Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders

Abstract

Rape mythologies about the “stranger lurking in the bushes” continue to inform attitudes and decisions by law enforcement personnel, judges, and juries. These archaic stereotypes prejudice sexual assault victims by conditioning factfinders to distrust rape allegations lacking corroborative evidence of a physical struggle with a stranger. In reality, over three-quarters of all sexual assaults in the United States are committed by someone known to the victim; more often than not the victim and perpetrator live, work, or attend school together. Given the perpetuation of rape myths, the incarceration rate for these “acquaintance rape” offenders currently stands at less than 1%. The failure of the criminal justice system to protect sexual assault victims from perpetrators with ongoing access to their victims puts victims at genuine risk of future harm. Moreover, existing civil restraining order statutes remain largely unavailable to sexual assault victims, because these statutes either require the presence of a romantic relationship or impose an unattainably high burden of proof for victims with little extrinsic evidence of physical assault. This Article advocates for a new Sexual Assault Protection Order that imposes no relationship requirement, operates under a lower burden of proof, and provides carefully-tailored prospective relief specifically designed for sexual assault victims. This Article also considers the constitutional concerns of critics who argue that restraining order hearings impermissibly adjudicate criminal guilt under more permissive civil procedures. The Article concludes by balancing these competing concerns, and recommending a model Sexual Assault Protection Order that can both provide tangible, attainable protection remedies to victims and adequately protect the rights of the accused.

Keywords: sexual assault, rape, restraining order, protection order, gun rights, constitutional law, burden of proof