem?

V. An Alternative Proposal for Reform: Development of the Georgia Model

Working with state legislatures to overhaul existing laws is one way to maintain the efforts of the rape-law reform movement. Changes can come through enactment of "model reforms" like those in Michigan or "second-wave" reforms advocated by Professors Estrich and Schulhofer. However, if major statutory reform is not possible, women's groups and victims' advocates may find the recent Georgia approach helpful in improving their state judicial system's processing of adult sexual violence cases.

At the urging of women's groups and victims' advocates, the GSCCE[153] tackled the following question: How can the Georgia legal system respond, both legislatively and systemically, to the problems faced by victims of sexual violence while at the same time protecting the rights of the accused?[154] Initially, the Commission considered proposing legislation that would have revised Georgia's rape laws to replace the current common law definition of rape with some of the statutory changes discussed above.[155] However, after examining empirical evidence and discussing the Georgia legislative history of unsuccessful proposed rape law changes, the Commission decided to take a different approach. Rather than proposing an overhaul of the existing rape law, the Commission decided to examine the Georgia justice system's treatment of sexual violence victims from the investigatory stage through post-trial. During this comprehensive examination, the Commission hoped to identify problems faced by Georgia adult sexual violence victims and to devise some solutions to those problems. The Commission assumed that while some problems would be similar to those that victims faced nationally, others would be unique to Georgia.

To accurately identify the problems and develop ideas for solutions, the Commission thought that it was important to involve those who deal with these issues on a daily basis. The Commission organized a day-long roundtable discussion that included prosecutors, defense lawyers, judges, and victims' advocates.[156] The Commission wanted roundtable participants to include those who had previously advocated and those who had previously opposed statutory reform. The Commission sought to include urban, suburban, and rural viewpoints. It wanted a racially and ethnically diverse group of well-respected, reasonable, open-minded individuals interested in working toward a common goal.[157]

With these criteria in mind, the Commission assembled a list of 25 invitees. The invitation letter described the Commission's goal of gathering a diverse group to discuss problems and solutions to the handling and processing of adult sexual violence cases. Georgia Supreme Court Justice Carole Hunstein, the Commission chair, signed the letter. The Commission believed that an invitation from Justice Hunstein would encourage participation more than an invitation from a less well-known or influential individual.[158] The Commission monitored the responses to the invitation letter to ensure representation of all constituencies. Two last minute drop-outs led to an under-representation of the prosecutors' perspective. Additionally, the Commission did not attain the geographic diversity it sought. Eighteen people, mostly from Atlanta and surrounding communities, participated in the roundtable discussion group.[159]

The roundtable discussion featured a lengthy agenda. The Commission planned to spend approximately five hours discussing problems and potential solutions during the investigatory stage, the charging/indictment phase, pre-trial, trial, and post-trial. The Commission sent the participants an agenda prior to the meeting that asked them to think about problems and proposed solutions in each phase of the processing of an adult sexual-violence case.

During the initial one and a half hour discussion, the participants identified problems in each phase of a case. The facilitator recorded the problems, and the participants spent the remaining time discussing potential solutions. After the intense five-hour meeting, the participants left feeling productive. The facilitator memorialized the ideas and circulated them to the roundtable participants to ensure accuracy. Some participants responded with minor corrections and additions. Next, the facilitator used additional research to flush out the suggestions. For example, the facilitator provided specific Georgia case law or statutes to support the participants' ideas and to incorporate current law.

The Commission drafted what would become the Report. It contained the problems and the solutions identified during the roundtable discussion. In a series of meetings, the GSCCE analyzed each section of the draft Report. In many instances, the Commission agreed with the roundtable discussion group's proposed solutions while it felt others required modification. One of the recommendations for the pre-trial phase was to increase indigent defense funding. At the time the Report was considered, however, indigent defense funding was a divisive political issue that the Commission felt would be best avoided. The Commission feared this controversy would detract from other suggestions. Thus, it changed to the more politically palatable recommendation that "the state legislature should consider that inadequate indigent defense spending may have a negative effect on sexual violence cases. . . . [because] inadequate representation may cause these cases to move more slowly through the system."[160]

Another section of the draft Report suggested that police should receive training on the signs and symptoms of date-rape drugs. The Commission wanted to expand upon that suggestion. They asked the facilitator to do additional research about date-rape drugs and their effects. In doing the additional research, the facilitator discovered that the Georgia Bureau of Investigation ("GBI") had proposed a bill that would make it a felony to possess and distribute some of the chemicals used as date-rape drugs. The final Report incorporated the additional information about the signs and symptoms of date-rape drugs, as well as a recommendation that the state legislature pass the GBI's proposed bill.[161]

Although in most instances the Commission adopted or only slightly modified the roundtable proposals, it completely changed a few of the recommendations. For example, the roundtable participants noted that, in their experience, many rape defendants pled guilty to misdemeanors or were acquitted at trial. They attributed this, in part, to Georgia's ten-year mandatory minimum sentence in rape cases. The roundtable participants felt that because of the high stakes, defendants were willing to go to trial, and prosecutors would rather take a misdemeanor plea than lose the case. The participants initially discussed a recommendation that only the existence of aggravating factors should trigger the mandatory minimum sentence. They noted that this suggestion would not be politically viable unless empirical evidence existed that the mandatory minimum sentence had led to a decline in rape prosecutions and convictions. After the roundtable discussion, and prior to the Commission meeting on the draft Report, the facilitator gathered information from one of the participating public defenders about case outcome statistics for the years before and after enactment of the mandatory minimum sentence. The statistics showed no clear correlation between the mandatory minimum sentence and case outcomes, and the Commission decided to change the roundtable group's recommendation. Rather than recommending that only aggravating factors trigger the mandatory minimum, the recommendation reads:

The Commission recognizes that because of the mandatory minimum sentence in rape cases, many rape cases are pled as misdemeanor cases. Although the evidence is only anecdotal at this point, both prosecutors and defense attorneys at the July 26 Roundtable discussion felt that the mandatory minimum sentence often leads to less prosecutions and convictions because the stakes are so high that defendants are willing to risk a trial. Thus, prosecutors often feel compelled to reduce a rape case to a misdemeanor plea in order to [e]nsure a conviction. When a defendant is allowed to plead to a misdemeanor, the defendant receives a much lighter sentence, or in some cases, just probation. Additionally, a plea to a misdemeanor means that a defendant is not listed in the Georgia Sexual Offender Registry. To remedy these problems, and give prosecutors more options, the Commission recommends that the legislature make the crime of sexual battery, O.C.G.A. § 16-6-22.1 (1996), a felony. In order to avoid the problems currently created by the mandatory minimum sentence for rape cases, the Commission recommends that felony sexual battery not carry a ten-year mandatory, minimum sentence.[162]

This change was probably the most significant. Other changes were based upon the Commission's experience with the issues discussed in the Report. For example, the final Report included an original suggestion by the Commission that "[t]he Georgia Department of Human Resources' Women's Health Division should periodically review and update the Georgia Protocol for Responding to Victims of Sexual Assault[] and . . . provide training for those expected to use the protocol."[163]

The Commission expended a considerable amount of time reviewing the first and second drafts of the Report. It consumed approximately six months reviewing and redrafting the Report before finally approving it. The Commission published the final Report in the spring of 2003 and distributed it to prosecutors, judges, state legislators, local news media, and national women's organizations.

Because the Report's content provides a good illustration of the process described above, and because the Report contains many suggestions that could be easily adapted and implemented in other jurisdictions even without the roundtable discussion group process, the Report is reprinted in Appendix I below.

VI. Discussion of the Georgia Model

The final Report's suggestions can be broken down into three categories: (1) the need to implement existing laws and protocols; (2) the need to continue educating police, attorneys, judges, and the public; and (3) the need for increased funding. None of these suggestions are ground-breaking ideas. For at least the last two decades, women's groups across the country have worked to educate judges, prosecutors, and the public.[164] Likewise, seeking increased funding is certainly not a new idea. Nevertheless, because of the way the Report was generated and its specific focus on Georgia, the Commission hoped the Report would generate positive changes.

Only time will tell whether the Report's suggested reforms will have any greater likelihood of success than the statutory reforms that passed in other jurisdictions. However, the Georgia process and its results certainly have the potential to create meaningful change for a number of reasons.

The first reason is that the Georgia model relies on common sense. Rather than looking solely to women's groups, victims' advocates, and prosecutors for suggestions, the model included judges, scholars, and criminal defense attorneys.[165] The idea of gathering victims' advocates, judges, and prosecutors together to discuss potential changes is not a novel idea. However, there are some attributes that make the Georgia process unique. For example, the roundtable discussion group included criminal defense attorneys, a group usually excluded from discussions about improving the handling of sexual violence cases. Including defense attorneys, along with prosecutors, judges, and victims' advocates, was important to the process for a number of reasons. First, those advocating reforms could sense which reforms would gain acceptance and which would face strong opposition because of actual or perceived infringement of defendants' rights, or because prosecutors believed that the idea was not workable. Second, this model led to a rich discussion and a search for alternatives that would help victims while protecting defendants' rights. Third, the cross-section of participants created more solutions than any constituency could have created individually. Finally, it was hoped that the involvement of well-respected representatives with diverse perspectives would lend more credibility and lower resistance to the suggestions, both in enactment and in implementation.

Another reason the Georgia model may prove successful is that the Georgia group discussed each phase of a sexual violence case and focused on specific issues that were occurring in Georgia.[166] Thus, they geared many of the suggested changes to issues occurring in Georgia rather than to global problems. This focus even applied to traditionally universal topics such as education. For example, the roundtable group suggested educating police and prosecutors about existing Georgia case law and ensuring that the State Board of Education implements the required rape prevention and personal safety education program for grades eight through twelve.[167] Taking a general idea and applying it to specific problems occurring within a particular state makes the Georgia model both unique and one that other states should consider adopting. This process allows states to identify their own unique problems.[168] It also allows for a discussion among those who understand what reforms are potentially viable in the state's political landscape. For example, the participants in the roundtable discussion eliminated suggested changes to the Georgia rape laws after realizing that they were not politically viable.

The roundtable discussion model and ensuing Report directly address the reasons for the failure of prior reforms. One failure of prior reforms that prosecutors encounter is the endurance of rape myths among jurors.[169] Additionally, criminal justice officials, aware of these juror misconceptions, continue to evaluate cases in light of these myths.[170] The Georgia reforms address these issues on a number of fronts: (1) education of police, judges, prosecutors, and society regarding the invalidity of these rape myths; (2) improved juror voir dire to screen for those who believe these rape myths; and (3) better police investigations to help prosecutors deal with jurors' expectations of corroborating evidence.

An additional reason suggested for prior reforms' failure is the reforms' inadequate definition of consent.[171] The Georgia roundtable group dealt with this issue by recommending a revision of the pattern jury instructions to better explain Georgia law on this issue.[172]

The roundtable group addressed another alleged failure: judges retain too much discretion in implementing the law.[173] The Commission suggested re-writing the pattern jury instructions so that they conform to existing Georgia law—law that is more favorable to rape victims than the current pattern jury instructions reflect.[174] Having pattern jury instructions removes some discretion because most judges feel bound to give a pattern instruction if the prosecutor requests it and it applies to the case. Likewise, the Report contains some suggestions that eliminate police discretion, such as the recommendation "that instead of allowing . . . [an officer] to decide if a rape kit is warranted, all officers should be instructed that upon receiving a complaint, they must offer the victim the option of having a rape kit prepared as long as the complaint is made within [72] hours of the alleged rape."[175]

In summation, the Georgia roundtable discussion model directly addresses some of the reasons postulated for other reforms' failures. Of course, the roundtable discussion model does not purport to, nor could it, address all the issues numerous commentators have raised as to why other reforms have failed. In particular, it does not provide an alternative framework for viewing rape cases, except insofar as it proposes further educational efforts to dispel rape myths and to change societal attitudes. Nevertheless, the roundtable discussion model is a positive step in the long-term process of rape law reform.

Despite its potential, the roundtable discussion model will not work if reformers do not follow up on the Report's recommendations. The Report contains many practical solutions that should not be difficult to implement. However, the recommendations encompass many different agencies and areas of government. It contains suggestions for legislation and for the education of prosecutors, police, and judges. It includes recommendations to different committees, such as the Standing Committee on Pattern Jury Instructions[176] and the Council of Superior Court Judges' Case Management Subcommittee.[177] The Report also includes recommendations for the State Board of Education.[178] The danger of this process is that once the Report has been issued nothing more may happen. Without enactment of its recommendations, the Report will be useless. In order for the Georgia model to effectuate change, the generation of a Report must be the beginning, not the end, of the process. To make that happen, there must be accountability for the implementation of each recommendation.

Numerous ways to do this exist. The group issuing the Report may make individuals responsible for monitoring the progress of specific suggestions, periodically reconvening to hear progress reports. Additionally, the group may want to ask victims' advocates to issue a yearly progress report on the implementation process. Finally, scholars might want to study the impact of these changes. It is through implementation and continued accountability that the roundtable discussion model and its Report will create meaningful change.

Conclusion

Rape law reformers have attempted to radically change state laws. In some states, legislatures enacted reforms. In other states, the long battle to enact reforms continues. The empirical evidence indicates that the reforms may make a slight difference in the reporting and the processing of rape cases. Thus, the statutory reforms are worth pursuing for that incremental difference, as well as for their clear symbolic value. Regardless of whether legislatures have enacted significant reforms, work remains to be done. As states and victims' advocates look to the future, they should think creatively, like the GSCCE did in utilizing the roundtable discussion model. For all the reasons discussed above, the roundtable model has the potential to contribute significantly to the improvement of a state justice system's treatment of sexual violence victims.

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APPENDIX A

REPORT OF THE GEORGIA SUPREME COURT COMMISSION ON EQUALITY*

The Georgia Justice System's Treatment of Adult Victims of Sexual Violence: Some Problems and Some Proposed Solutions

I. The Investigatory Stage

A. Problems in the Investigatory Stage

An overall problem at this stage of a case is lack of victim reporting. Victims' advocates and scholars note that many rape victims do not report the rape,¹ in part, because of perceptions that the system will not treat them well. The Commission identified two specific areas in which victims' treatment during the investigatory stage of a case could be improved: the victim's forensic examination, and the initial police investigation of the reported crime.

Participants in the July 26, 2002 Roundtable discussion² identified three main problems that occur during a sexual violence victim's physical examination. First, victims are being billed for rape kits despite the fact that a statute requires the "law enforcement agency investigating the crime to pay for the cost of the medical examination to the extent the expense is incurred for the limited purpose of collecting evidence." O.C.G.A. § 16-6-1(c) (1996). ³ Victims' advocates and prosecutors report that there often is a dispute among the District Attorney, County, and Police Department about who is responsible for paying for the rape kit and there is no funding in law enforcement budgets for rape kits. Second, many victims feel they have no dignity after a forensic examination because they are left without any clothes, and are not given a toothbrush or other toiletry items. Finally, there is a lack of health care professionals trained in forensic evidence collection and a lack of health care professionals trained to deal with victims of sexual assault. Many counties do not have Sexual Assault Nurse Examiners (S.A.N.E. nurses).⁴

Roundtable participants also observed that many police officers are not adequately educated and trained about what is a rape. Some officers do not recognize or credit accounts of acquaintance rape or "bad neighborhood" rape. Also, many officers are not aware of various cultural issues confronting sexual assault and rape victims. Finally, victims' advocates report that often police officers decide who gets a rape kit based upon whom they believe.

B. Solutions to Problems in the Investigatory Stage

To solve some of the problems occurring during a victim's forensic examination, the Commission makes the following recommendations. First, the Commission recommends that the state legislature authorize state funding for rape kits. Second, the Commission recommends that the state legislature and authorize funding to train S.A.N.E. nurses so that in each county, evidence in sexual crime cases can be gathered by specially trained nurses who do not work for law enforcement agencies. Case studies and testimonial evidence indicate that S.A.N.E. programs help ensure that police obtain records of exams in a more timely fashion, shorten the wait time for the victim in the emergency room, provide victims with additional assistance resources and support, result in better forensic evidence collection, and help prosecutors prove their case at trial.⁵ Third, the Commission recommends that the state legislature provide funding so that after a rape exam, a victim is given emergency contraception⁶ and antibiotics for Sexually Transmitted Diseases (S.T.D.s) instead of being given a prescription for these drugs.⁷ Fourth, the Commission recommends that the state or other public or private agencies provide hospitals with spare clothes, toothbrushes and toiletry items to give to victims after the rape examination. Finally, the Commission recommends that rape crisis volunteers be given additional training that specifically addresses dealing with victims' emotional needs.

To deal with some of the problems occurring during the police investigation of a sexual violence crime, the Commission makes the following recommendations. The Commission recommends that instead of allowing the first responder (officer) to decide if a rape kit is warranted, all officers should be instructed that upon receiving a complaint, they must offer the victim the option of having a rape kit prepared as long as the complaint is made within 72 hours of the alleged rape.

The Commission also recommends that law enforcement officers be educated about the existing protocol for gathering evidence in rape cases. They should understand the need to follow that protocol,⁸ and police and prosecutors should review and update the existing protocol. For example, the existing protocol does not cover how to investigate and deal with the presence of date rape drugs. Nor does the protocol suggest that if the scene will not be investigated by the forensics crime unit, the first responder needs to do the necessary photography, canvass the neighborhood for witnesses, and otherwise collect and record evidence at the scene.⁹

The Commission further recommends that police officers' continuing education programs include mandatory continuing education on sexual assault. These continuing education programs should include information that will educate officers about what legally constitutes the criminal offense of rape (i.e. that acquaintance rape is a rape) and about cultural issues rape victims face. The training should encompass training about cultural issues arising in Georgia's many diverse racial and ethnic communities. Additionally, the content of sexual violence victim training in the police academy should be periodically reviewed and updated.

Finally, the Commission recommends that law enforcement preserve rape kits and other evidence for later testing.¹⁰

A. Problems in the Charging/Indictment Phase

The July 26, Roundtable discussion group identified numerous problems that occur during the charging and indictment phase of a sexual violence crime case. First, victims sometimes do not immediately report the crime, and this makes gathering evidence more difficult. Second, the number of health care professionals trained in forensic evidence collection is inadequate. Third, police do not gather enough evidence. They often do not go to the scene and do the necessary photography, and they do not canvass for potential witnesses. Instead, they rely only on the victim and the medical reports. The lack of evidence makes charging and indictment much more difficult. Finally, sometimes police officers make their own assessments about whether there is enough evidence to charge and about whether the victim is credible and thus whether they should investigate fully. The fact that the victim is perceived to be using drugs or alcohol, or that drugs or alcohol are present at the scene, may impact the investigation, charging and trial. Sometimes, officers fail to investigate, or investigate fully, or fail to charge an alleged perpetrator when they perceive that a victim has been using drugs or alcohol. Thus, sometimes prosecutors never have an opportunity to decide whether a case should be investigated and whether an alleged perpetrator should be charged or indicted.

Roundtable participants agreed that sometimes inadequate communication between the District Attorney and the victim before charging results in cases being over-charged or under-charged. Under-charging and plea bargaining to simple battery often occurs, and this means that the defendant does not end up in the registry of sexual offenders. Prosecutors sometimes over-charge with rape when the behavior is actually a sexual battery. The over-charging then leads to delays in the processing of the case and the inability of the defendant to get bond.

Prosecutors also noted that they sometimes experience a lack of victim cooperation. Victims sometimes retract their statements, or decide they do not want to file charges. Victims' advocates report that this lack of cooperation is often due to victims' encounters with the first responder. In some cases, lack of cooperation is also due to the fact that victims feel stigmatized by rape and, in many cultures, sexual violence victims are actually stigmatized by their family and friends.

B. Solutions to Problems in the Charging/Indictment Phase

The Commission recommends that police officers be trained to investigate and document victims' drug and alcohol use, but not to cut off the investigation simply because a victim has been drinking or using drugs. Officers should also be educated about the existing case law that says a victim who is too impaired by alcohol or drugs is incapable of consent to sexual intercourse.¹¹ Officers also should be trained to recognize the signs and symptoms of date rape drugs and to request that doctors immediately test for the presence of those drugs, because the symptoms of date rape drugs mirror the symptoms of extreme intoxication.

According to the Georgia Bureau of Investigation, (GBI) in 2003, some of the most common "date rape" drugs include Gamma Hydroxybutyrate (GHB), Butendiol and GBL.¹² Numerous other drugs are also used for date rape, including Ketamine and Rohyphnol a.k.a. Flunitrazepam or "Roofies".¹³ All these "date rape" drugs incapacitate victims and facilitate the crime of rape. General signs that a "date rape" drug has been used include: the appearance of intoxication disproportionate to the amount of alcohol consumed, unexplained drowsiness and impaired motor coordination, dizziness, confusion, impaired judgment and loss of inhibition, and anteretrograde amnesia which "may prevent the assault victim from remembering the assault even if she was conscious throughout the ordeal".¹⁴

In fact, the amnesia caused by these drugs often leads to a delay in reporting the assault and thus an inability to detect the drug's presence. It also often makes it difficult for a victim to identify her attacker or even remember what happened.¹⁵

All the "date rape" drugs pass through the victim's system very quickly. The GBI recommends that, at the outside, for GHB, Butanediol and GBL, blood tests must be performed no later than 2 to 4 hours after ingestion and urine samples obtained no later than 4 to 6 hours after ingestion.¹⁶ Because flunitrazepam metabolizes more slowly, it can be detected in a urine sample collected within 72 hours of ingestion.¹⁷ The quicker the urine and blood samples are obtained, the greater the likelihood the drugs will be detected. However, some scientists recommend collecting urine samples up to 4 days after an assault and blood samples up to 24 hours after an assault because trace amounts of the "date rape" drugs may be found in these samples.¹⁸

The Commission notes that part of the problem with many of the "date rape" drugs is that the drugs are easily accessible, and in some cases, possession of the drugs is not even illegal. For example, although GHB is a Schedule I narcotic,¹⁹ GBL is not listed as a scheduled narcotic although it is federally listed so that its distribution is monitored. However, Butanediol is readily available over the counter. Both GBL and Butandiol are solvents with industrial use, thus their possession is not illegal. The GBI would like to see legislation enacted that makes it a felony drug offense to possess and distribute GBL and Butanediol for human consumption.²⁰

To help deal with some of the problems caused by "date rape" drugs, the Commission recommends educating emergency room physicians, law enforcement officers, and S.A.N.E. nurses about the various date rape drugs and their symptoms. The Commission further recommends that all evidence collection kits contain urine collection containers and that rape investigation protocols call for immediately obtaining blood and urine samples to test for the "date rape" drugs if there is any possibility that they may have been used. The Commission also recommends that the legislature consider adopting the GBI's proposed legislation that would make it a felony offense to possess and distribute GBL and Butanediol for human consumption. Finally, the Commission advocates widespread community education about these drugs and ways to avoid ingesting them.

To help with charging decisions in sexual violence cases, the Commission recommends that District Attorney offices have immediate contact with the victim - either at the police station or immediately after the defendant's arrest. The contact should occur before the bond motion and charging in order to help the D.A. determine the appropriate charge.

III. Pre-Trial

A. Problems in the Pre-Trial Phase

The Commission found that problems in the pre-trial phase could be broken into three main categories: the time involved in processing cases; lack of victim notification about pre-trial proceedings; and problems arising when there is contact between the victim and the accused. Each of these problems is discussed below.

The Roundtable discussion group noted that one problem during the pre-trial phase is the length of time between charging and trial, especially in cases where there are multiple continuances. This results in a victim who gets discouraged about having to come to court so many times and ends up not wanting to prosecute. It also means that an accused, who is unable to make bond, may end up serving a full sentence even if eventually acquitted. The Commission notes that these problems are commonly due to a lack of statutory time limits for prosecution of these cases.

Another problem in the pre-trial phase is poor communication between victims and prosecuting attorneys' offices. Often, victims are not notified about the defendant's bond hearing or release on bond.²¹The Roundtable participants noted that despite O.C.G.A. § 17-17-5, (1996) victims often do not get notice of a plea bargain, dismissal or other outcomes. In part, this is attributable to the fact that O.C.G.A. § 17-17-5 only requires that notification be given via "land line" and does not provide for notification via cell phone, pager, fax or e-mail.²² Thus, sometimes even when the prosecuting office attempts to notify the victim about a plea bargain, dismissal or other case outcome, the victim does not receive notification if she does not have a land line phone or is no longer at the same phone number.

The final pre-trial phase problem identified by the Roundtable participants is that of contact between the victim and the accused. Prosecutors note that victim-initiated contact hurts the prosecution's case. They also note that defendant-initiated contact does not raise a bond revocation problem unless the contact is violent or unless there is a special "no contact" condition of bond. Further, the accused often encourages third party contact to discourage the victim from prosecuting.

B. Solutions to Problems in the Pre-Trial Phase

The Commission recommends that the issue of delay in case processing be addressed through the Council of Superior Court Judges' Case Management Subcommittee. The Commission suggests that this Subcommittee devise rules on status hearings and time lines for various phases of the prosecution of crimes involving sexual violence. The Commission also recommends that the state legislature consider that inadequate indigent defense spending may have a negative effect on sexual violence cases; inadequate representation may cause these cases to move more slowly through the system.

The Commission also recommends that O.C.G.A. § 17-17-5, which requires notification of the victim about bond hearings, be amended to provide for notification via cell phone, pager, fax and e-mail, in addition to land lines. The statute should also specifically identify who is responsible for notifying victims about plea bargains, dismissals or other case outcomes.²³ Whichever government agency is responsible for victim notification under O.C.G.A. § 17-17-5 should be given the resources necessary to help them comply with this statute.

Georgia already has Victim's Information and Notification Everyday (V.I.N.E), a computerized network that automatically notifies victims when, after a trial, an offender is coming up for parole, is released from prison, or escapes from custody. It is an automated system that will continue to call the victim until it succeeds in contacting the victim. The Commission recommends that the current V.I.N.E. be enhanced to create a separate automated system that is designed to notify victims of sexually violent crimes about their alleged perpetrator's bond hearing and pre-trial release. This would help effectuate the intent of O.C.G.A. § 17-17-5 and would address victims' concerns about not knowing the incarceration status of their alleged perpetrator.

To address some of the problems of contact between the accused and the victim, the Commission recommends judicial education about a "no contact" special condition of bond, including education about the fact that a special condition of bond must explicitly include a provision that the accused must not ask third parties to contact the victim.

IV. Problems At Trial

A. Problems at Trial

The Commission found that in Georgia, at least four problematic areas exist during the trial of sexual violence cases: voir dire; juror misconceptions about sexual violence crimes and victims; problems with proof related to the existing rape statute; and problems with other sexual violence statutes. Problems and proposed solutions in each of these areas are discussed below.

1. Voir Dire

Prosecutors and defense attorneys both observed that in sexual violence cases, potential jurors are hesitant to talk in open court about their experiences with regard to sexual violence crimes. Also, potential jurors may be reluctant to express in open court some strongly held beliefs such as a belief that only stranger rape is a rape or that women who wear suggestive clothing or drink to much are "asking for it". In addition to juror reluctance to discuss personal beliefs and information in open court, voir dire efforts are often hampered by judges. Because judges have the discretion to limit voir dire, many judges, concerned with judicial efficiency, often do not allow more than basic information to be elicited during voir dire.

2. Juror perceptions

In addition to problems with voir dire, prosecutors note that they must often overcome jurors' preconceived notions about rape victims and criminal trials. For example, many jurors expect a traumatized victim, something jurors may not see given that in many cases, the rape occurred months, if not years, before the trial. Also, due to television shows and the media, jurors expect a lot of evidence, such as D.N.A. samples, hair samples, and other physical evidence. Often, this evidence does not exist. For example, if a rape is not immediately reported, it is unlikely that a prosecutor will have access to a lot of physical evidence.

In addition to overcoming juror expectations about the victim and evidence, prosecutors must confront jurors' ingrained attitudes and biases. For example, many jurors believe that a prostitute cannot be raped or that the only "real" rape is stranger rape. Additionally, prosecutors have found that juries are unwilling to convict in acquaintance rape cases because of the harsh sentence.

3. Problems with the current rape statute

Another problem confronting prosecutors is the current rape statute. Prosecutors note that although Georgia case law defines consent,²⁴ force,²⁵ the statute fails to define these key terms. For example, in Georgia, there is case law that holds that a victim may be too impaired to consent.²⁶ However, many prosecutors do not rely on this case law, and in some counties, prosecutors and judges are unfamiliar with this case law.

Roundtable participants also noted that the ten-year mandatory, minimum sentence for rape often is the reason for acquittal or dismissal or a plea bargain to a lesser charge. If a case is not perceived as strong, either due to a lack of physical evidence or because of a jury's possible preconceived notions about acquaintance rape or what a victim should look like or how a victim should behave, many prosecutors would rather take a plea to a lesser offense than risk an acquittal.

4. Other problems

One final problem identified by the Commission is that the statute dealing with sexual assault on a person in custody (school or prison), O.C.G.A. § 16-6-5.1(1996) does not encompass oral sex.

B. Solutions to Problems at Trial

1. Solutions to problems with voir dire

The Commission recommends individual sequestered voir dire in which the judge asks the potential juror sensitive questions such as "were you or a member of your family ever a victim of sexual assault or accused of sexual assault? " or "were you or a member of your family ever accused of a crime of sexual violence?". The Commission believes that the judge, rather than the attorneys, should ask certain sensitive questions such as those stated above for two main reasons. First, the judge should serve as a gatekeeper in determining which sensitive questions are appropriate to ask. Second, when the questions are asked by the judge, rather than the attorneys, it takes the onus of invading the juror's privacy off the attorneys so that a prospective juror does not become upset with an attorney for breaching the juror's privacy.

In addition to sequestered individual voir dire, the Commission recommends that judges allow more in-depth voir dire in sexual assault cases so that attorneys may attempt to determine if potential jurors have ingrained stereotypes or biases about sexual assault cases or about sexual assault victims.²⁷

2. Solutions to juror (i.e. public) perceptions about rape

Juror perceptions about rape are actually a societal problem.²⁸ The Commission believes that education is the key to changing societal attitudes about rape and sexual violence crimes. Thus, the Commission recommends that starting in high school, Georgians should be educated about what a rape is. The education should also include information to counteract societal stereotypes so that young people begin to understand that acquaintance rape is rape, and that there is neither a "typical" rapist or rape victim nor is there a way that a rape victims "should act". The Commission notes that O.C.G.A. § 20-2-314 (1996) states that the State Board of Education shall develop, by the start of the 2000-01 school year, a rape prevention and personal safety education program for grades 8 through 12 which is consistent with the core curriculum. The statute states that local boards shall be encouraged to implement the program for any grade level they find appropriate. The statute further provides that the state board shall make the information regarding such program available to the Board of Regents of the University System of Georgia.

The Commission recommends that the State Board of Education insure compliance with this statute. Additionally, the State Board of Education should encourage schools to insure that any rape prevention program encompasses information designed to counteract stereotypes and misconceptions about what a rape is, who can be a rapist or rape victim and how rape victims should act. Additionally, the Commission recommends that education about rape laws and acquaintance rape be added to all college orientation programs.

Finally, the Commission also recommends that the Law Related Education Consortium develop an on-going public education campaign, with public service announcements, aimed at educating the public about sexual assault and counter-acting stereotypes about rapists and rape victims.

3. Solutions to problems with the current rape statute

To help address the fact that the current rape statute does not incorporate case law, the Commission recommends that the Standing Committee on Pattern Jury Instructions revise the pattern jury instructions in rape cases. For example, Roundtable participants noted Georgia case law holds that the prosecution does not need to prove there was vaginal trauma and physical injury to the victim.²⁹ However, prosecutors noted that the jury is not always instructed on this law, even when a prosecutor believes such an instruction is appropriate, because judges have the discretion about whether to include case law in a jury instruction. Rather than amending the statute, the Commission recommends the pattern jury instructions be re-written to incorporate the existing case law that explains terms such as penetration, consent, force, "against the victim's will" and that the instructions include language from the case law that notes a victim may be too impaired to be capable of consent.

The Commission recognizes that because of the mandatory minimum sentence in rape cases, many rape cases are pled as misdemeanor cases.³⁰ Although the evidence is only anecdotal at this point, both prosecutors and defense attorneys at the July 26 Roundtable discussion felt that the mandatory minimum sentence often leads to less prosecutions and convictions because the stakes are so high that defendants are willing to risk a trial. Thus, prosecutors often feel compelled to reduce a rape case to a misdemeanor plea in order to insure a conviction. When a defendant is allowed to plead to a misdemeanor, the defendant receives a much lighter sentence, or in some cases, just probation. Additionally, a plea to a misdemeanor means that a defendant is not listed in the Georgia Sexual Offender Registry. To remedy these problems, and give prosecutors more options, the Commission recommends that the legislature make the crime of sexual battery, O.C.G.A. § 16-6-22.1 (1996), a felony. In order to avoid the problems currently created by the mandatory minimum sentence for rape cases, the Commission recommends that felony sexual battery not carry a ten-year mandatory, minimum sentence.

4. Solutions to other problems

The Commission recommends that the legislature amend O.C.G.A. § 16-6-5.1 (1996), the statute making sex with a person in custody a crime, so that the statute includes oral sex.

V. Post-Trial Problems

A. Problems Occurring After the Trial

Roundtable discussion participants noted that there have been problems with the Georgia Sex Offender Registry. The G.B.I. has had inadequate staffing for the sex offender registry; the registry does not have photos; and there is poor enforcement of the registry requirements (e.g. updating addresses, follow-up on reporting change of address by offenders). The Roundtable discussion group also noted that in some cases, special conditions of probation are not being fully enforced.

B. Solutions to Post-Trial Problems

The G.B.I. recently added two staff members to help with the Sexual Offender Registry. It also has figured out a way to get photos into the registry. These developments may solve the problems set forth above. At this point, the Commission recommends that no further action be taken to solve the problems with the sex offender registry. However, the Commission recommends that the registry be monitored to see if the additional staff members fix the problems with enforcement and follow-up.

The Commission also recommends that parole and probation officers fully enforce any special conditions of probation.

VI. Additional Suggestion

In addition to the recommendations set forth above, the Commission strongly recommends that the Department of Human Resources' Women's Health Division periodically review and update the Georgia Protocol for Responding to Victims of Sexual Assault. The Commission further recommends that the Women's Health Division provide training for those expected to use the protocol.

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