To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault Trials


Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of rape trials. When a complainant testifies on the stand, she is forced into one of several roles by jury attitudes and defense narratives. These roles fit defense scripts and create a heavy burden of performance on the accusers.

This burden of performance operates to put a complainant's gender identity on trial and results in the incorporation of dangerous societal myths into the fact-finding process. Using the work of Jean Baudrillard, this article focuses on the performative problematics unique to sexual assault trials. The way by which these processes work is analogous to that of disaster pornography. Scholars have observed that compassion fatigue has resulted because of overexposure to disaster imagery. Similarly, as society has become saturated with rape narratives, it has become desensitized and dissociated from complainants' stories of rape. Because of this phenomenon, there needs to be a fundamental rethinking concerning rape law reform. Otherwise, success in the fight against rape will be as rare as it has been for the last thirty years.


Criminal Law | Criminal Procedure | Evidence | Law and Gender | Law and Society

Date of this Version

May 2006