Skip to main content

Rape cases: When judges just don't get it

By David M. Perry
May 5, 2014 -- Updated 1753 GMT (0153 HKT)
A Georgia judge overturned the jury's conviction of a man on charges of raping a woman with Down syndrome.
A Georgia judge overturned the jury's conviction of a man on charges of raping a woman with Down syndrome.
STORY HIGHLIGHTS
  • Judge reversed rape verdict, saying woman didn't act like a victim, man didn't act like rapist
  • David Perry: The victim "Jane" has Down syndrome, but that is not reason for outrage
  • Perry: See "Jane" not as person with Down syndrome, but as a woman who wasn't believed
  • Perry says judges blame victims, dismiss cases cause victims "didn't fight back"

Editor's note: David M. Perry is an associate professor of history at Dominican University in Illinois. He writes regularly at his blog: "How Did We Get Into This Mess?" Follow him on Twitter.

(CNN) -- Last September, William Jeffrey Dumas was convicted of three counts of rape. According to the charges, he had raped a woman three times over a night and the following morning, and the jury agreed with the prosecution that he was guilty. But just last week, a judge overturned the jury's conviction and ordered a new trial.

The Georgia appeals court judge, Christopher McFadden, argued that the verdict went "strongly against the weight of the evidence" because, in his judgment, the woman in question -- I'll join other writers in calling her Jane -- didn't act like a victim and the man didn't act like a rapist.

Jane has Down syndrome and the growing national outrage to this case has focused, with reason, on her disability. But Down syndrome is only part of the story.

David M. Perry
David M. Perry

The outrage is not only because this judge didn't understand Down syndrome, but that judges frequently impose their perceptions on cases of sexual assault, reducing sentences even for convicted rapists on the grounds that the victim didn't act "correctly." Jane's troubling case reveals the intersections between rape culture and the way we strip agency from people with disabilities.

Here are a few details. In October of 2010, Jeffrey Dumas was hanging out with friends in a home where a 24-year-old woman with Down syndrome was staying while her mother was out of town. According to the complaint, Dumas raped the woman three times over an evening and the following morning, but she made no "outcry" until the following day, despite having ample opportunities to tell the other adults in the house.

People with intellectual disabilities, especially women and girls, are sexually assaulted at a much higher rate than the rest of the population. People with intellectual disabilities, even those with strong communication skills, can be vulnerable to sexual assault because they are unsure of what's right or wrong or whether they can say no.

They rarely receive sexual education or are provided assertiveness training. Given this context, one might well invoke Down syndrome to explain the delay between the assault and the complaint. Most important, during the trial, Jane testified that she was raped, the jury believed her, and the medical and physical evidence confirmed her story.

But the judge, acting as he says in his decision, as the 13th juror, saw things differently. McFadden writes that although "the evidence is sufficient to sustain the conviction," he offers a long list of confusing aspects in the testimony, which he boils down to, "At no time prior to her outcry on the 19th (the next day), did (she) behave like a victim. Nor did Mr. Dumas behave like someone who had recently perpetrated a series of violent crimes against her."

I don't pretend to know what happened on the night of October 18 in the Fayetteville, Georgia, home. But I do know that what happened in the courtroom is not just about disability and agency, but about rape and the way authorities respond to women's testimony.

'Jane' has Down syndrome and the growing national outrage to this case has focused, with reason, on her disability. But Down syndrome is only part of the story.
David Perry

Down syndrome may be a reason this judge decided that Jane's words carried less weight when measured against his perception, but many nondisabled women, women of all social classes, races, sexual orientations, and levels of ability, have experienced precisely the same kind of dismissal.

Here are a few examples that do not involve disability.

Last year in Montana, a judge reduced a former teacher's rape conviction to 31 days because the victim, a 14-year-old girl, was "as much in control of the situation" as her rapist and, in his opinion, "older than her chronological age."

In California, a judge reduced a sentence of a convicted rapist because the woman didn't fight hard enough. The judge said, "If someone doesn't want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn't necessarily willing, she didn't put up a fight."

In Arizona, a judge reduced a sentence of a police officer convicted of sexual abuse to community service and probation, instead blaming the victim for being in a bar. The judge said, "If you wouldn't have been there that night, none of this would have happened to you. ... When you blame others, you give up your power to change."

In Alabama, a judge structured a 40-year sentence for rape so the rapist would serve two years in a community program for nonviolent criminals and three years of probation at home. The judge, much like McFadden, argued that the victim just didn't behave correctly. He said, "You didn't hear the evidence. The original allegation was that both of these crimes were forcible. But then you have to believe that although she was forcibly raped twice, she continued to come back and have a social relationship (with the rapist)."

Other women have been prosecuted for false reporting of rape because they didn't "act traumatized." Rape convictions have been vacated entirely because the victim didn't fight back, such as in Connecticut, when the state supreme court freed a rapist because his victim, a woman with cerebral palsy and a mental age of 3, with no ability to speak, didn't bite, kick, or scratch her attacker.

As disability blogger Sarah Levis has commented, all of these stories should push our attention to this aspect of rape culture in the courtroom. Rape culture creates the myth that victims of rape must react within a predictable set of norms or raise doubts about the legitimacy of the rape. All of these women, including Jane, behaved in a way that judges didn't understand, so they overturned convictions or reduced sentences.

And here is where disability comes back into play. Because of her Down syndrome, Jane is relatively immune to the kinds of victim-blaming endured by other women who are assaulted or abused.

We know she wasn't asking for it. We can't blame her for staying in the house while Dumas got drunk. We know she didn't encourage him, then change her mind the next day. All of the myths about false reporting of rape don't apply to Jane because of her disability, and for that at least we can be thankful. Jane's experience points to the offensive way women's behaviors are interrogated when they seek justice.

I hope that Jane and Dumas get justice in their next trial. If there are discrepancies in the timeline of events, as the court documents suggest, let them be explored. After an outcry, Judge McFadden recused himself from the retrial, which seems like a good decision.

But as the next trial unfolds, do not focus on Jane because she is a woman with Down syndrome. Focus on Jane because she is a woman who says that she was raped. Focus on Jane because she's joined the ranks of other women, women of all races, classes, sexual orientations, and levels of ability who have said that they were raped and then had their testimony disregarded by a judge on the basis of not acting enough like a victim.

There is no one correct way to respond to being violated, but there are so many ways that our justice system can make it worse.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of David Perry.

ADVERTISEMENT
Part of complete coverage on
October 21, 2014 -- Updated 2006 GMT (0406 HKT)
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
October 21, 2014 -- Updated 0102 GMT (0902 HKT)
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
October 21, 2014 -- Updated 1600 GMT (0000 HKT)
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
October 21, 2014 -- Updated 1135 GMT (1935 HKT)
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
October 21, 2014 -- Updated 1312 GMT (2112 HKT)
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
October 21, 2014 -- Updated 1851 GMT (0251 HKT)
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
October 21, 2014 -- Updated 2207 GMT (0607 HKT)
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
October 20, 2014 -- Updated 1329 GMT (2129 HKT)
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
October 20, 2014 -- Updated 2012 GMT (0412 HKT)
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
October 20, 2014 -- Updated 0336 GMT (1136 HKT)
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
October 20, 2014 -- Updated 1223 GMT (2023 HKT)
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
October 20, 2014 -- Updated 0221 GMT (1021 HKT)
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
October 22, 2014 -- Updated 1205 GMT (2005 HKT)
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
October 20, 2014 -- Updated 1300 GMT (2100 HKT)
The world's response to Ebola is its own sort of tragedy, writes John Sutter
October 17, 2014 -- Updated 2033 GMT (0433 HKT)
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
October 18, 2014 -- Updated 1722 GMT (0122 HKT)
When you hear "trick or treat" this year, think "nudge," writes John Bare
October 18, 2014 -- Updated 0442 GMT (1242 HKT)
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
October 17, 2014 -- Updated 1345 GMT (2145 HKT)
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
October 16, 2014 -- Updated 2043 GMT (0443 HKT)
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
October 18, 2014 -- Updated 0858 GMT (1658 HKT)
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
October 17, 2014 -- Updated 1342 GMT (2142 HKT)
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
October 17, 2014 -- Updated 1221 GMT (2021 HKT)
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
October 16, 2014 -- Updated 2027 GMT (0427 HKT)
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
October 16, 2014 -- Updated 0407 GMT (1207 HKT)
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
October 15, 2014 -- Updated 1153 GMT (1953 HKT)
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
October 16, 2014 -- Updated 0429 GMT (1229 HKT)
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
October 20, 2014 -- Updated 1653 GMT (0053 HKT)
Paul Callan says the Ebola situation is pointing up the need for better leadership
October 15, 2014 -- Updated 2245 GMT (0645 HKT)
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
October 15, 2014 -- Updated 1700 GMT (0100 HKT)
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
October 15, 2014 -- Updated 2301 GMT (0701 HKT)
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
October 14, 2014 -- Updated 1744 GMT (0144 HKT)
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
October 18, 2014 -- Updated 1335 GMT (2135 HKT)
Stop thinking your job will make you happy.
October 15, 2014 -- Updated 0208 GMT (1008 HKT)
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
October 14, 2014 -- Updated 1125 GMT (1925 HKT)
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
October 13, 2014 -- Updated 1303 GMT (2103 HKT)
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
October 14, 2014 -- Updated 2004 GMT (0404 HKT)
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
October 13, 2014 -- Updated 1307 GMT (2107 HKT)
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
October 13, 2014 -- Updated 2250 GMT (0650 HKT)
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
October 11, 2014 -- Updated 1543 GMT (2343 HKT)
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT