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81 J. Crim. L. & Criminology 267 (1990-1991)
Gateway to Justice: Police and Prosecutorial Response to Sexual Assaults against Women

handle is hein.journals/jclc81 and id is 277 raw text is: 0091-4169/90/8102-0267 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 81, No. 2 Copyright @ 1990 by Northwestern University, School of Law Printed in U.S.A. CRIMINOLOGY GATEWAY TO JUSTICE: POLICE AND PROSECUTORIAL RESPONSE TO SEXUAL ASSAULTS AGAINST WOMEN WAYNE A. KERSTETTER* I. INTRODUCTION In their 1966 book The American Jury, Harry Kalven and Hans Zeisel provided evidence that statutory elements of rape were being redefined by one segment of the criminal justice process-the ju- rors. Kalven and Zeisel concluded that the law recognizes only one issue in rape cases other than the fact of intercourse: whether there was consent at the moment of intercourse. The jury, as we come to see it, does not limit itself to this one issue; it goes on to weigh the woman's conddct and the prior history of the affair. It closely, and often harshly, scrutinizes the female complainant and is moved to be lenient with the defendant whenever there are sug- gestions of contributory behavior on her part.' In the early and mid-1970s this redefinition phenomenon was con- ceptualized in conflict theory terms. Notions of traditional sex-role norms and the sexual property value of the victim were sometimes advanced to explain the perceived inadequacy of the criminal justice agency response. Thus, if a woman failed to act consistently with prevailing ideas about appropriate female behavior, and she was * Wayne A. Kerstetter is an Associate Professor of Criminal Justice, University of Illinois at Chicago, and a Senior Research Fellow, American Bar Foundation. J.D., Uni- versity of Chicago, 1967. Funding for the initial data collection for this study was pro- vided by the Chicago Bar Foundation. Funding for the data collection on case disposition, data analysis, and article preparation was provided by the American Bar Foundation. The assistance of Scott Keenan, Gayle Gilbert, Mary DeSloover, AnthonyJ. Ragona, Clara Carson, and Barrik Van Winkle was of great importance at various points in this study. 1 H. KALVEN & H. ZEISEL, THE AMERICAN JURY 249 (1971) [hereinafter H. KALVEN & H. ZEISELI.