10 Questions: Linda Fairstein On Rape

(Sigrid Estrada)
Almost every day, we read another tragic story about another brutal sex offender. Just this week, a jury in Miami convicted one of the most evil rapists imaginable—a 48 year old repeat sex offender who snatched a nine-year-old girl from her bedroom, then raped and murdered her. Up until the early 1970's, the media rarely covered sexual assaults, and the victim was often considered more guilty than the rapist. One of the pioneers who literally changed the way sex crimes are prosecuted—and discussed—in this country is Linda Fairstein, who led the Sex Crimes Prosecution Unit of the Manhattan District Attorney's Office for twenty-five years. She's the author of a new bestselling crime novel called Bad Blood, and we thought she could bring us up to date on this scary and very important subject.

1. How has the law changed regarding sexual assault? Are victims treated more fairly today?

Until the 1970's, laws in most states – derived from 17th century British cases – required that a woman's testimony by corroborated by other evidence. That is, in these crimes least likely to be witnessed by anyone else, there had to be independent proof of who the attacker was and what force he used to overcome his victim's resistance. Since this evidence so rarely existed before the introduction of forensics to these investigations, most women were denied access to the courtroom, no matter how credible they were. After the elimination of the corroboration requirement, rape shield laws were passed to protect witnesses from being cross-examined about their prior sexual history, which is irrelevant in the overwhelming number of reported cases. These long-overdue legislative reforms helped begin to make the system more welcoming – and a lot more fair – to victims of sexual violence.

2. Does it matter whether a rape is a "stranger rape" or an "acquaintance rape" in the eyes of the law? Which is more common?

Stranger rape cases, in which the victim is attacked by someone not known to her prior to the occurrence of the crime, are defined the same way as acquaintance rape cases, in which the offender has been known to the victim, whether casually or in an intimate relationship. The crime is accomplished when the offender uses force – a weapon, physical force, or the threat of either – to compel submission to a sexual act. In the case of stranger rape, the main issue before the jury is usually the identification of the attacker, made much more reliably since the admission of DNA evidence in 1989. In acquaintance rapes, the victim knows who her assailant is, so the testimony is more focused on the victim's allegations, and whether force was used during the course of the encounter. Despite fears that most of us have about attacks by strangers, women are far more likely to be raped by someone they know – and trust. Close to eighty percent of reported rapes occur between acquaintances.

3. How do you define "date rape?" And what can be done about the extraordinary number of women who still choose not to report rapes by their friends and boyfriends?
"Date rape" is one category within the broader term of acquaintance rape. Most at risk in these instances are young women between the ages of fourteen and thirty-five, who meet the offenders in the normal course of socializing at school, work or parties. The men involved rarely have any record of criminal involvement, unlike stranger rapists. Frequently, these cases involve the use of alcohol or drugs by one or both of the parties, which often makes the intended victim even more vulnerable. It's so very important for women to report their victimization – even if they ultimately decide not to prosecute. There are many services available today to guide victims through decisions they need to make about reporting crimes and getting appropriate treatment, with national organizations like SAFE HORIZON and NATIONAL CENTER FOR VICTIMS OF CRIMES (NCVC) which have 24 hour hotlines to provide guidance and

4.What role does new DNA technology play in solving and prosecuting these crimes?

DNA – my three favorite letters of the alphabet – has revolutionized the way sex offenses are investigated and prosecuted, especially with stranger rape cases. I was first asked to use this dazzling technology in a 1986 investigation, when only one forensic lab in America was equipped to do the testing, and no court had accepted it as a valid form of evidence to be presented to a jury. Until that time, most trials relied on the victim's ability to identify her assailant, which placed an enormous burden on women since many attacks occur in darkened rooms or rooftops, by men who blindfold them or made certain that opportunities to see their faces were limited. Now, this brilliant methodology makes the likelihood of conviction much greater – and less stressful for the witness herself – and can be used with equal reliability to exonerate suspects who have been wrongly accused.

5. Can so-called "cold cases" – old crimes – get solved today using these new tools? And what is the statute of limitations for rape?

One of the most exciting applications of DNA technology is its uses to solve old cases – sex crimes and homicides – even after the most dedicated investigators have exhausted all traditional means of trying to find the criminal. Evidence from unsolved cases is stored in police lockers and laboratories – often for decades – and analysts can now re-examine clothing, bed linens, and even microscopic slides containing body fluids, using this reliable science. Often the results connect known criminals to unsolved cases, or match up a string of sex offenses in different jurisdictions to a serial rapist. It's no longer unusual to hear a news story – as we did this week – in which a rapist is computer-linked to multiple attacks by DNA fingerprinting, long after victims imagined their attackers would be brought to justice. That's the main reason why many states are enacting legislation to eliminate the five year statutes of limitation that applied to most rape cases, allowing prosecutions whenever the DNA identification is finally made.

6. How common are Special Victims Units in police departments? Whey – and when – were they created in the first place?

When I graduated from law school in 1972, there was not a specialized unit in any prosecutors' office or police agency to deal with these issues – sex crimes, domestic violence, child abuse, and stalking. The great NYPD – and the LAPD – were the first two departments to develop special victims units that very year, recognizing the need to combine classic detective skills with cutting edge forensics – the search for evidence in this "contact" crime, where body fluids and even skin cells may be left at the crime scene or on the victim's body. In addition, these experts require an extra measure of compassion, on a human level, in their response to sexual assault survivors who have been so traumatized by their experience. Now, in addition to the units which exist in most large police departments, even small agencies in communities across the country send their detectives for training to deal with this unique category of crimes.

7. How is "stalking" defined legally? And what can be done about stalkers?

"Stalking" crimes are relatively new laws, enacted in the last two decades, to fill a terrible gap in the criminal justice system, which lacked adequate means – or understanding – to address this terrifying conduct which often escalates to more deadly attacks. Stalking occurs when an offender harasses or threatens his or her victim (whether by following her, making phone calls, writing letters – or using the latest high-tech devices including the internet or installing a hidden GPS in the subject's car!) , placing the victim in fear for his or her safety. Harassment, a low-level violation in most states – not even a crime – was never taken seriously in most courts, because while the threats or conduct was ongoing, judges used to say that "nothing happened" to the victim. A series of high-profile cases awakened us all to the fact that there is a "lethality factor" to these crimes, and the need for laws that defined stalking and made it a serious crime. These cases can be prosecuted whether the offender has an existing or prior relationship with his victim, or is a complete stranger.

8. What are the best steps women can take to prevent being raped?

Some of the simplest protections are lessons we were taught as kids, in the case of stranger rape. Be aware of your surroundings; keep your doors – and car doors locked; if walking on a dark street, don't stay close to buildings – maybe even walk in the street; have your keys in your hand as you approach the front door so you're not fumbling for them to get inside; and don't get in a car with a stranger who pretends to be a good Samaritan – that's how Ted Bundy got started. Acquaintance rape is entirely different, because the victim is often attacked by someone with whom she has chosen to spend time. Have your first dates in public places; don't assume you "know" someone because you have spent hours in chat rooms together or emailing each other; and limit your alcohol intake when you are drinking with someone you don't know well. I could go on for a really long time on this one.

9. If a woman is raped, whom should she call right afterwards? Her doctor? Her lawyer? The police? All of the above?

The first phone call a rape survivor should make is to 911. Tell the operator you've been raped and you want the police. They will take care of all else, including getting you to a medical facility. Forget all the 1970's movies and myths about how police handle these cases – they do extraordinary work with rape victims, and you can always choose to decline to prosecute. It's critical to get medical attention, and while you may trust your own doctor, trauma hospitals are equipped to do the special examinations – they have advocates who will help you through the process; they have evidence collection kits (most private doctors do not) that will get the most minute forensic clues to the lab for analysis; and they can test for sexually-transmitted disease, which is always a risk in these cases. If for some reason you don't choose to do either of those things, you must tell someone. A friend, a relative, the person you most trust in the world – the experience doesn't resolve itself by not talking about it. There is so much help available today – legally, medically, and psychologically – and a far greater chance of a victim getting justice in a court of law than there was even a decade ago.

10. What motivated you to basically devote your life to this subject?

My career as a sex crimes prosecutor and victims' advocate was entirely serendipitous. There were only seven women among the two hundred lawyers in the Manhattan District Attorney's Office when I arrived, and no sex crimes unit. In fact, until that time, no women were allowed to try felony cases, because of the violence involved. After his election in 1975, Bob Morgenthau asked me to take over the newly created unit, just as courtroom doors were being 'kicked open' by the women before me. Laws began to change, and for the very first time, they enabled rape survivors to triumph over the criminals. We continued to fight for more legislative reform, achieve greater victories, educate the public about these issues that for so long had been shrouded in darkness and rarely discussed by the mainstream media. Then, in 1986, which was exactly midway through my thirty year prosecutorial career, I was one of the first lawyers introduced to DNA. It was thrilling to participate as science changed the way the criminal justice system responded to victims of violence. The challenges were enormous, the opportunities to save lives was extraordinary, and the ability to work (as I like to say) 'on the side of the angels' was richly rewarding every day of my professional life. And now, I try to explore all that through my fictional alter ego, Alex Cooper, in my crime novels. Thanks for letting me answer your questions.


  • Katie Couric

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