In a Day's Work Page 11

  When she was twenty-two, she got married to a man named Juan whom she had met in a night-school English class. They had two kids in three years. He was an attentive and present father who helped change diapers and bathe the kids. She loved that he had an innate sense of justice, she says.

  Juan’s stable job in an orange orchard allowed Chávez to spend her days taking care of their two boys and taking adult education classes. Juan noticed how much work Chávez did, between raising the kids and running the household, so on the weekends he took the whole family out for dinner so she didn’t have to cook. “I don’t think I’m going to find another man like that,” Chávez says.

  That life was upended on Christmas Day of 2005. Chávez was at home with the boys while her husband visited his family on his way home from work. But he never came home. The next morning, the phone rang and she remembers the voice on the other end of the line saying that Juan had been in a car accident and that he had died. Chávez could hear the words but she couldn’t immediately process them. The depth of the tragedy became real to her only when she went to pick up Juan’s truck and saw all of the Christmas gifts, now stained with blood, that he had been bringing home in the back seat.

  There was nothing to do but mourn and start again.

  Chávez had been living in housing provided by the orchard where Juan worked, and when he died, Chávez and her two sons were asked to move out. That’s also when she discovered that her husband, an American citizen, hadn’t started the citizenship process for her, so she was still in the country without documentation.

  She found herself back in the precarious place of looking for work without immigration papers. She turned to jobs that she knew she could get. In nearby Hanford, she found work in a restaurant. Then she and her sons headed to the neighboring city of Corcoran, where Chávez went back to working in the fields.

  Like many farmworkers in California, Chávez found jobs through a third-party farm labor contractor. Eventually, in the fall of 2006, she got a job picking pomegranates. She had been on the job for only about a week when she had to go looking for that missing paycheck—and then ended up having to sacrifice too much to get it.

  Chávez says she hadn’t planned on going to the police to report the assaults in the orchard. She had driven straight home, and because she didn’t want her kids to see how upset she was, she went to her bedroom, crawled into bed, and cried herself to sleep. She woke up when the supervisor called her again and asked to come over. She was shocked, disgusted. She told him no.

  Chávez didn’t want to go back to work, but she needed the money. She knew there was another paycheck due to her soon that could float her for a while longer, but to get it, she’d have to see that supervisor again.

  Feeling stuck, she called the only person she could think of who could help. Alegría de la Cruz was a lawyer with California Rural Legal Assistance in Fresno. Chávez had gone to see de la Cruz a few months before to report that she had been sexually harassed by another supervisor while working for another farm labor contractor, and the legal organization had suggested that she think about reporting the problem to the state’s Department of Fair Employment and Housing.

  Chávez told the lawyer that now she needed help getting an overdue paycheck. De la Cruz detected a familiar tension in Chávez’s voice, and the lawyer asked the farmworker to come into the office. Later that day, Chávez turned up at the nonprofit’s downtown Fresno office. The farmworker repeated that she needed a missing paycheck, but then, as if confessing a sin, Chávez admitted that she was having some pain in her uterus. “It was immediately clear that something else was going on,” de la Cruz says.

  De la Cruz and a community worker named Irma Luna took Chávez to a conference room. After a bit of prodding, the whole story tumbled out: The paycheck, the orchard, the wild goose chase, the assault. This was de la Cruz’s first case of a reported workplace sexual assault, but over the years, she says, she has come to recognize a pattern to the exploitation, and Chávez fit the profile. Single women are especially vulnerable to sexual harassment in the fields, and women who are sexually harassed once are targeted for yet more harassment. As another client once told De la Cruz, “It’s like they’re sharks and we are injured and trailing blood in the water.”

  Chávez eventually agreed to go to the hospital to get her pain checked out. During the intake, a medical assistant named Fabby Martínez asked Chávez some routine health questions and wanted to know the last time Chávez had had sex.

  Chávez’s head fell. She told Martínez that she hadn’t really had sex and then explained what had happened to her. Martínez responded by telling Chávez, “Honey, you shouldn’t stay quiet.”

  Martínez asked the farmworker if she could call law enforcement, and Chávez nodded. The Kings County Sheriff’s Department sent a senior deputy sheriff named Kristopher Zúñiga to interview Chávez at the hospital. As they spoke, he looked for holes in her story and facts that he could readily confirm. He ended the interview inclined to believe that Chávez was telling him the truth. He went into investigation mode.

  The farmworker mentioned that she still had the unwashed clothes that she had been wearing on the day of the rape, so after the interview, he went to Chávez’s house to pick them up as evidence. Chávez also gave him the supervisor’s business card.

  Next, one of Zúñiga’s coworkers went looking for Chávez’s supervisor. The next day, Zúñiga interviewed the suspect for about forty-five minutes. A Spanish-speaking sergeant helped Zúñiga translate his questions into Spanish and the suspect’s answers into English.

  It was the kind of halting, circuitous conversation that made Zúñiga suspicious. At first, the supervisor claimed that nothing had happened—he insisted that he had handed Chávez her paycheck at the shop, end of story. When Zúñiga kept pushing him, the suspect acknowledged that he and Chávez had driven together toward the Lost Hills.

  Under more questioning, the supervisor finally told Zúñiga that after he had given Chávez her check near the fields, she had asked him for directions to the Lost Hills. He offered to show her the way. At some point, they stopped in the orchard, and they were about to go their separate ways when Chávez came on to him. He said that Chávez was the one who had volunteered to give him her underwear. She had also been the one who wanted to masturbate him with her hand, and it was Chávez who had asked him to ejaculate on her. Chávez had asked him to penetrate her with his fingers, he said.

  During the interview, Zúñiga traded thoughts with his partner in English, at one point telling his partner that he simply did not believe the suspect’s story. “He’s not telling me the truth,” Zúñiga said. “My guess is this is not the first time he’s done this either. . . . Because these girls want their check. They want the money because they need their money so he has a hammer on ’em because he’s got the check, and what do they do? . . . They’re probably not gonna report it. Why? Because then they’re gonna get fired and they need their jobs.”

  In an attempt to provoke a candid response, Zúñiga told his partner to ask the suspect: Why would Chávez ask a stranger to do these things to her? And why would she bother to report all of this to law enforcement if it had been consensual? “She has nothing to gain,” Zúñiga said.

  Zúñiga closed the interview by telling the suspect that he had basically helped corroborate Chávez’s story, even down to what she was wearing. Just before turning off the tape recorder, Zúñiga told his partner that he believed Chávez: “Yeah, she’s believable; he’s not.”

  The victim of a sexual assault is expected to prove the veracity of her claims in a way that doesn’t happen with any other crime. Her clothing, her behavior, and her decisions are considered fair game for scrutiny. As the thinking goes, even if she didn’t want it, she may have asked for it.

  Skepticism of sexual assault victims is neither a modern development nor an accident. Though these cases are described as he-said, she-said cases, the woman’s account is seldom given equal consid
eration, and the tradition of discounting what she said is deeply embedded in the wording of our laws and reflects who, historically, has written them.

  In her book Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, Stanford University history professor Estelle Freedman tracks how sexual assault laws have shifted over time to reflect changes in the role of women and people of color in society and political life. She notes that the definitions of sexual assault and rape have always been in flux, and over the centuries, the laws aimed at addressing these crimes have reflected who has been viewed as a citizen with the rights to bring a rape claim.

  This has ultimately resulted in conditions favorable to white men, particularly in the nineteenth and early twentieth centuries. As Freedman notes in her book, during this era when women’s suffrage had not yet been won and black segregation remained pronounced, it was white men who were writing and interpreting the rape laws in American statehouses and courtrooms, while women and minorities were explicitly excluded from political participation.

  It is from this era that the stereotype of “real rape” emerges: that the victim is a woman of chaste character who valiantly tries to fight off an assault by a stranger.12 Based on gendered and racialized notions of sexual assault, married women could not be raped by their husbands, the laws were disproportionately applied to criminalize African American men, and poor women or women of color could never be raped because they were never assumed to be of chaste character. “In the 19th and early 20th centuries, rape laws functioned to sustain white supremacy and to maintain male control and male sexual privilege,” Freedman says.

  The women’s suffrage movement and the work of African American journalists like Ida B. Wells during this time period led to expanded rights for women and people of color, which created an avenue to recalibrate rape laws toward increasingly more equitable and realistic interpretations.13 Nevertheless, rape myths became embedded in the legal system in a way that has been hard to shake.

  Until the middle of the twentieth century, rape victims in many states were required to provide corroboration in court, such as physical evidence or eyewitness testimony, because their word alone was not considered enough.14 Laws also required that a woman who had been sexually assaulted prove that she was of chaste character—often meaning she was a virgin—before she could be considered a rape victim.15

  Nonwhite and poor women could never meet the requirements of chastity in the eyes of judges and juries on the very basis of their race and class. “You could never be raped if you had a sullied reputation or if you had sex before marriage, or if you were poor or a black woman because then you do not have standing of chastity to bring those claims,” Freedman says.

  These requirements have largely been excised from American law books. By the late 1970s, the requirement that rape victims provide corroborating evidence had largely fallen away.16 And in an effort to guard against the chastity requirement, rape shield laws have also been passed in every state.17 They include laws that make a victim’s prior sexual history or other personal details off-limits in court.

  But the legacies of corroboration and chastity die hard. Even though these requirements are no longer codified, in practice, corroboration and chastity often remain unspoken expectations. “Those things go very long and deep in our history,” Freedman says.

  These expectations can tip the scales against sexual assault victims. These are crimes largely committed in private. Eyewitnesses are unlikely. However, the notion that these are he-said, she-said crimes that are impossible to untangle and adjudicate is also a fallacy. Law enforcement—and workplace investigators examining cases of sexual harassment on the job—do, in fact, have other ways of delving more deeply into these types of claims.

  David Lisak, the clinical psychologist, is a consultant to universities and the military on sexual assault prevention and policies. He says investigators can look for various types of information that would help them get to bottom of these scenarios. “The thing that I find frustrating about the he-said she-said thing is that most of the time, it’s really a statement that covers over an inadequate investigation,” Lisak says. “There is no doubt that there are some cases where there really are no other witnesses and there is no other evidence that can be mustered and you really are stuck. But in most cases, there is more evidence that can be brought to bear.”

  Lisak argues that a crime as serious as sexual assault will have some kind of impact on a victim, and skilled investigators can look for these types of changes. “If someone was assaulted and traumatized, it changes their social behavior, so you have a social network you can interview,” he says. “It is still the case that too often, investigators aren’t going far enough or deep enough.”

  Instead, there is a tendency to give perpetrators the benefit of the doubt as a way to guard against false reports. And it is undeniable that made-up claims of rape and sexual assault do, on occasion, occur.

  Infamously, in 2006, Crystal Mangum was accused of lying about being gang-raped by members of the Duke University lacrosse team. The case was zealously prosecuted—but then it unraveled. The district attorney who pursued the case withheld evidence and was disbarred. Mangum’s credibility was shot. Though Mangum maintains the rape happened, it was a troubling example of the ways in which the criminal justice system is ill-equipped to handle these cases.18

  It’s now held up as a cautionary tale, but it is also the exception that has helped reinforce a powerful misconception—that those who cry rape are often lying about it.

  False reports do happen, but research shows that they are rare. Studies carried out in various countries have estimated that between 2 and 10 percent of claims appear to be untruthful.19 To arrive at these numbers, researchers reviewed police reports and examined how the cases were classified by law enforcement, ranging from credible to false. Some studies also compared the police classifications with supplemental information from forensic examiners and victim service providers.20

  One overarching methodological weakness of these studies is that law enforcement officials do not use a consistent definition of what should be considered a false report, or an unfounded case, in police parlance. Unfounded cases are those that, following investigation, lead police to believe that a report of rape or sexual assault is false or baseless. But sometimes, whether out of ignorance, a desire to close a difficult case, the inability to corroborate the assault, or a lack of cooperation from the victim, a report is erroneously deemed false by police.21

  One of the most rigorous studies to examine false rape reporting to American law enforcement sought to counter this methodological problem. It was conducted by End Violence Against Women International, an organization started by a retired California police sergeant that provides training and resources to improve the investigation and prosecution of sexual assault. Researchers for this 2009 Department of Justice–funded study worked with eight police departments throughout the country, first to train the officers on the legal definition of “false report.”22 Next, researchers examined all of the sexual assault cases reported to these police departments for nearly two years. More than two thousand cases were included in End Violence Against Women International’s “Making a Difference Project” study, and researchers concluded that 7 percent were false reports.23

  The researchers eventually published their findings in The Voice, the magazine that is distributed by the National District Attorneys Association. They wrote that “the American public dramatically overestimates the percentage of sexual assault reports that are false.”24

  This overinflation is, in part, a product of the “stereotype of ‘real rape,’” the researchers said. That stereotype often leads people to expect the perpetrator to be a “sick, crazy or deranged” stranger who brandishes a weapon before violently attacking the victim.25 The stereotype also extends to the rape victim, who is expected to have few personal flaws—a modern-day iteration of the chaste character requirement—and to report the crime soon af
ter the attack.26

  The reality is that sexual assault cases are messy and difficult, and they can involve complicated people in compromising situations. In fact, the researchers from End Violence Against Women International argue that the myth of what constitutes a “real rape” has become so entrenched in the popular imagination that it affects the investigation, prosecution, and trial outcomes for victims.

  In courtrooms throughout the country, prosecutors say that the rape myth and the fallacy that victims are lying about sexual assault is pervasive. “There is a mythology in pop culture that a rape victim is going to present to the ER battered with a black eye and with terrible bruising around thighs but the evidence is rarely that clear,” says Joshua Marquis, a spokesperson for the National District Attorneys Association and a practicing prosecutor in Oregon.

  He adds that he has found that juries tend to believe that false rape reports are frequent, when the reality is that it would be illogical for victims to lie because the criminal justice process itself can be so intense. “There are many, many opportunities for a victim to bail,” he says. “They have to be very committed.”

  The believability of a sexual assault victim is further complicated by the fact that trauma can have the perverse effect of making a victim appear unreliable. A growing body of research into the neurobiology of trauma has found that the brain, after being exposed to a jarring event, does not respond the way we expect it to.