Sexual Violence as an Occupational Hazard & Condition of Confinement in the Closed Institutional Systems of the Military and Detention

Article by: Hannah Brenner, Kathleen Darcy, & Sheryl Kubiak

44 PEPP. L. REV. 881 (2017)

Women in the military are more likely to be raped by other service members than to be killed in combat.  Female prisoners internalize rape by corrections officers as an inherent part of their sentence.  Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases.  This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military.  The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization allow for sweeping discretion on the part of system actors.  This Article recommends a two-part strategy to better make victims whole and effect systemic, legal, and cultural change: the use of civil lawsuits generally, with a focus on the class action suit, supplemented by administrative law to enforce federal rules on sexual violence in closed systems.  This Article strives to break down the walls that separate these different closed systems into silos, toward an end of shifting laws and policy to better address the multi-faceted problem of sexual victimization.


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Victimhood & Agency: How Taking Charge Takes Its Toll

Article by: Pam A. Mueller

44 PEPP. L. REV. 691 (2017)

This Article addresses an unexplored tension in the civil justice system regarding victims.  The goal of the civil system is to make victims whole.  We can, as is most common, attempt to do this financially, or we can consider psychological research that suggests there may be other ways of restoring victims’ statuses.  One of the most common nonfinancial solutions is to increase victim participation in the justice process.  This is a solution that appeals to many victims and may benefit them psychologically.  However, by increasing their participation, they may unknowingly trade off some of the benefits of victimhood.  For instance, they may be awarded less financial compensation and may even be blamed more for their own victimization.  Part II of this Article discusses financial and nonfinancial strategies for making victims whole in the civil justice system.  Part III addresses the paradoxical nature of victimhood in this system, and Part IV suggests that the psychological construct of agency may shed light on the issues victims face.  Part V presents three empirical studies suggesting there are unanticipated consequences for victims who play an active role in the justice process, which may have serious ramifications for their recovery.  The Article concludes with a discussion of the policy implications of these results, the limitations of the current studies, and future directions for this line of research.


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Bias in Blue: Instructing Jurors to Consider the Testimony of Police Officer Witnesses with Caution

Article by: Vida B. Johnson

44 PEPP. L. REV. 245 (2017)

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness.  Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial.  Jurors are to accept that police are no more believable or less believable than anyone else.

Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified.  In cases where witnesses have received financial assistance or plea deals for their testimony, a special instruction is given.  For example, when a witness with a cooperation agreement testifies, the trial court will tell the jury that while the witness has the same obligation to tell the truth as other witnesses, the jury can consider whether the witness has an interest different from other types of witnesses and that her testimony should be considered with caution.  In many jurisdictions, when a criminal defendant testifies, the jurors are told, despite the presumption of innocence, that he has a “vital” interest in the outcome of the case and that jurors can give his testimony less weight.  Courts have routinely and almost universally refused to allow similar instructions for police officer testimony.

Instructions highlighting that officers may be biased or have an interest in the outcome of the case are almost never given in a criminal trial.  To the contrary, jurors are effectively told they must not consider the police officer’s status as a police officer when considering her testimony.

In many cases, however, police officers are not disinterested parties.  They work hand-in-hand with prosecutors in building a case against a defendant.  In undercover buy-bust stings, search warrant cases, and assault on police officers cases, police officers are not only the sole witnesses to the alleged offense, they are also invested in the outcome of the case.  These cases would not exist without the police officer’s involvement.  These crimes—sometimes police-manufactured—are often the result of departmental interests.  For example, police go out and act in an undercover capacity and claim to buy drugs or purchase sex because of the agendas that they themselves or their offices have set.  Later, they may have to justify decisions they made about the selective use of limited departmental resources with arrests and convictions.  Law enforcement may also be motivated by the money at stake in the civil forfeiture related to a criminal case.  Recent events in Chicago, Baltimore, Cincinnati, Ferguson, Staten Island, South Carolina, and other locations have created a public dialogue on police credibility.

Despite the strong interests of law enforcement, the law has treated law enforcement as impartial when, in reality, officers are in many instances “biased advocates.”  This Article calls for jury instructions that reflect the reality of these police officer interests.