Tom Lininger


The title of this Article poses a rhetorical question. Of course it is not improper to site a rapist. The act of rape qualifies as a tort in all fifty states. Rape causes egregious injuries, both physical and psychological. The Supreme Court regards rape as the ultimate violation of personal autonomy. Other than homicide, no act is more plainly tortious. Yet the criminal justice system is surprisingly hostile to civil suits by rape survivors. Judges in criminal cases virtually always allow impeachment of accusers with evidence of civil suits against the alleged assailants or third parties. This Article surveys every published decision on the subject since the 1970s, and it notes judges' general agreement that civil litigation "corrupts" accusers in prosecutions for rape. The courts' aversion to civil litigation reflects a misapprehension of the theoretical principles underlying the impeachment rules; it also reflects assumptions that injuries caused by rape are not remediable in tort. Although civil suits are sometimes a legitimate ground for impeachment, accusers should not automatically forfeit their credibility in criminal cases simply because they file tort claims. Indeed, given the different standards of proof in criminal and civil proceedings, the alleged victim's failure to file a tort claim may be more noteworthy than her filing of a claim. Impeachment of accusers based on parallel civil litigation actually says more about the wealth of the accused (a highly prejudicial topic) than about the mendacity of the accusers. Reforms are necessary to harmonize criminal and civil litigation. The rules of evidence should require a more precise showing of relevance before permitting impeachment of accusers based on their civil claims. Pattern instructions should guide jurors in weighing this evidence. New tolling provisions for civil statutes of limitation can help to reduce the friction between the criminal and civil justice systems. The goal is to ensure that the criminal and civil justice systems are complementary, not mutually exclusive.

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