LOOOONG POST ON HOW RAPE VICTIMS THEMSELVES OFTEN FAIL TO GRASP THAT THEY HAVE THE RIGHT TO BE FREE OF FORCED SEX

When I interned at a defense attorney’s office during college, the criminal defense community was up in arms with regard to a pamphlet that one of the area colleges produced with a title something like, “Could You Have Been Raped Without Knowing It?”  I am not sure I ever saw the pamphlet or what it said, but I remember thinking how ridiculous it sounded.  I remember thinking, “I’m not a moron. I think I’ll know it if I am raped.” 

That was before I learned how muddled and confused the thinking about “consent” is among the public at large when the context is rape.  When you scratch the surface in discussions with witnesses, jurors, police officers, and even victims themselves, you learn that people really seem to think that “it’s not rape” unless the victim tried to fight it to the death.  I remember my own father saying that rape is virtually impossible because it would be too difficult to hold a woman down and complete intercourse if she is struggling.  This argument of course ignores the fact that a woman can be forced into compliance and that she shouldn’t have to choose between having nonconsensual sex or having her brains blown out when she struggles too much.  This argument also ignores the fact that women are taught from earliest childhood that they are not capable of resisting a man physically. 

People also seem to have difficulty getting their minds around the notion that it is rape if the man involved is married to his victim or has had prior consensual sex with her.  I’ve seen the lightbulbs go off on people’s heads when I have explained it in terms of the fact that the man does not own the woman from the time he first has sex with her forevermore.  But people do not seem to initially think of the issue in those terms. 

The following are three real-life examples from my former caseload as a prosecutor-- and for the sake of the discussion as to popular understandings of consent, let’s please accept the women’s allegations as true.  (Obviously, in real life, we examined these allegations critically in light of all the evidence before deciding to prosecute and then the allegations were subjected to the “proof beyond a reasonable doubt” standard in a jury trial.)

These examples all relate to women who were forced to have sex against their will.  Each one of these women told me that they had not wanted to have sex but felt they had no choice under the circumstances. Each woman felt violated and angry at the man involved.  These were not ambiguous situations.  These were not situations in which the man might have erroneously believed that there was freely given consent. Yet, the women involved did not themselves identify what had happened to them as criminal.  They themselves seemed to believe that they were somehow complicit because they “went along” with something they were forced to do, or in the second scenario, the woman seemed to believe (if you follow her reasoning to its logical conclusion) that she did not have the right to ever retract her prior consent to having sex with someone -- i.e. that she was her boyfriend’s to do with whatever he liked because she had consented to sex with him in the past.  As I told her at the time, if that were the law, I would advise any woman I cared about never to get married or have sex with anyone!

I know this is turning into a rant, but it never fails to amaze me how women’s basic right to self-determination is so easily dismissed or misunderstood when the context is rape.  Unless the woman locks herself up in a monastery for her own safety, remains unmarried and virginal all her life, and fights to the death if anyone breaks into the monastery to rape her, she is at risk of being considered somehow complicit if she is raped.  I am not saying these are well thought-out positions among the public at large, but these are the general attitudes that one encounters in rape prosecutions even among the vicitms themselves, even in the most egregious cases. 

First Scenario  Victim’s male acquaintance breaks into her apartment and grabs her.  He is in a rage because she had refused to go out with him.  He roughs her up a bit, including belting her across the face and throttling her. He then forces her at gunpoint to drive him to his house, where he keeps her overnight.  He specifically tells her that he will shoot her if she tries to escape.  He is distraught and talks repeatedly about how much he loves her.  He talks about wanting to live with her in Mexico.  Her survival strategy was to pretend to go along with his plans.  She wanted to gain his trust.  When he had sex with her that night, she “went along with it” in order to survive.

After finally escaping, she went to the police.  She expected that he would prosecuted for kidnapping, assault and threatening.  She was, however, shocked when I brought a rape charge against him.  She didn’t feel that she had been raped because she had “gone along” with the sex.  When I questioned her, however, she said that she had “gone along” with it because she thought (quite reasonably under the circumstances) that he would blow her brains out otherwise.  But, to my shock, in her mind, she herself felt that it was not a rape because she had not resisted in any way.  (Under the law in my jurisdiction, sex that occurs during the course of a kidnapping is rape, and even if that were not so, I think the physical threat against her was sufficient to make this a rape.)

Second Scenario  A woman and her boyfriend got into an argument culminating in him punching her and then forcing her to have sex. Neighbors had heard the screaming and called the police.  The woman had a black eye.  She was initially cooperative with the police and agreed that her boyfriend should be charged with assault. When asked by the police, she said that she had not wanted to have sex with her boyfriend at that time and that he had “forced her.” She was, however, puzzled by the rape charge because she had had consensual sex with her boyfriend on prior occasions .  In her mind, it wasn’t a crime because she had had a prior consensual relationship with him. 

Third Scenario  A 25-year old man is supervising a sixteen year old girl in a fast food restaurant.  After telling her that he really wished someone would give him oral sex (he didn’t put it quite so politely), he suddenly pulled her into a supply room, pushed her forcibly down on her knees, and yanked down his pants. (I don’t remember the precise sequence of events or what exactly he did physically to accomplish all this.) He told her that she “owed him” because he hadn’t fired her when she was late to work.  She told him “no” and tried to get up and leave, but he pushed down on her shoulders and pushed her face into his crotch.  He was yelling at her and calling her a “bitch.”  She felt that she had no choice but to give him oral sex and so she complied. She “wanted to get it over with.”  He was charged with rape on three theories under the law in my jurisdiction (A.  using his position of authority over a victim under the age of 18 to coerce her into having sex, B. physically forcing her to have sex, C. having sex with her despite the fact that she indicated both physically and verbally that she did not wish to do so.)

This scenario came to light because immediately afterward, she ran to her best friend’s house and tearfully told the friend what had happened.  The friend told a guidance counselor at school the next day, and the guidance counselor called the police.  The victim, however, had made statements to the friend that he “made me do it, but he didn’t force me.”  The victim beat herself up emotionally because she believed that she could have done more to try to wrench herself away from this guy or that she could have screamed.  When I asked her why she didn’t, however, she said (a) she believed that he would hurt her if she had resisted and that because he was so much bigger than she that any attempt to escape would be fruitless, and (b) that she would lose her job, which was an important source of pride and financial support to her.  (Note that my jurisdiction does not provide criminal law protection to adult women who are coerced into having sex on the job.  Adult women are expected to know enough to say “no” and to pursue the appropriate civil remedies.  My victim, at age 16, however, was considered old enough to consent to sex, but not old enough to withstand coercive on-the-job pressure to have sex. This seems like a sensible balance to me.  An adult woman in this scenario, however, could be said to have been raped under the theories of physical force or the theory that she had indicated verbally and physically that she did not consent.)

Comments

[Will]

Under the facts that you described, I dont really think that many intelligent people would disagree that those women were raped.

Let's take a more subtle example:

Man has hit his girlfriend frequently in the past. Assume they dont live together. Last time beating was 1 week ago. Since then, they have had consensual sex.

He is drunk and tells her "let's fuck!" She doesnt want to and tells him that she doesnt want to. He walks over and starts taking her clothes off, lays her down, and penetrates her.

Has she been raped? Does she have to say or do anything else to tell him "no"? Or does she have to say or do anything to say "yes"?

[Will]

Also, consider my same hypothetical without the prior beatings. Instead, he is just bigger than she is and she knows (as all women do) that he could beat her up if he wanted to (although he never has in the past.)

Same answer?

[The Happy Feminist]

Hey Will --

My examples are definitely not subtle, and there isn't much room (I don't think) for disagreement. But that's my point. Despite the fact that my examples aren't subtle, I have run across MANY people, including the victims themselves, who didn't seem to think these were rapes. That's what I have found SO shocking -- the level of widespread ignorance and lack of thought regarding what constitutes a rape in even the most egregious circumstances. It may seem like I'm setting up a strawman (strawperson?) except that these were REAL cases, and I've heard similar attitudes expressed by a variety of people in these cases.

I used to think that there were no "rape myths" and no need for "rape education" until I began to understand the prevalence of the backwards attitudes about rape that are bubbling just below the surface of our culture.

Your example raises a different issue. A woman has a right to refuse sex without fighting to the death. But whether the word "no" is really an indication of "no" in the context of their relationship is another question. As a prosecutor, I would want to know a lot more about the relationship between the parties and the past conduct between them. On previous occasions had she said "no" and then wordlessly consented? Was this part of a pattern between them? Could he have honestly believed that she wanted the sex based on past conduct between them? What was her reason for not saying anything other than the initial "no" to indicate that she did not consent? Had he ever beaten her up in the past for refusing sex? I think your described situation is one in which the past conduct between the parties could raise a doubt as to whether he "knew" that she was in fact indicating "no." On the other hand, the past conduct between the parties could also establish that she knew she couldn't resist in anyway other than her initial "no" without risking a beating-- and that he knew it too.

So my response to your scenario is, "It depends." Regardless of the kind of case, if there is a prior relationship between the parties, one really needs to delve into the background to make a determination whether to prosecute. I would probably say the same thing in a theft or fraud case involving people with a prior relationship.

[The Happy Feminist]

By the way, just want to make clear that a person can be raped by someone with whom they had a prior consensual sexual relationship. A lot of people don't understand that, and it wasn't so long ago, that marital rape was not considered a crime.

However, I would agree that a prior consensual relationship can raise ambiguity and doubt with regard to the defendant's intent (i.e. what he knew and understood at the time of the crime -- did he know that she was indicating "no"). For non-lawyer readers. Rape shield laws do not apply to prior sex between the parties, although of course the circumstances of that prior sex would have to be relevant in order to come into evidence.

[Will]

HF:
I am not sure whether I would have felt frustration or anger (probably both) upon hearing the people not understand that they had been raped.

It reminds me of the story of a elderly juror who did not want to convict the defendant of rape. He didnt believe the woman's story because she claimed to have been raped standing up and everyone knows that you cannot have sex unless you are horizonal. (I had to google sex positions to find out that he was wrong. WOW! imagine my surprise!)

He held out until two other jurors threatened to have sex standing up in the juror room.

[Will]

HappyF:

Your second comment reminds me that rape between husband and wife used to require serious physical injury. In other words, you could beat her up a little, then rape her. You just could not beat her up a lot!

There are some perfectly good reasons for such a statute. As anyone who does divorce work knows, women could use the allegation of rape in divorce cases fairly easily. "We were in bed. I said no. He said yes and held my arms." (By the way, in Virginia, rape is a minimum 5 year crime.)

Obviously, there are also a lot of very reasons why that former statute was a bad idea as well. Namely, rape is horrible period and no means no.

[The Happy Feminist]

I think lawyers tend to take for granted that certain things about criminal law are obvious. I often had to explain things from a defense perspective when say a grand juror would ask, "Well, if he confessed, why are we even here?" or when a victim would ask, "Why should I have to go through having to testify etc. etc. when HE'S the one who committed the crime?"

And it does get maddening when people don't appreciate why rape is such a bad thing. On the other hand, one of the things I love about trial work is the opportunity to educate people about what the law says and why it say what it says.

As for it being easy for divorcing women to fabricate rape allegations, I dunno. I have never seen one of those cases. But it strikes me that it would also be pretty easy to brutalize one's soon-to-be-ex-wife and then yell, "Motive to Fabricate!" if she tries to make an issue of it. I do know that once a rape allegation makes it into the criminal justice system, it is scrutinized very closely.

[Chalicechick]

Someone wise I knew once said that if you consent to sex when you don't feel threatened, but you still don't really want to, you're raping yourself.

I go back and forth on that one, but it is interesting.

CC

[Lori]

Just wanted to say thank you for this post. Never commented here before, but I absolutely love the blog and just about everything written here (I'm also a feminist, a dog lover, a unitarian, and a law student, haha). Have to delurk for this particular topic though... thank you for talking about it and educating people. Thank you, thank you, thank you.

I'd be interested to know if you have other examples of the more tricky situations, the ones in which it IS about the right to say no without a fight to the death, as you say. That phrase is just perfect, by the way. Seems like that would be pretty difficult to prosecute, though. Hm...

[Richard]

First scenario: Not guilty. You yourself stated that she had sex with him because, "She wanted to gain his trust." (only later do you backtrack and say she thought he'd blow her brains out if she didn't. I usually find first reasons more truthful.) In this scenario you give not one fact that the man demanded sex with her and would not take no for an answer. Zero. And so we are asked to find a rape where there is no evidence the man demanded sex and the woman admits she did not outwardly object. What a great country. (I think your state's sex-during-kidnap-equals-rape crime is faulty. It's one of those strict liability facts-be-damned approaches to finding rape. It's a charge that actually puts into the hands of the sharp-thinking "victim" the power to rack up another offense against the defendant. Don't tell me is hasn't or couldn't happen.)

Second scenario: Guilty. No argument, but what a ditsy woman. (She needs to meet my two older sisters who would set her straight about such things.)

Third scenario: Guilty as to counts "B" and "C". Not guilty as to count "A". "Position of authority" rape is one of these new age pseudo-sex crimes developed by what Camille Paglia once called "Betty Crocker feminists", i.e., feminists with a naively optimistic Pollyannish view of reality where they see the universe as blighted by nasty men.

I'll have to give your post generally some more thought, as I don't believe any crime should need the enlightened explanation from prosecutors, police or legislators before the victim realizes they are a Victim. "Oh wow, really?!" doesn't sound to me like something a person should feel like saying after a real crime.

Good post!